Rogers and National Disability Insurance Agency

This matter concerned an application by the Applicant to the Tribunal for a review of a decision made by the National Disability Insurance Agency (NDIA) regarding the statement of participant supports in the Applicant's plan. The dispute arose because subsequent decisions were made by the NDIA concerning participant supports after the initial review application was filed. The core issue before the court was the jurisdiction of the Tribunal to consider these subsequent decisions in light of its power to review decisions about whether Specialist Disability Accommodation should be specified as a reasonable and necessary support.

The Tribunal was required to determine the extent of its jurisdiction in reviewing decisions made under the National Disability Insurance Scheme (NDIS) Act. Specifically, it needed to ascertain whether it had the authority to consider subsequent decisions made under section 33(2) of the NDIS Act, or if its jurisdiction was limited to the specific decision under review. The court also had to consider how earlier Tribunal decisions interacted with later NDIA decisions regarding participant supports, particularly where those later decisions might be inconsistent with the Tribunal's findings.

The court reasoned that, for decisions not affected by legislative changes implemented on 1 July 2022, separate decisions give rise to separate review rights. The Tribunal has jurisdiction to consider whether Specialist Disability Accommodation should be specified as a reasonable and necessary support, but it does not have jurisdiction to consider subsequent decisions made under section 33(2) of the NDIS Act. However, the court noted that good administrative practice would ordinarily involve cooperation between agencies to ensure effect is given to Tribunal decisions. The impact of subsequent section 33(2) decisions on the Tribunal's review of an earlier decision depends on the nature of the supports and any changes in the participant's circumstances. If a participant can demonstrate that a support should have been funded for a period covered by a subsequent decision but not an earlier one, then subsequent decisions may intersect with the Tribunal's review. The court outlined several mechanisms to safeguard the applicant, including undertakings from the NDIA, the possibility of the Tribunal specifying a review date, and the operation of amended sections of the NDIS Act concerning plan variations and review applications.