National Disability Insurance Agency v Jones

Case [2025] FCA 877

FEDERAL COURT OF AUSTRALIA

National Disability Insurance Agency v Jones [2025] FCA 877 

File number(s): QUD 334 of 2024
Judgment of: COLLIER J
Date of judgment: 31 July 2025
Catchwords: ADMINISTRATIVE LAW – construction of s 25 of the National Disability Insurance Scheme Act 2013 (Cth) – “early intervention supports” – requirements of s 25(3) – where decision-maker required to be satisfied that early intervention support for the person not most appropriately funded or provided through the National Disability Insurance Scheme – where early intervention supports not identified – where psychiatric report recommended clinical supports – decision of Tribunal attended by error of law – matter remitted for reconsideration
Legislation:

Administrative Appeals Tribunal Act 1975 (Cth) s 44(1)

National Disability Insurance Scheme Act 2013 (Cth) ss 3, 21, (1), (c), 24, (1)(a), 25, (1)(b), (c), (3)

National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 (Cth)
Division: General Division
Registry: Queensland
National Practice Area: Administrative Law
Number of paragraphs: 29
Date of last submission/s: 11 November 2024
Date of hearing: 18 November 2024
Counsel for the Applicant: Mr PM Nolan
Solicitor for the Applicant: Sparke Helmore Lawyers
Counsel for the First Respondent: The First Respondent did not appear

ORDERS

QUD 334 of 2024
BETWEEN:

NATIONAL DISABILITY INSURANCE AGENCY

Applicant
AND:

CAITLIN JONES

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

COLLIER J

DATE OF ORDER:

31 JULY 2025

THE COURT ORDERS THAT:

1.The decision of the Administrative Appeals Tribunal given orally on 23 May 2024 and in writing on 30 May 2024 be set aside.

2.The matter be remitted to the Administrative Review Tribunal, differently constituted, for reconsideration according to law.

3.There be no order as to costs.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

COLLIER J:

  1. Before the Court is a Notice of Appeal from a Tribunal, being an appeal by the National Disability Insurance Agency (applicant) from a decision of the Administrative Appeals Tribunal (Tribunal) given orally on 23 May 2024 and in writing on 30 May 2024 (decision). In its decision the Tribunal set aside the review decision of the applicant dated 9 June 2023 (Review Decision). The Tribunal substituted the Review Decision with a decision that the first respondent (Ms Jones) met the early intervention requirements for access to the National Disability Insurance Scheme (NDIS) under s 25 of the National Disability Insurance Scheme Act 2013 (NDIS Act).

  2. The lawful interpretation and application of s 25 of the NDIS Act is key to the present proceedings before me.

  3. Unfortunately the proceeding before me was somewhat one-sided, in that there was no participation by Ms Jones at any time. In particular, at the hearing of the application, Mr Nolan for the applicant informed me as follows:

    HER HONOUR: Good morning. Now, is there any appearance by the respondent?

    MR NOLAN: As far…

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National Disability Insurance Agency v Jones [2025] FCA 877
Case
[2025] FCA 877
Decision Date

CaseChat Overview and Summary

The case of National Disability Insurance Agency v Jones involved a dispute between the National Disability Insurance Agency (NDIA) and Ms Jones regarding the eligibility of Ms Jones for participation in the National Disability Insurance Scheme (NDIS). The Federal Court was tasked with reviewing the decision of the Administrative Appeals Tribunal (AAT) which had upheld Ms Jones' eligibility for NDIS funding. Ms Jones had initially been denied NDIS funding by the NDIA, but the AAT found that Ms Jones met the early intervention requirements under section 25 of the National Disability Insurance Scheme Act 2013 (NDIS Act).

The primary legal issue was whether the AAT erred in concluding that Ms Jones met the early intervention requirements under section 25 of the NDIS Act. The Court had to determine if the AAT correctly applied the relevant statutory provisions and if the evidence supported the AAT's findings. Specifically, the Court examined whether the AAT properly assessed the criteria in section 25(1) and (3) of the NDIS Act, including whether Ms Jones' impairments were likely to be permanent and whether the early intervention supports were most appropriately funded by the NDIS.

The Court found that the AAT had misapplied section 25(3) of the NDIS Act, which requires the NDIA to be satisfied that early intervention supports are not more appropriately funded or provided by other systems. The AAT failed to consider that the supports Ms Jones required were primarily clinical in nature and the responsibility of the health system, not the NDIS. Consequently, the Court concluded that the AAT's decision was flawed as it did not perform its statutory task correctly. The Court set aside the AAT's decision and remitted the matter back to the AAT for reconsideration.

The final orders of the Court were to set aside the decision of the AAT, remit the matter to the AAT for reconsideration by a differently constituted tribunal, and make no order as to costs. This outcome ensures that the AAT re-evaluates Ms Jones' eligibility for NDIS funding in light of the correct legal principles and evidence.

Orders

Orders of the court

1. The decision of the Administrative Appeals Tribunal given orally on 23 May 2024 and in writing on 30 May 2024 be set aside.

2. The matter be remitted to the Administrative Review Tribunal, differently constituted, for reconsideration according to law.

3. There be no order as to costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Before turning to the application before the Court it is convenient to examine the background, including (so far as is relevant) the Review Decision of the applicant, and the decision of the Tribunal.BACKGROUND On 15 November 2022, Ms Jones made a request to the applicant to become a participant of the NDIS. The impairments nominated by Ms Jones in support of that request were “complex PTSD” and “possible dissociative disorder”. On 16 May 2023, Ms Jones’ request was refused by the applicant on the basis that she did not meet the disability requirements under s 24 of the NDIS Act, nor the early intervention requirements necessary to access the NDIS under s 25 of the NDIS Act. Ms Jones requested a review of the original decision of the applicant on 22 May 2023. On 9 June 2023 the Review Decision affirmed that original decision. Ms Jones sought review of the Review Decision in the Tribunal on 15 June 2023. Materially, the Tribunal found that s 24 of the NDIS Act was not satisfied, however the requirements of s 25 of the NDIS Act in relation to early intervention were satisfied.REVIEW DECISION OF THE APPLICANT REFERABLE TO S 25 NDIS ACT The reasoning of the applicant in the Review Decision can plainly be seen to inform the subsequent reasoning of the Tribunal in this matter. It is accordingly useful to note the reasons of the applicant in finding that Ms Jones had not satisfied the requirements of s 25 of the NDIS Act. Those reasons were as follows: Access criteria: Section 25 Early InterventionDecision: Not SatisfiedTo meet the early intervention requirements, the NDIA must be satisfied that all of the three criteria in paragraph 25(1) have been met, and that the support is not more appropriately provided through other schemes or services.Criteria (a) on impairments – an identified intellectual, cognitive, neurological, sensory or physical impairment that is (or is likely to be) permanent or (ii) an impairment due to a psychosocial disability that is (or is likely to be) permanent or (iii) a developmental delay.I am not satisfied that this criterion has been met in relation to your psychosocial impairments.Our Guidelines - Applying to the NDIS, explains that to meet this criterion, an applicant must have an impairment that is likely to be permanent. When deciding if a person has an impairment that is likely to be permanent, the NDIA considers the same things as in the disability requirements.As outlined in Section 24(1)(b) of the Disability requirements, I am unable to conclude from the evidence provided your psychosocial impairments are permanent.As such, it cannot be determined that you meet this criterion.Criteria (b) on reducing future need for support – early intervention supports are likely to reduce future support needs in relation to disability.I am not satisfied that this criterion has been met in relation to your psychosocial impairments.To meet this criterion, Our Guidelines - Applying to the NDIS explain that early intervention (early access to supports) must be likely to reduce a person’s future disability support needs.Due to the long-standing nature of your psychosocial impairments, I am not satisfied the supports required are ‘early intervention’ in nature. From the evidence provided, early intervention supports are not likely to reduce your future needs for support in relation to disability.Criteria (c) on improving capacity, which may be shown in any one of four ways:Improvement (i) – lessen the impairment’s impact on the functional capacity for communication, social interaction, learning, mobility, self-care or self-management.or Improvement (ii) – prevent the deterioration of functional capacityor Improvement (iii) – improve functional capacityor Improvement (iv) – strengthen informal supports, including building the carer’s capacity.I am satisfied that this criterion has been met in relation to your psychosocial impairments.Criteria 25(3) that the NDIS is the most appropriate support system, and that early intervention supports are not more appropriately funded through other systems of service delivery or support services.I am not satisfied that this criterion has been met in relation to your psychosocial impairments.To meet this criterion, the support a person requires must be most appropriately funded or provided by the NDIS.A person won’t be eligible if we decide the support required is more appropriately funded or provided:•by other general systems of service delivery or support services, such as a workers compensation scheme•under a universal service obligation that other government services must provide to all Australians, such as schools and public hospitals•as a reasonable adjustment under discrimination law, such as making places or venues accessible for you.The evidence provided does not indicate that early intervention supports are most appropriately funded by the NDIS. Early intervention for your psychosocial impairments are most appropriately provided through the Health System or other government services. Clinical treatment is the responsibility of the Health System and not the NDIS.This determination is in line with Our Guidelines - Applying to the NDIS. Further information on when early intervention supports are more appropriately funded by the NDIS or by other services can be found here:•Our mainstream and community supports guideline•Schedule 1 of the NDIS (Supports for Participant) RulesDECISION OF THE TRIBUNAL

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Materially, the Tribunal found that s 24 of the NDIS Act was not satisfied, however the requirements of s 25 of the NDIS Act in relation to early intervention were satisfied.REVIEW DECISION OF THE APPLICANT REFERABLE TO S 25 NDIS ACT The reasoning of the applicant in the Review Decision can plainly be seen to inform the subsequent reasoning of the Tribunal in this matter. It is accordingly useful to note the reasons of the applicant in finding that Ms Jones had not satisfied the requirements of s 25 of the NDIS Act. Those reasons were as follows: Access criteria: Section 25 Early InterventionDecision: Not SatisfiedTo meet the early intervention requirements, the NDIA must be satisfied that all of the three criteria in paragraph 25(1) have been met, and that the support is not more appropriately provided through other schemes or services.Criteria (a) on impairments – an identified intellectual, cognitive, neurological, sensory or physical impairment that is (or is likely to be) permanent or (ii) an impairment due to a psychosocial disability that is (or is likely to be) permanent or (iii) a developmental delay.I am not satisfied that this criterion has been met in relation to your psychosocial impairments.Our Guidelines - Applying to the NDIS, explains that to meet this criterion, an applicant must have an impairment that is likely to be permanent. When deciding if a person has an impairment that is likely to be permanent, the NDIA considers the same things as in the disability requirements.As outlined in Section 24(1)(b) of the Disability requirements, I am unable to conclude from the evidence provided your psychosocial impairments are permanent.As such, it cannot be determined that you meet this criterion.Criteria (b) on reducing future need for support – early intervention supports are likely to reduce future support needs in relation to disability.I am not satisfied that this criterion has been met in relation to your psychosocial impairments.To meet this criterion, Our Guidelines - Applying to the NDIS explain that early intervention (early access to supports) must be likely to reduce a person’s future disability support needs.Due to the long-standing nature of your psychosocial impairments, I am not satisfied the supports required are ‘early intervention’ in nature. From the evidence provided, early intervention supports are not likely to reduce your future needs for support in relation to disability.Criteria (c) on improving capacity, which may be shown in any one of four ways:Improvement (i) – lessen the impairment’s impact on the functional capacity for communication, social interaction, learning, mobility, self-care or self-management.or Improvement (ii) – prevent the deterioration of functional capacityor Improvement (iii) – improve functional capacityor Improvement (iv) – strengthen informal supports, including building the carer’s capacity.I am satisfied that this criterion has been met in relation to your psychosocial impairments.Criteria 25(3) that the NDIS is the most appropriate support system, and that early intervention supports are not more appropriately funded through other systems of service delivery or support services.I am not satisfied that this criterion has been met in relation to your psychosocial impairments.To meet this criterion, the support a person requires must be most appropriately funded or provided by the NDIS.A person won’t be eligible if we decide the support required is more appropriately funded or provided:•by other general systems of service delivery or support services, such as a workers compensation scheme•under a universal service obligation that other government services must provide to all Australians, such as schools and public hospitals•as a reasonable adjustment under discrimination law, such as making places or venues accessible for you.The evidence provided does not indicate that early intervention supports are most appropriately funded by the NDIS. Early intervention for your psychosocial impairments are most appropriately provided through the Health System or other government services. Clinical treatment is the responsibility of the Health System and not the NDIS.This determination is in line with Our Guidelines - Applying to the NDIS. Further information on when early intervention supports are more appropriately funded by the NDIS or by other services can be found here:•Our mainstream and community supports guideline•Schedule 1 of the NDIS (Supports for Participant) RulesDECISION OF THE TRIBUNAL

Ratio Decidendi

Legal Principle Established

As I noted earlier in these reasons, only the applicant made any submissions in this matter. In summary, the applicant submitted:·The issue requiring determination by the Tribunal was whether Ms Jones met the disability requirements under s 24 or the early intervention requirements under s 25 of the NDIS Act.·The Tribunal’s reasons attached significant weight to the reports of the psychiatrist Dr Ewer. In his later report Dr Ewer limited his diagnoses to Post-traumatic Stress Disorder and a Major Depressive Disorder.·The Tribunal was satisfied that Ms Jones met the early intervention requirements under s 25 of the Act, however in doing so the Tribunal failed to ask itself the correct questions, misunderstood or misapplied s 25(3) of the NDIS Act and thereby failed to perform its statutory task.·The legislation contemplates that the NDIS would not cover people whose requirements for support would most appropriately be met by other systems.·The Tribunal found (at [9] of its reasons) that the treatments suggested by Dr Ewer, and the supports Ms Jones claimed she would require, were clinical in nature and were primarily the responsibility of the health system to deliver.·The Tribunal found that the “specific supports” that “may be provided” to Ms Jones as part of the “planning process…may yet be different from what the Applicant is asking for now”, however that speculation was an erroneous basis on which to conclude that Ms Jones met the early intervention requirement.·Assistance to access services that appropriately lie outside of the NDIS are “general supports” rather than “early intervention supports” for the purposes of s 25. The Tribunal incorrectly conflated “general supports” with “early intervention supports”.·Although the NDIS Act was amended following the determination by the Tribunal, it is appropriate for the Court to apply s 25 as it stood prior to those amendments.CONSIDERATION In her application to the Tribunal Ms Jones sought review of the Review Decision on the following basis:I have found that as the NDIS has moved in the mainstream of the disability sector. All access to resources are being moved over to the NDIS system. Meaning that people like myself are not even receiving the support that they need, as I am not considered disabled enough for the NDIS but on the other hand my access to any adequate support is accessible as they are all NDIS providers. I have been forced by the Government’s hand to be on the NDIS not because I want to but because there is no other option for me now. But at the same time the government wants me to fight to prove im disabled enough to be deemed fit to access any help through the NDIS to which they are declaring I am not and my claim was denied. I am very confused as to how the government has considered me disabled enough to place me on a disability pension but then conclude I’m not disabled enough to not have any access to resources through the NDIS to support a recovery to get off the disability pension (which I think at this stage will never happen).(errors in original)