Green and National Disability Insurance Agency (NDIS)
[2025] ARTA 1577
•27 August 2025
Green and National Disability Insurance Agency (NDIS) [2025] ARTA 1577 (27 August 2025)
Applicant/s: Rhiannon Green
Respondent: National Disability Insurance Agency
Tribunal Number: 2023/0337
Tribunal:General Member J Papalia
Place:Perth
Date:27 August 2025
Date of written reasons: 27 August 2025
Decision:The Tribunal varies the decision to approve the Applicant’s statement of participant supports dated 25 August 2025 so that the plan will include funding for 400 hours of Auslan interpretation (rather than 336 hours).
Statement made on 27 August 2025 at 5:45pm
CATCHWORDS
National Disability Insurance Scheme – reviewable decision of Chief Executive Officer – approval of a Statement of Participant Supports – where parties have reached terms of agreement to resolve their dispute – Power of ART to make consent orders – lawfulness and propriety of consent terms
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Getting the NDIS Back on Track No 1) (NDIS Supports) Transitional Rules 2024 (Cth)
CASES
Kovalev v Minister for Immigration and Multicultural Affairs (1999) 59 ALD 71
Re Liu and Comcare (2004) 79 ALD 119
Statement of Reasons
(These reasons were delivered orally and have been taken from the audio recording of the hearing. They have been edited for the purposes of correcting grammatical errors or infelicity of expression, and to add footnotes and legislative references).
The Applicant, Ms Green, is a participant of the National Disability Insurance Scheme (NDIS). Ms Green identifies as being deafblind. It is accepted that she has severe impairment of both hearing and vision. Before the Tribunal, Ms Green sought review of decisions made regarding the funding contained within her Statement(s) of Participant Supports (SoPS) prepared under Part 2 of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act). The matter has been before the Tribunal (and its predecessor) for some time. Over that time, the dispute between the parties narrowed to the level of funding reasonably required for Auslan interpreter support. Auslan is the short-hand reference for the Australian Sign Language, which is an entirely visual language with its own grammar, syntax, and terminology.[1] It was developed by, and for, the Australian deaf community.[2] There are different dialects of Auslan and modified versions to meet the needs of deafblind people.[3] The matter was listed for a five-day hearing before me in Perth, commencing on 25 August 2025. Today, on the third day of the substantive hearing, the parties reached terms of agreement regarding the resolution of the proceeding. These reasons explain the Tribunal’s decision to exercise its discretion to decide the matter in accordance with those terms of agreement.
[1] Department of Health and Aged Care (Cth), Review of Auslan interpreting service use in primary care (15 December 2023), p 5; see also Exhibit 1, C7.
[2] Ibid.
[3] Ibid.
BACKGROUND
The Applicant is represented by Ms Jenny Morris of Legal Aid WA.
The Respondent is a body corporate of the Commonwealth established by s 117 of the NDIS Act and is responsible for delivering the NDIS.[4] In the review, they are represented by Mr Tom Lettenmaier of counsel, instructed by Maddocks.
[4] See NDIS Act, s 118(1)(a).
The initial reviewable decision was made on 20 December 2022, and concerned an earlier plan decision made on 20 July 2022.[5] These plan decisions have now each been superseded by fresh plan decisions. Immediately prior to the first day of hearing, a delegate of the Chief Executive Officer of the Respondent decided to approve a new SoPS for Ms Green. That decision implemented a series of concessions which had been made by the Respondent in their revised Statement of Facts, Issues and Contentions, dated 20 June 2025. By virtue of s 103(2)(e) of the Administrative Review Tribunal Act 2024 (Cth) (ART Act), the scope of the review is taken to include the merits of the new plan.
[5] See Exhibit 1, T1B.
The matter was initially listed for final hearing in June 2025, with programming directions made in November 2024. For operational reasons, the matter was re-listed for August 2025.
The parties appeared in-person before the Tribunal on 25, 26, and 27 August 2025. The following documents were marked as exhibits:
(a)Joint Hearing Bundle (2,455 pages) (Exhibit 1); and
(b)New plan dated 25 August 2025 and ‘plan breakdown’ (Exhibit 2).
The Tribunal also heard oral evidence from the Applicant and two other witnesses, Ms Jayne Cochrane (occupational therapist) and Ms Linda de Rozario (Chief Executive Officer of Vital Interpreting Personnel).
LEGAL FRAMEWORK
The question for determination by the Tribunal is whether the decision to approve the SoPS in the Applicant’s plan is the correct or preferable decision on the material before the Tribunal.
Section 34 of the NDIS Act requires that the Tribunal must be satisfied of specified criteria in relation to funding or provision of each support in a SoPS.
The National Disability Insurance Scheme (Getting the NDIS Back on Track No 1) (NDIS Supports) Transitional Rules 2024 (Cth) (Transitional Rules), prescribe methods or criteria to be applied, or matters to which the Tribunal is to consider, in deciding whether it is satisfied the criteria are met.[6]
[6] See NDIS Act, s 34(2).
Rule 5(1) of the Transitional Rules provides that a support covered by column 2 of an item in the table in cl 1 of Sch 1 to that instrument is generally to be regarded as an ‘NDIS Support’ (subject to meeting the requirements of s 34(1) of the NDIS Act). Column 2 of Item 25 to the table identifies ‘supports that assist a participant with independent communication in personal, social, cultural or community activities where translation and interpretation is needed as a result of their disability’. This would include Auslan interpretation services.
Subsection 103(1) of the ART Act provides that the parties to a review may, at any time, reach agreement on the terms of a decision to be made by the Tribunal in the proceeding that they consider would be ‘acceptable’. If those terms of agreement are reduced to writing and signed, and ‘the Tribunal is satisfied that a decision in the terms of the agreement or consistent with those terms would be within the powers of the Tribunal, the Tribunal may act in accordance with subsection (2) or (3)’.
Subsection 103(2) of the ART Act provides, in those circumstances, that ‘the Tribunal may, without holding or completing the hearing of the proceeding, make a decision in accordance with those terms’.
In Re Liu and Comcare (2004) 79 ALD 119, the Administrative Appeals Tribunal said in respect of equivalent power found in then s 42C of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) that ‘[t]he introductory phrase “may” confers a discretion, but one which must be exercised responsibly. The two part test requires the tribunal to be satisfied both of the lawfulness of the proposed decision and also of its propriety’.[7]
[7] Re Liu and Comcare (2004) 79 ALD 119, [9].
Unlike section 42C of the AAT Act, the Tribunal is not specifically directed by Parliament in s 103 of the ART Act to consider whether the proposed decision is ‘appropriate’.
However, as Justice French (as his Honour then was) observed in Kovalev v Minister for Immigration and Multicultural Affairs (1999) 59 ALD 71, in the context of the exercise of judicial power and the making of consent orders:
[11] …The question whether a consent order is to be made, is not concluded by a finding that it is formally within the power of the court. In the exercise of its power the court is not merely giving effect to the wishes of the parties, it is exercising a public function and must have regard to the public interest in doing so — see Australian Competition and Consumer Commission v Real Estate Institute of Western Australia (1999) 161 ALR 79 at 86 and the authorities referred to there. It is important therefore that the court itself addresses and is satisfied of the basis upon which its order is to be made and in particular where the order sets aside the decision of an official decision-maker or a tribunal.
The same can be said of this Tribunal, which is an independent mechanism of review.[8] It exercises a public function and must have regard to its statutory objectives.[9] It is not ‘a mere rubber stamp’ to give effect to the parties’ settlement agreement.[10]
[8] ART Act, s 9.
[9] See ART Act, Pt 4 Div 5.
[10] See Moloney v 21-25 South Esplanade Pty Ltd [2024] SASCA 58, [57]-[58], [151], [181]; Tonkin and Commissioner of Police [2010] WASAT 181, [2]; but cf Re Rickards and Comcare [2025] ARTA 1091, [22].
CONSIDERATION
It was agreed by the parties, and the evidence supports, that the Applicant has significant hearing and visual impairments.[11] She needs Auslan interpretation to assist her with independent communication in certain social, cultural, and community activities. This need is more acute where conversations involve more than basic English or where there is evident need for detailed and accurate interpretation, such as during medical appointments.
[11] See Exhibit 1, T5; C2.
The agreed funding in the Applicant’s SoPS for interpretation and translation services is deliberately designed to be ‘flexible’, so that it will allow for the Applicant to access and pay for ‘video relay interpreting services’, including such packages offered by Convo Communications Australia Pty Ltd,[12] when interpretation is reasonably required. This was appropriate and the Tribunal notes that this subscription service does not have a minimum booking time or fee. Rather, it is a subscription for pre-paid ‘minutes’ of Auslan interpretation. This service will allow the Applicant to utilise her plan funding at a greater capacity, rather than having ‘wasted’ funds where minimum periods of bookable interpretation apply, which are in the order of 2 hours’ duration.
[12] See Exhibit 1, T10.
The Tribunal therefore finds that a decision in the terms of the agreement, or consistent with those terms, would be within the powers of the Tribunal.
DECISION
Pursuant to ss 103(2) and 105 of the ART Act, the Tribunal varies the decision to approve the Applicant’s statement of participant supports dated 25 August 2025 so that the plan will include funding for 400 hours of Auslan interpretation (rather than 336 hours).
22. I certify that the preceding 21 (twenty-one) paragraphs are a true copy of the reasons for the decision herein of General Member J Papalia
...................[SGD].....................................................
Associate
Dated: 27 August 2025
Date of hearing: 25, 26 and 27 August 2025 Solicitor for the Applicant: Ms J Morris, Legal Aid WA Counsel for the Respondent Mr T Lettenmaier Solicitors for the Respondent: Ms E Rosetzky and Mr L Foster, Maddocks
0
5
0