Hempel and National Disability Insurance Agency

The Administrative Appeals Tribunal considered the matter of Hempel and the National Disability Insurance Agency (NDIA). The applicant, who has lifelong disabilities, received a $1.5 million compensation payout following a motor vehicle accident in 2014. The NDIA had previously issued a recovery notice under section 111(2) of the National Disability Insurance Scheme Act 2013 (NDIS Act) in 2018, which was later set aside by an internal review decision under section 116 of the NDIS Act, treating the compensation as not being fixed by judgment or settlement due to special circumstances. More recently, the NDIA indicated it would be undertaking a review of the applicant's NDIS plan and that a Compensation Reduction Amount (CRA) might be applied in relation to the compensation received. The applicant sought review of what she considered to be an unjust decision by the NDIA's compensation team, arguing that the entirety of her compensation payout was being sought to cover pre-existing disabilities as well as injuries from the accident.

The primary legal issue before the Tribunal was whether it had jurisdiction to review the NDIA's actions. The applicant contended that the NDIA had made, or was taken to have made, reviewable decisions relating to the calculation and application of a CRA to her NDIS plan. Specifically, the applicant argued that a decision made on 4 December 2023 was a reviewable decision under section 99(1) of the NDIS Act, and that the NDIA's subsequent refusal to review this decision constituted an implied reviewable decision under section 103. Alternatively, the applicant argued that the NDIA's failure to vary or reassess her plan, as potentially required by the Compensation Rules, constituted a reviewable decision under section 99(1), and the NDIA's refusal to undertake a review of this failure was also reviewable under section 103.

The Tribunal found that it lacked jurisdiction to proceed with the review. It determined that no actual decision had been made by the NDIA to apply a CRA to the applicant's plan. The correspondence from the NDIA indicated an intention to investigate further and prepare an estimate of a potential CRA, but this did not constitute a final decision. Furthermore, the Tribunal found that the applicant's request for review on 4 January 2024 was directed at an "unjust decision" by a compensation specialist, but the NDIA responded that no reduction amount had been approved or applied, meaning there was no decision to review or appeal. Consequently, the Tribunal concluded that there was no actual or deemed reviewable decision that would enliven its jurisdiction.