KGWD and National Disability Insurance Agency

This matter concerned an application by KGWD, an applicant with autism spectrum disorder, severe intellectual disability, joint hypermobility syndrome, persistent vocal tic disorder, and Attention Deficit Hyperactivity Disorder, for review of decisions made by the National Disability Insurance Agency (NDIA). The core dispute revolved around whether transport support should be included in the applicant's NDIS plan or his mother's plan, and crucially, whether the Administrative Appeals Tribunal (AAT) had the jurisdiction to order the NDIA to reimburse or backpay the applicant for past transport supports.

The Tribunal was required to determine two primary legal issues. Firstly, it needed to ascertain whether transport support, specifically Level 2 transport support at the higher rate, constituted a reasonable and necessary support for the applicant and should be included in his NDIS plan. Secondly, and of central importance to the applicant's request, the Tribunal had to decide whether it possessed the legal power to order the NDIA to reimburse the applicant for transport support costs incurred prior to the inclusion of such support in his plan.

In its reasoning, the Tribunal acknowledged that the parties agreed Level 2 transport support at the higher rate was reasonable and necessary, a conclusion the Tribunal also reached based on the evidence. However, regarding the reimbursement claim, the Tribunal referred to its powers as set out in the *Administrative Appeals Tribunal Act 1975* (Cth) and the *National Disability Insurance Scheme Act 2013* (Cth). It explained that its jurisdiction was limited to reviewing decisions to approve statements of participant supports. Drawing on precedent, specifically *XXWC and National Disability Insurance Agency* [2020] AATA 923, the Tribunal concluded that decisions concerning the payment or reimbursement of supports were not within the scope of its review powers. The operative decision affecting the applicant's rights was the approval of the statement of participant supports, not the subsequent payment. Therefore, the Tribunal found it lacked the power to order reimbursement for past expenses.

Consequently, the Tribunal set aside the internal review decisions and remitted the matter for reconsideration. The directions included that Level 2 transport support at the higher rate be funded under the NDIS from the commencement of Plan A. The Tribunal also directed that other reasonable and necessary supports be replicated for a specified period. Crucially, the Tribunal determined that any reimbursement for monies expended on transport support prior to the implementation of its decision, and the calculation of any such reimbursement, was a matter for the NDIA to determine.