QGGX and National Disability Insurance Agency (NDIS)
[2025] ARTA 1903
•25 September 2025
QGGX and National Disability Insurance Agency (NDIS) [2025] ARTA 1903 (25 September 2025)
Applicant:QGGX
Respondent: National Disability Insurance Agency
Tribunal Number: 2023/2396
Tribunal:General Member J Toohey
Place:Brisbane
Date:25 September 2025
Decision:1. The National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No.1) Act 2024 applies to the Applicant’s request to include funding for the purchase of a vehicle, and ancillary costs, in the Applicant’s statement of participant supports.
2.The purchase of a vehicle, and ancillary costs, are not NDIS supports for the Applicant for the purpose of sections 10 and 34(1)(f) of the National Disability Insurance Scheme Act 2013. The purchase of a vehicle, and ancillary costs, cannot be reasonable and necessary supports for inclusion in the Applicant’s statement of participant supports.
3. The decision of the Respondent is affirmed.
Statement made on 24 September 2025 at 8:56am
................................[SGD]...................................
General Member Justin Toohey
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – Reasonable and necessary supports –Getting the NDIS Back on Track Amendments – Transitional Rules – Vehicle purchased prior to commencement of amendments and rules – Application for review by the Tribunal initiated prior to commencement – Whether amendments apply retrospectively – Amendments do apply to the decision under review – Decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975
Administrative Review Tribunal Act 2024
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
National Disability Insurance Scheme Act 2013
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No.1) Act 2024
National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) (NDIS Supports) Transitional Rules 2024
National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) (Miscellaneous Provisions) Transitional Rules 2024
National Disability Insurance Scheme (Supports for Participants) Rules 2013
Cases
Costello and Department of Transport (1979) 2 ALD 934
Johnstone and National Disability Insurance Agency (NDIS) [2025] ARTA 106
National Disability Insurance Agency v Deayton [2025] FCA 562
Re Commonwealth of Australia and the Commission of the Safety Rehabilitation and Compensation ofCommonwealth Employees v Farage Esber (1991) 101 ALR 35
Re Smith and Defence Force Retirement and Death Benefits Authority (1978) 1 ALD 374
Rodway v R (1990) 169 CLR 515
Stoddart v Repatriation Commission (2003) 74 ALD 366
Syddall and National Disability Insurance Agency [2022] AATA 3738Secondary Materials
Explanatory Statement: National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024
Statement of Reasons
SUMMARY
The Tribunal has decided to affirm the decision of the Respondent. This decision is made under section 105 of the Administrative Review Tribunal Act 2024 (ART Act). The reasons for this decision are set out below.
AGREED BACKGROUND AND ISSUES
This matter was originally scheduled to be heard on 10 and 13 February 2025. The parties requested that the hearing be vacated. This request was made because the issues before the Tribunal had been significantly narrowed, and the remaining issues related to the application of the National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (Transitional Rules).
Being satisfied that the remaining issues for determination could be adequately considered ‘on-the-papers’, and with the consent of the parties, the Tribunal proceeded without a hearing under section 106 of the ART Act. The parties were directed to provide final written evidence and submissions. The last submissions were received on 28 August 2025.
The parties prepared a joint statement of issues which set out the following agreed background and issues.[1] The Applicant is a 30-year-old woman who became a participant in the National Disability Insurance Scheme (NDIS) in 2019 in respect of physical impairments relating to Ehlers-Danlos Syndrome (EDS).
[1] This summary is modified to remove information that might identify the Applicant.
On 5 December 2022, a delegate of the Chief Executive Officer (CEO) the National Disability Insurance Agency (Agency) approved a statement of participant supports (SPS) in a plan for the period from 5 December 2022 to 5 December 2023. The SPS included funding for the cost of vehicle modifications.
On 12 February 2023, the Applicant requested an internal review of the 5 December 2022 decision, in which they requested funding for the cost of hire of an interim modified vehicle, the cost of purchase of a Kia Carnival SLi for modification, and the costs of reinstallation of seats in the back of the modified vehicle.
In an internal review decision dated 6 April 2023, a delegate of the CEO affirmed the December decision to decline the request to fund the cost of purchase of a Kia Carnival SLi and the cost of reinstallation of seats in the back of the modified vehicle. The Applicant sought a review of the internal review decision by the Administrative Appeals Tribunal (AAT) on 13 April 2023.[2]
[2] On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
On 5 April 2024, a delegate of the CEO approved an SPS in a plan for the period from 5 April 2024 to 4 October 2024. The SPS included funding for the increased cost of the previously approved modifications to the Applicant’s vehicle as well as for the cost of reinstallation of the seats in the back of the modified vehicle.
The plan which commenced on 5 April 2024 has since been automatically extended, and the reassessment date for the plan is now 4 October 2025. Under section 103(2) of the National Disability Insurance Scheme Act 2013 (NDIS Act) the SPS in that plan is also before the Tribunal.
The issue for the Tribunal to determine is whether the following requested supports are reasonable and necessary under section 34 of the NDIS Act:
(a)the cost of purchase of the Applicant’s vehicle, a Kia Carnival SLi, or alternatively, the difference between this cost and the cost of purchase of a Kia Carnival S; and
(b)ancillary costs to the vehicle purchase including registration and insurance.
More specifically, the parties identified that the Tribunal needs to determine:
(a)whether the Transitional Rules apply retrospectively to appeals commenced prior to 3 October 2024;
(b)whether the requested supports are ‘an NDIS support for the participant’ having regard to sections 10 and 34(1)(f) of the NDIS Act and Items 2(c) and 6(b) of Schedule 2 of the Transitional Rules;
(c)whether the requested supports are “not related to the participant’s disability” having regard to paragraph 5.1(b) of the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Support Rules); and,
(d)whether the requested supports relate to day-to-day living costs that are not attributable to the support needs having regard to paragraphs 5.1(d) and 5.2 of the Supports Rules.
GETTING THE NDIS BACK ON TRACK AMENDMENTS[3]
[3] I have used similar paragraphs to the following in other recent decisions.
The National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No.1) Act 2024 (Back on Track Amendment Act) made significant amendments to the NDIS Act.
The amendments added a new section 32A of the NDIS Act which sets out that there are now two kinds of plans: being ‘new framework plans’ and ‘old framework plans’. QGGX has an ‘old framework plan’.
The amendments added a new section 34(1)(f) which requires that, for a support to be found to be reasonable and necessary, it must be an ‘NDIS support’ for the participant. This, in turn, applies a new definition of ‘NDIS support’ in section 10. Section 10 provides that rules may be made that declare whether a support is (or is not) an NDIS Support.
Section 124 of the Back on Track Amendment Act states that the reference to rules made under section 10 includes rules made under section 138 of the Back on Track Amendment Act, which allows the Minister to make Transitional Rules. The Minister has made Transitional Rules and these rules commenced on 3 October 2024. Schedule 1 of the Transitional Rules specifies ‘Supports that are NDIS supports unless otherwise provided’. Schedule 2 specifies ‘Supports that generally are not NDIS supports’.
As I discussed in Johnstone,[4] the term ‘generally’ in the context of Schedule 2 is used in the sense of applying to all participants as compared to a class of participants, rather than in the sense of applying in ‘most circumstances’ or similar. The Transitional Rules apply in a way which means that, if a requested support is listed in Schedule 2 as one of the supports that are generally not NDIS supports, the Tribunal is not able to include this support in an SPS.
[4] Johnstone and National Disability Insurance Agency (NDIS) [2025] ARTA 106, [23]–[31].
The new subsection 10(6) does provide some limited circumstances in which the CEO may determine that a support declared as not being an NDIS support could still be support for a participant (such as if it replaces an NDIS support and achieves the same or better result for the same or lower cost). These are described as ‘replacement support determinations’ and are dealt with in Part 3 of the Transitional Rules. A replacement support determination can only be made in respect of specific supports listed at rule 7(3) of the Transitional Rules. Vehicles are not listed as a support that can be the subject of a replacement support determination. A section 10(6) determination is not listed as a reviewable decision in section 99 of the NDIS Act.
The Minister also made the National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) (Miscellaneous Provisions) Transitional Rules 2024 (Miscellaneous Transitional Rules). Section 7 of the Miscellaneous Transitional Rules requires that a decision‑maker must also be satisfied the support is most appropriately funded or provided through the NDIS, and not more appropriately funded or provided through other general systems of service delivery or support services. In effect, this means that decision‑makers are (at least until new rules are made) applying two versions of subsection 34(1)(f), as it was before the amendments, and the new version as amended.
The Support Rules also remain in force. In my view, it is not always clear how the Support Rules are intended to operate alongside the Transitional Rules.
CONSIDERATION
Do the Transitional Rules apply retrospectively?
The Applicant submits that QGGX has an ‘accrued right’ to have her supports determined with reference to the legislative framework that was in force at the time the reviewable decision was made by the Agency:
The Applicant’s primary position is that the appropriate regime is the regime at the time of the IRU [Internal Review Unit] Decision and application to this Tribunal because:
(a) of the nature of the rights and liabilities pertaining to support under the NDIS which require considerations of fairness and certainty - particularly when considering it affects the Applicant’s rights to NDIS support arising from an original decision dated 22 December 2022;
(b) the IRU Decision determined the Applicant’s entitlement to be covered by a plan from December 2022 to December 2023, a period of time ending almost a year prior to the amendments to the Act coming into effect in October 2024;
(c) it would be consistent with precedent to use the regime at the time of the decision under review;
(d) it relates to reimbursements or retrospective entitlements. [notes omitted]
In support of this proposition, the Applicant relies on several authorities including:
·Rodway v R,[5]
·Costello and Department of Transport,[6]
·Re Commonwealth of Australia and the Commission of the Safety Rehabilitation and Compensation of Commonwealth Employees v Farage Esber,[7]
·Stoddart v Repatriation Commission,[8]
·Syddall and National Disability Insurance Agency,[9]
·Re Smith and Defence Force Retirement and Death Benefits Authority,[10] and
·National Disability Insurance Agency v Deayton.[11]
[5] (1990) 169 CLR 515 at 521.
[6] (1979) 2 ALD 934 at [939]–[945].
[7] (1991) 101 ALR 35 at [50]–[51].
[8] (2003) 74 ALD 366.
[9] [2022] AATA 3738 at [44].
[10] (1978) 1 ALD 374.
[11] [2025] FCA 562 at [111] to [136].
In reply, the Respondent submits that:
The first reply contention is that no accrued right or liability accrued to the Applicant that is connected to a decision to approve an NDIS plan. The second reply contention is that, irrespective of any rights which or liabilities which accrued to the Applicant (which is denied), the transitional provisions to the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 (Amendment Act) direct the Tribunal to apply the law as in force on and after 3 October 2024 in reviewing a decision made pursuant to s 33(2) of the NDIS Act. [emphasis omitted].
In my view, the Respondent’s second contention is correct. On my reading of the authorities provided by the Applicant, to the extent a person may have an accrued right to have a matter determined with reference to the legal framework in force at the time a reviewable decision was made, this right can be affected by legislative transitional provisions. For example, in Farage Esber there was a specific saving provision which ‘recognized a pending application for review as an accrued right and made express provision for the preservation of such a right’.[12] Similarly, in Costello the Tribunal found:
… where the nature of the decision under review does not involve a consideration of accrued rights or liabilities but rather involves an investigation whether the applicant has a present entitlement to the grant of a right or privilege, we have concluded that, unless the amending law otherwise provides we should apply the law as amended as at the date of our decision.
[12] (1991) 101 ALR 35, [44].
Section 129 of the Back on Track Amendment Act provides:
129 Old framework plans—content and approval of statement of participant supports
(1) Subject to subitem (3), sections 33, 34 and 35 of the National Disability
Insurance Scheme Act 2013, as in force on and after the commencement
of this Schedule, apply in relation to a statement of participant supports
included in an old framework plan for a participant if the statement is
approved or varied on or after that commencement.
(2) Subitem (1) applies:
(a) whether the participant becomes a participant; and
(b) in the case of a variation—whether the plan comes into effect;
before, on or after that commencement.
(3) Subsection 33(2A) of the National Disability Insurance Scheme Act
2013, as in force on and after the commencement of this Schedule,
applies in relation to a statement of participant supports included in an
old framework plan for a participant if:
(a) the statement is approved on or after the commencement (the
determination commencement) of the first determination
made under subsection 33(2E) of that Act (as inserted by this
Schedule); and
(b) the decision to approve the statement is not covered by
subitem (4).
(4) This subitem covers the following decisions made on or after the
determination commencement:
(a) a decision made by a reviewer under subsection 100(6) of the
National Disability Insurance Scheme Act 2013 on review of
a decision made by a decision-maker before the
determination commencement;
(b) a decision, made by the Administrative Appeals Tribunal, on
review of a decision made by a reviewer under that
subsection:
(i) before the determination commencement; or
(ii) on or after the determination commencement, if the
decision reviewed by the reviewer was made by a
decision-maker before the determination
commencement.
(5) Subitem (3) applies whether the participant becomes a participant
before, on or after the determination commencement.
In my view, subsections 129(1) and (2) demonstrate a clear legislative intent that the amended provisions apply to a decision to approve a statement of participant supports after commencement of the amendments. The Applicant is asking the Tribunal to approve a statement of participant supports, and subject to some circumstances in which rights are preserved, the amended provisions apply to this decision. The circumstances in which some rights are preserved are set out in rule 6 of the Transitional Rules which states that:
6 Transitional rule for certain pre-commencement plans
(1) This section applies in relation to a participant if the plan that is in effect for the participant includes a statement of participant supports approved by the CEO before the commencement of Schedule 1 to the amending Act.
(2) A support specified in the statement as a reasonable and necessary support for the participant for the purposes of paragraph 33(2)(b) of the NDIS Act is taken to be an NDIS support for the participant if:
(a) the support is expressed in the statement to be a stated support; or
(b) the Administrative Appeals Tribunal, in making any of the following decisions before the commencement of Schedule 1 to the amending Act:
(i) a decision to vary the statement;
(ii) a decision to approve the statement, having set aside the approval of a different statement of participant supports for the participant;
(iii) a decision to remit the approval of a statement of participant supports for the participant for reconsideration by the CEO;
made a decision to the effect that that particular support should be specified in, or funded under, the plan as a reasonable and necessary support.
(3) For the purposes of subparagraph (2)(b)(iii), it does not matter:
(a) whether the Tribunal remitted the approval of the statement in accordance with any directions or recommendations of the Tribunal; or
(b) whether the Tribunal also set aside the approval of the statement
The Federal Court in Deayton also referred to the following paragraphs of the Explanatory Statement to the Transitional Rules:
[Section 6] will ensure a participant who has a support stated in their plan can continue to access that support after commencement if it is not an NDIS support. It will also ensure participants who have received a decision from the Tribunal that identifies a particular support as reasonable and necessary for them can continue to access that support if it is not an NDIS support. This will apply for as long as the relevant plan is in effect.
...
This provision is important to ensure that participants can continue to access supports that are not NDIS supports if they have been specifically identified as reasonable and necessary for the participant prior to the Amending Act commencing. This will provide continuity of supports for a period of time while the participant becomes familiar with the list of supports that are NDIS supports and is able to select alternatives, if applicable.
Paragraph 6(2)(b) is included as a safeguard for participants who have received a Tribunal decision, because their plan will not always state each individual support as reasonable and necessary. This provision will ensure any support assessed as reasonable and necessary by the Tribunal will continue to be available until the participant receives their next plan. It will also capture supports that are included in a participant’s plan as a result of a remittal under section 42D of the Administrative Appeals Tribunal Act 1975, whether those supports are specifically stated in the participant’s plan or not.[13][emphasis as added by the Court]
[13] [2025] FCA 562, [127].
These provisions which preserve or ‘save’ some entitlements do not apply to QGGX. QGGX did not have the purchase of a vehicle as a stated support in her SPS and the Tribunal has not determined that a vehicle is to be specified in QGGX’s SPS. In my view, QGGX does not have an accrued right to have her supports determined with regard to the rules that applied at the time the reviewable decision was made. There is a clear legislative intent that the amended provisions and rules will apply to decisions to approve a new SPS in respect of an old framework plan. QGGX would only have an accrued right if this right was preserved by one of the saving provisions. The Tribunal is required to consider whether QGGX is presently entitled to the requested support and the Tribunal must consider the current provisions and rules which apply to assessing this entitlement.
I also note that there are specific saving provisions for access applications made before 3 October 2024 which are set out in Section 126 of the Back on Track Amendment Act. This confirms to me that the legislature specifically considered which of the amendment provisions apply from 3 October 2024 and the types of applications that ought to be determination based on preserved rights.
I also consider that the issue of retrospective application is distinct from matters in which the Tribunal has found that a participant is able to be reimbursed for past expenditure on a support. In such matters, the Tribunal is still applying the law as it stands at the point of finalising its decision and is applying this law to the facts as presented to the Tribunal. This can sometimes result in a finding that a support is reasonable and necessary and was so from an earlier point in time. In turn, this can lead to backdated payments to the point in time when the participant became eligible for this support. This is not a situation where the Tribunal is applying an earlier version of the law which has subsequently been changed.
With regard to the issue of whether the Transitional Rules apply retrospectively to appeals commenced prior to 3 October 2024, my answer is broadly yes. I say ‘broadly’ because there are some rights that are preserved by the transitional provisions, which do not apply to QGGX. The Tribunal is required to make a decision as to whether QGGX has a present entitlement to the requested support. This is to be determined based on current legislative provisions and rules. Subject to some preserved rights, this determination is not affected by whether an appeal was made prior to 3 October 2024. The Back on Track Amendment Act and Transitional Rules expressly apply to approving an SPS in an old framework plan and must be applied in QGGX’s circumstances.
Are the requested supports ‘an NDIS support for the participant’?
Having decided that the 3 October 2024 amendments apply to QGGX, I need to consider whether the requested supports are ‘an NDIS support for the participant’ having regard to sections 10 and 34(1)(f) of the NDIS Act and the Transitional Rules.
Item 2(c) of Schedule 2 of the Transitional Rules says that the following ‘Day-to-day living costs—finance and payments’ are generally not NDIS supports:
(c) travel insurance, life insurance, income protection insurance, home and contents insurance, car insurance and excess insurance for novated vehicles;
Item 6(b) of Schedule 2 of the Transitional Rules says that the following ‘Day-to-day living costs—travel and transport’ are generally not NDIS supports:
(b) vehicles, including motor vehicles, motorbikes, watercraft, all-terrain vehicles, standard bikes and scooters, and other recreational vehicles;
Purchasing a vehicle, and ancillary costs such as insurance and registration, are not NDIS supports. As the amended subsection 34(1)(f) of the NDIS Act requires reasonable and necessary supports to be an NDIS support, I cannot approve funding for the purchase of a vehicle (and ancillary costs) for QGGX. While not specifically raised by the parties, I also consider that item 6(e) of Schedule 2 applies to exclude vehicle registration from being an NDIS support for QGGX. As a vehicle is not an NDIS support, I also consider that funding the difference between the cost of a Kia Carnival SLi and Kia Carnival S cannot be an NDIS support.
For completeness, item 35 of Schedule 1 says that the following ‘Vehicle modifications’ are NDIS supports unless otherwise provided:
(d) certification costs for registration and additional vehicle insurance premium
costs as a direct result of a modification;
…
(f) maintenance, spare parts and consumable items specific to an assistive product or modification.
As vehicle modifications have been approved in QGGX’s SPS, the above ancillary costs specific to the modifications will also be NDIS supports for QGGX. I also note that item 35 makes it clear that vehicle modification supports do not include the purchase of a vehicle.
Is the purchase of a vehicle most appropriately funded under the NDIS?
The Applicant raises a secondary submission that Section 7 of the Miscellaneous Transitional Rules requires a decision‑maker to consider whether the support is most appropriately funded or provided through the NDIS, and not more appropriately funded or provided through other general systems of service delivery or support services. The Applicant submits that funding for the purchase of a vehicle is most appropriately provided through the NDIS.
With respect, I cannot accept this submission. Section 7 of the Miscellaneous Transitional Rules and the amended subsection 34(1)(f) apply as two (of several) criteria in section 34 that all must be met before a support can be found to be reasonable and necessary. If a support is not an NDIS support for a participant, it cannot be a reasonable and necessary support. Section 7 of the Miscellaneous Transitional Rules does not apply as an alternative under which a support, which is not an NDIS support, can otherwise be found to be reasonable and necessary. Section 7 is an additional requirement which must also be satisfied.
Having reached the above conclusions, I do not need to consider the remaining issues raised by the parties.
Process concerns raised by the Applicant
In addition to submissions, the QGGX also provided a detailed personal statement on 7 August 2025. In this statement, QGGX outlines her considerable concerns with the conduct of the Agency and delays to the review process. I appreciate that delays in this review process have resulted in this matter being finalised after the 3 October 2024 amendments and that QGGX feels very aggrieved that this has operated to her significant disadvantage. I am sympathetic to these concerns and acknowledge that the process at the Tribunal has been unduly protracted. Ultimately however, the Applicant’s concerns with the Agency’s contribution to these delays is not a matter for the Tribunal to determine. I note that the Applicant has separately raised her concerns with the Agency with regard to the Agency’s conduct as a model litigant.
DECISION
The National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No.1) Act 2024 applies to the Applicant’s request to include funding for the purchase of a vehicle, and ancillary costs, in the Applicant’s statement of participant supports.
The purchase of a vehicle, and ancillary costs, are not NDIS supports for the Applicant for the purpose of sections 10 and 34(1)(f) of the National Disability Insurance Scheme Act 2013. The purchase of a vehicle, and ancillary costs, cannot be reasonable and necessary supports for inclusion in the Applicant’s statement of participant supports.
The decision of the Respondent is affirmed.
Date of on-the-papers hearing: 5 September 2025 Date final submissions received: 28 August 2025 Solicitor for the Applicant: Mr C Peppel, DWF Law Australia
Solicitor for the Respondent:
Counsel for the Respondent:
Mr B O’Brien, Moray & Agnew Lawyers
Mr A Hartnett, Higgins Chambers
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