Nohmen and National Disability Insurance Agency

This matter concerned an application for review by Mr Nohmen, on behalf of Mrs Nohmen, of a decision by the National Disability Insurance Agency (NDIA) not to grant Mrs Nohmen access to the National Disability Insurance Scheme (NDIS). Mrs Nohmen had previously been an NDIS participant but ceased to be so upon entering residential care permanently after turning 65 years of age. She sought either the reinstatement of her previous participant status or a new access request, but the NDIA refused access due to her age. The Administrative Appeals Tribunal (AAT) considered the application.

The legal issues before the Tribunal were whether there was any power to "reinstate" Mrs Nohmen's previous NDIS participant status or plan, and whether she met the age requirements for access to the NDIS under section 22 of the *National Disability Insurance Scheme Act 2013* (Cth) (NDIS Act) for a new access request. The Tribunal also considered whether section 29(1)(b) of the NDIS Act, which automatically terminates participation under certain circumstances, could be disapplied due to extenuating circumstances or if the NDIA or the Tribunal had any discretion in its application.

The Tribunal reasoned that Mrs Nohmen ceased to be an NDIS participant automatically by operation of section 29(1)(b) of the NDIS Act when she entered permanent residential care after turning 65, regardless of the precise timing or reasons for entry. It found no provision within the NDIS Act allowing for the reinstatement of a previous participant status or plan, nor any discretion to exclude the operation of section 29(1)(b) in such circumstances. Consequently, if Mrs Nohmen wished to become an NDIS participant again, she was required to make a new access request under section 18 of the NDIS Act. As she was over 65 at the time of her new access request, she did not meet the mandatory age requirements under section 22 of the NDIS Act.

The Tribunal concluded that it had no power to reinstate Mrs Nohmen's participant status or previous NDIS plan. It was satisfied that she ceased to be a participant by operation of section 29(1)(b) of the NDIS Act and that the Tribunal had no discretion to exclude the operation of that provision. Furthermore, the Tribunal was satisfied that Mrs Nohmen did not meet the age requirements under section 22 of the NDIS Act for a new access request. Accordingly, the application was dismissed under section 42B(1)(b) of the *Administrative Appeals Tribunal Act 1975* (Cth) as having no reasonable prospect of success.