Pavlakis and National Disability Insurance Agency

This matter concerned an application for review of a decision made by the National Disability Insurance Agency (NDIA) concerning the applicant's National Disability Insurance Scheme (NDIS) plan. The applicant sought review of the NDIA's decision regarding the supports to be included in his plan. The case came before K Buxton SM of the Administrative Appeals Tribunal (AAT).

The primary legal issues before the Tribunal were whether a decision made following a remittal under section 42D of the *Administrative Appeals Tribunal Act 1975* (Cth) constituted a "new plan" for the purposes of the NDIS, and whether such a decision could be considered *ultra vires*. The Tribunal was required to determine the legal effect of decisions made by the NDIA after the Tribunal had remitted the matter for reconsideration, particularly in light of recent Federal Court authority.

The Tribunal reasoned that while section 42D of the *Administrative Appeals Tribunal Act 1975* (Cth) permits a decision-maker to affirm, vary, or set aside a decision and make a new one in substitution, this power does not extend to creating an entirely "new plan" in the context of an NDIS plan review. Instead, any variation or substitution must relate to the original decision under review. The Tribunal noted that decisions made following remittal are taken to be applications for review of the varied or substituted decision, and the applicant may choose to proceed with the review of that new decision. The Tribunal concluded that decisions made following remittal under section 42D, even if described as a "new plan" and effective for a later period, do not have the effect of creating a new plan but rather modify the original decision within the scope of the review.

The Tribunal determined that the decisions made following remittal under section 42D did not create a new plan but rather varied the original decision. The Tribunal proceeded to consider the remaining disputed issues regarding the applicant's reasonable and necessary supports, including accommodation, community access, wellness, capacity building, multidisciplinary meetings, support coordination, transport, and consumables, based on the evidence presented.