Mr Keeden Waller, by his Plan Nominee and Chief Executive Officer, National Disability Insurance Agency (Practice and procedure)

[2025] ARTA 169

Mr Keeden Waller, by his Plan Nominee and Chief Executive Officer, National Disability Insurance Agency (Practice and procedure) [2025] ARTA 169 (28 February 2025)

Applicant/s:  Mr Keeden Waller, by his Plan Nominee

Respondent:  Chief Executive Officer, National Disability Insurance Agency

Tribunal Number:                2021/3717

Tribunal:General Member S Smith

Place:Brisbane

Date:28 February 2025

Decision:The Tribunal dismisses the application pursuant to s 101(1)(a) and 101(1)(b) of the Administrative Review Tribunal Act 2024 (Cth).

..........................................

General Member S Smith

CATCHWORDS

NATIONAL DISABILITY INSURANCE SCHEME – Practice and Procedure – application for dismissal of application for review – ‘no reasonable prospects of success’ – Administrative Review Tribunal Act 2024 (Cth), s101(1) – application dismissed

LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) (repealed) s 42B

Administrative Review Tribunal Act 2024 (Cth) ss 56, 81, 99, 100, 101

National Disability Insurance Scheme Act 2013 (Cth) ss 32, 33, 34, 37, 48, 99, 103(2)

National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 (Cth)

Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)

National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (Miscellaneous Provisions) Transitional Rules 2024 (Cth)

CASES
Barthel and Australian National University (Compensation) [2019] AATA 548

Cba Raiders Sports Club Ltd and Cmr for ACT Revenue [1999] ACTAAT 28

Defa and the CEO, National Disability Insurance Agency [2024] ARTA 34

Duse and National Disability Insurance Agency [2025] ARTA 37

Filsell and Comcare [2009] AATA 90

Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250

Hill and National Disability Insurance Agency [2023] AATA 3626

Ives and National Disability Insurance Agency [2025] ARTA 25

Pavlakis and National Disability Insurance Agency [2023] AATA 2485

Re Williams and Australian Electoral Commission (1995) 21 AAR 467

RTRH and National Disability Insurance Agency [2022] AATA 205

Spencer v Commonwealth of Australia [2010] HCA 28

QDKH , by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189

SECONDARY MATERIALS

NDIS - Operational guidelines – Reasonable and necessary supports, 22 September 2024

Statement of Reasons

INTRODUCTION

1. A delegate of the National Disability Insurance Agency (‘Agency’) approved a Statement of Participant Supports (‘SOPS’) for Mr Waller in a plan that commenced on 1 February 2021 under section 33(2) of the National Disability Insurance Scheme Act 2013 (Cth) (‘NDIS Act’) (‘Original Decision’). A different delegate of the Agency confirmed the Original Decision on 26 May 2021.[1] Mr Waller lodged an application with the Tribunal[2] on 5 June 2021 (‘Tribunal application’).[3]

   [1] Hearing Bundle, H5, page 285.

   [2] From 14 October 2024, the Administrative Appeals Tribunal (‘AAT’) became the Administrative Review Tribunal (‘Tribunal’). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) (‘Transitional Act’), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.

   [3] Hearing Bundle, H5, page 188.

   BACKGROUND

2. As an infant, Mr Waller experienced a cerebral venous sinus thrombosis, and he was placed in palliative care.[4] The result of the extensive thrombosis was severe brain damage.[5] Mr Waller is now 24 years old, and he has always resided with his parents, Mrs Deborah Waller (‘Mrs Waller’) and Mr Lawrence Waller (‘Mr L Waller’). Mr Waller lives with several conditions,[6] which include:

   [4] Hearing Bundle, H8, page 822.

   [5] Hearing Bundle, H8, page 822.

   [6] See Hearing Bundle, H10, pages 864-5. See also Hearing Bundle, H7, pages 606-7.

   ·Cerebral Palsy (‘CP’);

   ·Refractory epilepsy characterised by frequent tonic-clonic seizures (‘Epilepsy’);[7]

   ·Developmental Delay;

   ·Speech impairment (non-verbal);

   ·Stroke (Venous Sinus Thrombosis – Acquired Brain Injury) (‘DVT’);

   ·Anti-thrombin III Deficiency, (a blood clotting disorder);

   ·Urinary/faecal incontinence;

   ·Cortical Vision Impairment; and

   ·Sensory Processing Disorder.

   [7] Hearing Bundle, H5, page 220.

3. At hearing, Mrs Waller gave evidence that Mr Waller requires significant supports every day and he currently:[8]

   ·communicates in a non-verbal manner;

   ·mobilises with assistance, usually in an attendant propelled wheelchair;

   ·relies on others to prepare his food, hold his water bottle upright, administer his medication, and provide physical assistance for all self-care and self-management tasks, including changing of continence pads;

   ·does not have capacity to make decisions;

   ·receives the disability support pension;[9]

   ·has no guardianship orders in place as ‘we [parents] make decisions in his best interests for him’.[10]

   [8] Oral evidence of Mrs Waller.

   [9] See also Hearing Bundle, H5, page 274..

   [10] Oral evidence of Mrs Waller.

4. Mr Waller has been a participant in the National Disability Insurance Scheme (‘NDIS’) since 2017, which is administered by the Agency under the NDIS Act.

5. Historically, the following people have undertaken the role of Plan Nominee[11] on Mr Waller’s behalf:

   ·Mrs Waller and Mr L Waller from 13 August 2018 to 27 January 2022;

   ·Ms Cynthia Eagle (‘Ms Eagle’), Mr Waller’s maternal aunt, from 2 February 2022 until 8 August 2023; and

   ·Ms Natasha Waller (‘Ms N Waller’), Mr Waller’s paternal aunt, from 9 August 2023.

   [11] Section 86 of the NDIS Act concerns the appointment of a Plan Nominee. There are also NDIS (Nominees) Rules 2013.

6. The duties of a Plan Nominee are to:

   ·

   ascertain the wishes of the participant and promote their personal and social

   
   

   well-being;[12]

   ·only act where the participant is not capable of doing, or does not want to do an act themselves;[13]

   ·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;[14]

   ·have regard to, and give appropriate weight to, the views of the participant;[15] and

   ·manage any conflicts of interest (pecuniary or otherwise) that could interfere with the performance of their duties.[16]

   [12] NDIS Act s 80(1).

   [13] 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’.

   [14] NDIS Act s 80(4)(a).

   [15] NDIS Act s 80(4)(b).

   [16] NDIS Act s 83.

7. Ms N Waller continues to act as Mr Waller’s Plan Nominee.

8. Mrs Waller, however, has continued to manage Mr Waller’s interactions with the Agency and in respect of the Tribunal application.

   TIMELINE OF MR WALLER’S APPLICATION

9. From 2017 until 20 January 2021, Mr Waller received funding for supports under nine different plans,[17] and the core supports funding in these plans were ‘self-managed’ by Mrs Waller.[18] Since 1 February 2021, Mr Waller’s plan has been principally ‘plan-managed’ and ‘NDIA-managed’, including the core support funding.[19]

   [17] Mr Waller’s first plan started on 31 August 2017; see Hearing Bundle, H6, page 370.

   [18] See for example Hearing Bundle H6, pages 374, 390, 433.

   [19] Hearing Bundle, H6, page 446.

10. Since the Tribunal application, there have been over 13 case conferences, over 11 directions hearings, seven remittals under s 42D of the Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’),[20] and several lengthy adjournments in 2022, 2023, and 2024 due to delays in obtaining summonsed materials.

    [20] See Hearing Bundle, H4, pages 149; H27, pages 1839-44.

11. The supports in dispute have narrowed substantially during the course of the proceedings.[21]

    [21] The Tribunal made a direction on the first day of the hearing under section 53 of the ART Act to limit the scope of the review to the remaining issues in dispute. Transcript, 4 December 2024, page 10-13. By January 2025, the scope had narrowed to three supports in contention.

12. On the first day of the hearing, there were three remaining issues in dispute:

    ·payment of Mr Waller’s parents as support workers;

    ·reimbursement to Mrs Waller of $49,990.00 for the September 2024 purchase of a motor vehicle (‘motor vehicle support’); and

    ·internet costs of $105.00 each month, including reimbursement to Mr Waller’s parents (‘internet support’).

13. The substantive hearing of Mr Waller’s application commenced on 4 December 2024. Mrs Waller was assisted by disability support advocate Ms Margot McKnight (‘Ms McKnight’). There were some issues that stymied the progress of the matter, including the Tribunal being made aware there was a Plan Nominee. It was on this basis that the Tribunal requested Ms N Waller’s attendance.

14. On 5 December 2024, Ms N Waller attended the Tribunal hearing and stated that she ‘did not know’ the proceedings were on foot. The Tribunal thereafter changed the name of the proceedings to ‘Mr Keeden Waller, by his Plan Nominee’.[22] There was an adjournment granted to provide an opportunity for Ms N Waller to appoint a representative for Mr Waller.

    [22] See Directions dated 18 December 2024.

15. Ms N Waller subsequently appointed Mr Waller’s maternal grandmother, Mrs Sandra Harkness (‘Mr Waller’s representative’), to be Mr Waller’s representative in respect of the Tribunal application.

16. The Agency conducted a s 48 NDIS Act reassessment of Mr Waller’s plan on the CEO’s own initiative around December 2024. On 17 January 2025, the Agency issued a further plan for Mr Waller which included a SOPS with a total funding amount of $1,229,976.06 for a 12-month period.

17. Approximately one week prior to the listed date of resuming the hearing, the Agency filed written submissions for dismissal of the application. The Tribunal understood that Mr Waller’s representative sought legal advice regarding the dismissal application, and the interlocutory hearing was set down for the afternoon of 13 February 2025. Mrs Waller, Ms N Waller, and Mr Waller’s representative elected not to attend the interlocutory hearing; only Ms McKnight attended.

18. The Tribunal is satisfied under s 81 of the Administrative Review Tribunal Act 2024 (Cth) Act (‘ART Act’) that Mrs Waller, Ms N Waller, and Mr Waller’s representative, received appropriate notice of the date, time and place of the interlocutory hearing.

    INTERLOCUTORY ISSUE

19. The Agency seeks dismissal of Mr Waller’s application pursuant to ss 101(1)(a) and/or 101(1)(b) of the ART Act. It submits that the continued pursuit of the application lacks utility and/or has no reasonable prospects of success for the following reasons:

    (a)Mr Waller’s 2021 plan predates 1 July 2022. The Agency contends that a plan and a SOPS are not co-extensive but distinct under s 33(2) of the NDIS Act.[23] Mr Waller’s plan of 1 February 2021 (‘2021 plan’)[24] has altered over the course of the proceedings due to decisions made on remittal under s 42D of the AAT Act. Mr Waller’s 2021 plan predates the 1 July 2022 amendments enacted through the National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Act 2022 (Cth) (‘PSG Act’). The Agency contends that any amendments in relation to variations of Mr Waller’s 2021 plan under s 103(2) of the NDIS Act which are ‘catching up with’ proceedings in the Tribunal and which were introduced by the PSG Act do not apply to Mr Waller’s 2021 plan.[25]

    (b)The effect of Mr Waller’s ‘new’ plan. The Agency contends that, prior to the PSG Act, a plan ‘came into effect when a decision maker approved a SOPS under s 33(2) of the NDIS Act, it could not be varied while in effect, and it ceased to be in effect when replaced by another plan under Division 4’.[26] The Agency contends that after it conducted a reassessment of Mr Waller’s SOPS under s 48 of the NDIS Act,[27] Mr Waller’s 2021 plan ceased to be in effect when it was ‘replaced’ by the 17 January 2025 plan (‘2025 plan’). The operation of s 37(3) of the NDIS Act before 1 July 2022 meant that the emergence of the 2025 plan caused the 2021 plan to ‘cease to be in effect’ after 16 January 2025.[28] The Agency contends that the ‘Tribunal’s jurisdiction is in relation to the SOPS in the 2021 plan.’

    (c)Mr Waller’s remaining supports in review. The Agency contends that there is no utility in Mr Waller pursuing the application for the following reasons:

    (i)the first support is with respect to the payment of Mr Waller’s parents as support workers. The Agency contends that the parents were paid as support workers for Mr Waller until 16 January 2025. Therefore, this issue is no longer before the Tribunal.

    (ii)The Agency contends that the motor vehicle support and the internet support are not reasonable and necessary supports and are explicitly listed as not being NDIS supports under Schedule 2 of the National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (‘Transitional Rules’). The Agency contends that the effect of the Transitional Rules is that there is no reasonable prospect of success regarding these requested supports.

    [23] A participant’s plan must include a SOPS. A SOPS is part of, though separate to, a plan. See RTRH and National Disability Insurance Agency [2022] AATA 205 (‘RTRH’), [81]-[83].

    [24] Mr Waller’s 2021 plan; section 37 NDIS Act (Compilation No. 16).

    [25] PSG Act sch 1, item 68(2).

    [26] Agency’s dismissal application at [5]; NDIS Act, s 37, NDIS Act (Compilation No. 16).

    [27] Found in Division 4. And in light of section 37 of the NDIS Act.

    [28] Agency’s dismissal application at [6].

20. At the commencement of the interlocutory hearing, Ms McKnight read out a statement written by Mrs Waller. To summarise, the statement expressed Mrs Waller’s frustration and anger with the Agency and with the length of time the proceedings have taken since filing the Tribunal application. In addition, Mrs Waller also stated that she elected not to attend the interlocutory hearing and that she was not going to respond to the dismissal application with ‘legal responses.’

21. Ms McKnight also clarified that Mr Waller’s representative would not offer ‘legal responses’ at the interlocutory hearing. The Tribunal understands this to mean that Mr Waller’s representative obtained legal advice and elected not to provide submissions in response to the Agency’s dismissal application.

22. The Tribunal accepts the following uncontested matters.

    (a)Firstly, as a participant of the NDIS, Mr Waller requires and receives substantial daily support for his disabilities.

    (b)Secondly, Mr Waller’s parents have provided him with significant formal and informal support for over 24 years.

    (c)Thirdly, Mrs Waller consistently described Mr Waller as ‘an unconditionally loved member of the family’.[29]  

    [29] Mrs Waller’s statement read by Ms McKnight.

    THE POWER TO DISMISS

23. Section 101(1) of the ART Act states:

    Tribunal may dismiss application if frivolous, vexatious etc.

    1The Tribunal may, at any time, dismiss an application made to the Tribunal if the Tribunal is satisfied that the application:

    (a)is frivolous, vexatious, misconceived or lacking in substance; or

    (b)has no reasonable prospects of success; or

    (c)is otherwise an abuse of the process of the Tribunal.

    (Emphasis added.)

24. The use of the word ‘may’ under s 101(1) of the ART Act provides the Tribunal with a discretionary power to dismiss an application. This threshold for the Tribunal to exercise such discretion ‘is one of satisfaction’.[30]

    [30] Adams and Comcare (Practice and procedure) [2025] ARTA 51 at [26].

25. The Agency referred to the decision of Cba Raiders Sports Club Ltd and Cmr for ACT Revenue [1999] ACTAAT 28 (‘Cba Raiders’),[31] specifically that ‘the Tribunal… should exercise great caution before effectively terminating an action’.[32] Similar concerns were raised regarding the power to dismiss an action in Re Williams and Australian Electoral Commission:[33]

    The power to dismiss under this head [s 42B of the AAT Act] must be exercised cautiously and sparingly.

    [31] Supplementary Hearing Bundle, page 370.

    [32] Cba Raiders, [5].

    [33] (1995) 21 AAR 467 (‘Re Williams’), [473].

26. The Tribunal should ‘exercise the dismissal power cautiously’ because it ‘curtails merits review of the decision contested by an applicant’.[34] However, this must be weighed against the s 9 objectives of the ART Act which states:

    [34] Barthel and Australian National University (Compensation) [2019] AATA 548, [36]

    The Tribunal must pursue the objective of providing an independent mechanism of review that:

    (a)is fair and just; and

    (b)ensures that applications to the Tribunal are resolved as quickly, and with as little formality and expense, as a proper consideration of the matters before the Tribunal permits; and

    (c)is accessible and responsive to the diverse needs of parties to proceedings; and

    (d)improves the transparency and quality of government decision‑making; and

    (e)promotes public trust and confidence in the Tribunal.

    (Emphasis added.)

27. The question of whether an application is ‘frivolous, vexatious, misconceived or lacking in substance’ was considered around the dismissal power in s 42B of the AAT Act, the Tribunal in Re Filsell and Comcare[35] stated:

    The word ‘frivolous’ in combination with ‘vexatious’ is a technical legal term, which means that there is no legal basis for the proceedings…

    [35] [2009] AATA 90 (‘Filsell’), [33].

28. In Taylor and National Disability Insurance Agency[36] the Tribunal further elaborated that ‘if an application can serve no purpose for the applicant, it should not continue to use the Tribunal’s time and resources’.

    [36] [2021] AATA 1042 (‘Taylor’), [21].

29. In considering the dismissal power, and in particular whether an application is ‘lacking in substance’ or has ‘no reasonable prospects of success’, the Tribunal accepts that s 42B(1) of the AAT Act is similar to s 101(1) of the ART Act.

30. The Tribunal is persuaded by the Agency’s reasoning where it relied on Barthel and Australian National University (Compensation)[37] regarding the test of ‘no reasonable prospect of success’:[38]

    The phrase ‘no reasonable prospect of success’ must be construed as a whole, without gloss. Clearly enough, in order to determine if a particular case has no reasonable prospect of success, a decision maker must assess whether any reasonable prospect of the case succeeding exists. A case that is more than hopeless or necessarily bound to fail, or one that is more than fanciful, may still be found to have ‘no reasonable prospect of success’. Where a case is found to have some prospect of succeeding, the key test for the purposes of s 42B(1)(b) of the AAT Act is whether it is below the threshold for a reasonable prospect of success. (Original emphasis.)

    [37] [2019] AATA 548 (‘Barthel’).

    [38] Barthel, [37].

    Mr Waller’s 2021 plan and the effect of the 2025 plan

31. The Agency filed two bundles of authorities in support of its submissions, totalling 2,871 pages. The bundles included the current NDIS Act and the relevant compilations of the NDIS Act in force before and after 1 July 2022.  

1. In setting out the Tribunal’s jurisdiction, the Agency relied on the decision of the Full Federal Court in QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189 (‘QDKH’) where the court articulated:[39]

   (a)The Tribunal’s jurisdiction is governed by s25(1) of the [AAT Act] read together with s 103 of the NDIS Act. That jurisdiction involves the Tribunal reviewing the decision of the reviewer made under s 100 of the NDIS Act, who is in turn reviewing the CEO’s or delegate’s decision to approve a SOPS under s 33(2) of the NDIS Act (NDIS Act, s 99(1), item 4).

   (b)The Tribunal’s role is to stand in the shoes of the internal reviewer and determine for itself the decision which should be made in the exercise of the power under s 100 of the NDIS Act: Frugtniet v Australian Securities and Investments Commission [2019] HCA 16 at [51] (Bell, Gageler, Gordon and Edelman JJ). The scope of the Tribunal’s jurisdiction is, therefore, determined by reference to the scope of the internal reviewer’s powers under s 100 of the NDIS Act, which is in turn informed by the scope of the power under s 33(2) of the NDIS Act.

   [39] QDKH, [10].

2. I accept the Agency’s contentions that the Tribunal’s power to review the SOPS in the 2021 plan is limited to the period from 1 February 2021 until 16 January 2025.[40]

   [40] RTRH, [99]. See also Hill and National Disability Insurance Agency [2023] AATA 3626 (‘Hill’).

3. I accept the Agency’s submission that Mr Waller’s 2021 plan commenced prior to 1 July 2022 and therefore after this date s 103(2) of the NDIS Act operates so that when the 2025 plan commenced it replaced the 2021 plan pursuant to s 37(3) of the NDIS Act.[41]

   [41] See Hill, [138].

4. I accept that neither Mrs Waller nor Mr Waller’s representative wanted to ‘provide a legal response at the interlocutory hearing’.

5. I accept the Agency’s submissions that the legislative changes from 1 July 2022 to the NDIS Act means that the application should be dismissed because ‘no legitimate purpose could be achieved by continuing with the proceeding and because the outcome of the proceeding would be devoid of any practical effect irrespective as to whether the applicant was successful or otherwise’.[42] In other words the continued pursuit of the Tribunal application lacks utility in terms of practical outcome.

   Remaining supports in Tribunal application

   [42] Cba Raiders, [5].

   Parents paid as support workers

6. From 28 January 2022 until 16 January 2025, Mr Waller’s parents were paid to work as his support workers. From 17 January 2025, Mr Waller’s parents could no longer be paid as the funding for core supports is ‘Agency-managed’, and because they are not registered scheme providers.[43] The Tribunal understands that Mr Waller’s representative was aware of the option to pursue an internal review decision through the NDIS about the issue of Mr Waller’s parents no longer being paid as support workers for him under the 2025 plan.

   [43] S 33(6) NDIS Act.

7. The issue of Mr Waller’s parents being paid as support workers is ‘lacking in substance’ in the terms of s 101(1)(a) of the NDIS Act. The Tribunal is also persuaded by the reasoning in Pavlakis and National Disability Insurance Agency[44] as a ‘plan cannot be replaced other than following the reassessment process under sections 48 and 49 of the NDIS Act’. Mr Waller’s 2021 plan was ‘replaced’ by the 2025 plan after a s 48 reassessment. Throughout the course of the Tribunal application, Mr Waller’s parents were paid as his support workers. Now there is no application before the Tribunal regarding the payment of Mr Waller’s parents.

   [44] [2023] AATA 2485 (‘Pavlakis’), [30]. See also DZNB and National Disability Insurance Agency [2022] AATA 1326, [38].

   Motor vehicle support and internet support

8. The Tribunal notes that some requested supports were conceded, that these are now included in the 2025 plan, and that there is no issue of reimbursement as they have not yet been purchased.[45] However, two supports remain in review: the motor vehicle support; and internet support. For the reasons below, these aspects of the application have ‘no reasonable prospects of success’.

   [45] Transcript, 4 December 2024. Hearing Bundle, H4, page 169.

9. Section 34 of the NDIS Act provides for what is a ‘reasonable and necessary’ support. Prior to 3 October 2024, s 34 of the NDIS Act stated:

   Reasonable and necessary supports

   1For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:

   (a)the support will assist the participant to pursue the goals, objectives and aspirations included in the participant's statement of goals and aspirations;

   (b)the support will assist the participant to undertake activities, so as to facilitate the participant's social and economic participation;

   (c)the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;

   (d)the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;

   (e)the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;

   (f)the support is most appropriately funded or provided through the NationalDisability Insurance Scheme, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:

   (i)     as part of a universal service obligation; or

   (ii)    in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.

   2The National Disability Insurance Scheme rules may prescribe methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding whether or not he or she is satisfied as mentioned in any of paragraphs (1)(a) to (f).

10. On 22 August 2024, the NDIS Act was substantially amended by the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 (Cth) (‘Amendment Act’). On 3 October 2024, the National Disability Insurance Scheme (Getting the NDIS Back on Track) Transitional Rules 2024 (Cth) (‘Transitional Rules’) commenced.

11. The Transitional Rules apply to a SOPS approved or varied after 3 October 2024 even if a participant’s plan came into effect before the amendments. This means that the

    …key amendments and rules concerning what is and what is not a ‘NDIS Support’ as newly defined must be applied in this independent review even though those amendments and rules did not exist when the decision under review was made.[46]

    [46] FSWN and National Disability Insurance Agency [2025] ARTA 114, [3].

12. The Amendment Act made a range of amendments to the NDIS Act including amendments to s 34, which apply to this review.[47] Section 34 of the NDIS Act, as amended states:

    [47] Amendment Act s 129(2). See also Malouf and Chief Executive Officer, National Disability Insurance Agency (NDIS) 2025 ARTA 97, [12]-[19].

    Reasonable and necessary supports

    1For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:

    (aa)the support is necessary to address needs of the participant arising from an impairment in relation to which the participantmeets the disability requirements (see section   24) or the early intervention requirements (see section   25);

    (a)the support will assist the participant to pursue the goals, objectives and aspirations included in the participant's statement of goals and aspirations;

    (b)the support will assist the participant to undertake activities, so as to facilitate the participant's social and economic participation;

    (c)the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;

    (d)the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;

    (e)the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;

    (f)the support is an NDIS support for the participant.

    Note:  For the purposes of (aa):

    (a)the time at which the disability requirements or the early intervention requirements need to be met is the time the CEO decides to approve and

    (b)a participant's disability support needs arising from an impairment in relation to which the participantmeets the disability requirements or the early intervention requirements may be affected by a variety of factors, including environmental factors or the impact of another impairment in relation to which the participant does not meet either of those requirements.

    2The National Disability Insurance Scheme rules may prescribe methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding whether or not he or she is satisfied as mentioned in any of paragraphs   (1)(aa) to (f).

    (Emphasis added.)

13. Section 34(1) of the NDIS Act is cumulative, and all criteria must be met.

14. The ‘new’ s 34(1)(f) of the NDIS Act replaced the ‘old’ section. The ‘new’ s 34(1)(f) of the NDIS Act requires that the requested support be a ‘NDIS support’.

15. The definition of what constitutes a ‘NDIS Support’ for the purposes of s 34(1)(f) of the NDIS Act, after the 3 October 2024 amendments, is found in s 10 of the NDIS Act, which states:

    Supports that are NDIS supports

    1Subject to subsections (4) and (9), a support is an NDIS support for a person who is a participant or prospective participant if the support is declared by National Disability Insurance Scheme rules made for the purposes of this subsection to be an NDIS support for :

    (a)participants or prospective participants generally; or

    (b)a class of participants or prospective participants that includes the person.

    Note:  The National Disability Insurance Scheme rules may declare a support for the purposes of this subsection by identifying a class of supports (see subsection 13(3) of the Legislation Act 2003 ).

    2Before making National Disability Insurance Scheme rules declaring a support for the purposes of subsection (1), the Minister must be satisfied:

    (a)for rules to which paragraph (1)(a) applies--that the support is appropriately funded or provided through the National Disability Insurance Scheme for participants or prospective participants generally; or

    (b) for rules to which paragraph (1)(b) applies--that the support is appropriately funded or provided through the National Disability Insurance Scheme for participants, or prospective participants, in the relevant class.

    3National Disability Insurance Scheme rules may declare a support for the purposes of subsection  (1) only if at least one of the following applies:

    (a)the declaration of the support implements Australia's obligations under:

    (i)     the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006; or

    (ii)    any other agreement with one or more other countries;

    (b)the declaration of the support enables the provision of sickness benefits.

    Note:  For subparagraph (a)(i), the Convention on the Rights of Persons with Disabilities is in Australian Treaty Series 2008 No.12 ([2008] ATS 12) and could in 2024 be viewed in the Australian Treaties Library on the website ( are not NDIS supports

    4The National Disability Insurance Scheme rules may declare that a support is not an NDIS support for:

    (a)participants or prospective participants generally; or

    (b)a class of participants or prospective participants.

    Note:  The National Disability Insurance Scheme rules may declare a support for the purposes of this subsection by identifying a class of supports (see subsection 13(3) of the Legislation Act 2003 ).

    5Before making National Disability Insurance Scheme rules declaring a support for the purposes of subsection   (4), the Minister must be satisfied:

    (a)for rules to which paragraph (4)(a) applies--that the support is not appropriately funded or provided through the National Disability Insurance Scheme for participants or prospective participants generally; or

    (b)for rules to which paragraph (4)(b) applies--that the support is not appropriately funded or provided through the National Disability Insurance Scheme for participants, or prospective participants, in the relevant class.

    6The CEO may determine, in writing, that a support is taken to not be declared under subsection  (4) in relation to a participant if:

    (a)the support is prescribed by the National Disability Insurance Scheme rules for the purposes of this paragraph; and

    (b)the support would, apart from subsection (4), be an NDIS support for the participant; and

    (c)the participant applies to the CEO in accordance with subsection (7) for the determination; and

    (d)the CEO is satisfied that:

    (i)     the support would replace one or more other supports that are NDIS supports for the participant; and

    (ii)    the cost of the support is the same or lower than the total of the costs of the supports it would replace; and

    (iii)    the support would provide the same or a better outcome for the participant than the supports it would replace; and

    (iv)    any other conditions specified in the National Disability Insurance Scheme rules for the purposes of this subparagraph are met in relation to the support, the participant, or both.

    Note 1:  A determination may be revoked under subsection 33(3) of the Acts Interpretation Act 1901 .

    Note 2:  The National Disability Insurance Scheme rules may prescribe a support for the purposes of paragraph (a) by identifying a class of supports (see subsection 13(3) of the Legislation Act 2003 ).

    7An application under paragraph (6)(c) must:

    (a)be in the form (if any) approved by the CEO; and

    (b)include any information, and be accompanied by any documents, required by the CEO; and

    (c)be made in accordance with any other requirements specified in the National Disability Insurance Scheme rules for the purposes of this paragraph, which may include requirements as to the circumstances in which an application may, or may not, be made.

    8The National Disability Insurance Scheme rules may make provision for determining any matter for the purposes of subsection (6), including by prescribing requirements with which the CEO must comply, methods or criteria that the CEO is to apply, or matters that the CEO may, must or must not take into account, in deciding whether to make a determination under that subsection.

    9A support is not an NDIS support for a participant or prospective participant if the support consists of the provision of:

    (a)sexual services; or

    (b)alcohol; or

    (c)drugs, the possession of which is a contravention of a law of the Commonwealth, a State or a Territory.

16. The Rules contained in the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (‘Supports Rules’) must also be applied with respect to the assessment of whether a requested support is a reasonable and necessary support pursuant to s 34(1) of the NDIS Act.[48] 

    [48] See rules 3.1, 3.2.

17. The Transitional Rules are also relevant to Mr Waller’s review. Schedule 1 of the Transitional Rules identifies supports that are NDIS Supports, unless otherwise provided, for the purposes of s 10(1) of the NDIS Act. Schedule 2 of the Transitional Rules identifies supports that generally are not NDIS supports for the purposes of s 10(1) of the NDIS Act.

18. Mr Waller’s application relates to the ‘prospects of an application rather than the characteristics or qualities of [the] application’[49] and that it requires the Tribunal to:

    consider the totality of materials placed before it and decide if there is a reasonable prospect of the application succeeding. If the Tribunal is satisfied there is no such prospect, then the discretion to dismiss the application is enlivened, and the Tribunal must then determine if it is appropriate to exercise the discretion in all the relevant circumstances.[50]

    [49] Barthel, [35].

    [50] Barthel, [35].

19. The consideration of whether the remaining supports in review have ‘no reasonable prospect of success’ must be ‘construed as a whole, without gloss’.[51] The considerations listed in Barthel[52] offer a rational framework to do this and are paraphrased as:

    (a)  Identify the kernel of issues on which the substantive application turns;

    (b)  Consider the extent to which… there are probative materials addressing each issue;

    (c)   Assess whether those materials raise no reasonable prospect of…succeeding; and

    (d)  Determine if it is appropriate to dismiss [the] application in all the relevant circumstances.

    [51] Spencer v Commonwealth of Australia [2010] HCA 28, [52]-[60] (Hayne, Crennan, Keiffel and Bell JJ).

    [52] Barthel, [54].

20. The ‘kernel of issues’[53] is that Mrs Waller purchased a motor vehicle in September 2024, for the benefit of Mr Waller, and she seeks reimbursement for the purchase price of this motor vehicle. Similarly, Mr Waller’s parents have paid $105 each month for internet costs during the course of the Tribunal application, and the parents seek reimbursement and ongoing payment of this monthly cost.

    [53] Barthel [54].

21. The Tribunal considered the ‘extent of the probative material’[54] in support of Mr Waller’s Tribunal application. In summary, there was extensive material filed and the proceedings are not at an early stage.[55] Mr Waller’s representative was afforded an opportunity to seek legal advice and to respond to the Agency’s dismissal application, however elected not to do so nor to file or rely on further material at the interlocutory hearing.

    [54] Barthel [54].

    [55] On 4 December 2024, the Hearing Bundle was comprised of 1,870 pages. This bundle was received by the Tribunal around 7 November 2024.

22. The Tribunal assesses that there is limited probative value of the materials relied on by Mr Waller’s representative to demonstrate that the requested supports are ‘reasonable and necessary’ supports for Mr Waller. There are limited probative materials, and they raise no reasonable prospect of the substantial application succeeding. This is especially the case in light of the Transitional Rules detailing that the motor vehicle support and internet support are not ‘NDIS supports within the meaning of the new section 34(1)(f) of the NDIS Act’.[56] I am not satisfied that the materials provided to the Tribunal regarding both the reimbursement of the motor vehicle and for internet costs are of sufficient probative value to demonstrate that the requested supports satisfy the criteria in s 34(1) of the NDIS Act, nor in the Transitional Rules.

    [56] See Malouf. See also Ives and National Disability Insurance Agency [2025] ARTA 25, [14]-[16]; Duse and National Disability Insurance Agency [2025] ARTA 37, [82]-[89], [98]-[107]; Defa and the CEO, National Disability Insurance Agency [2024] ARTA 34, [69].

23. Schedule 2, item 6(b) of the Transitional Rules lists ‘day-to-day living costs-travel and transport vehicles, including motor vehicles’ as ‘supports that generally are not NDIS supports’.

1. Schedule 2, item 4(e) of the Transitional rules lists ‘day to day living costs- lifestyle internet, landline and mobile phone plans and data’ costs as ‘supports that generally are not NDIS supports’.

2. The Tribunal accepts the Agency’s submissions that the remaining supports relate to supports that, generally, are not listed as supports under Schedule 2 of Transitional Rules, and that there is no reasonable prospect of success under s 101(1)(b) of the ART Act in pursuing the Tribunal application.

3. The Tribunal also notes that the NDIS Act and the Transitional Rules appear unambiguous regarding the motor vehicle support and internet support not being NDIS supports.[57] The decision of Barthel stated:

   … where some ambiguity exists in the applicable legislation, or where the state of the law is not clear or settled, even though the applicant’s case may not be strong, the person may still have a reasonable case to argue, such that it rises above the ‘no reasonable prospect of success’ threshold.[58]

   [57] Barthel, [41].

   [58] Barthel, [41].

4. In arriving at the correct or preferable decision, the Tribunal must balance the available materials regarding Mr Waller’s relevant circumstances, the Agency’s submissions, consideration of the statutory objectives in s 9 of the ART Act, and the importance of upholding fairness to the parties. I am satisfied that the discretionary power to dismiss Mr Waller’s Tribunal application is enlivened and the ‘no reasonable prospect of success threshold’ is met with respect to the remaining two supports.

5. It is open to Mr Waller’s representative to seek a future internal review decision, at any time, regarding the reasonable and necessary supports in Mr Waller’s 2025 plan. This is a one-year plan that is due for review prior to the plan end date of 16 January 2026.    

   DECISION

6. The Tribunal dismisses the application in the terms of s 101(1)(a) of the Administrative Review Tribunal Act 2024 (Cth) that it is ‘lacking in substance’ and s 101(1)(b) of the Administrative Review Tribunal Act 2024 (Cth) that it has ‘no reasonable prospects of success’.

I certify that the preceding 60 (sixty) paragraphs are a true copy of the reasons for the decision herein of General Member Smith

....[SGD]....

Associate

Dated: 28 February 2025

Date of hearing:	4, 5 December 2024; 13 February 2025
Applicant:	Mrs Sandra Harkness
Solicitors for the Respondent:	Ms Gertrude Kurewa, National Disability Insurance Agency

Counsel for the Respondent:            Mr J Sproule