Dunstan and National Disability Insurance Agency

This matter concerned an application by a participant in the National Disability Insurance Scheme (NDIS) for review of a decision made by the National Disability Insurance Agency (NDIA). The dispute centred on whether the Administrative Appeals Tribunal (AAT) had the jurisdiction to consider and include supports in a participant's statement of supports that had not been specifically raised or considered in the original decision under review. The decision was made by Senior Member Damien O'Donovan.

The primary legal issue before the Tribunal was to determine the scope of its jurisdiction in reviewing decisions relating to NDIS participant plans. Specifically, the Tribunal was required to ascertain whether it could approve a statement of participant supports that included items not part of the initial request for review, but which were raised during the subsequent review process. This involved an interpretation of the relevant provisions of the National Disability Insurance Scheme Act 2013 (Cth) and associated rules governing the preparation and approval of participant plans.

The Tribunal reasoned that its jurisdiction extended to considering all relevant matters brought before it during the review process, even if those matters were not part of the original decision-making process by the NDIA. The Tribunal referred to sections of the Act concerning the CEO's obligations in facilitating the preparation of a participant's plan, including the criteria for approving a statement of participant supports. These criteria require the CEO to have regard to the participant's goals and aspirations, relevant assessments, and the principle of participant management, as well as the operation of previous plans. The Tribunal concluded that it had the authority to include supports in the participant's statement that were not initially considered by the NDIA, provided they met the statutory requirements for reasonable and necessary supports.

The Tribunal set aside the reviewable decision dated 1 September 2020, effective from 13 July 2021. In its place, the Tribunal approved a statement of participant supports annexed to its decision, thereby incorporating the additional supports that had been raised during the review process.