Miller and Chief Executive Officer, National Disability Insurance Agency (NDIS) - [2025] ARTA 1870

Miller and Chief Executive Officer, National Disability Insurance Agency (NDIS) [2025] ARTA 1870 (22 September 2025)
Applicant:Dylan Miller
Respondent: Chief Executive Officer, National Disability Insurance Agency
Tribunal Number: 2024/7511

Tribunal:General Member A Colvin
Place:Brisbane
Date:22 September 2025

Decision:The Tribunal sets aside the decision under review and remits this matter to the Respondent with directions that:
1.A new statement of participant supports (SOPS) be approved for the Applicant, which specifies:
1.1the following reasonable and necessary supports:
Core Supports
1.1.1the current 26 hours per year of 1:1 employment support at the weekday daytime rate of $70.23 be replaced by 57 hours of 1:1 support worker assistance at the standard Saturday daytime rate (currently $98.83); and
1.1.2the current 24 hours per year of 1:1 support worker assistance at the weekday daytime rate of $70.23 be replaced with 40 hours per year of 1:1 support worker assistance at the standard weekday daytime rate (currently $70.23).

2.The 14 hours of occupational therapy in the Applicant’s capacity building in his NDIS Plan dated 31 July 2025 (current plan) are to be removed.
3.The 12 hours of skills development and training found in the Applicant’s capacity building funding in the current plan can be administered by a suitably qualified NDIS registered support worker.
4.All other reasonable and necessary supports in the current plan are to be replicated pro-rata for 12 months, except the supports listed at paragraphs [‎1.1.1] and [‎1.1.2] above, which are intended to be replaced by this decision.
5.All plan management arrangements are to be the same as those in the current plan.
6.The reassessment date be 12 months after the supports listed at paragraphs [‎1.1.1] and [‎1.1.2] above are included in a SOPS.

..............[SGD].................
General Member A Colvin
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – National Disability Insurance Scheme Act 2013 (Cth) – consideration of section 34 – reasonable and necessary supports – support worker assistance
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 (Cth)
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)
National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (Cth)
National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (Miscellaneous Provisions) Transitional Rules 2024 (Cth)
Cases
Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 60
National Disability Insurance Agency v WRMF [2020] FCAFC 79
Mills and National Disability Insurance Agency [2025] ARTA 1410
Secondary Materials
NDIS – Operational Guidelines Reasonable and necessary supports
Statement of Reasons
BACKGROUND

Mr Miller is a young adult who is a participant in the National Disability Insurance Scheme (NDIS). He resides with his parents and younger siblings. He has completed tertiary studies and currently works part-time.
Mr Miller was granted access to the NDIS…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Miller and Chief Executive Officer, National Disability Insurance Agency (NDIS) [2025] ARTA 1870
Case: [2025] ARTA 1870
Decision Date: 22 September 2025

CaseChat Overview and Summary

In the case of Miller and Chief Executive Officer, National Disability Insurance Agency (NDIS), the tribunal was tasked with reviewing a decision made by the NDIS regarding the support and services provided to Mr. Miller, a participant with Autism Spectrum Disorder (ASD). The central issue revolved around the appropriateness and necessity of the support services requested by Mr. Miller under the National Disability Insurance Scheme Act 2013 (Cth). Specifically, the tribunal had to determine whether the proposed supports, including occupational therapy and increased support worker assistance, were reasonable and necessary to help Mr. Miller achieve his goals, as required by the Act.

The tribunal examined the evidence provided by various parties, including Mr. Miller, his psychologist Dr. Beehag, and an occupational therapist Mr. Stretton. Dr. Beehag recommended increased support worker assistance to help Mr. Miller with daily functioning and motivate him towards positive change. In contrast, Mr. Stretton believed that the level of support requested exceeded what was necessary for Mr. Miller's goal of living independently. The tribunal also considered Mr. Miller's current employment, his ability to maintain routine, and his participation in social groups facilitated by Mr. Browne.

The tribunal concluded that while attendance at a weekly social event facilitated by Mr. Browne was beneficial and necessary, the level of support requested by Mr. Miller, particularly the occupational therapy, was not justified. The tribunal found that the requested supports did not meet the criteria under the NDIS Act for being reasonable and necessary. Based on this, the tribunal set aside the decision under review and directed the NDIS to approve a new statement of participant supports (SOPS) that included specified support worker assistance instead of occupational therapy. The tribunal also maintained other supports from the current plan, with some modifications, and set a reassessment date for the new supports.

The tribunal’s decision was grounded in the evidence presented and the statutory requirements for support under the NDIS Act. The tribunal directed that Mr. Miller's new SOPS should include increased support worker assistance and remove the occupational therapy component, ensuring the supports were tailored to Mr. Miller’s needs and aligned with the statutory criteria.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The Miscellaneous Provisions Rules are also relevant. Rule 7 imposes an additional requirement, that the support is most appropriately funded through the NDIS and not through other systems or bodies as part of universal service obligations or in accordance with reasonable adjustments required under laws dealing with discrimination.THE EVIDENCE In addition to having the documents set out earlier, the Tribunal heard oral evidence from Mr Miller, Mr Browne, and Mr Miller’s psychologist, Dr Beehag. At the time of the hearing, Mr Miller resided with family. He worked part-time two days/week in an office role. He drove a car and assisted at home by dropping and collecting his siblings from school on days that he was not at work. He was not regularly engaged with an occupational therapist. He was seeing Dr Beehag approximately monthly and was in regular contact with Mr Browne, whom he had known for about one year. Mr Browne co-owned a small private company that convened a social group on Saturdays and provided individual support workers. It was not an NDIS registered organisation. Mr Miller’s goals, set out in his current plan, included goals around employment, interacting with others, and moving out of home. In the hearing, he said that he wanted to update those goals. He said his goals included earning sufficient income to move out of home to live independently, preferably with friends. Mr Miller was granted access to the NDIS based on impairments from ASD. Dr Beehag had been treating Mr Miller over many years and provided a report dated 28 August 2024. His oral evidence, which I accept, was that Miller’s impairments from ASD included having a rigid mind and black and white thinking, as well as missing social cues. In his oral evidence, Dr Beehag outlined Mr Miller’s past and current mental state. He noted that Mr Miller had been able to maintain employment and that this had provided more structure and routine. However, he did not consider that Mr Miller’s mental state had changed significantly, noting that the same psychological stressors remained and that Mr Miller continued to misinterpret and catastrophise situations. Dr Beehag recommended in his report that Mr Miller be provided funding for four hours/week of 1:1 assistance from a support worker together with 10 hours on weekends of 1:5 support worker assistance to enable Mr Miller to attend the social group facilitated by Mr Browne. Dr Beehag wrote his report a year ago, before Mr Miller had secured and maintained his current employment. However, in his oral evidence, Dr Beehag said it was still his view that Mr Miller would benefit from four hours/week of 1:1 support worker assistance. He considered that this could be used by having a support worker for two hours at the start and end of the week. He said it would assist Mr Miller with functioning such as attending a gym or eating healthily. Dr Beehag described this support as providing ‘scaffolding’ and later he said it would motivate Mr Miller to make changes. He explained that, while he could talk to Mr Miller about change, change occurred after a person experienced things.

Decision

Reasons for decision

Regarding occupational therapy, based on Mr Miller’s evidence I am satisfied he is unlikely to utilise that support effectively. Dr Beehag also gave evidence on the benefits for Mr Miller of a skilled support worker compared to occupational therapy. I am not satisfied on that evidence that the requirements in paragraph 34(1)(c) of the NDIS Act are met for funding for occupational therapy in addition to the above supports.DECISION The Tribunal sets aside the decision under review and remits this matter to the Respondent with directions that:1.A new statement of participant supports (SOPS) be approved for the Applicant, which specifies:1.1the following reasonable and necessary supports:Core Supports1.1.1the current 26 hours per year of 1:1 employment support at the weekday daytime rate of $70.23 be replaced by 57 hours of 1:1 support worker assistance at the standard Saturday daytime rate (currently $98.83); and1.1.2the current 24 hours per year of 1:1 support worker assistance at the weekday daytime rate of $70.23 be replaced with 40 hours per year of 1:1 support worker assistance at the standard weekday daytime rate (currently $70.23). 2.The 14 hours of occupational therapy in the Applicant’s capacity building in his NDIS Plan dated 31 July 2025 (current plan) are to be removed.3.The 12 hours of skills development and training found in the Applicant’s capacity building funding in the current plan can be administered by a suitably qualified NDIS registered support worker.4.All other reasonable and necessary supports in the current plan are to be replicated pro-rata for 12 months, except the supports listed at paragraphs [‎1.1.1] and [‎1.1.2] above, which are intended to be replaced by this decision.5.All plan management arrangements are to be the same as those in the current plan. 6.The reassessment date be 12 months after the supports listed at paragraphs [‎1.1.1] and [‎1.1.2] above are included in a SOPS.

Ratio Decidendi

Legal Principle Established

Mr Stretton, occupational therapist, was engaged by the Agency to undertake an independent medical assessment. He provided a report dated 4 August 2025. Mr Stretton considered that the supports requested by Mr Miller exceeded the supports necessary for Mr Miller to achieve his goal to live independently. He thought the 26 hours allocated to assist Mr Miller to secure employment would be better utilised for support worker assistance to participate in social and community-based activities. He recommended no change to the capacity building supports. He recommended Mr Miller continue attending a weekly social group. Mr Stretton did not give oral evidence, so the Tribunal did not have the benefit of hearing from him on options such as increasing Mr Miller’s support worker assistance but decreasing the occupational therapy support. I have had regard however to Mr Stretton’s general view that Mr Miller did not require support at the level requested at that time but that Mr Miller should continue attending a weekly social group.CONSIDERATION From Mr Miller’s own evidence, it was clear that he was a young man who had some insight into challenges that he had experienced. He had identified goals around his work, accommodation and relationships. He was also able to recognise the positive changes that he had made, including his improved skills in financial management, cooking, and work. He could also identify the kind of supports that had been beneficial to him, and why they had worked for him. This included the employment agencies, individuals and social groups that he had found effective. He valued the formal supports he currently had and was keen to progress his goals. The Agency contended that the support sought by Mr Miller did not meet the requirements in paragraphs 34(1)(aa), (c) and (d) of the NDIS Act. Having regard to the evidence of Dr Beehag and Mr Browne, and Mr Stretton’s report, as well as Mr Miller’s own evidence, it is clear that attendance at a weekly facilitated social event, to socialise with others in the presence of support workers, has been of real benefit to Mr Miller and has been necessary in addressing needs of Mr Miller arising from impairments related to ASD. It will likely continue to be so over the next year. In determining the amount of support worker assistance that is necessary to address needs of Mr Miller arising from impairments related to ASD, and that is value for money (meeting the requirements in paragraphs 34(1)(aa) and (c) of the NDIS Act), some guidance can be obtained from assessing the support required if Mr Miller participated throughout the year in the Saturday events facilitated by Mr Browne. Mr Miller has been a keen participant in those events and said that he only had to miss about one every three months (equating to about 48 attendances/year). Mr Browne thought it was possibly once every six weeks. I consider weekly attendance to be necessary for Mr Miller having regard to Mr Streeton’s report and the evidence of Dr Beehag. Allowing for illness and other commitments, 47 weeks/year reflects a realistic rate of attendance.