O’Hearn and National Disability Insurance Agency

This matter concerned an application by the Applicant for review of a decision made by a delegate of the National Disability Insurance Agency (NDIA) to approve a statement of participant supports. The decision under review was an internal review decision that confirmed the original decision. The Applicant sought funding for several supports, including bathroom modifications, increased physiotherapy, and increased hydrotherapy. The NDIA had recently accepted that some of these supports were reasonable and necessary but had declined to undertake a reassessment or vary the existing plan to include them.

The legal issues before the Tribunal were whether it was appropriate to refer a question of law to the Federal Court of Australia under section 45 of the Administrative Appeals Tribunal Act 1975 (Cth), and the implications of remitting the matter for reconsideration under section 42D of the AAT Act, particularly whether such a remittal could create a new plan. The Applicant had applied for review of the NDIA's decision, and the matter was listed for a final hearing.

The Tribunal, presided over by Senior Member K Buxton, determined that it was not appropriate to refer a question of law to the Federal Court. The Tribunal noted that both parties urged the Tribunal to remit the matter for reconsideration under section 42D of the AAT Act. The NDIA declined to consent to an alteration of the decision under section 26 of the AAT Act, citing the correctness of reasoning in a previous decision. The NDIA also indicated it would not utilise sections 47A or 48 of the National Disability Insurance Scheme Act 2013 (Cth) to make a varied or new decision. The Tribunal found that section 42D was the only available option for the parties to have the reviewable decision remade to include the newly agreed supports. However, the NDIA remained unforthcoming regarding how it intended to exercise its decision-making power upon reconsideration, including whether it would purport to issue a "new plan" without engaging section 48 of the NDIS Act.

The Tribunal concluded by remitting the matter for reconsideration under section 42D of the AAT Act. However, it declined to refer a question of law to the Federal Court of Australia. The Tribunal noted that its observations might assist the parties if further need for additional supports arose, but that the power to remit could only be exercised with the consent of all parties and the Tribunal.