PTJR and CEO, National Disability Insurance Agency (NDIS)

Case [2025] ARTA 196

PTJR and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 196 (7 March 2025)

Applicant/s:  PTJR

Respondent:  CEO, National Disability Insurance Agency

Tribunal Number:                2023/8663

Tribunal:Senior Member French

Place:Sydney

Date:7 March 2025

Decision:The issue remaining before the Tribunal is dismissed pursuant to s 101(1)(a) of the Administrative Review Tribunal Act 2024 (Cth) on the ground that it is misconceived.

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

Senior Member French

Catchwords

NATIONAL DISABILITY INSURANCE SCHEME – approval of a Statement of Participant Supports (SoPS) – claim for recovery of costs incurred by a participant’s parents prior to the commencement of the Participant Plan containing the SoPS subject review – whether s 108(4) read with ss 108(5) of the Administrative Review Tribunal Act 2024 (Cth) permit a SoPS substituted or varied on independent review to be commenced from a date earlier than the commencement of the Participant Plan into which it is incorporated – distinction between discretionary power and jurisdiction – where discretionary power must be exercised within jurisdiction – where jurisdiction cannot be accrued by the exercise of a discretionary power – whether ss 103(2) of the National Disability Insurance Scheme Act 2013 (Cth) operates so as to give the Tribunal jurisdiction at large in relation to successive Participant Plans – where ss 103(2) has prospective effect only

PRACTICE AND PROCEDURE – reaching a decision without a hearing – whether parties consent to an issue being determined without a hearing – whether one of two child representatives can resile from terms of agreement which included consent to an issue being determined without a hearing – whether a hearing should be held as a matter of discretion

Legislation

Administrative Appeals Tribunal Act 1975 (Cth): ss 25, 43
Administrative Review Tribunal Act 2024 (Cth): ss 9, 12, 101,103, 108
Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (Cth); Schedule 16, Item 24
National Disability Insurance Scheme Act 2013 (Cth): ss 3, 4, 32, 33, 34, 37, 46, 47A, 48, 75, 99, 100, 101, 103
National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Act 2022 (Cth); Schedule 1, item 49
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth): Rules 3.1, 3.2
National Disability Insurance Scheme (Children) Rules 2013 (Cth); Rule 3.2, Part 4

Cases
Baumgarten and eSafety Commissioner (Guidance and Appeals Panel) [2025] ARTA 59
Darmanin and National Disability Insurance Agency [2024] AATA 1202
Frugtniet v Australian Securities and Investments Commission [2019] HCA 16; (2019) 266 CLR 250
Lesi v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 285
Mulholland v Australian Electoral Commission [2014] FCA 916
Palin and National Disability Insurance Agency [2023] AATA 94
Pavlakis and National Disability Insurance Agency [2023] AATA 2485
QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189

Williamson and National Disability Insurance Agency [2019] AATA 2944

Secondary Materials

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

Review of the National Disability…

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Details
AGLC
PTJR and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 196
Case
[2025] ARTA 196
Decision Date

CaseChat Overview and Summary

The case of PTJR and CEO, National Disability Insurance Agency (NDIS) involved an eleven-year-old child with severe medical conditions who had been a participant in the NDIS since 2016. The dispute centred on the approval of a Statement of Participant Supports (SoPS) incorporated into a Participant Plan that began in October 2023. The child's parents sought recovery of costs incurred before the commencement of the Participant Plan containing the SoPS, which was the subject of the review. The primary legal issues were whether sections 108(4) and (5) of the Administrative Review Tribunal Act 2024 allowed the SoPS to be commenced from a date earlier than the commencement of the Participant Plan and whether sections 103(2) of the National Disability Insurance Scheme Act 2013 provided the Tribunal with broad jurisdiction over successive Participant Plans.

The court held that the discretionary power under sections 108(4) and (5) of the ART Act could only be exercised within the Tribunal's jurisdiction and not outside it. The court emphasised that the Tribunal did not have plenary jurisdiction to review the entire trajectory of the child's participation in the NDIS. Its jurisdiction was confined to conducting an independent review of the approval of the SoPS within the parameters of sections 103, 100, and 33(2) of the NDIS Act. Consequently, the child's request for the payment of outstanding invoices was deemed misconceived and based on a misunderstanding of legal principles. The court dismissed the application on this basis.

Orders

Orders of the court

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Background

Background to the litigation

I have considered the following evidence and submissions in reaching my determination:i.The contents of the Joint Tender Bundle insofar as they are relevant to the determination of the residual issue, including the Applicant’s Participant Plans and associated documents, and the several statements made by his parents,ii.The Applicant’s Statement of Facts, Issues and Contentions, filed 31 May 2024,iii.The Applicant’s Updated Statement of Position, filed 6 August 2024,iv.The Agency’s Amended Statement of Facts, Issues, and Contentions, filed 22 October 2024v.The Applicant’s submissions in reply, filed 5 November 2024 and its attachments.BACKGROUND As at the date of the hearing the Applicant was eleven years and nine months old. He lives at home with his parents and three older siblings. He lives with what is referred to in the parlance of the NDIS as ‘extreme’ impairment and disability and several associated serious medical conditions.[8][8] The Applicant’s primary health conditions are cerebral palsy with severe dystonia and chorea, cortical visual impairment, presumed severe intellectual impairment, microcephaly, refractory recurrent tonic seizures, neuromuscular scoliosis, left hip dysplasia, and bruxism. The Applicant became a participant in the NDIS on 2 September 2016 at the age of three-and-a-half. [9] Since that time,16 NDIS Participant Plans have been developed for him.[10] Throughout the period of his participation in the NDIS there has been controversy between the Applicant’s parents and the ‘planner delegates’ of the CEO of the Agency about what supports were reasonable and necessary for the Applicant, and about what the intensity, frequency and duration of those supports ought to be. One, but not the only, axis upon which this controversy turned was the Applicant’s requests for certain supports to be provided at a high level of intensity (2:1 support worker assistance for example) concurrently with other supports such as a Registered Nurse and several therapists from different disciplines, which the planner delegates viewed as duplicative, and therefore, not ‘value for money’ (s 34(1)(c) of the NDIS Act and Rule 3.1 of the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (the Supports Rules). Another axis upon which the controversy turned was what level of care it was reasonable to expect the Applicant’s parents to provide to him, having regard to normative parental care responsibilities for a young child (s 34(e) of the NDIS Act, and Rule 3.4 of the Supports Rules).[11] [9] Joint Tender Bundle, ST1, page 717[10] Joint Tender Bundle, Tab A42 page 1843, read together with Tab 8, page 1435 – 1454 and Tab 9, page 1455 – 1472.[11] These controversies are reflected in part in the reasoning of the internal review decision which is at Joint Tender Bundle Tab T1A, page 13 – 27. This review concerns a SoPS that was incorporated into a Participant Plan that commenced on 24 October 2023, which was expressed to be for the period 24 October 2023 to 23 October 2024 (being its review date).[12] The ‘total funded supports’ in that Plan were valued at $493,859.00. This Plan is the Applicant’s 15th Plan (Plan 15). That Plan was partially replaced by a further Plan which commenced on 5 September 2024 which is expressed to be for the period 5 September 2024 to 6 March 2025 (Plan 16).[13] The ‘total funded supports’ in this 6-month Plan are valued at $360,393.48. By operation of s 103(2)(a), (b), (c)(ii) and (e) of the NDIS Act, that Plan is also before me in this review, but nothing now turns on that.[12] Joint Tender Bundle, Tab 8, pages 1435 – 1454[13] Joint Tender Bundle, Tab 9, pages 1455 – 1472

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Subsections 108(4) and (5) of the ART Act provide no escape from that reality because the discretionary power they contain can only be exercised within the Tribunal’s jurisdiction and not outside it. To do as the Applicant asks would be for the Tribunal to assume it has jurisdiction at large to review the entire trajectory of the Applicant’s participation in the NDIS, or at least a substantial part of it. The Tribunal does not have plenary jurisdiction of this nature. Its jurisdiction, relevantly, is to conduct an independent review of the approval of the SoPS that was the subject of internal review and it must do so within the four walls of ss 103, 100 and 33(2) of the NDIS Act.DECISION For these reasons the Applicant’s case for the payment of the outstanding invoices is misconceived in that it is founded upon a misunderstanding of legal principle. It must be dismissed on this basis.

Ratio Decidendi

Legal Principle Established

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