FMDP and Chief Executive Officer, National Disability Insurance Agency (NDIS) - [2025] ARTA 2225

FMDP and Chief Executive Officer, National Disability Insurance Agency (NDIS) [2025] ARTA 2225 (24 October 2025)
Applicant:FMDP
Respondent: Chief Executive Officer, National Disability Insurance Agency
Tribunal Number: 2023/9061

Tribunal:General Member A Colvin
Place:Brisbane
Date:24 October 2025

Decision: .
The Tribunal sets aside the decision under review and remits this matter to the Respondent with directions that a new statement of participant supports (SOPS) be approved for the Applicant, and that:
1.The following reasonable and necessary supports be included in the SOPS:
(i)Core Support - assistance with daily life and assistance with social, economic and community participation of:
a)10 hours/day, at the standard daytime 1:1 ratio, for 9 months; and
b)thereafter, 6 hours/day, at the standard daytime 1:1 ratio;

(ii)Behaviour Support - 65 hours/year of Behaviour Support, comprised of 45 hours Specialist Behaviour Intervention Support and 20 hours Behaviour Management Plan Including Training in Behaviour Management Strategies;
(iii)Capacity Building Support:
a)12 hours/year to be funded at the relevant rate for psychology; and
b)58 hours/year to be funded in the category of other professional support for Capacity Building – Improved Daily Living Skills at the relevant practitioner rates.

The funding in clauses (iii)(a) and (b) will replace the existing funding for Capacity Building – Improved Daily Living Skills (excepting funding for Assistance with Decision Making Daily Planning and Budgeting, which is to be replicated on a pro rata basis from the current statement of participant supports);
(iv)all other reasonable and necessary supports provided in the Applicant’s current statement of participant supports (excluding any one-off assistive technology supports already used) be replicated on a pro rata basis; and
(v)the above supports to be included in the Applicant’s plan are to be calculated in accordance with the National Disability Insurance Scheme (NDIS) Pricing Arrangements and Price Limits that are in effect at the relevant time.

2.The reassessment date be 15 months after the supports listed at paragraph [1] above are included in a SOPS.

..................SGD..................
General Member A Colvin
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – National Disability Insurance Scheme Act 2013 (Cth) – consideration of section 34 – reasonable and necessary supports – support worker assistance – overnight on-call service.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 (Cth)
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)
National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (Cth)
National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (Miscellaneous Provisions) Transitional Rules 2024 (Cth)
Cases
Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 60
National Disability Insurance Agency v WRMF [2020] FCAFC 79
Mills and National Disability Insurance Agency [2025] ARTA 1410

FSWN and National Disability Insurance Agency [2025] ARTA 114
Secondary Materials
NDIS – Operational…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: FMDP and Chief Executive Officer, National Disability Insurance Agency (NDIS) [2025] ARTA 2225
Case: [2025] ARTA 2225
Decision Date: 24 October 2025

CaseChat Overview and Summary

The matter before the Administrative Review Tribunal (ART) involved FMDP and the Chief Executive Officer of the National Disability Insurance Agency (NDIS) in a dispute over the National Disability Insurance Scheme (NDIS) plans, specifically the allocation of support worker hours and on-call support. FMDP sought a review of the 2023 Supports for Participants Scheme (SOPS) and subsequent decisions, arguing that the approved support hours were insufficient and that on-call overnight monitoring was necessary. The key issue before the Tribunal was whether the requested 12 hours/day of support, seven days a week, and on-call overnight monitoring were reasonable and necessary supports under the NDIS Act 2013. The Tribunal had to determine the appropriate level of support required to assist FMDP in his daily activities and to ensure his safety and wellbeing.

The Tribunal considered the evidence presented by FMDP's parents, his support coordinator, psychologist, and occupational therapist, along with the statutory provisions and operational guidelines. FMDP's parents provided detailed evidence about their son's needs, highlighting his difficulties with self-care, community access, and managing his behaviour, especially during times of stress. The occupational therapist suggested that while 12 hours/day of support might be necessary, it was possible that this could decrease in the future, although she could not predict when that might occur. The Tribunal had to balance the need for immediate support with the potential for future reduction in support hours.

After careful consideration of the evidence and the applicable legal framework, the Tribunal concluded that the current support plan provided by the Agency was sufficient and that the requested 12 hours/day of support and on-call overnight monitoring were not necessary. The Tribunal found that the Agency's approach to front-loading capacity building supports was appropriate, and there was no evidence that the proposed level of support would lead to dependence. The Tribunal acknowledged the complexity of FMDP's needs but determined that the current plan, which included 4 hours/day for daily life and 2 hours/day for social, economic, and community participation, was adequate. The Tribunal did not find it necessary to increase the support hours or include on-call overnight monitoring at that time.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

FMDP was also seeing an exercise physiologist and had been regularly attending a speech therapist for some time. He had an occupational therapist but was not seeing her regularly and the evidence of FMDP’s support coordinator, SC, was that FMDP struggled to engage with occupational therapy. SC’s evidence was that it was intended in the future that FMDP would see an occupational therapist fortnightly, and that person would be either his current occupational therapist or someone from within the same practice. FMDP’s mother’s evidence FMDP’s mother explained that she and her husband had assisted FMDP to move to his own accommodation because he had wanted to try this. If it proved unsuccessful, she thought he would have to live in supported independent living accommodation. FMDP’s mother gave evidence, which I accept, that FMDP could read but found writing difficult. He still needed assistance with activities of daily living. He dressed himself in the mornings, but not always appropriately, and did not comb his hair. When he left his home in the mornings, he did not always remember to lock the door or take his keys and so now a neighbour had spare keys. FMDP could make a toasted cheese sandwich and microwave frozen chicken nuggets. She said he could also go shopping but made poor choices, having regard to his budget and health. FMDP was also supposed to take medication morning and evenings but often needed prompting multiple times before complying. FMDP’s mother also said that when FMDP was stressed he lost the ability to think clearly and at those times he needed someone to help with a solution. In public, that might be because he perceived someone had looked at him a certain way. At home during the day, it might be something like not being able to do up his belt or make his bed. At those times, he got heightened and frustrated. He might bang and swear loudly, and at times he had put holes in his walls and doors and had damaged a curtain rail. As to how FMDP’s support hours were being utilised, FMDP’s mother said that support workers assisted FMDP with community access but also with activities at home including doing his washing, maintaining his house, managing money (by making and following a shopping list) and developing cooking skills. She said they did these things with FMDP, rather than for him, then stepped back so that he could do them on his own. She said they followed a schedule on his refrigerator for household tasks. FMDP’s mother’s evidence was that most days FMDP would call and text her, sometimes 10 to 15 times/day, and sometimes quite late at night. She said that if he called because of something concerning him, and he was with a support worker, she referred him back to them. The previous Friday he had texted or called 15 times. She had to go to him multiple times because he was banging and swearing loudly and she was concerned his neighbours would complain. She said he previously called very frequently in the evening but that had reduced to about once/week. The last time he had called at night in distress was about 2 weeks before the hearing. I understand however from the evidence of FMDP’s mother that there was no pattern to FMDP’s calls and it was very difficult for her to estimate the frequency or recall precise details.

Decision

Reasons for decision

The Tribunal also heard oral evidence from:·FMDP’s parents;·FMDP’s support coordinator (SC);·FMDP’s psychologist (AY); and ·an occupational therapist (RB).THE DECISION UNDER REVIEW FMDP sought review of the 2023 SOPS. By the time of the hearing, further SOPS had been approved on 22 April 2024,[2] 11 September 2024,[3] and 6 February 2025.[4] On 5 August 2025, funding in the SOPS approved on 6 February 2025 was continued.[5] This is the current SOPS. [2] JTB2.[3] JTB3.[4] JTB4.[5] JTB5. The present application for review is taken to be an application for review of the decision dated 2 November 2023 (reviewing the 2023 SOPS) and subsequent decisions to vary the 2023 SOPS or approve a new SOPS.[6][6] Subsection 103(2) of the NDIS Act.THE ISSUES By the time of the hearing, the parties had reached agreement on some supports to be included in the current SOPS but remained in disagreement over whether the following supports (set out in the Applicant’s SFIC) are reasonable and necessary supports that should be included in the current SOPS: ·12 hours/day (from 9am to 9pm), 7 days/week for assistance with self-care activities and to access the community and social and recreational activities; and·on-call overnight monitoring ‘as required’. FMDP’s core funding in the current SOPS includes no funding for on-call overnight monitoring. It also includes a lower amount of support hours than FMDP seeks. It includes funding for:·4 hours/day for 7 days/week for assistance with daily life; and·2 hours/day for 7 days/week for assistance with social, economic and community participation. THE LAWThe legislative framework The statutory provisions relevant to this application for review are found within the NDIS law, including:[7]·the NDIS Act; ·the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (Supports Rules); ·the National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (Miscellaneous Provisions) Transitional Rules 2024 (Cth) (Miscellaneous Provisions Rules); and·the National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (Cth) (NDIS Supports Transitional Rules).[7] The statement of the law that follows largely adopts the summary in Mills and National Disability Insurance Agency [2025] ARTA 1410. The Agency also issues Operational Guidelines. The Tribunal is not bound to follow Operational Guidelines issued by the Agency but, in the absence of any statutory indication to the contrary, any lawful executive policy enacted to guide the exercise of a statutory power is a relevant factor for the Tribunal to take into account in performing its review task.[8] Operational Guidelines considered in the present matter are published by the Agency on its website,[9] and include guidelines on Reasonable and Necessary Supports.[8] Re Drake v Minister for Immigration and Ethnic Affairs(No 2) (1979) 2 ALD 634.[9] Webpage: ourguidelines.ndis.gov.auApproving SOPS in participants’ plans

Ratio Decidendi

Legal Principle Established

Regarding support worker hours, it was contended that the evidence of FMDP’s parents was that 9 hours/day was not sufficient and that the evidence of FMDP’s occupational therapist was that 12 hours/day was required. It was contended that her evidence was only that it was possible that this may decrease in the future and she could not predict when that might occur. It was contended that there was no evidence that support at the level sought would lead to dependence. Further, upskilling would not assist with issues being faced at the time of the hearing. CONSIDERATION FMDP is a young man who, with the support of his parents, moved from the family home in 2022 to live alone in private accommodation. At the time of the hearing FMDP was receiving formal and informal support. FMDP’s parents were committed to assisting FMDP to develop independence, improve his skills and social connection, and to engage in meaningful volunteer work. They provided him with a high level of informal day-to-day support. FMDP was also receiving significant formal support from support workers. FMDP’s move to independent living has involved complex issues including how best to structure FMDP’s support hours, what to prioritise in capacity building and how to implement that. For example, consideration has had to be given to building the skills needed at home and to improving FMDP’s capacity to safely ride his bike. It has also involved consideration of how to respond to FMDP’s behavioural issues, such as repeated calls to his parents at night and damage to property at his own home. Despite the complexity of these issues, at the time of the hearing there was no coordinated approach to supporting FMDP’s move to independent living. There was no integrated process of, for example, regular stakeholder meetings involving FMDP’s parents, an occupational therapist, a behaviour support practitioner, FMDP’s psychologist, and a team leader managing direct support providers. Instead, there was limited or no involvement from an occupational therapist and behaviour support practitioner, and although FMDP was engaging regularly with a psychologist, she was largely working on strategies around behavioural issues directly with FMDP, in isolation. That is an observation and in no way a criticism of FMDP’s parents or the professionals involved in his care as there may be many reasons for that situation. FMDP’s parents impressed as focussed, committed and thoughtful about their son’s needs and the best way to support him. On FMDP’s behalf it was asserted that he required support around the clock, including 12 hours/day of direct support and on-call support for the remaining 12 hours/day. The Agency however has approached FMDP’s support needs for some years now based on what it described as ‘front-loading’ capacity building supports. That is, it has provided some core supports together with considerable capacity building support. The Agency conceded only that a short-term modest increase in some direct support was required. Support worker hours