KMPK and CEO, National Disability Insurance Agency (Practice and procedure) - [2025] ARTA 2024

KMPK and CEO, National Disability Insurance Agency (Practice and procedure) [2025] ARTA 2024 (10 October 2025)
Applicant:KMPK
Respondent: CEO, National Disability Insurance Agency
Tribunal Number: 2024/9329

Tribunal:Deputy President K Dordevic
Place:Sydney
Date:10 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.

.....................[SGD]............................
Deputy President K Dordevic
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – practice and procedure – reasonable prospects of success – funding for statement of participant supports in applicant’s plan – testicular sperm aspiration – fertility treatments - definition of NDIS Support – application of transitional rules – decision under review dismissed for no reasonable prospects of success
Legislation
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
Cba Raiders Sports Club Ltd and Cmr for ACT Revenue [1999] ACTAAT 28
FSWN and National Disability Insurance Agency [2025] ARTA 114
Houston v New South Wales (No 2) [2021] FCA 637
Mr Keeden Waller, by his Plan Nominee and Chief Executive Officer, National Disability Insurance Agency (Practice and procedure) [2025] ARTA 169
National Disability Insurance Agency v Deayton [2025] FCA 562
Spencer v Commonwealth [2010] HCA 28
Taylor and National Disability Insurance Agency [2021] AATA 1042
Trkulja v Google LLC [2018] HCA 25
White Industries Ltd v Commissioner of Taxation (2007) 160 FCR 298
Cases
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)
Statement of Reasons
BACKGROUND

The Applicant is a 31 year old man living with a spinal cord injury. He and his wife wish to have children. For conception to occur, the Applicant requires surgical sperm retrieval by way of testicular sperm aspiration (TESA),[1] a costly procedure requiring day surgery under general anaesthetic.[2] This is the support in dispute in these proceedings.
[1] T4, folio 39.
[2] T3, folio 39, T4 folio 41, T5, folios 42 to 43 and T6, folio 44.
The Applicant was granted access to the National Disability Insurance Scheme (NDIS) on 3 May 2018.
On 22 August 2023 the Applicant’s urologist sought funding of TESA from the Respondent, on behalf of the Applicant.[3]
[3] T3, folio 39.
On 16 August 2024 a delegate of the Chief Executive Officer (CEO) of the National Disability Insurance Agency (Agency) approved a statement of participant supports for the period 16 August 2024 to 16 August 2025.
The Applicant sought a review of that decision, seeking the inclusion of TESA in his statement of participant supports. On 29 October 2024 a different delegate of the CEO determined that the original decision was correct.
The Applicant then sought a review with this Tribunal within the prescribed period.
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 support does not meet the reasonable and necessary criteria as set down in the National Disability Insurance Scheme Act 2013 (Act).
An interlocutory hearing was held on 26 August 2025. The Applicant was in attendance and represented by his wife. The Agency was represented by Mr Jack Watts solicitor at Maddocks Lawyers.
Immediately following the hearing, pursuant to section 79 of the Administrative Review Tribunal Act 2024, the Tribunal directed:
a.On or before 2 September 2025 the Respondent will provide to the Tribunal and Applicant a list of cases referred to in today’s interlocutory hearing and a brief explanation as to their relevance.
b.On or before 16 September 2025 the Applicant will provide to the Tribunal and Respondent written submissions as to why the matter should not be dismissed on the basis of no reasonable prospects of success.
c.The Tribunal will determine the application for dismissal on 17 September 2025.
For the reasons that follow the application for review before this Tribunal will be dismissed on the basis that it has no reasonable prospects of success. This is because the support sought by the Applicant is not an ‘NDIS support’ and therefore cannot be funded as it is not a reasonable and necessary support pursuant to section 34(1) of the Act.
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’.[4] The scheme provides individual plans to participants, which fund certain specified supports.
[4] 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 specify 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.[5]
[5] 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’[6] and what is not an ‘NDIS support’[7] 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, that the support is an ‘NDIS support’.
[6] Subsection 10(1) of the Act.
[7] Subsection 10(4) of the Act.
Each limb outlined in paragraphs 34(1)(aa) to (f) must be established to determine a support is ‘reasonable and necessary’:
(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 Act also has introduced the concept of old framework plans[8] and new framework plans.[9] Section 32C dictates that a new framework plan applies if one has come into effect, a participant has been given notice or the CEO prepares the plan either within 5 years of commencement of the section, or a shorter time prescribed by the Rules.
[8] See Chapter 3, Part 2, Subdivision C of the Act.
[9] See Chapter 3, Part 2, Subdivision B of the Act.
Subsection 129(1) of the Amending Act states:
129 Old framework plans—content and approval of statement
of participant supports
(1) Subject to subitem (3), sections 33, 34 and 35 of the National Disability
Insurance Scheme Act 2013, as in force on and after the commencement
of this Schedule, apply in relation to a statement of participant supports
included in an old framework plan for a participant if the statement is
approved or varied on or after that commencement.
(2) Subitem (1) applies:
(a) whether the participant becomes a participant; and
(b) in the case of a variation—whether the plan comes into
effect;
before, on or after that commencement.
(3) Subsection 33(2A) of the National Disability Insurance Scheme Act
2013, as in force on and after the commencement of this Schedule,
applies in relation to a statement of participant supports included in an
old framework plan for a participant if:
(a) the statement is approved on or after the commencement (the
determination commencement) of the first determination
made under subsection 33(2E) of that Act (as inserted by this
Schedule); and
(b) the decision to approve the statement is not covered by
subitem (4).
(4) This subitem covers the following decisions made on or after the
determination commencement:
(a) a decision made by a reviewer under subsection 100(6) of the
National Disability Insurance Scheme Act 2013 on review of
a decision made by a decision-maker before the
determination commencement;
(b) a decision, made by the Administrative Appeals Tribunal, on
review of a decision made by a reviewer under that
subsection:
(i) before the determination commencement; or
(ii) on or after the determination commencement, if the
decision reviewed by the reviewer was made by a
decision-maker before the determination
commencement.
(5) Subitem (3) applies whether the participant becomes a participant
before, on or after the determination commencement.
Subsection 49(1) of the Act states that a participant’s plan must be reassessed before the reassessment date of the plan and either vary the participant’s plan[10] or prepare a new plan and approve the statement of participant supports in the new plan. However, this is subject to section 49B of the Act, which states that there is to be no reassessment of an old framework plan if a participant is to have a new framework plan.
[10] Pursuant to subsection 47A(1) of the Act.
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.[11]
[11] 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
…
8        Day-to-day living costs –          Surrogacy and fertility treatments.
reproductive health and
family related
…
12        Health   The following:
(a)   the diagnosis, early intervention and clinical treatment of health and dental health conditions, including ongoing or chronic health conditions;
…
(f)   surgical services or procedures related to aids and equipment
(g) acute, subacute, emergency, and outpatient     clinical services delivered through public or private hospitals.
Paragraph 101(1)(b) of the Administrative Review Tribunal Act 2024 provides that the Tribunal may, at any time, dismiss an application if the Tribunal is satisfied that the application has no reasonable prospects of success.
CONSIDERATION
It is evident that the Applicant’s plan did not automatically become subject to the changes made by the Amending Act on 3 October 2024. This is because section 129 of the Amending Act dictates that the changes to section 34 of the Act only apply in relation to a statement of participant supports that is approved or varied after the commencement of the Amending Act. Certainly, there is no evidence before me to suggest that there was a change to the Applicant’s plan before 16 August 2025 or that the Applicant has been given notice under subsection 32B(2) of the Act that he is to have a new framework plan.
I find that an NDIS plan was approved on 16 August 2024.[12] It stipulated that the plan reassessment date was 16 August 2025.[13]
[12] T12, folios 84 to 120.
[13] T12, folio 91.
Post hearing the Respondent provided the Tribunal a copy of the Applicant’s current plan, noting that the same plan was provided to the Applicant on 16 August 2025. It relevantly states:
16/08/2025
Your NDIS plan has been continued
Participant NDIS number: [Redacted]
Dear [Applicant],
Your National Disability Insurance Scheme (NDIS) plan has been continued.
We’re doing this to make sure your NDIS supports continue until we reassess your plan.
What are the benefits of a plan continuation?
The benefits of a plan continuation are:
• funding continues until we reassess the plan. There will be no gaps in access to NDIS funding if we experience delays
• we don’t need any end of plan reports or evidence until we’re ready to reassess the plan.
What this means for you
The continued plan will include:
• additional funding, up to 12 months, for the NDIS supports in the previous NDIS plan
• any one-off capital supports funded in the previous plan which haven’t been bought yet. For example, assistive technology, equipment or home modifications
• any unspent funding for NDIS supports from the previous plan. This funding can still be used. We’ve added it to the continued plan.
Relying only on the above correspondence from the Agency, one might form the view that the 16 August 2024 plan was simply ‘continued’; that is, there was no new plan or variation to the statement of participant supports on 16 August 2025. If this were the case, subsection 129(1) of the Amending Act would not be enlivened.
However, there is no legislative provision in the Act that permits a plan to be ‘continued’. Section 49 of the Act states that the CEO must, before the reassessment date of a participant’s plan, complete a reassessment of the plan and either vary the plan[14] or prepare a new plan and approve the statement of participant supports in the new plan.[15]
[14] Pursuant to subsection 47A(1) of the Act.
[15] Pursuant to subsections 32D(2) or 33(2) of the Act.
I am satisfied that subsection 34 of the Act, as in force after the commencement of the Amending Act, is applicable in the Applicant’s case. This is because subitem 129(1) of Schedule 1 to the Amending Act applies. The 16 August 2024 plan was an ‘old framework plan’. A new statement of participant supports was approved on 16 August 2025, after the commencement of the Amending Act. Thus, section 34 of the Act as in force after 3 October 2024 applies.
In the matter of FSWN and National Disability Insurance Agency[16] 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, noting that this is also applicable to statement of participant supports that were approved after this date too. Senior Member French stated that there are two stages and the following steps:[17]
[16] [2025] ARTA 114 (FSWN).
[17] 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.
I endorse the approach outlined in FSWN and so first considered whether TESA falls within the scope of column 1 of the Table to Schedule 2 to the Transitional Rules.
Is TESA an ‘NDIS support’?
At hearing the Respondent submitted that TESA is a fertility treatment and therefore is not an ‘NDIS support.’ In the alternative, the Respondent submitted that TESA is clinical treatment, surgical procedure or a clinical service delivered through a hospital. Further, the requested support was not expressed in a statement of participant supports before the amendments and so National Disability Insurance Agency v Deayton[18] does not assist. It was asserted that the suggested approach was consistent with the decision of Mr Keeden Waller, by his Plan Nominee and Chief Executive Officer, National Disability Insurance Agency (Practice and procedure).[19]
[18] [2025] FCA 562 (Deayton).
[19] [2025] ARTA 169 (Waller).

The Applicant’s submissions are summarised as follows.
·the Applicant is in good health and does not require TESA because of a health condition. Further, that Item 16 of Schedule 1 requires that Subitem 12(a) of Schedule 2 should be read narrowly and any clinical treatment must be necessary, caused or required as a result of the functional impact of the participant’s disability;
·subitem 12(f) should be read as a conjunction, otherwise surgical services would attract its own subitem. Therefore, any surgical services must relate to aids or equipment. It follows that this subitem is not applicable, as TESA is not a surgery related to aids or equipment;
·item 8 refers only to day-to-day reproductive costs, which TESA is not. Instead, it is a one-off cost associated with the functional impact of the Applicant’s disability;
·item 16 of Schedule 1 is not exhaustive and refers to supports that specifically assist with the direct functional impact of a participant’s disability, likening it to the ‘but for’ test. TESA is not simply reproductive treatment. It is a procedure required because the Applicant cannot father a child without the procedure;
·Waller can be distinguished on its facts, as it was concerned with supports that were specifically excluded in Schedule 2. This is not the case for TESA; and
·the Tribunal cannot be satisfied that the application has no reasonable prospects of success and should be cautious in dismissing the application on this basis: Cba Raiders Sports Club Ltd and Cmr for ACT Revenue [1999] ACTAAT 28.
I am satisfied that the Applicant and his wife want a child and that TESA is required to assist conception. I am also satisfied that TESA is properly labelled as a fertility treatment based on the journal article in evidence[20] and the case submissions provided by Spinal Life Australia.[21]
[20] C1.
[21] C2.
Application of the Transitional Rules results in a finding that TESA is not an ‘NDIS support’ by operation of item 8 of Schedule 2, and so is not a reasonable and necessary support pursuant to paragraph 34(1)(f) of the Act.
It follows that TESA cannot be included in the Applicant’s statement of participant supports.
Having determined that TESA is not an ‘NDIS support’ by operation of item 8 of Schedule 2, I am not required to consider whether TESA is not an NDIS support pursuant to subitems 12(a), (f) and (g).
For completeness, I note that the decision of Deayton does not assist me in reaching my decision. Unlike Deayton, in this case there was no decision made in the Applicant’s case to provide TESA prior to the 3 October 2024 amendments.
As already stated, a new plan came into place on 16 August 2025. The only matter in dispute is the provision of TESA; that is, there are no other dispute between the parties that require determination by this Tribunal. I have already determined that TESA is not an ‘NDIS support’ and therefore cannot be funded under a statement of participant supports by operation of paragraph 34(1)(f) of the Act.
Should the application be dismissed?
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:[22]
·it requires attention to the real, as opposed to ‘fanciful’ prospects;[23]
·a Court (or this Tribunal) is required to make a practical judgement about whether there is more than a ‘fanciful’ prospect of success;[24]
·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;[25]
·the Court (and Tribunal) retains a discretion whether to dismiss or refer to trial, though this must be exercised judicially;[26] and
·the power must not be exercised lightly.[27]
[22] At [5] as per Griffiths J.
[23] White Industries Ltd v Commissioner of Taxation (2007) 160 FCR 298 at [59] as per Lindgren J.
[24] Spencer v Commonwealth [2010] HCA 28 at [25] as per French CJ and Gummow J.
[25] Boston Commercial Services Pty Ltd v G E Capital Finance Australasia Pty Ltd [2006] FCA 1352 at [43]-[44] as per Rares J
[26] Australian Securities and Investments Commission v Cassimatis [2013] FCA 641 at [50] as per Reeves J.
[27] 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 must also be guided by the object of the Administrative Review Tribunal Act 2024, which relevantly states at subsection 9(b) that the Tribunal must ensure that applications are resolved as quickly as proper consideration permits.
I am satisfied that apart from the funding sought by the Applicant in respect of TESA procedure there are no issues in dispute between the parties.
I am also satisfied that there is no prospect of success. I have already determined that TESA is not reasonable and necessary support pursuant to subsection 34(1) of the Act and so cannot be funded under a statement of supports.
If an application can provide no purpose for the Applicant, the Tribunal’s time and resources should not be used: Taylor and National Disability Insurance Agency.[28] It follows that there is no utility in the Applicant proceeding with the application, as no other more favourable outcome is available to him. This approach is consistent with that taken in the matter of Waller.
[28] [2021] AATA 1042 at [21].
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: 26 August 2025

Applicant: By his wife

Solicitors for the Respondent: Mr Jack Watts, Maddocks Lawyers

Date(s) of hearing:	26 August 2025
Applicant:	By his wife
Solicitors for the Respondent:	Mr Jack Watts, Maddocks Lawyers