Roebig and National Disability Insurance Agency

This matter concerned an application by Ms N Roebig, represented by her brother Mr P Roebig, against the National Disability Insurance Agency (NDIA). The dispute arose from Ms Roebig's entry into a residential care service on a permanent basis after turning 65, which the NDIA asserted resulted in her ceasing to be a participant in the National Disability Insurance Scheme (NDIS). Ms Roebig's representative argued that she was not made aware that the residential care agreement was permanent and that entering it would lead to the cessation of her NDIS participant status. The Administrative Appeals Tribunal (AAT) was required to determine the scope of its review in light of these circumstances.

The primary legal issues before the Tribunal were whether Ms Roebig had ceased to be an NDIS participant under section 29(1)(b) of the NDIS Act, and consequently, when her NDIS plan ceased to be in effect under section 37 of the Act. The Tribunal also had to consider whether it had jurisdiction to review decisions made under section 29(1)(b) and the extent to which it could consider prospective supports after a person had ceased to be a participant, particularly in relation to section 29(2) of the NDIS Act. Furthermore, the Tribunal needed to determine the appropriate scope of its review under section 25(4A) of the Administrative Appeals Tribunal Act 1975 (Cth) and whether to dismiss the application under section 42B of that Act.

The Tribunal accepted that Ms Roebig entered residential care permanently on 31 May 2023, triggering section 29(1)(b) and automatically ending her NDIS participant status on that date. The Tribunal noted that this provision operates automatically and does not require a prior decision by the NDIA, nor does it allow for discretion to exempt a person due to extenuating circumstances. Citing previous AAT decisions, the Tribunal confirmed that decisions made under section 29(1)(b) are not reviewable by the Tribunal, and therefore, its jurisdiction was not enlivened to review the cessation of participation itself. The Tribunal also accepted that Ms Roebig's plan ceased to be in effect on 31 May 2023, limiting the reviewable period to 22 February 2023 to 31 May 2023. As key supports sought were prospective and could not be implemented after her cessation as a participant, the Tribunal found they were not payable under section 29(2).

The Tribunal refused to dismiss the application under section 42B of the Administrative Appeals Tribunal Act 1975 (Cth) as it did not lack a reasonable prospect of success. However, pursuant to section 25(4A) of the same Act, the Tribunal determined that the scope of its review was limited to whether the reinstatement of a side controller for Ms Roebig's power wheelchair constituted a reasonable and necessary support.