Pizzinni and National Disability Insurance Agency (NDIS) - [2025] ARTA 486

Pizzinni and National Disability Insurance Agency (NDIS) [2025] ARTA 486 (11 April 2025)
Applicant/s:  Pizzinni; Attalla; Zekusic
Respondent:  CEO, National Disability Insurance Agency
Tribunal Number:                2024/9251; 2024/9181; 2024/8760
Tribunal:Senior Member P French
Place:Sydney
Date:11 April 2025
Decision:Application no.s 2024/9251, 2024/9181 and 2024/8760 are each dismissed pursuant to 101(1)(a) and (c) of the Administrative Review Tribunal Act 2024 (Cth) on the grounds that they misconceived and are otherwise an abuse of process.

........................[SGD].........................
Senior Member P French
Catchwords: NATIONAL DISABILITY INSURANCE SCHEME – claims for recovery of costs incurred by support provider – where approved funding exhausted – whether the impugned decisions are reviewable decisions – whether there has been an internal review of any reviewable decision - whether an application can be made by person who is deceased – whether a Support Coordinator can authorise a support provider to make an application for review on behalf of a participant – whether a support provider has a conflict of interest in representing a participant to whom they provide support in an application for review – where applications are in substance made by a support provider – no jurisdiction – applications misconceived – applications an abuse of process – applications dismissed.
Legislation
Administrative Review Tribunal Act 2024 (Cth), ss 12, 17,66, 84, 101
National Disability Insurance Scheme Act 2013 (Cth), ss 3, 9, 29, 31, 33, 34, 37, 39, 45, 46, 46A, 47A, 48, 78, 86, 99, 100, 103
National Disability Insurance Scheme (Supports for Participants) Rules 2013
Cases
Carroll and National Disability Insurance Agency [2022] AATA 2822
Complete Nursing and Home Care Pty Ltd and National Disability Insurance Agency [2022] AATA 360
Deacon and National Disability Insurance Agency [2022] AATA 3209
Gaudron and National Disability Insurance Agency [2021] AATA 615
Glasshouse Community Supports Pty Ltd [2024] AATA 816
Jones and National Disability Insurance Agency [2023] AATA 2014
LinkAssist Pty Ltd and National Disability Insurance Agency [2023] AATA
Nganana Incorporated and National Disability Insurance Agency [2023] AATA 2906
Pascu and National Disability Insurance Agency (NDIS) [2025] ARTA 32
PTJR and CEO, National Disability Insurance Agency [2025] ARTA 196
QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189 189
13Homecare and National Disability Insurance Agency [2023] AATA 793
Statement of Reasons
Introduction

Before me are three related applications which were listed consecutively for Interlocutory Hearings (dismissal – no jurisdiction) on 11 February 2025 on the application of the Chief Executive Officer of the National Disability Insurance Agency (CEO, Agency). Two applications, (2024/9251 Pizzini and 2024/9181 Attalla), were heard to finality on that day.
However, in respect of the third case, (2024/9181 Zekusic), it was appropriate to allow Mr Zekusic’s Support Coordinator some further time to obtain from her file records upon her return from travel overseas potentially relevant documents related to her scope of authority, as delegated by the NSW Trustee and Guardian, and her contacts with the Agency, on Mr Zekusic’s behalf, at the relevant times for that application. In that case, I therefore made directions for the filing of any further post-hearing evidence and submissions from the parties up to 26 February 2025, indicating to them that I would consider whether any further hearing was required in relation to those materials upon their receipt. Upon consideration of the further material that has been filed, I am now satisfied that this case can be finalised without hearing further from the parties.
I also indicated to the parties on 11 February 2025, that I would publish my decisions and reasons in relation to all three matters at the same time. Although each case was subject to a separate hearing, it is convenient to issue a single statement of reasons in respect of them because, apart from one issue in 2024/9251 Pizzini, and one issue in 2024/9181 Zekusic, disposition of them turns on the same issues.
I note that it has been appropriate to closely consider the claims made in these applications in view of the fact that it is asserted by each named applicant’s purported representative, Mr Pascal Wallace, that his company, Workersweb Pty Ltd t/a Australian In-Home Care Specialists (‘AIHCS’), which at the time of the hearings was a Registered NDIS provider, faces bankruptcy if $1,457,487.66 in debts claimed to be owed to it in relation to support it provided to each named applicant is not paid immediately.[1] It is said that this would leave major debts owing to the Australian Taxation Office, including in relation to staff superannuation entitlements, result in default on a bank loan and personal loans to the company from its director and a staff member, as well as result in the cessation of services to Mr Attalla, Mr Zekusic, and other NDIS participants for whom AHICS provides support.
[1] This debt is asserted in a letter to AIHCS from its auditor dated 7 February 2025. However, the claims made in relation the 3 named applicants appear to add to approximately $1,040,000.00 ($87,471,86 in respect of the Late Mr Pizzini, $751,000.00 in respect of Mr Zekusic, and $201,465.14 in respect of Mr Attalla), so the debt claimed does not appear to be only referable to support provided to them.
Upon careful consideration, I have determined that each case must be dismissed pursuant to s 101(1)(a) and (c) of the Administrative Review Tribunal Act 2024 (Cth) (‘ART Act’) on the grounds that they are misconceived and are otherwise an abuse of process. That is because:
(a)decisively:
(i)with respect to application no. 2024/ 9251, the Late Mr Joseph Pizzini is no longer a legal person capable of making an application for review. He died on 10 December 2022. The Late Mr Pizzini’s Estate became a legal person on his death. However, his Executor obtained a grant of probate and distributed his Estate over a year ago. The Estate has ceased to exist, and having performed her obligations, its Executor is no longer capable of instituting or authorising legal action on its behalf;
(ii)with respect to application no. 2024/9181 Zekusic, a decision by the Agency to suspend payments to a NDIS Registered support provider is not designated a reviewable decision in the Table to s 99(1) of the National Disability Insurance Scheme Act 2013 (Cth) (‘NDIS Act’) or otherwise. The Administrative Review Tribunal (‘Tribunal’, ‘ART’) does not have jurisdiction at large. Section 12 of the ART Act provides that an administrative decision will only be reviewable by the Tribunal if an Act or legislative instrument provides for an application to be made to the Tribunal for review of the decision;
(iii)with respect to all three applications, the administrative decisions to which they relate are, in substance, decisions of the Agency pursuant to s 45 of the NDIS Act that amounts claimed by AIHCS are not amounts payable under the NDIS in respect of each participant’s plan. Such decisions are also not designated reviewable decisions in the Table to s 99(1) of the NDIS Act, and consequently, this Tribunal has no jurisdiction to review such decisions;
(iv)with respect to all three applications, while it is possible to identify in the chronology of events at the material time for each case participant plan related reviewable decisions made by the CEO, or which might be deemed to have been made by the CEO, there is no evidence that any of those decisions was subject to a valid request for internal review. No internal review was conducted in relation to any of these decisions, and the facts and circumstances in each case do not indicate that a deemed internal review decision materialised from any failure by the CEO to respond to an internal review request. This Tribunal’s jurisdiction is only enlivened when, relevantly, an internal review decision is made by the CEO, or is deemed to have been made by the CEO, and independent review of such a decision is sought by an applicant.
Additionally,
(v)the applications are, in substance, made by AIHCS, naming Mr Pizzini, Mr Attalla and Mr Zekusic as applicants. The Late Mr Pizzini, Mr Attalla and Mr Zekusic are not Applicants in any genuine sense. Even if these applications did arise from an administrative decision that is designated a reviewable decision under the NDIS Act, only a person who is directly affected by such a decision has the legal right (standing) to seek review of such a decision. In the circumstances of these cases, the only person who can be directly affected by such a decision is the participant themselves, or their proper representative. A NDIS support provider is incapable of being a person directly affected by a participant plan related reviewable decision, albeit that they may be indirectly affected by such a decision. A NDIS support provider therefore does not have standing to apply for independent review of a participant plan related reviewable decision and cannot overcome that difficulty simply by naming as the applicant a person to whom they provide support;
(vi)even if these applications arose from a reviewable decision, and the named participants were genuinely the applicants for review, AIHCS is not an appropriate representative of these applicants because its financial interests are the central concern in each application. AIHCS’s financial interests are not co-extensive with the interests of the participants. The potential for conflict of interest is manifest. For this reason, even if AIHCS had been authorised by each participant or their proper legal representative to represent them, it ought properly to be prevented from doing so by the Tribunal by order made pursuant to s 66(3)(a) of the ART Act. If persons associated with AIHS had a role to play in such a review, it would be as a witness only.
Procedural history
By a standard ART form, ‘Application for review of a decision’, filed on 18 October 2024, Mr Pascal Wallace, as a purported representative for Mr Mark Zekusic applied for review of two decisions of the Agency, which he identifies as being a decision of the Agency dated 2 July 2024, to suspend payments to AIHCS in respect of Mr Zekusic, and a decision dated 7 June 2023 described as a ‘planning meeting update’ in relation to Mr Zekusic.
By a standard ART form,‘Application for review of a decision’, filed on 8 November 2024, Mr Wallace, as purported representative for Mr Abanoub Attalla, applied for review of a decision of the Agency which he identifies as having been made on 10 October 2024, which is described as the failure of the Agency to respond to requests made by AIHCS over an 18 to 24month period to provide an interim plan for Mr Attalla.
By a standard ART form, ‘Application for review of a decision’, filed on 12 November 2024, Mr Wallace, as a purported representative for (the Late) Mr Joseph Pizzini applied for review of a decision of the Agency which he identifies as being made on 19 June 2024, being a decision to refuse to respond to a letter of demand issued by AIHCS to the Agency on 17 June 2024 for payment of an alleged debt owing in respect of Mr Pizzini.
By applications filed on 13 December 2024, the CEO sought dismissal of each application on the ground that the Tribunal does not have jurisdiction to deal with them because they do not disclose any reviewable decision, and for other reasons (the dismissal applications).
Registry referred the dismissal applications to me to determine on 14 January 2025. After consideration of them, on 15 January 2025, upon my instruction, Registry issued directions to the parties which required the Agency to file any further evidence and submissions in support of the dismissal applications by 20 January 2025, and for each named applicant to file and serve any evidence and submissions in response by 3 February 2025. Each party responded to those directions. I note that Mr Wallace filed a stream of documents in the lead up to the hearing in relation to each named applicant.
I also note that by application no.s 2024/2825 and 2024/3268 filed on 1 May 2024 and 13 May 2024 respectively, Mr Wallace, as named representative, made prior applications to the Tribunal naming Workersweb Pty Ltd t/a Australian In-Home Care Specialists and Mr Fakhri Attalla as applicant in relation to the debts allegedly owed to AIHCS by the Agency in respect of the Late Mr Pizzini and Mr Attalla. The present applications in relation to the Late Mr Pizzini and Mr Attalla, in substance, reagitate the same issues on which those earlier applications turned. Those earlier applications were listed for an Interlocutory Hearing (no jurisdiction) on 25 June 2024 before a Tribunal, differently constituted. Following that hearing Mr Wallace withdrew both applications on 26 June 2024, and they were dismissed on this basis.
As noted above, the CEO’s dismissal applications in each case were listed for consecutive Interlocutory Hearings on 11 February 2025. Mr Wallace attended those hearings as the named representative of each applicant and gave oral evidence. Ms Sarah Bahri, AIHCS’s General Manager, also attended each hearing and gave oral evidence. Mr Wallace also called another witness in each case, being Mr Zekusic’s Support Co-ordinator, Ms Harleen Kaur, the Late Mr Pizzini’s sister, former Plan Nominee and the Executor of his Estate, Ms Caterina Faga, and Mr Abanoub Attalla’s father and Plan Nominee, Mr Fakhri Attalla. Each gave oral evidence.
The participants
The Late Mr Pizzini
The Late Mr Joseph Pizzini died on 10 December 2022 at the age of 61. He was a participant in the NDIS up to that date. Prior to his death, he lived with mild intellectual impairment, generalised anxiety and depression, an above knee left leg amputation and associated severe nerve pain, and he was blind. These conditions are or intellectual, physical, and sensory impairments, or are impairments attributable to a psychosocial disability, for the purposes of the NDIS. He also lived with other serious health conditions, including diabetes.
The Late Mr Pizzini has a sister, Ms Caterina Faga. While he was a participant in the NDIS, Ms Faga was the Late Mr Pizzini’s Participant Plan Nominee. Ms Faga was appointed Executor under the terms of the Late Mr Pizzini’s Last Will and Testament. Ms Faga appeared as a witness at the hearing concerning the application that had been made in relation to the Late Mr Pizzini. She gave oral evidence that she had discharged her responsibilities as Executor of the Late Mr Pizzini’s Estate pursuant to a grant of probate she had obtained from the NSW Supreme Court ‘at least a year ago’ (she was unable to remember precisely when).
When he was a NDIS participant, Mr Pizzini’s Participant Plan was Plan Managed. His Plan Manager was a company trading as Catena Programs and Services. Another organisation, Independence Ulladulla Inc. provided Support Coordination services to him. The Support Coordinator was Ms Belinda Hopkins.
Up until his death, Mr Pizzini lived in a privately owned family home, which had belonged to his parents prior to their deaths. Mr Pizzini was approved for Supported Independent Living (‘SIL’) support as a component of the Statement of Participant Supports (‘SoPS’) incorporated into his Participant Plan. AIHCS had been engaged by Mr Pizzini’s Plan Manager on the instruction of his Plan Nominee to provide that support and had been doing so for several years prior to his death.
Mr Pizzini was admitted to hospital in December 2021 due to complications related to his diabetes. During this admission his left leg was partially amputated. He was discharged from hospital on 4 July 2022, after a 7-month admission.
It appears that prior to his discharge, a hospital based occupational therapist conducted a functional capacity assessment in relation to Mr Pizzini, which identified the supports that he would require to enable his discharge of hospital. The report arising from this assessment is not in evidence. However, it is clear on the evidence before me that this report informed the development of a SoPS for Mr Pizzini, which was approved by a delegate of the CEO as a component of his Participant Plan on 3 June 2022. It appears that inactive overnight disability support worker assistance was recommended by the Occupational Therapist, and this was what was approved in the SoPS.
The Participant Plan and SoPS approved by the delegate of the CEO on 3 June 2022 is not in evidence. However, I infer from the surrounding evidence before me that the SoPS did not provide for funding for the intensity of disability support worker assistance AIHCS considered was necessary for his appropriate care, including in relation to active disability support worker assistance overnight. Upon his discharge, AIHCS provided a higher intensity level of care, apparently with the knowledge and support of Mr Pizzini’s Plan Nominee and Plan Manager. There is some evidence which suggests that this was, at least initially, intended as a ‘hospital to home’ transitional arrangement. In any event, it resulted in the utilisation of approved funding for disability support worker assistance at a faster rate than had been approved by the CEO under the SoPS dated 3 June 2022.
In September or October 2022, an Occupational Therapist working for an entity trading as Concentric Rehabilitation Centre conducted a functional assessment of Mr Pizzini on referral from his Support Coordinator. In a report dated 11 October 2022, the occupational therapist recommended, relevantly, that Mr Pizzini receive 2:1 intensity disability support worker assistance eight hours a day and 1:1 intensity support worker assistance at all other times each day. That recommendation appears to reflect the actual level of support that AIHCS had been providing to Mr Pizzini since his discharge from hospital.
Doing the best that I can with the material before me, I have constructed the following chronology of events in relation to the relevant facts and circumstances in the Late Mr Pizzini’s case. I am satisfied that this is a sufficient outline of events, albeit that it cannot be a complete one on the state of the evidence.
8 Mar 2022the Agency initiated an ‘unscheduled’ s 48 reassessment of the Mr Pizzini’s Participant Plan.
31 Mar 2022Ms Faga submitted a request to the Agency for a s 48 reassessment of Mr Pizzini’s Participant Plan.
23 May 2022              the Agency conducted the unscheduled s 48 reassessment of Mr Pizzini’s Participant Plan
3 June 2022a delegate of the CEO approved a new SoPS for inclusion in Mr Pizzini’s Participant Plan which was expressed to commence from 3 June 2022 with a review date of 3 June 2023.
11 Aug 2022Mr Pizzini’s Plan Manager sent an email to AIHCS and Ms Faga which had as its subject line “Joe Pizzini – urgent request for documentation for review”. The body of the email states:
“Hi
A review for Joe is imminent due to the funds in the current plan at serious risk of exhaustion – can you please send a summary report on how Joe is going with his overnight services. If Joe has settled in well at home, we will need to discuss moving services to inactive overnights as per the initial Occupational Therapist report from NSW Health.
In line with consent from Cathy Farga and Cathy’s request to AIHCS allied health services, can we ask for the reports to be sent through this week as per previous communication.
This current plan is an interim plan to get Joe home from hospital and the reports that need to go in for the review are as per below.
·     Occupational Therapist functional report
·     OT Home modifications report
·     Bathroom modifications report and any other modifications required
·     All incident reports
·     A quote for supports all justification for having 24 hour supports in place
·     Progress reports outlining the barriers, outcomes and capacity built in the plan period
·     Summary of current and proposed timetable of services for new plan
·     A complex care plan outlining all aspects of service and support for the current plan
…”
22 Aug 2022Mr Pizzini’s Plan Manager forwarded a copy of its email of 11 August 2022 to AIHCS and Ms Faga again, stating:
“Hi AIHCS and Cathy
We are needing to receive the reports as per the email below. We have noticed that the 24-hour support has continued and will need to receive the documents below for the review asap. Can you please send an update and progress notes on the service being provided. The support for nights needs to be reviewed. [AIHCS] can you please respond to this email to advise on this and update on how Joe is going with sleep and wake times.
Please let us know today if you have not conducted the necessary assessments so that we can engage other service providers to provide this support to Joe for his upcoming review requirements.
Please see this enquiry and request as a matter of urgency”.
Sept or Oct 2022        A functional capacity assessment is undertaken in relation to Mr Pizzini by Concentric Rehabilitation Centre.
6 Oct 2022a representative of the Agency contacted Ms Faga and his Support Coordinator, Ms Hopkins to inform them that funding available under Mr Pizzini’s SoPS had been exhausted and that a plan review request had been made of the relevant section of the Agency, which would be in contact. The Agency’s file does not contain any record of the proposed plan review and no further contact to or from Ms Faga is recorded by the Agency.
Sept and/or Oct 2022 on behalf of AIHCS Mr Wallace submitted a letter of demand to the Agency for payment of a debt he contended was owed to AIHCS which had not been approved for payment by the Plan Manager because funding for supports in Mr Pizzini’s SoPS had been exhausted.
16 Oct 2022Mr Wallace attended the Surry Hills offices of the Agency and requested a response to the letter of demand AIHCS had sent to the Agency for payment of debts alleged to be owed in relation to Mr Pizzini’s support. Mr Wallace stated that he required a response to that letter so he could apply to the AAT for review of the Agency’s decision to refuse to pay the amount claimed. The Agency’s file record notes that Mr Wallace was referred to the Plan Manager because Mr Pizzini’s Participant Plan was plan managed.
2 Nov 2023Mr Wallace, as Director of AIHCS, made a complaint to the Commonwealth Ombudsman concerning the Agency’s refusal or failure to pay debts said to be owed to AIHCS in relation to several participants, including the Late Mr Pizzini.
31 Dec 2022Ms Hopkins submitted a payment enquiry to the Agency via its on-line portal attaching AIHCS invoices for support provided to Mr Pizzini for the period 24 October to 10 December 2022 requesting payment.
12 Jan 2023the Agency locked payments on Mr Pizzini’s account, apparently upon notification of his death.
17 Jan 2024Mr Wallace, on behalf of AIHCS, made a complaint to the NDIS Quality and Safeguards Commission about debts alleged to be owed to AIHCS by the Agency in relation to several participants, including the Late Mr Pizzini. The amount claimed in relation to Mr Pizzini was stated as $74,975.88 in respect of the period 24/10/2022 to 10/12/2022. Under the heading “Reasons for Difficulty Billing at the time” the following is stated:
“Joe went backwards quickly in the last 6 weeks of his life. We got approval for 2 people to look after him during the final few months of life. Death payment and forensic clean invoices + last 6 weeks of service with 2 Care workers leading up to his death remains unpaid. Plan management company (Ulladulla plan management) folded 1-2 weeks after he died, and we never received the final invoice payment”.
19 Feb 2024Mr Wallace, as Director of AIHCS, wrote to the Minister responsible for the NDIS to complain about amounts claimed to be owed to AIHCS by the NDIA in respect of several clients including the Late Mr Pizzini.
22 Feb 2024Mr Wallace on behalf of AIHCS submitted another letter of demand to the Agency requesting payment of $74,975.88 in respect of support provided to Mr Pizzini during the period 24 October to 10 December 2022.
6 Mar 2024a delegate of the Agency notified Mr Wallace of the action the Agency had taken in relation to his claims for payment of amounts in respect of several clients, including The Late Mr Pizzini. Mr Wallace was advised that his “claims [had] been reviewed for each participant and the outcomes were emailed to [him]… This Claim and Payment Enquiry is now closed.”
8 Mar 2024the Agency responded to Mr Wallace’s complaints to the Minister responsible for the NDIS about debts allegedly owed to AIHCS, including in relation to Mr Pizzini, advising that as Mr Pizzini’s Participant Plan had been Plan Managed, his enquiries would need to be directed to the Plan Manager.
1 May 2024Workersweb Pty Ltd trading as Australian In-Home Care Specialists filed application no. 2024/2825 with the AAT. The decision sought to be reviewed was the payment request made to the Agency on 31 December 2022. In the section of the form that requires the applicant to identify the reason why the decision is wrong, the following is stated:
“The NDIS has a duty to its participants to provide URGENT REVIEWS for those who qualify to allow participants choice and control who provides their service. The slow ndis review process took more than 2 months and the patient died during this period.
This is the 6 week gap period, which has still never been paid, where the old funding ran out due to his drastically declining health.
The fact that I even need to take this to AAT is a complete joke.”
3 May 2024the Agency responded to Mr Wallace’s complaints relating to the non-payment of invoices submitted in relation to the Late Mr Pizzini as follows:
“This correspondence is in relation to your Payment Enquiry … for the late Participant … regarding your 6 invoices … total amount $74,975.88.
Your claim has been reviewed … and we are unable to make the requested payment as the Participant’s plan/support category budget has been consumed. Also, the level of supports provided exceeds the budget approved in plan that has caused the overutilisation of the plan.
Please note that as per NDIS Act 2013 Section 46 Acquittal of NDIS amounts (1): A Participant who receives a NDIS amount, or a person who receives a NDIS amount on behalf of a participant, must spend the money in accordance with the participant’s plan. While the funding in a participant’s plan can be flexible to support their choice and control with the services and supports they access, the NDIA is not obligated to pay for supports over and above what have been considered reasonable and necessary.
Whilst I understand that this is a sensitive matter as Joe has passed, further information or clarification would need to be provided to Joe’s nominee or Executor of his estate. Whilst I acknowledge you have provided a Legal Authority to Act form, this is not sufficient to share particular information that we may hold. ….
17 June 2024             Ms Fago submitted a “letter of demand” to the Agency requesting that it pay AIHCS $87,471.86 being alleged debts owed to AIHCS related to Mr Pizzini’s care during the last 7 weeks of his life.
19 June 2024             Mr Wallace submitted a request to the Agency via its enquiries email address which had as its subject “JOE PIZZINI REVIEW REQUEST, and which stated:
“We required a reviewable decision to take to the AAT.
Your payment enquiry team has denied both our company and his plan manager over 5 requests for the final $87,471.86 we are owed for the last 7-8 weeks of 24/7 service in the final weeks of his life.
Its so obvious that a change of circumstances and increased needs of service occurred and his needs changed drastically in the last months of his life.
The estate of Joe Pizzini has asked us to represent them to chase this last interim plan that he needed in the last 7 weeks of his life.
…
25 June 2024             application no. 2024/2825 was listed for an Interlocutory Hearing (dismissal) at the request of the Agency.
26 June 2024             Mr Wallace, acting on behalf of AIHCS, withdrew application no. 2024/2825 and it was dismissed.
3 Nov 2024Mr Wallace submitted a further request to the Agency titled “JOE PIZZINI REVIEW REQUEST”, copied to the NDIS Quality and Safeguards Commission via its enquires email address. That email incorporates the text of his 19 June 2024 email and additionally states:
“…
I will repeat the question from the estate:
“Will the ndis be providing an interim plan for Joe Pizzini for the amount $87,471.86 between the dates of 16/Oct/2022 until 10/12/2022.”
We have already submitted a mountain of evidence providing this is undoubtedly reasonable and necessary.
We will reactivate our previous AAT case… if this request is denied.
Previously we couldn’t move forward with this case because we didn’t have a reviewable decision.
The lack of urgency around Joe receiving an urgent interim plan at the time (despite several calls to urgent NDIS team and his LAC) was beyond negligent…”
6 Nov 2024a representative from the Agency’s National Contact Centre responded to Mr Wallace’s 3 November 2024 request by referring (and incorporating) the Agency’s response dated 3 May 2024. At the end of that email the representative states: “This payment enquiry is now closed”.
12 Nov 2024               the present application, naming Mr Pizzini as Applicant, was filed by Mr Wallace, purporting to be his representative.
26 Nov 2024               the Late Mr Pizzini’s former Support Coordinator, Ms Hopkins, made an application to the Agency for payment of $74,975.88 in respect of Core Support for Mr Pizzini during the period 24 October 2022 to 4 December 2022.
Mr Zekusic

Mr Zekusic is a current NDIS participant. He is 62 years old. He was formerly married and has three adult children, who do not appear to be currently involved in his affairs. For the purposes of the NDIS, he lives with a cognitive impairment (being dementia) which is derivative of Wernicke-Korsakoff syndrome. The material before me suggests that he requires a high level of supervision for his own safety and the safety of others due to significant impairment-related behaviours of concern.
Since June 2022, SIL funding has been approved for inclusion in his Statement of Participant Supports (SoPS) in his NDIS plan. Mr Zekusic commenced receiving SIL supports from AIHCS on or about 21 November 2022.
Mr Zekusic is the subject of a Guardianship Order made by the Guardianship Division of the NSW Civil and Administrative Tribunal under the terms of which the NSW Trustee and Guardian is appointed, his guardian with responsibilities that include decisions concerning accommodation and services. The NSW Trustee and Guardian did not appear at the hearing concerning the application that had been made in relation to Mr Zekusic. It appears that Mr Zekusic’s financial affairs are also subject to some form of substitute decision-making arrangement, but on the evidence before me I do not know who is the financial manager.
Mr Zekusic’s Participant Plan is now ‘Agency Managed’ within the meaning of s 42 of the NDIS Act. It appears that in November 2022 and for some time thereafter, it was ‘Plan Managed’ by the Benevolent Society. It is not apparent in the material before me when this change occurred.
Up until on or about 11 September 2024, the Benevolent Society was also engaged to provide Support Coordination services to Mr Zekusic under his Participant Plan. Towards the end of the period it provided this service, his Support Coordinator was Ms Harleen Kaur. From 11 September 2024 an entity trading as ‘Bright Upwards’ has been engaged to provide Support Coordination services to Mr Zekusic. Ms Kaur is now employed by that entity and continues to be Mr Zekusic’s Support Coordinator. However, she does not have access to her file records for the period she worked at the Benevolent Society. Ms Kaur appeared as a witness at the hearing concerning the application that had been made in relation to Mr Zekusic.
In evidence is a letter signed by the delegate of the NSW Trustee and Guardian dated 11 September 2024 which explains the current scope of Ms Kaur’s delegated authority from the Guardian in her Support Coordination role as follows:
The Public Guardian consents to the release and exchange of Mr Zekusic’s personal and private information to facilitate collaboration with other agencies or health professionals in the development of his support service. Any shared information about Mr Zekusic must be treated as confidential outside of the agreed release and exchange process. This consent includes sharing his NDIS Plan to relevant service providers. This consent includes Bright Upwards accessing the NDIA Portal, receiving access to any required activation codes and sharing his NDIS Plan to relevant service providers and uploading/requesting any Change of Circumstances or other application forms and being endorsed as a provider.
In her oral evidence, Ms Kaur stated that during the period she provided Support Coordination Services to Mr Zekusic as an employee of the Benevolent Society she held an equivalent delegation, however she is unable to produce this.
Doing the best that I can with the material before me, I have constructed the following chronology of events in relation to the relevant facts and circumstances in Mr Zekusic’s case. I am satisfied that this is a sufficient outline of events, albeit that it cannot be a complete one on the state of the evidence.
Oct 2022Mr Zekusic was referred to AIHCS as a prospective client by his Behaviour Support Practitioner. At that time Mr Zekusic was living in accommodation with SIL support provided by another disability support provider.
By 5 Nov 2022           AIHCS had commenced providing support to Mr Zekusic although he continued to live in accommodation with SIL support provided by the other provider.
21/22 Nov 2022          a request was made by Mr Zekusic’s Support Coordinator/Plan Manager to the NSW Trustee and Guardian for approval of a change in SIL placement for Mr Zekusic. This request was associated with a proposed service agreement with AIHCS. It also appears that an Agency ‘Change of Circumstances form” was forwarded to the Guardian for approval, which proposed increased intensity (1:1) disability support worker assistance for Mr Zekusic.[2]
[2] On the state of the evidence, I am unable to know if this increased intensity was proposed for the whole day (24 hours) or for particular periods, including whether it included active overnight support.
24 Nov 2022               the Support Coordinator notified AIHCS that she would submit the Change of Circumstances form to the Agency.
Oct-Nov 2022             both AIHCS and the other service provider make claims for payment for providing support services to Mr Zekusic, with the result that AIHCS’s claims are not processed for payment.
13 Dec 2022NSW Trustee and Guardian writes to AIHCS to consent to it providing a SIL placement for Mr Zekusic. That letter states in part: “our consent is limited to agreeing that AIHCS will provide a service that meets Mr Zekusic’s needs as identified in his NDIS Plan. Any costs to Mr Zekusic not funded by his NDIS Plan must be approved by his financial manager or enduring power of attorney. … If you have any concerns about Mr Zekusic, the implementation of his NDIS plan or this consent, please contact the Public Guardian ….”
15-17 Dec 2022         Mr Zekusic’s Support Coordinator submits a Change of Circumstances Form to the Agency.
22 Dec 2022Mr Zekusic’s Support Coordinator/Plan Manager notifies AIHCS as follows: “I have been advised by the NDIS that we need to withdraw the change of situation application and resubmit once an updated functional capacity assessment has been completed by an OT. I was advised that this is essential for the Home and Living panel to review the SIL funding…. I have sent this information to the Public Guardian and will be arranging an OT to complete the assessment as soon as I return from leave in January”.
25 Jan 2023Mr Zekusic’s Support Coordinator notifies AIHCS of a delay in engaging an Occupational Therapist to carry out a functional capacity assessment due to waiting lists for these services.
6 Feb 2023Mr Zekusic’s Support Coordinator notifies AIHCS that the Public Guardian has consented to a named Occupational Therapy provider conducting a functional capacity assessment.
26 April 2023              AIHCS writes to Support Coordinator requesting action as follows:
“Can we please get the review done ASAP. Mark’s funds ran out in February and the review was supposed to be done after the OT Report.   We are still doing 1:1 support without any payments for months. This will be to be included in the review and payments backdated too….”
and in a separate email of same date (in part):
“Moving forward, we need to ensure this is actioned asap as Mark’s funding has been depleted.
As Sarah mentioned the Occupational Therapists report you arranged was in February we are still awaiting on the report and the review from the Benevolent Society ….”
1 Nov 2023 AIHCS submitted three invoices to the Plan Manager totalling $174,149.32 in respect of support services provided to Mr Zekusic requiring their payment.
2 Nov 2023Mr Wallace, on behalf of AIHCS, makes a complaint to the Commonwealth Ombudsman regarding the Agency’s failure to pay debts allegedly owed to AIHCS for support services provided to several participants, including Mr Zekusic.
13 Nov 2023               AIHCS provided the Support Coordinator with a yearly budget for Mr Zekusic’s support which relevantly included 1:1 intensity disability support worker support.[3]
[3] Ibid.
17 Jan 2024Mr Wallace, as Director of AIHCS, made a complaint to the NDIS Quality and Safeguards Commission regarding “unpaid debts” said to be owed in relation to several participants, including Mr Zekusic.
15 Feb 2024Mr Wallace submitted a complaint to the Agency on behalf of AIHCS about the Agency’s failure to pay alleged debts owed in respect of several participants, including Mr Zekusic in relation to whom it was asserted that $233,164.92 was owed.
19 Feb 2024Mr Wallace, as Director of AIHCS, wrote to the Minister responsible for the NDIS to complain about amounts claimed to be owed to it by the NDIA in respect of several clients including the Mr Zekusic.
26 Feb 2024the Agency’s Claims and Payment Team notified Mr Wallace of the outcome of its review of AIHCS’s claim for payment of invoices for Mr Zekusic totalling $233,164.92, advising (in part):
“Your claim has been reviewed and we are unable to make the requested payment as the level of support that was provided is above the level that the delegate determined to be reasonable and necessary.
…
Please resubmit these outstanding invoices for consideration if the participant has a home and living reassessment completed determining that they require 1:1 supports. When the participant’s circumstances have changed and current supports are not meeting the participant’s needs, the Agency may conduct a plan reassessment. Please contact the participant or contact us … to discuss the plan reassessment process.
This Payment Enquiry is now closed.”
29 Feb - 5 Mar 2024   Mr Zekusic’s Support Coordinator attempted to contact the Agency to discuss payment of AIHCS invoices, but was unable to do so because the Agency did not accept she had authority to do so.
5 Mar 2024Mr Zekusic’s Public Guardian contacted the Agency stating as follows:
“Please find attached a letter from our office in support of an upcoming change of situation request, and a separate request to resolve the issue of pending invoices.
Ms Kaur is Mr Zekusic’s NDIS Coordinator of Support and has previously contacted the NDIA/NDIS to resolve the issue of pending invoices and this matter remains unresolved on the NDIS side.”
8 Mar 2024the Agency responded to Mr Wallace’s complaints to the Minister responsible for the NDIS about debts allegedly owed to AIHCS, including in relation to Mr Zekusic, advising that AIHCS’s claim for payment of invoices totalling $233,164.92 “have not been paid as they are not in accordance with the participant’s plan and the funding determined reasonable and necessary by the planner delegate”.
7 Mar 2024Mr Zekusic’s Support Coordinator notified AIHCS that she has submitted a request to the Agency for an unscheduled review of Mr Zekusic’s participant plan and for one-off payment of AIHCS’s pending invoices in relation to his support.
10 April 2024              Mr Zekusic’s Support Coordinator notifies AIHCS that she had been contacting the Agency every two days to follow up her requests for an unscheduled plan review and for payment of AIHCS’s invoices but has been told that there is a backlog, and a response will take at least 28 days.
17 June 2024             AIHCS sent an email to the Support Coordinator and Public Guardian requesting an “urgent review”. That email states in part:
“Thanks for organising the new plan. Unfortunately, most of the funds have been exhausted with back payments. I have attached the invoices, which have been sent through Proda for payment. Can we please organise an emergency review to get more funds, especially since his plan wasn’t increased even though he requires 1:1 support?
1 Jul 2024the Agency initiated an unscheduled review (s 48 reassessment) of Mr Zekusic’s Participant Plan.
2 Jul 2024the Agency issued a Notice of payment suspension to AIHCS in relation to Mr Zekusic’s plan. That Notice stated (in part):
“The National Disability Insurance Agency (NDIA) conducts reviews of provider claims to ensure the NDIS and participant plans remain financially sustainable.
A review has been conducted on the claims submitted which identified claiming that is not in accordance with the participant’s plan.
…
This means that all payment requests will need to be manually assessed prior to being paid.
To receive further payments, you will need to submit your payment request via the Provider Portal and email your supporting document to [payment integrity review email]
…”
5 Jul 2024the delegate of the CEO approved a new SoPS for incorporation into a Participant Plan for Mr Zekusic which was expressed to commence on 5 July 2024, and which had a review date of 5 July 2025.
6,12,23 Sept 2024      Mr Wallace contacted the Agency to complain that AIHCS had not been paid invoices related to Mr Zekusic’s support for the past 11 weeks because of the payment suspension and otherwise.
18 Oct 2024 the Agency’s Payment Integrity Team wrote to Mr Wallace in response to his complaints stating, relevantly:
“In the best interests of the Participant, we have afforded the opportunity to provide information for case claim numbers [set out]
Please find attached … Request for Information documents sent on 20^th August 2024 and 30^th August 2024 respectively that document the current claims under review.
·Please read these documents in their entirety
·Please respond with the supporting information outlined in both letters by Friday 1^st November 2024 …
If you do not respond by this date … the decision made 23^rd September 2024 to cancel payments relating to [claim number] will remain and will not be reviewed again by our team.
An outcome decision letter will also be provided for both [other claims] if supporting information is provided by this date.
In relation to the payments prior to the payments under review by our team in [claim numbers]. These were cancelled by the claims and payment team and further enquiries should be directed to that team.
18 Oct 2024Mr Wallace submitted this application to the ART.
31 Oct 2024In response to the Agency’s Payment Integrity Team’s email of 18 Oct 2024, Mr Wallace sent an email to that Team and others requesting an urgent meeting claiming, among other things, that AIHCS was owed $190,000 for Mr Zekusic’s support over the previous 16 weeks it was not able to bill for these services.
5 Dec 2024Mr Wallace completed and submitted to the Agency a standard form Agency “request for a review of a decision”. In that request Mr Zekusic is named as the Applicant with Mr Wallace as his representative. In the section of the form that asks “what decision do you want to review?” Mr Wallace states “[participant no.] interim plan dates 6^th Feb 2023 – 8^th June 2023, 6^th April 2024 – 5th July 2024”. In the section of the form that asks “what decision were you expecting?” Mr Wallace states “when Mark first came into our care, it was told by the guardianship board and the Hospital and his support coordinator at the benevolence society that Mark was 1:1 funding. His psychologist advised he was 1:1 also. … AIHCS contacted the benevolence society multiple times for a review, which they never completed and the support coordinator left and the new coordinator processed the review.”
Mr Attalla
Mr Abanoub Attalla is a current NDIS participant. He is 28 years of age. He lives with intellectual, physical, and sensory impairments, and other chronic serious health conditions. In the application form, Mr Wallace states that Mr Attalla has limited life expectancy and that his health has deteriorated significantly over the five years he has received support from AIHCS.
Mr Attalla lives in his family home with his father, Mr Fakhri Attalla, who is his primary carer and Plan Nominee. Mr Fakhri Attala appeared as a witness at the hearing concerning the application that had been made in relation to Mr Abanoub Attala.
Mr Attala’ Participant Plan is Plan Managed. Up until on or about 2 March 2023, his Plan Manager was Independence Ulladulla Inc which also provided Support Coordination Services for Mr Attalla. His Support Coordinator was Ms Belinda Hopkins. However, that organisation ceased operation in March 2023. The current Plan Manager is APOIO Group Pty Ltd. Mr Attalla’s current Support Coordinator is Ms Harleen Kaur, who, as noted above, works for an entity trading as Bright Upwards.
Doing the best that I can with the material before me, I have constructed the following chronology of events in relation to the relevant facts and circumstances Mr Attalla’s case. I am satisfied that this is a sufficient outline of events, albeit that it cannot be a complete one on the state of the evidence.
Date  Event
24 Jan 2022               delegate of the CEO approves a SoPS in a Participant Plan  expressed to commence from 24 January 2022, which has a   review date of 24 January 2023.
18 Oct 2022Mr Attalla’s Support Coordinator, Ms Hopkins, submits a request to the Agency for a s 48 reassessment of his Participant Plan on the ground that Mr Fakhri Attalla, primary carer, was scheduled to undergo surgery.
22 Dec 2022Ms Hopkins contacted the Agency to enquire about the status of the s 48 reassessment request made on 18 October 2022 stating urgency due to funding exhaustion.
23 Dec 2022delegate of the CEO approves a new SoPS in a Participant Plan which is expressed to commence from 23 December 2022, which has a review date of 23 December 2023.
12 Sept 2023              delegate of the CEO extends the period of the plan (the details of the extension are not in evidence)
2 Nov 2023Mr Wallace, as Director of AIHCS, made a complaint to the Commonwealth Ombudsman concerning the Agency’s refusal or failure to pay debts said to be owed to AIHCS in relation to several participants, including Mr Attalla,
24 Nov 2023               a s 48 reassessment request is submitted to the Agency on behalf of Mr Attalla (the evidence before me does not disclose who made this request).
14 Dec 2023delegate of the CEO approves a new SoPS in a Participant Plan which is expressed to commence on 14 December 2023, which has a review date of 14 December 2024.
19 Feb 2024Mr Wallace, as Director of AIHCS, wrote to the Minister responsible for the NDIS to complain about amounts claimed to be owed to it by the NDIA in respect of several clients including Mr Attalla.
28 Feb 2024a delegate of the Agency notified AIHCS that the amounts claimed by it in relation to Mr Attalla were not considered payable because it was more than the funding that had been approved under his SOPS.
6 Mar 2024a delegate of the Agency notified Mr Wallace of the action taken in relation to his claims for payment of amounts in respect of several clients, including Mr Attalla. Mr Wallace was advised that his “claims [had] been reviewed for each participant and the outcomes were emailed to [him]… This Claim and Payment Enquiry is now closed.”
8 Mar 2024a delegate of the CEO responded to Mr Wallace’s complaint to the Minister. With respect to Mr Attalla the delegate stated that as Mr Attalla’s Participant Plan was Plan Managed enquiries had been made of the Plan Manager and Mr Wallace should discuss his claims with the Plan Manager.
13 May 2024              Mr Wallace, as purported representative of Mr Attalla, filed AAT application no.2024/3268 on an AAT standard application form, naming Mr Attalla as the applicant. In the section of the form which requires the applicant to identify the decision sought to be reviewed, Mr Wallace uploaded two communications to him from the Agency dated 28 February 2024 and 4 March 2024, which stated as follows:
28 Feb 24
“Dear Pascal,
This correspondence is in relation to your Payment Enquiry [ no.] Participant Abanoub Attalla [participant no.] [5 invoice no.s set out]
The National Disability Insurance Agency (NDIA) is required to make payment to a Plan Manager where the funding for a support is included in the Participant’s Plan as Plan Managed, it cannot pay Providers directly.
I emailed the outcome of this payment enquiry to the participant’s current Plan Manager APOIO Group Pty Ltd on 28 February 2024, … Please contact the plan manager directly for the outcome of this inquiry, when a plan manager is engaged, they are responsible for monitoring the plan budget, claiming and facilitating provider payments. They should also submit a Payment Enquiry on behalf of providers if they have issues claiming through the portal, or where the business system has reduced funding due to a plan reassessment occurring.
This payment enquiry is now closed.”
6 Mar 2024
[annotation by Mr Wallace “update to previous response with new invoices added – outcome remains unchanged”]
“Dear Pascal
This correspondence is in relation to your Payment Enquiry [no.] Participant Abanoub Attalla [Participant no.] [10 invoice no.s] total $197,179.43.
The National Disability Insurance Agency (NDIA) is required to make payment to a Plan Manager where the funding for a support included in the Participant’s Plan as Plan Managed. It cannot pay providers directly.
I emailed the outcome of this payment enquiry to the participant’s current Plan Manager APOIO Group Pty Ltd on 28 February 20224, … Please contact the plan manager directly for the outcome of this inquiry, when a plan manager is engaged, they are responsible for monitoring the plan budget, claiming and facilitating provider payments. They should also submit a Payment Enquiry on behalf of providers if they have issues claiming through the portal, or where the business system has reduced funding due to a plan reassessment occurring.
This payment enquiry is now closed.”
In the section of the form that requests the applicant to explain the reasons for the application, Mr Wallace stated:
“payment enquiry [no.] we are owed $197,179.43 for 6 weeks of service 1:1 while the planning team stuffed around and Attalla didn’t have a plan or funding.
Attalla has always been funded 1:1 and we required a slight increase from $850K per year, up to 950K per year or something like that.
He is very high needs and complex. He has 1:1 service at all times and 2 carers for showers.
Attalla is bedbound, Peg fed and would die within 1-2 days without care provided. The fact we ever need to apply to the AAT for this case is laughable.
We have submitted 3 payment requests, the plan manager Apio … has also submitted them and they just blanket deny them.
It’s as if the ndis are slow on purpose doing their reviews and then providers are punished for provided service during the gap period without service.
In the case with high needs complex care client, of course the care is reasonable and necessary.
We now in total are owed $1.5million from the ndis because of their inefficiencies. Its all the same reason too, high needs complex client requires an increase in funding, ndis are understaffed and take 2-3 months to do a review, then they refuse to pay the invoices or back date the plan. It is so clearly a cost saving measure implemented by the ndis in the last 18 months. It never used to be like this.
All of these six clients are 1:1 complex care, they can’t have a day without service.
Attalla is end of life care now and his life expectancy is another 3-9 months due to severe MDN. He is in his late 20’s.
10 May 2024              a delegate of the CEO varied the SoPS contained in Mr Attalla’s Participant Plan, apparently to increase funding for supports.
25 June 2024             application no. 2024/3268 was listed for an Interlocutory Hearing (dismissal) at the request of the Agency.
26 June 2024             Mr Wallace, acting on behalf of AIHCS, withdrew application no. 2024/2825 and it was dismissed.
8 Jul 2024on behalf of AIHCS Mr Wallace submitted to the NDIS a document with the title “formal request for review” purportedly on behalf of Mr Fakhri Atttalla requesting review of the Agency’s refusal/failure to pay amounts claimed in relation to the “dates of gap in service” in 2022 and 2023. The text of that document is set out below:
“Formal request for Review: NDIS Agency
NDIS Client name: Abanoub Attalla
…
Dates of gap in service and total amount required:
4/12/2022 – 22/12/2022          $43,494.98
30/10/2023 – 13/12/2023        $157,970.16
Total owing:
$201,465.14
I Fakhri Attalla, as the Authorised representative of Abanoub Attalla, formally request that the ndis agency allocate two separate interim plans between the dates listed above to help pay the debts that are owed to our service provider (AIHCS) for the times where there was a gap in his ndis plans.
NDIS Agency continues to refuse to pay my provider of choice AIHCS for the gaps in service. My son Abanoub’s needs increase every year and the plan dates make no sense, the service is reasonable and necessary because if he wasn’t provided service for 1 day he would die. The planner chose arbitrary dates for new plans to begin instead of commencing plan the date funding was out.
Over the last 8 years, my son continues to decline every single year. Planner are incorrectly assessing his situation based on how he was at the time and not based on how much he declines each year. The first year gap was only 3 weeks, then next gap was 8 weeks. This was because the original plans didn’t allocate enough funding to allow for my son’s declining health.
The review submitted would have easily met the urgent criteria given the dire nature of Abanoub health being both non-verbal, bed bound, completely unable to move and with significant cognitive decline. The client is extremely high risk of bed sores and requires turning every 2 hours as he can’t move at all 1-2 days without service and the client would pass away. The review was not acted upon in an urgent matter and the start date of the plan doesn’t make any sense.
THERE CAN NEVER BE A GAP IN SERVICE FOR A HIGH NEEDS COMPLEX CLIENT
The NDIS failed in their duty to act within a timely matter to provide adequate NDIS funding at a time when Abanoub needed it most. There were clear and obvious changes in circumstances throughout the years 2020, 21, 22, 23, and 24 and this is clearly reflected in his increased needs and increased ndis package year on year.
The $201,465.14 that is required can be made available through these options:
1.    By creating an interim plan between the dates 4/12/2022 – 22/12/2022 for $43,494.98 and also 30/10/2023 – 13/12/2023 for $157,970.
2.    Paid directly to my provider AIHCS …
3.    By approving the previous Payment request my provider has submitted (payment request [number]
We can provide a mountain of documents outlining why this support was reasonable and necessary if required, or we can let common sense prevail and get on with caring for our ndis clients.
From
Fakhri Attalla (Authorised representative)
Supported by
Harleen Kaur (Support Coordinator)
Pascal Wallace (Director, AIHCS)”
19 Jul 2024on behalf of AIHCS Mr Wallace wrote to the Agency’s enquires email address to request that the “planning team” create “2 separate interim plans” in relation to the ‘gap in service’ periods in 2022 and 2023 and not review Mr Attalla’s then current plan, as Mr Fakhri Attalla had been recently advised would occur.
11 Nov 2024               Mr Attalla’s Support Coordinator, Ms Kaur, submitted a request for a s 48 reassessment of Mr Attalla’s Participant Plan for the purpose of obtaining approval for high-cost assistive technology (replacement hoist, bed, and an air comfort chair)
4 Dec 2024Mr Attalla’s Support Coordinator advised the Agency that the Mr Fakhri Attalla requested ‘cancellation’ of the review requested by Mr Wallace in July 2024
24 Dec 2024delegate of the CEO approves a new SoPS in a Participant Plan which is expressed to commence on 24 December 2024, with a review date 23 December 2025.

In relation to Mr Attalla, Mr Wallace relies upon an undated, unaffirmed/unsworn document styled as a “General Affidavit” made by Ms Belinda Hopkins in which the following is stated:
I was working as the NDIS Coordinator for the NDIS Participant, Abanoub Attalla for the NDIS Plan period 2021-2022. I placed the Change of Circumstances for his NDIS plan as funds had exhausted.
Once a new plan was issued, I placed a Provider payment request for the Providers whom had not ceased services due to the extremely high risk of death to the participant on Wednesday 4 February 2023 (Please see attached Appendix A). This was sent through along with the invoices from the Provider AIHCS (Workers Web Pty Ltd (please see attached Appendix B, C & D). I received a notice of receipt from the NDIS on 4 January 2023 (please see attached Appendix E).
In the last week of February 2023, I received a call from the Provider Payments department within the NDIA. I recall the conversation I had with the lady about the outstanding funds from the exhausted plan for services completed which I submitted previously. The lady made a statement that as some of the funds on one invoice had been paid, she required that invoice to be updated to show the amount owing and the payments could be processed.
Due to unforeseen circumstances, I ceased employment with that on 2 March 2023.
In September 2023 I recommenced working as Support Coordinator to Abanoub Attalla and assist and support the participant and nominee to submit a change of circumstances as funds were nearing exhaustion.
After gathering all supporting documentation, the paperwork was originally submitted to NDIS enquiries on 10/11/2024 and accepted on 24/11/2024 (please see appendix F)
The Nominee and myself would call the NDIS every 2 days to see and track the progression of the submission. It was explained in each phone call to the representative that the provider trading as AIHCS were still providing the level of care to the participant and increasing amount owed for services provided were stated within each call. It was also stated to the representative that the risk in stopping services would cause Death by both myself and the nominee.
At no time during the multiple phone calls made was I instructed that the services needed to be stopped and that the amount owing for continued services would not be paid.
Consideration
The application naming the Late Mr Pizzini
The Late Mr Pizzini died on 10 December 2022. On the date the application naming him as applicant was filed, he had been dead 23 months. There is therefore a threshold question as to whether an application can be made to the Tribunal in respect of Mr Pizzini.
Subsection 29(1)(a) of the NDIS Act provides that a person ceases to be a participant in the NDIS when that person dies. Subsection 37(3) of the NDIS Act provides that a participant’s plan ceases to be in effect when the participant ceases to be a participant in the NDIS. In accordance with these provisions, the Late Mr Pizzini ceased to be a participant in the NDIS on 10 December 2022 and his Participant Plan therefore also ceased to be in effect on that date.
The statutory entitlement to NDIS support that the Late Mr Pizzini enjoyed during his lifetime was personal in nature. In this respect, I agree with the Tribunal in Gaudron,[4] that an entitlement to NDIS supports is not capable of devolving to any other person upon the death of a participant.[5] That conclusion is reinforced by ss 29(2) of the NDIS Act, which provides that a person is not entitled to be paid NDIS amounts so far as the amounts relate to supports that are acquired or provided after the person ceases to be a participant. It is also reinforced by s 46A(1) of the NDIS Act, which provides that an ‘NDIS amount’ ‘is absolutely inalienable whether by way of, or in consequence of, sale, assignment, charge, execution, bankruptcy or otherwise’.[6]
[4] Gaudron and National Disability Insurance Agency [2021] AATA 615.
[5] Ibid at [12].
[6] An ‘NDIS amount’ is defined in s 9 of the NDIS Act to mean ‘an amount paid under the National Disability Insurance Scheme in respect of supports (other than general supports) funded under a participant’s plan.
However, the Late Mr Pizzini potentially had accrued entitlements and obligations with respect to his Participant Plan up to 10 December 2022 that survived his death. In this respect, Mr Pizzini’s death did not relieve the Agency of its obligation to comply with his Participant Plan for the period it remained in force: s 39 of the NDIS Act. The Agency therefore remained obliged to fund the costs of any approved supports that were provided to Mr Pizzini while he remained a participant in the NDIS.
Similarly, it is conceivable that a participant may die in circumstances where a debt is owed to the Agency arising under section 46(1) of the NDIS Act or otherwise, which the Agency would remain entitled to pursue against the participant’s Estate in accordance with Part 1 of Chapter 7 of the NDIS Act. That is made clear by s 46A(2) of the NDIS Act, which provides that s 46(A)(1) operates subject to Part 1 of Chapter 7.
Consistent with these principles, in my opinion, a past entitlement a participant had accrued under the NDIS Act will, in specific and limited circumstances, be capable of devolving upon their death to their personal legal representative. One such circumstance, which pertains in this case, is where a participant claims to be entitled to reasonable and necessary supports which were not approved in their SoPS and funds have been expended on the provision of those supports up to the date of their death, which are sought to be recovered. If the participant otherwise has a maintainable action for independent review, the Tribunal will have jurisdiction to conduct such a review despite the participant’s death. In this respect, I respectfully disagree with what the Tribunal said about the effect of the death of a participant on the Tribunal’s jurisdiction in Gaudron, Carroll,[7] and Jones.[8] Having said that, there is no such maintainable action in this case for the reasons that follow.
[7] Carroll and National Disability Insurance Agency [2022] AATA 2822 at [12] (but note that the Tribunal there was dealing with an access request).
[8] Jones and National Disability Insurance Agency [2023] AATA 2014 at [10] – [12].
Section 17 of the ART Act provides that a person “whose interests are affected by a reviewable decision” may apply to the Tribunal for review of the decision.
On the date the application naming Mr Pizzini was made, it could not have been made by him, because he was then no longer a juridical (legal) person (he was deceased).
Upon Mr Pizzini’s death, his Estate became a legal person. In my opinion, consistent with the principles outlined above, any accrued entitlement or liability Mr Pizzini had under the NDIS as at the date of his death devolved to his Estate upon his death. In this respect, I take a different view to the Tribunal in Pascu.[9] The Late Mr Pizzini’s Estate does not have a legal interest separate to that Mr Pizzini had while living.[10] His interests generally, and for the purposes of s 17 of the ART Act, devolved to his Estate upon his death.[11]
[9] Pascu and National Disability Insurance Agency (NDIS) [2025 ARTA 32.
[10] Ibid [at 33]. The Tribunal accepted there that the participant’s statutory entitlement did not devolve upon their death, but also accepted that another person may have a relevant interest in continuing an existing substantive application before the Tribunal where there were accrued liabilities.
[11] I find some support for that conclusion in s 84(2)(a) of the ART Act which provides, in relation to an application that is already before the Tribunal at the time of an applicant’s death, that an executor may apply to continue with that application. The section does not appear to require the executor to be joined as a separate party, only to obtain permission to ‘continue’ with the application. Section 84 is not presently relevant as Mr Pizzini had no application before the Tribunal at the time of his death.
Administration of the Late Mr Pizzini’s Estate was the responsibility of the Executor he appointed under his Last Will and Testament. This was his sister, Ms Faga.
Ms Faga’s responsibility to the Estate was, relevantly, to collect all its assets and settle its debts, such that she could obtain a grant of probate from the NSW Supreme Court enabling her to distribute the residual Estate in accordance with Mr Pizzini’s Last Will and Testament. As part of that process, as a matter of standard practice, she was obliged to give formal notice of her intention to apply for a grant of probate and this notice was posted on the Supreme Court’s website to alert anyone who may have had a claim against the Estate. I note that if AIHCS had any claim against the Late Mr Pizzini’s Estate, it did not assert that claim during the administration of his Estate.
Ms Faga’s evidence was that she had obtained a grant of probate and distributed the Late Mr Pizzini’s estate over a year ago. No documentary evidence was submitted in support of this oral evidence, but it was not subject to any challenge. On the assumption that Ms Faga’s oral evidence was correct, her functions as Executor of the Estate have thus been performed and the Estate has ceased to exist. It is thus no longer a legal person. For the purposes of s 17 of the ART Act, any ‘interest’ in a NDIS reviewable decision that Mr Pizzini had at the time of his death, and which devolved to his Estate upon his death, was extinguished by the grant of probate and distribution of his Estate.
Upon the distribution of the Late Mr Pizzini’s Estate, Ms Faga’s functions as the Late Mr Pizzini’s Executor were discharged and her authority to act in that role ceased (in arcane legal parlance, she became functus officio of the role). It follows from this that Ms Faga in her former capacity as Executor of the Late Mr Pizzini’s Estate could not have had any ‘interest’ in a reviewable decision made while Mr Pizzini was a participant in the NDIS prior to his death on the date the application naming Mr Pizzini as applicant was made to the Tribunal. She therefore did not have then any authority as Executor of Mr Pizzini’s Estate to authorise Mr Wallace to institute this proceeding naming Mr Pizzini as applicant.
The remaining question is whether any other person, such as AIHCS, or Ms Faga in her capacity as the Late Mr Pizzini’s sister or Plan Nominee (not Executor) can have an ‘interest’ in a reviewable decision made in respect of the Late Mr Pizzini’s Participant Plan. This requires close analysis of the Tribunal’s independent review jurisdiction in the context of the NDIS legislative scheme.
Ms Faga was Mr Pizzini’s Plan Nominee while he was a participant in the NDIS. I note that I do not have in evidence the instrument of her appointment under s 86 of the NDIS Act. Nevertheless, 78(1) of the NDIS Act provides, in short summary and relevantly, that any act that may be done by a participant under or for the purposes of the Act that relates to the preparation, variation, reassessment or replacement of the participant’s plan may be done by the participant’s plan nominee. Subsection 78(2) provides, without limiting s 78(1), that a request that may be made under the Act by a participant may be made by the participant’s plan nominee on behalf of the participant.
Accordingly, as Plan Nominee, Ms Faga could have requested a plan variation or reassessment, and sought review of the 2022 plan decisions on Mr Pizzini’s behalf. But in doing so, she would have been actuating his ‘interests’. Her appointment as a Plan Nominee did not confer an ‘interest’ upon her separate from Mr Pizzini’s interest. Ms Faga’s role as Plan Nominee ended when Mr Pizzini ceased to be a participant and his Plan ended due to his death. If Mr Pizzini had any accrued NDIS entitlement or liability at the time of his death it passed to his Estate, not to his Plan Nominee.
Section 12(1) of the ART Act provides that an administrative decision will be a ‘reviewable decision’ if an Act or a legislative instrument provides for an application to be made to the Tribunal for review of the decision. Those decisions that are designated reviewable decisions under the NDIS Act are found principally in the Table to ss 99(1) of that Act. The decisions designated reviewable decisions are precisely described by reference to administrative power being exercised by the decision-maker. Subsection 99(1) does not confer on the Tribunal jurisdiction at large to review every administrative decision made under the NDIS Act.
What is plainly at issue in the application naming Mr Pizzini as applicant is the Agency’s decision to refuse to pay the debts claimed by AIHCS in relation to the support it provided to Mr Pizzini in the several weeks before his death and immediately after his death. In this respect the ‘decision’ impugned in the application is said to have been made on 19 June 2024, and is described as a decision to refuse to respond to a letter of demand issued by AIHCS to the Agency on 17 June 2024 for the payment of an alleged debt owed to it in relation to the Late Mr Pizzini. In his oral submissions to the Tribunal, Mr Wallace stated repeatedly that what was sought was the Tribunal’s independent review of the Agency’s successive decisions since October 2022 not to pay the debt claimed by AIHCS in relation to Mr Pizzini’s care.
Considered squarely for what they are, these are decisions of the Agency pursuant to s 45 of the NDIS Act that the amounts claimed by AIHCS are not ‘amounts payable’ under the NDIS in respect of the Late Mr Pizzini’s Participant Plan because the level of support provided exceeded the level of approved support in that Plan. Decisions of this kind are not designated reviewable decisions in the Table to s 99(1) or otherwise within the NDIS legislative scheme. The Tribunal therefore has no jurisdiction to review such decisions.
Relevantly to the application naming Mr Pizzini as applicant, Item 4 in the Table to s 99(1) designates a decision of the CEO to approve a SoPS a reviewable decision, and by Items 6A, 6B and 6C decisions not to vary or reassess a participant’s plan pursuant to ss 47A(4)(b) (5), or (8), and ss 48(3)(c) or (4) respectively are also designated reviewable decisions.
In this respect, on the evidence before me, it appears uncontroversial that the last decision of the CEO to approve a SoPS for inclusion in the Late Mr Pizzini’s Participant Plan occurred on 3 June 2022, more than 7 months before his death, and more than 2 years and 5 months before the application naming Mr Pizzini as applicant was made. It appears that in August 2022, the Late Mr Pizzini’s Plan Manager intended to apply to the Agency for a variation of Mr Pizzini’s Participant Plan due to approved funding depletion. On the state of the evidence, I am unable to know if such an application was made in fact. In early October 2022, it appears the Agency initiated an unscheduled re-assessment of the Late Mr Pizzini’s Participant Plan. It is unclear if that was in response to a request made by Mr Pizzini’s Plan Manager or otherwise. Whether any action was taken pursuant to that decision, no reassessment outcome is in evidence, and the Agency does not contend that there was any outcome.
Section 47A(1) of the NDIS Act provides that the CEO may, in writing, vary a participant’s plan if the variation is covered by ss 47A(1A). Subsection 47(1A)(b)(i) provides that this includes circumstances where the CEO is satisfied that the participant requires crisis or emergency funding as a result of a significant change in circumstances. Subsection 47A(2) provides that the CEO may vary a participant’s plan on request of the participant or on the CEO’s own initiative. Subsection 47A(4) provides that if the participant requests a variation of the participant’s plan the CEO must within 21 days beginning on the date the request is received, either make a decision whether to vary the plan or not, or inform the participant that they require further time to decide whether or not the plan needs to be varied. Subsection 47A(5) provides that if the CEO does not do one of those things within the 21 day period, she is taken to have decided not to vary the plan. Subsection 47A(8) provides that if the CEO informs the participant that she requires further time to decide whether or not the plan needs to be varied, then this decision must be made, relevantly, as soon as is reasonably practicable.
Section 48(1) of the NDIS Act provides that the CEO may conduct a reassessment of a participant’s plan at any time. Subsection 48(2) provides that she may do so on request of the participant or on her own initiative. Subsection 48(3) provides that if a participant requests a reassessment of their plan, within 21 days of the receipt of that request the CEO must either decide to vary the plan pursuant to s 47A(1) or decide to reassess or not to reassess the plan. Subsection 48(4) provides that if the CEO does not make a decision under ss 48(3) within 21 days, the CEO is taken to have decided not to conduct a reassessment of the plan. Subsection 48(7) provides that if the CEO conducts a reassessment of a participant’s plan, she must complete the reassessment, and either vary the plan or prepare a new plan with the participant. Subsection 48(8) provides, relevantly, that this must be done as soon as practicable.
Having regard to the provisions of ss 47A and 48, it is arguable that deemed decisions of the CEO not to vary or reassess Mr Pizzini’s Participant Plan in response to a request made by his Plan Manager, arguably acting upon the instruction of Mr Pizzini’s Plan Nominee, crystalised on or about the end of August 2022 and the end of October 2022 respectively (hereafter, I will refer to these supposed variation and reassessment decisions, together with the 3 June 2022 decision to approve the SoPS, as the ‘the 2022 plan decisions’).
Section 100 sets out how a person can request a review of a first instance decision made by the original decision-maker. It provides, relevantly:
100     Review of reviewable decisions
(1)The decision-maker of a reviewable decision must give written notice of the reviewable decision, and of the reasons for the reviewable decision, to each person directly affected by the reviewable decision.
…
(2)A person who is directly affected by a reviewable decision may request the decision-maker to review the reviewable decision. If the person is given a notice under subsection (1) the person must make the request within 3 months after receiving the notice.
(3)       A request may be made by:
(a)sending or delivering a written request to the decision-maker; or
(b)making an oral request, in person or by telephone or other means, to the decision-maker.
(4)If a person makes an oral request in accordance with paragraph (3)(b), the person receiving the oral request must:
(a)make a written record of the details of the request; and
(b)note on the record the day the request is made.
(5)If:
(a)the decision-maker receives a request for review of a reviewable decision; or
(b)the decision-maker is taken to have made a reviewable decision because of subsection 21(3), 47A(5) or 48(4);
the decision-maker (the reviewer) must review the reviewable decision
…
(6)The reviewer must make a decision:
(a)confirming the reviewable decision; or
(b)varying the reviewable decision; or
(c)setting aside the reviewable decision and substituting a new decision.
(6A)     The reviewer must make the decision under subsection (6):
(a)within the period worked out in accordance with the National Disability Insurance Scheme rules prescribed for the purposes of this paragraph; or
(b)If there are no such rules – within the period of 90 days beginning on:
(i)If paragraph (5)(a) applies – the day the request is received; or
(ii)If paragraph (5)(b) applies – the day after the end of the period applicable under paragraph 21(3)(a) or (b) or subsection 47A(5) or 48(4) (as appropriate)
…
(8)A failure of the decision-maker to comply with subsection (1) does not affect the validity of the reviewable decision or the right of a person directly affected to request review of the decision.

There is no evidence before me as to who was given notice of the CEO’s 3 June 2022 decision to approve the SoPS for inclusion in the Late Mr Pizzini’s Participant Plan. But consistent with usual Agency practice, Mr Pizzini’s Plan Nominee is likely to have received that notice. As any decisions not to vary or reassess the Late Mr Pizzini’s participant plan in August and October 2022 would be ‘deemed’ decisions, no notice would be expected to have been given in relation to any such decision, and it is not contended otherwise.
I do not understand it to be contended, and in any event, there is no evidence, that Mr Pizzini himself, or his Plan Nominee, requested an internal review of the CEO’s decision to approve his SoPS within the three-month period from on or about 3 June 2022 (assuming notice of this decision was given) or at all. Nor is there any evidence that they ever made any request for internal review of a deemed decision not to vary or reassess the Late Mr Pizzini’s Participant Plan at any time before the institution of this application.
The question is, therefore, whether the demands made by Mr Wallace on the Agency for payment of debts claimed in relation to support provided to Mr Pizzini by AIHCS after funding for Mr Pizzini’s support was exhausted in or about August 2022 up to the present are capable of being construed as requests for internal review of the 2022 plan decisions.
I do not consider these demands for payment tantamount to a request for internal review. They were not in form or substance a request for internal review of any s 33(2), s 47A or s 48 decision. They were a demand for the payment of money which proceeded from the premise that the Agency was obliged to accept as a fait accompli AIHCS’s assessment of the intensity of support that Mr Pizzini required, despite what AIHCS knew to be the intensity of support approved by the delegate under the SoPS dated on 3 June 2022.
Even if I am wrong in that conclusion, Mr Wallace and AIHCS are not persons directly affected by the 2022 plan decisions made by the CEO in relation to Mr Pizzini. By operation of 100(2) of the NDIS Act they are therefore not entitled to request the review of such a decision. Whether they did so or not, the Agency was not obliged to respond to that request, and indeed, ought not to have done so, because the decision did not concern Mr Wallace or AIHCS in the relevant sense.
That is because, as the Tribunal explained in Deacon,[12] within the NDIS statutory scheme it is only a participant who is capable of being directly affected by a participant plan decision made by the CEO. Within the statutory scheme it is the participant who is the locus of participant plan related action, not support providers. Within the limits of the scheme, they are accorded choice and control in relation to the supports that are incorporated into their Participant Plan, including with respect to who will be engaged to provide them.[13] The development of a participant plan is a collaborative process between the participant (and/or their nominee or other representative) and the planner delegate of the CEO, which is facilitated by the delegate.[14] That planning process does not involve any support provider in any primary sense. Similarly, plan variation and reassessment requests can only be made by a participant or their representative (ss 47A(2) and s 48(2) of the NDIS Act). A support provider cannot make such a request. It would be to invert the relational structure of the statutory scheme if support providers could exercise choice and control in relation to participant plan decisions by challenging them directly.
[12] Deacon and National Disability Insurance Agency [2022] AATA 3209.
[13] s 3(1)(e) of the Objects of the NDIS Act; see also s 31(b) and (g).
[14] s 33 of the NDIS Act; QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189 at [7d].
Of course, participant plan decisions made by the Agency will have an indirect effect on others, such as support providers and family members. Most obviously, such decisions will govern the type and amount of support that can be provided to a participant by a support provider, and it may affect the type and amount of so-called informal support that a family member is obliged to provide. But this does not confer any entitlement on a support provider or family member (in their own right) to seek internal review of those decisions under s 100 of the NDIS Act.[15] Only the participant or someone authorised to act on their behalf may do so.
[15] Complete Nursing and Home Care Pty Ltd and National Disability Insurance Scheme [2020] AATA 360 at [16]; Nganana Incorporated and National Disability Insurance Agency [2023] AATA 2906; LinkAssist Pty Ltd and National Disability Insurance Agency [2023] AATA 2063; 13 Homecare and National Disability Insurance Agency [2023] AATA 793; Glasshouse Community Supports Pty Ltd [2024] AATA 816.
For completeness, I note that I do not understand it to be contended, and in any event, there is no evidence, that Mr Wallace or AIHCS were authorised to seek internal review of the 2022 plan decisions on behalf of Mr Pizzini at the material time for those decisions (June, August, and October 2022). Mr Pizzini had a Plan Manager whose responsibility it was to manage his Plan, on the instruction of his Plan Nominee.
It was AHICS’s own interests in payment of costs of support it had determined was required by Mr Pizzini that Mr Wallace pursued after Mr Pizzini’s approved funding was exhausted in or about August 2022. While there was potential for that interest to coincide with Mr Pizzini’s interest, it was a separate interest.
Section 103 of the NDIS Act prescribes the circumstances in which an application may be made to the Tribunal for an independent review of a reviewable decision. In summary, such an application may only be made where an internal review decision has been made or such a decision is deemed to have been made. Despite any demands made by Mr Wallace or AIHCS, no internal review decision was ever made in relation to the 2022 plan decisions that is capable of enlivening the Tribunal’s independent review jurisdiction.
Even if that was not the case, s 17 of the ART Act provides that it is only a person whose interests are affected by a reviewable decision who may apply for independent review of that decision. As it is only a person who is directly affected by an original decision who can apply for an internal review decision, it necessarily follows that it is only a person directly affected by an internal review decision (or deemed internal review decision) who has the legal right (standing) to apply for independent review of that decision.
With respect to the entitlement to make an application for review of a decision made under the NDIS Act, the reference in s 17 of the ART Act to ‘a person whose interests are affected by a reviewable decision’, must be read in conjunction with and is limited by ss 100 and 103 of the NDIS Act. It does not enlarge the category of persons entitled to seek independent review of a reviewable decision from those who were entitled to seek internal review of it. A support provider such as AIHCS cannot leap-frog over s 100(2) to seek independent review of a participant plan decision in circumstances where it had no entitlement to seek internal review of that decision.
It follows from the above reasoning that the application naming Mr Pizzini as applicant must be dismissed on the basis that it is misconceived and otherwise an abuse of process. It is misconceived because there is no internal review decision in relation to any of the reviewable 2022 plan decisions which confers jurisdiction on the Tribunal to conduct an independent review. It is an abuse of process because it is purportedly made on behalf of a non-juridical person. It is moreover an attempt by a NDIS support provider to pursue its own interests under the name of a participant as applicant. The application also seeks to invoke the Tribunal’s jurisdiction for the improper purpose of reviewing decisions which are not designated reviewable decisions by the NDIS Act.
The application naming Mr Zekusic
In the application that names Mr Zekusic as applicant, the administrative decision that is challenged is a decision of the Agency of 2 July 2024 to suspend payments to AIHCS in circumstances where it appears a new SoPS had recently been approved for supports to be provided to Mr Zekusic prospectively, and AIHCS had submitted invoices equal to the whole or a substantial portion of the funding approved under that SoPS seeking retrospective payment for supports provided between 5 November 2022 up to on or about that date. At that point Mr Zekusic’s Participant Plan was being Agency managed and this request triggered a payment integrity investigation which remained in progress as at the date of the hearing.
As I have explained above, the Tribunal does not have jurisdiction at large to review every administrative decision made under the NDIS. It only has jurisdiction to conduct an independent review of a decision designated a reviewable decision that has first been subject to internal review, or where an internal review is deemed to have occurred. A payment suspension decision taken by the Agency as Plan Manager in relation to a Registered NDIS provider is not designated a reviewable decision by the Table to s 99(1) of the NDIS Act or otherwise in the NDIS legislative scheme. Accordingly, the Tribunal has no jurisdiction to conduct an independent review of such a decision.
As is the case with the application naming the Late Mr Pizzini as applicant, other than the payment suspension decision, what this application concerns are a series of administrative decisions by the Agency pursuant to s 45 of the NDIS Act that amounts claimed by AIHCS in relation to the provision of supports to Mr Zekusic are not amounts payable in respect of his Participant Plan because they exceed the funding approved under his Plan. As I have already indicated, such decisions are also not designated reviewable decisions by the Table to s 99(1) of the NDIS or otherwise in the NDIS legislative scheme. Accordingly, the Tribunal has no jurisdiction to conduct an independent review of any such decision.
The application form also refers to a decision dated 7 June 2023, which is described as a ‘planning meeting update’. I have been unable to identify that ‘decision’ in the material before me. There is a document dated 7 June 2023 which is a report, titled “PBS Update” addressed to the Agency and Mr Zekusic’s Support authored by Mr Zekusic’s Positive Behaviour Support Practitioner. That report discusses Mr Zekusic’s support needs. However, it is obviously not a NDIS reviewable decision.
The reviewable decisions that may be distilled from the materials before me are identifiable as follows:
i.a decision of a delegate of the CEO to approve a SoPS for inclusion in Mr Zekusic’s Participant Plan made prior to 5 November 2022 when AIHCS commenced providing support to Mr Zekusic (the date not being in evidence). This was an Item 4 (s 33(2)) reviewable decision;
ii.a decision of a delegate of the CEO made on or about 22 December 2022 not to carry out a reassessment of Mr Zekusic’s Participant Plan, in response to a change of circumstances request made by Mr Zekusic’s Support Coordinator under delegation from his Public Guardian. This was an Item 6C (s 48(3)(c)) reviewable decision;
iii.arguably, a deemed decision of the CEO not to carry a reassessment of Mr Zekusic’s Participant Plan which crystalised in late March or early April 2024, in circumstances where the CEO did not make a decision pursuant to s 48(3)(a), (b), or (c) within 21 days of Mr Zekusic’s Support Coordinator submitting a change of circumstances request on or about 7 March 2024 with the authority of his Public Guardian. This was also an Item 6C (s 48(4)) reviewable decision;
iv.a decision of a delegate of the CEO made on 5 July 2024 to approve a SoPS for incorporation into Mr Zekusic’s Participant Plan for the period 5 July 2024 to 5 July 2025 (being the review date). This was an Item 4 (s 33(2)) reviewable decision.
There is no evidence that the decision to approve the SoPS that was current in October 2022 (whenever it was made) was subject to any request for internal review.
In his oral evidence and submissions Mr Wallace contended, in effect, that repeated change of circumstances requests had been submitted to the Agency from October 2022 up to the present, and that the Agency had failed to carry out plan reassessments despite those urgent requests.
That contention is not borne out on the evidence. On the material before me, it is apparent that whatever may have been said to Mr Wallace and other representatives of AIHCS by Mr Zekusic’s Behaviour Support Practitioner, Support Coordinator, and Plan Manager in October and November 2022, no change of circumstances request was submitted to the Agency by the Support Coordinator until on or about 15 December 2022.
The consent the Public Guardian provided to the change of SIL provider to AIHCS on 13 December 2022 was specifically limited to AIHCS ‘agreeing to provide a service that meets Mr Zekusic’s needs as identified in his NDIS plan’ as it then stood. It was specifically stated that any costs to Mr Zekusic not funded by his NDIS Plan must be approved by his financial manager or enduring power of attorney. Therefore, AIHCS could not reasonably have been under any misapprehension that it was authorised to provide an intensity of support to Mr Zekusic that was greater than that approved in his existing plan at that time.
A change of circumstances form (request for reassessment) was lodged with the Agency by the Support Coordinator on or about 15 December 2025, but it was ‘withdrawn’ on 22 December 2022, in circumstances where the Support Coordinator acquiesced in the delegate of the CEO’s advice that a functional capacity assessment report completed by an Occupational Therapist was necessary evidence for any reassessment. The Support Coordinator communicated her decision to withdraw the reassessment request and the advice given by the delegate to AIHCS at that time. Therefore, AIHCS could not reasonably have believed that there had been any change to the level of intensity of support that it was approved to provide Mr Zekusic at that time.
As I have indicated above, it is arguable that the delegate’s request that the Support Coordinator withdraw her reassessment request, was a decision not to conduct a reassessment pursuant to s 48(3)(c) of the NDIS, which is a reviewable decision. However, even if it was, I do not understand it to be contended, and in any event, there is no evidence, that anyone requested an internal review of that decision.
In fact, due to delays in the Support Coordinator obtaining a functional capacity assessment report, a change in circumstances request was not resubmitted to the Agency until 7 March 2024, some 15 months after the first request was withdrawn.
Mr Wallace made requests to the Support Coordinator and Public Guardian in the intervening period to initiate a plan reassessment, and he made several complaints to the Agency and others about AIHCS not being paid for supports it was providing to Mr Zekusic, but this activity is not capable of constituting a request for a s 47A variation or s 48 reassessment of Mr Zekusic’s plan. That is because it is only a participant (or their nominee or authorised representative) who could make that request: s s47A(2) and s 48(2). The NDIS Act does not confer entitlement on a support provider to intervene in the collaborative planning process between the participant and the CEO envisaged by Part 2 of Chapter 3 of the NDIS Act.
In this case, Mr Wallace was not appointed Mr Zekusic’s representative. He could not act for Mr Zekusic in relation to his Participant Plan. Mr Zekusic’s representatives were the Public Guardian and his financial manager. The Public Guardian had delegated to Ms Kaur authority to exchange Mr Zekusic’s personal information with the Agency and support providers where required, and she also held delegation to lodge a change of circumstances request with the Agency on behalf of his Guardian. However, her delegation of authority from the Guardian plainly did not extend to authority to further delegate to anybody else the ability to act in relation to Mr Zekusic’s Participant Plan or to authorise anybody else to do things that were not within the scope of her own authority.
Mr Wallace’s complaints to the Commonwealth Ombudsman, the NDIS Quality and Safeguards Commission, the Minister, and the Agency might have led the Agency to initiate a variation or reassessment of Mr Zekusic’s plan on the CEO’s own initiative, but the fact that it did not do so, does not result in any reviewable decision within the NDIS statutory scheme.
On the evidence before me, there is a degree of uncertainty surrounding the trajectory of the reassessment request made by the Support Coordinator on or about 7 March 2024. It would seem clear that the Agency had made no response to that request by 10 April 2024. That being so, a deemed decision not to conduct a reassessment would have accrued on or about 22 March 2024.
By his email to the Support Coordinator dated 17 June 2024, Mr Wallace appears to indicate that a ‘new plan’ had come into effect by that date. It was AIHCS’s attempt to draw down all funding that was approved for prospective support to be provided under than plan to pay for debts claimed in relation to past supports provided that led to the Agency suspending payments to AIHCS on 2 July 2024.
The Agency’s records indicate that it undertook an unscheduled s 48 reassessment of Mr Zekusic’s Participant Plan on 1 July 2024 and that a planner delegate of the CEO approved a SoPS for inclusion in his Plan on 5 July 2024.
For present purposes, it is not necessary to reconcile the apparent discrepancy in this chronology. It is sufficient to note that there is no evidence that Mr Zekusic’s representative, being the Public Guardian, or Ms Kaur under delegation of the Public Guardian sought internal review of any deemed decision of the CEO of on or about 22 March 2024, or of the delegate’s decision on 5 July 2024 to approve a SoPS for inclusion in Mr Zekusic’s Participant Plan.
For the foregoing reasons, there is no internal review decision in relation to Mr Zekusic’s participant plan that can enliven the Tribunal’s jurisdiction to conduct an independent review.
Even if that were not the case, for the reasons I explained in relation to the application naming Mr Pizzini as applicant, Mr Wallace and AIHCS are not persons that are capable of being directly affected by an internal review decision concerning Mr Zekusic’s participant plan and so could not apply to the Tribunal for independent review of it. That difficultly cannot be overcome simply by naming Mr Zekusic as applicant when it is clear that, in substance, the application is made by Mr Wallace and AIHCS. Indeed, I consider it quite improper for Mr Wallace and AIHCS to have done so.
I note that Mr Wallace now relies upon a form of authority signed by Ms Kaur dated 29 January 2025, which purports to authorise him to pursue AIHCS’s claimed debts against the Agency and to institute and continue this proceeding on behalf of Mr Zekusic and Ms Kaur. That ‘authority’ must be rejected. The scope of authority delegated to Ms Kaur by the Public Guardian plainly does not include authority to institute or continue legal proceedings on Mr Zekusic’s behalf, or to authorise anyone else to do so.
For the foregoing reasons, the application naming Mr Zekusic as applicant must be dismissed. It is misconceived because there is no internal review decision that enlivens the Tribunal’s independent review jurisdiction. It is an abuse of process because it is an attempt by a NDIS support provider to pursue its own interests under the name of a participant as applicant. The application also seeks to invoke the Tribunal’s jurisdiction for the improper purpose of reviewing decisions which are not designated reviewable decisions by the NDIS Act.
The application naming Mr Attalla as applicant

As noted above, in the application that names Mr Attalla as applicant, Mr Wallace described the ‘decision’ subject to challenge as the failure of the Agency to respond to requests made by AIHCS over an 18-24-month period to provide an interim plan for Mr Attalla. Other documents filed in relation to this application indicate that these ‘interim plan’ requests relate to the period 4 to 22 December 2022 (in relation to which it is claimed $43,494.98 is owed by the Agency to AIHCS) and 30 October 2023 to 13 December 2023 (in relation to which it is claimed $157,970.16 is owed by the Agency to AIHCS).
The reviewable decisions that are ascertainable from the chronology I have set out in relation to Mr Attalla above at the material time for this dispute may be identified as follows:
i.the decision of the delegate of the CEO to approve a SoPS for incorporation into Mr Attalla’s Participant Plan made on 24 January 2022. This was an Item 4 (s 33(2)) reviewable decision;
ii.arguably, a deemed decision of the CEO not to carry out a reassessment of Mr Attalla’s Participant Plan which crystalised on or about 8 November 2022 in circumstances where the CEO did not make a decision pursuant to s 48(3)(a), (b) or (c) within 21 days of Mr Attalla’s Support Coordinator submitting a change of circumstances request on or about 18 October 2022. This was an Item 6C (s 48(4) reviewable decision;
iii.the decision of the delegate of the CEO to approve a SoPS for incorporation into Mr Attalla’s Participant Plan made on 23 December 2022. This was an Item 4 (s 33(2)) reviewable decision;
iv.the decision of the delegate of the CEO to approve a SoPS for incorporation into Mr Attalla’s Participant Plan made on 12 September 2023 (assuming the extension of the Plan involved the approval of a new SoPS for the period of the extension). This was an Item 4 (s 33(2)) reviewable decision;
v.the decision of the delegate of the CEO to approve a SoPS for incorporation into Mr Attalla’s Participant Plan made on 14 December 2023. This was an Item 4 (s 33(2)) reviewable decision.
I do not understand it to be in issue that Mr Fakhri Attalla, as Mr Abanoub Attalla’s Plan Nominee received Notice of these decisions in accordance with s 100(1) of the NDIS Act, except for decision (ii) which is unlikely to have resulted in any notice being given. There is no evidence that he, or anybody else, made any request for an internal review of any of these decisions in accordance with s 100(2) within the 3-month period after he received the Notices of decision. No internal review was carried out in relation to any of these decisions in fact. The Tribunal’s independent review jurisdiction cannot be enlivened in these circumstances.
The substance of the complaint on which this application is founded is the Agency’s refusal to pay the amounts claimed by AIHCS because it has determined in accordance with s 45 of the NDIS Act that they are not payable under the NDIS in respect of Mr Attalla’s Participant Plan. As I have explained above, administrative decisions of this kind are not designated reviewable decisions in the NDIS legislative scheme and therefore cannot be the subject of an application to this Tribunal for independent review.
It is contended that the Tribunal can and should somehow order the CEO to approve retrospective ‘interim plans’ to cover the periods in dispute with funding equal to the amounts claimed by AIHCS in relation to those periods. The Tribunal has no power of this kind. The contention is also based upon a fundamental misconception of how the participant plan provisions of Part 2 of Chapter 3 of the NDIS Act operate. As I have explained in PTJR,[16] these planning provisions are linear and prospective in nature. An approval of reasonable and necessary supports and associated funding is made for a future period such that a participant knows what their entitlement are, including in relation to the funding approval (or budget) within which they must work.
[16] PTJR and CEO, National Disability Insurance Agency [2025] ARTA 196 at [49].
This application proceeds from the premise that it was AIHCS that was entitled to determine the level of support that Mr Attalla required and would be provided with irrespective of what had been approved in his SoPS at the material times, and that the Agency is compelled to fund the over-expenditure on AIHCS’s demand. That position is untenable. It would be impossible to ensure the financial sustainability of the NDIS if that were to be permitted.[17]
[17] Financial sustainability must be given regard within the operation of the NDIS Act: s 3(3)(b) and s 4(17) of the NDIS Act.
Under the NDIS, a support provider does not have any unilateral right to determine the level of support a participant is to receive. That function is conferred on the CEO of the Agency who must first engage in a collaborative planning process with the participant and then apply a series of statutory criteria found in the s 34 of the Act and in the Rules,[18] to determine what should be approved. Nothing compels a support provider to provide support to a participant if it believes that it cannot do so for whatever reason within the funding level that is approved. Nor does anything prevent a support provider from providing additional support at its own expense (assuming a participant agrees to this), or a participant from self-funding additional support. But they cannot do so in the expectation that this over-expenditure will be later reimbursed by the Agency. In this respect, s 46 of the NDIS Act imposes an obligation on a participant to spend the funding for which they have been approved in accordance with their plan.
[18] National Disability Insurance Scheme (Supports for Participants) Rules 2013.
Finally, I note that this application also, in substance, is made by Mr Wallace on behalf of AIHCS, and seeks to pursue AIHCS’s interests in recovering debts it claims are owed to it by the Agency. The application names Mr Attalla as applicant, but he is not its protagonist in any genuine sense.
Mr Wallace relies upon the authority of Mr Fakhri Attalla, Mr Abanoub Attalla’s father and Plan Nominee, to bring the application, and to represent Mr Attalla in the proceeding. Despite this, were this proceeding to continue, I would not permit Mr Wallace to represent Mr Attalla, notwithstanding Mr Fakhi Attalla’s consent to this proposed arrangement. Mr Wallace’s and AIHCS’s financial interests are central to the proceeding. Those interests are not co-extensive with Mr Attalla’s interests. Mr Attalla can obtain no benefit from the proceeding, and he is potentially exposed to legal risks should either party seek judicial review of the Tribunal’s decision. A support provider should not be permitted to pursue its own interests in the name of a participant in this way. It constitutes an unacceptable conflict of interest which would justify Mr Wallace’s removal as Mr Attalla’s representative pursuant to s 66(3)(a) of the ART Act.
If Mr Wallace or any other person associated with AIHCS had any role to play in this proceeding it would be as a witness only.
For the foregoing reasons, the application naming Mr Attalla as applicant must be dismissed. It is misconceived because there is no internal review decision that enlivens the Tribunal’s independent review jurisdiction. It is an abuse of process because it is an attempt by a NDIS support provider to pursue its own interests under the name of a participant as applicant. The application also seeks to invoke the Tribunal’s jurisdiction for the improper purpose of reviewing decisions which are not designated reviewable decisions by the NDIS Act and obtaining orders that the Tribunal has no power to make.
Decision
Application no.s 2024/9251, 2024/9181 and 2024/8760 are each dismissed pursuant to 101(1)(a) and (c) of the Administrative Review Tribunal Act 2024 (Cth) on the grounds that they misconceived and are otherwise an abuse of process.
Date(s) of hearing: 11 February 2025, then heard on the papers.
Advocate for the Applicant: Mr Pascal Wallace
Solicitors for the Respondent: Mr Jack Bewsher