FFVQ and National Disability Insurance Agency

This matter concerned an application before the Administrative Appeals Tribunal (AAT) involving FFVQ and the National Disability Insurance Agency (NDIA). The core of the dispute revolved around the jurisdiction of the Tribunal to review decisions relating to a participant's National Disability Insurance Scheme (NDIS) plan, specifically whether a plan itself, or a statement of supports within it, constituted a reviewable decision.

The legal issues before the Tribunal were whether a statement of supports should be conflated with the NDIS plan under which it is made, and consequently, whether the Tribunal possessed jurisdiction to review the plan itself, or to stay its operation. FFVQ argued that the potential for the Tribunal to reject a statement of supports meant that the plan and statement were intrinsically linked, making the review of a statement effectively a review of the plan. Furthermore, FFVQ contended that the NDIA's practice of issuing new plans periodically would oust the Tribunal's jurisdiction to review statements of supports, which could not have been the legislative intention.

The Tribunal found that a statement of supports is distinct from a plan promulgated under section 37 of the NDIS Act. While certain decisions concerning a participant's plan are reviewable by the Tribunal, as exhaustively listed in section 99, the decision to bring a plan into effect under section 37 is not among them, adhering to the principle of *expressio unius est exclusio alterius*. Although a plan is practically dependent on a statement of supports for its operation, this practical dependence does not grant the Tribunal jurisdiction over decisions not clearly intended by the legislature to be reviewable. The Tribunal noted that the legislative and practical separation of these concepts was recognised in *SHGH and NDIA* [2018] AATA 674, where it was held that the review concerned the decision relating to the supports provided, not the plan as a whole.

The Tribunal concluded that it lacked jurisdiction to review the NDIS plan itself or to stay its operation. The decision to make a plan under section 37 is not a reviewable decision under section 99 of the NDIS Act. Therefore, the Tribunal could not entertain an application for review of the plan as a whole, nor could it grant a stay of its operation.