FSWN and National Disability Insurance Agency (NDIS) [2025] ARTA 114 (20 February 2025)
Applicant/s: FSWN
Respondent:National Disability Insurance Agency
Tribunal Number:2023/7802
Tribunal:Senior Member French
Place:Perth
Date:20 February 2025
Decision:The Application is dismissed pursuant to s 101(1)(a) of the Administrative Review Tribunal Act 2024 (Cth) on the ground that it is lacking in substance.
National Disability Insurance Scheme - approval of a Statement of Participant Supports – whether requested supports are a ‘NDIS Support’ capable of being included in a Statement of Participant Supports – whether there is sufficient evidence that a requested support is a NDIS Support – whether there is sufficient evidence that a requested support is reasonable and necessary
This is an application by FSWN (the Applicant) pursuant to s 103 of the National Disability Insurance Scheme Act2013 (Cth) (the NDIS Act) for independent review of a decision of the delegate of the Chief Executive Officer of the National Disability Insurance Agency (CEO, NDIA, the Agency) made under s 100(6) of the NDIS Act on 28 September 2023 which affirmed an original decision of another delegate of the CEO made on 18 May 2023 in relation to the approval of a Statement of Participant Supports (SoPS) for the Applicant under s 33(2) of the NDIS Act. The Tribunal has jurisdiction under s 12 of the Administrative Review Tribunal Act2024 (Cth) (ART Act) to review this decision because it is designated a reviewable decision by s 99(1) (Item 4) of the NDIS Act.[1]
[1] This proceeding commenced before the Administrative Appeals Tribunal (AAT) in accordance with the power conferred by s 25 of the Administrative Appeals Tribunal Act1975 (Cth). The AAT was abolished and replaced by the ART with effect from 14 October 2024. By operation of Item 24 in Schedule 16 of the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth) any proceeding which was not…
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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AGLC
FSWN and National Disability Insurance Agency (NDIS) [2025] ARTA 114
Case
[2025] ARTA 114
Decision Date
CaseChat Overview and Summary
The matter before the Administrative Appeals Tribunal (AAT) involved a dispute between FSWN, an individual, and the National Disability Insurance Agency (NDIS). The central issue was whether certain requested supports, specifically yoga and yoga therapy sessions, were eligible to be included in FSWN's Statement of Participant Supports (SoPS). The AAT was tasked with determining whether these requested supports qualified as 'NDIS Supports' under the National Disability Insurance Scheme (NDIS) Act, and if there was sufficient evidence that they were both reasonable and necessary for FSWN.
The legal questions before the AAT centred around the interpretation and application of the NDIS Act in relation to the approval of SoPS. Specifically, the court had to ascertain whether the requested yoga and yoga therapy sessions constituted 'NDIS Supports' and whether there was adequate evidence to support their inclusion in FSWN's SoPS. The AAT also needed to consider whether the requested supports were reasonable and necessary, as required by the Act.
In delivering its decision, the AAT examined the legislative framework governing the NDIS and the criteria for approving SoPS. It noted that a primary consideration in approving a SoPS is whether the requested support will assist a participant in achieving their goals, objectives, and aspirations outlined in their Participant Plan. The AAT concluded that the evidence presented did not sufficiently demonstrate that the requested yoga and yoga therapy sessions were reasonable and necessary for FSWN to achieve her goals, and therefore, these supports should not be included in her SoPS. Consequently, the AAT did not approve the inclusion of yoga and yoga therapy sessions in FSWN's SoPS.
The AAT's final order was that the decision to include yoga and yoga therapy sessions in FSWN's SoPS was not upheld. The AAT directed that these sessions should not be considered part of FSWN's approved SoPS unless further evidence was provided to demonstrate their reasonableness and necessity in achieving her stated goals and aspirations.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
The Agency’s presentation of its case proceeded by way of submission. No witness was called.Background to the review On 1 December 2020 the Applicant became a participant in the NDIS. In this respect the Agency submits that its delegate of the CEO was satisfied that the Applicant met the access criteria specified in s 24 of the Act because of impairments that are attributable to a psychosocial disability.[6] [6] The psychosocial health conditions to which these impairments were attributable were Major Depressive Disorder, Generalised Anxiety Disorder and Post-Traumatic Stress Disorder. I note from various submissions filed by the Applicant that the basis upon which she was assessed as meeting the access requirements, and the extent of her present impairments and health conditions relevant to the scope of supports she is entitled to request and utilise in her Participant Plan, is contentious.[7] However, no aspect of that controversy has any bearing on the issues I am required to determine on the case as it stands before me.[8][7] See for example, the Applicant’s email of 5 December 2024 which is set out in my statement of reasons in FSWN (No.2) at [14 (xxvi)].[8] The Applicant’s request for support to undertake ‘yoga’ or ‘yoga therapy’ sessions appear on the material before me to have been challenged by the Agency on the basis that it related to a spinal condition in relation to which she had not met the access requirements. However, that issue is not reached for the reasons stated following. The Applicant’s Participant Plan is an ‘old framework plan’ within the meaning of Part 2, Division 2, Sub-Division C, of the principal Act as amended by the Amending Act. It has two components: a ‘participant’s statement of goals and aspirations’[9] and a ‘statement of participant supports (SoPS).[10] In this respect the SoPS is a component of a Participant Plan, it does not constitute the Plan itself.[11][9] s 33(1) of the NDIS Act.[10] s 33(2) of the NDIS Act.[11] Pavlakis and National Disability Insurance Agency [2023] AATA 2484 at [24]. On 18 May 2023, a delegate of the CEO approved a SoPS for inclusion in a Participant Plan (the original decision) both of which commenced from that date with the temporal range of 18 May 2023 to 17 May 2024. This Plan and the SoPS it contains has subsequently been extended until 17 May 2025 (the Applicant’s current Participant Plan).[12][12] Agency’s Statement of Facts, Issues and Contentions filed 20 December 2024, Tab R5, page 926 at [5]. The mechanism by which this occurred is not in evidence before me. A primary consideration in the approval of a SoPS is whether a requested support will assist a participant to pursue the goals, objectives and aspirations contained in the statement of goals and aspirations included in their Participant Plan.[13] [13] ss 33(1) and (5), 34(1)(a) of the NDIS Act. The Applicant’s current Participant Plan[14] includes the following statement of goals and aspirations:[14] Agency Tender Bundle, Tab T8, page 65 - 79.Short-term goalI would like to be able to effectively manage my mental health conditions