MVGS and National Disability Insurance Agency

This matter concerned an application by MVGS (the Applicant) against the National Disability Insurance Agency (the Respondent) regarding the Applicant's National Disability Insurance Scheme (NDIS) plan. The Applicant has autism spectrum disorder (Level 2), hypermobility spectrum disorder, and attention deficit hyperactivity disorder. The core dispute revolved around whether transport support should be included in the Applicant's NDIS plan or her mother's plan, and crucially, whether the Administrative Appeals Tribunal (AAT) had the jurisdiction to order the Respondent to reimburse or backpay for past transport supports. The decision was ultimately remitted for reconsideration.

The legal issues before the Tribunal were twofold: first, to determine whether transport support was a reasonable and necessary support for the Applicant and, if so, how it should be incorporated into the NDIS plan; and second, to ascertain the Tribunal's power to order the Respondent to reimburse the Applicant for transport support costs incurred prior to the inclusion of such support in her plan. The Tribunal was required to consider the scope of its review powers under the *National Disability Insurance Scheme Act 2013* (Cth) and the *Administrative Appeals Tribunal Act 1975* (Cth).

The Tribunal found that Level 2 transport support at the higher rate was a reasonable and necessary support for the Applicant and should be included in her plan. However, the Tribunal determined that it did not possess the jurisdiction to order the Respondent to reimburse the Applicant for past transport support expenses. This conclusion was based on the understanding that the Tribunal's power to review decisions under section 99 of the NDIS Act is limited to reviewing the approval of a statement of participant supports. The Tribunal reasoned that decisions regarding the payment or reimbursement of supports are not reviewable decisions under the NDIS Act, nor are they within the scope of the Chief Executive Officer's powers when approving a statement of participant supports. The Tribunal drew upon precedent, specifically *XXWC and National Disability Insurance Agency* [2020] AATA 923, which established that the Tribunal cannot order reimbursement for supports not included in the reviewed decision, as payment is a matter for the Agency.

Consequently, the Tribunal set aside the internal review decisions and remitted the matter for reconsideration. The directions included funding Level 2 transport support at the higher rate from the commencement of Plan A, replicating other reasonable and necessary supports for a specified period, and directing the Respondent to determine the appropriate mechanism for the provision of transport support funding and any reimbursement for past expenses.