Kleczaj and CEO, National Disability Insurance Agency (Practice and procedure)
[2025] ARTA 1948
•1 October 2025
Kleczaj and CEO, National Disability Insurance Agency (Practice and procedure) [2025] ARTA 1948 (1 October 2025)
Applicant:Ingrid Kleczaj
Respondent: CEO, National Disability Insurance Agency
Tribunal Number: 2024/8831
Tribunal:Deputy President K Dordevic
Place:Sydney
Date:1 October 2025
Decision:The Tribunal dismisses this application pursuant to section 101(1)(a) of the Administrative Review Tribunal Act 2024 as it has no reasonable prospects of success.
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Deputy President K Dordevic
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – practice and procedure – reasonable prospects of success – funding for statement of participants supports in applicant’s plan – prolotherapy – myotherapy – definition of NDIS Support – application of transitional rules – decision under review dismissed for no reasonable prospects of success
Legislation
Administrative Review Tribunal Act 2024 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme Amendment (Getting the NDIS back on Track No.1) Act 2024 (Cth)National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (Cth)
Cases
Australian Securities and Investments Commission v Cassimatis [2013] FCA 641
Boston Commercial Services Pty Ltd v G E Capital Finance Australasia Pty Ltd [2006] FCA 1352
FSWN and National Disability Insurance Agency (NDIS) [2025] ARTA 114
Houston v New South Wales (No 2) [2021] FCA 637
Spencer v Commonwealth [2010] HCA 28
Trkulja v Google LLC [2018] HCA 25
White Industries Ltd v Commissioner of Taxation (2007) 160 FCR 298Statement of Reasons
BACKGROUND
The Applicant is a 53 year old woman living with hypermobile Ehlers-Danlyos syndrome, fibromyalgia, osteoporosis, osteoarthritis and polyarthropathy inflammatory arthritis. The Applicant has been a participant of the National Disability Insurance Scheme (NDIS) for some years.
In these proceedings the Applicant seeks the inclusion of prolotherapy and myotherapy in her statement of participant supports.
On 9 August 2024 a delegate of the Chief Executive Officer (CEO) of the National Disability Insurance Agency (Agency) approved a statement of participant supports, included in a plan for the period 9 August 2024 to 9 August 2025.
The Applicant sought a review of that decision and a different delegate of the CEO determined that the original decision was correct. The Applicant then sought a timely review with this Tribunal on the basis that prolotherapy and myotherapy were value for money, noting that the supports currently provided under her plan would not actually help her manage her conditions.
The Respondent has sought to have the application before this Tribunal dismissed on the basis that it has no reasonable prospects of success, as the requested supports do not meet the reasonable and necessary criteria as set down in the National Disability Insurance Scheme Act 2013 (Act).
A directions hearing was held on 14 August 2025. Directions were issued immediately following the hearing relevantly requiring:
2. By 4:00 PM on 25 August 2025 the Applicant must give to the Respondent and the Tribunal any further evidence on which the Applicant intends to rely for the final hearing.
3. By 4:00 PM on 4 September 2025 the Respondent must give to the Applicant and the Tribunal written submissions in support of its application for the matter to be dismissed on the basis that it has reasonable prospect of success, pursuant to paragraph 101(1)(b) of the Administrative Review Tribunal Act 2024.
4. On 12:00 PM on 8 September 2025 a hearing will take place via MS-Teams regarding the Respondent’s dismissal application on the basis that the application has no reasonable prospect of success.
An interlocutory hearing was held on 8 September 2025. The Applicant was self-represented and the Agency was represented by Mr Aaron Clark of counsel.
LEGISLATIVE FRAMEWORK
The Act sets down the law that underpins the NDIS.
Individuals who are granted access to the scheme are referred to as ‘participants’.[1] The scheme provides individual plans to participants, which fund certain specified supports.
[1] Subsection 8(c) of the Act.
Section 33 of the Act identifies the matters that must be included in a participant’s plan. Subsection 33(2) requires that a plan include a statement of participant supports prepared with the participant and approved by the CEO. Paragraphs 33(2)(a) to (e) of the Act specifies these statement of participant supports must include general, reasonable and necessary supports in addition to the date by which the Agency must reassess the plan, as well as information regarding management of other plan aspects.
Section 33(5) of the Act directs that when deciding whether to approve a statement of participant supports the CEO (and this Tribunal upon review) must have regard to the participant’s statement of goals and aspirations, relevant assessments, the principle that a participant should manage their plan to the extent that they wish, the operation and effectiveness of previous plans and compliance with spending in addition to being satisfied the supports are reasonable and necessary and the NDIS rules are applied.[2]
[2] Subsection 209(1) of the Act.
On 3 October 2024 the National Disability Insurance Scheme Amendment (Getting the NDIS back on Track No 1) Act 2024 (Amending Act) came into force. Numerous provisions in the Act were amended.
Relevant to this application it included significant amendments to section 34 of the Act regarding reasonable and necessary supports. It introduced the concept and definition of what is an NDIS support[3] and what is not an NDIS support[4] and amended paragraph 34(1)(f) of the Act, requiring the decision-maker to be satisfied, when considering whether a support is reasonable and necessary, to be satisfied that the support is an ‘NDIS support’.
[3] Subsection 10(1) of the Act.
[4] Subsection 10(4) of the Act.
Section 34(1) of the Act now provides that when considering what ‘reasonable and necessary’ supports are to be funded, that the decision maker must be satisfied that each limb outlined in paragraphs 34(1)(aa) to (f) are established:
(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 needs of the participant arising from an impairment in relation to which the participant meets the disability requirements (see section 24) or the early intervention requirements (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 to both 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 an NDIS support for the participant.
Note: For the purposes of paragraph (aa):
(a) the time at which the disability requirements or the early intervention requirements need to be met is the time the CEO decides to approve the statement of participant supports; and
(b) a participant’s disability support needs arising from an impairment in relation to which the participant meets the disability requirements or the early intervention requirements may be affected by a variety of factors, including environmental factors or the impact of another impairment in relation to which the participant does not meet either of those requirements.
(2) The National Disability Insurance Scheme rules may prescribe methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding whether or not he or she is satisfied as mentioned in any of paragraphs (1)(aa) to (f).
The Amending Act provides at subsection 138(1) that the Minister may, by legislative instrument, make rules prescribing matters of a transitional nature relating to the amendments to the Act.
The National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (Transitional Rules) also came into force on 3 October 2024. The Transitional Rules modified the operation of section 34 of the Act, by expressly excluding certain supports from inclusion in a participant’s statement of participant supports.
These legislative amendments and Transitional Rules must be applied by the Tribunal when a statement of participant supports is approved or varied on or after 3 October 2024, even if a participant’s plan came into effect before the commencement of the amendment.[5]
[5] Subitems 129(1) and (2) of Schedule 1 to National Disability Insurance Scheme Amendment (Getting the NDIS back on Track No. 1) Act 2024.
Schedule 1 to the Transitional Rules outlines supports that are NDIS Supports unless otherwise provided.
Schedule 2 to the Transitional Rules outlines supports that are generally not considered NDIS Supports. Relevant to this review, Schedule 2 provides:
Supports that generally are not NDIS supports
Column 1 Column 2
Item Category Supports
…
2 Day-to-day living costs - The following:
finance and payments …
(d) health insurance, ambulance membership, gap payments for Medicare-funded services and private health insurance claims;
…
9 Not evidenced based – The following:
alternative and …
complementary therapies (d) reflexology;
…
(k) alternative or complementary medicine
…
12 Health The following:
(a) the diagnosis, early intervention and clinical treatment of health and dental health conditions, including ongoing or chronic health conditions;
(b) …
Paragraph 101(1)(b) of the Administrative Review Tribunal Act 2024 provides that the Tribunal may, at any time, dismissal an application if the Tribunal is satisfied that the application has no reasonable prospects of success.
CONSIDERATION
In the matter of FSWN and National Disability Insurance Agency (NDIS) [2025] ARTA 114 (FSWN) Senior Member French outlined the structure of enquiry in matters where the application for review is concerned with a statement of participant supports that was varied after 3 October 2024. Senior Member French stated that there are two stages and the following steps:[6]
[6] FSWN at [43].
Stage 1 Ascertain 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.
A new plan was made on 15 July 2025, after the 3 October 2024 amendments. Therefore, the requirements set down in the Amending Act must be satisfied. This is so, even though the reviewable decision was made some 13 months prior to those amendments.
Dr William Bushby, general practitioner, wrote in support of ongoing prolotherapy treatments to alleviate the Applicant’s symptoms and improve her functioning on 14 May 2024.[7] He noted that her conditions are chronic and require long-term management and that the NDIS would be instrumental in ensuring she can continue to access necessary medical treatments to manage her conditions.
[7] T-Docs, T5.
Dr Bruce Jones, general practitioner, wrote in support of the Applicant being provided with myotherapy and prolotherapy in a letter dated 28 May 2025.[8] He stated that myotherapy is “well established as therapeutic modalities for maintenance of function in the setting of hypermobility syndromes”. He went on to state that prolotherapy is a “maintenance therapy” and “enables maintenance of function in daily life” and that together (along with other treatments) have a “profound effect”.
[8] A1.
On 25 August 2024 Dr Richardy Hostiadi, general practitioner, also recommended chiropractic treatment and prolotherapy to be funded by the NDIS to prevent the Applicant’s condition deteriorating and to maintain current functioning.[9]
[9] T-Docs, T6.
On 26 August 2024 Dr David Careless, consultant physician and rheumatologist, stated that the Applicant finds prolotherapy helpful and has explored physical therapies including physiotherapy, chiropractic and musculoskeletal specialists.[10]
[10] T-Docs, T7.
Mr Mark Comerford, physiotherapist, reported on 28 August 2024 that the Applicant would benefit from monthly physiotherapy sessions.[11] He also reported that her rheumatologist has requested that she undertake prolotherapy and myotherapy/chiropractic treatments, amongst other therapies.
[11] T-Docs, T8.
There is also in evidence a statement from Mr Daniel Bank, chiropractor, who advised on 4 May 2025 that he provides conservative low force spinal manipulation and soft tissue work to the Applicant. He recommended ongoing weekly treatment to avoid extreme exacerbations of her symptoms and to improve her quality of life.[12]
[12] T-Docs, T4.
The Applicant provided written submissions and screenshots outlining prolotherapy and myotherapy treatments and the benefits of such treatments. In respect of prolotherapy, early studies have indicated that it could lead to significant reductions in pain and increased functional abilities in the majority of recipients of the treatment.
At hearing the Applicant explained that her treating general practitioner administers the prolotherapy treatment by subcutaneous injections once a month, which assists in managing her joint pain symptoms. She receives a modest Medicare rebate. However, her out of pocket expenses mean that the treatment is largely unaffordable if not funded under the NDIS. She is currently funding the treatment through debt.
The Applicant’s oral and documentary evidence is that the prolotherapy treatment is provided by her general practitioner and part funded under the Medicare scheme. The Applicant does not dispute that the provision of prolotherapy is a clinical treatment for her chronic health condition and that she is seeking a contribution towards the gap payment for a Medicare-funded service. I find accordingly.
Application of the Transitional Rules results in a finding that prolotherapy it is not an NDIS support by operation of Items 2(d) and 12(a) of Schedule 2, and so is not a reasonable and necessary support pursuant to paragraph 34(1)(f) of the Act.
It follows that prolotherapy cannot be included in the Applicant’s statement of participant supports.
The Applicant also provided documentation regarding neuro impulse protocol (NIP) which is described as a brain-based chiropractic techniques used to normalise nervous system function, by using gentle impulses to restore normal sensory input. Documents provided also referenced the pain neutralisation technique (PNT) which is described as light pressure of the fingertips to manipulate soft tissue which can be used to treat various conditions and provides pain relief.
In response to the Respondent’s submissions that myotherapy is an alternative or complimentary therapy, she stated that it “probably is”. However, she stressed that she does not seek ‘myotherapy’ as such; rather she is seeking funding of a variety of therapies performed by her chiropractor including NIP and PNT. It also includes kinesiology, which she accepts is not an NDIS support.[13] The Applicant went on to explain that NIP and PNT provide relief as they stop her muscles spasming; she walks into the clinic on crutches and walks out “a new person”. However, the benefits are only short-term and therefore she requires frequent treatments. She stressed that “traditional” chiropractic techniques are “a waste of time”.
[13] See Item 10(i) of Schedule 2 to the Transitional Rules.
The Respondent submits that myotherapy/NIP/PNT are not evidenced based treatments. In the alternative, it submits that these therapies are the provision of clinical treatment of the Applicant’s chronic health condition.
It is apparent from the literature provided by the Applicant that some practitioners report myotherapy/NIP/PNT provides functional improvement. The Applicant’s own evidence is that the provision of this treatment has beneficial effects. However, there is no evidence before me to indicate that these treatments have undergone rigorous research, such as randomised controlled trials, to demonstrate their efficacy. Without the benefit of such evidence I am persuaded that myotherapy/NIP/PNT is alternative or complementary medicine that is not evidence based. In reaching this conclusion, I have no reason to doubt the veracity of the Applicant’s statements that these treatments bring relief to her pain symptoms. However, the test is not a subjective one.
I conclude that myotherapy/NIP/PNT are not NDIS support by operation of item 9(k) of Schedule 2, and so is not a reasonable and necessary support pursuant to paragraph 34(1)(f) of the Act. It follows that myotherapy/NIP/PNT cannot be included in the Applicant’s statement of participant supports.
I note for completeness that even if these treatment modalities provided by the Applicant’s treating chiropractor and physiotherapist were evidence based, it would be open to conclude that they are not NDIS supports as they are clinical treatments of the Applicant’s chronic health conditions, as described at item 12(a) of Schedule 2.
As already stated, a new plan came into place on 15 July 2025. The only matters in dispute are the prolotherapy and myotherapy/NIP/PNT; that is, there are no other dispute between the parties that require determination by this Tribunal. I have already determined that these treatments are not NDIS supports and therefore cannot be funded under a statement of participant supports by operation of paragraph 34(1)(f) of the Act.
I next considered whether this application should be dismissed on the basis that it has no reasonable prospects of success, as urged by the Respondent.
The relevant legal principles applying to applications for dismissal on the basis of no reasonable prospects of success were helpfully summarised in Houston v New South Wales (No 2) [2021] FCA 637:[14]
·it requires attention to the real, as opposed to ‘fanciful’ prospects;[15]
·a Court (or this Tribunal) is required to make a practical judgement about whether there is more than a ‘fanciful’ prospect of success;[16]
·caution must be exercised in determining whether summary judgment should be granted where there are factual disputes and the evidence is not in its final form;[17]
·the Court (and Tribunal) retains a discretion whether to dismiss or refer to trial, though this must be exercised judicially;[18] and
·the power must not be exercised lightly.[19]
[14] At [5] as per Griffiths J.
[15] White Industries Ltd v Commissioner of Taxation (2007) 160 FCR 298 at [59] as per Lindgren J.
[16] Spencer v Commonwealth [2010] HCA 28 at [25] as per French CJ and Gummow J.
[17] Boston Commercial Services Pty Ltd v G E Capital Finance Australasia Pty Ltd [2006] FCA 1352 at [43]-[44] as per Rares J
[18] Australian Securities and Investments Commission v Cassimatis [2013] FCA 641 at [50] as per Reeves J.
[19] Spencer at [60] per Hayne, Crennan, Kiefel and Bell JJ and Trkulja v Google LLC [2018] HCA 25 at [22] per Kiefel CJ, Bell, Keane, Nettle and Gordon JJ.
I am satisfied that apart from the funding sought by the Applicant in respect of myotherapy/NIP/PNT and prolotherapy treatments there are no issues in dispute between the parties.
I am also satisfied that there is no prospect of success, whether reasonable or remote, that these treatments are reasonable and necessary supports pursuant to subsection 34(1) of the Act and so cannot be funded under a statement of supports as they are expressly not NDIS supports under the Act.
It follows that there is no utility in the Applicant proceeding with the application, as no other more favourable outcome is available to her.
I therefore proceed to dismiss this application pursuant to section 101(1)(a) of the Administrative Review Tribunal Act 2024 as it has no reasonable prospects of success.
Date(s) of hearing: 8 September 2025 Applicant: Self-Represented Counsel for the Respondent: Mr Aaron Clark Solicitors for the Respondent: Ms Charlotte Walker, Sparke Helmore Lawyers
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