Maroti and CEO, National Disability Insurance Agency (NDIS)
[2025] ARTA 1210
•4 August 2025
Maroti and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 1210 (4 August 2025)
Applicant:Mr Arpard Maroti
Respondent: CEO, National Disability Insurance Agency
Tribunal Number: 2023/5769
Tribunal:Deputy President K Dordevic
Place:Sydney
Date:4 August 2025
Decision:The Tribunal affirms the decision under review.
.......................[SGD]........................................
Deputy President K Dordevic
Catchwords
NATIONAL DISABILITY INSURANCE AGENCY – increase of statement of participant supports in Applicant’s plan – reasonable and necessary supports – section 53 order limiting scope of review - sleep dentistry – application of transitional rules – whether request is an NDIS support – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
National Disability Insurance Scheme Amendment (Getting the NDIS back on Track No 1) Act 2024 (Cth)
National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (Cth)National Disability Insurance Scheme Act 2013 (Cth)
Cases
FSWN and National Disability Insurance Agency (NDIS) [2025] ARTA 114
Statement of Reasons
The issue requiring determination is whether 15 hours per annum of sleep dentistry funding is reasonable and necessary and so is to be included in the Applicant’s statement of participant supports under the National Disability Insurance Scheme (NDIS or scheme).
Background
The Applicant is a 47-year-old man who was granted access to the scheme on 22 May 2019. His primary impairments are attributable to autism spectrum disorder (ASD).
On 9 June 2023 the Applicant’s Plan was approved by a delegate of the CEO. The Applicant lodged a request for an internal review of this decision and, on 20 July 2023, a different delegate of the CEO confirmed that the original decision was correct (the reviewable decision).
On 7 August 2023 the Applicant’s plan nominee lodged an application with the then Administrative Appeals Tribunal (AAT) for review of the reviewable decision. On 14 October 2024 the AAT became the Administrative Review Tribunal (the Tribunal). This decision and statement of reasons is made by the Tribunal.[1]
[1] Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)(the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application 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.
On 26 September 2024 the Respondent undertook a reassessment of the participant’s plan.[2] The review date of the new plan was 27 March 2025.
[2] JTB, R1, folios 227 to 236
On 15 February 2025 the Tribunal, differently constituted, made an order pursuant to section 53 of the Administrative Review Tribunal Act 2024 (Cth) to limit the scope this review to the following supports:
(a)funding for sleep dentistry; and
(b)increased personal domestic activities funding.
The Respondent later advised that issue regarding the funding of personal domestic activities was resolved by consent, whereby the Applicant would receive an additional 10 hours per week of this support in addition to that already funded in the Applicant’s plan.
By email dated 14 March 2025 the Respondent provided the Tribunal and the Applicant with an NDIS plan dated 12 March 2025 (Exhibit 1).
The Tribunal held a hearing on 27 May 2025 where all parties participated by Microsoft Teams - Video. The Applicant was represented by his mother and plan nominee, Ms Valeria Maroti. Ms Maroti was supported by Mr Dino Ktordies, support coordinator. Ms Maroti gave oral evidence to the Tribunal under oath. The Applicant was present during the proceeding but did not give evidence. The Respondent was represented by Mr Noonan of counsel.
The Tribunal had before it the joint tender bundle provided by the parties (Exhibit 2). The Tribunal had regard to the Respondent’s Statement of Facts, Issues and Contentions dated 14 March 2025. The Tribunal also had the benefit of oral evidence provided under oath by Dr Oriella Cattapan, clinical psychologist, and evidence under affirmation from Ms Caitlin Cody, occupational therapist.
LEGISLATIVE FRAMEWORK
The National Disability Insurance Scheme Act 2013 (Cth) (the Act) sets down the law that underpins the scheme.
Individuals who are granted access to the scheme are referred to as ‘participants’.[3] A fundamental aspect of the scheme is to provide individual plans to participants, which fund certain specified supports.
[3] Subsection 8(c) of the Act.
Section 33 of the Act identifies the matters that must be included in a participant’s plan. Subsection 33(2) requires that a plan include a statement of participant supports prepared with the participant and approved by the CEO. Paragraphs 33(2)(a) to (e) of the Act specifies these statement of participant supports must include general, reasonable and necessary supports in addition to the date by which the Agency must reassess the plan, as well as information regarding management of other plan aspects.
Section 33(5) of the Act directs that when deciding whether to approve a statement of participant supports the CEO (and this Tribunal upon review) must have regard to the participant’s statement of goals and aspirations, relevant assessments, the principle that a participant should manage their plan to the extent that they wish, the operation and effectiveness of previous plans and compliance with spending in addition to being satisfied the supports are reasonable and necessary and the NDIS rules are applied.[4]
[4] Subsection 209(1) of the Act.
On 3 October 2024 the National Disability Insurance Scheme Amendment (Getting the NDIS back on Track No 1) Act 2024 (Cth) (the Amending Act) came into force. Numerous provisions in the Act were amended. Relevant to this application it included significant amendments to section 34 of the Act regarding reasonable and necessary supports. It introduced the concept and definition of what is an NDIS support[5] and what is not an NDIS support[6] and amended paragraph 34(1)(f) of the Act, requiring the decision-maker to be satisfied before funding a support that the support is an ‘NDIS support’.
[5] Subsection 10(1) of the Act.
[6] Subsection 10(4) of the Act.
The Amending Act provides at subsection 138(1) that the Minister may, by legislative instrument, make rules prescribing matters of a transitional nature relating to the amendments to the Act.
The National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (Cth) (the Transitional Rules) also came into force on 3 October 2024. The Transitional Rules modified the operation of section 34 of the Act, by expressly excluding certain supports from inclusion in a participant’s statement of participant supports.
These legislative amendments and Transitional Rules must be applied by the Tribunal when a statement of participant supports is approved or varied on or after 3 October 2024, even if an applicant’s plan came into effect before the commencement of the amendments.[7]
[7] Subitems 129(1) and (2) of Schedule 1 to National Disability Insurance Scheme Amendment (Getting the NDIS back on Track No. 1) Act 2024.
Section 34(1) of the Act now provides that when considering what ‘reasonable and necessary’ supports are to be funded, that the decision maker must be satisfied that each limb outlined in paragraphs 34(1)(aa) to (f) are established:
(1) For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:
(aa) the support is necessary to address needs of the participant arising from an impairment in relation to which the participant meets the disability requirements (see section 24) or the early intervention requirements (see section 25);
(a) the support will assist the participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations;
(b) the support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation;
(c) the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;
(d) the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
(e) the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;
(f) the support is an NDIS support for the participant.
Note: For the purposes of paragraph (aa):
(a) the time at which the disability requirements or the early intervention requirements need to be met is the time the CEO decides to approve the statement of participant supports; and
(b) a participant’s disability support needs arising from an impairment in relation to which the participant meets the disability requirements or the early intervention requirements may be affected by a variety of factors, including environmental factors or the impact of another impairment in relation to which the participant does not meet either of those requirements.
(2) The National Disability Insurance Scheme rules may prescribe methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding whether or not he or she is satisfied as mentioned in any of paragraphs (1)(aa) to (f).
Schedule 1 to the Transitional Rules outlines supports that are NDIS Supports unless otherwise provided. Schedule 2 to the Transitional Rules outlines supports that are generally not considered NDIS Supports. Relevant to this review, Schedule 2, Item 12(a) provides:
Supports that generally are not NDIS supports
Column 1 Column 2
Item Category Supports
…
12 Health The following:
(a) the diagnosis, early intervention and clinical treatment of health and dental health conditions, including ongoing or chronic health conditions;
(b) …
CONSIDERATION
The evidence before me
The Applicant seeks the provision 15 hours per annum of sleep dentistry which the Respondent asserts is not a NDIS Support.
In evidence is a referral letter to the Royal Dental Hospital of Melbourne, authored by Dr Amolak Deep, dentist, on or around 31 May 2022.[8] Dr Deep’s clinical findings after examination of the Applicant were that there was a heavy build up of plaque and calculus, generalised chronic periodontitis, three carious teeth and a root stump noted. Dr Deep explained that the purpose of the referral was because the Applicant:
… is Autistic so I’m concerned about his cooperation in doing this extensive treatment on the dental chair under local anaesthesia hence referring her (sic) to dental hospital.[9]
[8] Exhibit 1, A5, folio 181.
[9] Ibid.
On 29 July 2022 the Special Needs Clinic at the Royal Dental Hospital of Melbourne advised Dr Deep that the referral was not accepted as the Applicant does not meet the access criteria, namely being that he does not hold a health care or pension card.[10]
[10] Exhibit 1, A6, folio 182 and T10, folio 52.
On 11 August 2023 Dr Seyed Mohammad Loghman, general practitioner, opined that the Applicant required:
… dental treatment to prevent cardiac and physical complications. Since his hypersensitivity make the dental procedure almost impossible without sedation, your approval to support him for a sedated(sleep) (sic) dentistry would be appreciated.
Dr Oriella Cattapan, clinical psychologist, also supports the provision of sleep dentistry to manage the Applicant’s dental hygiene. She explained that his impairments largely prohibit him from undertaking dental hygiene tasks and therefore sleep dentistry is required.[11]
[11] Exhibit 1, A9, folios 193 to 194 and T10, folio 51.
Dr Cherie Young, dentist, provided a report dated 27 August 2024 which indicates that, following an oral examination, the Applicant has several oral health issues, consistent with those identified by Dr Deep.[12] There is in evidence a quote for surgical dentistry from Dr Young’s practice dated 20 August 2024 which indicates that proposed treatment would be in the vicinity of $5,395.[13]
[12] Exhibit 1, A12, folio 204.
[13] Exhibit 1, T5, folios 27 to 35.
In her report dated 21 February 2023[14] Ms Caitlin Cody, occupational therapist, refers to the Applicant’s fear of attending the dentist largely arising from his impairments and that he consequently neglects his dental hygiene. She strongly recommends the Applicant be provided funding for sleep dentistry.[15]
[14] Exhibit 1, A11, folio 203.
[15] Exhibit 1, A14, folios 207, 210, 213 and 215.
I accept Ms Maroti’s evidence that her son requires funding for sleep dentistry and the financial impediments that prevent this treatment taking place.[16] Her evidence is consistent with the Statement of Lived Experience in evidence.[17]
Relevant findings of fact
[16] Exhibit 1, T10.
[17] Exhibit 1, A1, folios 155 to 164.
I find that the Applicant’s plan was varied on 26 September 2024 with total funded supports of $30,018.13 for a six month period. A review date was scheduled on 27 March 2025.[18]
[18] JTB, R1.
I am satisfied that a further plan variation took place on 12 March 2025, whereby a new statement of participant supports with total funded supports of $86,235.96, including $38,480.52 for assistance with daily life.[19]
[19] Exhibit 1.
After reviewing the medical evidence before me and taking into account the evidence provided by Ms Maroti, I am satisfied that the Applicant requires sleep dentistry to address his poor dental hygiene, tooth decay and cavities.
Application of the law to the facts
In the matter of FSWN and National Disability Insurance Agency (NDIS) [2025] ARTA 114 (FSWN) Senior Member French outlined the structure of enquiry in matters where the application for review is concerned with a statement of participant supports that was varied after 3 October 2024. Senior Member French stated that there are two stages and the following steps:[20]
[20] FSWN at [43].
Stage 1 Ascertain if the requested support is an “NDIS” Support as defined. This
inquiry is focused on the support, not the participant.
Step 1: Determine if the requested support is of a character that falls within the scope of a category of support specified in column 1 of the Table to Schedule 2 of the Transitional Rules by reference to the description of supports that fall within the scope of that category contained in column 2 of the Table.
If the answer to that question is “yes”, then stage 1 is complete. The
requested support is not a NDIS Support and cannot be approved for
inclusion in a SoPS because of s 34(1)(f) (subject to a replacement support
determination being made, as to which see following).
If the answer to that question is “no”, then proceed to step 2 of stage 1:
Step 2: Determine if the requested support is of a character capable of falling within the scope of a category of support specified in column 1 of the Table to Schedule 1 of the Transitional Rules by reference to the description of supports that can fall within the scope of that category contained in column 2 of that Table.
If the answer to that question is “no”, then the requested support will not be
a NDIS Support and cannot be approved for including in a SoPS because
of s 34(1)(f).
If the answer to that question is “yes”, then the requested support will be a
NDIS Support that is capable of being approved for inclusion in a SoPS by
operation of s 34(1)(f), and stage 2 of the enquiry is reached.
Stage 2: Ascertain if the requested support satisfies each of the other criteria
specified in s 34(1)(aa) to (e) and the associated Supports Rules. There is
some overlap of the stage 1 and 2 enquiries. However, in my opinion
stage 2 is primarily a participant focused enquiry. That is, it seeks to
establish the benefit of the support to the participant. To the extent that
stage 2 also requires examination of the efficacy of the support per se it adds nothing to the outcome of the stage 1 enquiry in my opinion.
As a plan variation took place on 12 March 2025, after the 3 October 2024 amendments, the requirements set down in the Amending Act must be satisfied. This is so, even though the reviewable decision was made some 14 months prior to those amendments.
As a result, the application before the Tribunal is taken to be an application for review of the Applicant’s statement of participant supports in the current plan dated 12 March 2025.
I am satisfied that sleep dentistry, as described and recommended by Drs Deep and Young, constitutes the clinical treatment of a dental health condition as outlined in Item 34 in Schedule 2 to the Transitional Rules.
It follows that the requested support of sleep dentistry is not an NDIS support by operation of the Transitional Rules and so paragraph 34(1)(f) of the Act, as amended, is not satisfied. As Senior Member French neatly summarised in FSWN there is no utility in considering the other requirements set down in subsection 34(1) of the Act as the subsection is conjunctive in its terms.[21]
[21] FSWN at [46].
Conclusion
It follows that sleep dentistry cannot be approved for inclusion in the Applicant’s statement of participant supports.
Decision
For these reasons, the decision under review is affirmed.
Date of hearing: 27 May 2025 Counsel for the Respondent: Mr T Noonan Solicitors for the Respondent: Mr J Sathiendrakumar, Sparke Helmore Lawyers
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