McDonald and Chief Executive Officer, National Disability Insurance Agency (NDIS)

McDonald and Chief Executive Officer, National Disability Insurance Agency (NDIS) [2025] ARTA 2065 (14 October 2025)
Applicant/s:  Kenneth McDonald
Respondent:  Chief Executive Officer, National Disability Insurance Agency
Other Parties:  Jacob McDonald

Tribunal Number: 2023/0488

Tribunal:General Member S Smith
Place:Brisbane
Date:14 October 2025
Decision:The Tribunal sets aside the reviewable decision to cancel the plan nominee’s appointment and decides that:
(i)The Tribunal refuses to cancel the applicant’s appointment as plan nominee. The applicant is to be restored as plan nominee for the participant on the terms of the appointment dated 23 December 2021, including the condition that:
1. The plan nominee is not permitted to manage the funding for supports under Jacob’s plan.

.................[SGD].................
General Member S Smith
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – National Disability Insurance Scheme Act 2013 (Cth) – plan nominee – decision to revoke the applicant’s status as plan nominee – plan nominee appointment made at the Agency’s initiative – plan nominee removed at the participant’s request – request made by support coordinator - views of the participant – choice and control in decision making – capacity of the participant – duties of the plan nominee – conflicts of interest – participant’s supports and support providers - values and principles of the NDIS Act – decision set aside.
Legislation
Administrative Review Tribunal Act 2024 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Nominees) Rules 2013 (Cth)
Cases
Baran and Secretary, Department of Primary Industries and Energy (1988) 18 ALD 379
Collector of Customs (New South Wales) v Brian Lawlor Automotive Pty Ltd (1979) [1979] FCA 21; 2 ALD 1
McDonald and National Disability Insurance Agency [2023] AATA 3251 (13 October 2023)
Secondary Materials
Our Guidelines – Appointing a Nominee
Our Guidelines – Guardians and Nominees explained
Statement of Reasons
INTRODUCTION

This decision is to determine whether the applicant should be restored as the plan nominee for his son, a participant in the National Disability Insurance Scheme (‘the scheme’)[1] which is administered by the National Disability Insurance Agency (‘the Agency’).
[1] T Documents, T2.
The participant is the other party to this review. He is 33 years old and lives with a primary disability of autism, and secondary disabilities of schizophrenia, intellectual disability and a spinal cord injury.
The participant lives in Supported Independent Living (‘SIL’) accommodation managed by Magenta Community Services Proprietary Limited (‘Magenta’) in New South Wales (‘NSW’).
This was an exceptional matter. The parties attended for ten hearing days and four case management directions hearings. There were seven witnesses, and the applicant, participant and respondent provided written closing submissions.
The Tribunal is grateful to the applicant, the participant, the participant’s advocate, Ms Jessica Raguse (‘Ms Raguse’), and the respondent (hereinafter, ‘the Agency’) for their respective patience, graciousness and resilience during the lengthy proceedings.
PART ONE: THE CHRONOLOGY OF THE DECISION UNDER REVIEW
The plan nominee appointments
On 14 November 2019, while experiencing an acute mental health episode the participant requested that the applicant be appointed as his plan nominee by the Agency.[2]
[2] T Documents, T4; R submission 19 February 2024 at [11].
On 26 November 2019 the applicant was appointed as plan nominee for the participant for a period of one year (the first appointment). The first appointment contained a limitation that the applicant was not permitted to manage the funding for supports under the participant’s plan.[3] The first appointment lapsed on 26 November 2020.
[3] ST2 page 344.
On 14 December 2021 the applicant contacted the Agency to request an earlier review of the participant’s NDIS plan due to a change in his support needs.[4] The applicant advised that the participant was currently in hospital, pending discharge, and required 2:1 support assistance in a specialised accommodation. On 23 December 2021 the applicant was appointed as plan nominee for the participant, this time as an exercise of the Agency’s discretion rather than upon the participant’s request (the second appointment).[5] The limitation in the second appointment was identical to the first appointment noted in [7].[6]
[4] ST3 page 346.
[5] Section 86(2)(b), NDIS Act; Supplementary T Documents, ST3, ST4: The second appointment was stated to commence 14 December 2021.
[6] ST4, page 349.
Under the second appointment, the applicant had nominee powers relating to the preparation, variation, reassessment or replacement of the participant’s plan including specialised accommodation arrangements and home modifications.[7] This appointment identified an end date of 31 December 9999.
[7] Section 78, NDIS Act: Actions of plan nominee on behalf of participant
Removal of the plan nominee
In May 2022, the participant was returned to hospital.[8] He had been living in a private residence (‘Ross Street’) leased by his supports provider, Magenta.[9] However, due to physical mobility issues the participant was unable to return to this residence without home modifications which would require the approval of his plan nominee.
[8] The participant was admitted to hospital for a pelvic fracture following a fall.
[9] T Documents: T9; T29. Magenta provided the participant with his supported independent living (SIL) support workers.
Around May 2022, the applicant would not agree to sign a request to the Agency, prepared by Magenta, for home modifications to be funded in the participant’s plan.[10] The applicant stated the modifications would never be approved by the Agency.
[10] T Documents, T8.
On 26 July 2022 Ms Erin Thomas (‘Ms Thomas’) in her employed role as Magenta’s support coordinator contacted the Agency to request that the applicant be removed as plan nominee.[11] Ms Thomas advised that the participant was ‘wanting to begin making his own decisions’ and trying to find a residency home, however, was unable to do so until there was no longer a plan nominee. The applicant noted an apparent conflict of interests at this point.
[11] T8; Agency submission dated 19 Feb at [15].
On 27 July 2022, the applicant contacted the Agency to discuss his concerns for the participant in regard to signing a change of situation form and the home modifications request.
On 2 August 2022 Ms Thomas emailed the Agency to lodge an ‘urgent change of situation’ form on behalf the participant.[12] In her email Ms Thomas stated that the participant could not be discharged from hospital in the absence of a permanent address, and that due to decreased mobility, the participant’s private residence required home modifications before he could return to living there.
[12] T Documents, T10; Agency’s submission dated 19 Feb at [18].
On 25 August 2022 the participant signed a typed letter to the Agency which requested that the applicant be removed as his plan nominee (the letter).[13] The letter stated that the participant did not require a plan nominee, and that ‘I would like to start making my own decisions when it comes to my NDIS plan’. It was unclear whether the participant authored the letter.
[13] T Documents, T16. The letter was received by the Agency on 29 August 2022.
On the same day, the applicant called the Agency to confirm his status as plan nominee. The applicant expressed concerns that he had in relation to Magenta trying to remove him as plan nominee.[14] On 14 September 2022 the applicant was notified of the Agency’s decision to remove him as plan nominee, effective from 25 August 2022.[15] I note this was six days outside the 14 days required for making the decision.
[14] T Documents, T13, page 55.
[15] T Documents, T23.
The request for reinstatement
On 7 December 2022 the applicant contacted the Agency to request his reinstatement as the participant’s plan nominee.[16] The applicant raised concerns around the participant being ‘influenced’ by Magenta staff to sign the letter and requested that the Agency undertake an internal review of the decision to remove him as plan nominee.
[16] T Documents, T27.
On 16 January 2023 the Agency notified the applicant of its decision under section 100(6) of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) to affirm the decision to cancel the applicant’s status as plan nominee for the participant (the decision under review).[17]
[17] T Documents, T2.
On 23 January 2023, the applicant applied to the Tribunal for review. The Tribunal has jurisdiction to review this decision under s 12 of the Administrative Review Tribunal Act 2024 (Cth) (‘ART Act’) and will undertake an independent review of this decision because it is designated a reviewable decision by section 99(1)(Item 22) of the NDIS Act.[18]
PART TWO: THE BACKGROUND TO THE DECISION UNDER REVIEW
[18] The proceeding commenced before the AAT pursuant to section 25 of the AAT Act. The AAT was abolished and replaced by the Administrative Review Tribunal (ART) with effect from 14 October 2024. By operation of Item 24 in Schedule 16 of the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth) any proceeding which was not determined by 14 October 2024 continues in the ART and is to be determined by the application of the provisions of the ART Act.
The Tribunal’s jurisdiction- what is the authority to decide?
The applicant and the participant elected not to provide submissions regarding the Tribunal’s jurisdiction to decide this application.
The Agency adopted a ‘position of neutrality’[19] in assisting the Tribunal to reach the correct or preferable decision in this application.
[19] Agency closing submissions at [12] – [19].
The Agency filed three separate written submissions regarding the Tribunal’s jurisdiction to hear and then determine this matter.[20]
[20] Agency’s jurisdiction submissions dated 4 September 2023 and 3 October 2023, and 19 February 2024. Agency closing submissions [8].
On 13 October 2023, in McDonald and National Disability Insurance Agency [2023] AATA 3251 (‘the interlocutory decision’) Senior Member Connolly decided that the Tribunal has jurisdiction to review the Agency’s decision to cancel the applicant’s status as plan nominee. This is notwithstanding that the Agency did not make a decision whether to cancel the applicant’s appointment as plan nominee within 14 days of having received the participant’s request to do so in 2022.[21]
[21] McDonald and National Disability Insurance Agency [2023] AATA 3251 at [11]-[13] (‘the interlocutory decision’)
I concur with the Agency’s submissions that Senior Member Connolly astutely observed that the Tribunal’s power to review a decision which appeared to be invalidly made was consistent with the decision of Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 2 ALD 1 (‘Brian Lawlor’) and Baran and Secretary, Department of Primary Industries and Energy (1988) 18 ALD 379 (‘Baran’).
I accept the Agency submission that Baran supports that the Tribunal retains the power to consider:
Consonant with the general tenor…that the Tribunal’s powers in such a situation extended to consideration of the merits of the applicant’s case and the making of its decision in accordance with its findings as to those merits.[22]
[22] Baran and Secretary, Department of Primary Industries and Energy (1988) 18 ALD 379 (‘Baran’) at 388, [16].
There was a large amount of evidence that overwhelmingly supports the merits of the applicant’s request to be restored as the plan nominee for his son.
The decision under review is therefore set aside and the Tribunal substitutes its own decision reached on the merits of the applicant’s case.[23]
[23] Baran at [52].
What orders can the Tribunal make?
The Tribunal must make the correct or preferable decision[24] in light of the legal framework and the evidence before it.
[24] Previously section 43 of the AAT Act. Now section 105 of the ART Act.
Taking account of all the circumstances and the relevant and mandatory factors I find that the Tribunal should ‘set aside the invalid decision and substitute its own decision that the Tribunal refuses to cancel the applicant’s appointment as plan nominee ‘which has been reached on the merits of the application.[25] In other words, the applicant is to be restored as plan nominee in order to preserve the appointment of the applicant as the plan nominee.
[25] Barran at 400-401, [52]. Agency closing submissions at [22]-[25].
In summary, the participant’s position was that he was unsure if he wanted a plan nominee. The participant stated early in the proceedings, ‘yes, I need a plan nominee’.[26] At a later point he said, ‘I do not want a plan nominee, I want to be my own plan nominee.’[27]
[26] Transcript, p. 124, line 35.
[27] Transcript, p. 514, lines 43-47 and p. 515 lines 1-9.
The participant was uncertain about the role of a plan nominee, stating early in the proceedings it is:
Someone who looks out for the best interest of me…someone who helps me out. Someone who I can rely on to look out for my best interests, to take care of me.[28]
[28] Transcript, p. 124, lines 30-33.
The participant was asked ‘if you had a plan nominee who should it be?’ and he answered, ‘a smart person, someone who looks out for the best interests of me.’[29] ‘I love my Dad[30] he is good at maths, but he may not be smart enough to do it.’ … ‘my dad ‘treats me with respect… because he cares about me…he’s looking out for the best for me.’[31]
[29] Transcript, p. 124 or 57, line 30.
[30] Transcript, p. 227, line 41.
[31] Transcript, p. 515, lines 25 – 39.
In summary, the applicant’s position was that ‘Jacob is vulnerable due to his disability and his diagnosis of schizophrenia makes it difficult for him to identify ulterior motives or conflicts of interest so he needs a plan nominee, and it should be me.’[32]
[32] Closing submissions of applicant.
The protracted nature of the decision under review
The hearing was initially set down for three days commencing 9 December 2024. The final and tenth day of the hearing took place on 1 August 2025. There were four factors that lengthened the hearing duration: the circumstances of the participant and applicant, the nature of the allegations, the delay in Magenta’s attempts to comply with the summons to produce and the large number of witnesses.
The circumstances
Firstly, the Tribunal accepted the participant’s request to attend the hearing in person when practicable and that the participant wanted to be able to ‘tell the Tribunal’ his views. This meant that the hearing days were:
·Conducted in a hybrid manner; both in person and on video;
·Sometimes shorter in length because the applicant and participant travelled for up to three hours each way to attend in person; and
·Always conducted with the participant being supported by an independent disability advocate, Ms Raguse, who sat with the participant in a private room when they did not attend in person at the Registry.[33]
[33] The Tribunal acknowledges the assistance of Ms Raguse in this role.
The nature of the allegations leading to the summons issuing
Secondly, there were serious allegations made against the applicant in his role as plan nominee by people working in various supporting roles for the participant. These allegations may be summarised as allegations of abuse of a physical, financial and emotional nature by the applicant against the participant and the applicant’s wife.
On 13 September 2024 the Tribunal issued summons to appear and summons to produce in order to test these allegations.
On 14 October 2024 at 9am the summons was required to be met.[34]
[34] Transcript 12 December 2025, p. 151, lines 14-17. EB-2, p. 1265.
The first summons to appear and produce was complied with in full by the Lismore Base Hospital;[35] its employed social worker, Ms Jodie Phillips, (‘Ms Phillips’), gave oral evidence under summons.
[35] Transcript 9 December 2025, p. 5, lines 40-44.
Only the summons to appear was complied with by Magenta across the hearing period.
The 13 September 2024 summons to produce for Magenta required (verbatim):[36]
“All memorandums, notes, records, reports, letters, correspondence, emails, text messages, or any other form of written or electronic documents dated between 1 May 2022 to 30 September 2022 inclusive, which were created by staff or other persons acting on behalf of Magenta Community Services Proprietary Limited in the course of their employment or service, which relates howsoever to Mr Jacob Thomas McDonald –[date of birth] or Kenneth Craig McDonald, also known as Craig –[date of birth] or any other person who acted on behalf of or proposed to act on behalf of Mr Jacob Thomas McDonald or Mr Kenneth Craig McDonald.’
[36] Transcript, 9 December 2025, p. 6, lines 20-38. EB-2, p. 1273.
The 1 May 2022 to 30 September 2022 inclusive period was ‘the relevant period’ of the summons to produce for Magenta.[37]
[37] EB3, p 1272.Summons to produce to Magenta. Summons to appear to Ms Davis and Ms Thomas.
However, it became apparent when Ms Thomas[38] started to give sworn evidence on 9 December 2024, day one of the hearing, that there was non-compliance with the Magenta summons to produce for the relevant period. One example was that the applicant had produced as part of his evidence, an email he had sent to Ms Thomas dated 26 July 2022, during the relevant period, and the applicant had received a response from Ms Thomas. However, none of these emails were produced by Magenta in answer to the summons to produce.[39]
[38] Transcript, p. 48, lines 37-46. The Tribunal accepted Ms Thomas’ oral evidence that she was born Erin Paschkow and had changed her surname to ‘Thomas’ after her marriage.
[39] Transcript, p. 7, lines 15-40.
The delay in Magenta’s attempts to comply with the summons
The Tribunal afforded the participant’s service provider, Magenta, three opportunities to comply with their summons to produce. This was because the Tribunal wanted Magenta staff to have the contemporaneous documents before them of the conversations and correspondence internally between Magenta staff and between external stakeholders and other relevant parties regarding the serious allegations made against the applicant.[40]
[40] Transcript, p. 147, lines 24-26.
The Tribunal received three tranches in response to the summons to produce: the October 2024 tranche, the December 2024 tranche and the February 2025 tranche:
·14 October 2024: (the ‘October tranche’). It became apparent on 9 December 2024 that the material produced in this tranche did not comply with the summons.[41]
[41] Transcript, 9 December 2024, p. 47, lines 44-47.
oThe Agency emailed Magenta which then led to the December tranche being filed in the early hours of the second day of the hearing.
·10 December 2024: (the ‘December tranche’). It became apparent that the December tranche did not comply with the summons:
oThis material was not produced in a chronological, nor category order;
oThis tranche did not cover the relevant period, that is the documents covered a period before and after but not during the relevant period;
oThere were no file notes authored by Ms Thomas returned within this tranche.
·Around 12 December 2024, the Agency provided an Australian Securities and Investments Commission historical search for Magenta. [42]
[42] Transcript, 13 December 2024, p. 159, lines 3-9.
oThere was only one director, and one secretary, Ms Jeanne-Marie Iuso also known as Ms Jonny Iuso, (‘Ms Iuso, or the proper officer’).[43]
oThe Tribunal also issued summons to appear to Magenta employee, the ‘quality compliance and culture lead’, Ms Stefannie Griffiths (‘Ms Griffiths’).
·On 13 January 2025, Ms Iuso and Ms Griffiths attended the resumed hearing. Ms Iuso agreed to comply with the 13 September 2024 summons by 4pm on 20 January 2025. Magenta was subsequently granted extra time to comply.
·On the 10 February 2025 directions hearing it was clear there was continued noncompliance with the original summons. The bundle of documents produced was large and not in chronological order. Therefore, the hearing dates for 18 to 21 February 2025 were vacated.
·Around 20 February 2025: (the ‘February tranche’). This material was not provided in a readable format for the applicant and participant. The Tribunal observed that:
oThere were only five documents in the February tranche which appeared to be file notes from Ms Thomas.
oNone of those documents contained information that the Tribunal might expect to exist given the oral evidence that Ms Thomas had already given on 9 December 2024.[44]
[43] Transcript, 13 December 2024, p. 158, lines 45-47.
[44] Magenta community services bundle at 12, 14, 389, 390 and 439. These all relate to the participant’s plan, not budgets, rather than being file notes of relevant events.

Despite the best endeavours of the Agency and Tribunal to compile the February tranche to assist the applicant and participant there were several delays which included:
·Brisbane office shutdowns due to Cyclone Alfred around 7-10 March 2025;
·The 24 March 2025 directions hearing established two outcomes. Firstly, Magenta had for the third time not complied with the summons, but had instead produced incomplete, disorganised material with duplications of irrelevant material that was difficult to navigate.[45] Secondly, the Tribunal set down the remaining hearing dates in June 2025.
·The Tribunal granted extra time for the three tranches of summonsed material to be provided to the applicant and participant in a navigable format because:
oThe Magenta file sizes were very large and required several uploading attempts;
oThe applicant sought external support form a local service provider to assist him to download the Magenta summonsed material;
oThe Tribunal acknowledged that the applicant and participant did not have the same resources as the Agency to consider the summonsed material.
[45] Transcript, 24 March 2025, p. 216, 16-21.
The witnesses
The Tribunal heard from seven witnesses during the hearing.
·The participant;
·The applicant;
·Ms Phillips, social worker, employed at Lismore Base Hospital in 2022;[46]
·Ms Thomas, support co-ordinator from early June 2022 and during the relevant period as writ under the Tribunal issued summons;[47]
·Ms Tracey Davis, (‘Ms Davis’) a team leader responsible for Magenta’s support staff assisting the participant with some of his supports during the relevant period;[48]
·Ms Jonny Iuso;[49] and
·Ms Stefannie Griffiths, the Magenta ‘quality compliance and culture lead.’[50]
[46] Transcript, p. 74, lines 35-37.
[47] Ms Thomas commenced giving evidence on 9 December 2024, then also on 10 and 11 June 2025.
[48] Ms Davis commenced giving evidence on 12 June 2025.
[49] Ms Iuso gave evidence on 13 January 2025.
[50] Ms Griffiths gave evidence on 13 January 2025. Transcript, p. 170, lines 1-3.
When evidence was initially given by the applicant on 9 December 2024 and by the participant on 10 December 2024, they only had the October tranche available to them. Therefore, both the applicant and participant were recalled in order to be given opportunity to comment about the further material produced in the December and February tranches.
One example of why this was important was that in the material no text messages were returned under summons in any of the tranches. However, the applicant contended that:
Every time I visited Jacob, whilst ever I was speaking his Magenta support worker would tap away on their phone. When I stopped speaking, they would stop soon after. I believe they were creating a record of our conversations. This belief was further evidence by the phone call I would receive from Erin Thomas or Tracey Davis the next day referencing the topics of our conversation.’[51]
[51] EB-2, p. 56 [6].
On 9 December 2024, the Agency submitted that the text messages were part of the summons. This was part of the 15 January 2025 email that the Agency sent to Ms Iuso. There was no evidence that the text messages did not exist or could not be returned.
The Agency assisted the Tribunal by providing Magenta the indexed bundle from EB-3 which was document 42 through to 378 to assist Magenta in seeing what documents they had already produced. The Tribunal directed that Magenta provide the documents in chronological date order.[52]
[52] Transcript, p. 202, lines 44-45.Transcript page 200, lines 19-36.
Ms Griffiths gave evidence that she was ‘told about the summons to produce’ on 4 October 2024.[53] Ms Griffiths stated
I was asked to produce … to – ‘Can you pull together documents from 1 May to 30 September 2022 related to service delivery (indistinct) for Jacob’s capacity to make decisions for himself. Timeframe required 14 October [2024].[54]
[53] Transcript, p. 171, lines 1-2.
[54] Transcript, p. 171, lines 11-15.
Ms Griffiths stated the following:
·She ‘complained at the 8 October 2024 leadership meeting that she ‘was not given the documents in totality’[55] but was told to ’provide what I’d been requested to;’[56]
·On 9 December 2024 she contacted Magenta’s external [information technology] provider and saw that material was missing and had not been provided in the summons to produce[57] due to changes in ‘the electronic management system.’[58]
[55] Transcript, p. 171, lines 35-36.
[56] Transcript, p. 173, lines 40-41.
[57] Transcript, p. 179, lines 34-45.
[58] Transcript, p. 183, lines 32-33.
Ms Iuso gave evidence that the original summons was not complied with due to ‘a simple mistake and we know it hasn’t complied, but it was not done with any ill-intent whatsoever.’[59] When it was put to Ms Iuso that Magenta’s second opportunity to comply with the summons by 13 January 2025 had still not produced any file notes by Ms Thomas for the relevant period Ms Iuso stated she would ‘do a full investigation.’[60]
[59] Transcript, p. 197, lines 16-17.
[60] Transcript, p. 198, line 16.
The evidence received by the Tribunal
The Tribunal received into evidence the following joint exhibit bundles (‘EB’) that totalled around 13,000 pages:[61]
[61] Transcript, p. 214, line 4.
·EB-1 – 473 pages;[62]
[62] Marked on 9 December 2024.
·EB-2 – 2252 pages;[63]
[63] Marked on 12 December 2024
·EB-3 – 1322 pages;[64]
·EB-4 – 7,144 pages;[65]
·EB-5- contained material provided personally by Ms Thomas and had six annexures, marked Annexure A to Annexure F.[66]
·EB-6 – documents provided by the applicant;[67]
oAnnexure A – three bank statements from the Greater Building Society. The first dated 25 May 2011 until 30 June 2011; the second, dated 31 December 2018 until 30 June 2019; the third dated 30 June 2024 until 31 December 2024.
oAnnexure B - Statement of the applicant titled ‘Jacob McDonald financial matters,’ dated 9 June 2025.
oAnnexure C - letter from Dr Therese Grotowski, psychiatrist, addressed to the Guardianship Tribunal dated 5 September 2022.
·EB-7 – 20 March 2025 Agency email to all parties, discussed at the 24 March 2025 directions hearing outlining Magenta noncompliance with summons.[68]
[64] Transcript, p. 158, lines 16-17. Transcript, p. 203, line 14.
[65] Received around March 2025.
[66] Marked on 11 June 2025.
[67] Received on 10 June 2025.
[68] Transcript, p. 217, lines 40-41.
The Tribunal received the Agency’s written closing submissions after 17 July 2025. The applicant and participant were provided the opportunity to attend in person for closing submissions on 1 August 2025.
The Tribunal acknowledges the lengthy and difficult process for the parties.
PART THREE: THE LEGAL FRAMEWORK REGARDING A PLAN NOMINEE
The scope of review
The Tribunal must determine whether to affirm, vary or set aside the[69] decision to cancel the appointment of the applicant as the participant’s plan nominee.[70] The statutory criteria for the removal of a plan nominee are set out in the NDIS Act and the nominees rules. Section 89 of the NDIS Act deals with ‘circumstances in which the CEO must cancel appointment of nominees’. The most relevant parts of section 90 are detailed at [59] below. Section 91 of the NDIS Act deals with ‘suspension etc of appointment of nominees in cases of physical, mental or financial harm.’
[69] Section 56(1), ART Act
[70] Section 99(1)(22), NDIS Act.
Removal of a nominee
Section 90 of the NDIS Act states:
General circumstances in which CEO may cancel or suspend appointment of nominees
At the request of a participant
(1)       If:
(a)       a person is appointed as a nominee of a participant under section 86 or 87 on the initiative of the CEO; and
(b)       the participant requests the CEO to cancel the appointment;
the CEO may, by written instrument, cancel the appointment.
(2)       A request under paragraph (1)(b) need not be made in writing. If the request is not made in writing, the CEO must make a written record of the request.
(3)       If a request is made under paragraph (1)(b):
(a)       the CEO must decide whether to cancel the appointment within the following number of days after receiving the request:
(i)        14 days, unless subparagraph (ii) applies;
(ii)       if the National Disability Insurance Scheme rules prescribe a number of days for the purposes of this subparagraph—that number of days; and
(b)       if the CEO decides not to cancel the appointment—the CEO must give the person and participant written notice of the CEO’s decision.
When the appointment of a plan nominee is made at the Agency’s initiative[71] the Agency must, if the participant requests it, cancel the appointment. The cancellation should be made if the person’s ability to act as nominee becomes compromised, or if there are reasonable grounds to believe that the nominee has caused (or is likely to cause) harm to the participant.[72]
[71] Section 86(2)(a), NDIS Act.
[72] Section 90, NDIS Act; Rule 6.4, nominees rules.
In deciding whether the nominee’s appointment should have been cancelled, the Tribunal must have regard to the plan nominee rules and in particular:[73]
[73] Rules 6.3, 6.4 and 6.5, nominees rules.
·the conduct of the nominee in relation to the participant, including:
oany breach of nominee duties (set out at [62] below); and
oif the nominee has caused, or is likely to cause physical, mental or financial harm to the applicant;
·the results of any review made of the participant’s plan;
·the impact of the cancellation on the participant;
·the views of the participant and also of any person who cares for or supports them;
·whether the participant still needs a nominee, having regard to:
(i)if the participant would be able to participate effectively in the scheme without the nominee;
(ii)the principle that a nominee should be appointed only when necessary, as a last resort and subject to appropriate safeguards;
(iii)if the participant has a court-appointed or participant-appointed decision-maker;
(iv)any supportive relationships, friendships or connections the participant has that could be relied on or strengthened to assist them to make their own decisions, or improved by the nominee; and
(v)any relevant views of the participant, any person who assists them to manage their day-to-day decisions and activities and any appointed decision-maker.
Duties of the plan nominee – section 80 of the NDIS Act
The Tribunal must have regard to any breach of the nominee duties by the applicant, in deciding whether he should have been removed as nominee.[74] The duties of a nominee are to:
·ascertain the wishes of the participant and promote their personal and social well-being;
·only act where the participant is not capable of doing, or does not want to do an act themselves;[75]
·consult with any other person who assists the participant to manage their day-to-day activities and make decisions;
·develop the capacity of the participant to make their own decisions as best they can, if possible, to a point where the nominee is no longer required;
·have regard to, and give appropriate weight to, the views of the participant; and
·manage any conflicts of interest (pecuniary or otherwise) that could interfere with the performance of their duties.
[74] Rule 5.2(c).
[75] Section 78(5) of the NDIS Act states that if the nominee was appointed on the Agency’s initiative the nominee may only do an act in relation to aspects of the plan including the management of funding for supports if the nominee considers that the participant is not capable of doing, or being supported to do, the act.
Objects and principles of the NDIS
The NDIS Act contains a number of objects and general principles that provide additional guidance in deciding actions made under the NDIS Act, including whether the plan nominee has breached their duties or should be removed.[76] The relevant objects of the NDIS Act are:
·to support the independence and social and economic participation of people with disability; and
·to enable people with disability to exercise choice and control in pursuit of their goals and the planning and delivery of their supports.
[76] Section 3(1)(c) and (e);
The relevant principles of the NDIS Act are set out in the sections below:[77]
[77] Section 4, NDIS Act. Section 5 of the NDIS Act also outlines general principles guiding actions of people who may do acts or things on behalf of others.
·(s 3) people with disability and their families and carers should have certainty that people with disability will receive the care and support they need over their lifetime;
·(s 4) people with disability should be supported to exercise choice, including in relation to taking reasonable risks, in the pursuit of their goals and the planning and delivery of their supports;
·(s 5) general principles guiding actions of people who may do acts or things on behalf of others;
·(s 6) people with disability have the same right as other members of Australian society to respect for their worth and dignity and to live free from abuse, neglect and exploitation;
·(s 8) people with disability have the same right as other members of Australian society to be able to determine their own best interests, including the right to exercise choice and control, and to engage as equal partners in decisions that will affect their lives;
·(s 9) People with disability should be supported in all their dealings and communications with the Agency and the Commission so that their capacity to exercise choice and control is maximised in a way that is appropriate to their circumstances and cultural needs;
·(s 12) the role of families, carers and other significant persons in the lives of people with disability is to be acknowledged and respected;
·(s 12A) the relationship between people with disability and their families and carers is to be recognised and respected; and
·(s 13) the role of advocacy in representing the interests of people with disability is to be acknowledged and respected, recognising that advocacy supports people with disability by:
(i)promoting their independence and social and economic participation; and
(ii)promoting choice and control in the pursuit of their goals and the planning and delivery of their supports; and
(iii)maximising independent lifestyles of people with disability and their full inclusion in the community.
Considerations around the appointment and cancellation or suspension of appointment of a plan nominee
The relevant considerations for the CEO or the Tribunal are outlined in section 88 of the NDIS Act. The decision maker must consider:
·The wishes of the participant regarding the making of the appointment.[78]
·Whether the proposed nominee has consented in writing to be the nominee.[79]
·Whether the proposed nominee can comply with the duty outlined in section 80 of the NDIS Act, to ascertain the wishes of a participant and act in a manner that promotes the personal and social wellbeing of the participant.[80]
·Whether the proposed nominee can comply with the duties outlined in the nominees rules and pursuant to section 80(4) of the NDIS Act including:
oThe duty to act only if the participant is not capable of doing the act.[81]
oThe duty to consult with other persons, including appointed decision-makers, those who assist the participant day-to-day and other nominees.[82]
oThe duty to develop the capacity of the participant.[83]
oThe duty to avoid or manage conflicts of interest.[84]
[78] Section 88(2)(b) and rules 3.14(a), 4.6.
[79] Section 88(2)(a)
[80] Section 88(3), Rule 4.7.
[81] Rule 5.5-5.7.
[82] Rule 5.8.
[83] Rule 5.10-5.11.
[84] Rule 5.12-5.13.
The nominee rules require the following consideration:[85]
[85] Rule 3.14. Also Part 5 – how nominees are expected to act.
·Whether the participant would be able to participate effectively in the NDIS without having a nominee appointed; [86]
[86] Rule 3.14 (b)(i).
·The principle that a nomination be appointed only when necessary, as a last resort, and subject to appropriate safeguards;[87]
[87] Rule 3.14(b)(ii).
·Whether the participant has supportive relationships, friendships, or connections with others that could be relied upon or strengthen to assist the participant to make their own decisions - or improved by appointment of an appropriate person as nominee;[88]
[88] Rule 3.14(b)(iv)(A) and (B).
·Any relevant views of the participant, a person (including a carer) who assists the participant to manage their day-to-day activities and make decisions, or any court-appointed or participant-appointed decision maker;[89]
[89] Rule 3.14(b)(v)(A), (B), and (C).
·The decision maker to have regard to a range of considerations, broadly relating to how the nominee would perform their duties if they were appointed;[90]
·The nominee is expected to act under guidance of the NDIS Act and nominee rules and has duties to participants under Part 5[91] of the nominee rules which may be summarised as:
oA duty to ascertain wishes, and promote personal and social wellbeing, of participant;[92]
oTo act only if participant [is] not capable;[93]
oA duty to consult;[94]
oA duty to develop capacity of participant;[95] and
oA duty to avoid or manage conflicts of interest.[96]
·The CEO is to have regard to… the views of… any person who cares for or supports the participant.[97]
[90] Rule 4.8(b).
[91] Rule 5.1 and 5.2.
[92] Rule 5.3 and 5.4
[93] Rule 5.5, 5.6 and 5.7.
[94] Rule 5.8 and 5.9.
[95] Rule 5.10 and 5.11.
[96] 5.12, 5.13.
[97] Rule 6.5(d)
PART FOUR: EVIDENCE AND CONTENTIONS
I acknowledge the best endeavours undertaken by the parties to assist the Tribunal in this matter.[98] In particular, the efforts of the participant in giving his views in oral evidence.[99] All parties provided comprehensive submissions that faithfully reflected the legal framework relevant to this review.[100]
[98] In accordance with section 56 of the ART Act.
[99] Rule 4, nominees rules.
[100] As stated in [58] – [66].
I acknowledge the administrative workload undertaken by the Agency in assisting the participant, applicant and Tribunal in compiling the evidence and in particular the summons evidence.
The Agency
The Agency cancelled the applicant’s nominee status because of the participant’s letter requesting they do so in writing.[101] In its reasons to the applicant refusing his request to be reinstated as plan nominee, the Agency reviewed the materials and gave its considerations as follows.
Materials reviewed
i.National Disability Insurance Scheme Act 2013 (Cth)
ii.National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)
iii.National Disability Insurance Scheme (Nominees) Rules 2013 (Cth)
iv.Our Guidelines – Appointing a Nominee
v.Our Guidelines – Guardians and Nominees explained
vi.Mr Jacob McDonald – Letter to the NDIS requesting cancellation
[101] T Documents, T24.
Accommodation and supports
The Agency stated that there was a conflict of interest between the applicant and participant that would impact the applicant’s ability to carry out his role as nominee. The applicant’s initial preference was that the participant move back to the family home and be provided with informal supports. However, the participant wished to remain living in his SIL accommodation with his current supports including Magenta. The significant difference between these views left the Agency unsatisfied that it was in the participant’s best interests to reinstate the applicant as plan nominee.
Risk of harm

The Agency found that a plan nominee may represent a risk to the participant’s emotional well-being and progress towards achieving his plan goals and aspirations, including:
·improving independent living skills, such as cooking and personal hygiene, and regulating his behaviour to be able to spend more time in group settings;
·improving and stabilising his health and well-being, including mental health;
·improving his communication;
·finding suitable housing; and
·continuing to engage in community activities and make friends.
Capacity to make decisions around living arrangements and supports
The Agency’s view was that the participant had the cognitive capacity to make his own decisions, and that the participant’s disabilities that could impact this capacity were stable and well-managed at the time. If the participant should require support in decision-making, there were additional measures in his plan including support coordination, support workers and treating professionals.
The Agency was satisfied that the participant did not require a plan nominee, on the basis that there was also no documentary evidence that the participant required a legal guardian to manage his affairs, and that he was well-supported by his formal support network to be able to exercise choice and control in his living arrangements and the supports he received.
Mr Kenneth McDonald, father of the participant.
The applicant is 64 years old. He currently lives with his wife and adult aged daughter who are also participants in the scheme, and he provides them both with informal support around decision-making and financial management. His contention is that the participant requires a plan nominee, and that he is the most suitable person for that position.
I find the applicant was a credible though at times aggrieved witness. This is understandable given that documents that Magenta did produce contained allegations of physical, financial and other abuse by the applicant against his son and wife.[102]
[102] Closing submissions of Agency at [45].
Nevertheless, I found the applicant’s evidence in response to these allegations against him to be both reasonable and truthful.
Some years ago, the applicant built a self-contained unit on the family property for the participant to live in independently.
The applicant stated that in July 2021 the participant was hospitalised for six months as the participant suffered medical complications from his diagnosed condition. The result was that the participant’s support needs increased, and he would have required a lift to access the unit [at the family property].[103] The applicant contacted the Agency on 14 November 2021 about this change in circumstances for the participant. The Agency appointed the applicant as plan nominee on 23 December 2021 in perpetuity, until 31 December 9999.
[103] Transcript, p. 11, lines 14-22.
The applicant stated that in mid-January 2022 the participant was discharged from hospital to a short-term motel accommodation. There were floods in the area in February 2022 and the participant was moved to a SIL accommodation leased and managed by Magenta known as Ross Street. The applicant described Ross Street as ‘a makeshift property that was added under a house that [Magenta] were leasing to another client. It had issues with water getting in and a few other problems, but it was fine until he regained his pre-injury mobility baseline.’[104]
[104] Transcript, 9 December 2025, p. 14, lines 15-20.
The applicant stated he was told that the participant had a ‘fall at Ross Street’ around 17 May 2022 and the participant was hospitalised for fractures.
As plan nominee, around May to June 2022 the applicant was asked to sign a request for bathroom modifications to the participant’s Ross Street temporary accommodation in the amount of $32,000.00.[105]
[105] Applicant’s statement of the participant’s history dated 31 July 2023.
The applicant had refused to sign Magenta’s request for bathroom modifications on the basis that the modifications did not accurately reflect the needs of the participant, and that they would delay the participant’s release from hospital. Magenta, he stated, intended to misrepresent the accommodation to the Agency as being intended as long-term, to obtain funding for the modifications whilst another accommodation was undergoing renovations.
The applicant made inquiries with Magenta whether other suitable accommodation was available for the participant. The applicant also sought the opinion of the participant’s previous occupational therapist about the proposed home modifications as he contended he was worried about the participant’s plan money being spent on modifications that would likely not be made. The applicant contended that the proposed modifications would likely not be approved by the Agency. Having reached an impasse with Magenta, the applicant eventually agreed to sign the modifications request, which was ultimately rejected by the Agency upon review. These views were congruent with the evidence.
On 25 July 2022 the applicant spoke with the participant’s support coordinator, Ms Thomas. The applicant requested that Magenta handover the participant’s support coordination services to another service provider. This was the day before Ms Thomas telephoned the Agency to request the applicant’s removal as the participant’s plan nominee.[106] On 23 August 2022, Ms Thomas informed the applicant that he had been removed as plan nominee since 26 July 2022 and she therefore was not required to conduct the handover.
[106] See [62] above.
On 25 August 2022 Ms Thomas telephoned the Agency in regard to the status of her telephone call of 26 July 2022 requesting that the applicant be removed as plan nominee. Ms Thomas was informed that, because the participant could not be contacted directly, a written and signed request from the participant to the NDIS was required.[107]
[107] T Documents, T12.
The applicant clarified that the participant was admitted to Lismore Base Hospital from 17 May 2022 and then went to the Ballina Rehabilitation Unit and returned to ‘Ross Street temporary accommodation’ around 29 September 2022. [108]
[108] Transcript, p. 11, line 22.
Around 19 December 2022 the participant moved into another SIL accommodation managed by Magenta known as ‘Skyline Road.’[109]
[109] Transcript, p. 15, lines 5-6.
The applicant maintained that the participant was influenced by Magenta staff when the participant requested to remove him as plan nominee. The applicant’s evidence was that the participant had been told by Magenta staff that his father had been stealing his money, and that he would lose his supports unless his plan nominee was removed. The applicant raised other concerns around Magenta, in particular a conflict of interest as both the coordinator and also the provider of the participant’s supports.[110]
[110] Applicant’s submission to the Tribunal dated 15 March 2023.
The applicant described the close bond he shared with his son. He also gave a number of examples whereby Magenta staff had attempted to undermine the quality of their relationship as well as his competency as plan nominee, with a view to retaining their NDIS provider package. The applicant gave further examples where Magenta staff had not provided the degree of care he wished for the participant, such as continuing his swimming lessons.
The applicant considered that he was happy to continue working with Magenta as service provider to make sure the participant’s supports are not affected, however under an independent support coordinator. The applicant acknowledged that the participant wished to live in his current SIL accommodation and maintained that he would not force him to move.[111]
[111] Applicant’s statement of the participant’s concerns dated 31 July 2023.
The applicant explained that the participant can at times need assistance understanding the ‘bigger picture’,[112] and therefore requires a nominee who can access NDIS information and explain it to him.[113] He stated:
‘In the role of nominee I do not see myself as an alternative decision maker for Jacob (unless incapacitated) but rather as someone he can trust to explain to him the issues at hand to the point where he can make the decision himself then to liaise with his support coordinator or NDIS planner to instruct them as to Jacob's wishes. Ideally Jacob would be present throughout this process so he can see how it works and he can gain the confidence to effectively speak for himself. I give Jacob my word that his choices matter, and I will do whatever it takes to make them happen.’
[112] Applicant’s submission dated 29 September 2023.
[113] Applicant’s submission dated 15 March 2023.
Mr Jacob McDonald
The participant is 33 years old. His lifelong neurodevelopmental disabilities have resulted in significant functional impairments and ongoing high daily supports needs across all areas of daily living. The participant also has high behavioural and emotional support needs, and he requires a wheelchair to mobilise.[114]
[114] T Documents, T31.
I find the participant’s evidence was honest and clear. It was evident that the participant loves and trusts the applicant and that he values healthy relationships with other people. I respect and acknowledge that the participant has strong opinions around being involved in his own decision-making.
The participant described his father as ‘loyal, kind, faithful, smart, flexible, intelligent, very gracious, very generous.’[115]
[115] Transcript, p. 118, lines 31-39.
The participant expressed surprise at the hearing when he understood that a plan nominee was not paid to do their role.[116] Later in the hearing the participant stated he believed his father ‘used to get paid to be plan nominee…and now I am controlling my own funding.’[117]
[116] Transcript, p. 132, lines 6-31.
[117] Transcript, p. 515, lines 45-47 and p. 516, lines 1-3.
The participant was asked by the applicant why he would not want his father as his plan nominee and he responded
‘I could imagine that Magenta would go and they would be like, ‘No, you can’t have him as nominee’. You know, they’ll probably say like, I’m afraid they’ll question you or ask you, interrogate me even about why you’d be my nominee. I’m afraid they might threaten you and questions and stuff like that.’[118]
[118] Transcript, p. 137, lines 21-25.
The participant stated he would like to be his own nominee and have his say and ‘be in charge’.[119] He also stated ‘I don’t understand what I need and how to do it. I need someone who understands and knows how to do it and knows how to meet my needs.’[120] The participant likes to have a sense of control over his finances and manages his own spending money, albeit he requires support with budgeting. He would like to have control of his spending money for purchases such as games and toys and have choices around the food that he can cook and purchase.[121]
[119] Transcript, p. 582, lines 1-4.
[120] Transcript, p. 583, lines 7-9.
[121] Views of Mr Jacob McDonald - Disability Advocacy NSW, notes from meeting on 26 July 2023.
The participant enjoys living in his SIL shared accommodation and his current supports. He described a loving and healthy relationship with his family. The participant likes spending regular time with his family and this may involve eating meals together or celebrating birthdays.[122] He sometimes asks his father for help with money to buy Pokémon games, or other items online. The participant purchased his own mobile telephone in 2024. He did not have his own telephone in 2022.[123]
[122] Transcript, p. 121, lines 9-11.
[123] Transcript, p. 121, lines 20-22.
Medically speaking, the participant has been deemed to have full capacity to make independent decisions,[124] although he remains vulnerable to making choices that are detrimental to his health, safety and well-being. The participant has acknowledged that there are times that, due to his medical conditions, he lacks insight and understanding of his needs.
[124] T Documents, T17.
On 15 February 2023, psychologist Heike Mebold stated that whilst the participant had demonstrated reasonable insight, judgement, and decision-making skills in his request to achieve autonomy, he remained vulnerable to making choices that are detrimental to his health, safety, and wellbeing. Ms Mebold observed that the participant expressed concerns around others stealing his money and food, and to stay safe and healthy requires ‘proactive support’.[125]
[125] T Documents, T31.
On 31 August 2022, an application to the New South Wales Civil and Administrative Tribunal – Guardianship division (‘NCAT’)[126] was made on the participant’s behalf by social worker Ms Phillips. The application stated that the participant requested access to a public guardian to support financial and life decisions in a fair and supportive manner, and that he felt his father was no longer acting in his best interests or considering his preferences for care/socialisation/NDIS provider or life choices.
[126] New South Wales Civil and Administrative Tribunal (NCAT) – Guardianship division.
NCAT contacted Ms Phillips to withdraw the application as a psychiatrist, Dr Mischa, reported that the participant had capacity for decision-making.[127]
[127] EB1, page 66.
The participant later expressed that he was ‘sceptical’ of Ms Thomas and her actions around his plan nominee removal. He stated that ‘she seems like a bad person’ and that he did not think it was right to remove his father as his plan nominee. [128] He also expressed that Magenta were pushy and ‘wouldn’t give up’.[129]
[128] Transcript, p. 127, lines 40- 46.
[129] Jacob McDonald Submission dated 19 April 2024.
The participant stated that ‘people like Erin Thomas said that ‘Dad wants to control my funding.’[130] Then later the participant said ‘Dad is not trying to get the money. He’s always been caring of me.[131]
[130] Transcript, p. 112, lines 23-26. Also, transcript, p. 519, lines 44-45.
[131] Transcript, p. 113, lines 34-36.
The participant’s evidence was that the first time he had heard about a plan nominee was at the 26 July 2022 hospital meeting with Ms Thomas and Ms Davis in attendance. Counsel asked the participant:[132]
Who were you speaking to when you first heard about a plan nominee?---

My first ever plan nominee, Erin Thomas and Tracey Davis or whatever was with me. And when they were first with me, I asked what was going on, and they – I asked, well why are they here. And they were, like, we came because we want to give you a plan nominee, you know, your – we came because wanted to know if you want to live – so they just asked basically whether I wanted to live in Ross Street or Skyline Road, and we want to be plan nominee. And they asked basically if I want dad to be plan nominee. I asked, why are you saying that? I answered yes, but why? And they were, like, you know, they were, like, well, they basically said that dad’s trying to control my money and that dad should not be plan nominee. And they asked if I didn’t want dad to be a plan nominee. They said that dad’s trying to control my money and they wanted to know whether I – whether I was happy with dad and whether I wanted to take him off as plan nominee (indistinct) Skyline Road.
[132] Transcript, p. 519, lines 22-35.
At the hearing, the participant expressed his understanding of a ‘plan nominee’ to be ‘someone who looks out for the best interest of me, someone who helps me out. Someone who I can rely on to look out for my best interests, to take care of me.[133] The participant said he ‘might need a plan nominee and it should be a ‘smart person, who is patient.’ The participant also described his father as ‘loyal, kind faithful, smart, flexible…and also quite patient.’[134]
[133] Transcript, p 124, line 30.
[134] Transcript p. 188, line 30.
In his closing submissions the participant stated:
‘I was coaxed into removing dad as nominee. Dad did lose control of nominee and funding. Unfair for poor dad who was doing his best to provide for me. I was angry and upset when I found out they did that to dad. They made him feel victimised. I felt dad’s pain and anger in his voice.[135]
[135] Transcript, p. 586, lines 40-44.
Magenta staff
Magenta have provided scheme services to the participant since around 2018.[136] After the participant was discharged from hospital around January 2022, he has lived in SIL accommodation leased by Magenta, and his daily supports and support coordination were also provided by Magenta. Daily supports continue to be provided by Magenta to the participant. However, from around April 2025 a different coordinator of support services provider has provided support coordination services to the participant.[137]
[136] The applicant reported Magenta as providing services for the participant from 2017. Magenta reported they had provided services for the participant since 2018.
[137] Transcript, p. 545, lines 40-45.
Magenta staff attended two stakeholder meetings when the participant was hospitalised in 2022. The first stakeholder meeting was on 31 May 2022. On 21 July 2022 Magenta staff attended the second stakeholder meeting at the hospital with the applicant and the participant (the July 2022 meeting). There were around 15 attendees at this meeting.[138]
[138] Transcript, p. 428, line 47.
Ms Thomas
Ms Thomas holds a Diploma in community services and her current role is as a Leader of Support Coordination. Ms Thomas commenced employment with Magenta in 2019 and she was the participant’s support coordinator from 2 June 2022[139] until around August 2023.[140] Ms Thomas confirmed that most of the participant’s scheme funding was paid for services provided by Magenta.[141]
[139] Transcript, p. 230, lines 24-25.
[140] Transcript, p. 231, lines 7-9.
[141] Transcript, p. 232, line 20.
Ms Thomas stated she understood support coordinators had to be careful to ‘maintain integrity by declaring and avoiding any real, perceived or potential conflicts of interest.’[142]
[142] Transcript, p. 234, lines 45-47.
Ms Thomas detailed some of the tasks she undertook in her role as a support coordinator for the participant during the relevant period which was:
·To coordinate the various services a participant wishes to use;
·Sometimes to ‘help with communication’ between services and stakeholders and family members. ‘I help and coordinate stakeholder meetings;’
·To assist with a participant’s NDIS budget. I help forecast what services they may be able to afford using their NDIS plan funding; and
·‘Look at the best interests of the participant.’
Ms Thomas believed that Magenta had provided her ‘case notes’ under the return of summons.[143] Ms Thomas stated that as the participant’s support coordinator she would have made file notes for the July 2022 stakeholder meetings. However, these notes were not produced in the return of summons.[144]
[143] Transcript, p. 325, lines 44-46.
[144] Transcript, p. 48, lines 1-30.
On 9 December 2024 Ms Thomas started giving evidence and was taken to a copy of one of the file notes made by team leader Ms Davis in the October tranche.[145] Ms Thomas explained there would be notes with her name at the bottom of them as she was the participant’s support coordinator in September 2022.[146] This led to the Agency sending an email to Magenta which caused:
·the December tranche to be filed; and
·the February tranche to be filed.
[145] Transcript, p. 47.
[146] Transcript, p. 48, line 14.
Ms Thomas’ notes have still not been produced.
In addition, no text messages have been returned under summons. Magenta staff were not able to respond to the applicant’s concern that ‘every time I visited Jacob Magenta support worker would tap away on their phone…I believe they were creating a record of our conversations.’[147]
[147] EB2, p 56, [6]
The chronology of events from Ms Thomas’ perspective is summarised below.
On 7 July 2022 Ms Thomas emailed Ms Iuso that the applicant was planning to change the participant’s coordination of services to another provider called ‘Indigo Rose’ and the director was Mr Nicholas Rose (‘Mr Rose’) because the applicant was ‘looking into other rental options’ for the participant.[148]
[148] EB-4, page 1305.

On 18 July 2022 Ms Thomas attended the July 2022 stakeholder meeting at the hospital.
On 25 July 2022 Ms Thomas asked to be included on the hospital visitor list for the participant.[149]
[149] Transcript, p. 320, lines 38-41.
On 25 July 2025 Ms Thomas met with the applicant as he attended the Magenta office. The applicant told Magenta that he wanted to move the participant’s coordination of supports to Indigo Rose under Mr Rose.[150]
[150] Transcript, p. 327, lines 7-9.
On 25 July 2022 Ms Thomas received an email from Mr Rose.[151] Ms Thomas responded on the same day to Mr Rose “with all due all due respect this is a very complex situation and changing support coordinators at this stage is not going to address the situation in Jacob’s best interest.’[152]
[151] EB-1, page 374.
[152] Transcript, p. 283, lines 5-7. EB-1, p 392. EB-1, p 394. Email of Mr Rose to Ms Thomas requested on behalf of plan nominee that the participant be managed by his service.
On 26 July 2022, Ms Thomas had her first fact to face meeting as support coordinator (since commencing the role around June 2022) with the participant at Lismore Base Hospital.[153] Ms Thomas stated that the participant informed her that he did not want his father as his plan nominee[154] and Ms Thomas phoned the NDIA to tell them this.
[153] Transcript, page 349, lines 4-8.
[154] Transcript, p. 329, lines 37-39.
On 26 July 2022 Ms Thomas lodged a complaint with the Age and Disability Commission regarding the applicant’s relationship with the participant.[155]
[155] Transcript, p. 361, lines 34-46.
On 28 July 2022, Ms Thomas wrote to NCAT[156] to report that the participant wanted to be his own decision-maker, and also to demonstrate the applicant’s ‘inability’ to make decisions on his behalf. Ms Thomas stated that a ‘long-term lease’ had been secured for the participant’s accommodation and referred to the applicant’s ‘refusal to sign the home modifications for approximately 6 weeks’.[157]
[156] Transcript, p. 361, lines 35-38.
[157] T Documents, T9.
On 23 August 2022 and two days before the letter requesting the applicant’s removal as plan nominee, the participant signed a form consenting for Ms Thomas to act on his behalf in his Agency affairs. This form approved all stated options for actions that Ms Thomas would personally be allowed to do including to request home modifications, make a complaint and request a plan review.
On 31 August 2022 the participant was discharged from Lismore Hospital to the Ballina Rehabilitation Unit.[158]
[158] Transcript, p. 439, lines 41-43.
On 26 October 2022 Ms Thomas stated that the participant’s then disability advocate[159] had told her that she had met with the participant around the period of 10-26 October 2022 and that the participant said he wanted to continue to live at Ross Street.[160]
[159] Ms Nicole Tuhou, disability advocate. Transcript, p. 384, lines 13-29.
[160] Transcript, p. 385, lines 15-17.
Ms Thomas stated ‘Jacob wanted to move back to Ross Street so that was what I supported him to do.’[161] Ms Thomas did not know why the participant moved to Skyline Road around November 2022.[162]
[161] Transcript, p. 245, lines 42-43.
[162] Transcript, p. 385, lines 40-41. Transcript, p. 385, lines 19-22.
Ms Davis, team leader
Ms Davis could not recall the particulars of the July 2022 stakeholders meeting, stating only that she had attended.
On 8 September 2022 the Agency notified Magenta that they had incorrectly been spending the participant’s NDIS funds to provide him with support workers while he was in hospital.[163] Ms Davis confirmed that Magenta had stopped this.[164]
[163] T Documents, T22.
[164] Transcript, p. 461, lines 34-41.
Ms Davis gave evidence that:
·She did not know why or who asked the participant to move from Ross Street;
·Skyline Road has 5 bedrooms and can accommodate three residents;[165] and
·She did ‘not sit down and explain to the participant that the rent would double at Skyline Road.’[166]
[165] Transcript, p. 423, lines 4-7.
[166] Transcript, p. 483, lines 40-41.
PART FIVE: CONSIDERATION
I am satisfied that the applicant should remain as the participant’s plan nominee. My considerations are set forth as follows.
The summons to produce
It was unclear why Magenta resisted answering the summons to produce. The three filed tranches did not include all material required to answer the summons to produce. I note the Agency assisted the Tribunal by emailing Magenta on 9 December 2024[167] and Magenta stated it would comply with the summons by 10 December 2024.[168] Magenta filed documents on 11 December 2024. On 13 January 2025 Ms Iuso as the proper officer accepted that there were documents the Tribunal did not have which were answerable to the summons and told the Tribunal that Magenta would work to file the relevant documents.
[167] EB-3, p. 1241.
[168] EB-3, pp. 1245, 1249, 1253. Agency closing submissions at [76].
I accept the Agency submissions that there were several issues with the summonsed material:[169]
[169] EB-7 20 March 2025 Agency email at [12].
·Firstly, much material was clearly beyond the scope of the summons that was returned.[170]
[170] February Tranche, Davis bundle, p238.
oOne example was that at least 372 of the 1,088 documents, which is over one-third of them were not returnable to the Tribunal because they fall outside of the relevant period identified in the summons.[171]
[171] EB-7 20 March 2025 Agency email, p. 5 at [22]-[25].
·Secondly, the material was delivered in a nonsensical and non-navigable order.[172]
[172] February Tranche. File notes were provided out of date order.
oNotwithstanding that Ms Iuso was taken to the summons on 13 January 2025 and requested to provide the material in a date order and only the documents which were answerable to the summons.
oThe Tribunal endorsed the request and explained the time and effort taken by Agency and Tribunal resources in compiling the data.
oOne example was that in the bundle of 897 emails in the folder marked ‘Erin Thomas material,’ the emails provided appeared to be sorted by email subject, with many bearing nondescript subjects as ‘Jacob McDonald’ with a three-digit number appended afterwards.[173]
·Thirdly, several documents were duplicated even though the Tribunal requested that Magenta not do this.
oThe Agency provided Magenta a table of contents containing a schedule of the documents that were already provided by Magenta in respect of the summons in their totality.
oThe Agency also provided an extract from the second hearing bundle which contained the actual documents provided to the Tribunal prior to December 2024. However, each record contained within the original bundle was again provided in the February Tranche.[174]
oThis led to significant Agency and Tribunal resources ‘being wasted identifying and then dealing with those irrelevant documents.’[175]
[173] EB-7, 20 March 2025 Agency email, p. 6 at [30].
[174] EB-7, 20 March 2025 Agency email p. 6 at [37].
[175] Agency closing submissions at [76].
The Tribunal acknowledged that the witnesses should have contemporaneous notes to refresh their memory when giving evidence as the witnesses were not represented. Those notes lay in the possession and control of Magenta who did not produce them pursuant to summons. The Tribunal makes the following observations about the summons and Magenta’s role. The summons:
·was not onerous;
·there was no application made by Magenta to set the summons aside.
·There was no suggestion by Magenta that it wanted to be heard about complying with the summons.
·Magenta was given three opportunities to comply.[176]
[176] Transcript, p. 151, lines 36-47.
The Tribunal observes that the summons material was delivered in a nonsensical and non-navigable order.
The delays in obtaining the summonsed material also meant that the applicant and participant had difficulties with reviewing the summons material. This was because the parties were unable to review the’.eml’ files and the Agency undertook the work of converting these files into a PDF format. This meant that the hearing dates were then moved from April to June 2025.
The Tribunal considered its section 9 ART Act objectives and sought to progress the matter in as timely a matter as possible towards a decision whilst balancing procedural fairness to the parties.[177]
[177] Transcript, p. 220, lines 8-14.
The Tribunal makes no finding about the submissions around whether Magenta provided an ‘overzealous meeting of the summons to produce every document that may or may not fall within the summons’ or whether it was ‘a strategy to frustrate the process of the summons’.[178] The Tribunal observes that the protracted nature of this application was frustrating to the applicant, participant, the Agency and the Tribunal itself.
[178] Transcript, p. 150, lines 41-47.
This application is not a disciplinary proceeding, nor is the application about the conduct of Magenta. However, I do give weight to the factual reality of Magenta’s questionable conduct in failing to produce in answer to the summons.
The non-party witnesses
Ms Phillips’ evidence was credible and clear. However, I find that her evidence was likely infected by her view of the applicant and that her observations were most likely ‘influenced by her conversations with Ms Thomas regarding the applicant and participant.’[179]
[179] Closing submissions of Agency at [47].
I acknowledge that Ms Thomas was earnest in her sentiment that she believed she ‘was trying to do my job and support Jacob and that’s all I did.’[180] I note that Ms Thomas, personally filed material on 11 June 2025 of ‘her work notes’.[181] Notwithstanding that those documents clearly fall in the relevant period and were answerable to the summons issued to the Proper Officer of Magenta. However, none of these documents were provided in the October 2024, December 2024 nor the February 2025 tranches.
[180] Transcript, p. 325, lines 22-23.
[181] EB- 5.
I cannot accept Ms Thomas’ evidence for the following reasons. Ms Thomas’ evidence:
·Indicated a misunderstanding of the scope of her role as a support coordinator. Ms Thomas stated she understood the importance of avoiding ‘conflicts of interest.’[182] However the evidence bore out that it was more likely that Ms Thomas:
[182] EB-2, Part A contains the guidance by the Agency on conflicts of interest and the management of those conflicts.
oActed in Magenta’s financial interests even though Ms Thomas stated that she was acting in the participant’s ‘interests’.
oConceded that Magenta would receive a financial benefit from the proposed renovations to Ross Street if the Agency paid for the renovations. Nevertheless, during lengthy examination Ms Thomas did not accept that the circumstances gave her as support coordinator, nor Magenta as her employer, a ‘conflict-of-interest situation’.[183]
[183] Transcript, p. 255 line 29 – page 256, line 9.
oClearly acted promptly to attempt to remove the applicant as nominee when the applicant requested that support coordination services were to be handed over from Magenta to Indigo Rose. I do not accept Ms Thomas’ evidence that the participant ‘would have requested [the applicant] be removed as his nominee before the 25 July 2022 email from Mr Rose’[184] that requested to transfer the support coordination services to Mr Rose.
[184] Transcript, p. 264, lines 19-22.
oSpoke about the applicant in pejorative terms as ‘trying to control’ the participant’s money. The applicant gave evidence that he was ‘told [by Ms Thomas] that the plan nominee controlled [his] money.’[185] There is no probative evidence to demonstrate that the applicant ‘tried to control the participant’s money.’
[185] Transcript, p. 519, lines 44-45.
·Rejected propositions put to her which she subsequently conceded when confronted with inconsistent evidence. Some examples included Ms Thomas:
oStated that renovations for Ross Street would be ‘great for…Magenta as we’ll have an accessible property suitable for long term tenants.’[186]
[186] Transcript, page 252, lines 15-44, note line 44.
oSent an email to senior Magenta staff after her appointment as the participant’s support coordinator where she promoted renovations to Ross Street on the same basis.[187]
[187] EB-4, p. 1095. Transcript, p. 254, lines 11-25.
oOriginally denied speaking on the telephone call to the Agency to request removal of the nominee.[188] In later evidence Ms Thomas conceded she assisted with the telephone call to the Agency with the participant.[189]
[188] Transcript, p. 288, line 27. See lines 23-24.
[189] Transcript, p. 289, lines 1-2, and 7-29.
oWas not able to explain when she ‘had a long conversation about the participant making his own decisions including removing the applicant as his plan nominee.[190]
[190] Transcript, p. 288, lines 13-24.
oWas not able to clarify whether she had ‘explained to the participant the role of his plan nominee’[191] nor whether this conversation had taken place during the hospital meeting she had with him on 26 July 2022.[192]
[191] Transcript, p. 322, lines 31-32. Lines
[192] Transcript, p. 288, lines 13 – 26. See also p, 338, lines 42-45 and p. 339, lines 1-8.
·Made attempts to shift responsibility to others. Examples of this were Ms Thomas:
oWas unable to explain the evidence that indicated she had first raised the idea of a NCAT application within Magenta as early as 7 July 2022.[193]
[193] EB-4, p. 1305.
oStated that the NCAT application for the participant was based on Ms Phillips’ support.[194]
[194] Transcript, p. 304, lines 39-43.
oCould not remember if she initiated the NCAT application or ‘whether the hospital [did].’[195] I accept the Agency submissions that it was more likely than not that although Ms Phillips drafted and lodged the NCAT application, it was likely done at Ms Thomas’ request.[196]
[195] Transcript, p, 304, lines 18-19.
[196] Transcript, p. 304, lines 25-41.
oStated her motivation for taking steps to remove the applicant as the participant’s nominee were carried out on the basis that Ms Thomas was ‘guided by what the social worker [Ms Phillips] was saying.’[197]
[197] Transcript, p. 339, lines 5-8.
oStated that Ms Phillips was present during the hospital meeting.[198] I find that it was unclear who was present at the 26 July 2022 hospital meeting. Ms Davis stated that she could not recall the social worker being present at this meeting.[199]
[198] Transcript, p. 339, lines 6-8. P. 342, lines 15-16.
[199] Transcript, p. 444, lines 15-16. There was no clinical note from Ms Phillips in the summonsed material that she was present in this conversation.
·Did not complete her obligations as the participant’s support coordinator. Ms Thomas did not action the applicant’s instructions to change the participant’s support coordination services from Magenta to Indigo Rose. Ms Thomas:
oDid not inform the participant that the applicant planned to move the support coordinator service for over a month and this period of time then prevented any possibility of a handover to Indigo Rose.[200]
oActed beyond the scope of her role in taking positive steps to remove the applicant’s co-management of the participant’s personal finances[201] and then did not provide an appropriate plan of support to assist the participant to manage his ongoing personal finances.[202]
·May have engaged in questionable billing practices. Ms Thomas likely:
oBilled for tasks for one day ‘held’ over from other times so these tasks appeared as a block of time on a later day.[203]
oCharged as the participant’s support coordinator for making a complaint to the Age and Disability Commissioner against Mr Rose alleging, he had ‘behaved unethically as an ex-employee of Magenta’.[204]
oCharged the participant’s plan for responding to a complaint made against her to the NDIS Quality and Safeguard Commission.[205]
[200] Transcript, pages 347, line 43 – 348 line 12. Page 349 lines 32-36, page 367, lines 23-30.
[201] Transcript, p. 388, lines 17-45.
[202] Transcript, p. 390, lines 1-39.
[203] Transcript, p. 324, 1-19, 326, lines 44-p. 327, line 4. P. 326, lines 24-34.
[204] Transcript, p324, lines 1-5.
[205] Transcript 357, line 14 -p. 358, line 2., page 391, line 43 – p. 392, line 2.
In summary, I find that is likely that Ms Thomas’ conduct persuaded the participant to sign the typed letter to the Agency to request that the applicant be removed as his plan nominee. The participant’s closing submissions used the word ‘coaxed’. I accept the participant’s evidence regarding the 26 July 2022 hospital visit from Ms Thomas and Ms Davis where he explained ‘they said they came to ‘give’ [me] a plan nominee.[206]
[206] Transcript, p. 519, lines 22-35.
I do not accept it was a ‘coincidence’ that Ms Thomas undertook the course of conduct to ‘support Jacob.’ The findings I have made were set against a background of Magenta failing to meet the three opportunities to comply with the summons to produce. There is no fulsome written record before the Tribunal from Magenta of Magenta’s interactions with the applicant and participant. Only the applicant’s emails and correspondence were provided.
The weight of the evidence before the Tribunal has made me sceptical about the evidence that was produced and given by Magenta staff. It may be more likely than not that the pressure applied to the participant by Magenta staff better served Magenta’s financial interests than the best interests of the participant.
It was unclear how the events leading to the cancellation of the applicant’s status as nominee could be a ‘coincidence’. It seems likely that the catalyst for these events was the applicant informing Ms Thomas that he planned to move the participants’ support co-ordination to Indigo Rose.[207]
[207] Transcript, p. 263, lines 20-47, p. 264, lines 19-22 and page 381, lines 27-33. Also at EB-3, p. 379.
I give little weight to Ms Davis’ evidence for the following reasons. Ms Davis’ evidence was:
·Limited by her memory due to the passing of over three years and there were limited useful contemporaneous notes produced by Magenta in response to the summons.
·Influenced by her misunderstanding of the function of a plan nominee. Even at the hearing Ms Davis stated she understood a plan nominee was a role akin to a financial guardianship role.[208] By her own admission Ms Davis misunderstood the role of a plan nominee.
[208] Transcript, page 454, lines 17-41.
Magenta staff
In summary, based on the evidence I observe that Magenta staff are likely to have:
·Attempted to use a participant’s plan funding to pay for renovations to a leased property for the ancillary purpose of it receiving an economic benefit.[209] In fairness to Ms Davis this was something that she concluded would be inappropriate.[210]
·Inappropriately charged and collected rent from the participant for the period that he was hospitalised in 2022. It was unclear if this has been reimbursed to the participant;
·Applied for funding from the participant’s plan for a full 11 hours a day, 7 days a week, for social and community supports during the time that the participant was hospitalised in 2022. I note Magenta was advised by the hospital scheme liaison officer that this was not an appropriate way to use participant’s scheme funding.
[209] EB-4, p. 1095.
[210] Transcript, p. 420, lines 6-9.
The conduct of the nominee
Without detailing the allegations, Magenta material allegedly records serious allegations of abusive behaviour by the applicant towards the applicant’s wife and son. I accept the applicant’s explanation around the basis of these allegations. There was no probative evidence to substantiate these allegations.

It was apparent across 10 days of hearing that the applicant and participant trust and love each other. The first complaint raised about the applicant’s conduct as plan nominee prior to the cancellation of the appointment was with respect to the applicant’s resistance to agree to request amendments to the participant’s plan to include renovations at the Ross Street property.
I accept the applicant’s explanation of why he resisted signing this because the applicant did not consider that the scheme would ‘pay for the renovations.’ Ultimately the Agency did not approve the funding for this. There was no other evidence provided to indicate that the applicant, in the role of plan nominee, acted in a way that was inconsistent with the participant’s best interests.[211] Indeed the applicant demonstrated he understood both his duties to the participant and to the scheme.[212]
[211] As set out in Part 5 of the NDIS Act and the plan nominee rules.
[212] See paragraph [83].
On the balance of evidence, and upon application of the legislative criteria set out at part three above,[213] the applicant has demonstrated that he is suitable to be the participant’s plan nominee. I find that the applicant is familiar with the plan nominee rules[214], he understands his duties and his voluntary function as a plan nominee.[215] The applicant stated he knows he has an obligation to exercise the nominee powers only if the participant was not capable of doing so[216] and that if he should exercise those powers he needs to consult with the participant’s support co-ordinator.[217]
[213] Paragraphs [70] – [77].
[214] Transcript, 528, lines 15-33.
[215] Transcript day 10, p. 581, lines 5-20.
[216] Transcript, p. 542, lines 14-16.
[217] Transcript, p. 542, lines 25-30.
The applicant is found to have taken steps to ascertain the wishes of the participant, both in his role as plan nominee and as a provider of informal support. The applicant has in this time also demonstrated sincere interest in promoting the applicant’s interests, health and wellbeing including:
·consulting an independent occupational therapist to ascertain the participant’s needs in regard to his accommodation, with a view to having him released from hospital as soon as practicable with appropriate supports;[218]
·asking for a disability advocate to be appointed for the participant;[219]
·visiting the participant on a regular basis, at times with other members of the participant’s family;
·making enquiries with service providers in relation to how the participant’s NDIS funds are being used;[220] and
·stating that he would honour the participant’s wish for him to reside at Skyline Road if that was what he wanted.[221]
[218] Transcript, pp. 21-22, lines 42-47 and 1-6.
[219] Transcript, p. 521, lines 15-16.
[220] Transcript, p. 296, lines 34-37. And credited rent. Transcript p. 297, lines 4-7.
[221] Transcript, p. 26, lines 1-5.
There is no probative evidence that the applicant has breached the duties of a plan nominee. I refer in particular to the ’ongoing conflict’ asserted by Ms Thomas and Ms Phillips in regard to the participant’s accommodation. These assertions are not consistent with events that have transpired or the evidence of the applicant and the participant and remain unsubstantiated.
The evidence does establish that the applicant has acted consistently with these duties, including:
·consulting with Magenta staff to consider and address the participant’s wellbeing and support needs, both informally when visiting the participant, and formally at stakeholder meetings where the applicant attended without a support person;[222]
·spending time with the participant to explain things such as rent payments, so that the participant can build his capacity for decision-making and make his own informed choices. It is likely that the participant benefitted from having this oversight by the applicant particularly with respect to the participant’s lengthy hospital stay. The applicant continued to ask Magenta to search for alternative accommodation when it appeared to the applicant that Magenta were only looking at renovating Ross Street as the participant’s expected discharge address from the rehabilitation unit.
·facilitating opportunities for the participant to express his views, including around his plan nominee status. The applicant has also expressed his own concerns to the participant in this regard and sought the participant’s views in reply.
[222] Transcript, p. 22, lines 26-43. P. 33, lines 21-22.
There is no evidence to indicate that the applicant has caused, or is likely to cause physical, mental or financial harm to the participant.[223] I refer to the Agency’s decision of 16 January 2023, and the concerns of harm raised around the ‘significant differences’ between the wishes of the applicant and the participant. Upon comprehensive review these differences have remained between the applicant and Magenta staff. I accept that the applicant had these disagreements to protect the participant’s best interests.
[223] Transcript, p. 30, lines 11-41.
The applicant is not found to have a conflict of interest, pecuniary or otherwise. Relevantly, the nominee appointment does not permit the applicant to manage the funding for supports under the participant’s plan, and I note that the role of plan nominee is conducted on a voluntary basis. I note also that the nominee appointment does not interfere with the wishes of the participant to control his own spending money and food choices.
The historical evidence of the applicant’s management of the participant’s personal finances demonstrates that the applicant used a budget to assist the participant to control his spending. However, the participant now controls his personal finances.
I have considered the impact of the cancellation on the participant, in particular on his relationship with the applicant. The participant has evidently been caused some degree of stress by the discord between his father and Magenta around the second appointment and the events that followed. Relevantly, the general principles of the NDIS Act provide considerations for the role of families and their relationship with a participant.[224] I am satisfied that, as plan nominee, the applicant will continue to attend to the ongoing care and support needs of the participant by exercising the plan nominee power to prepare, review and replace a plan.[225]
[224] Section 4(3); (12); (12A), NDIS Act.
[225] Section 78(1)(a), NDIS Act; Rule 3.7, nominee rules.
I find that it is more likely that the participant’s interests are best served if the applicant has oversight of supports coordination for the participant. Notwithstanding that this role is no longer undertaken by Magenta.[226]
[226] Transcript, p. 545, lines 40-45.
I consider the circumstances in which the applicant was removed as nominee and in particular the way in which the participant came to request that his father’s appointment as his plan nominee be cancelled is also relevant to the exercise of the discretion of the merits finding.
I find that the request to cancel the applicant’s appointment as the participant’s plan nominee likely did not originate from the participant. The evidence shows that it was most likely Ms Thomas’ idea to do so.
The applicant informed the participant’s support coordinator in July 2022 that the applicant planned to change support coordination services to Indigo Rose.[227] Within a short period of being advised of the applicant’s plan Ms Thomas then:
·Contacted Ms Phillips to request she be placed on the participant’s ‘visitor list’[228] and urged Ms Phillips to lodge the NCAT application.
·On 26 July 2022, Ms Thomas visited the participant in hospital for the first time since her appointment as his support coordinator in early June 2022. There was inconsistency in the evidence regarding what occurred at the 26 July 2022 hospital meeting.
·‘Prompted’ or ‘coaxed’ the participant to take part in a telephone call initiated by Ms Thomas with the Agency contact centre in which a request was made by the participant or Ms Thomas to cancel the applicant’s plan nominee appointment.
[227] EB-4, p. 1305. Mr Rose’s email that Ms Thomas reported to Ms Iuso.
[228] EB-1, pp 750-751.
In the ensuing five weeks Ms Thomas then:
·Wrote a ‘letter in support of the NCAT application lodged by Ms Phillips. I find that it was likely that the participant did not request the NCAT application. It was more likely instigated by Ms Thomas;
·Requested Ms Davis’ support to lodge an NCAT application for the applicant’s wife. This application was likely instigated by Ms Thomas;
·Did not comply with the handover of the applicant’s support coordination services to Mr Rose as per the Magenta service agreement;
·Made a follow up phone call to the Agency asking for information about the participant’s request to cancel the applicant’s appointment as his plan nominee;
·Had both the participant and his mother sign a ‘consent to act’ form which nominated Ms Thomas as their ‘agent’ for the purposes of interactions with the scheme;
·Drafted a letter for the participant’s signature to the Agency to request the removal of his father as his plan nominee; and
·Obtained the participant’s signature on the request letter and then sent the letter to the Agency.
The steps taken by Ms Thomas lead me to conclude that it was more likely it was Ms Thomas’ idea to pursue the cancellation of the applicant’s appointment as plan nominee. Prior to Ms Thomas’ 26 July 2022 hospital meeting with the participant, there was no evidence that the participant was considering pursuing the cancellation of his father’s appointment.
Magenta did not comply with the summons to produce despite several opportunities to do so. On balance, I am satisfied that the allegations made against the applicant are unsubstantiated.
In light of the unsubstantiated allegations against the applicant it is more than a coincidence but perhaps more ‘convenience’ that several events of note occurred following the 21 July 2022 stakeholder meeting where the applicant voiced his strong objection to renovations of a Magenta property. After this meeting, Ms Thomas:
·Assisted the participant in a 26 July 2022 telephone call to the Agency where the participant allegedly stated he wanted his plan nominee removed;
·Facilitated a signed note from the participant being sent to the Agency between 24 and 31 August 2022; and
·Was unable to point to Magenta file notes or other messages provided in response to the summons that could shed more light on this relevant period of time.
Does the participant require a plan nominee
I am satisfied that the participant still needs a plan nominee. Whilst the participant has full capacity to understand information provided to him, retain the information and make a decision and communicate it effectively,[229] there are also times when, due to the nature of his disability, the participant requires a high degree of support in decision-making.
[229] T Documents, T17.
I acknowledge that the participant stated that he wants to ‘be my own plan nominee’[230] but also stated if he had a plan nominee they ‘need to be good at maths and have good judgment and get along with me.’[231] I note that one of the participant’s statements as to why he resisted his father’s appointment to be his plan nominee was the participant’s concern that his father may not fully understand the role of plan nominee. The evidence was that:
MR BRENNAN: Now you know what a plan nominee does, that they just help you manage just the plan and not all your finances.
MR J McDONALD: Yes.
MR BRENNAN: How do you feel about your dad being your plan nominee now?
MR J McDONALD: I love my dad, and I (indistinct). But I don’t think he’s got the right kind of stuff to do it, he understands my needs, but he couldn’t manage the funding, and he probably couldn’t manage everything, probably doesn’t understand totally or, you know, like what everything is about. He probably wouldn’t be able to understand it and manage it.
MR BRENNAN: Okay. And is that something that you have decided for yourself? Or is it something - - -
MR J McDONALD: Yes, both me and dad, we had a pretty limited understanding – pretty limited understanding about it. I’m intelligent, I can probably understand it. Dad will probably not be able to understand it. I’m intelligent, I know I understand it. I wonder if dad could.
MR BRENNAN: Okay. But you could explain it to your dad.
MR J McDONALD: Hey, dad, you’re intelligent, aren’t you? You’d be able to understand it, wouldn’t you? Some of it. Yes, we – I reckon we’re on a fairly good level with each other, we probably understand it as much as each other.
[230] Transcript, 514, line 41 – p. 515, line 5.
[231] Transcript, day 10, pp. 587-588.
I find that at the 26 July 2022 hospital meeting the participant was likely to have been uncertain about what the role of a plan nominee entailed, and he may still be uncertain.
I accept the applicant does not control the participant’s current bank account. I also accept the applicant’s oral and written evidence gives weight to the merit of the applicant’s application. I find that the applicant has for many years, even prior to the participant’s six or seven years of engagement with Magenta, ‘looked out for the best interests’ of the participant, including:
·Ascertaining the wishes of the participant and acting in a manner that promotes the participant’s personal and social wellbeing;[232]
·Acting as nominee when the applicant reasonably believed that he had ascertained the participant’s wishes and then acted or chose not to act in a way that the applicant believed promoted the personal and social wellbeing of the participant;’[233] and
·Supporting the participant in his decision-making and having regard to the participant’s views in light of the nominee’s duties.[234]
[232] Section 80(1) of the NDIS Act. See paragraph [91] of these reasons.
[233] Section 80(2) and (3) of the NDIS Act. See paragraphs [81]-[84] of these reasons.
[234] Section 80(4) of the NDIS Act. See paragraphs [81]-[84] of these reasons.
The participant also has a vulnerability to have his decision-making influenced against his best interests to some degree. The evidence supports a finding that the participant’s decision to remove his nominee was substantially influenced by Magenta staff and was not an independent determination of his own best interests.[235]
[235] Section 4(8), NDIS Act.
This is supported by the following steps taken by Ms Thomas since the applicant requested her removal as support coordinator:
·requesting the applicant’s removal as plan nominee on the participant’s behalf;
·informing the Agency that her own mobile number was to be used to contact the participant, rather than his father’s as previously listed;[236]
·refusing to action the request to handover the participant’s support coordination, as required by the Magenta service agreement;
·assisting the participant to sign the letter to again request the applicant’s removal as nominee;
·it was unclear whether Ms Thomas instigated the application to NCAT that was signed by Ms Phillips;[237] and
·arranging with the Agency that she be permitted to act on the participant’s behalf. Ms Thomas was able to request a plan review and home modifications for the participant, and I consider this a conflict of interest with Ms Thomas’ position of support coordinator with an organisation that was also the provider of the applicant’s supports and accommodation.
[236] T Documents, T8: This was made in the same phone call as the request to remove the nominee.
[237] Transcript, p. 304, lines 25-41.
I make no finding about the status of the NCAT application as there was no clinical note to indicate Ms Phillips explained the NCAT application to the participant, nor that Ms Phillips had sought the participant’s permission to lodge it. The applicant’s evidence was that he ‘did not know the NCAT proceedings were lodged in August 2022.’[238]
[238] Transcript, pages 103 – 104, lines 17-14.
I accept that the applicant is the most appropriate person to be appointed as plan nominee. The applicant has established that in his roles of a father, caregiver and plan nominee of the participant his interests are aligned with the participant’s, to realise his full potential and exercise his rights as a person with disability. I consider the applicant’s restoration as plan nominee as a last resort to ensure that these interests are protected.
I am satisfied that the nominee appointment must be subject to appropriate safeguards. I am satisfied on the evidence that the applicant is aware of the following:
·Firstly, that he is only to do an act on the participant’s behalf if he considers that the participant is not capable of doing, or being supported to do, the act.[239]
·Secondly, that he does not ‘control the funding in the participant’s plan’[240] because that is separate from the function that is set out for a plan nominee.[241]
·Thirdly, the condition placed on the instrument of appointment as plan nominee at [7] above that: ‘the applicant was not permitted to manage the funding for supports under the participant’s plan.’[242]
·Fourthly, that the participant ‘still seems to be unsure exactly what the role of the nominee is. He [the participant] might still suspect a nominee will control his personal money.’[243] I find that the applicant does not have access to or control over the participant’s personal money or bank account.[244]
[239] See [38] above.
[240] Transcript, day 10, p. 587, lines 1-4.
[241] See [38] above.
[242] ST2 page 344.
[243] Transcript, p. 587, lines 12-18.
[244] Transcript, p. 521, lines 20-21.
The evidence indicates that the participant has developed strong connections with his support workers from Magenta and his co-residents at Skyline Road. I accept the applicant’s evidence that he has no intention of moving the participant from Skyline Road[245] and that he would honour the participants’ wishes if he wanted to maintain his Magenta supports.[246]
[245] Transcript, p. 542, lines 32-34.
[246] Transcript, p. 542, lines 32-34.
I accept the Agency submissions and consider that the applicant’s instrument of plan nominee should carry the standard condition on which the first and second appointments were also made.[247]
1. The plan nominee is not permitted to manage the funding for supports under Jacob’s plan.
[247] EB-1, p. 342, 351.
I find that the condition is an appropriate safeguard to ensure that scheme funds are properly directed to the participant’s benefit.
DECISION
The Tribunal, pursuant to section 105(c) of the ART Act sets aside the decision under review to cancel the plan nominee’s appointment and decides that:
(i)The Tribunal refuses to cancel the applicant’s appointment as plan nominee. The applicant is to be restored as plan nominee for the participant on the terms of the appointment dated 23 December 2021, including the condition that;
1. The plan nominee is not permitted to manage the funding for supports under Jacob’s plan.

183.    I certify that the preceding 182 (one-hundred and eighty-two) paragraphs are a true copy of the reasons for the decision herein of General Member S Smith.

..................[SGD]....................
14 October 2025

Dates of hearing: 9, 10, 12, 13 December 2024, 13 January 2025, 10, 11, 12, 13 June 2025, and 1 August 2025.

Applicant:  Mr Kenneth McDonald

Other party/Participant:  Mr Jacob McDonald

Advocate for the other party:           Ms Jessica Raguse, Disability Advocacy NSW

Counsel for the Respondent:          Mr Vince G Brennan

Solicitor for the Respondent:           Mr James Vercoe, NDIA

[2025] ARTA 2065

14 October 2025

Key Legal Topics

Areas of Law

Administrative Law

Legal Concepts

Jurisdiction

Res Judicata

Compensatory Damages

Unconscionable Conduct

Unjust Enrichment

Judicial Review