LPXH and National Disability Insurance Agency (NDIS)
[2025] ARTA 194
•11 March 2025
LPXH and National Disability Insurance Agency (NDIS) [2025] ARTA 194 (11 March 2025)
Applicant/s: LPXH
Respondent: National Disability Insurance Agency
Tribunal Number: 2023/6958
Tribunal:General Member D. Barker
Place:Sydney
Date:11 March 2025
Decision:The Tribunal affirms the decision under review.
.........................[SGD]...............................................
General Member D. Barker
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME DIVISION – statement of participant supports – Prader-Willi Syndrome - reasonable and necessary – value for money – duplication of existing supports – re-assessment date of Applicant’s plan – duration date of Applicant’s plan - maximum 12 month duration - decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (Cth)
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)Cases
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634G v Minister for Immigration and Border Protection [2018] FCA 1229
Statement of Reasons
BACKGROUND TO REVIEW
LPXH , hereafter referred to as the Applicant, is a 32-year-old participant of the National Disability Insurance Scheme (NDIS). When this application was lodged on 21 September 2023, the Applicant’s mother, on behalf of the Applicant, sought review of a decision made on 28 August 2023 under s 100 of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act), varying a decision made on 16 May 2023 under s 33(2) of the NDIS Act to approve a statement of participant supports (SOPS) forming part of the Applicant’s NDIS plan.
The Respondent in this matter is the National Disability Insurance Agency (NDIA).
The Administrative Review Tribunal (ART) was established on 14 October 2024 and replaced the former Administrative Appeals Tribunal (AAT).[1] The Applicant’s review application was not finalised before the transition to the ART. Proceedings in the AAT that were not finalised before the transition to the ART must be continued and finalised by the ART.[2] In this Statement of Reasons, the ART will hereafter be referred to as ‘the Tribunal’.
[1] Section 8 of the Administrative Review Tribunal Act 2024 (Cth) (the ART Act).
[2] Item 24, Part 5 to Schedule 16 to the Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (Cth).
The Applicant has a diagnosis of Prader-Willi Syndrome (PWS) with Mild Intellectual Disability. Since 2017 he has lived with five other residents in accommodation supported by the Scope organisation. The Applicant has regular contact with his parents, in the form of fortnightly visits to the family home and nightly phone calls with his mother.
NDIS Plan and SOPS of 16 March 2023
On 16 May 2023, a delegate of the CEO of the NDIA (CEO) approved a statement of participant supports (SOPS). The SOPS was for a duration of 12 months, from 17 May 2023 to 16 May 2024. This plan provided for the following supports:
(a)Core support budget of $318,689.45 covering:
(i)Low cost assistive technology - $500.00
(i)Supported Independent Living (SIL) - $193,143.49 for day to day living needs - shared with 2 other people that he is living with. $19,816.00 per year for irregular SIL supports.
(ii)Social Community and Civic Participation - $114,229.96
(iii)Transport - $3,567.00
(b)Capacity Building budget of $45,537.52 covering:
(i)Dietician – assessment & support - $16,639.12
(ii)Podiatrist – assessment and intervention - $1163.94
(iii)Exercise physiologist - assessment and intervention - $2671.94
(iv)Occupational and speech therapy- assessment and intervention - $11,251.42
(v)Funding for 90 hours of specialist behaviour intervention support, 30 hours of behaviour management plan and training in behaviour management strategies. - $23,891.40
(c)Support Coordination - $5,007.00
Internal review decision – 28 August 2023
On 25 August 2023, the Applicant’s mother and plan nominee made a verbal request for an internal review under s 100 of the NDIS Act to be undertaken in relation to the Applicant’s NDIS plan. The Agency document which records this contact notes that the confirmed review requests were:
(a)to have core and therapy budget partially changed from agency to self-managed.
(b)increase SIL budget to include 1:1 support during all waking hours.
(c)include 12 hours for psychology.
(d)preferred plan duration discussed - 12-month plan.
On 28 August 2023, a delegate of the CEO made an internal review decision under s 100 of the NDIS Act, varying the decision to approve the SOPS in the May 2023 NDIS Plan.
The SOPS in the internal review decision pertains to a 12-month period from 28 August 2023 to 27 August 2024. This plan provided for the following supports:
(a)Core support budget of $337,630.31 covering:
(i)Consumables - $500.00
(ii)Supported Independent Living (SIL) - $201,974.63 for day to day living needs - shared with 2 other people that he is living with. $11,389.00 per year for irregular SIL supports.
(iii)Social Community and Civic Participation - $120,298.88
(iv)Transport - $3,567.00
(b)Capacity Building budget of $46,762.72 covering:
(i)Dietician – assessment & support - $16,639.12
(ii)Podiatrist – assessment and intervention - $1163.94
(iii)Exercise physiologist - assessment and intervention - $2671.94
(iv)Occupational and speech therapy- assessment and intervention - $11,251.42
(v)Behaviour Management Plan Incl. Training in Behaviour Management Strategies – 30 hours per year. Specialist Behavioural Intervention Support – 90 hours per year. - $25,116.60
(c)Support Coordination - $5,007.00
(d)Capital – Home modifications - $11,076.74.
The delegate considered that the requested increase in the Applicant’s SIL budget so that he receives 1:1 support for all waking hours each day did not meet the ‘reasonable and necessary’ criteria under the NDIS Act as they were not ‘value for money’ or ‘effective and beneficial’.
As to the request for 12 hours of psychology support, the delegate noted that the requested support cannot be funded under the NDIS because it duplicates other supports delivered under alternative funding through the NDIS, namely funding for behavioural support intervention to assist with managing behaviours and emotions.
As to the request that the core and therapy budgets be partially changed from agency to self-managed, this plan management arrangement was reflected in the SOPS associated with the internal review decision.
Review application
On 21 September 2023, the applicant’s mother lodged an AAT Application for Review of Decision form (Application Form) with the AAT, which in summary suggests that the NDIA decision to not approve the requested increase in the SIL support is contrary to a professional assessment undertaken by a qualified occupational therapist at the applicant’s place of accommodation which was submitted as evidence in support of the request.
In relation to the requested psychology support, the Applicant’s mother indicated that this support is not a duplication of other supports as the agency fails to acknowledge that psychology and behaviour support are two different services which assist the applicant to reach goals and maintain supports in different ways.
Changes to the statement of participant supports since the review application
The NDIS Plan and SOPS of 19 September 2024
A further NDIS Plan and SOPS was implemented during the period that this matter has been under review. The SOPS in this plan pertains to a 12-month period from 19 September 2024 to 19 September 2025. This plan provided for the following supports:
(a)Core support budget of $383,152.44 covering:
(i)Consumables - $500.04
(ii)Home and Living - SIL - $259,895.76 for regular SIL supports to live independently at home. SIL includes help or supervision with daily tasks, like personal care or cooking meals. $11,758.82 for irregular SIL supports to help with unexpected or unplanned situations.
(iii)Assistance with Social, Economic and Community Participation - $122,756.64
(b)Capacity Building budget of $54,880.32 covering:
(i)Improved Daily Living Skills - Support for an occupational therapist, speech pathologist, dietitian, exercise physiologist and podiatrist to assess and provide strategies to increase daily living skills. Disability-related health supports from a clinical nurse consultant. - $23,114.52
(ii)Behaviour Management Plan Incl. Training in Behaviour Management Strategies – 30 hours per year. Specialist Behavioural Intervention Support – 90 hours per year. - $26,758.80
(c)Support Coordination - $5,007.00
(d)Capital – Home modifications - Specialist Disability Accommodation (SDA) $13,704.00
(e)Transport - $3,567.00
On 1 October 2024, the Applicant’s representative contacted the AAT requesting that a directions hearing be listed as the parties were close to a resolution which would forgo the need for the hearing listed for 10 and 11 October 2024. The AAT listed a Case Management Direction Hearing (CMTDH) on 3 October 2024, following which the AAT issued Directions that:
1.The hearing listed for 10 October 2024 and 11 October 2024 is vacated.
2.On or before close of business on 18 October 2024, the Respondent must give to the Tribunal and the Applicant a written submission outlining any implication the legislative amendments to the NDIS Act 2013 have on the current proceeding; and also, an updated Statement of Facts, Issues and Contentions and any further information they intend to rely on.
3.On or before close of business on 1 November 2024, the Applicant must give to the Tribunal and the Respondent an updated Statement of Facts, Issues and Contentions and any further information they intend to rely on.
4.On or before close of business 15 November 2024, the Respondent is to inform the Tribunal of the status of their discussions with the Applicant regarding potential terms of agreement to resolve remaining issues in dispute in this matter.
The Tribunal subsequently consented to an extension of time for the Respondent to comply with Direction 2 of the Directions issued on 3 October 2024 and on 30 October 2024 the Tribunal received the requested submissions and updated SFIC from the Respondent.
On 30 October 2024, the Tribunal also received an email from the Applicant in which amongst other things they stated that their position was “that the SOFIC provided by the Respondent provides no bar to the Tribunal making a decision that includes a review date causing the plan to be more than 12 months in duration.”[3]
[3] Email of Naomi Anderson, Villamanta Disability Rights Legal Service, dated 30 October 2024 referring to. RSFIC dated 30 October 2024.
On 31 October 2024, the Tribunal received proposed terms of agreement between the parties and a request that the Tribunal remit the matter for reconsideration to the CEO pursuant to s 85 of the ART Act.
On 4 November 2024, the Tribunal (differently constituted) ordered that pursuant to s 85 of the ART Act, the decision under review, made under s 100(6) of the NDIS Act and dated 28 August 2023, is remitted to the Chief Executive Officer of the Respondent for reconsideration on or before 2 December 2024.
By way of an email from the Applicant’s representatives received on 15 November 2024, the Tribunal was asked to make orders pursuant to s 70(1)(a) of the ART Act to the effect that the Applicant's name be replaced with a pseudonym for the purposes of the proceeding.[4]
[4] The Applicant’s representatives had made a similar previous request in August 2024 under the provisions relevant at that time, namely s 35 of the Administrative Appeals Tribunal Act 1975 (Cth).
In this email the Applicant’s representatives proposed that the Tribunal consider not proceeding with a hearing which had been listed to occur on 5 December 2024 and instead decide the matter on the papers on the basis that “there are no witnesses and no dispute relation to underlying facts.”[5]
[5] Email of Jennifer Anderson, Villamanta Disability Rights Legal Service, dated 15 November 2024.
By way of an email received on 22 November 2024 the Respondent confirmed that the parties had resolved the issue regarding the composition of the Applicant’s SIL supports and that the sole remaining issue in dispute pertained to the plan duration. The Respondent also conveyed their agreement in principle to the Tribunal making a decision ‘on the papers’ without the matter proceeding to a hearing but requested the opportunity to file a further updated SFIC. The Tribunal consented to this request and on 3 December 2024 issued Directions that:
- Direction 5 of the Directions dated 30 October 2024, providing for the filing of hearing certificates, be vacated; and
- Replaced with a direction for the Respondent to provide a Statement Facts, Issues and Contentions in reply by 12 December 2024.
The NDIS Plan and SOPS of 3 December 2024
The Respondent, on 4 December 2024, provided the Tribunal with a copy of the NDIS Plan and SOPS resulting from the reconsideration ordered by the Tribunal on 4 November 2024. The SOPS associated with this plan pertains to the 12-month period from 3 December 2024 to 2 December 2025. This plan provided for the following supports:
(a)Core support budget of $ 479,163 covering:
(iv)Consumables - $500.04
(v)Home and Living - SIL - 317,667.82 for regular SIL supports to live independently at home. SIL includes help or supervision with daily tasks, like personal care or cooking meals. $11,758.82 for irregular SIL supports to help with unexpected or unplanned situations.
(vi)Assistance with Social, Economic and Community Participation - $149,236.32
(b)Capacity Building budget of $54,880.32 covering:
(i)Improved Daily Living Skills - Support for an occupational therapist, speech pathologist, dietitian, exercise physiologist and podiatrist to assess and provide strategies to increase daily living skills. Disability-related health supports from a clinical nurse consultant. - $23,114.52
(ii)Behaviour support to reduce behaviours of concern – behaviour management plan and training in behaviour management strategies - 30 hours per year. Specialist Behavioural Intervention Support – 90 hours per year. - $26,758.80
(c)Support Coordination - $5,007.00
(d)Capital – Home modifications - Specialist Disability Accommodation (SDA) $13,704.00
(e)Transport - $3,567.00.
ISSUES TO BE DETERMINED BY THE TRIBUNAL
In the Respondent’s updated statement of facts, issues and contentions (RSFIC) of 30 October 2024, the Respondent contends the following regarding the supports requested by the Applicant at the commencement of the review application:
a) 12 hours of psychology – this first support request was resolved and is not pressed by the Applicant; and
b) an increase in SIL funding at ratio of 1:1 for all waking hours – in relation to this second support request, the parties have reached agreement as to the composition of the Applicant’s Core Support funding for SIL.[6]
[6] RSFIC dated 30 October 2024 at [9]–[12].
In the Applicant’s updated statement of facts, issues, and contentions (ASFIC) of 15 November 2024, the Applicant confirms that in relation to the decision under review:
(a)The parties have reached agreement as to the reasonable and necessary supports which are appropriate to include in a replacement Statement of Participant Supports, and these are described in the section 85 terms provided to the Tribunal on 31 October 2024.
(b)The sole issue in dispute is the duration of the plan which contains the Statement of Participant Supports.[7]
[7] ASFIC dated 15 November 2024 at [3].
The Tribunal concurs with the parties’ contentions that in this matter there has been a significant narrowing of the issues in dispute. Agreement has been reached about the necessary participant supports to be funded for the applicant. This is reflected in the current NDIS Plan and SOPS.
The remaining issues for determination by the Tribunal are:
i.the request that the Tribunal make orders pursuant to s 70(1)(a) of the ART Act to the effect that the Applicant’s name be replaced with a pseudonym for the purposes of these proceedings.
ii.the date by which the NDIA must reassess the Applicant’s plan.
In relation to the first issue regarding the request the Tribunal makes a non‑publication order, pursuant to s 70(1)(a) of the ART Act, the Tribunal has considered it appropriate and in the interests of the Applicant to consent to this request.
The request for a decision ‘on the papers’
Section 106 of the ART Act outlines the circumstances in which the Tribunal may make a decision without a hearing. Section 106(3)(b)(ii) of the ART Act provides that the Tribunal may make a decision without holding a hearing if the Applicant requests the Tribunal to do so. In this matter, the Applicant has made such a request and the Respondent has indicated their agreement with this proposal. However, under s 106(3)(c) the Tribunal may only make a decision without holding a hearing if it appears to the Tribunal that the issues for determination in the proceedings can be adequately determined in the absence of the parties to the proceeding.
In providing their in-principle agreement to the proposal that the Tribunal make a decision in relation to the plan duration issue without the matter proceeding to a hearing, the Respondent requested the opportunity to file an updated SFIC. The Tribunal consented to this request. When requesting a decision on the papers regarding the plan duration issue, the Applicant conveyed their view that the hearing was not required due to there being no dispute in relation to underlying facts.
The Tribunal is of the view the parties have had the opportunity to file any further relevant material that they wish the Tribunal to consider. The Tribunal is also of the view that the parties have put before the Tribunal, in relation to the plan duration issue, what they perceive to be the relevant facts, issues and contentions. In the view of the Tribunal, the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding.
SUBMISSIONS
In relation to the plan duration issue, the parties lodged the following written submissions with the Tribunal.
The Respondent’s updated statement of facts, issues and contentions (RSFIC) of 30 October 2024
In the RSFIC of 30 October 2024, the Respondent notes that the issues in dispute at the time the review application was lodged had been resolved but that in the process of negotiations, the Applicant raised a new support request, namely a request for a five-year plan duration. The Respondent contended that: “The only matter pointed to as to the basis of the requested support to date has been stress associated with the Tribunal process and preference not to engage in a review process for a longer period of time.”[8]
[8] RSFIC dated 30 October at [12]–[13].
In relation to the effect of the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 (Cth) (Amending Act) on the Tribunal’s review, the Respondent noted that the Amending Act “inserted new subsections into section 33 which include provisions for a ‘total funding amount’, ‘groups’ of reasonable and necessary supports with an associated ‘funding component amount’, and ‘funding periods’. A funding period is to be no more than 12 months, but a plan may include multiple funding periods.”[9]
[9] RSFIC dated 30 October 2024 at [27].
The Respondent contends that “while the changes to section 33 commenced on 9 October 2024 when the relevant legislative instrument commenced, the changes apply only to decisions made by an original decision-maker not to Tribunal decisions on review. The Tribunal will not be required to decide a matter in accordance with the legislative instrument and new requirements until they have been applied by an original delegate and an internal review delegate.”[10]
[10] Ibid at [29].
The Respondent contends that notwithstanding this, the NDIA has published policy guidance indicating how the scheme will be applied during the transition period.[11] The Respondent provided extracts of this policy guidance that it considers relevant to consideration of appropriate plan duration. The policy guidance refers to plans being approved for a 12-month period “for now” and that “Later there may be more variability in the length of funding periods, however funding periods can be no longer than 12 months.” The guidance notes that “In the future for participants with stable support needs the implementation of funding periods allows for the creation of longer-term plans, for instance 2, 3 or 5 years”.[12]
[11] Ibid at [30].
[12] Ibid at [31]–[34].
In support of a plan duration of 12 months from the date of the decision as to the agreed supports, the Respondent makes the following specific contentions:
(a)Each of the Applicant’s recent plans have been 12 months in duration.
(b)The only reason pointed to as to the basis for the longer plan is stress from the ART process and preference for a longer plan, while understandable, is not shown to be the applicable criteria.
(c)The Agency’s policy and guidance provides that at present, a 12-month plan is the maximum plan duration.
(d)The changes to section 33 do not apply to the Tribunal’s decision, as it is not the primary decision.
(e)Longer plan duration will be available, however the applicant will not be able to access this as the relevant changes only apply to primary decisions.
The Applicant’s updated statement of facts issues and contentions of 15 November 2024
In the ASFIC of 15 November 2024, the Applicant submitted that the Respondent, in their RSFIC of 30 October 2024, concedes that provisions in the Amending Act do not apply to the Applicant’s plan, because they do not apply to decisions of the Tribunal on review.[13]
[13] Ibid at [26], [29].
The Applicant contends that whilst the NDIA has published policy guidance on how it proposes to administer the NDIS Act during the transitional period, that guidance:
(a)has not been made pursuant to any statutory authority identified by the Agency.
(b)does not have statutory force; and
(c)is not legally binding on the Tribunal.[14]
[14] ASFIC dated 15 November 2024 at [7c].
The Applicant contends that “when enacting the Amending Act, Parliament clearly turned its mind to how the new provisions of the NDIS Act would apply to plans already in force and chose not to apply those provisions to plans which were the subject of Tribunal decisions on review” and “As such, the Agency’s policy guidance is of no moment.” [15]
[15] Ibid at [7d]–[7e].
In support of the contention that the Applicant’s plan review date should be five years from the date of the decision as to the agreed supports (or at least substantially more than 12 months), the Applicant’s representative makes the following points:[16]
(a)Most importantly, the applicant’s disability is a lifelong genetic disorder which will not improve over the course of the next 12 months. His need for support will only remain the same, or become greater, over time. As such, the most effective approach (in both financial and personal terms) is for the applicant to have plans of longer durations.
(b)The applicant has now engaged in a protracted process of contesting the appropriateness of his supports. It is now agreed that he has been underfunded for almost 18 months. This has not only caused significant personal distress for the applicant (and his family and support network) but has created a risk to the health and safety of the applicant (and his family and support network).
(c)The Agency appears to acknowledge that once the applicant is on a new framework plan, he will be able to access longer plans. In those circumstances, there is no rational basis to deny him access to a longer old framework plan, which can be ordered immediately by the Tribunal.
(d)The only reason the Agency has given for preferring a shorter plan duration is that it would result in the applicant transitioning to a new framework plan sooner. But again, that is no more than a policy preference of the Agency. It has no statutory basis and was not provided for in the detailed transitional provisions contained in the Amendment Act.
[16] ASFIC Dated 15 November 2024 at [8a]-[d].
The Applicant’s representatives contend that “Increasing the duration of the plan to five years provides the Applicant with the certainty that is an underlying principle of the Act when it refers to the care and support needed over a lifetime, and reduces the likelihood of the harms experienced by the Applicant during the period in which he has been underfunded”[17] and that “Respect for his privacy and dignity is enhanced by the implementation of a five year plan which does not require annual “re-proving” of his disability. ”[18]
[17] ASFIC dated 15 November 2024 at [9].
[18] ASFIC Dated 15 November 2024 at [9a].
Further to this, the Applicant’s representatives contend that “In the event that the Agency takes a view that the support needs to the Applicant have reduced during that five‑year period, the responsibility of identifying why supports need to be changed is then appropriately placed on the Agency.”[19]
The Respondent’s updated statement of facts, issues and contentions (RSFIC) of 12 December 2024
[19] Ibid at [9b].
In relation to the scope of the application for review, following the remittal pursuant to s 85(1) of the ART Act on 4 November 2024, the NDIA has implemented a new NDIS plan dated 3 December 2024, for the period 3 December 2024 to 2 December 2025. The Respondent submits that by application of s 85(5) and (6) of the ART Act, the Tribunal’s review continues in relation to the updated decision of the Agency and the application for review of the decision is taken to be an application for review of the new decision.[20]
[20] RSFIC dated 12 December 2024 at [2].
The Respondent reiterates that “As all other supports in issue have been resolved and included in the 3 December 2024 plan, it is understood that the only issue before the Tribunal is whether the Agency’s decision as to a 12 month length of the plan, that is by setting the ‘NDIS plan reassessment date’ on a date 12 months after the ‘NDIS plan start date’, is the correct or preferrable decision.”[21] In response to the assumption that the Applicant is “seeking a decision by the Tribunal to either vary or set aside the aspect of the Agency’s decision as to the length of the plan”,[22] the Respondent makes the following contentions:
(a)In reference to the Applicant’s contention that the NDIA policy guidance as to plan duration was acknowledged but contended to be ‘of no moment.’[23] The Respondent drew the attention of the Tribunal to the case of Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 (Drake).[24]
(b)The Respondent contends that “the Tribunal should take into account the Agency’s current policy guidance of a 12-month maximum to plan duration during this transitional period. The contentions outlined at ASFIC [8] do not constitute reasons to invalidate the policy”.[25]
(c)Whilst acknowledging and agreeing that the applicant’s disability is a lifelong genetic disorder which will not improve over the course of the next 12 months, the Respondent contends that “permanence of the disability, which is a legislative criterion for access to the NDIS, does not of itself confirm that living circumstances and disability support needs will remain the same over a five year period.’[26]
[21] Ibid at [3].
[22] Ibid at [4].
[23] Ibid at [5].
[24] Ibid at [6].
[25] Ibid at [7].
[26] Ibid at [8].
LEGISLATIVE FRAMEWORK
Section 31 of the NDIS Act sets out several principles that apply in the development of a NDIS plan for a participant. The purpose of the plan is to state how the funds provided for the participant’s supports are to be managed. The plan is the instrument that governs the funding the participant is entitled to receive under the NDIS:
31 Principles relating to plans
The preparation, variation, reassessment and replacement of a participant’s plan, and the management of the funding for supports under a participant’s plan, should so far as reasonably practicable:
(a) be individualised; and
(b) be directed by the participant; and
(c)where relevant, consider and respect the role of family, carers and other persons who are significant in the life of the participant; and
(ca)where relevant, recognise and respect the relationship between participants and their families and carers; and
(d)strengthen and build capacity of families and carers to support participants who are children; and
(da) if the participant and the participant’s carer agree – strengthen and build the capacity of families and carers to support the participant in adult life; and
(e)consider the availability to the participant of informal support and other support services generally available to any person in the community; and
(f)support communities to respond to the individual goals and needs of participants; and
(g)be underpinned by the right of the participant to exercise control over his or her own life; and
(h)advance the inclusion and participation in the community of the participant with the aim of achieving his or her individual aspirations; and
(i) maximise the choice and independence of the participant; and
(j)facilitate tailored and flexible responses to the individual goals and needs of the participant; and
(k)provide the context for the provision of disability services to the participant and, where appropriate, coordinate the delivery of disability services where there is more than one disability service provider.
Each plan must have in it an approved SOPS; and a plan does not take effect until a SOPS forming part of the plan has been approved by the CEO under s 33(4) of the NDIS Act. Specifically, s 33 of the NDIS Act sets out certain matters that must be included in a participant’s plan, including: have regard to the participant’s statement of goals and aspirations (s 33(1)); have regard to relevant assessments conducted in relation to the participant (s 33(5)(b)); and have regard to the operation and effectiveness of any previous plans of the participant (s 33(5)(f)).
Of particular relevance to this matter as it now stands, s 33(2)(c) provides that a participant’s plan must include a SOP that specifies the date by which, or the circumstances in which, the NDIA must review the Plan under Division 4. Division 4 deals with the review and changing of participant’s plans.
The National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 (Cth) (Amending Act) commenced on 3 October 2024.[27] The Amending Act made a range of amendments to the NDIS Act. Those amendments included, but were not limited to, the insertion of a new definition of ‘NDIS Support’ at s 10, an amendment to s 33(5) which prescribes what is required when deciding whether to approve a SOPS, amendments to s 34 which sets out criteria which must be satisfied in relation to reasonable and necessary supports and amendments to ss 43 and 44 regarding plan management. Subitem 129(1) of Schedule 1 to the Amending Act provides that ss 33, 34 and 35 as in force on and after 3 October 2024 apply to a statement of participant supports approved or varied on or after that date. Subitem 129(2) of Schedule 1 to the Amending Act provides that if a statement of participant supports is varied on or after 3 October 2024, the amendments apply irrespective of whether the Applicant’s plan came into effect before, or on or after commencement. Those provisions, as amended, apply to the Applicant and any approval or variation of the Applicant’s SOPS.[28]
[27] Section 2 of the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act2024 (Cth) (Amending Act).
[28] Items 124, 129, 132 of the Amending Act.
CONSIDERATION
In accordance with s 103(2) of the NDIS Act, the decisions under review in this proceeding are the Internal Review Decision and each of the subsequent decisions to approve SOPS up to and including the current SOPS approved on 4 December 2024.
The parties contend and the Tribunal accepts that while the changes made under the Amending Act to s 33 of the NDIS Act commenced on 9 October 2024 when the relevant legislative instrument commenced, the changes do not apply to the Applicant’s plan, because they do not apply to decisions of the Tribunal on review as they apply only to decisions made by an original decision-maker.
Turning first to the extent to which the Tribunal should be influenced by NDIA policy guidelines, with respect to this issue in dispute in this matter, the Respondent contends that policy guidance published by the NDIA, that is, that during the current ‘interim’ transitional phase all plans will be of 12 months duration, has relevance to the appropriate duration of the Applicant’s plan. In response, the Applicant’s contention is that the policy guidance referred to is not legally binding on the Tribunal as it has “no statutory force”.[29]
[29] ASFIC dated 15 November 2024 at [7c].
The Tribunal is aware of the case referred to by the Respondent in their RSFIC of 12 December 2024, Drake. The Tribunal considers the extract of this case from the aforementioned RSFIC highlights principles relevant to the issue which the Tribunal needs to determine:
In the absence of any statutory indication to the contrary, any lawful executive policy enacted to guide the exercise of a statutory power is a relevant fact, or factor, for the Tribunal to take into account in performing its review task.[30]
[30] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634. The Federal Court (Mortimer J) also held in G v Minister for Immigration and Border Protection [2018] FCA 1229 at [204].
In Drake, the Court further held that the aforementioned principle should apply unless there is a cogent reason that it should not apply. The Tribunal is guided by these cumulative principles.
The consistent element in the NDIA policy guidance referenced by the Respondent is that during the current transitional phase the duration of plans should not exceed 12 months. This would appear to reflect the acknowledgment that there is an inevitable settling in period to the raft of changes to the scheme made by Parliament and that legislative instruments are yet to be fully developed to provide mechanisms to implement these changes. In this context, I am not persuaded setting a plan duration provided for under a longer old framework plan is a cogent reason to disregard the NDIA policy guidance, as I am not satisfied that the Applicant will be disadvantaged by the plan duration in his current SOPS.
As to the contention that the Applicant has a lifelong genetic disorder which will not improve over the course of the next 12 months, I accept that this is shown to be the case in the material filed with the Tribunal. However, for the reason acknowledged by the Applicant, that is, the Applicant’s needs may not remain static, I am not persuaded that “the most effective approach (in both financial and personal terms) is for the applicant to have plans of longer durations.”[31] In relation to this factor I have had regard to the Respondent’s contention that “permanence of the disability, which is a legislative criterion for access to the NDIS, does not of itself confirm that living circumstances and disability support needs will remain the same over a five year period.”[32] As such, I am not persuaded the lifelong nature of the Applicant’s genetic disorder provides a reason to disregard the NDIA policy guidance.
[31] ASFIC Dated 15 November 2024 at [8a–d].
[32] Ibid at [8].
As to the stress upon the applicant, his family and support networks as a result of a protracted period of underfunding whilst there has been dispute regarding this support needs, the Tribunal acknowledges this to be a factor causing concern and that this concern extends to the extent to which it may have given rise to safety issues for both the applicant and his support networks. However, given the agreement reached about the adequacy of required supports in the SOPS associated with the current NDIS plan approved on 4 December 2024, I am not persuaded the Applicant will be disadvantaged by the plan duration approved in the current plan having consistency with the duration referred to in NDIA policy guidelines, namely a plan duration of 12 months.
Whilst there is no statutory basis to an approach which may result in the Applicant transitioning to a new framework plan sooner, I am not persuaded there is a disadvantage to the Applicant if this was to occur. For this reason, I am satisfied this provides a plausible basis for a plan duration of 12 months.
I am also satisfied that a plan duration of 12 months provides the opportunity for the NDIA to review progress reports and other material in relation to both the increased SIL support provided to the Applicant and the capacity‑building supports he is accessing.
CONCLUSION
The Tribunal concludes that all supports detailed in the Applicant’s NDIS Plan and SOPS of 4 December 2024 meet the mandatory criteria under s 34(1) of the NDIS Act and are “reasonable and necessary supports” for the Applicant and should be funded through the NDIS. The Tribunal is also satisfied that the plan management arrangements detailed in the Applicant’s NDIS Plan and SOPS of 4 December 2024 are appropriate to his circumstances.
As to the date by which the NDIA must reassess the Applicant’s plan, the Tribunal is of the view that it is appropriate that it remain the same as that specified in the plan dated 4 December 2024.
Accordingly, the Tribunal affirms the decision under review.
Date(s) of hearing: N/A Solicitor for the Applicant: N Anderson, Villamanta Disability Rights Legal Service Solicitors for the Respondent: E Baggett, Mills Oakley
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