Padgham and Chief Executive Officer, National Disability Insurance Agency (NDIS) - [2025] ARTA 2309

Padgham and Chief Executive Officer, National Disability Insurance Agency (NDIS) [2025] ARTA 2309 (31 October 2025)
Applicant:Matthew Padgham
Respondent: Chief Executive Officer, National Disability Insurance Agency
Tribunal Number: 2023/7634

Tribunal:General Member A Colvin
Place:Brisbane
Date:31 October 2025

Decision: The Tribunal affirms the decision under review.

.............SGD......................
General Member A Colvin
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – National Disability Insurance Scheme Act 2013 (Cth) – consideration of section 34 – reasonable and necessary supports – support workers – support that is not face-to-face support – day planning – handover – making file notes – reporting to behaviour support practitioner – whether support is operational cost of service provider – whether support is duplication of supports – NDIS Pricing Arrangements and Price Limits 2025-26.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 (Cth)
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)
National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (Cth)
National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (Miscellaneous Provisions) Transitional Rules 2024 (Cth)
National Disability Insurance Scheme (Provider Registration and Practice Standards) Rules 2018 (Cth)
Cases
Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 60
National Disability Insurance Agency v WRMF [2020] FCAFC 79
GJDB and Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 3245
FMDP and National Disability Insurance Agency [2025] ARTA 2225

FSWN and National Disability Insurance Agency [2025] ARTA 114
Secondary Materials
NDIS – Operational Guidelines
Statement of Reasons
BACKGROUND

Mr Mathew Padgham is 33 years old and a participant in the National Disability Insurance Scheme (NDIS). He was granted access to the NDIS based on impairments arising from autism spectrum disorder (ASD). He also has intellectual disability.
As an NDIS participant, Mr Padgham has a plan that includes a statement of participant supports (SOPS). His current plan commenced on 1 September 2025 and is the result of the parties to this proceeding reaching agreement on a broad range of matters. The SOPS in his current plan now contain total funding for one year of $696,430.11.
There was however one matter on which the parties to this proceeding were unable to reach agreement, and which is now the sole issue to be determined in this review.
On 5 days/week Mr Padgham attends a day program provided by Bedford Services & Advisory Ltd (Bedford Group). Mr Padgham’s current plan includes funding to support his attendance at the Bedford Group’s day program on a 1:1 basis 5 days/week.
On Mr Padgham’s behalf, it is contended that additional funding should be included in the SOPS in his current plan to fund non-direct support provided by Bedford Group comprised of time spent each…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Padgham and Chief Executive Officer, National Disability Insurance Agency (NDIS) [2025] ARTA 2309
Case: [2025] ARTA 2309
Decision Date: 31 October 2025

CaseChat Overview and Summary

Padgham sought review of a decision by the National Disability Insurance Agency (NDIS) to refuse to fund certain support services. The dispute centred on the interpretation of section 34 of the National Disability Insurance Scheme Act 2013 (Cth) and the NDIS Pricing Arrangements and Price Limits 2025-26 (PAPL). The case was heard and determined by the Commonwealth of Australia. The primary legal issue for the Tribunal was whether the claimed support services met the criteria for being "reasonable and necessary" under section 34 of the NDIS Act. Specifically, the Tribunal had to consider if the claimed support was necessary to address the needs of Mr Padgham arising from impairments that meet the access criteria, and whether the support was a duplication of already funded services.

In addressing the legal issues, the Tribunal considered the nature of the claimed support services, which included daily progress noting, reporting, handover, and activity planning. The Tribunal held that the claimed support was not necessary to address Mr Padgham's needs arising from his impairments. The Tribunal found that the claimed support did not meet the requirement under paragraph 34(1)(aa) of the NDIS Act, which stipulates that the support must address needs arising from impairments. The Tribunal also noted that funding the claimed support separately would result in duplication of already funded services, which was not permissible under the PAPL. Consequently, the Tribunal affirmed the decision of the NDIS to refuse funding for the claimed support services.

The Tribunal's reasoning was based on a careful analysis of the statutory criteria and the PAPL, ensuring that the support services in question were both necessary and not duplicative of existing funded services. The Tribunal rejected the argument that non-direct support services could be considered necessary if they were "necessarily ancillary" to funded direct support, holding that such an interpretation would undermine the financial sustainability of the NDIS. The Tribunal concluded that the claimed support services did not meet the statutory criteria for funding and affirmed the NDIS's decision.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

I am therefore not satisfied that the claimed support is necessary to address the needs of Mr Padgham arising from impairments that meet the access criteria (required by paragraph 34(1)(aa)) or that the requirement in paragraph 34(1)(c) of the NDIS Act is met.)DECISION The Tribunal affirms the decision under review.

Ratio Decidendi

Legal Principle Established

Finally, the Respondent contended that the Tribunal should have regard to the context of the claim. The Applicant’s plan included funding for 61 hours of SIL funding at a 1:1 ratio and 51 hours of community access at a 1:1 ratio. It contended that ‘SIL is intended to be a thorough care support model’ and that the day program and SIL providers should each utilise the funded hours to appropriately complete the non-face-to-face support tasks. If the Agency were to separately fund these tasks in addition to the 61 hours of SIL, it would result in a duplication of supports. CONSIDERATION On the Applicant’s behalf it is contended that Bedford Group’s support workers spend on average, 20 minutes/shift, that is, 1 hour 40 minutes/week on daily progress noting, reporting and handover and a further 10 minutes/shift, or 50 minutes/week on activity planning. Paragraph 34(1)(aa) of the NDIS Act requires that a support is necessary to address needs of the participant arising from an impairment in relation to which the participant meets the access requirements. Direct support provided to the Applicant by Bedford Group support workers to undertake community access meets that requirement. However, the claimed support relates to non-direct services. Neither party directly addressed how the Tribunal should approach the application of paragraph 34(1)(aa) to non-direct services. That the claimed support is a non-direct support does not preclude it from meeting paragraph 34(1)(aa). It is not contentious in my view that a non-direct support, including for example some kinds of report writing or travel, might meet the requirements in paragraph 34(1)(aa). It is also not contentious in my view that there may be many tasks undertaken by a support provider that are non-direct that would not meet the requirements in paragraph 34(1)(aa). These might include tasks such as booking a service or providing a quote. For non-direct services, the PAPL draws a broad distinction between those tasks that are ‘part of delivering a specific disability support item’ to the participant and those that are not, such as administrative tasks, training and up-skilling staff, and supervision. I have had regard to the PAPL but I accept the Applicant’s submission that the PAPL is an operational policy and it is not the role of the PAPL to add to the criteria prescribed by section 34 of the NDIS Act or to dictate how the criteria should be interpreted or applied. I do not consider (and it was not contended) that it is correct to incorporate into paragraph 34(1)(aa) an additional or different test under which a non-direct support meets that paragraph if it is ‘necessarily ancillary’ to a funded direct support. To do so risks adopting an expansive operation of that provision that does not have regard to the need to ensure the financial sustainability of the NDIS. Similarly, I do not consider that it is correct to incorporate into paragraph 34(1)(aa) of the NDIS Act an additional or different requirement, for non-direct supports, that the support must not be operational or administrative in nature or that it must be ‘part of delivering a specific disability support item’.