Darmanin and National Disability Insurance Agency

This matter concerned an appeal by the applicant, a participant in the National Disability Insurance Scheme (NDIS), against decisions made by the National Disability Insurance Agency (NDIA) regarding his plan. The applicant, who has a spinal cord injury, sought funding for complex home modifications as part of a rebuild of his flood-affected home. The NDIA had initially approved some minor repairs but refused the majority of the requested home modifications. The applicant subsequently lodged an appeal with the Tribunal.

The central legal issue before the Tribunal was whether its jurisdiction to review the NDIA's decisions was limited to supports purchased after a specific date, or whether it could consider supports purchased prior to the NDIA's final decision on the matter. The NDIA contended that the Tribunal's jurisdiction was confined to supports provided after the date of the reviewable decision, arguing that an approach allowing for reimbursement of past supports would undermine the prospective nature of NDIS plan approvals.

Member Toohey determined that the Tribunal's jurisdiction was not limited in the manner submitted by the NDIA. The Tribunal reasoned that just as the NDIA decision-makers had the power to approve none, some, or all of the requested modifications, so too did the Tribunal. The Member found that this scope of review was not restricted by payments for supports that may have been made before the NDIA finalised its decision. The Tribunal also noted that previous case law cited by the NDIA was not directly applicable, particularly in light of amendments to the NDIS Act that provided the NDIA with greater flexibility to vary participant support statements.

The Tribunal concluded that it had jurisdiction to specify what reasonable and necessary supports should be included in the applicant's statement of participant supports, and that this jurisdiction was not limited to supports purchased after 4 May 2023. The Tribunal also expressed concern about the delays caused by the NDIA's continued pursuit of the jurisdictional issue.