Eccles and National Disability Insurance Agency

This matter concerned an application for review before the National Disability Insurance Tribunal, brought by the applicant on behalf of Thomas, a participant in the National Disability Insurance Scheme. The dispute arose from a request for a plan review made on 23 September 2016, concerning the supports included in Thomas's first participant plan approved on 29 March 2016. The applicant sought additional provisions for various expenses, including day programs, assessments, and skills development.

The primary legal issue before the Tribunal was whether it had jurisdiction to review a "deemed decision" by the CEO of the National Disability Insurance Agency (NDIA) not to conduct a plan review, pursuant to section 48(2) of the *National Disability Insurance Scheme Act 2013* (Cth). This section requires the CEO to conduct a review within a specified timeframe, and failure to do so results in a deemed decision. The Tribunal also considered the distinction between a request for a plan review and a request to the CEO to review a decision about supports already included in a plan.

The Tribunal reasoned that by virtue of section 48(2) of the NDIS Act, the CEO was obliged to conduct a review of Thomas's plan by 10 or 11 October 2016. As there was no evidence that the CEO had made a decision to conduct a review, a statutorily deemed decision not to conduct a review arose. This deemed decision was itself a reviewable decision under section 99(f) of the NDIS Act. Furthermore, section 100(1)(a)(ii) of the Act provides that such a deemed decision is automatically reviewed. Consequently, the Tribunal concluded that it had jurisdiction to conduct a review of this deemed decision, notwithstanding that no application was made to the Tribunal immediately after the deemed decision arose. The Tribunal noted that subsequent events, including a further plan review request on 25 January 2017, had caused confusion and delay.

The Tribunal determined that it possessed jurisdiction to review the deemed decision and the deemed automatic review resulting from the 23 September 2016 request. The Tribunal indicated that it had jurisdiction to determine at least that part of the application relating to the supports in the first participant plan up until the new plan of 2 February 2017. The Tribunal encouraged the parties to agree to treat the existing application as valid for the 2 February 2017 plan if an internal review had been sought and a decision made by the CEO. A directions hearing was to be convened to address orders for the disposal of the application and any procedural or time limit issues.