LFKZ and National Disability Insurance Agency (Practice and procedure)
[2025] ARTA 558
•13 May 2025
LFKZ and National Disability Insurance Agency (Practice and procedure) [2025] ARTA 558 (13 May 2025)
Applicant/s: LFKZ by her mother
Respondent: National Disability Insurance Agency
Tribunal Number: 2025/2230
Tribunal:General Member J Papalia
Place:Perth
Date:13 May 2025
Date of written reasons: 13 May 2025
Decision:1. The application for an extension of time dated 12 March 2025 is dismissed.
2. The review application dated 12 March 2025 be amended to seek review of a decision taken to have been made by the Respondent on 7 May 2025 and is taken to have been lodged on 9 May 2025.
Statement made on 13 May 2025 at 9:26am
........................................................................
General Member J Papalia
Catchwords
PRACTICE AND PROCEDURE – National Disability Insurance Scheme – Review of participant supports – Extension of time – Inconsistent decisions – Deemed reviewable decision – Extension refused – Application amended.
Legislation
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024
National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024
Cases
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Re Quinn and Australian Postal Corporation (1992) 15 AAR 519
Statement of Reasons
The Applicant is a 6-year-old participant of the National Disability Insurance Scheme (NDIS). She has a rare genetic disorder called Rubinstein-Taybi Syndrome (RTS) and lives with her parents and twin sister in a beachside suburb of northern Sydney. The Applicant is represented by her parents and a disability advocate, Mr Hampton, who commenced to act for the family in this proceeding on or about 8 April 2025.
By application dated 12 March 2025, the Applicant initially sought an extension of time in which to seek review of a decision made by a delegate of the Chief Executive Officer of the Respondent (the Respondent) dated 8 March 2024 and concerning her statement of participant supports made under Part 2 of Chapter 3 of the NDIS Act. This 2024 plan ceased to be in effect when it was replaced by another plan on 6 February 2025.[1] For that reason, the extension of time sought is futile and should be refused.
[1] National Disability Insurance Scheme Act 2013 (NDIS Act), ss 37(3)(a), 37(4).
However, that is not the end of the matter. After reviewing the material provided to the Tribunal on 9 May 2025 and hearing from the parties, the Tribunal is satisfied that there is a reviewable decision to which the Applicant seeks review and which does not require an extension of time. It made orders amending the originating application for review accordingly.
BACKGROUND
The family home in Sydney is inappropriate for the Applicant’s needs because it includes 4 external staircases to access the street level. The Tribunal was provided with a letter dated 9 April 2025 and authored by the Applicant’s treating paediatrician, Dr Claire Egbers. This letter notes the Applicant’s present condition and refers to a fall by the Applicant and her mother in late March, when they were ascending the stairs. Dr Egbers opines that the present home environment poses an ‘extreme risk both to [the Applicant’s] safety and wellbeing and to those of her carers.’
The gist of the Applicant’s complaint is that the 2024 decision included partial funding for relocation costs associated with the family’s proposed move from New South Wales to Queensland. This approval arose in circumstances where funding had previously been sought for home modifications, but relocation was thought to be more cost-effective. The approval appeared to include funding for:
(a)stamp/transfer duty for the sale of the current family home;
(b)real estate fees for the sale;
(c)removalist costs;
(d)marketing fees for the sale; and
(e)fees associated with conveyancing, including building and pest inspections and bank fees.
It was also premised on updated costings to be approved by the Respondent at a later date.
The delegate for the 2025 decision relevantly declined to approve funding in the replacement plan for the above relocation costs because they were no longer considered to be ’NDIS supports’ within the meaning of s 10(4) of the NDIS Act by reason of r 5(2) of the National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (NDIS Transitional Rules 2024).[2]
[2] Read with Sch 2, items 1(a), 1(b), 2(h), 19(a) and 19(j).
The Respondent, who is represented by Mesdames Clancy and Kuruc (in-house legal services), opposed the extension of time and contended that the Tribunal did not have jurisdiction to review the 2025 decision.
The matter was listed for an interlocutory hearing before me on 9 May 2025 by telephone. The Applicant’s advocate, the Applicant’s parents, and Ms Clancy attended the interlocutory hearing, and each made submissions.
The Tribunal was provided with the following documents:
(a)the application for review dated 12 March 2025;
(b)the Respondent’s submissions opposing the extension of time and jurisdiction dated 7 April 2025;
(c)the 8 March 2024 plan decision, which was made by an internal reviewer;
(d)the 6 February 2025 plan decision, which was made by a primary decision-maker;
(e)the internal review application dated 2 May 2025 (with Annexures A to T);
(f)a list of requests made to the Respondent to review and re-instate the March 2024 decision; and
(g)a letter from Emma Cotterill, Complaints Branch of the Respondent, dated 14 April 2025.
LEGAL PRINCIPLES
This Tribunal replaced the Administrative Appeals Tribunal (AAT) on 14 October 2024. At all material times, either the AAT or this Tribunal have had jurisdiction to review decisions made on internal review by officers of the Respondent regarding a decision to approve a statement of participant supports.[3]
[3] See NDIS Act, ss 99, 100, 103.
Subject to the 28-day time limit in s 29(2) of the Administrative Appeals Tribunal Act 1975 (AAT Act), the Applicant could have sought review of the 8 March 2024 decision before the AAT. This section is in relevantly identical terms to s 19 of the Administrative Review Tribunal Act 2024 (ART Act).
Schedule 16, Item 20 of the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 provides that:
(1) This item applies if, immediately before the transition time, a person was entitled to make an application to the AAT.
(2) The person may make the application to the ART:
(a) as if the [law of the Commonwealth as in force from time to time before 14 October 2024] continued to apply in relation to the time for making the application; but
(b) otherwise--in accordance with the [law of the Commonwealth as in force from time to time after 14 October 2024].
(3) The ART must deal with the application in a manner that the ART considers is efficient and fair.
(4) For the purposes of subitem (3), the ART must have regard to the impact of the following in relation to the application:
(a) the repeal of the [AAT Act];
(b) the enactment of the [ART Act];
(c) the effect (including the operation) of this Act.
(5) The ART must, as far as possible, deal with the application under the new law.
(6) To avoid doubt, subitem (5) has effect subject to subitem (3).
The Applicant therefore requires an 11-month extension of time in respect of the 2024 decision. The Tribunal’s discretion to extend time is unfettered except for the Tribunal’s satisfaction that an order extending time ‘is reasonable in all of the circumstances’.[4] Other than the requirement for ‘reason’,[5] there are no mandatory relevant considerations, save that the Tribunal must pursue its objectives found in s 9 of the ART Act.
[4] See Comcare v Grimes (1994) 50 FCR 60; (1994) 33 ALD 548, 555.
[5] See Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332.
In the absence of mandatory considerations, the Tribunal is guided by the well-established principles guiding equivalent decisions made by the courts under other legislation stated by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349.[6] These common factors include:
(a)the length of the delay;
(b)whether the respondent (or any third parties) would suffer any prejudice due to the delay;
(c)whether the explanation for the delay is adequate; and
(d)whether the proposed substantive application has merit.
[6] See Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 276 CLR 579, [13], [40].
Insofar as the 6 February 2025 decision is concerned, this decision is internally reviewable by the Respondent under ss 99 and 100(2) of the NDIS Act within 3 months of notification.
An internal review request may be made in writing or by an oral request.[7]
[7] NDIS Act, s 100(3).
If internal review is sought, a decision must generally be made within 90 days from when the review application is made.[8]
[8] NDIS Act, s 100(6A)(b)(i). There are no rules prescribed for the purposes of s 100(6A)(a).
Section 16 of the ART Act provides that where another enactment provides for a quantified period within which a person is required or permitted to make a reviewable decision and the person does not make that decision within the period, then they are taken to have made a reviewable decision.
An application to the Tribunal may be made in writing or in any other manner specified in the Tribunal’s practice directions.[9] For NDIS applications, this includes telephoning the Registry.[10]
[9] ART Act, s 34(1).
[10] Administrative Review Tribunal (Common Procedures) Practice Direction 2024, [3.6].
CONSIDERATION
The Tribunal heard from the Applicant’s parents about the Applicant’s complex needs and the long-standing attempts made to obtain the disputed supports. There were concerns raised about the Respondent’s failure to grapple with the matter in a timely manner and it was put that the Applicant was being put at risk by remaining in the family home without modification (which could take another 2 years to obtain the necessary approvals and for works to be undertaken).
The Applicant argues that the 2025 decision retracted a previous funding decision and is therefore related to the 2024 reviewable decision. As such, the Applicant argues that the 2025 decision is also reviewable by the Tribunal.
The Tribunal does not agree. The real argument was that the 2025 decision was inconsistent with the 2024 decision. This inconsistency is explained by the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 and associated rules, which commenced on 3 October 2024.
The partial relocation funding approved in March 2024 could fairly be said to fall foul of the Amendments to the extent that they apply to any new plan decision made in 2025.[11]
[11] Cf. National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024, r 6(2)(a).
The NDIS Transitional Rules 2024 relevantly provide at Schedule 2 thereto that:
The following table sets out supports that are not NDIS supports for:
(a) a participant (unless a replacement support determination covering the support is in force for the participant)…
Supports that generally are not NDIS supports Column 1 Column 2 Item Category Supports 1 Day‑to‑day living costs—accommodation and household The following:
(a) rent, rental bonds, home and property deposits, stamp duty, mortgage repayments, and strata fees;
(b) purchase of land, or house and land packages;
…
2 Day‑to‑day living costs—finance and payments The following:
…
(h) legal costs;
…
(l) debts, liabilities, loan repayments, buy now pay later payments, and taxes.
…
19 Housing and community infrastructure The following:
(a) direct costs of compliance with a person’s tenancy agreement, including bond, pest control, exit cleaning and general damage repairs;
…
(j) housing subsidies, including rental bonds, mortgage relief and assistance with buying a home;
The two decisions, though about the same subject matter, are separate:
(a)The 2024 decision was a decision on internal review which is reviewable by the Tribunal under s 103 of the NDIS Act (subject to time limits).
(b)The 2025 decision is a primary decision which is subject to internal review under s 99 of the NDIS Act.
The Applicant is effectively seeking for the more favourable pre-amendment decision to be re-instated.
Section 37 of the NDIS Act makes plain that the previous plan ceased to be in effect when it was replaced by the 2025 plan. As submitted by the Respondent, there would be no utility in granting an extension of time to apply for review of the 2024 decision when it has been entirely superseded by the 2025 decision and this inconsistency argument can be considered as part of the second review.
Regarding the inconsistency argument, the Tribunal notes that the AAT previously held that:
…estoppel does not apply where there is a different decision, a clear legislative intent, the reconsideration decision is not “final” and there has been prima facie a change in circumstances.[12]
[12] Re Quinn and Australian Postal Corporation (1992) 15 AAR 519 at 526.
The Applicant also argued that the 2025 decision was reviewable by the Tribunal because the Respondent had failed to comply with the statutory timeframes for internal review.
At the hearing on 9 May 2025, Mr Hampton referred the Tribunal to s 48(3) of the NDIS Act, which requires the Respondent to re-assess a participant’s plan within 21 days of a request to do so. This submission was flawed in the circumstances where the 2024 plan had been replaced by the 2025 decision, and where the argued failure to conduct such re-assessment of the 2025 plan would then be amenable to further internal review under s 99(1) item 6C of the NDIS Act (rather than external review before this Tribunal in accordance with the rights conferred by s 103). The correct timeframe is 90 days (as indicated at [17]).
The Tribunal was provided with a chronology demonstrating the dates and reference numbers upon which the Applicant had sought review of the 2025 decision. This chronology includes a ‘complaint’ made on the same day (6 February 2025) and multiple complaints made thereafter, including to the responsible Minister. The Tribunal was also provided with a formal internal review request dated 2 May 2025.
At the hearing, Ms Clancy indicated that she would endeavour to internally expedite an outcome on the internal review request. She maintained the submission that the 2025 decision was not reviewable by the Tribunal.
Accepting that the Applicant made a request for the 2025 decision to be reviewed under s 100(2) of the NDIS Act on 6 February 2025 (the same day that the decision was made), the Tribunal notes that the 90-day timeframe set by s 100(6A) of the NDIS Act would have expired on or about 7 May 2025.
In accordance with s 16 of the ART Act, the Respondent would therefore be taken to have decided to confirm the original decision. That deemed decision is reviewable by the Tribunal, and the Tribunal accepted the Applicant’s oral application on 9 May 2025 to amend her application to review the 2025 decision instead.
Noting the concerns raised by the Applicant’s parents and Dr Egbers (referred to at [4]), the matter ought to be programmed with expedition.
CONCLUSON
The extension of time is not reasonable and shall be dismissed. The Tribunal otherwise amends the application to seek review of the deemed decision taken to have been made by the Respondent on or about 7 May 2025 regarding the Applicant’s plan dated 6 February 2025.
I certify that the preceding 36 (thirty-six) paragraphs are a true copy of the reasons for the decision herein of General Member Papalia
..........[SGD]..............................................................
Associate
Dated: 13 May 2025
Date of hearing: 9 May 2025 Applicant: Mr M Hampton, Synapse Australia Ltd Respondent: Ms B Clancy, NDIA Legal Services
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