PTJR and CEO, National Disability Insurance Agency (NDIS)
[2025] ARTA 196
•7 March 2025
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 4Cases
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 189Williamson 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 Insurance Scheme Act 2013, Removing Red Tape and Implementing the NDIS Participant Service Guarantee, David Tune AO PSM, December 2019
Statement of Reasons
INTRODUCTION
This is an application by PTJR (the Applicant), brought on his behalf by his father, for independent review of an internal review decision made by the Chief Executive Officer of the National Disability Insurance Agency (the CEO, the NDIA, the Agency) on 24 October 2023 which varied an original decision made by another delegate on 23 May 2023 under s 33(2) of the National Disability Insurance Scheme Act 2013 (Cth) to approve a Statement of Participant Supports (SoPS) for inclusion in his Participant Plan. The Tribunal has jurisdiction under s 12 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act) to review this decision because it is designated a reviewable decision by s 99(1) (Item 4) of the NDIS Act.[1]
[1] This proceeding commenced before the Administrative Appeals Tribunal (AAT) in accordance with the power conferred by s 25 of the Administrative Appeals Tribunals Tribunal Act 1975 (Cth). The AAT was abolished and replaced by the Administrative Review Tribunal (ART) with effect from 14 October 2024. By operation of Item 24 in Schedule 16 of the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 any proceeding which was not determined by 14 October 2024 continues in the ART and is to be determined by the application of the provisions of the ART Act.
The final hearing in the review was fixed for 26 to 28 November 2024. At the outset on 26 November 2024, I was advised by Counsel for both parties that they were confident a settlement could be reached if the matter could be stood down to allow some final negotiations to take place. I agreed to this, and to subsequent requests for further time. Towards the end of the day on 27 November 2024 Counsel advised that all issues had been settled except in relation to a claim for payment of ‘outstanding invoices’ for services provided to the Applicant by several providers during a period before the commencement of the Participant Plan that contained the SoPS under review (the residual issue). I was invited to make a consent order in partial settlement of the proceeding pursuant to ss 103(1) and (3) of the ART Act, and to determine the residual issue on the papers. I agreed in principle to this bifurcation, but reserved my position as to whether the residual issue could be determined on the papers until I had the opportunity to properly consider the evidence and submissions before me in relation to that issue.
Counsel handed up signed Terms of Agreement on 27 November 2024 and after satisfying myself as to the matters specified in s 103(1), I made consent orders to give effect to that agreement the following day. In accordance with s 103(3) I will deal no further with the matters contained in that consent order. I note that the signed Terms of Agreement were handed up on the record in the presence of both the Applicant’s parents who sat at the Bar Table and indicated to me directly and through Counsel that the dispute was resolved but for the residual issue.
The signed Terms of Agreement included in paragraph 5 the following statement:
5.The only issue that remains to be determined in this proceeding is the backdating issue which pertains to outstanding invoices may be resolved as determined by the Tribunal on the papers (sic).
The position of the parties and the Tribunal in relation to the residual issue was recorded on the consent order as a notation in the following terms:
NOTATION
The Tribunal acknowledges the Parties’ agreement as to the following:
1. The only issue that remains in dispute in this proceeding is the backdating of payments for outstanding invoices (‘backdating issue’),
2. The progression of the backdating issue will be determined by the Tribunal and will be advised to the parties in due course.
On 3 December 2024 the Applicant’s father wrote to the Tribunal requesting it to revoke the consent order made on 28 November 2024 on the ground that he had been induced to sign the Terms of Agreement upon which that order was founded under duress. That request was accompanied by various scandalous allegations about the Applicant’s and the Agency’s legal representatives and the Tribunal. On 4 December 2024 I issued an order refusing that request, giving as my reason a lack of power to do so.[2] Later 4 December 2024 the Applicant’s legal representative notified the Tribunal it had ceased to act for the Applicant. On 6 December 2024 the Applicant’s father wrote to the Tribunal again taking issue with my order of 4 December 2024 and repeating his various scandalous allegations.
[2] Section 103(4) of the ART Act provides that the Tribunal may revoke a decision made in accordance with 103(3) if the parties each agree to the revocation and the terms of that agreement are reduced to writing, signed by or on behalf of the parties. Neither the Agency nor the Applicant’s mother who had also signed the Terms of Agreement indicated their agreement to the consent order being revoked, and in any event, no signed terms containing any such agreement had been filed.
THE RESIDUAL ISSUE FOR DETERMINATION
The residual issue for determination is whether the Applicant is entitled to any form of order that would result in the Agency being required to pay a total of $90,574.70 in respect of ‘outstanding invoices’ rendered by several providers for support services to the Applicant during the period January 2023 to August 2023, which the Agency has refused to pay because the amounts claimed exceeded approved funding amounts for these items of support in the SoPS contained in the Participant Plans that were in force at that time.
The Applicant, by his legal representative, prior to it ceasing to act for him, contends that the Tribunal can make an order with this effect because of the discretionary power that is now found in ss 108 (4) and (5) of the ART Act, which provides:
108 Effect of Tribunal decision to vary of substitute a reviewable decision
…
(4)When the decision of the Tribunal to vary or set aside the reviewable decision comes into operation, the reviewable decision as varied, or the decision made in substitution for the reviewable decision, has effect, or is taken to have had effect, from the time at which the reviewable decision has or had effect.
(5)Subsection (4) does not apply if the Tribunal orders otherwise.
It was submitted on the Applicant’s behalf that the Tribunal can determine that the supports to which these outstanding invoices are referrable were reasonable and necessary at the material time, and based on that finding, set aside or vary the reviewable decision so as to incorporate these supports by specifying an intensity or frequency commensurate with the utilisation rates reflected by the invoices and by use of ss 108(4) and (5) commence the SoPS from January 2023 so that the outstanding invoices will fall within the SoPS period and must be paid by the Agency.
The parties’ submissions in relation to the residual issue had been framed in terms of s 43(6) of the AAT Act which was in force when those submissions were drafted.[3] Upon consideration, I issued directions to the parties on 28 November 2024 drawing their attention to the reformulation of s 43(6) in ss 108(4) and (5) of the ART Act and inviting submissions as to which provision I was obliged to apply, and as to whether there was any substantive difference between the two sections. As noted above, the Applicant’s legal representative ceased to act for him on 4 December 2024. Consequently, the directions were reissued to the Applicant’s parents, but they made no submission in response, and no submission in reply or otherwise was received from the Agency in response to my directions.
[3] Section 43(6) of the AAT Act was in the following terms:
A decision of a person as varied by the Tribunal, or a decision made by the Tribunal in substitution for the decision of a person, shall, for all purposes (other than the purposes of applications to the Tribunal for a review or of appeals in accordance with section 44), be deemed to be a decision of that person and, upon the coming into operation of the decision of the Tribunal, unless the Tribunal otherwise orders, has effect, or shall be deemed to have had effect, on and from the day on which the decision under review has or had effect.
I have determined that it is ss 108(4) and (5) that are to be applied in disposition of the residual issue. In this respect I am satisfied that item 24 of Schedule 16 of the Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 applies in relation to the discretionary power contained in s 46(3) and ss 108(4) and (5), because it does not concern the AAT’s jurisdiction at the time the Application was filed.[4] However, even if I am wrong in that conclusion, in my opinion it would make no difference because there is no substantive difference between s 43(6) of the AAT Act and ss 108(4) and (5) of the ART Act. It is a difference of form only.
[4] Baumgarten and eSafety Commissioner (Guidance and Appeals Panel) [2025] ARTA 59 at [18].
DISPENSING WITH A HEARING IN RELATION TO THE RESIDUAL ISSUE
Section 106 of the ART Act prescribes the circumstances in which the Tribunal may reach a decision without a hearing. It provides, relevantly:
106Circumstances in which the Tribunal may reach decision without hearing – review decisions only
Tribunal may make decision without hearing in certain circumstances
(1) The Tribunal may make its decision in the proceeding in relation to the application after considering the documents and things given to the Tribunal and without holding the hearing of the proceeding if any of subsections (2) to (5) applies.
Parties consent
(2) This subsection applies if:
(a) all of the parties to the proceeding consent to the proceeding being determined without the hearing of the proceeding; and
(b) it appears to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding.
…
I was satisfied on 27 November 2024 that both parties had consented to the residual issue being determined without a hearing. That consent is recorded in paragraph 5 of the Terms of Agreement and in the Notation made to the consent order issued on that day.
I do not ignore the fact that the Applicant’s father wrote to the Tribunal on 3 and 6 December 2024 asking it to revoke the consent order and take his signature off the Terms of Agreement upon which it was founded, but I do not accept that he is able to resile from these Terms of Agreement such that paragraph 5 is no longer operative. As I have determined, he cannot do so insofar as the Terms of Agreement are incorporated into the consent orders because of s 103(4) of the ART Act. While the parties’ agreement with respect to the hearing of the residual issue is not the subject of a decision to which s 103(4) applies, it is nevertheless a component of an overall settlement of the dispute, which in my view should be adhered to consistent with the Tribunal’s objective in s 9 ART Act.[5]
[5] Specifically, s 9(b) ‘ensures that applications to the Tribunal are resolved as quickly, and with as little formality and expense, as a proper consideration of the matters before the Tribunal permits’.
In any event, it is the Applicant who is the party to the proceeding, not his father. The Applicant’s father was one of two signatories to the Terms of Agreement on behalf of the Applicant. The Applicant’s mother was the other and she has not indicated to the Tribunal that she seeks to resile from the Terms of Agreement. The proceedings have been conducted on the basis that both the Applicant’s father and mother have parental responsibility to him. Within the NDIS legislative scheme, they are therefore both his ‘representative’.[6] For these reasons I remain satisfied that the requirements of s 106(2)(a) are met.
[6] See s 75 of the NDIS Act the National Disability Insurance Scheme (Children) Rules 2013 (Cth); Rule 3.2, and Part 4.
I note that in another case I may have been prepared to reopen the hearing on a prudential basis to hear directly from the Applicant’s father any further submission he wished to make in relation to the residual issue. However, in the circumstances of this case I have elected not to do so for several reasons. This case has a lengthy and contentious history. The Applicant’s father has conducted himself before the Tribunal in a querulous and abusive manner. His manner of communication with the Agency’s legal representatives and Tribunal officers has repeatedly been seriously unsatisfactory and, at times, has constituted an occupational health and safety risk. He has threatened lethal self-harm and to inflict lethal harm on his son, the Applicant, on Tribunal premises which have required referrals to child protection authorities and police. The manner of his communications of 3 and 6 December 2023 continue in an abusive and threatening vein. Additionally, I consider it most unlikely, if the hearing was to be reopened, that the Applicant’s father would be able to confine himself to the residual issue for determination. I consider it likely that a further hearing would lead to an attempt by the Applicant’s father to reopen the whole of the dispute and to major escalation of conflict. Objectively, I do not consider that to be in the interests of either party or in the interests of justice.
Turning to the requirements of s 106(2)(b), upon careful consideration I am now also satisfied that these are satisfied. That is because the issues for ultimate determination are questions of law rather than fact. To the extent that these issues of law arise from certain factual matters, those matters are narrow in scope and not in contest.[7] The parties’ submissions in relation to the issues of fact and law upon which the residual issue turns were prepared by their legal representatives and were settled by Counsel. I am therefore satisfied that both parties have had a reasonable opportunity to be heard in relation to the residual issue.
[7] That is the fact of the ‘outstanding invoices’ and the circumstances in which they were incurred are not in dispute. Whether or not the supports to which they are referrable were reasonable and necessary at the material time is in dispute between the parties, but that it is not a factual issue that is reached for the reasons set out following.
For the foregoing reasons I have decided to determine the residual issue without a hearing in accordance with the parties’ request of 27 November 2024.
MATERIAL CONSIDERED
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 2024
v.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
Instead, the residual issue arises from three Plan periods prior to the Participant Plan that commenced on 24 October 2023, being the periods of Plan 12, which was expressed to be for the period 24 October 2022 to 23 October 2023 (but which was reviewed on 19 March 2023), Plan 13, which was expressed to be for the period 20 March 2023 to 18 September 2023 (but was reviewed on 22 May 2023), and Plan 14 which was expressed to be for the period 23 May 2023 to 22 May 2024 (but was reviewed on 23 October 2023). The value of the ‘total funded supports’ in those plans was $153,627.00, $83,319.00, and $507,703.00 respectively.
The Applicant’s NDIS funding for the supports contained in his SoPS is ‘Plan Managed’ by an agency trading as AUSCARE Support. On 24 March 2023 an AUSCARE Support Plan Manager wrote to the Applicant’s father to advise him that she could not process three invoices to contractors that he had forwarded to her for payment because the funding available under Plan 12 (which was the Plan period to which those invoices were referrable) had been exhausted, a new Plan (Plan 13) (rather than a “roll-over” of Plan 12) had commenced from 20 March 2023, and invoices dated prior to 20 March 2023 could not be applied to the funding available under Plan 13. She advised that she had submitted these invoices to the Agency (via the “Provider Payment” portal”) for review for payment. She indicated that it was not possible to know when the Agency would consider the invoices for payment.[14]
[14] Applicant’s submissions in reply filed 5 November 2024, attached document 1.
Additionally, between 26 March and 14 August 2023, the Applicant’s AUSCARE Supports Plan Manager submitted to the NDIA a total of 37 claims for payment for supports for the Applicant (being for home nursing, disability support, physiotherapy, and occupational therapy) totalling $104,317.07 which could not be paid from the funding approved under Plans 14, 15 and 16. Apart from the ‘pre-dating issue’ referred to above, the reason the other invoices could not be paid was the exhaustion of funding for the line and/or category of support to which those invoices were referrable.[15] Following several enquiries by the Plan Manager, the Agency’s payments officer notified the Plan Manager on 14 August 2023 that the Agency would process a payment of $13,742.35 against those claims within five days, but would not make payment of the balance of $90,575.19 because the Plan budgets had been exhausted, and upon review, the delegate ‘had deemed that support was only justified to the level provided’ in the plans.[16] In other words, the delegate did not accept that the over-expenditure was justifiable.
[15] A spreadsheet summarising these invoices, and a bundle containing these invoices, is at Appendix B of the Applicant’s submissions filed on 6 August 2024.
[16] Page 1 of Appendix B of the Applicant’s submissions filed on 6 August 2024.
It is not in issue that the Applicant did not, by either of his parents, apply for internal review of the decisions to approve the SoPS in Plans 12, 13 and 14. However, on behalf of the Applicant, it is submitted that there is compelling other evidence that the adequacy of the SoPS contained in those Plans was in dispute between the parties. It is submitted that this is sufficient to justify an exercise of discretion to commence the SoPS under review at an earlier date such that the supports to which these invoices are referrable will be determined to be reasonable and necessary, requiring their payment by the Agency. It is also submitted in favour of the exercise of discretion that the Applicant’s parents are experiencing financial hardship, including mortgage stress, in relation to the outstanding invoices.[17]
[17] Although not entirely clear on the evidence before me, it appears that the Applicant’s parents entered contracts with these service providers directly, and that the providers have initiated legal action to obtain payment of the invoices as a debt: Joint Tender Bundle; Tab T37; transcript of call to Minister’s office.
The evidence of the disputed adequacy of the SoPS in Plans 12, 13 and 14 was filed as an attachment to the Applicant’s submissions in reply dated 5 November 2024. It is made up of the following:
i.An email exchange between the Applicant’s father and a Local Area Coordinator (LAC) and NDIS planner delegate dated from 23 to 31 March 2023.
a. In the 23 January 2023 email to the LAC, the Applicant’s father states:
I wanted to reach out to you to share the desperation and helplessness we are facing in managing [the Applicant’s] life. I shared the below post on the NDIS grassroots discussion forum out of desperation and despair… Since then having spoken and connected with some fellow parents the range of suggestions we have received has been from withdrawing our super and ending our lives to requesting more support and putting in a plan review.
I am so desperately wanting to give [the Applicant] the best life that he deserves. With our current house the way it is set up, we were not able to modify the house to manage [the Applicant’s] life appropriately and it is criminal that me and [the Applicant’s mother] has been having to beg the support of [the Applicant’s] fellow siblings to manage his medicines and food and his transfers from the bed upstairs to the feeding chair downstairs and is having to force [the Applicant’s] other three older siblings to a life of suffering and heavy burdens.
I believe it will be best if [the Applicant] is placed in the care of the government, in a medical facility like [named] or a group home where he is able to be provided with trained professional carers and nurses who are able to look after his every need.
Since writing the post I have since broken my ankle and have been unable to help [the Applicant] at all, and there has been an additional burden that has been placed on my eldest son.
In addition to the back-breaking lifting that we are having to do every day as [the Applicant] gets heavier, there is also a deep toll psychologically on the entire family, but especially on the other three siblings…
With the massively high care needs and the very high burdens of care being placed on [the Applicant’s mother] (who is certainly at breaking point and is having multiple physio visits and X-rays and CT Scans, the burden of care for [the Applicant] has become a life-disrupting long drawn out suffering for the entire family. [The Applicant’s mother has been unable to hold a steady job for the past 10 years, and with the interest rates going up and me also struggling with the needs of super high-needs child, I have lost connection with friends and family and have no social life of any kind…
I truly believe that the best outcome for everyone will be if we are able to find arrangements where [the Applicant] is cared for professionally by the most appropriate carers for most of his life, and we maybe stay involved and have him home on a couple of days during the weekdays or maybe the weekends. We need to put in an urgent change in circumstances request to have [the Applicant] be funded for and transitioned to care serves that are able to look after [him] in the most appropriate of manners.
Can you please assist me and Monika to make this transition happen?
…
b.In her response to this email dated 24 January 2023 the LAC expresses concern for the Applicant’s current family circumstances, and advises:
When seeking a Change in Circumstances we will need to gather as much information as possible regarding what circumstances have changed, how the current plan is not meeting the needs and what support is required. Also any reports are strongly required when requiring the support that is needed.
I can assist with requesting a change in circumstances. I will be able to send through the necessary documentation and forms that are required …
[link to form provided] Once the information has been collected and form filled there are a few ways that you can let the NDIA know about this change in circumstances. All the information you need is in the link provided. NDIA may also contact you to speak to you further if they need assistance with making their decision.
The NDIA have 21 days to respond to approve or deny request. In the event that they approve the request then [the Change in Circumstances application] will be assigned to [the LAC] to book in an Unscheduled Plan Reassessment
c.The third email in his exchange is dated 31 January 2023 and it is from the Applicant’s father addressed to the LAC and an Agency delegate planner. It encloses a completed Change of Circumstances form, and it refers to a forthcoming planning meeting.
ii.An email exchange dated from 22 to 29 March 2023 between one of the Applicant’s support providers, AUSCARE Supports, and the Applicant’s father. In summary, the support provider attaches an invoice for services supplied and requests payment, to which the AUSCARE Plan Manager responds stating “[p]lease be advised that the client exhausted all funds in the previous plan” and that “[y]our invoice has to be submitted to NDIS for review for payment”. The AUSCARE Support Plan Manager then advises the Applicant’s father than the previous Plan did not “roll-over”, that a new Plan commenced 20 March 2023, and that support costs prior to that date could not be paid from funds available under the new Plan. That resulted in the Applicant’s father sending an email to the planner delegate who had been assigned to undertake a Plan reassessment in the following terms:
Apologies for bugging you again, however it was brought to my attention that the plan was not rolled over instead a new plan was put in place. Apologies I do not understand the mechanisms/differences between the two. However, this has resulted (sic) the funding running out and invoices having to be forwarded to the NDIA for approvals.
As I understand from speaking to [Plan Manager] the payment for core support invoices provided before the new plan date are now having to be forward to NDIA for approval and disbursement of funds to AUSCARE before AUSCARE is able to pay the support workers. I also was made to understand that this time can take anywhere between one week to one year.
…
Could you please, if able to, escalate the processing of invoices relating to [the Applicant] looked at with priority, if at all possible, as I was consciously wanting to take steps to not have any issues with our already threadbare and especially the good support workers for [the Applicant].
We have been, as shared previously getting good support workers has been a challenge and I want to ensure that we are able to do everything to keep them available for [the Applicant].
iii.An email exchange dated from 14 March to 11 April 2023 which concerned a forthcoming Plan reassessment meeting that had been scheduled for 28 April 2023.
a. In an email to the planner delegate of the Agency dated 16 March 2023 the Applicant’s father states in the context of discussing the logistics of that meeting and his information gathering:
…we are still in a crisis situation and are applying our best efforts to mitigate this crisis. As a result we are running low on core support funding for [the Applicant’s] carers
Could I request that the agency consider and Agency initiated Review under s 48 of the NDIS Act for a 3 – 6 month plan extension/plan variation to allow for funds for [the Applicant’s] disability specific support needs during this 90 day information gathering window.
Please see the attached notification from the plan manager and support coordinator indicating that we may not have enough funds for [the Applicant’s] current level of support needs.
He is presently utilising 202 hours of core support per week as per the attached excel roster for the support workers at home per week for now. Attached are some of the shift notes that the support workers have been completing. I will select some of these for sharing in the actual support planning review meeting.
b. In her response to that email dated 16 March 2023 the planner delegate advises that she will put an interim plan in place from 20 March 2023 which will be a 6-month plan based on the current funding. In relation to this she states:
If you agree, I will develop an interim plan Monday, and once all documents are submitted, organise a full review meeting for you, and your supports, to discuss [the Applicant’s] ongoing supports.
c. In response to this email [undated] in the context of providing further reports and confirming that other reports were held by the Agency, the Applicant’s father states:
Seeing your email come in Friday late in the day, was a big relief for me and [the Applicant’s mother]. Thank you for responding. … A big thank you from [the Applicant’s mother] and me for helping with the interim plan extension decision.
d. On 20 March 2023 the delegate planner advised the Applicant’s parents that an ‘interim plan’ had been approved.[18]
[18] This email states in error that the interim plan was ‘not approved’. However, the Applicant’s father confirmed that the interim plan had been approved by email to the planner delegate dated 21 March 2023 and by reference to the Applicant’s MyGov NDIS account.
iv.An email exchange dated from 11 to 14 April 2023 between the Applicant’s father, the AUSCARE Support Plan Manager, and the Agency’s delegate planner. In that exchange the Applicant’s father asks the Plan Manager to confirm that certain support service invoices have been paid, to which she replies that they are ‘still outstanding’ and:
We have submitted several accounts to the NDIS for review and the (sic) have advised that they have consolidated the submissions into one but they have still not finalised the enquiry.
Unfortunately the NDIS do not give a time frame for Provider Payment submissions, please be assured we will prioritise the accounts once the NDIS approve the accounts and provide the additional funding.
Prompted by this information the Applicant’s father then sent an email to the planner delegate of the Agency which states in part:
Following on from my last email … I want to bring to your attention my concerns regarding the existing funding for current support levels for managing [the Applicant’s] disability specific supports, it is my feeling that we may run out the existing funding for [the Applicant] earlier than the plan end date or even the booked review date.
When speaking with both the Carer Gateway contact [name], and well as speaking to [the Applicant’s] support coordinator [name] on Friday, this was one additional item, on top of all the other issues we are navigating, that is increasing the stresses and the crisis of managing [the Applicant] and his care. We are taking all steps to flag matters soon as we become aware of them and I wanted to work as cooperatively with [the Applicant’s] support coordinator [name] to do everything to ensure continuity of service delivery.
As there is delays between submissions of bills by overworked support workers and the non-payment of invoices in an expected timely manner is causing increasing levels of frustrations and conflicts between the support workers and me and [the Applicant’s mother] as desperately needing these supports delivered. We have assured them that everything is being done to keep everyone transparently in the loop and everyone is working to ensure the delivery of appropriate care for [the Applicant’s] disability specific support needs. [The Support Coordinator] may be in touch with you to explore the best possible avenues to ensure continuity of services.
Speaking to carer gateway, it was also brought to our attention that the NDIS Charter/guidelines indicate between 28 and 50 days plan approval times as per the Participant Service Guarantee/NDIS this is as per my approximate established of 20K x 6 weeks till the end of the plan date 120K of additional funds to be made available for core support. These estimates are based on my very rough indications of what I believe the level of support is and I may be off from the actual invoices.
…
v.An email exchange dated to 1 May 2023, which commences with an email from an AUSCARE Support Plan Manager to the Applicant’s parents which advises that all core funding in the Applicant’s current plan is now exhausted and that AUSCARE Supports is unable to process any further accounts under the care budget. The Plan Manager asks the Applicant’s parents to ensure that all providers are advised of the current situation. She further advises that she cannot submit invoices to NDIS Provider Payment until after the end date for the then current plan which was 19 September 2023. The Applicant’s father forwarded that email to the planner delegate of the Agency stating in his cover, relevantly, as follows:
I wanted to share the below email from Plan manager with yourself ASAP. I will also raise it at the Thursday’s planning meeting, that funds have been exhausted from the current plan. When speaking to [the Plan Manager] she mentioned that manual claims are unable to be completed till a plan is in place.
While we are planning for the plan meeting this Thursday, and we expect a plan change shortly after that, it is my understanding that once the new plan is in place we will submit any outstanding invoices for a manual claims process.
I also wanted to flag that as per the attached we have been keeping the agency/plan manager and support workers transparently in the loop of our current situation and dealings with the NDIS/NDIA …
As the supports provided in all the claims relate to [the Applicant’s] disability specific support needs, it is my understanding that, even if they do take longer to process should not be refused.
Once again, could I request if you could please help explore if funding for core supports in the current plan under provisions for crisis/emergency funding as indicated on NDIA’s website … does in fact apply to [the Applicant’s] circumstances (specifically the Dot point 5 in the screenshot below – Crisis funding). This I see as while we are going for a planning meeting is a result of the change/flow on from the urgent change in circumstances/crisis that was flagged with the agency in late December/early January. For services required by [the Applicant], additional funds will be needed for the dates in the current plan, even if it is only a short plan.
While the six month plan was put in place as an emergency measure when we did run out of funds from the older plan, in hindsight, I believe we should have maybe requested that the six month plan have enough funds to at least last us the six months. We may, either now/at the planning meeting raise another crisis in that there isn’t funding for the services that are being delivered to [the Applicant] presently.
… it makes me professionally very very uncomfortable with the uncertainly of the current situation and it while on the one hand we are constantly struggling to request the support workers to provide these long hours and odd times with difficult support requirements, and at the same time to say to them that their invoices from this week’s work may take between a week and up to a year to get paid.
I am flagging this with yourself as I would at some point also request the escalations of these unpaid invoices to be followed up/acted upon with urgency. Also even if the plan is approved in a week (50 days is the time indicated on the NDIS site) [the Applicant] will still need the supports to be provided to him from now till that time and thus funds till that time.
…
vi.An email exchange dated 12 to 15 May 2023 between the Applicant’s Support Coordinator and the delegate planner of the Agency. In her email of 12 May 2023, the Support Coordinator asks for confirmation as to whether an interim plan can be approved because “[the Applicant] is now unable to access any support workers leaving him at extreme risk of harm”. The delegate planner replies to this email advising that she “got advice to go for the plan approval, not an interim one”, and:
Thanks for the email. I am waiting for technical advice. It was asked that the current plan is for 6 months and approved on 20th March and already 80% utilised which is indicating over utilisation. I explained the situation and reports, however, I have to approach for the plan approval.
The advice I am waiting is because 2:1 supports required for all self-care and transfer. Once its back I will be advancing in building the plan.
By return the Support Coordinator responded:
Thanks for this – I understand the overutilisation which should indicate the plan was not adequate in the first place.
I am not sure [the Applicant] will be able to wait weeks or even months for a new plan, without any carers for his personal care of (sic “or”?) social engagement – I am concerned his parents will need to stop working which is not sustainable.
The delegate planner responded:
Hi again, I do understand the severity and I have escalated for advice. I am doing whatever I can, but can’t break the system though, hope you understand…
On 15 May 2023 the Support Coordinator responded:
Thank you – I do understand you are doing everything you can, and the family do as well, But I am sure you can appreciate the immense stress they are under with having zero funding left, including therapy funding. Again, the plan was never adequate, meaning the family have had to over utilise, or risk [the Applicant] being without enough support.
This will result in [the Applicant] being without services, his parents potentially needing to stop working and could result in serious harm.
Is there anyway we can escalate this to ensure [the Applicant] does not do without funds? I am happy to contact anyone I need to.
Thank you for everything you’re doing.
CONSIDERATION
Close consideration of the evidence set out above leads to the conclusion that there are two administrative decisions that lie at the core of the dispute that remains before the Tribunal for determination. They are:
i.The decision of the Agency of 14 August 2023 not to approve payment of invoiced amounts totalling $90,575.19 which had been submitted by the Applicant’s Plan Manager. On the evidence as it stands, this appears to be a decision made pursuant to s 45 of the NDIS Act to the extent that it was determined to be not ‘an amount payable’ under the NDIS in respect of the Applicant’s Plans 12, 13 and 14 because the funding available under those Plans had been exhausted by overutilisation of approved supports contrary to the obligation imposed by s 46(1)(b) of the NDIS Act (“Issue 1”),
ii.A decision of the planner delegate of the CEO pursuant to s 48(7)(b)(ii) of the NDIS Act sometime on or about the start of May 2023 to prepare a new plan for the Applicant, rather than vary his existing plan pursuant to s 48(7)(b)(i) (the reassessment outcome decision). The evidence of this decision is found in the delegate planner’s email to the Applicant’s LAC dated 12 May 2025 set out at paragraph 27(iv) above (“Issue 2”).
Neither of these decisions is designated a reviewable decision by the Table to s 99(1) of the NDIS Act.
The Applicant seeks to overcome that difficulty though a creative use of ss 108(4) and (5) of the ART Act. As set out above, it is submitted that the Tribunal can set aside or vary the reviewable decision that is before it (the approval of the SoPS on 23 May 2023) and commence the substituted or varied SoPS from a date prior to the earliest of the outstanding invoices. This would require the Tribunal to determine that the supports that are the subject of those invoices were reasonable and necessary at the time. That would then oblige the Agency to pay them.
Upon careful consideration, I have concluded that the Tribunal does not have jurisdiction to commence the SoPS from an earlier period than the commencement of the Plan into which it is inserted, and that the residual issue is misconceived and must be dismissed on that basis. I arrive at that conclusion for the following reasons.
Turning first to ss 108(4) and (5), it has been observed that its AAT Act antecedent is associated with a degree of inscrutability and inconsistent application across different statutory schemes.[19]
[19] Lesi v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 285 at [49] – [50]
In Mulholland, Mortimer J (as she then was) attempted to distil the underlying principle when she opined that s 43(6) ‘is a necessary provision so that any changes made by the Tribunal to the decision under review are given certain operation’ and it ‘must interact, and be reconciled, with the statutory scheme in which the decision under review is located’ observing that its effect ‘is not uniform and depends upon the statutory scheme with which it interacts’.[20]
[20] Mulholland v Australian Electoral Commission [2014] FCA 916 at [68] – [69].
I would venture the opinion that ss 108(4) and (5) contain a discretionary power that is only capable of being exercised in those circumstances where the Tribunal otherwise has jurisdiction. It is not a provision that permits an exercise of power where there is no jurisdiction, and nor is it a power which allows the Tribunal to accrue jurisdiction. It is for these reasons that the Applicant’s case in relation to the residual issue must fail. It conflates power and jurisdiction and is misconceived on this basis.
An explanation of why this is so requires a sketch of the Participant Planning provisions of the NDIS Act, which is set out following.
LEGISLATIVE SCHEME
Part 2 of the NDIS Act deals with Participants’ Plan. Division 2 of Part 2 concerns the preparation of participants’ plans. Section 32(1) imposes a mandatory obligation on the CEO to facilitate the preparation of the participant’s plan.
Section 33 specifies the matters that must be included in a participant’s plan. It must include the participant’s statement of goals and aspirations prepared by the participant: s 33(1). It must also include a statement of participant supports prepared with the participant and approved by the CEO: s 33(2). It may include additional matters, including anything prescribed by the NDIS rules: s 33(7).
Subsection 33(2) is in the following terms (relevantly):
Statement of participant supports
(2)A participant’s plan must include a statement (the statement of participant supports) prepared with the participant and approved by the CEO, that specifies:
(a)the general supports (if any) that will be provided to, or in relation to, the participant; and
(b)the reasonable and necessary supports (if any) that will be funded under the National Disability Insurance Scheme; and
(c)the date by which, or the circumstances in which, the Agency must reassess the plan under Division 4; and
(d)the managements of the funding for supports under the plan (see also Division 3); and
(e) the management of other aspects of the plan.
In deciding whether to approve a SoPS under ss 33(2), the CEO must perform the obligations imposed by ss 33(5):
(5)In deciding whether or not to approve a statement of participant supports under subsection (2), the CEO must:
(a)have regard to the participant’s statement of goals and aspirations; and
(b)have regard to relevant assessments conducted in relation to the participant; and
(c)be satisfied as mentioned in section 34 in relation to the reasonable and necessary supports that will be funded and the general supports that will be provided; and
(d)apply the National Disability Insurance Scheme rules (if any) made for the purposes of s 35; and
(e)have regard for the principle that a participant should manage his or her plan to the extent that he or she wishes to do so; and
(f)have regard to the operation and effectiveness of any previous plans of the participant; and
(g)have regard to whether s 46 (acquittal of NDIS amounts) was complied with in relation to any previous plan for the participant.
Section 34 sets out several matters about which the CEO must be satisfied in relation to each support that will be funded or provided as a component of the participant’s SoPS.
Section 37 has material relevance to the issue for determination in this case. It prescribes when a participant plan is in effect:
37 When plan is in effect
(1) A participant’s plan comes into effect when the CEO has:
(a) received the participant’s statement of goals and aspirations from the participant; and
(b)approved the statement of participant supports
(3)A participant’s plan ceases to be in effect at the earlier of the following times:
(a)when it is replaced by another plan (see subsection (4))
…
(c)in any case - when the participant ceases to be a participant.
(4)For the purposes of (3)(a), if a plan (the replacement plan) comes into effect for a participant while another plan is in effect, the other plan is replaced by the replacement plan.[21]
[21] Section 37 was amended so as to insert ss 37(4) by the National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) Act 2024 to put the issue beyond doubt. However, prior to the amendment the section still had that effect.
Section 39 provides that the Agency must comply with the statement of participant supports in a participant’s plan.
Division 3 of Part 2 concerns the management of funding for supports under participants’ plans. An ‘NDIS amount’ is an amount paid under the NDIS in respect of reasonable and necessary supports funded under a participant’s plan: s 9. Section 45 deals with the payment of amounts payable under the NDIS in respect of a participant’s plan. Section 46 deals with the ‘acquittal’ of NDIS amounts. It provides, relevantly:
46 Acquittal of NDIS amounts
(1)A participant who receives an NDIS amount, or a person who receives an NDIS amount on behalf of a participant, must spend the money in accordance with the participant’s plan
…
Division 4 of Part 2 deals with the variation and replacement of participants’ plans.
Section 47 deals with the variation of a participant’s plan to incorporate a changed statement of participant goals and aspirations. In short summary, it provides that a participant may give the CEO a changed version of their statement of goals and aspirations at any time, and upon its receipt, the participant’s plan is taken to have been varied to incorporate that new statement.
Section 47A concerns the variation of a participant’s plan in response to a request from a participant or on the CEO’s own initiative. In short summary, it provides that the CEO may vary a participant’s plan, other than in relation to the participant’s statement of goals and aspiration, relevantly, if the variation is ‘covered’ by any of the circumstances described in s 47A(1A). The variations covered by s 47A(1A) include a variation to the reassessment date of the plan; a variation of the statement of participant supports included in the plan in relation to plan management, specification of provider, manner of provision of a support, and to the type supports and level of funding of supports provided in the plan. In this last respect, for present purposes, it is relevant to note paragraph s 47A(1A)(d):
(1A)For the purposes of subparagraph (1)(a)(i), the following variations of a participant’s plan are covered:
(d)a variation to the statement of participant supports included in the plan, or of the funding of supports under the plan, if:
(i)the CEO is satisfied that the participant requires crisis or emergency funding as a result of a significant change to the participant’s support needs; …
A variation under subsection 47A(1) takes effect on the day specified in the variation, which must not be earlier than the day the variation is made: s 47A(10).
Section 48 concerns the reassessment of a participant’s plan in response to a request from a participant or on the CEO’s own initiative. In short summary, and relevantly, it provides that if the participant requests a reassessment of the participant’s plan, the CEO must within 21 days either decide to vary the plan in accordance with s 47A(1), or to reassess the plan, or not to reassess the plan. Subsection 48(7) prescribes the ‘outcome of reassessment’:
(7)If the CEO conducts a reassessment under subsection (1) of a participant’s plan, the CEO must:
(a)complete the reassessment; and
(b)either:
(i)vary, under subsection 47A(1), the participant’s plan as a result of that reassessment; or
(ii)prepare a new plan with the participant in accordance with Division 2 and approve, under subsection 33(2), the statement of participant supports in the new plan.
The following conceptual matters are to be noted from this sketch of the legislative scheme:
i.a distinction is to be drawn between a ‘Participant Plan’ and a ‘SoPS’. A SoPS forms part of a Participant Plan, it is not itself the Plan,[22]
[22] Pavlakis and National Disability Insurance Agency [2023] AATA 2485.
ii.a participant has unilateral control in relation to their statement of goals and aspirations. Their plan is automatically varied to incorporate any new statement of goals and aspirations upon the CEO’s receipt of it. However, that is not the case in relation to the other components of the plan. The development of a SoPS is a collaborative process undertaken by the CEO’s delegate planner with the participant (and any representative),[23] but the SoPS only becomes part of the plan when it is unilaterally approved by the delegate of the CEO after considering the matters set out in s 33(5),
iii.Once a SoPS is approved and included in the Participant’s Plan, both the Agency and the participant are statutorily obliged to comply with it. That is, the Agency must provide or fund the supports it specifies, and the participant must spend the funding available to them on accordance with their plan,
iv.a participant cannot unilaterally vary their SoPS to add unapproved supports, or utilise approved supports at an intensity, frequency, or for a duration that exceeds what has been approved.[24] There are only two avenues available to a participant who is dissatisfied with the adequacy of their SoPS. If it is newly approved, they can request internal review of the approval decision, and if still dissatisfied with the outcome of the internal review, they can request independent review of the approval in this Tribunal. If a greater or different need for support arises during a plan period, a participant can ask the CEO for their plan to be varied or reassessed because of their change in circumstances,
v.a decision of the CEO whether to vary or reassess a plan following a request from a participant is a unilateral decision. However, both are reviewable decisions. A decision of the CEO to vary a plan or to replace it with a new plan following a reassessment is also a unilateral decision of the CEO, which is not a reviewable decision,
vi.a distinction is to be drawn between a ‘variation’ to a Participant Plan which results in a subsisting plan being ‘varied’ and that plan continuing with that variation incorporated into it, and the development of a ‘new plan’ which results in the pre-existing plan being ‘replaced’ such that it does not continue,
vii.a Participant Plan will only come to an end in specified circumstances. One of those circumstances is when a subsisting plan is ‘replaced’ by a ‘new plan’,
viii.a participant will only ever have one Participant Plan subsisting. That is because a subsisting plan ends when it is replaced by a new Participant Plan,[25]
ix.the planning process encompassed by Part 2 of the Act is linear and prospective in nature.[26] That is obvious from the ordinary meaning of the word ‘plan’,[27] from the use of the words ‘goals’, ‘objectives’, and ‘aspirations’ which appear in s 33,[28] and from the words “will be” funded in s 33(3). It is also denoted by the incorporation into the SoPS of approved funding amounts or limits on what can be expended during the SoPS period which must be “acquitted” (meaning to retrospectively report to the Agency how approved funding has been spent and with what outcomes),
x.a participant’s entitlement to the funding approved in the SoPS is therefore conditional upon it being spent on the reasonable and necessary supports set out in the SoPS from the date of the SoPS, rather than any earlier date, even if the support is the same in type as one provided in an earlier SoPS. That remains the case if a subsisting plan (SoPS) is varied pursuant to s 47A because the variation cannot take effect earlier than its date, and
xia participant’s entitlement to funding approved under a SoPS is in relation to a support that is ‘provided’ during the period of the SoPS. It is not necessary that the support must be paid for within the plan period, only that it be provided within the plan period. If an invoice is rendered for a support provided within a plan period after that plan has been replaced by a new plan, the participant is still entitled to payment of it, provided the cost claimed is within the funding approval that pertained to the SoPS that was extant at the time. In such a circumstance, the participant is not drawing upon funding approved under their new subsisting plan, they are drawing on funding approved under their previous (now replaced) plan. In this respect, I respectfully disagree with what was said about this in Williamson.[29] Payment of such an expense may be being made within the temporal scope of the replacement plan, but it is not being paid, and indeed cannot be paid, from the funding approved under that plan.
[23] QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189 at [10]
[24] This observation should be read subject to the fact that some plans will specify that funding within certain categories can be used ‘flexibly’ to purchase alternative supports or to utilise more of one support and less of others within the approved overall budget.
[25] Williamson and National Disability Insurance Agency [2019] AATA 2944 at [5].
[26] Palin and National Disability Insurance Agency [2023] AATA 94 at [42].
[27] Oxford languages defines plan to mean ‘a detailed proposal for achieving or doing something’ and ‘an intention or decision about what one is going to do’.
[28] Oxford languages defines these terms, relevantly, to mean ‘the object of person’s ambition or effort, an aim or desired result’, ‘something aimed at or sought, something you plan to achieve’, and ‘a hope or ambition of achieving something’ respectively.
[29] Williamson and National Disability Insurance Agency [2019] AATA 2944 at [13].
ISSUE 1
The upshot of this last point of analysis is that the Applicant has no entitlement to payment of the outstanding invoices not because Plans 12, 13 and 14 were replaced with new plans, but because he had exhausted the funding for supports that had been approved under those plans.
ISSUE 2
In his email of 16 March 2023, the Applicant’s father requested a s 48 plan reassessment, which the delegate agreed to. In the context of that reassessment, the Applicant’s father sought a variation to the Applicant’s subsisting plan, citing the Applicant’s need for ‘crisis funding’. However, as noted above, the outcome of the s 48 reassessment was a decision to create a new plan, not vary the subsisting plan.
The Applicant’s parents are aggrieved that this decision meant that they could not use the funding provided under the new plan to meet expenses they incurred prior to the start of that plan. They apprehend that they could have done so if the existing plan had been ‘topped up’ (or ‘replenished’ in the parlance of the scheme) with funding under a variation. However, this is a misconception. Whether the plan was varied or replaced, the funding available under the varied or new plan would be prospective in nature. It could only be used for the payment of support provided after the date the varied or new plan commenced. It could not be used for the retrospective payment of support costs that had accrued prior to the date of the variation under the subsisting plan, or during prior plan periods. To the extent that the Tribunal took a different view in Darmanin,[30] I respectfully disagree.
[30] Darmanin and National Disability Insurance Agency [2024] AATA 1202.
The Applicant’s parents were always aware that they were expending approved funding at a greater rate than was permitted under Plans 12, 13 and 14. The Applicant’s father is an accountant. The Joint Tender Bundle contains financial spreadsheets he developed which record actual and projected expenditure under the plans that subsisted at various times. The email set out at paragraph 27iv above clearly indicates he knew the Applicant’s Plan 14 was being over expended, that funding was likely to run out, and that he projected the shortfall to be in the order of $120,000.00.
Whether a higher level of support between January and 23 May 2023 was reasonable and necessary for the Applicant is not a question this Tribunal has jurisdiction to answer for the reasons set out following. But on any view, having regard to their obligations on behalf of the Applicant under s 46, his parents acted perilously in knowingly purchasing supports they were not approved to pay for under the NDIS in the belief that these would have to be funded by the Agency, rather than self-funded. As I have set out above, a participant does not have any unilateral right to change the funding approved for the provision of supports in their SoPS. While nothing stops a participant from purchasing additional supports to those that have been determined as reasonable and necessary under the NDIS at their own expense, they cannot incur expenses under the NDIS without prior approval. It would be impossible to ensure the financial sustainability of the NDIS if that were to be permitted.[31]
[31] In giving effect to the objects of the NDIS Act, regard is to be had to the need to ensure the financial sustainability of the scheme: s 3(3)(b); see also s 4(17).
With this analysis as a foundation, I turn now to the examination of this Tribunal’s review jurisdiction.
TRIBUNAL’S REVIEW POWER
Section 12 of the ART Act provides that an administrative decision will be a decision that is reviewable by this Tribunal if an Act or legislative instrument provides for an application to be made to the Tribunal for review of the decision.
Section 103 of the NDIS Act provides that an application may be made to the ART for review of a decision made by an Agency internal reviewer under s 100(6) or that Act. The Table to section 99(1) sets out those decisions that are reviewable decisions under the NDIS Act. Those decisions are precisely identified. Section 99(1) does not designate every decision made by the CEO and Agency in the implementation of the NDIS a reviewable decision. The Tribunal is not given jurisdiction at large over decisions made under the NDIS.
As I have already noted, a decision to refuse to pay the costs of support incurred in respect of a participant that exceed the approved funding in a SoPS, and a s 48 reassessment outcome decision, are not designated reviewable decisions in the Table to s 99(1).
Item 4 of the Table to s 99(1) designates a decision of the CEO to approve a SoPS in a Participant’s Plan a reviewable decision. It is the decision to approve the SoPS contained in the Applicant’s Plan 15, being the plan that commenced on 23 May 2023, that is the genesis of this review.
Section 54 of the ART Act provides that for the purposes of reviewing a reviewable decision, the Tribunal may exercise all the powers and discretions that are conferred on the decision-maker by an Act or an instrument made under an Act. Section 105 of the ART Act provides that the Tribunal must decide to either affirm, vary, or set aside and substitute a new decision for the reviewable decision, or remit the matter to the decision-maker for reconsideration in accordance with any orders or recommendations of the Tribunal.
The scope of the Tribunal’s jurisdiction in conducting this review was authoritatively stated by the Full Court in QDKH[32] by reference to s 25 of the AAT Act and applying Frugtniet[33] (citations omitted):
(a)The Tribunal’s jurisdiction is governed by s 25(1) of the Administrative Appeals Tribunal Act 1975 (Cth) read together with s 103 of the NDIS Act. That jurisdiction involves the Tribunal reviewing the decision of the reviewer made under s 100 of the NDIS Act, who is in turn reviewing the CEO’s or delegate’s decision to approve a SoPS under s 33(2) of the NDIS Act (NDIS Act, s 99(1), item 4).
(b)The Tribunal’s role is to stand in the shoes of the internal reviewer and determine for itself the decision which should be made in the exercise of the power under s 100 of the NDIS Act. The scope of the Tribunal’s jurisdiction is, therefore, determined by reference to the scope of the internal reviewer’s powers under s 100 of the NDIS Act, which is in turn informed by the scope of the power under s 33(2) of the NDIS Act.
[32] QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189 at [10]
[33] Frugniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at [51] per Bell, Gageler, Gordon and Edelman JJ.
It will be obvious from the analysis set out above that the decision the internal reviewer was called upon by s 100 to review was limited to the approval of the SoPS in Plan 15. She was not called upon to review the approval of the Statements of Participant Supports contained in Plans 12, 13, and 14. The Applicant’s parents had not made requests for the review of the decisions approving those SoPS within 3 months of being notified of those decisions as required by s 100(2), or at all, and those plans had come to an end by being replaced by later plans. These Plans were therefore not before her for decision, although their effectiveness was a relevant consideration in the review of the approval of the SoPS in Plan 15 by operation of s 33(5)(f).
In conducting her review the internal reviewer did not have power to look backwards to ascertain what supports might have been reasonable and necessary for the Applicant in past plan periods for the purpose of funding those supports. Her task was to ascertain what supports were reasonable and necessary for the Applicant on a prospective basis. The Tribunal’s jurisdiction in conducting this independent review is similarly constrained.
For completeness, I turn to briefly consider the operation of s 103(2) of the NDIS Act. It provides:
(2) If:
(a)an application is made to the Administrative Review Tribunal for review of a decision made by a reviewer under subsection100(6); and
(b)the decision relates to a statement of participant supports in a participant’s plan; and
(c)before a decision on the review is made and despite subsection 31(1) of the Administrative Review Tribunal Act 2024;
(i)the CEO varies the plan under subsection 47A(1) of this Act and the variation is a change to that statement; or
(ii)a new plan for the participant comes into effect under section 37 of this Act;
Then:
(d)if subparagraph (c)(i) applies – the application is also taken to be an application for review of the decision to make the variation covered by that subparagraph; or
(e)if subparagraph (c)(ii) applies – the application is also taken to be an application for review of the decision to approve the statement of participant supports in the new plan.
Subsection 103(2) was introduced by the National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Act 2022 (Cth),[34] which contained measures in response to the outcomes of the Tune Review.[35] The mischief that s 103(2) was designed to overcome was the frustration of applications for review of decisions concerning participant plans by the creation of a new participant plan.[36] Prior to the amendment, if a new plan was created, the review was limited to the superseded plan. Review of the superseded plan was usually of no utility to the participant because it was no longer operative. Subsection 103(2) operates to place before the Tribunal plans made after the decision under review so that the review has continuing utility for an Applicant who remains dissatisfied by subsequent plan approval decisions.
[34] Item 49 of Schedule 1.
[35] David Tune AO PSM, Review of the National Disability Insurance Scheme Act 2013, Removing Red Tape and Implementing the NDIS Participant Service Guarantee, December 2019
[36] Australian Government response to the 2019 Review of the National Disability Insurance Scheme Act 2013 report, August 2020, response to Recommendation 23 at [15]
Subsection 103(2) is prospective in its scope. It places before the Tribunal any ‘new’ plan made after the decision under review. It does not operate retrospectively to place before the Tribunal spent plans that had been replaced by a later plan prior to the decision under review. Subsection 103(2) does not confer on the Tribunal jurisdiction at large to review the entire trajectory of a participant’s participation in the NDIS. Subsection 103(2) is thus of no assistance to the Applicant in this case. It does not place before the Tribunal for review the approvals of the Statements of Participant Supports in Plans 12, 13 and 14.
CONCLUSION
For the foregoing reasons this Tribunal does not have jurisdiction to review the Agency’s decision concerning the ‘outstanding invoices’. Considered squarely for what it is, that decision is not a reviewable decision. Nor is it one that can be impugned in a review of the delegate’s decision of 24 October 2023 in relation to the SoPS contained in Plan 15 because of the prospective nature of that 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.
Date(s) of hearing: On the Papers Advocate(s) for the Applicant: Legal Aid NSW (up to 3 December 2024); PTJR by his father and mother Solicitors for the Respondent: Ms J. Thomson, Moray & Agnew Lawyers
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