Nott and National Disability Insurance Agency (Practice and procedure)

Case •

[2025] ARTA 780

•

17 June 2025

Nott and National Disability Insurance Agency (Practice and procedure) [2025] ARTA 780 (17 June 2025)

Applicant/s:  Peter Nott

Respondent:  CEO, National Disability Insurance Agency

Tribunal Number:                2023/5494

Tribunal:Senior Member P French

Place:Sydney

Date:17 June 2025

Decision:(1)The parties’ application for consent orders in relation to the internal review decision of 5 May 2023 and the decision to approve a Statement of Participant Supports dated 1 February 2024 is dismissed pursuant to s 101(1)(a) of the Administrative Review Tribunal Act 2024 (Cth) on the ground that it is lacking in substance.

(2)For the avoidance of doubt, the substantive review application is dismissed in accordance with and subject to the consent order made pursuant to s 103(2) of the Administrative Review Tribunal Act 2024 (Cth) on 23 April 2025.

......................[SGD]..................................................

Senior Member P French

Catchwords

National Disability Insurance Scheme – reviewable decision of Chief Executive Officer – approval of a Statement of Participant Supports – where parties have reached terms of agreement to resolve their dispute – where Registrar has a doubt as to whether the Tribunal has jurisdiction to make a consent order in accordance with proposed terms of agreement - referral for Member consideration – effect of s 103(2) of the National Disability Insurance Scheme Act 2013 (Cth) – plan decisions made subsequent to an application for review deemed reviewable decisions – Tribunal’s discretion to make a consent order – whether discretion ought to be exercised to make an order which has no practical purpose

Legislation

Administrative Appeals Tribunal Act 1975 (Cth), s 25, Division 3 of Part IV
Administrative Review Tribunal Act 2024 (Cth), ss 12, 87, 101, 103, 107, 108
Administrative Review Tribunal (Authorised Persons) Instrument No 1; schedule 1, item 65
Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth); Schedule 16, item 24
National Disability Insurance Scheme Act 2013 (Cth), ss 33, 37, 39, 47A, 48, 99, 100, 103
National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Act 2022 (Cth); schedule 1, item 49

Cases
PTJR and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 196
Reddish and Civil Aviation Safety Authority [1999] AATA 721

Secondary materials
Australian Government response to the 2019 Review of the National Disability Insurance Scheme Act 2013 report, August 2020

David Tune AO PSM, Review of the National Disability Insurance Scheme Act 2013, Removing Red Tape and Implementing the NDIS Participant Service Guarantee, December 2019

Statement of Reasons

Introduction

  1. The originating application before the Tribunal is an application by Peter Nott (the Applicant) under s 103(1) of the National Disability Insurance Scheme Act 2013 (Cth) (the Act, the NDIS Act) for independent review of an internal review decision made under s 100(6) of that Act by a delegate of the Chief Executive Officer of the National Disability Insurance Agency (the review delegate, the CEO, the Agency, the reviewable decision) on 5 May 2023. By that decision, the review delegate confirmed the CEO’s original decision under s 33(2) of the Act made on 25 January 2023 which was not to approve Supported Independent Living support at an intensity of 1:1 direct support, 24 hours per day, every day in the Statement of Participant Supports (SOPS) that was included in his Participant Plan. The Tribunal has jurisdiction under s 12 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act) to conduct an independent review of this decision[1]  because it is designated a reviewable decision by s 99(1) (Item 4) of the NDIS Act. This application was made to the Tribunal on 27 July 2023 (the substantive application).

    [1] This proceeding commenced before the Administrative Appeals Tribunal (AAT) in accordance with the power conferred by s 25 of the Administrative Appeals Tribunals Tribunal Act 1975 (Cth).  The AAT was abolished and replaced by the Administrative Review Tribunal (ART) with effect from 14 October 2024. By operation of Item 24 in Schedule 16 of the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth) any proceeding which was not determined by 14 October 2024 continues in the ART and is to be determined by the application of the provisions of the ART Act.

  2. Since the originating application was filed, the case has progressed in alternative dispute resolution (ADR) initially under Division 3 of Part IV of the Administrative Appeals Tribunal Act 1979 (Cth), and since 14 October 2024, under s 87 of the ART Act.  While the case has been in ADR the CEO has approved two subsequent SOPS in respect of the Applicant, one on 1 February 2024 and another on 30 October 2024.  The CEO submits that the mechanism by which that occurred was a reassessment of the Applicant’s Participant Plan on her own initiative undertaken in accordance with s 48 of the NDIS Act. This resulted in a decision pursuant to s 48(7)(ii) to prepare a new plan in accordance with Division 2 of Part 2 of Chapter 3 of the NDIS Act and to approve a new SOPS for inclusion in that Plan pursuant to s 33(2).  I will proceed on the basis that this is what occurred in fact.

    The Terms of Agreement

  3. In March 2025 the parties resolved the dispute between them. Terms of Agreement (ToA) were prepared in writing, were signed by both parties on 12 March 2025, and later submitted to the Registry with a request that the Tribunal make consent orders under s 103 of the ART Act to give effect to them.  These ToA are set out following:

    TERMS OF AGREEMENT

    Section 103(2) Administrative Review Tribunal Act 2024

    1.    References to provisions in an Act are references to provisions in the National Disability Insurance Scheme Act 2023, unless otherwise stated.

    2.    The Applicant filed an application in the Tribunal on or about 28 July 2023.  That application sought review of an Internal Review Decision, made on 5 May 2023 under section 100(6) of the Act.

    3.    The Internal Review Decision confirmed an earlier decision to approve a Statement of Participant Supports (SOPS) under section 33(2) of the Act (the Original Decision).  The Original Decision was made on 25 January 2023 and remained in effect until 31 January 2024.

    4.    Subsequently, further decisions were made which are deemed by s 103(2) of the Act, to also be the subject of the Applicant’s application:

    (a)     A further decision to approve a SOPS under s 33(2) which was made on 1 February 2024 (with effect from 1 February 2024 until 29 October 2024);

    (b)     A further decision to approve a SOPS under section 33(2) which was made on 30 October 2024 and which remains in effect to this day).

    5.The Applicant and Respondent have reached agreement as to the terms of a decision of the Tribunal that would be acceptable to the parties.

    6.The terms of the agreement are:

    (a)     The Internal Review Decision, which confirmed the Original Decision, is affirmed.

    (b)     The decision to approve a SOPS made on 1 February 2024 is affirmed.

    (c)     The decision to approve a SOPS made on 30 October 2024 is set aside, and in substitution it is decided:

    (i)That the date by which the Respondent will review the plan (the reassessment date) is 12 months after the day on which the supports under paragraph 6(c)(ii) are specified in the Applicant’s SOPS (the implementation date).

    (ii)To specify the following reasonable and necessary supports that will be funded under the National Disability Insurance Scheme, with effect from the date of the Tribunal’s decision:

    (A)Core Supports

    A.    10 hours per week of 2:1 Access Community Social and Recreational Activities, calculated at the High Intensity, Weekday Daytime rate for 12 months.  This support will replace the current funding for Access Community Social and Recreational Activities.

    (B)Support Coordination

    A.    100 hours per year of Support Coordination Level 3 – Coordination of Supports.  This support will replace the current funding.

    (C)Capital Supports

    A.    A Mid-Cost AT funding for a Motion Composite A7 Helio manual wheelchair with Roho pressure care seat cushion, pursuant to the quote no. 66308 of Xtracare Equipment dated 30 January 2025.

    (iii)The management of the support budgets in the Applicant’s plan is to remain the same as the management of the support budgets outlined in the decision dated 30 October 2024.

    (iv)Unless otherwise stated, all reasonable and necessary supports will be funded at rates calculated in accordance with the National Disability Insurance Scheme Pricing Arrangements and Price Limits as in force at the time.

    (v)Except for the supports specified in paragraph 6(c)(ii), the reasonable and necessary supports in the existing SOPS should be provided, on a pro rata basis, for the period from the implementation date until the reassessment date (excluding any one-off assistive technology supports already used).

    7.The parties apply to the Administrative Review Tribunal to make a decision in accordance with these terms pursuant to subsection 103(2) of the Administrative Review Tribunal Act 2024.

  4. Since 14 October 2024, Tribunal Registrars, in addition to Tribunal Members and the Principal Registrar, have been authorised to make a decision in accordance with ToA filed by parties requesting consent orders in cases that have not been constituted to a Member for hearing,[2] in other words, principally those that remain in ADR at the time of resolution.  Consequently, when these ToA were filed, they were referred to a Registrar to process a consent order. 

    [2] Administrative Review Tribunal (Authorised Persons) Instrument. No. 1 of 2024; schedule 1, Item 65.

  5. Upon review of the ToA, the Registrar developed a concern that a consent order could not be made in the terms proposed.  The reason for this was communicated to the parties as set out below on 20 March 2025 with a request that the ToA be redrafted to address the issues identified and filed again by 26 March 2025.

    There are several issues with the ToA as drafted. Firstly, the ToA purports to both set aside and affirm the decision/s under review. Section 105 of the Administrative Review Tribunal Act 2024 allows the Tribunal to either affirm OR set aside the decisions under review, and not both.

    There are decisions referred to in the ToA for which the Tribunal does not have a copy of (sic), or it is unclear as to what mechanism under the NDIS Act that the plans arose out of.   For example, new plans can be created by way of a section 48 reassessment, a section 47A variation, or an ICT rollover.  The Tribunal requires these documents such that our records are complete, and we can correctly draft the consent decision with reference to the decisions under review.  The Tribunal has a copy of the 1 February 2024 plan but not the 30 October 2024 plan.  It is unclear as to what mechanism both of these plans arose out of.

    …

  6. By email submission filed on 27 March 2025, an inhouse Lawyer for the Agency responded to this request, relevantly, as follows:

    The Agency respectfully disagrees with the proposition in that correspondence as to how a new plan can come into effect.  In particular, the Agency notes that the Tribunal has expressed, in its decisions, that caution should be used when using terms such as “new plans” outside the specific method by which the NDIS Act recognises a new plan comes into existence.

    In essence, the Agency’s view is that:

    ·The approval of a SOPS under s 33(2) of the NDIS Act brings a new plan into effect (see section 37(1) of the NDIS Act);

    ·The variation of a SOPS under section 47A of the NDIS Act merely varies the plan, but does not create a ‘new plan’; and

    ·A decision to reassess a participant’s plan under section 48 carries with it an obligation under section 48(7) to:

    oComplete the reassessment; and

    oElect either to undertake a variation under section 47A or approve a new SOPS under section 33(2) of the NDIS Act.

    The Agency notes that section 37(3) of the NDIS Act makes clear that the approval of a new SOPS following a reassessment under Division 4 brings a new plan into effect whilst the replaced plan will no longer be in effect.

    The Agency notes … that by operation of s 103(2) of the NDIS Act, where an application for review is made under s 100(6) relating to a [SOPS] in a participant’s plan and, before a decision on the review is made, the plan is either varied under s 47A(1) or a new plan comes into effect under s 37 (that is, once a new SOPS has been approved) then the application is also taken to be an application for review of that decision.

    As such, we are of the view that there are three separate decisions under review in the Tribunal:

    1.    The decision under review of 25 January 2023, made under section 100(6) of the NDIS Act, in relation to a plan for the period from 25 January 2023 to 25 January 2024, and extended to 31 January 2024;

    2.    The decision to approve a [SOPS] made on 1 February 2024 following a reassessment completed under s 48 of the NDIS Act (giving rise to a plan with effect from 1 February 2024);

    3.    The decision to approve a [SOPS] made on 30 October 2024 following a reassessment completed under s 48 of the NDIS Act (giving rise to a plan with effect from 30 October 2024).

    By the attached [ToA] dated 12 March 2025 filed with the Tribunal, the parties request that the Tribunal exercise its jurisdiction pursuant to s 103(2) of the ART Act by:

    1.Affirming decision (1) above;

    2.Affirming decision (2) above; and

    3.Setting aside decision (3) and substituting a decision in accordance with the Terms.

    Accordingly, the parties are not asking the Tribunal to both vary and set aside any of the above decisions, but to vary or set aside each decision as requested above.

    …

    Referral for Member consideration

  7. After receipt and further consideration of this submission, the Register referred the parties’ application for a consent order to me for Member consideration with a view to me determining what consent order or orders could or should be made based on the ToA.

  8. Upon receipt of that referral, I directed that the case be set down for an Interlocutory Hearing by telephone on 23 April 2025. At the time the Interlocutory Hearing was listed my Associate advised the parties the purpose of the hearing was to determine if a consent order or orders could be made in the terms proposed.

  9. I pause here to note that the issue raised by the Agency has broader administrative significance to the Tribunal, quite apart from its relevance to the parties.  The NDIS Jurisdictional Area has a high-volume caseload. Happily, many applications for review are resolved in ADR or otherwise without a formal review hearing being required.  This requires the processing of a significant number of consent orders by Registrars. In the current calendar year, for example, more than 1500 consent orders based on ToA filed by parties were issued between 1 January 2025 and 31 May 2025.

  10. To aid its management of this volume of work, and to promote legal accuracy and consistency of form, proforma templates have been developed into which the particulars of ToA submitted by parties for the making of consent orders are ‘inserted’.  In those cases where the reviewable decision is to approve a SOPS, and the CEO makes subsequent decisions altering the SOPS while the review is before the Tribunal, the chapeau of the relevant template recites the original decision and subsequent decisions such that the subsequent decisions are assimilated with the original decision and it is a single assimilated decision that is set aside, substituted or varied.  This is illustrated by the proposed consent order drafted by the Registrar, but not issued, in this case:

    The parties having reached agreement and having signed terms and the Tribunal being satisfied that a decision in the terms of the agreement or consistent with those terms would be within the powers of the Tribunal; pursuant to section 103 of the Administrative Review Tribunal Act 2024, the Tribunal sets aside the decision under review made on 5 May 2023 (as reassessed on 1 February 2024 and 30 October 2024 pursuant to section 48 of the National Disability Insurance Scheme Act 2013) and, in substitution, decides that: 

  11. The approach advocated by the Agency in this case calls into question the correctness of this template.

    The Interlocutory Hearing

  12. The Applicant was represented at the Interlocutory Hearing by his disability Advocate, Mr D Shilton. The Agency was represented at the hearing by its in-house lawyer Mr J Bewsher.  I invited both parties to explain to me why they thought it was appropriate that the consent orders be made in the trifurcated way proposed in their ToA rather than in the way subsequent changes to SOPS are typically dealt with in accordance with the Tribunal’s template.

  13. Quite understandably, Mr Shilton was disinterested in these legal technicalities. He expressed his frustration, on behalf of the Applicant, at the delay in the consent orders being made, drawing attention to the fact that the ToA included the approval of a new wheelchair for the Applicant, which he suggested was urgently needed by him.

  14. Mr Bewsher pressed the Agency’s submission that the Tribunal had before it three separate reviewable decisions which it was obliged to dispose of by separate consent orders. He submitted that this approach to plan decisions made after an internal review decision was essential to the Agency’s understanding of the operation of the NDIS legislative scheme, and to the operation of s 48 and 103(2) of the NDIS Act specifically.  I heard his submissions on those matters at some length.

    Consent order in relation to part of the proceeding

  15. After hearing from the parties, I determined to make an order by consent under s 103(1) of the ART Act in relation to part of the proceeding, being in relation to the substantively operative decision of 30 October 2024, which I set aside and substituted in accordance with the ToA filed by the parties. Although there was a degree of logical inelegance in this approach it resolved the Applicant’s concerns about the delay in him obtaining the benefit of the resolution of the dispute. Both parties submitted that the Tribunal could and should make that consent order immediately. That consent order was processed later on 23 April 2025. I will therefore deal no further with the decision of 30 October 2024 in accordance with s103(3) of the ART Act.

  16. I reserved my consideration as to whether any order should be made by consent or otherwise in relation to the internal review decision of 5 May 2023 and the 1 February 2024 SOPS approval decision.

    Should further consent orders be made?

  17. Section 12(1) of the ART Act provides that a decision is a reviewable decision if an Act or legislative instrument provides for an application to be made to the Tribunal for review of the decision.

  18. Section 103(1) of the NDIS Act provides that an application may be made to the ART for review of a decision made by a reviewer under s 100(6) of the Act. The decisions that are reviewable decisions under s 100 of that Act are designated principally in the Table to s 99(1) of that Act. Relevantly to the present case, they include in Item 4 a decision to approve the statement of participant supports in a participant’s plan under s 33(2) of the NDIS Act.

  19. Section 103(2) of the NDIS Act provides, relevantly:

    (2)       If:

    (a)       a request is made for review of:

    (i)a decision under subsection … 33(2) to approve the statement of participant supports in a participant’s plan; or

    (ii)a decision under subsection 47A(1) to vary a participant’s plan, where the variation is a change to the statement of participant supports; and

    (b)       before a decision on the review is made:

    (i)the CEO varies the plan under subsection 47A(1) and the variation is a change to the statement of participant supports; or

    (ii)a new plan for the participant comes into effect under section 37:

    then:

    (c)if subparagraph (b)(ii) applies – the request is also taken to be a request for review of the decision to make the variation covered by that subparagraph; or

    (d)if subparagraph (b)(ii) applies – the request is also taken to be a request for review of the decision to approve the statement of participant supports in the new plan.

  1. It will be observed that s 103(2) is a deeming provision. It deems a specified decision made after a reviewable decision that is already the subject of an application to the Tribunal to also be a reviewable decision for the purposes of s 12 of the ART Act without any further application being required in relation to that subsequent decision.

  2. Subsection 103(2) was introduced to the NDIS Act by the National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Act 2022 (Cth),[3] which contained measures in response to the outcomes of the Tune Review.[4] The mischief that s 103(2) was designed to overcome was the frustration of applications for review of decisions concerning participant plans by the creation of a new participant plan.[5]  Prior to the amendment, if a new plan was created, the review was limited to the superseded plan.  Review of the superseded plan was usually of no utility to the participant because it was no longer operative. Subsection 103(2) operates to place before the Tribunal plans made after the decision under review so that the review has continuing utility for an Applicant who remains dissatisfied by subsequent plan approval decisions. 

    [3] Item 49 of Schedule 1.

    [4] David Tune AO PSM, Review of the National Disability Insurance Scheme Act 2013, Removing Red Tape and Implementing the NDIS Participant Service Guarantee, December 2019

    [5] Australian Government response to the 2019 Review of the National Disability Insurance Scheme Act 2013 report, August 2020, response to Recommendation 23 at [15]

  3. Having regard to the legislative purpose of s 103(2) it is the presently operative approval of the SOPS which is, at least in most cases, the focus of the Tribunal’s independent review. Any earlier decision, including the internal review decision, while it may formally remain before the Tribunal for review, will typically have no continuing practical relevance. The Tribunal retains jurisdiction to review those decisions, but upon review, it has no power to make any decision of practical benefit to the Applicant.

  4. As I have explained in greater detail in PTJR[6] that is because:

    i.a SOPS is only capable of having operation during a plan period,

    ii.a subsisting plan comes to an end when it is replaced by a new plan,

    iii.there can only ever be one subsisting Participant Plan, no concurrency of Plans can occur,

    iv.the schema of the Participant Plan planning process contained in Division 2, Part 2 of Chapter 3 of the NDIS Act is linear and prospective in nature,

    v.a participant’s entitlement to the funding approved in a SOPS is therefore conditional upon it being spent on the reasonable and necessary supports set out in the SOPS from the date of the SOPS, rather than any earlier date.  Funding for supports provided at an earlier time cannot be included in a SOPS.

    [6] PTJR and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 196 at [49]

  5. There is one circumstance where the review of an approval of a superseded SOPS may retain the potential for practical benefit for an Applicant.   It is where:

    i.the participant seeks independent review of a decision not to approve a support which they contend is reasonable and necessary as a component of that superseded SOPS,

    ii.the participant incurs an expense arising from the provision of that support to them within the temporal operation of that SOPS.  That is, the support is provided after the SOPS commences and before it ends, whether the claim for payment of that support is rendered during the period of the SOPS,

    iii.that SOPS is replaced by subsequent SOPS that is incorporated into a new Participant Plan; that is, the Participant Plan that contains that SOPS comes to an end in accordance with s 37(3) of the NDIS Act because it is replaced by a new plan.

    iv.The participant continues to seek funding for the actual provision of that support within the period of the superseded SOPS.

  6. In such a case, should there be an agreement between the parties that the support was reasonable and necessary at that earlier time it will be necessary to set aside the decision to approve the earlier SOPS and vary or substitute a decision in place of it which incorporates that support into that SOPS.[7] 

    [7] It should be noted that the Tribunal has no power to order the CEO to pay any monetary sum in relation to the past provision of a support; its jurisdiction is limited to determining if that support was reasonable and necessary at the material time.  The “funding” of that past support is then an administrative responsibility of the Agency pursuant to s 39 of the NDIS Act, which requires the Agency to comply with a participant’s SOPS.

  7. Where a SOPS is varied by means of a decision made pursuant to s 47A within a Plan Period (and not replaced by the making of a new Plan under s 48 of the NDIS Act as is so in the present case) the powers conferred on the Tribunal by ss 107(6) or 108(4) and (5) of the ART Act enable it to order that the decision to approve the SOPS takes effect from an earlier time.  In a particular case that may be sufficient to bring the agreed support within the temporal range of a later variation decision under review, such that it is unnecessary to deal separately with an earlier decision. 

  8. However, the commencement of the SOPS cannot be earlier than the date of the commencement of the Participant Plan.  The power conferred by s 107(6) and 108(4) and (5) of the ART Act cannot be invoked to commence the operation of a decision to approve a SOPS prior to the governing plan period.  In a case where an agreed support has a temporal range earlier than the last operative SOPS approval, it will therefore be necessary to deal with that support in the context of the earlier decision.

  9. This exception does not arise in the circumstances of this case.  If there was a dispute between the parties in relation to the funding of past supports, no agreement was reached for that support to be funded. 

  10. Having regard to this analysis, I now turn to s 103 of the ART Act. 

  11. That section confers discretionary power on the Tribunal to make an order (a consent order) in relation to an agreement reached by the parties concerning the whole or part of a proceeding or a matter arising out of it: s 103(1)(a). It may do so provided the terms of the agreement are reduced to writing, signed by the parties, and given to the Tribunal: s 103(1)(b). Relevantly, to this case because it remains in ADR, it may only do so after 7 days have elapsed since the terms of agreement were given to the Tribunal and none of the parties has notified the Tribunal in writing that they wish to withdraw from the agreement: s 103(1)(c). The Tribunal must also be satisfied that a decision in the terms of the agreement or consistent with those terms would be within the powers of the Tribunal: s 103(1)(d). Each of these preconditions is satisfied in this case. The discretion to make a consent order is therefore enlivened.

  12. For the reasons I have explained above, having reached that conclusion, I was satisfied on 23 April 2025 that a consent order limited to setting aside the last operative SOPS approval made on 30 October 2024 was consistent with the ToA filed by the parties and was within the power of the Tribunal.  I exercised the discretion conferred by s 103 to make that consent order.

  13. The issue for present consideration is if the discretion should be exercised to give effect to the ToA insofar as they concern the internal review decision of 5 May 2023 and the decision made on 1 February 2024, both of which are no longer operative decisions, because they concern SOPS that have been replaced by a SOPS inserted to later Participant Plans.  The Tribunal has jurisdiction in relation to these decisions, but in the circumstances of this case, no practical purpose could be served by the exercise of the discretion to affirm these decisions.  There is no agreement in relation to the funding of past supports, and there is no material interdependency between these earlier decisions and the operative decision of 30 October 2024. 

  14. The Tribunal’s powers and discretions should be exercised judiciously where there is proper cause. There is no proper cause for the further exercise of discretion in this case. The Tribunal has made a consent order consistent with the ToA filed by the parties which wholly disposes of the substantive dispute between them. To the extent that there is any doubt about that I will make an order to this effect.  The Tribunal is not compelled by s 103 to make further orders to give effect to terms that have no practical purpose.

  15. It remains to comment on the chapeau of the Tribunal’s template. For the reasons explained above, in the circumstances of this case, by operation of s 103(2) of the NDIS Act the Tribunal has before it three separate reviewable decisions. It has jurisdiction to review each of those decisions. These decisions are not assimilated to one reviewable decision. The decisions of 1 February 2024 and 30 October 2024 are not “reassessments” of the internal review decision. They are decisions that “replaced” the subsisting Participant Plan with a “new” Participant Plan which involved the approval of a new SOPS.

    Conclusion

  16. For the foregoing reasons, the parties’ application for a consent order insofar as it remains before the Tribunal in relation to the CEO’s decisions of 5 May 2023 and 1 February 2024 is dismissed pursuant to s 101(1)(b) of the ART Act on the basis that it is lacking in substance. For the avoidance of doubt, the substantive review application is dismissed in accordance with and subject to the consent order made pursuant to s 103(2) of the ART Act on 23 April 2025.


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Cases Cited

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Statutory Material Cited

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PTJR and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 196