Koltounov and National Disability Insurance Agency (NDIS)
[2025] ARTA 1801
•16 September 2025
Koltounov and National Disability Insurance Agency (NDIS) [2025] ARTA 1801 (16 September 2025)
Applicant/s: Igor Koltounov
Respondent: National Disability Insurance Agency
Tribunal Number: 2024/5007
Tribunal:General Member S Gooch
Place: Adelaide
Date:16 September 2025
Decision:
Pursuant to s105(b) of the Administrative Review Tribunal Act 2024, the decision of the Agency dated 9 July 2024 is varied to include a determination that:
a. Management of the funding in Mr Koltounov’s plan should be managed by a registered plan management provider.
b. Ms Sidneva must not be engaged to provide paid support work for Mr Koltounov.
...............[SGND]...............
General Member S Gooch
Catchwords
National Disability Insurance Scheme – reviewable decision of CEO – Statement of Participant Supports – plan management – request for plan management – reasons for Agency management – use of family as paid support workers – jurisdiction of the Tribunal – consideration of exceptional circumstances and risks – decision varied
Legislation
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) Schedule 16, item 24.
Administrative Review Tribunal Act 2024, s12
National Disability Insurance Scheme Act 2013 (Cth), ss 3, 4, 10, 24, 25, 33, 34, 35, 42, 43, 44, 46, 182
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 Item 129 of Schedule 1
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth); rr 3.4, 5.1
National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 Schedules 1 & 2
The National Disability Insurance Scheme (Management of Funding) Rules 2024 rr 5, 6
Cases
Anassis and National Disability Insurance Agency [2022] AATA 622
Brandon Trapezanidis by his Nominee George Trapezanidis and CEO, National Disability Insurance Agency [2025] ARTA 1674
Drake and Minister for Immigration and Ethnic Affairs (No. 2) 1979 2 ALD 634
Romina Scaramella by her plan nominee, Rosanne Saramella and NDIA [2025] ARTA 870
YHCQ and National Disability Insurance Agency [2025] ARTA 267
Secondary Materials
NDIS Operational Guidelines – Principles we follow to create your plan dated 7 April 2025
NDIS Operational Guidelines – Creating your Plan dated 23 June 2025
NDIS Operational Guidelines – Including Specific Types of Supports in Plans – Sustaining Informal Supports dated 2 December 2024
Reasons for Decision
This is a review of a decision of the CEO of the National Disability Insurance Agency (‘the Agency’) to approve a statement of participant supports (plan) for Mr Koltounov. The original decision was made on 19 April 2024 and included a decision to change management of the plan from plan-managed to Agency-managed.
Mr Koltounov requested an internal review of this decision within time[1], specifically seeking a change back to plan-management. He argued he found it difficult to locate registered providers in his area.
[1] Section 100(2) of the NDIS Act 2013
On 9 July 2024 a different delegate of the CEO affirmed the original decision (the decision under review).
On 17 July 2024 Mr Koltounov applied to the Administrative Appeals Tribunal (the AAT) for review of this decision.
From 14 October 2024 the AAT became the Administrative Review Tribunal (‘the Tribunal’). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be applications for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.[2]
[2] Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) Schedule 16, item 24
The Tribunal is informed that Mr Koltounov seeks a determination which results in:
a. A change to the management of his plan from Agency-managed to plan-managed; and
b. a determination that his wife, Ms Marina Sidneva, may work and be paid as one of his support workers.[3]
[3] Page 1 of A1 of Exhibit 1
The Agency opposed these requests.
ISSUES
The issues before the Tribunal include:
a. how the funding in Mr Koltounov’s plan ought to be managed: and
b. whether it is appropriate that Ms Sidneva receive NDIS funds for provision of support to Mr Koltounov for daily activities or community support.
BACKGROUND
Mr Koltounov is a 59 year old man living in Colac, Victoria, with his wife, Marina Sidneva. Mr Koltounov is of Russian and Jewish heritage and this heritage is very important to him. He is an active member of the Jewish and Russian communities in Melbourne.[4]
[4] Page 3 of A1 in Exhibit 1
10.Mr Koltounov was granted access to the National Disability Insurance Scheme (the Scheme) in 2018 on the basis of impairments attributable to post-traumatic stress disorder (PTSD). This condition can result in panic attacks during which Mr Koltounov has difficulty with cognition, function and communication, particularly in English which is not his first language.[5]
[5] Page 3 of A1 in Exhibit 1; p228 Exhibit 1
11.On 21 October 2021 it was determined Mr Koltounov also met access requirements on the basis of a sensory impairment attributable to hearing loss.
12.Mr Koltounov’s wife migrated to Australia in 2022. She was granted a permanent resident visa on 3 October 2024 and is not yet eligible for jobseeker or carer payments. She has not yet been able to find employment. To date the couple have been surviving on Mr Koltounov’s single pension payment.[6]
[6] Oral evidence of Mr Koltounov and Ms Sidneva.
13.In June 2023 the Agency changed management of Mr Koltounov’s plan to Agency-managed after it was discovered Ms Sidneva had been receiving plan funds for providing support to Mr Koltounov. This is a circumstance that is generally only accepted in ‘exceptional circumstances’,[7] none of which the Agency thought had been established in Mr Koltounov’s case.
[7] NDIS Operational Guidelines – Including Specific Types of Supports in Plans – Sustaining Informal Supports
14.Section 33(6) of the National Disability Insurance Scheme Act 2013 provides that to the extent funding for supports under a participant’s plan is managed by the Agency, supports may only be provided by NDIS providers who are formally registered with the Agency.
15.Ms Sidneva is not a registered NDIS provider and is therefore barred from receiving any NDIS funds from Mr Koltounov’s plan as a support worker while his plan remains Agency-managed.
16.A video hearing was held on 28 and 29 July 2025. The Tribunal was assisted throughout by a certified Russian interpreter.
17.The Agency was represented by Ms Clancy of Counsel instructed by Maddocks Lawyers. Mr Koltounov represented himself.
18.The following people appeared and gave evidence under affirmation:
a. Mr Koltounov;
b. Ms Sidneva;
c. Mr Joshua Murray, Support Co-ordinator.
19.The Tribunal has considered documents in the Joint Tender Bundle (which included the T-documents) and for reference marked the bundle Exhibit 1.
20.For the reasons set out below the Tribunal varies the decision under review.
THE LEGISLATIVE FRAMEWORK
21.The relevant legislation governing the administration of the Scheme is the National Disability Insurance Scheme Act 2013 (the NDIS Act).
22.Chapter 1, Part 2 of the NDIS Act sets out the Act’s objects and the principles to be applied when undertaking actions under the Act. The objects describe aspirations aimed at supporting the independence, choice and control and social and economic participation of people with disability. The provision of reasonable and necessary supports will be directed at achieving these objects for participants of the Scheme.[8]
[8] Section 3 of the NDIS Act
23.The principles stress the rights of people with a disability to dignity, to participation and contribution to social and economic life and to the capacity to realise their potential in pursuit of their goals.[9]
[9] Section 4 of the NDIS Act
24.Both the objects and the principles state that in giving effect to the objects of the Act, or in exercising powers under the Act, regard is to be had to the need to ensure the financial sustainability of the Scheme.[10]
[10] Section 3(3)(b) and 4(17) of the NDIS Act.
25.Access issues are dealt with in Chapter 3, Part 1 of the NDIS Act. These provisions set out the criteria an applicant must meet (under either the disability requirements or under the early intervention requirements) in order to become a participant in the Scheme.
26.Part 2 of Division 2 of Chapter 3 sets out matters in relation to the development and administration of participants’ plans. Generally, a participant’s plan must include (among other things):
a. a statement of participant goals and aspirations which they have prepared;[11] and
b. a statement of participant supports which includes the general supports that may be provided, and the reasonable and necessary supports that will be funded under the Scheme;[12] and
c. a statement that specifies how funding for the supports under the plan will be managed.[13]
[11] Section 33(1) of the NDIS Act
[12] Section 33(2) of the NDIS Act
[13] Section 33(2)(d) of the NDIS Act
27.Section 33(5) provides a list of all the factors the CEO must consider when deciding whether or not to approve a statement of participant supports. These are:
a. the participant’s statement of goals and aspirations;
b. relevant assessments conducted in relation to the participant;
c. being satisfied in relation to all the criteria set out in section 34;
d. having regard to the NDIS Rules made for the purpose of section 35 of the Act;
e. having regard to the principle the participant should manage his or her plan to the extent they wish;
f. having regard to the operation and effectiveness of any previous plan of the participant; and
g. having regard to whether section 46 (acquittal of NDIS amounts) was complied with in relation to any previous plan for the participant.
The National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 (the Amending Act) made significant changes to the NDIS Act. This Act commenced on 3 October 2024.
29.Item 129 of Schedule 1 of the Amending Act provides that sections 33, 34 and 35 as amended (all of which deal with the development of participant plans) apply to any old framework plans which are approved or varied on or after the Amending Act’s commencement. Mr Koltounov’s plan is an ‘old framework’ plan for the purposes of the Act.
30.The Tribunal accepts that the practical effect of any variation to a plan ordered by the Tribunal as a result of this review, will result in a variation to the plan which takes place after the commencement of the Amending Act. As a result, the Tribunal accepts the amendments made to the NDIS Act apply to this review.
31.As this dispute does not involve a review of specific support categories, it is not necessary for the Tribunal to consider the remainder of division 2 of Chapter 3 of the NDIS Act.
32.Division 3 of Chapter 3 sets out the provisions which address the management of funding for supports under participants’ plans.
33.Management of funding for supports is said to include purchasing the supports funded under the plan (including indirect costs) and receiving funding, managing funding and acquitting any funding provided by the Agency.[14]
[14] Section 42 of the NDIS Act.
34.Section 42(2) provides that when specifying how funding is to be managed for the purpose of a participant’s plan, the plan must specify that such funding is to be managed wholly, or to a specified extent by:
a. the participant; or
b. a registered plan management provider; or
c. the Agency; or
d. the plan nominee.
35.Section 43 of the NDIS Act provides that a participant may make a request in relation to any preference they have for management of their plan funding. The starting point for consideration of such a request is that it must be granted unless:
a. to grant the request would constitute an unreasonable risk to the participant;[15] or
b. the CEO is satisfied that funds would not be spent in accordance with the participant plan.[16]
[15] Sections 43, 44 and 46 of the NDIS Act
[16] Section 43, 44 and 46 of the NDIS Act.
36.Section 46 provides that NDIS funds may only be spent on NDIS supports for the participant for whom the funds have been allocated and may only be spent in accordance with the participant’s plan.[17]
[17] Section 46 (1) of the NDIS Act
37.If NDIS funds are spent in a manner which does not comply with section 46 of the NDIS Act, the amount so spent is a debt owed by the person or the service provider to the Agency.[18] There is therefore a risk to the participant or their service provider in the Agency allowing plan management that may not be sound.
[18] Section 182 of the NDIS Act
38.The National Disability Insurance Scheme (Management of Funding) Rules 2024 (the Funding Rules) set out the considerations relevant to the CEO’s decisions about management of plan funding. These rules note that in considering whether section 46 of the Act is unlikely to be complied with if a particular management type were in place, the decision maker must have regard to:
a. the history of compliance with section 46 under that management type;
b. the history of compliance with requests for information or documentation;
c. whether there was conduct involving fraud, mismanagement or misapplication of funds;
d. whether there has been exploitation or undue influence;
e. ability or capacity to make decisions or manage funds appropriately;
f. any matters raised by the manager or the participant; and
g. any other matters the CEO considers relevant.
39.In considering whether there is unreasonable risk to a participant from a requested funding management type, the CEO is to have regard to:
a. Whether there are strategies or supports that could mitigate the risk;
b. Whether there were previous mitigation strategies applied;
c. The nature of the supports to which the plan management request relates;
d. Whether and to what extent the participant is at risk of physical, mental or financial harm or exploitation;
e. The participant’s ability to make decisions appropriately;
f. Whether there are any court or tribunal orders in relation to administration of the participant’s estate;
g. Any other matters raised by the participant or which the CEO thinks relevant.
40.These rules reflect the starting point that a participant’s request should be granted unless there are cogent reasons not to.
41.The Agency also publishes operational guidelines to assist in the administration of the NDIS Act. The Guidelines are policy documents without legislative force and the Tribunal is not bound by them. However, it is generally held they should be applied where there is no conflict with the terms of the Act.[19]
[19] Re Drake and Ministrer for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634
42.The relevant operational guidelines in this matter are:
a. NDIS Operational Guidelines – Principles we follow to create your plan (Plan Principles Guidelines) dated 7 April 2025
b. NDIS Operational Guidelines – Creating your Plan (Creating Your Plan Guidelines) dated 23 June 2025
c. NDIS Operational Guidelines – Including Specific Types of Supports in Plans – Sustaining Informal Supports (Informal Supports Guidelines)
43.I have considered each of these guidelines and their relevance to this matter:
a. The Plan Principles Guidelines discuss the concept of ‘NDIS supports’ which was introduced by the Amending Act. NDIS supports are the only supports that may be funded by the Agency. Transitional Rules have been made by the Minister which set out a list of supports that may generally be funded by the NDIS and another list which identify supports which are generally not funded by the NDIS.[20] The Plan Principles Guidelines note that ‘NDIS supports’ are intended to complement, not replace, other supports that are already available to a participant. These other supports include informal supports provided by family or community and other mainstream government services.[21]
b. The Creating Your Plan Guidelines makes the same observation about NDIS funding not replacing informal supports where they are working well for the participant.[22] This is in line with the need for decision makers to consider the financial viability of the Scheme when taking actions under the Act. This Guideline also considers the risks to family or friends (both physically and in terms of harm to the relationship) in providing care to participants.[23] Finally this Guideline discusses the options available in relation to plan management.[24]
c. The Informal Supports Guidelines specifically addresses the question of whether family members ought to be funded to provide supports to a participant. It notes concerns about overtaxing informal supports in requiring those persons to be carers too. It discusses the risks to the maintenance of ordinary family relationships in family members occupying the role of paid supports. The Guideline notes that generally the Agency will only fund family members as support workers in ‘exceptional circumstances’. Examples of such circumstances may be where:
a. there is a risk of harm or neglect to the participant.
b.there are religious or cultural reasons for funding a family member to provide supports; or
c.the participant has strong person views, for example in relation to their privacy or dignity.
[20] National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 Schedule 1 & 2
[21] NDIS Operational Guidelines – Principles we follow to create your plan dated 7 April 2025 at page 1.
[22] NDIS Operational Guidelines – Creating your Plan dated 23 June 2025 at pages 1, 3, 4, 9, 10
[23] Ibid at page 7
[24] Ibid pages 17 to 30
The Guideline notes the Agency will not fund a family member to provide personal care or community access supports unless all other options to identify a suitable provider of supports have been exhausted.[25]
[25] NDIS Operational Guidelines – Including Specific Types of Supports in Plans – Sustaining Informal Supports dated 2 December 2024
44.With reference to the parts of the NDIS Act set out below I consider that these guidelines are not in conflict with the terms of the Act, and that the Tribunal ought to have regard to them.
45.In relation to the caution to be exercised in paying family members for supports I refer to:
a. Section 31 of the NDIS Act which sets out principles relating to plans and which emphasises the need to recognise the relationship between the participant and their families, to strengthen and build the capacity of families to support a participant, and to consider the availability to the participant of informal support and other support services generally available to any person in the community.
b. Section 33 which requires (among other things) that in developing a participant’s plan a participant’s statement of goals and aspirations is to take account of the informal and community supports already available to them; and
c. Section 34(1)(e) which requires the CEO (in considering whether to fund particular supports) to take account of what it is reasonable to expect families, carers, informal networks and the community to provide.
46.With respect to plan management and determining the appropriate form for any participant, I consider sections 43, 44 and 46 reflect those sections of the guidelines.
The Agency’s position
The funding of Ms Sidneva
47.The Agency’s position was that, in line with the Informal Supports Guideline, it was inappropriate for Ms Sidneva, as the participant’s wife, to be funded to provide support to Mr Koltounov.
48.It was their submission that the Informal Supports Guideline was not in conflict with the Act and so should be applied by the Tribunal. In that case the Tribunal should not be satisfied that ‘exceptional circumstances’ exist in this situation to justify a departure from the general position that informal supports, such as a wife, would not be funded to provide supports to a participant.
49.Although the Agency acknowledges Mr Koltounov’s preference for a Russian speaking support worker with an understanding of Jewish culture, they argue this is not sufficient to come under the description of ‘exceptional circumstances’. In their view Mr Koltounov has demonstrated an ability to utilise other support workers and services effectively and there is no reason why he will not continue to be able to do so.
50.The Agency contends that to date the participant has not provided the Agency or the Tribunal with cogent evidence of any circumstance which means he is unable to be supported by anyone other than his wife, or that there is a risk of harm to him if she is not able to be his support worker.
51.Further, the Agency submits that there is insufficient evidence before the Tribunal to support a finding that all other options to find suitable support workers have been exhausted (as required by the guideline).
52.The Agency also argues that in the ordinary course of a marital relationship it would be reasonable to expect that Ms Sidneva would accompany her husband to various religious celebrations, medical appointments and community events, simply as a result of being his partner. The informal support provided to Mr Koltounov in this way would appropriately be an incident of their relationship and something it is not contemplated the Scheme would fund.
53.A decision maker is obliged to have regard to the financial viability of the Scheme as a whole[26] and to consider that the Scheme is not intended to replace informal supports, but to complement them.[27]
[26] Section 3(3)(b) and 4(17) of the NDIS Act
[27] Plan Principles Guidelines; Creating Your Plan Guidelines
54.The Agency also expressed concerns that Ms Sidneva’s capacity to find employment and friendships on her own behalf would be hindered by the need to provide support services to Mr Koltounov. There is a risk that ongoing caring obligations may have a detrimental impact on the couple’s relationship, by not preserving separation between the role of wife and that of paid carer.
The plan management issue
55.The Agency submitted that when it came to their attention that Mr Koltounov had previously utilised his funds to pay for Ms Sidneva’s assistance (in the amount of $26,665) and also to pay an amount to himself, they were very concerned. This practice did not reflect the proper disbursement of funds in accordance with Mr Koltounov’s plan and the Act[28]. The Agency was concerned that without Agency- management Mr Koltounov may be able to continue to persuade a plan manager or support co-ordinator to improperly expend funds on Ms Sidneva. For this reason the Agency made the decision to alter management of funding to Agency-management.[29]
[28] As required by s46 of the NDIS Act
[29] Page 6 of A1 of Exhibit 1
56.With Mr Koltounov’s plan being Agency-managed, only registered providers could be used,[30] effectively barring Ms Sidneva from that role.
[30] Per section 33(6) of the NDIS Act
57.The Agency came to the hearing maintaining the position that Agency-management needed to continue. However, as the hearing progressed, and having heard evidence from Mr Koltounov’s new support co-ordinator, Mr Joshua Murray, the Agency altered its position on plan management. The factors that altered the Agency’s views included:
a. Mr Murray detailing his strategies for managing the risks of inappropriate funding requests from Mr Koltounov; and
b. The difficulties Mr Murray confirmed, in locating registered providers in the Colac area. Mr Murray gave evidence that it would be a lot easier for him to find appropriate and available support workers (other than Ms Sidneva) if Mr Koltounov’s plan was not Agency managed.
58.At the end of the hearing the Agency submitted it was now satisfied the risks of improper use of funds had been addressed by the new support co-ordinator and that it was therefore appropriate for plan funding to be altered to plan-managed as requested by Mr Koltounov.
Mr Koltounov’s position
59.Mr Koltounov agreed that he would rather have his wife as his support person because she is a Russian speaker and she understands his particular needs in relation to his Jewish religion. He indicated that when he has a panic attack, his mind clouds over and he is unable to explain himself in English. If he is with a non-Russian speaking support worker, they may be unable to help him to deal with the situation or calm him down. Mr Koltounov states that although he is able to communicate with English speaking people by using Google translate, when he is distressed, he is unable to do this.
60.Mr Koltounov could not recall having a recent episode like this but also noted he had been relying on his wife for many outings.
61.Mr Koltounov had some specific concerns related to his Jewish faith where, for example, the requirements for cleaning are very specific. In that circumstance a non-Jewish support worker may struggle with these requirements. He recounted having support workers decline to undertake cleaning as directed. It may be that Mr Koltounov does not properly understand the limits of the supports available under the Scheme.
62.Mr Koltounov submitted that Ms Sidneva was experienced in working as a support worker as she had undertaken this role when she was in Russia. He stated she could demonstrate she had the appropriate skills.
63.Mr Koltounov also felt that a non-Jewish support worker would not understand the risks of antisemitism and be unable to properly protect Mr Koltounov when he travelled to Jewish events. Alternatively, he was worried non-Jewish support workers would not wish to work with him because of the risk from antisemitism.
64.Mr Koltounov stated he had been in contact with Jewish Care, a Melbourne based organisation, seeking support workers who could meet his needs. Unfortunately this service did not have any available staff outside the Melbourne metropolitan area. Mr Koltounov advised he had made contact with local agencies, but they could not promise him a regular support worker. Instead he had to make do with whoever happened to be available on any given day. The difficulty was increased by the fact his Agency-managed plan meant he could only use registered providers. There were few of these in the Colac area.
65.Mr Koltounov also agreed that if he had the choice he would choose to pay Ms Sidneva for support services, because without the extra money she earns that way, the couple struggle financially. He stated they had bought a car so that Ms Sidneva could drive him places (as public transport was not reliable in their area), but without payment from NDIS funds, they could not afford to run the car. This has limited his access to community and cultural experiences. Mr Koltounov argued that Ms Sidneva providing him services would be more cost effective given some of the high charges made by other services.
Ms Sidneva’s evidence
66.Ms Sidneva gave evidence that she came to Australia on a visitor’s visa, not intending to stay, but just to visit her husband. While she was here the war in Ukraine started, her accounts were frozen, and she was unable to return.
67.Ms Sidneva stayed with Mr Koltounov and in October 2024 was granted a permanent visa. She has not been eligible for any Centrelink payment. The couple survive on Mr Koltounov’s single disability support pension, help from community organisations and by growing their own vegetables.
68.Ms Sidneva noted that Mr Koltounov is sometimes a risk to himself. She gave an example of a time when he left the gas on while she was out. She states she is frightened to leave him alone for long. This fear itself hinders her from finding paid work.
69.Ms Sidneva has considered going back to Russia (asking relatives to pay for her airfare) but feels this would be unfair to Mr Koltounov.
70.Ms Sidneva advised the couple get help from the Salvation Army and other community organisations. Ms Sidneva completed a volunteer course with the Salvation Army and was helping there, but recently they changed the rules and she can no longer work there. She is now studying English through Box Hill TAFE.
71.Ms Sidneva confirmed that her limited English skills have impacted her success in jobseeking. Working as Mr Koltounov’s support worker seemed the perfect solution.
72.It was Ms Sidneva’s evidence to the Tribunal that she was unaware of the details of Mr Kolounov’s plan. When she arrived in Australia and then could not return home, she decided to help Mr Koltounov as best she could. She believed she asked the NDIS for permission to be Mr Koltounov’s support worker but admitted that she only understood about 10% of what was being said to her.
73.She also noted that for cleaning assistance Mr Koltounov is very particular, and some workers don’t like the way he communicates with them. She states she has a good understanding of his requirements which lowers Mr Koltounov’s stress.
74.It is her preference she be able to continue to work as a support worker for Mr Koltounov.
Evidence of Mr Josh Murray, support co-ordinator
75.Mr Murray confirmed that he currently acted in the role of support co-ordinator for Mr Koltounov and had done for about 12 months. He has a copy of Mr Koltounov’s plan and understands the services that have been funded by the NDIA.
76.Mr Murray confirmed that in the regional area in which Mr Koltounov resided there were not many services that were registered providers. In this way Mr Koltounov’s plan being Agency managed (and therefore only allowing the use of registered providers) significantly limited his access to providers. There were times that Mr Murray had been unable to arrange support workers to meet Mr Koltounov’s requests. He was aware that often, before contacting Mr Murray, Mr Koltounov will have already checked out any other avenues for support he was aware of.
77.Mr Murray agrees that there are very few local and registered avenues for culturally or religiously focussed services which were appropriate for Mr Koltounov. He also acknowledged that the language barrier is an issue for some support workers. Mr Murray did not agree that Mr Koltounov’s late timing of requests for support was always problematic (as contended by the Agency). Sometimes, even with long notice periods, Mr Murray was simply unable to locate an available registered support worker.
78.In Mr Murray’s view, by far the biggest barrier to locating appropriate support workers was the requirement for registered providers. If Mr Koltounov’s plan was plan- managed, Mr Murray was of the view this would make a huge difference to the number and type of support options Mr Koltounov could access. Mr Murray thought this would markedly increase Mr Kolounov’s options for community access and involvement.
79.Mr Murray was confident that if Mr Koltounov’s plan was changed to plan-management he could ensure that funding for Ms Sidneva would not occur outside the extreme extenuating circumstances the NDIS allows. He stated that the biggest risk mitigation for this would be the greater range of unregistered support staff available to assist Mr Koltounov. Mr Murray was of the view he was more likely to be able to find a range of support workers that Mr Koltounov could connect with and form good relationships with if he was on plan-management. Up until now Mr Koltounov has been in a position where he has had such limited options it was not surprising he saw his wife as the best option.
80.Mr Murray stated that one of the first things he would do, should plan management change, would be to advise the plan manager that no invoices issued by Ms Sidneva should be paid. This would ensure no inappropriate use of funding. If such invoices were raised, Mr Murray would discuss this with his supervisor as something the service would need to report.
CONSIDERATION
The plan-management issue
81.Identifying the form of funding management for a plan is a required component when developing a participant’s statement of participant supports for approval.[31]
[31] Section 33(2)(d) of the NDIS Act
82.Item 4 of section 99 of the NDIS Act identifies that a decision to approve a statement of participant supports in a participant’s plan (including the form of funding management) is a reviewable decision.
83.Once this decision has been internally reviewed, it becomes a decision that the Tribunal may review.[32] I am satisfied the Tribunal has jurisdiction to determine this issue.
[32] Section 103(1) of the NDIS Act
84.The evidence supports the Agency’s concerns about the potentially improper use of funding in Mr Koltounov’s plan prior to the decision under review. Specifically, they noted significant payments made to Ms Sidneva and one separate payment addressed directly to Mr Koltounov. (At hearing it was clarified this was a reimbursement of funds paid by Mr Koltounov for a support). I consider there were grounds at that time for the management of the plan to be changed to Agency managed.
85.The Agency has now conceded that Mr Koltounov’s plan management should be changed from Agency-managed back to plan-managed. They advise the concerns they previously held in relation to the risks of improper usage of funds have been addressed by the new support co-ordinator’s proposed risk management strategies.
86.Section 43(2) of the NDIS Act provides that if a participant makes a plan management request, the statement of participant supports in the plan must give effect to the request unless it is established that there are risks to the participant or to the proper usage of funds. This is a mandatory requirement. Where no exceptions exist, the decision maker (and in this case the Tribunal) is compelled to make the change requested by the participant.[33]
[33] See Anassis and National Disability Insurance Agency [2022] AATA 622 at [42] to [44]
87.Given that the Agency now accepts, as does the Tribunal, that no exceptions apply in this matter, it is appropriate that Mr Koltounov’s request for a change to plan management be approved.
88.Accordingly, by operation of section 43(1)(b) of the NDIS Act the Tribunal concludes that Mr Koltounov’s statement of participant supports and plan are to be plan-managed by a registered plan manager, to be appointed.
The use of Ms Sidneva as paid support worker
89.It is Mr Koltounov’s preference that Ms Sidneva be able to work and be paid as his support worker, providing support for personal care and community activities.
90.The Agency seeks an order that Ms Sidneva may not be a paid support worker for Mr Koltounov.
91.The first question to be addressed is whether the Tribunal has jurisdiction to make such an order.
92.The NDIS Act is beneficial legislation which recognises and seeks to promote the rights of persons with a disability to self-determination, choice and control and full participation in their community.[34] This objective is not, however, without limits.
[34] See sections 3, 4 and 31 of the NDIS Act.
93.There are many examples in the Scheme’s legislative framework, in which the participant’s preference, choice and control are determinative, subject to the Agency’s assessment of risks of harm (to that participant, their family or others) or to the integrity of the Scheme.
94.For example:
a. Section 10 of the NDIS Act provides that some supports simply will not be funded, regardless of participant preferences. Rule 5.1 of the National Disability Insurance Scheme (Supports for Participants) Ruled 2013 (Supports Rules) provides that supports will not be provided or funded under the NDIS if it is likely to cause harm (to the participant or others), is not related to a participant’s disability or relates to day-to-day living costs.[35]
b. Section 34 sets out the considerations the CEO is to take into account when determining the NDIS supports which will be funded. These require requested supports meet additional criteria, such as to be ‘NDIS supports’ (as determined by the Transitional Rules)[36], to represent value for money, to be effective and beneficial having regard to current good practice, and to be reasonable.
c. Section 43 of the NDIS Act provides for mandatory acquiescence to a participant’s preferred funding management style, unless there is a risk of harm to the participant or a risk of funding misuse. In that case the Agency may determine a funding management type that is not preferred by the participant.
[35] Supports Rules, r5.1
[36] National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (Transitional Rules)
95.Section 33(3) of the NDIS Act provides that in preparing a statement of participant supports to be approved by the CEO:
The supports that will be funded or provided under the National Disability Insurance Scheme may be specifically identified in the plan or described generally, whether by reference to a specified purpose of otherwise.
96.Section 33(7) provides that:
A participant’s plan may include additional matters, including such additional matters as are prescribed by the National Disability Insurance Scheme rules.
97.I consider these sections allow the CEO considerable discretion in identifying, describing and scaffolding decisions about supports that will be funded in a statement of participant supports. This discretion is, in my view, broad enough to extend to a determination about who may or may not provide a support, either to achieve a specified purpose, or in accordance with the Rules. Given the intent of the Scheme I suggest that such a determination would require sufficient justification to be a valid exercise, particularly where a determination is made in opposition to the participant’s wishes.
98.As any exercise of this discretion by the CEO will be undertaken in the course of approving a statement of participant supports, I consider that such an exercise forms part of an Item 4, section 99 reviewable decision. As such I consider the Tribunal has jurisdiction to determine whether such a determination should be made in relation to Ms Sidneva in this circumstance.[37]
[37] See also reasoning in Brandon Trapezanidis by his Nominee George Trapezanidis and CEO, National Disability Insurance Agency [2025] ARTA 1674 at [192] to [195]; section 103 of NDIS Act and section 12 of the ART Act.
99.Section 34(1)(e) of the NDIS Act requires that a decision maker, when considering what supports will be funded by the NDIS, should consider what it is reasonable for informal supports (including family) to provide. The Scheme does not intend to replace these reasonable informal supports, but rather to work with them.[38]
[38] The Plan Principle Guidelines; the Creating Your Plan Guidelines
I have considered the Agency’s submissions and accept that to the extent that Ms Sidneva accompanied Mr Koltounov to medical, religious and cultural celebrations that she would likely have attended anyway as his partner, it is inappropriate that NDIS funding be applied to her attendance. Those are supports it is reasonable for a partner to provide without payment, simply as a function of being a partner.
Rule 3.4 of the Support Rules sets out other considerations which must be taken into consideration when deciding whether funding or provision of an NDIS support takes proper account of what it is reasonable to expect families, carers, informal networks and the community to provide. These considerations include:
a. making an assessment of the risks to the participant’s independence arising from their reliance on family,
b. the capacity of the family members to sustain their caring role, and
c. the extent of any risks to the long-term wellbeing of the family members, including risks arising from limiting their educational (and employment) opportunities.[39]
[39] National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth), r3.4
While Rule 3.4 is intended to apply to section 34(1)(e) considerations (ie what supports it is reasonable to expect family to provide) these are matters which are also directly raised in the Informal Supports Guidelines and directly relevant to this circumstance.
I do not consider there is any evidence before the Tribunal to raise concerns about Mr Koltounov’s independence arising from his reliance on Ms Sidneva. It appears he is well able to determine and request the type of assistance he requires.
I do consider, however, that the evidence supports a finding there are risks to Ms Sidneva in occupying the primary support worker role.
I note that all of Ms Sidneva’s remaining family are overseas and she has very limited supports of her own in her local area. Her English is as yet limited, and Ms Sidneva has not yet been able to obtain employment. Ms Sidneva is currently ineligible for income support from Centrelink and depends entirely on Mr Koltounov for financial support. This puts her in an extraordinarily vulnerable position.
Although being paid to complete support work assisted with the couple’s financial situation, it also limited Ms Sidneva’s ability to strike out on her own, find her own community links and obtain her own employment. Since Mr Koltounov’s plan became Agency-managed, Ms Sidneva still attends events with him but has also commenced an English course online through Box Hill TAFE
It was also Ms Sidneva’s evidence that Mr Koltounov had extremely strict rules about some services, such as cleaning. She reports she spends an hour to an hour and a half each day, cleaning to meet his expectations. Although I consider that these are services that are beyond the scope of the Scheme in any event, I consider there are potential risks to the integrity of the relationship in having Mr Koltounov able to direct the extent of the work Ms Sidneva is to do.
The evidence of Mr Murray is that there will be many available alternative support workers for Mr Koltounov once his funding management is changed from Agency to plan-managed. Mr Murray is certain that he will be able to locate a variety of services and workers with whom Mr Koltounov will be able to develop good relationships.
This will no longer be a situation where there are no other alternatives but for Ms Sidneva to act as support worker.
Mr Koltounov has previously demonstrated an ability to manage communication with non-Russian speaking service providers and I am convinced he will continue to be able to.
I have considered other decisions in which the Tribunal has allowed family to be engaged as paid support providers. In each of those matters there were circumstances of significant impairment and specific impairment-related reasons why only the family member was able to provide support.at the time the orders were made. In each case there was also evidence of extensive efforts which had been made to locate alternative support workers, and also of a plan and an expectation that parties would transition care away from family members to professional support workers over a specified period of time.[40]
[40] YHCQ and NDIA [2025] ARTA 267; Romina Scaramella by her plan nominee, Rosanne Saramella and NDIA [2025] ARTA 870; Brandon Trapezanidis by his Nominee George Trapezanidis and NDIA [2025] ARTA 1674
To date there is no evidence before the Tribunal which suggests any specific need, impairment related or otherwise, which only Ms Sidneva may meet. I rely on the evidence of Mr Murray and am satisfied that with the change to plan-management there will be many more support worker options to suit Mr Koltounov’s needs.
With reference to the Informal Supports Guideline I consider that it is not best practice or beneficial, to either party, for Ms Sidneva to undertake the role of paid support worker for Mr Koltounov.
In the circumstance I am prepared to make this a condition to the inclusion of support for personal care and community access in Mr Koltounov’s plan.
In the event the couple feel current support arrangements are insufficient, they should provide evidence to the Agency to support a change of circumstances review.
Decision
Pursuant to s105(b) of the Administrative Review Tribunal Act 2024, the decision of the Agency dated 9 July 2024 is varied to include a determination that:
a.Management of the funding in Mr Koltounov’s plan should be managed by a registered plan management provider.
b.Ms Sidneva must not be engaged to provide paid support work for Mr Koltounov
Applicant’s representative: Self-represented
Respondent’s Counsel: Ms Clancy
Respondent’s Solicitors: Maddocks Lawyers
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