FSWN and National Disability Insurance Agency (NDIS)
[2025] ARTA 114
•20 February 2025
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.
......................[SGD]..................................................
Senior Member French
Catchwords
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
Legislation
Administrative Appeals Tribunal Act 1975 (Cth); 25, 34E
Administrative Review Tribunal Act 2024 (Cth); 9, 12, 81, 88, 101
Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (Cth); Schedule 16, Item 24
National Disability Insurance Scheme Act 2013 (Cth); ss 10, 17A, 24, 33, 34, 48, 49, 53, 99, 100, 103
National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) Act 2024 (Cth)
National Disability Insurance Scheme (Getting the NDIS Back on Track) Transitional Rules 2024 (Cth)
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth); ss 3.1, 3.2Cases
Beezley v Repatriation Commission (2015) 150 ALD 111; [2015] FCAFC 165
Frugtniet v Australian Securities and Investment Commission [2019] HCA 16; (2019) 266 CLR 250
FSWN and CEO, National Disability Insurance Agency [2025] ARTA
Pavlakis and National Disability Insurance Agency [2023] AATA 2485
QDKH, by his litigation representative BGJF v National Disability Insurance Agency (2021) FCAFC 189National Disability Insurance Agency v WRMF (2020) 276 FCR 415; [2020] FCAFC 79
Statement of Reasons
This is an application by FSWN (the Applicant) pursuant to s 103 of the National Disability Insurance Scheme Act 2013 (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 Act 2024 (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 Act 1975 (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 determined by 14 October 2024 continues in the ART and is to be determined by the application of the provisions of the ART Act.
By an order made pursuant to s 53 of the ART Act on 9 December 2024 I determined the scope of this review is as follows:
Pursuant to s 53 of the Administrative Review Tribunal Act 2024 (Cth) the Tribunal determines that the scope of this review is limited to:
(a) The following requested supports:
(i) Funding for 1.5 hours per week of naturopathy for 48 weeks per year
(ii) Funding for professional naturopathic prescription herbal tonics
(iii) Funding for professional naturopathic prescription supplements
(iv) Funding for 2 hours per week of one-to-one yoga sessions
(v) Funding for 1.5 hours per week of art therapy.
(b) The evidence filed by the parties up to 4pm on 6 December 2024.
On 22 August 2024 the NDIS Act (the principal Act) was substantially amended by the measures contained in the National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) Act 2024 (Cth) (the Getting the NDIS Back on Track amendments; the Amending Act). Certain of those amendments, and the National Disability Insurance Scheme (Getting the NDIS Back on Track) Transitional Rules 2024 (the Transitional Rules) made pursuant to those amendments came into force on 3 October 2024 and are expressed to apply to a SoPS approved or varied after that date irrespective of whether a participant’s Participant Plan came into effect before, or on, or after the commencement of these amendments. The upshot of this for this case is that key amendments and rules concerning what is and what is not a ‘NDIS Support’ as newly defined must be applied in this independent review even though those amendments and rules did not exist when the decision under review was made.
Ordinarily a case such as this involves the Tribunal conducting an independent review to determine if the internal review decision under review is the correct or the preferrable decision. However, because of the Getting the NDIS Back on Track amendments and the Transitional Rules this review now assumes a different character. The primary issue is whether four of the five supports requested by the Applicant (the naturopathy and yoga/yoga therapy supports) are NDIS Supports, as defined, that are capable of being incorporated into a SoPS. The Transitional Rules provide that they are not. In other words, the Getting the NDIS Back on Track amendments and the Transitional rules operate to deprive the Applicant’s case of any substance with respect to those four supports. It is therefore appropriate to dismiss the Applicant’s case in relation to these four supports on this basis rather than to affirm the internal review decision which would be artificial in the circumstances.
The remaining requested support in dispute is art therapy. I consider it is open to me to find that this is a NDIS Support within the scope of Category 34 (Therapeutic Supports) of Schedule 1 of the Transitional Rules that is capable of being incorporated into the SoPS. However, despite being given four opportunities to do so up to 6 December 2024, the Applicant has failed to place sufficiently probative, or indeed any, evidence before the Tribunal to establish the elements of Category 34, and that this is a reasonable and necessary support in that it meets each of the other requirements of s 34(1) and the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (the Supports Rules). It is therefore also appropriate to dismiss the Applicant’s case insofar as it concerns that support on the ground that it is lacking in substance.
Procedural History
This proceeding has a lengthy and contentious history which I have summarised in separate reasons given in disposition of an application made by the Applicant for me to recuse myself from hearing and determining this review.[2] I adopt for the purposes of this statement of reasons what is set out there.
[2] FSWN and CEO, National Disability Insurance Agency [2025] ARTA [complete citation when available] at [14] (FSWN No.2).
Material considered and hearing
I have considered the following materials in reaching my decision:
i.The contents of a bundle of documents filed by the Applicant on 5 February 2025, (except as stated following). I note that this contained an undated “Participant Statement’ filed by the Applicant in 2023, and the same statement filed again by the Applicant dated 22 January 2024,
ii.The contents of a bundle of documents filed by the Agency on 5 February 2025. I note that this included a submission on the relevance of the Getting the NDIS Back on Track amendments filed as directed on 4 November 2024 and an amended Statement of Facts, Issues, and Contentions (SoFIC) filed as directed on 20 December 2024.
The Agency objected to the tender of two ‘Statements of Issues’ which the Applicant had included in her bundle. These Statements of Issues are documents which were prepared by the Agency for the purposes of alternative dispute resolution under Division 3, Part IV of the former AAT Act early in this proceeding. By operation of s 88(1)(a) and (2) of the ART Act[3] they cannot be admitted as evidence in this proceeding unless both parties agree to their tender, which the Agency did not. I allowed the Agency’s objection to the Applicant’s tender of these documents on this basis.
[3] ss 34E(1)(b) and (2) of the AAT Act (now repealed)
The Agency’s representative, Mr Young, informed me at the start of the substantive hearing that his firm had received from the Applicant at some time immediately prior to the hearing a report or statement authored by an art therapist. He informed me that the Applicant’s covering email enclosing this document indicated that it had also been sent to the Tribunal. He indicated the Agency objected to the tender of that document on the basis that the Applicant had been directed to file all evidence she intended to rely upon for the review hearing by 6 December 2024, and the Agency was now taken by surprise by that document.
At my request, my Associate undertook a search of the Tribunal’s records to determine if that document had been received by the Tribunal. On the file record as it stood at that time the receipt of this document had not been processed by Registry and could not be found. It was therefore not before me. Nevertheless, I considered it likely that it had been received but was still subject to processing by Registry. In those circumstances I allowed the Agency’s objection to its tender on the ground it would be procedurally unfair to permit its tender at this very late stage.
I note that nothing prevents the Applicant from requesting the Agency to consider that document in relation to a requested art therapy support in a routine periodic reassessment of her Participant Plan undertaken pursuant to s 49, or by requesting such a reassessment pursuant to s 48, of the NDIS Act. The Applicant is therefore not left without a remedy in relation to this new evidence.
The Applicant did not attend the substantive hearing. I have set out the circumstances of that in my statement of reasons in the recusal application.[4] I adopt that description of events for the purposes of my reasons in this substantive review.
[4] FWSN (No.2) at [7]
I proceeded with the hearing of the Applicant’s substantive case in her absence in accordance with s 81 of the ART Act. I considered that it was appropriate to do so for essentially the same reasons I have given for proceeding to hear the recusal application in the Applicant’s absence:[5]
[5] Ibid at [8]
i.I was satisfied, as required by s 81, that the Applicant had received appropriate notice of the date, time, and place of the hearing,
ii.I was satisfied that the issues for determination were of narrow compass and could be adequately dealt with on the material before me,
iii.The Applicant had been provided an opportunity to file submissions and evidence in relation to the issues for determination and had done so,
iv.The Applicant’s failure to appear at the hearing was not satisfactorily explained. She had received the same MS Teams link as had the Agency’s three representatives, each of whom joined from a separate location using that link without experiencing any difficulty. Additionally, the Applicant had been issued a fresh link and allowed a further 20 minutes to appear using that new link but had failed to do so.
v.The Applicant had previously attempted to disrupt a Tribunal case event by failing to appear. Having regard to the Tribunal’s objective, set out in s 9 of the ART Act, which includes amongst other important values, the quickest and least expensive resolution of an application that proper consideration of it permits, I considered in that context that the following matters weighed heavily in favour of the hearing proceeding:
a.The Agency’s representatives were present at the hearing. The Agency’s costs of their appearance would be thrown away if the hearing were to be adjourned. These are public costs,
b.The conduct of hearings by the Tribunal also involves substantial public costs which would be thrown away if the hearing did not proceed,
c.Additionally, the Tribunal’s NDIS Jurisdictional Area has a high-volume caseload. Delays in applications being finalised arising from case events having to be repeated due to parties failing to appear without satisfactory excuse have a detrimental impact on the Tribunal’s capacity to deal with other applications in a timely way,
e.While these public cost and case-management considerations are subordinate to what is required in the interests of justice, I was not satisfied that there was any overriding interest of justice that should displace these considerations in this case.
viobjectively viewed, and for the reasons given following, the Applicant’s case had very limited prospects of success, if any. Objectively, it was therefore in the interests of the parties and in the public interest that the proceeding be brought to finality.
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 goal
I would like to be able to effectively manage my mental health conditions
How I will achieve this goal
How I will be supported
I will attend all of my medical appointments and continue to receive support through my mental health care plan. I will also be supported to increase my independence around managing and improving my mental health and ensuring that I can overcome any barriers I face in relation to my mental health conditions
My LAC will support me to connect with the people I need to help me to achieve this goal
Short-term goal
I would like to improve my physical health and well-being
How I will achieve this goal
How I will be supported
I will be supported to develop strategies that will help me to improve my physical health and well-being. I will also be supported to implement these strategies by doing things like yoga and going to the gym while ensuring my safety and preventing any injuries
My LAC will support me to connect with the people I need to help me to achieve this goal
Short-term goal
I would like to lead a healthy lifestyle and reduce my alcohol intake
How I will achieve this goal
How I will be supported
I will be supported by community and mainstream services to detox and reduce my alcohol intake. I will then be supported to lead a healthier lifestyle by eating healthy foods, engaging in physical activity and participating in my community.
My LAC will support me to connect with the people I need to help me to achieve this goal
Medium or long-term goal
I would like to continue to live independently and to feel safe and comfortable in my own home
How I will achieve this goal
How I will be supported
I will be supported to manage my household responsibilities and ensure that my home and garden are safe
My LAC will support me to connect with the people I need to help me to achieve this goal
Medium or long-term goal
I would like to repair and then maintain my personal and family relationships
How I will achieve this goal
How I will be supported
I will be supported to overcome the current barriers I face to being able to repair relationships with my family and friends. I will then be supported as needed to develop the skills I need to maintain these relationships
My LAC will support me to connect with the people I need to help me to achieve this goal
Medium or long-term goal
I would like to pursue studies and learning opportunities in a field that interests me.
How I will achieve this goal
How I will be supported
I will be supported to develop the skills and strategies I need to be able to effectively engage in a course of study that interests me.
My LAC will support me to connect with the people I need to help me to achieve this goal
Medium or long-term goal
I would like to find and participate in social opportunities that interest me and develop meaningful connections in my community.
How I will achieve this goal
How I will be supported
I will be supported to participate in my community and connect with peers and community members.
My LAC will support me to connect with the people I need to help me to achieve this goal
The Applicant’s SoPS has two categories, being ‘Core’ and Capacity Building’ supports. The approved budget for both categories, being ‘the total funded supports’, is $143,338.31 for the original plan period.[15]
[15] I assume from what is said at the Agency’s SoFIC at paragraph [5] that this funding was refreshed in the Plan extension.
The total approved Core supports funding is $112,595.12 which is expressed to be capable of being used flexibly across the core sub-categories of ‘Assistance with daily living’ (self-care and domestic tasks), ‘consumables’ (low-cost assistive technology) and ‘Assistance with Social and Community Participation (9 hours across weekdays and 3 hours on Saturday) and $1,784.00 for transport for participation in social and community activities and attendance at appointments. The Applicant’s Core Support funding is partly managed by herself ($43,747.12) and partly Plan-managed ($68,848.00). Transport funding is paid by fortnightly instalments into her nominated bank account.
The total approved Capacity Building funding is $28,959.19. It is the use of this budget which is ultimately at issue in this review. The Capacity Building supports are described in the SoPS in the following terms:
This category is funded for assistance to engage support from allied health professionals and therapy assistants for skills development, training, assessment and therapy. Support will work closely with you to increase independence and progress toward the goals outlined in your NDIS plan. These supports will also include progress reports on these supports and the outcomes achieved must be provided to [Agency email address] 6-8 weeks prior to your plan review date.
10 hours has been included for you to complete a Functional Assessment with an Occupational Therapist. This will determine any unmet or future needs you may have. This report must be provided to [Agency email address] 6-8 weeks prior to your plan review date.
The Capacity Building supports are provided in the sub-categories of ‘Improved Daily Living’ which has a ‘self-managed’ budget of $2,695.44, ‘Stated Supports’ funding which comprises $7,044.90 for ‘Assessment Recommendation Therapy or Training – Psychologist’ (Psychologist) which is ‘Plan-managed’ and $5,043.74 for ‘Assessment Recommendation Therapy or Training – Occupational Therapist’ (Occupational therapy) which is also ‘Plan managed’. Additionally, the Capacity Building component of the SoPS includes provision for ‘Support Coordination’ which comprises a budget of $10,286.00 for a Psychosocial Recovery Coach which is ‘Plan-managed’ and a budget of $2,403.36 for ‘Support Coordination Level 2: Coordination of Supports’ which is also ‘Plan Managed.’
On 13 August 2023 the Applicant requested an internal review of the delegate’s decision to approve the SoPS in this form. She did so because she was dissatisfied that the delegate had changed the funding category for psychology and occupational therapy from being ‘unstated’ (as it had been in her previous Plan) to ‘stated’ supports. The effect of this decision is to prevent the Applicant from using her plan funding referrable to occupational therapy and psychology ‘flexibly’ to purchase alternative supports, specifically naturopathy supports. That is, the Applicant was required to purchase only occupational therapy and psychology support with that funding. The Applicant contends that this change has removed her ‘choice and control’ over her supports, contrary to the policy of the NDIS Act, and deprived her of access to supports that she requires to maintain her function and well-being.
By notice of decision dated 28 September 2023 the internal review delegate of the CEO affirmed the original decision. In their reasons, the internal review delegate stated:
Psychology and occupational therapy budget has been STATED in your current plan to provide safeguards to ensure you access the appropriate supports and required assessments (incl. 10 hours Functional Capacity Assessment).
In making my decision, I considered s 42 of the NDIS Act. Specifically, I have determined the following circumstances prevent flexible funding for capacity building support (occupational therapy and psychology) in your current plan. It is determined that portion of your capacity building budget in your plan will remain stated supports. Which means this funding can only be used as specified. On reviewing your previous interactions with NDIS it is evident that there is no assessment or progress reports provided by your allied health professionals to determine if this (sic) supports are effective and beneficial to achieve your NDIS goals.
It is noted that capacity building supports in your previous plan was (sic) utilised to access supports for naturopath services. NDIS funding cannot be used for alternative therapies, such as a naturopath, chiropractor or hypnotist, etc. Funding can only be utilised for evidence-based allied health therapies, such as occupational therapies, physiotherapy, exercise physiology or psychology.[16]
[16] Agency Hearing Bundle, Tab T1B, page 14.
On 21 October 2023 the Applicant sought independent review of this decision by the AAT. That review continues before this Tribunal. With respect to naturopathic supports the primary issue between the parties continued to be whether these supports can meet the requirements of s 34(1)(d) and Rules 3.1 and 3.2 of the Supports Rules; that is, whether they are effective and beneficial for the Applicant, having regard to the evidence of their efficacy.
Prior to the Getting the NDIS Back on Track amendments and Transitional Rules entering into force on 3 October 2024 that was a fact to be found by the Tribunal, and the contest had involved the Agency engaging an expert to opine on that subject. However, as will be explained following, the Getting the NDIS Back on Track amendments and Transitional Rules now determine that issue by statutory instruction. It is no longer a fact to be found by the Tribunal.
During the proceeding, the Applicant was requested to confirm the supports that she wanted approved for inclusion in the SoPS in her Plan. She last did so on 18 September 2024 in a document filed with the Tribunal and served on the Agency.[17] In summary, at that time, the Applicant advised that she sought approval of three naturopathic supports, as well as yoga and art therapy as follows:
i.1.5 hours per week of naturopathy for 48 weeks per year, valued at $120 per hour,
ii.professional naturopathic prescription herbal tonics valued between $60 - $70 per month,
iii.professional naturopathic prescription supplements valued at approximately $2000 per year,
iv.1.5 hours per week of art therapy valued at $290.99 (in lieu of psychology, which is currently funded by the Agency as a stated support); and
v.2 hours per week of one-to-one yoga sessions valued at $180 per week.
[17] Applicant’s Hearing Bundle, unpaginated.
For reasons I have given in disposition of the recusal application, the order I made on 9 December 2024 limited the scope of this review to these requested supports.[18]
[18] FWSN (No.2) at [12(xxix) and [42] – [45].
Applicable law
The National Disability Insurance Scheme (Getting the NDIS Back on Track No 1) Act 2024 (Cth) passed through Parliament on 22 August 2024, received Royal Assent on 6 September 2024, and commenced on 3 October 2024. Schedule 1 of the Amending Act contains the main amendments to the principal Act, including relevantly to this case, the introduction of a new s 10 (definition of ‘NDIS support’)[19] and an amendment to s 34 (reasonable and necessary supports) to specify additional criteria that must be satisfied before a support can be approved for inclusion in a participant’s SoPS under s 33(5).[20]
[19] Schedule 1, Item 14 of the Amending Act.
[20] Schedule 1, Items 46 – 48 of the Amending Act.
Subitems 129(1) and (2) of Schedule 1 of the Amending Act provide, relevantly, that s 33 and 34 as in force on and after 3 October 2024 apply to a SoPS approved or varied after that date, irrespective of whether a participant’s plan came into effect before, or on, or after commencement. The implication of this for the Applicant’s case is that because the Tribunal’s decision in this review is being made after 3 October 2024 the requirements introduced by the Amending Act must be satisfied, even though the decision under review was made before 3 October 2024.
The structure of s 10 of the amended principal Act requires close study. Subsection 10(1) provides, in short summary, that a support will be a ‘NDIS support’ if the support is so declared by the NDIS rules made for the purposes of section 10 either in respect of all participants or prospective participants or a specified class of participants or prospective participants. Subsections 10(2) and (3) specify certain preconditions as to which the Minister must be satisfied before the rules may declare a support a NDIS Support for the purposes of s 10(1). These are not presently relevant.
Subsection 10(4) provides that the NDIS rules may declare that a support is ‘not a NDIS support’ either in respect of all participants or prospective participants or a specified class of participants or prospective participants. Subsection 10(5) provides that before a rule can be made for the purposes of s 10(4) the Minister must be satisfied that the support is not appropriately funded or provided through the NDIS either for all participants or prospective participants or for a specified class of participants. Subsection 10(9) provides that certain services and substances are not NDIS Supports. It is not presently relevant.
Subsections 10(6) to (8) provide:
(6)The CEO may determine, in writing, that a support is taken to not be declared under subsection (4) in relation to a participant if:
(a)the support is prescribed by the National Disability Insurance Scheme rules for the purposes of this paragraph; and
(b)the support would, apart from subsection (4), be a NDIS support for the participant; and
(c)the participant applies to the CEO in accordance with subsection (7) for the determination; and
(d)the CEO is satisfied that:
(i)the support would replace one or more other supports that are NDIS supports for the participant; and
(ii)the cost of the support is the same or lower than the total of the costs of the supports it would replace; and
(iii)the support would provide the same of a better outcome for the participant than the supports it would replace; and
(iv)any other conditions specified in the National Disability Insurance Scheme rules for the purposes of this subparagraph are met in relation to the support, the participant, or both.
…
(7) An application under paragraph 6(c) must:
(a) be in the form (if any) approved by the CEO; and
(b)include any information, and be accompanied by any documents, required by the CEO; and
(c)be made in accordance with any other requirements specified in the National Disability Insurance Scheme rules for the purposes of this paragraph, which may include requirements as to the circumstances in which an application may, or may not, be made.
(8)The National Disability Insurance Scheme rules may make provision for determining any matter for the purposes of subsection (6), including by prescribing requirements with which the CEO must comply, methods or criteria that the CEO is to apply, or matters that the CEO may, must or must not take into account in deciding whether to make a determination under that subsection.
Sub-item 138 of Schedule 1 of the Amending Act provides that the Minister may, by legislative instrument, make rules prescribing matters of a transitional nature relating to the amendments and repeals to the principal Act made by that Schedule. Pursuant to that power the National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) (NDIS Supports) Transitional Rules 2024 (Cth) were made (the Transitional Rules). The Transitional Rules also came into force on 3 October 2024[21] and must be applied in the review of a decision concerning a SoPS completed on or after that date, even if that decision predates the entry into force of the Transitional Rules.
[21] s 2 of the Transitional Rules.
To put it simply, the Transitional Rules designate, by operation of Rule 5 and by reference to Schedules 1 and 2 of those Rules, those Supports that are “NDIS Supports” and those that are “generally not NDIS Supports” for the purpose of s 10 of the principal Act (as amended by the Amending Act).
In the Applicant’s case the following elements of Schedules 1 and 2 have significance:
(Schedule 1)
1Supports that are NDIS supports unless otherwise provided
The following table sets out supports that are NDIS supports for participants and prospective participants (subject to subsections 10(4) and (9) of the NDIS Act and subsection 5(2) of this instrument).
Supports that are NDIS Supports unless otherwise provided
Column 1
Column 2
Column 3
Item
Category
Supports
Participants and prospective participants
34
Therapeutic supports
Supports that provide evidence-based therapy to help participants improve or maintain their functional capacity in areas such as language and communication, personal care, mobility and movement, interpersonal interactions, functioning (including psychosocial functioning) and community living.
This includes an assessment by allied health professionals for support planning and review as required.
Participants or prospective participants generally
(Schedule 2)
1Supports that generally are not NDIS supports
The following table sets out supports that are not NDIS supports for:
(a)a participant (unless a replacement support determination covering the support is in force for the participant); or
(b) a prospective participant.
Supports that are not generally NDIS supports
Item
Category
Supports
4
Day-to-day living costs – lifestyle
The following:
…
(q) general health, fitness, social or recreational activity costs or services
…
(s) non-prescription medicines … and homeopathic medicines.
9
Not evidenced based – alternative and complementary therapies
The following:
…
(g) yoga therapy
…
(k) alternative or complementary medicine.
12
Health
The following:
…
(d) pharmaceuticals (including prescription medicines), biological medicines … and homeopathic medicines
13
Mental Health
The following:
(a) pharmaceuticals (including prescription medicines and non-prescription medicines)
(b) treatment, including for drug and alcohol dependency, gambling, and other addictions or disorders,
…
Part 3 of the Transitional Rules concerns ‘replacement support determinations’. It provides, relevantly:
7 Replacement support determinations
Supports for which determinations may be made
(1) For the purposes of paragraph 10(6)(a) of the NDIS Act, the CEO may make a replacement support determination in relation to a support covered by column 1 of an item in the table in subsection (3) of this section.
(2) For the purposes of subparagraph 10(6)(d)(iv) of the NDIS Act, the CEO must be satisfied that the conditions set out in column 2 of an item in the table in subsection (3) are met before making a replacement support determination in relation to a support covered by column 1 of the item.
(3) The table is as follows:
Replacement support determinations
Column 1
Column 2
Item
Supports
Conditions
1
Standard commercially available household items
The support must:
(a) be necessary to address needs of the participant arising from an impairment in relation to which the participant meets the disability requirements or the early intervention requirements; and
(b) increase whole task independence; and
(c) reduce or eliminate the need for a support worker or disability specific assistive technology.
2
The following:
(a) smart watches;
(b) tablets;
(c) smartphones;
(d) an app used for accessibility or communication purposes.
The support must be necessary to address communication or accessibility needs of the participant arising from an impairment in relation to which the participant meets the disability requirements or the early intervention requirements.
Circumstances in which an application for determination may not be made
(4) For the purposes of paragraph 10(7)(c) of the NDIS Act, an application for a replacement support determination for one or more supports may not be made if the application would result in the participant making more than one such application for any of those supports:
(a) if the reassessment date of the participant’s plan is less than 12 months after the plan came into effect – while the plan is in effect; or
(b) otherwise – during any 12-month period starting while the plan is in effect.
…
Turning now to the principal Act, s 34(1) as amended, now provides:
34 Reasonable and necessary supports
(1) For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:
(aa) the support is necessary to address the needs of the participant arising from an impairment in relation to which the participant meets the disability requirement (see section 24) or the early intervention requirement (see section 25);
(a)the support will assist the participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations;
(b)the support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation;
(c)the support represents value for money in that the costs of the support are reasonable, relative both to the benefits achieved and the cost of alternative support;
(d)the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
(e)the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;
(f)the support is a NDIS support for the participant
…
The Rules contained in Part 3 of the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (the Supports Rules) must also be applied in assessing if a requested support is reasonable and necessary for the purposes of s 34(1). The following Rules are relevant in this case:
Value for money
3.1In deciding whether the support represents value for money in that the costs of the support are reasonable, relative to both the benefit achieved and the cost of alternative support, the CEO is to consider the following matters:
(a)whether there are comparable supports which would achieve the same outcome at a substantially lower cost;
(b)whether there is evidence that the support will substantially improve the life stage outcomes for, and be of long-term benefit to, the participant;
(c)whether funding or provision of the support is likely to reduce the cost of the funding of supports for the participant in the long term …
(d)…
(e)whether the cost of the support is comparable to the cost of supports of the same kind that are provided in the area in which the participant resides:
(f)whether the support will increase the participant’s independence and reduce the participant’s need for other kinds of supports …
Effective and beneficial
3.2In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to consider the available evidence of the effectiveness of the support for others in like circumstances. That evidence may include:
(a)published and refereed literature and any consensus of expert opinion;
(b)the lived experience of the participant or their carers; or
(c)anything the Agency has learnt through delivery of the NDIS
3.3In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to take into account, and if necessary seek, expert opinion.
The NDIS is founded upon an explicit values framework which emphasises the inherent dignity, human rights, autonomy, and agency of persons with disability which is to be applied in the administration of the NDIS Act.[22] With respect to participants and their plans it contains, in s 17A, specific principles relating to the participation of persons with disability in the planning process, which include the following:
[22] See s 3 Objects of the Act and s 4 General Principles guiding actions under this Act
17A Principles relating to the participation of people with disability
(1A) In performing the CEO’s functions and exercising the CEO’s power under this Chapter, the CEO must have regard to the principles in this section.
(1) People with disability are assumed, so far as is reasonable in the circumstances, to have capacity to determine their own best interests and make decisions that affect their own lives.
(2) People with disability will be supported in their dealings and communications with the Agency so that their capacity to exercise choice and control is maximised.
(3) The National Disability Insurance Scheme is to:
(a)respect the interests of people with disability in exercising choice and control about matters that affect them; and
(b)enable people with disability to make decisions that will affect their lives; and
(c) support people with disability to participate in, and contribute to, social and economic life.
(4) The principles in this section are in addition to the principles in section 4 to which the CEO is to have regard in performing the CEO’s functions and exercising the CEO’s powers under this Act
Consideration
Having regard to the provisions of the principal Act as amended, the Transitional Rules, and the Supports Rules, the structure of the enquiry involved in this review involves two stages and the following steps:
Stage 1Ascertain if the requested support is an “NDIS” Support as defined. This inquiry is focused on the support, not the participant.
Step 1:Determine if the requested support is of a character that falls within the scope of a category of support specified in column 1 of the Table to Schedule 2 of the Transitional Rules by reference to the description of supports that fall within the scope of that category contained in column 2 of the Table.
If the answer to that question is “yes”, then stage 1 is complete. The requested support is not a NDIS Support and cannot be approved for inclusion in a SoPS because of s 34(1)(f) (subject to a replacement support determination being made, as to which see following).
If the answer to that question is “no”, then proceed to step 2 of stage 1:
Step 2:Determine if the requested support is of a character capable of falling within the scope of a category of support specified in column 1 of the Table to Schedule 1 of the Transitional Rules by reference to the description of supports that can fall within the scope of that category contained in column 2 of that Table.
If the answer to that question is “no”, then the requested support will not be a NDIS Support and cannot be approved for including in a SoPS because of s 34(1)(f).
If the answer to that question is “yes”, then the requested support will be a NDIS Support that is capable of being approved for inclusion in a SoPS by operation of s 34(1)(f), and stage 2 of the enquiry is reached.
Stage 2:Ascertain if the requested support satisfies each of the other criteria specified in s 34(1)(aa) to (e) and the associated Supports Rules. There is some overlap of the stage 1 and 2 enquiries. However, in my opinion stage 2 is primarily a participant focused enquiry. That is, it seeks to establish the benefit of the support to the participant. To the extent that stage 2 also requires examination of the efficacy of the support per se it adds nothing to the outcome of the stage 1 enquiry in my opinion.
The question of whether a requested support is, or is not, a NDIS support is a mixed question of fact and law. The issue of fact to be determined is whether the requested support falls within a category of items specified in column 1 of the Tables to Schedules 1 and 2 of the Transitional Rules. If it does, it will either be, or not be, a NDIS support by operation of law.
It is important to observe that in the scheme of the Transitional Rules it is not sufficient to find that a support is not excluded as a NDIS Support by operation Schedule 2. It must also be found to be included as a NDIS Support by Schedule 1. That is, both Schedules have work to do in determining what is not a NDIS Support. To illustrate this point using absurd examples, a giraffe, hot-air balloon, and space craft are not excluded as NDIS supports by Schedule 2, but they are incapable of falling into any of the categories of NDIS Supports in Schedule 1. They are therefore not NDIS Supports by operation of Schedule 1, rather than Schedule 2.
If a requested support is not a NDIS Support by operation of the Transitional Rules, the criteria specified by s 34(1)(f) of the principal Act as amended cannot be satisfied. Section 34(1) is conjunctive in its terms, as is indicated by use of the words ‘the CEO must be satisfied of all of the following …’ (emphasis added). As each of the requirements of s 34(1) must be met before a support can be approved for inclusion in a SoPS there is no utility in considering if the requested support meets the other requirements of that section. The enquiry ends with the determination that the requested support is not a NDIS support.
Applying this analysis to the Applicant’s requested supports I consider it is beyond doubt that naturopathy, naturopathic prescription herbal tonics, and naturopathic prescription herbal supplements, fall within the descriptions of supports that are not NDIS Supports in Categories 4 (Supports (s)), 9 (Supports (k)), 12 (Supports (d)) and 13 (Supports (a)) of the Table to Schedule 2 of the Transitional Rules. The requirements of s 34(1)(f) of the principal Act as amended therefore cannot be satisfied, and consequently, these supports cannot be approved for inclusion in the Applicant’s SoPS.
There is a threshold question as to whether the request for funding to pay for ‘one-on-one’ yoga sessions is intended to refer to a standard yoga class or to yoga ‘therapy’. In an Agency ‘pre-planning’ report prepared by the planner delegate of the CEO prior to the current plan the following words appear:
[the Applicant] also wants to start attending the gym and doing yoga 3 times a week to achieve her goal of improving her physical health which is currently very poor due to her spinal condition.[23]
This resulted in yoga being referenced in the Applicant’s second short-term goal in her statement of goals and aspirations. This appears to be a reference to a standard yoga class.
[23] Agency Bundle, page 412.
However, in her email dated 18 September 2024 where she identified the requests she sought to be included in her SoPS as an outcome of this review, the Applicant states the following:
The other capacity-building therapies I use that would need to be part of long-term planning are … one on one yoga on a weekly basis for movement, stretching and relaxation techniques to facilitate mental and physical well-being …
This appears to be a request for funding for yoga ‘therapy’ as distinct from funding to participate in a standard yoga class.
But it makes no difference to the outcome which it is. If it is the former such an expense is a cost associated with a recreational activity, and consequently, it is not a NDIS Support by operation of Category 4 (Supports (h)) of the Table to Schedule 2 of the Transitional Rules. If it is the latter, it is not a NDIS Support by operation of Category 9 (Supports (g)) of the Table to Schedule 2 of the Transitional Rules. The requirements of s 34(1)(f) of the principal Act as Amended therefore cannot be satisfied, and consequently, this support cannot be approved for inclusion in the Applicant’s SoPS.
Turning to the request for funding for art therapy support, a review of the Table to Schedule 2 does not result in a conclusion that this is not a NDIS support. A review of the Table to Schedule 1 leads me to the conclusion that it is open to me to find that art therapy is a therapeutic support with the scope of Category 34 if it can be established with probative evidence that it satisfies the elements of the description of such supports in column 2.
That is, the evidence would need to establish that art therapy it is an evidence-based therapy that would help participants or prospective participants generally improve or maintain their functional capacity in one or more of the life activity areas specified there. If that test was satisfied the focus of the enquiry would then move to consideration of the requirements of s 34(1)(aa) to (d) and Support Rules 3.1 and 3.2, in particular to determine if this support is necessary to address the needs of the Applicant as these needs arise from an impairment in relation to which she meets the disability requirement, whether it would assist her to pursue her Participant Plan goals, objectives and aspirations, whether it would support her to undertake activities that would facilitate her social and economic participation, and whether it would represent value for money.
The insurmountable difficultly for the Applicant in relation to her art therapy request is that she has not filed any evidence in support of it, leaving aside the report which the Tribunal was likely to receive after the hearing, and which I have refused to receive into evidence at this very late stage for the reason given above. Otherwise, the only relevant supporting document I can find in the voluminous materials before me is an invoice from an art therapist the Applicant submitted on 10 October 2024 with a demand that the Tribunal make an interim order for its payment.[24] That document merely identifies a practitioner by name, qualifications, and business entity, and itemises a service and a fee. It does not otherwise address any of the evidentiary matters necessary for the Tribunal to reach a state of positive satisfaction that the mandatory conditions precedent to the approval of this support for inclusion into the Applicant’s SoPS are met. [25] The Applicant does not even refer to art therapy in her statement. In this respect the Applicant bears a practical onus of presenting evidence or drawing attention to evidence already before the Tribunal from some other source that is sufficient to satisfy or persuade it that the statutory preconditions to the approval of art therapy as a support for inclusion SoPS are met[26] which she has failed to discharge. It follows from this that the Applicant’s case in relation to her request for art therapy to be included in her SoPS is lacking in substance, and it must be dismissed on this basis.
[24] See paragraph 14(xi) of my statement of reasons in FSWN No.2.
[25] National Disability Insurance Agency v WRMF (2020) 276 FCR 415; [2020] FCAFC 79 at [201].
[26] Beezley v Repatriation Commission (2015) 150 ALD 11; [2015] FCAFC 165 at [68].
For completeness, I will briefly address the operation of ss 10(6) to (8) of the principal Act as amended. In short summary, those provisions authorise the CEO to determine that a support that appears in the Table to Schedule 2, despite being in that Table, is a NDIS support for a participant, provided she is satisfied of various matters, and upon an application being made by a participant. That discretion is confined, however, by the ‘replacement support determination’ contained in Part 3, s 7 of the Transitional Rules.
These provisions can have no bearing on the outcome of this case for three fundamental reasons:
i.The applicant has not made an application to the CEO, as she must, for a replacement support determination to be made in relation to her requested supports that are by operation of the Table to Schedule 2 of the Transitional Rules not NDIS Supports,
ii.The CEO could not make a replacement support determination in relation to those requested supports in any event because they do not appear in column 1 of the replacement support determination in Part 3, s 7 of the Transitional Rules,
iii.A decision made pursuant to s 10(6) determining a replacement support for a participant is distinct from a decision made pursuant to s 33(2) approving a statement of participant supports. The NDIS Act does not designate a determination made pursuant to s 10(6) a reviewable decision,
iv.The Tribunal’s jurisdiction is not at large. In conducting an independent review of an internal review decision concerning an approval of a SoPS, the Tribunal’s jurisdiction is limited to the scope of the internal reviewer’s powers under s 100 of the NDIS Act, and the scope of the power under s 33(2).[27] Neither s 100 or s 33(2) encompass a power to make a replacement support determination. The Tribunal thus has no power to entertain an application for a replacement support determination in a review of a decision to approve a SoPS.
[27] Frugtniet v Australian Securities and Investment Commission [2019] HCA 16; (2019) 266 CLR 250 at [51]; QDKH, by his litigation representative BGJF v National Disability Insurance Agency (2021) FCAFC 189.
As unpalatable as it will no doubt be for the Applicant, the policy emphasis in the Act generally, and in s 17A specifically, on participant choice and control in relation to the selection of their supports does not trump the constraints imposed by the Transitional Rules. The Transitional Rules, by statutory intention, limit participant choices to specific categories of support that have been determined to be NDIS Supports. Choice and control must now be exercised within those categories, and not outside them.
It is also salutary to observe that was referred to by the Full Court in WRMF[28] as the ‘decisional freedom’ available to this Tribunal in determining what is a reasonable and necessary support for the purposes of s 34(1) is now similarly constrained by the Getting the NDIS Back on Track amendments and Transitional Rules. Care will be required in the application of the line of authority that descends from that observation.
[28] National Disability Insurance Agency v WRMF (2020) 276 FCR 415; [2020] FCAFC 79 at [143].
Order
For the foregoing reasons, I make the following order:
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.
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