Clarke and National Disability Insurance Agency (Practice and procedure) - [2025] ARTA 1773

Clarke and National Disability Insurance Agency (Practice and procedure) [2025] ARTA 1773 (11 September 2025)
Applicant:James Clarke
Respondent: CEO, National Disability Insurance Agency
Tribunal Number: 2025/2944

Tribunal:General Member F Robertson
Place:Perth
Date:11 September 2025
Decision:Pursuant to s 97 of the Administrative Review Tribunal Act 2024 (Cth), the application is dismissed.

Statement made on 11 September 2025 at 10:39am
CATCHWORDS
PRACTICE AND PROCEDURE – National Disability Insurance Scheme – Whether a decision to refuse to reimburse the applicant for past transport expenses is a reviewable decision
LEGISLATION
Administrative Review Tribunal Act 2024 (Cth), ss 12, s 97.
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
National Disability Insurance Act 2013 (Cth), ss 99, 100, 103.
CASES
Palin and National Disability Insurance Agency [2023] AATA 94
PBZB and National Disability Insurance Agency [2023] AATA 3385
PTJR and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 196
RTRH and National Disability Insurance Agency [2022] AATA 205
XXWC and National Disability Insurance Agency [2020] AATA 923
Statement of Reasons

The applicant, Mr Clarke, is a participant in the National Disability Insurance Scheme (NDIS) who is aggrieved by a decision made by the respondent in relation to the reimbursement of travel expenses incurred by him from, on, or around 14 September 2024.
The respondent, the CEO of the National Disability Insurance Agency (the Agency) contends that there is no ‘reviewable decision’ before the Tribunal and that, pursuant to s 97 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act), the review application must be dismissed.
For the following reasons, I have found that the present application does not involve a ‘reviewable decision’, as that term is used in the ART Act, and that, accordingly, I must dismiss the review application pursuant to s 97 of the ART Act.
BACKGROUND
In order to provide some context for my conclusion, it is necessary to briefly set out some of the salient background in relation to the current application.
The applicant is a 32-year-old man. In June 2021, the applicant applied for access to the NDIS. On 14 September 2021, the applicant’s application for access to the NDIS was refused by the Agency. Mr Clarke sought internal review of the decision to refuse him access. On 17 November 2021, the internal review decision affirmed the decision to refuse the applicant access to the NDIS.
The applicant successfully sought review of that decision in the former Administrative Appeals Tribunal (AAT). That decision was made on 27 October 2023, and on the basis the applicant met the access criteria under s 24 of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act).
Subsequently, on 5 December 2023, the Agency approved a plan containing statements of participant supports (SoPS) for the applicant. The applicant was not satisfied with the content of the SoPS and sought internal review of the decision approving his SoPS. The applicant’s internal review was completed on 28 March 2025 and was partially successful. However, the internal review decision did not approve the inclusion of Transport Level 1 as a support in the applicant’s SoPS.
The applicant applied to the AAT for review of the internal review decision on 14 April 2024.
On 14 October 2024, the AAT was abolished and replaced by the Administrative Review Tribunal. Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), 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. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.
The review application in relation to the internal review decision dated 28 March 2024 was determined by a decision of the Tribunal on 30 January 2025. That decision was made pursuant to s 103 of the ART Act, on the basis that the parties provided signed terms of agreement. The agreed decision included the variation of the applicant’s SoPS to include Transport Level 1 as a stated support.
Following the success of his review application, the applicant sought the Agency reimburse him for transport costs he claims to have incurred from 14 September 2021. The applicant’s contention, simply put, is that having regard to his success before the AAT and the Tribunal, he ought to have been granted access to the NDIS on 14 September 2021 with a SoPS which included Transport Level 1. He therefore sought the Agency reimburse him for transport expenses he claims to have incurred from 14 September 2021.
The applicant’s request for reimbursement was considered by the ‘Payments Team’ of the Agency who, on or about 19 March 2025, advised the applicant that it had declined to reimburse him for expenses incurred from 14 September 2021.
The applicant sought, but was not granted, an internal review of the decision made on 19 March 2025 on the basis that the decision was not a reviewable decision within the meaning of s 99 of the NDIS Act.
The applicant applied for review on 24 March 2025. The chronology contained in the applicant’s submission describes the review application as being ‘to review 19/03/2025 decision’.
The raising of the section 97 issue
The review application was listed for a directions hearing on 5 August 2025. On 4 August 2025, being the day before the directions hearing, the respondent filed written submissions contending that the decision of the Payments Team dated 19 March 2025 was not a reviewable decision. The respondent sought that the review application be dismissed, pursuant to s 97 of the Administrative Review Tribunal Act 2024 (Cth).
Having regard to the late filing of those submissions, I concluded it would not be procedurally fair to the applicant to determine that question on 5 August 2025 and instead ordered that the parties file submissions on the issue. A hearing in relation to the question was then listed for 10 September 2025.
Both parties filed written submissions in relation to the question. On 12 August 2025, in addition to the written submissions which had been filed on 4 August 2025, the respondent filed additional written submissions together with the documents relied upon in relation to whether the decision is a reviewable decision. The applicant filed written submissions dated 3 September 2025.
The question which arises for determination is whether, by his application dated 24 March 2025, the applicant seeks review of a decision which is not a reviewable decision. If I am satisfied that the decision is not a reviewable decision, I must dismiss the application.[1]
[1] Administrative Review Tribunal Act 2024 (Cth), s 97.
For the following reasons, I have concluded that the Tribunal does not have jurisdiction in relation to the applicant’s review application, on the basis that there is no relevant ‘reviewable decision’ which has been made and can be validly reviewed by the Tribunal.
CONSIDERATION
Pursuant to s 12 of the ART Act, a decision is a decision that is reviewable by the Tribunal if an Act or legislative instrument provides for an application to be made to the Tribunal for review of that decision.
The table contained in s 99(1) of the NDIS Act sets out the decisions that are reviewable decisions, being decisions that are reviewable by an internal reviewer under the NDIS Act under s 100 of the NDIS Act. In turn, s 103 of the NDIS Act provides that an application may be made to the Tribunal for review of a decision made by a reviewer under s 100(6) of the NDIS Act.
The NDIS Act provides that an application may be made to the ART for review of a decision made by the Agency’s internal reviewer under s 100(6) of that Act.[2]
[2] National Disability Insurance Act 2013 (Cth), s 103.
As was explained correctly, with respect, by SM French in PTJR and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 196, the planning process is linear and prospective in nature.[3] Once a SoPS is approved and included in the Participant’s Plan, both the Agency and the participant are statutorily obliged to comply with it.[4] A participant’s entitlement to funding approved under a SoPS is in relation to a support that is ‘provided’ during the operative period of the SoPS.[5] However, it is not necessary that the support must be paid for within the plan period, only that it be provided within the plan period.[6]
[3] PTJR and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 196, [49]; Palin and National Disability Insurance Agency [2023] AATA 94, [42]; PBZB and National Disability Insurance Agency [2023] AATA 3385.
[4] PTJR and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 196, [49].
[5] PTJR and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 196, [49].
[6] PTJR and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 196, [49].
Further, the Tribunal has no power to order the Agency to reimburse an applicant for amounts expended by them.[7] However, if the Tribunal finds a support is reasonable and necessary, and a participant can sufficiently demonstrate that they have expended personal funds relating to the acquisition of that support, then the Agency is required to reimburse that participant.[8] The evidence that the Agency considers is necessary to enliven their obligation is, however, solely a matter for the Agency.[9]
[7] PBZB and National Disability Insurance Agency [2023] AATA 3385; RTRH and National Disability Insurance Agency [2022] AATA 205.; XXWC and National Disability Insurance Agency [2020] AATA 923.
[8] RTRH and National Disability Insurance Agency [2022] AATA 205.
[9] XXWC and National Disability Insurance Agency [2020] AATA 923.
During the hearing on 10 September 2025, the applicant, understandably, had difficulty identifying the decision which he was seeking to have reviewed. It was, however, evident that what the applicant was really seeking to challenge was the refusal to consider the reimbursement of expenses he incurred, or at least claims to have incurred after 14 September 2021. That is what the determination made on 19 March 2025 related to, and what prompted the review application on 24 March 2025.
Whilst item 4 of the table in s 99(1) provides that a decision of the CEO to approve a SoPS in a participant’s plan is a reviewable decision, the decision which the applicant seeks to challenge is, I find, not correctly understood as being a decision to approve (or not approve) a SoPS in the applicant’s plan. The applicant has already sought review of a decision to approve the SoPS in his plan; that review was determined by the Tribunal on 30 January 2025. It is well established that once the Tribunal has determined a review application, the Tribunal has exhausted its jurisdiction or, as it is often referred, is functus officio.
However, in my view, a decision to refuse to pay (or reimburse) the costs of support incurred in respect prior to the approval of a SoPS is not a decision which, by operation of the tables in s 99(1) of the NDIS Act, is a reviewable decision. Rather, properly understood, it is a decision made by the respondent in relation to an exercise of power pursuant to Chapter 3, Part 2, Division 3 of the NDIS Act which deals with managing the funding for supports under participants’ plans.
The Tribunal’s jurisdiction is as conferred by s 103 of the NDIS Act, being confined to review of a decision made under s 100(6) of the NDIS Act. In the circumstances of this application, there is no decision made under s 100(6) of the NDIS Act for the Tribunal to review. Accordingly, I am satisfied that the decision made on 19 March 2025, which I find is the subject of the review application lodged on 24 March 2025, is not a decision which is reviewable by the Tribunal.
Whilst I understand that the applicant feels aggrieved by the circumstances, the Tribunal does not have jurisdiction at large and cannot review a decision unless it is a decision which the law provides for as a decision that is properly reviewable by the Tribunal. As I have explained, there is not.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for the decision herein of General Member Fraser Robertson

……[SGD]…………………………..
Associate
Date of hearing: 10 September 2025
Applicant’s representative: In person
Respondent’s representative: Ms B Clancy, NDIA