RTRH and National Disability Insurance Agency - [2022] AATA 205

RTRH and National Disability Insurance Agency [2022] AATA 205 (9 February 2022)
Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL )

) No: 2020/0754

NATIONAL DISABILITY INSURANCE SCHEME DIVISION )
Re: RTRH
Applicant
And: National Disability Insurance Agency
Respondent
DIRECTION
TRIBUNAL:  Mr S. Webb, Member
DATE OF CORRIGENDUM:            28 June 2022
PLACE:           Canberra

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:

insert in paragraph 283 as (a)(iii):
use of taxis to obtain medical and therapeutic treatment, in the amount of $136.36 per month for the period from 31 October 2019 until 15 January 2020; and

insert in paragraph 284(a)(ii):
use of taxis to obtain medical and therapeutic treatment, in the amount of $136.36 per month for the period from 15 September 2017 until 5 December 2017.

……….[sgd]………..
Mr S. Webb, Member
Division:NDIS DIVISION
File Number(s): 2020/0754
2020/2311
2020/2316

Re:RTRH
APPLICANT

National Disability Insurance AgencyAnd
RESPONDENT

DECISION
Tribunal:Mr S. Webb, Member
Date:9 February 2022
Place:Canberra

Application 2020/0754

The internal review decision of 15 January 2020 under s 100(6) of the NDIS Act, which varied the CEO’s SPS approval decision on 31 October 2019 under s 33(2) in Plan E, is varied in the following terms:
(a)the following additional reasonable and necessary supports are to be funded and included:
(i)the Samsung Galaxy Note 9 Evo (smart phone plus stylus) plus invisible glass that was purchased by RTRH, in the amount of $1,575, as previously agreed by the parties;
(ii)use of RTRH’s private car to obtain medical and therapeutic treatment, in the amount of $28.56 per month;
(b)the date by which the CEO must review the plan is 12 months after the date of this decision (review date);
(c)all other reasonable and necessary supports in the SPS as varied by the internal review decision are to be funded on a pro-rata basis until the review date; and
(d)the internal review decision in respect of management arrangements for the plan is not changed and those arrangements apply until the review date.
Application 2020/2311
The internal review decision of 5 December 2017 under s 100(6) of the NDIS Act, which varied the CEO’s SPS approval decision on 15 September 2017 under s 33(2) in Plan A, is varied in the following terms:
(a)the following additional reasonable and necessary supports are to be funded and included:
(i)use of RTRH’s private car to obtain medical and therapeutic treatment, in the amount of $28.56 per month;
(b)otherwise, the internal review decision is affirmed.
Application 2020/2316
The internal review decision of 3 April 2020 under s 100(6) of the NDIS Act, which varied the CEO’s SPS approval decision on 3 April 2019 under s 33(2) in Plan D, is varied in the following terms:
(a)the following additional reasonable and necessary supports are to be funded and included:
(ii)use of RTRH’s private car to obtain medical and therapeutic treatment, in the amount of $28.56 per month;
(b)otherwise, the internal review decision is affirmed.
……….[Sgd]………
Mr S. Webb, Member
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – statements of participant supports – assessment of reasonable and necessary supports – transport – additional day-to-day living costs attributable to disability support needs – decisions varied
PRACTICE AND PROCEDURE – jurisdiction – decision of a reviewer – internal review of CEO’s approval of a statement of participant supports – effect of serial participant plans on Tribunal jurisdiction – statutory requirements for commencement and cessation of a plan – bar on variation of a plan once it is in effect – plan issued to give effect to internal review decision without plan review does not engage plan replacement provisions – where plan replacement provisions not engaged previous plan continues to have effect – merits review of a decision distinguished from statutory procedure for review of a participant’s plan – substitution of decisions – decision of reviewer taken to be or substituted for decision of original decision-maker – plan not varied by substitution of decision on merits review – where an approved statement of participant supports is confirmed, varied or substituted on internal review the Tribunal’s jurisdiction runs in the period the statement has effect under a plan
Legislation
Administrative Appeals Tribunal Act 1975 ss 25, 43
National Disability Insurance Scheme Act 2013, ss 3, 4, 9, 17A, 31, 32, 32A, 33, 34, 35, 36, 37, 41, 47, 48, 50, 100, 101, 103, 209
National Disability Insurance Scheme (Facilitating the Preparation of Participants’ Plans—Australian Capital Territory) Rules 2014, s 1.1
National Disability Insurance Scheme (Supports for Participants) Rules 2013, Parts 3, 5, Schedule 1
Social Security Act 1991
Cases
Blattman v National Disability Insurance Agency [2019] AATA 184
Eichmann v Commissioner of Taxation [2020] FCAFC 155
Ewin v National Disability Insurance Agency [2018] AATA 4726
RTRH and National Disability Insurance Agency [2020] AATA 2367
Frugtniet v ASIC [2019] HCA 16
Gelzinnis v National Disability Insurance Agency [2021] AATA 3790
Holland v National Disability Insurance Agency [2021] AATA 92
IW v City of Perth [1997] HCA 30
Jebb v Repatriation Commission [1988] FCA 105
Khoury v Government Insurance Office of New South Wales [1984] HCA 55
LWVR v National Disability Insurance Agency [2021] AATA 4822
McGarrigle v National Disability Insurance Agency [2017] FCA 308
McKenzie v National Disability Insurance Agency [2019] AATA 3275
McLaughlin v National Disability Insurance Agency [2021] AATA 496
MMBX v National Disability Insurance Agency [2022] AATA 13
Network Ten Pty Limited v TCN Channel Nine Pty Limited [2004] HCA 14
Newcastle City Council v GIO General Limited [1997] HCA 53
NNXF v National Disability Insurance Agency [2019] AATA 5552
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28
QDKH v National Disability Insurance Agency [2021] FCAFC 189
Shi v Migration Agents Registration Authority [2008] HCA 31
SSLP v National Disability Insurance Agency [2021] AATA 4207
Stingel v Clark [2006] HCA 37
Williamson and National Disability Insurance Agency [2019] AATA 2944
XXWC and National Disability Insurance Agency [2020] AATA 923

Secondary Materials
NDIA Operational Guidelines – Planning (Chapter 10), Appendix 1
NDIA Operational Guidelines – Including Specific Types of Supports in Plans Operational Guideline - Transport
REASONS FOR DECISION
Mr S. Webb, Member
9 February 2022
RTRH is a participant in the National Disability Insurance Scheme (NDIS). She applied to the Tribunal for review of three National Disability Insurance Agency (Agency) decisions relating to Statements of Participant Supports (SPS) that were instrumental in participant plans that came into effect in 2017 and 2019. Each decision sets out reasonable and necessary supports that were to be funded under the National Disability Insurance Scheme Act 2013 (NDIS Act). These matters were the subject of internal reviews by the Agency.
RTRH is not happy with the level of transport support funding that was approved. She also wants funding to be provided to her for a smart phone stylus device.
In the course of the proceedings, the Agency agreed to RTRH’s request for reimbursement funding in respect of the stylus smart phone device. That matter was settled by agreement under s 42C of the Administrative Appeals Tribunal Act 1975 (AAT Act). It being appropriate to do so in the circumstances, the Tribunal decides that the Samsung Galaxy Note 9 Evo (smart phone plus stylus) plus wallet plus invisible glass purchased by RTRH, in the amount of $1575.00, is a reasonable and necessary support that will be funded under the Scheme.
The dispute over transport support funding is the central issue in the proceedings.
As will appear, the nub of the dispute is that RTRH asserts that using her private car for transport is a reasonable and necessary support, and that the running costs of her car, including registration, servicing, maintenance and other costs, should be funded under the NDIS. The Agency disagrees on the basis that RTRH’s private car is not a reasonable and necessary support and related costs are everyday costs of living that cannot be funded under the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Rules).[1]
[1] The Rules are made under s 209 of the NDIS Act.
There is also an issue relating to the Tribunal’s jurisdiction in each application. This arises from the procedural and decision-making history of the Agency and the issuing of successive plans for RTRH. As will appear, the issue turns on the construction of statutory provisions at the heart of the NDIS Act relating to the making of participant plans and the review of SPS decisions.
It is important to observe immediately that the NDIS is not an income support or replacement scheme. While schemes of that kind are provided under the Social Security Act 1991 in the form of Newstart Allowance, Disability Support Pension or Age Pension, for example, the NDIS has a very different character. It adopts an insurance-based approach to the provision and funding of services and supports to people with disability. It is guided by objectives and principles[2] that expressly recognise the rights of people with disability and support the exercise of choice in pursuit of individual goals, having regard to the financial sustainability of the NDIS.
[2] See Part 2, Chapter 1 and Part 1A, Chapter 3, NDIS Act.
Underlying this case are two matters of principle that are of fundamental importance to the operation of the NDIS.
The first is about merits review. Where supports to be provided or funded in a participant’s plan are fixed by an administrative decision-making process in which one administrative decision may be replaced by another in a continuum of decision making, does replacing a decision about supports with another change the plan?
The second is about the importance of a participant’s experience of disability and their right to make choices in the circumstances of their daily lives. A participant might make choices about daily activities that require equipment or supports about which there is no real choice at all. If those supports are a common everyday expense for people exercising choice without disability, does this bar the provision or funding of the support for the participant under a plan? Where a participant is provided with supports under a plan and the approval of supports involves a choice between available options, however limited, does the participant’s preference determine the result?
On close consideration of the legislation and previous relevant cases, I have decided that the answer to each question is No.
Logically, it is necessary to deal with the jurisdiction issue first as the result determines the periods in which the disputed SPSs and RTRH’s transport support, in particular, must be considered. For this purpose, it is necessary to consider the factual background and the procedural history. It is also necessary to consider the review provisions of the NDIS Act and the nature of merits review in the Tribunal. In order to assist understanding and expose my reasoning, I will address each of these matters in some detail even though doing so greatly increases the length of this decision. The decision is comprised of the following sections:
(a)Facts and procedural history: paragraphs [13]-[70];
(b)Tribunal’s review jurisdiction: paragraphs [71]-[120];
(c)Tribunal’s jurisdiction in this case: paragraphs [121]-[163];
(d)Transport support: paragraphs [164]-[282].
Facts and procedural history
Findings in respect of relevant facts and the procedural history are made on the evidence, including documents filed under s 37 of the AAT Act in applications 2020/0754 (T documents) and 2020/2316 (AT documents), as well as a bundle of documents tendered at the hearing (Exhibit 1). Factual findings are made on the basis of reasonable satisfaction, applying the balance of probabilities standard.
In a statement of lived experience, RTRH stated:
I have the misfortune of suffering from multiple congenital debilitating medical conditions and associated co morbidities which have had and continue to have a catastrophic impact on my life.[3]
[3] Exhibit 1, page 225.
RTRH’s congenital conditions include ataxic cerebral palsy and bilateral hip dysplasia. These conditions and co-morbidities are set out in reports produced by medical doctors and therapists who have treated RTRH, including Dr Gillespie (orthopaedic surgeon),[4] Dr Newbery (general practitioner)[5] and Michelle Evans (occupational therapist). On 30 May 2019, Ms Evans reported and I accept that RTRH had the following conditions and impairments:
[4] Exhibit 1, pages 260 and 310.
[5] T3, AT4, AT5D and Exhibit 1 pages 271, 272, 297 and 298.
Congenital dislocated hips – severe hip dysplasia
Mild spastic diplegia > right leg – painful joint contractures and muscle spasms.
Reduced co-ordination, increased tone, spasticity, with reduced mobility.
Leg length discrepancy.
Total hip replacements – bilateral hip replacements December 2008.
Faulty hip replacements – recalled for revision of both hips.
September 2015 – revision of the right hip – total hip replacement.
October 2018 – revision of the left hip – total hip replacement to replace faulty implant. More surgery may be required in the future.
Pain and discomfort associated with both hips, limited mobility and endurance.
Ongoing limitations post-op as well as long term reduction in mobility due to diplegia.
Reduced fine motor ability due to increased tone in hands and fingers.
Ongoing issues with pain and discomfort due to hips and Spastic diplegia.[6]
[6] Exhibit 1, page 139.
I also find that RTRH has been diagnosed with hypertension and bilateral hip osteoarthritis by Dr Newbery,[7] and Chantelle Carr (podiatrist) reported that RTRH requires podiatric treatment for a high risk foot condition.[8]
[7] AT4, folio 22 and Exhibit 1 page 297.
[8] T8.
RTRH gave evidence of experiencing instability, loss of balance and vertigo. This, too, is accepted. Her report of instability is supported by evidence of Dr Gillespie and Dr Newbery. Dr Newbery gave evidence that RTRH has complained of vertigo and related loss of balance in the past, although the doctor accepted that vertigo is a subjective experience.
For many years, RTRH has had reduced mobility. She is able to walk with the assistance of a walking frame – she uses a wheelie walker. She is able to drive her private car unless her conditions or symptoms flare and prevent her from doing so. With appropriate support, she lives independently and cares for herself. As will appear, her bilateral hip condition restricts the safe range of motion in each hip joint – she is at risk of hip displacement with excessive flexion or adduction.
In 1995, RTRH ceased paid employment as a teacher at Copeland College. She explained that this was done on medical advice.
In 1996, she attempted low level administrative work in the Department of Defence, but this was not satisfactory and she ceased all paid employment in 1997.
Thereafter, RTRH was granted a disability support pension. She transferred to an age pension in or about August 2020.[9]
[9] Exhibit 1, page 291.
I understand that RTRH became a participant in the NDIS in September 2015 and that supports were provided and funded under successive 12-month plans from September 2015 and September 2016.[10] No documents relating to such plans and associated SPSs, setting out the reasonable and necessary supports that were approved and funded, have been given to the Tribunal in these proceedings.
[10] Exhibit 1, page 11.
RTRH asserts that before she was transferred to the NDIS, she was paid a fortnightly mobility allowance. This ceased when she became an NDIS participant in 2015. On her account, she was paid transport support amounting to $162 per fortnight until September 2017.[11]
[11] T14, folio 84.
On 18 September 2017, a delegate of the CEO issued a plan for RTRH (Plan A).[12] The notice issued in respect of this plan included the following:
How to request for your plan approval decision to be reviewed
If you disagree with the decision about your plan approval you can request for the decision to be reviewed within 3 months of receiving this notice.
When asking for a review, you should explain why you think the decision is incorrect. The staff member who conducts the review will not have been involved in the plan approval and may want to talk to you directly to understand your concerns.
The request for a review can be made by contacting the NDIA in one of the ways outlined below.
Following the review, if you still disagree with the decision you can seek further review by making an application to the Administrative Appeals Tribunal.[13]
[12] AT25, folio 195.
[13] Ibid, folio 196.
The information in respect of review rights appears to refer to the provisions for review of a decision under s 100, rather than the provisions for review of a plan under s 48. The notice issued for Plan A makes no reference to the participant’s right to seek review of a plan at any time under s 48(1).
Plan A commenced on 15 September 2017 and it was to be reviewed before 10 September 2018.[14] It contained a participant SGA[15] and an SPS.[16] The reasonable and necessary supports to be funded under the plan were:
[14] Ibid, folio 198.
[15] Ibid, folio 200.
[16] Ibid, folios 201-202.
(a)Improved Daily Living - budget: $3,000.00;
(b)Core Supports - budget: $8,048.00.
The funding in the plan was to be self-managed in respect of “Consumables”.[17] The plan sets out information about “Managing your NDIS funding package”, including –
Your Core budget is the most flexible, and includes four categories of support:
1.    Consumables …
2.    Daily Activities …
3.    Assistance with Social and Community Participation …
4.    Transport (e.g. if you are unable to use public transport because of your disability).
The good news is you can generally use Core budget funds allocated against one support category to purchase supports under another support category unless funds have been set aside for a specific purpose such as periodic payments for transport …[18]
No express provision was made for transport support in the Core Support section of Plan A.[19]
[17] Ibid, folio 195.
[18] Ibid, folio 207.
[19] Ibid, folios 201-202.
On 18 September 2017, RTRH requested an internal review of the supports to be funded in Plan A. While RTRH’s request for review is not in the materials provided to the Tribunal, some of the grounds for her request are set out in the internal review decision that was made on 5 December 2017.[20] It appears that, among other things, RTRH wanted the absence of transport assistance to be addressed and the types and levels of supports provided under the preceding plan (which was in effect from 27 September 2016 to 14 September 2017) to be reinstated. She also wanted to self-manage supports in the SPS.
[20] AT3, folio 18.
In the 5 December 2017 internal decision, the reviewer decided to increase the funding for Core Supports to $12,210 but nevertheless stated:
I have upheld the decision that supports will not be provisioned for:
-    an increase to your core and capacity building supports, where support requests are attributable to day-to-day living costs, or costs that people would incur regardless of disability; for example, purchasing new clothes, appliance, furniture, rent, utilities, groceries, car, costs associated with running a car
-    an increase in core supports where requested supports are attributable to income supplementation; for example, costs of going out to restaurants, cafes, the theatre, films, art galleries, holidays.
-    requests which relate to other relevant support systems; for example, dental/oral health needs, post hospital support needs
-    transport assistance, and
-    assistive technology for vehicle modifications.[21]
…
Your new NDIS Plan is Plan Managed, (funds managed by a third party provider).
[Original emphasis.]
[21] Ibid, folios 18-19.

After an extensive delay, in 2020 RTRH sought review of this decision.
On 5 December 2017, a delegate of the CEO issued a new plan for RTRH (Plan B).[22]
[22] AT26, folio 209.
The notice under which Plan B was issued contained the following information about RTRH’s review rights:
How to request for your plan approval decision to be reviewed
If you disagree with the decision about your plan approval you can request for the decision to be reviewed within 3 months of receiving this notice.
When asking for a review, you should explain why you think the decision is incorrect. The staff member who conducts the review will not have been involved in the plan approval and may want to talk to you directly to understand your concerns.
The request for a review can be made by contacting the NDIA in one of the ways outlined below.
Following the review, if you still disagree with the decision you can seek further review by making an application to the Administrative Appeals Tribunal.[23]
[23] AT26, folio 210. The review information is repeated in the notices issued in respect of Plan A, Plan C, Plan D and Plan E.
The delegate who issued the plan was not the same person as the reviewer who made the internal review decision on 5 December 2017. The delegate stated:
As you may know, I reviewed your plan to ensure you were receiving the right supports to meet your circumstances. Following the review I am pleased to say that a new plan has been approved.[24]
[24] AT26, folios 209.
Plan B commenced on 4 December 2017 and it was to be reviewed by 4 December 2018.[25] It contained an SGA[26] and an SPS.[27] The reasonable and necessary supports to be funded under Plan B were:
(a)Assistive Technology – budget: $153.15;
(b)Improved Life Choices – budget: $1,395.71;
(c)Improved Daily Living – budget: $3,000.00;
(d)Improved Health and Wellbeing – budget $1,165.04;
(e)Core Supports – budget: $12,720.50.
[25] Ibid, folio 211.
[26] Ibid, folio 213.
[27] Ibid, folios 214-216.
As can be seen, the supports to be funded are not the same as those decided by the reviewer who made the internal review decision on 5 December 2017. While no express provision was made for transport support, the notice issued for Plan B stated that “Funds in your core budget are flexible, which means you can choose how to spend this funding to meet your support needs”.[28]
[28] Ibid, folio 209.
Following a review of Plan B, on 24 December 2018, a delegate of the CEO decided to approve a new plan (Plan C) for RTRH.[29] This plan commenced on 20 December 2018 and was due for review before 21 March 2019.[30] It contained an SGA[31] and an SPS.[32] The plan was Plan-managed and reasonable and necessary supports to be funded under Plan C were:
(a)Core Supports – budget: $3,180.13;
(b)Capacity Building Supports – budget: $1,341.79 (including $300.54 for improved life choices supports; $750.00 for improved daily living supports; and $291.25 for improved health and wellbeing supports); and
(c)Capital Supports – budget: $153.15 (including $153.15 for assistive technology supports).
[29] AT27, folio 223.
[30] Ibid, folio 225.
[31] Ibid, folio 227.
[32] Ibid, folios 229-231.
No specific transport support was expressly provided or funded. Nevertheless, the plan included the following information:
My Core Supports funding can be used flexibly across the following sub categories:
…
- Transport
For example, helps you to travel to work or other places that will help you achieve the goals in your plan. There may be instances where you do not have flexibility in your transport funding (your NDIS Contact can explain how you can use this funding).[33]
[33] AT27, folio 229.
On 3 April 2019, following a review of Plan C, a delegate of the CEO decided to approve a new participant’s plan (Plan D) for RTRH.[34] This plan commenced on 3 April 2019 and was to be reviewed before 2 October 2019.[35] It contained an SGA[36] and an SPS.[37] The plan was Plan-managed and the reasonable and necessary supports to be funded under Plan D were:
(a)Core Supports – budget: $6,360.26;
(b)Capacity Building Supports – budget: $2,906.43 (including $823.93 for improved life choices supports; $1,500.00 for improved daily living supports; and $582.50 for improved health and wellbeing supports); and
(c)Capital Supports – budget: $153.15 (including $153.15 for assistive technology supports).
[34] AT28, folio 234 and T4.
[35] Ibid, folio 236.
[36] Ibid, folio 238.
[37] Ibid, folios 240-243.
While no express provision for transport support was made, the plan included the following information:
Core Supports
… The Core Supports budget is the most flexible, and in most cases, funding can be used across the support categories (however, this may not include transport).[38]
[38] AT28, folio 240.
On 3 June 2019, RTRH provided a Change of Circumstances form to the Agency[39] and she contacted the Agency seeking review of supports in Plan D.[40] The Agency record of this interaction refers to “NCC Plan Enquiry->S.48 Plan Review EnquiryEmail” and notes “PRR submitted 11.06.19”.[41] In all likelihood ‘PRR’ is a codification for Plan Review Request. An Agency note on 11 July 2019 indicates that the plan review request would be reviewed by the National Reviews Team.[42] It is not clear what, if anything, was done in respect of this request; nor is it clear if Plan D was reviewed under s 48 of the NDIS Act prior to 2 October 2019, being the NDIS review due date.[43]
[39] T7.
[40] AT6, folio 37.
[41] AT6, folio 37.
[42] AT7, folio 38.
[43] AT28 folio 236.
On 3 July 2019, the Agency received an email from RTRH in which she applied for “an Internal Review of Plan Approval decision 3 April 2019”.[44]
[44] AT7A folios 38-51; T18; T20 folios 126 and 127 refer.
On 31 October 2019, RTRH sent an email to the Agency demanding a response to the plan review request made on 3 June 2019 and to the application for internal review she made on 3 July 2019.[45]
[45] T20.
Also, on 31 October 2019, a delegate of the CEO approved a new participant’s plan (Plan E) for RTRH.[46] It is not clear if this was the result of RTRH’s request for review of Plan D on 3 or 11 June 2019 or the scheduled review of Plan D that was to be undertaken according to its terms before 2 October 2019. Nevertheless, it can be accepted that Plan E resulted from a plan review under s 48. At that time, the internal review of the SPS in Plan D RTRH requested on 3 July 2019 had not yet been undertaken.
[46] AT29, folio 245 and T9.
Plan E commenced on 31 October 2019 and was to be reviewed before 30 April 2020.[47] It contained an SGA[48] and an SPS.[49] The plan was Plan-managed and reasonable and necessary supports to be funded under Plan E were:
(a)Core Supports – budget: $6,360.26;
(b)Capacity Building Supports – budget: $2,923.71 (including $841.21 for improved life choices supports; $1,500.00 for improved daily living supports; and $582.50 for improved health and wellbeing supports); and
(c)Capital Supports – budget: $1,888.85 (including $1,888.85 for assistive technology supports).
[47] Ibid, folio 247.
[48] Ibid, folio 249.
[49] Ibid, folios 251-254.
No express provision was made for transport support in Plan E. Information about the limit on using Core Support funding for transport was set out in the same terms as in Plan D.
On 1 November 2019, RTRH forwarded her 31 October 2019 email to the Agency seeking a response.[50] On 7 November 2019, the Agency responded by telephone. The Agency’s records of this conversation, which are quite opaque and difficult to comprehend, include that “RTRH gave her consent to withdraw the review for the plan that began in April 2019 and proceed with the review that began in October 2019”.[51] On 8 November 2019, the Agency sent a notice to RTRH stating –
I refer to our telephone conversation dated 7 November 2019, confirming you wish to withdraw the request for internal review made on 11 June 2019.
We note that your request has been withdrawn in relation to your NDIS plan which commenced on 3 April 2019, however an internal review will proceed in relation to you NDIS plan which commenced on 31 October 2019.
Further to our conversation, I confirm that your internal review request relating to April plan has been withdrawn in accordance to s102 of the NDIS Act 2013.[52]
[50] AT23 folio 133.
[51] AT9 folio 53.
[52] AT10 folio 54.
On 15 November 2019, an officer of the Agency contacted RTRH by telephone. The Agency record of this conversation notes that –
[RTRH] was advised that we would like to reinstate her s100 against plan approved 3/4/19 which we had previously discussed her withdrawing not [sic] that she is seeking back payment of transport allowance. I advised this will provide her with an avenue of appeal to the AAT against plan approved 3/4/19 and 31/10/19. [RTRH] happy for this to occur. I will instigate this new s100 and arrange BSO to send confirmation that this has been reopened.[53]
[53] AT12 folio 58.
Even though Plan E commenced on 31 October 2019, replacing Plan D, curiously and rather cryptically, an officer of the Agency noted on 19 November 2019 that:
I advised [RTRH] that a draft plan is currently built with the exception of a decision around transport and that we will endeavour to get in touch with her again shortly with a draft plan and she can then make a decision on the duration of this latest plan given we are mindful she has undertaken a scheduled review in some time.
…
I advised [RTRH] we would make contact again next week but gave no time frame of completion of the review, but hoped to complete next week all things going well, but explained there are many variables at play beyond my control.[54]
[54] AT12 folio 58.
On 20 November 2019, the Agency notified RTRH that:
… [the Agency] has re-instated your request for an internal review under s. 100 of the NDIS Act, as agreed.
The decision you would like us to review was made on 3 April 2019 and is about the supports that are funded in your plan (a decision made under s 33 of the NDIS Act).[55]
[55] AT13.
On 10, 13 and 16 December 2019, RTRH sent emails to the Agency in which she related the change in her circumstances to worsening financial hardship and medical conditions.[56]
[56] T20, folios 153-158.
On 23 December 2019, an officer of the Agency sent an email to RTRH attaching a draft plan and stating:
As discussed last week, please find a copy of the draft plan for your plan which commenced in October 2019. Please note that it is a draft plan only and it does not reflect the final decision at this stage. We will also take your feedback into account before finalising the review.
If you could provide your feedback within 14 days, we would be appreciative.
The review of your plan which commenced in April 2019 is still in progress as we continue to liaise with internal stakeholders. We will endeavour to complete that review shortly too.[57]
[57] AT14 folio 61.
It is difficult to know what to make of these records and the reference to the draft plan for your plan which commenced in October 2019. Why the Agency would provide RTRH with a draft plan in December 2019 in reference to a plan that came into effect in October 2019 (presumably Plan E) and to a review of a plan that commenced in April 2019 (presumably Plan D) is a mystery that remains opaque.
Nonetheless, on 6, 7, 13 and 14 January 2020, RTRH provided responses to the Agency.[58]
[58] AT15; AT20 folios 159-165.
On 15 January 2020, an Agency officer issued a decision under s 100 of the NDIS Act,[59] in which the officer stated:
[59] T2, folios 18-24.
I am writing to you about your request that the [Agency] review your plan.
I have reviewed your supports and have made a decision under section 100 of the NDIS Act…
…
As a result of the decision, your updated plan is attached and your new review date is set out in the new plan.
If you are not satisfied with the decision, you may apply to the Administrative Appeals Tribunal (AAT) and ask the AAT to review.[60]
[60] Ibid, folio 18.
…
This is an internal review decision about your NDIS plan.
…
On 31 October 2019 a new plan was approved and on 11 November 2019 you lodged a request for internal review.
…
I have reviewed the information available and decided:
1.    Additional core supports to assist you with activities of daily living such as cleaning, laundry, gardening and yard maintenance is reasonable and necessary
2.    Periodical transport allowance to the value of $160 per fortnight plus an additional $150 per month of flexible transport funding is not reasonable and necessary
3.    Funding for a strength/endurance/exercise program is reasonable and necessary
…
This means a new version of your plan has been approved which includes additional funding for the above supports.
A copy of the new plan is attached. Please be aware that the review date has also changed. Please refer to the attached copy of you plan to confirm the date it will be due for review.[61]
…
I have decided that your request to change plan management to self-management is reasonable.[62]
[61] Ibid, folios 19-21.
[62] Ibid, folio 23.
I note that the materials before the Tribunal do not contain a record of a request made by RTRH on 11 November 2019 for internal review in reference to the 31 October 2019 plan as the officer asserts. I have referred to the records of communications relevant to this point. Doing the best with those records, it is probable that 2 review processes were on foot:
(a)internal review of the SPS in Plan D;[63] and
(b)internal review of the SPS approved in Plan E.[64]
[63] AT14 folio 61 refers.
[64] AT10, folio 54 refers.
The records suggest that a further review process involving the review of Plan E and the facilitation of a new plan may also have been on foot.[65] Examination of the records strongly suggests that the plan review process occurred within the internal review process. It appears that the officer who made the internal review decision on 15 January 2020 was also closely involved in the review of Plan E. RTRH addressed emails, comments and responses to the proposed new plan to 2 Agency officers, Stewart[66] and Kristin,[67] the same officer who made the internal review decision on 15 January 2020. Even though the officer, Kristin, refers to RTRH’s request for the Agency to review her plan[68] and to the decision being an internal review decision about your NDIS Plan,[69] I will proceed on the basis that the officer reviewed the SPS approved in Plan E and, in her capacity as a reviewer, made an internal review decision under s 100(6).
[65] AT14 folio 61 and T20 folios 157-164 refer.
[66] See T20, folios 155-164 for example.
[67] See AT14 and AT15A for example.
[68] Ibid, folio 18.
[69] Ibid, folio 20.
A copy of a new plan (Plan F)[70] was attached to the reviewer’s internal review decision.[71]
[70] AT30.
[71] T2, folio 18.
As I have said, it is not clear how this plan came into being, although it is probable that the reviewer was closely involved in review processes from which it resulted. If this is correct, there is a question about the operation of s 100(5A) and (5B) and whether the reviewer was authorised to conduct a plan review as well as the internal review.
There is also a question whether the plan review provisions in s 48 were properly engaged. As will appear, I have concluded that the SPS was the result of the internal review conducted by the reviewer and there is no evidence that it was separately approved by the CEO or by a delegate of the CEO with authority to do so for inclusion in a new plan. As RTRH pithily observed on 17 January 2020 –
The draft plan has simply become the decision, my new 15 January plan.[72]
[72] AT24, folio 171.
Plan F purportedly commenced on 15 January 2020 and was to be reviewed before 15 July 2020.[73] It contained an SGA[74] and an SPS.[75] The plan was Plan-managed and the reasonable and necessary supports to be funded were:
(a)Core Supports – budget: $22,294.45 (including $21,476.30 for plan-managed core supports and $818.15 for transport support to be paid in fortnightly instalments to RTRH);
(b)Capacity Building Supports – budget: $2,923.71 (including $841.21 for improved life choices supports; $1,500.00 for improved daily living supports; and $582.50 for improved health and wellbeing supports); and
(c)Capital Supports – budget: $1,888.85 (including $1,888.85 for assistive technology supports).
[73] AT30, folio 257.
[74] Ibid, folio 259.
[75] Ibid, folios 261-265.
On 17, 18 and 23 January 2020, RTRH sent emails to the Agency in response to the 15 January 2020 decision.[76]
[76] AT24 folios 171-191.
On 4 February 2020, an Agency officer sent another plan (Plan G) to RTRH.[77] There are insufficient Agency records to properly assess the circumstances in which this plan came into existence. Importantly, it is not clear if the CEO or a properly authorised delegate of the CEO approved the SPS it contains,[78] or if this was done by the reviewer who made the internal review decision on 15 January 2020. In any event, I accept that Plan G was made to correct an error, namely the reviewer’s decision that the funding for supports should be self-managed was recorded in Plan F as Plan-managed.
[77] AT31
[78] Ibid, folios 272-275.
Plan G purportedly commenced on 4 February 2020 and was to be reviewed before 4 August 2020.[79] It contained an SGA.[80] The plan was Self-managed. The reasonable and necessary supports to be funded under Plan G were the same as in Plan F.
[79] Ibid, folio 268.
[80] Ibid, folio 270.
On 6 February 2020, RTRH lodged a request for a review of Plan G on grounds of a change in circumstances.[81]
[81] T11, folio 60.
On 12 February 2020, RTRH lodged an application in the Tribunal for review of the 15 January 2020 internal review decision – application 2020/0754.[82]
[82] T1.
On 14 February 2020, a delegate of the CEO informed RTRH that a decision had been made not to review Plan G.[83] I note that this decision is a reviewable decision under s 99(1), but there is no evidence that RTRH sought internal review of it.
[83] T12 folio 61.
On 3 April 2020, an Agency officer issued a decision under s 100 of the NDIS Act. It appears that the officer was responding to the internal review request RTRH made in respect of the 3 April 2019 SPS approval decision:
On 3 April 2019 a new plan was approved and on 11 June 2019 you lodged a request for internal review.
The outcome sought from your internal review was:
1. Back payment of periodic transport allowance to the value of $160.00 per fortnight to reimburse you for the everyday running costs of your vehicle, effective from 15 September 2017.[84]
[84] AT2, folio 15.
RTRH’s request for internal review of the 3 April 2019 decision to approve an SPS appears to have been made on 3 July 2019.[85] There is an Agency record on 11 June 2019 that refers to RTRH requesting a plan review on 3 June 2019.[86]
[85] See AT7 folio 38 and AT7A.
[86] AT6, folio 37.
In any event, the reviewer rejected RTRH’s claim for back payment and stated:
… I have determined that pro rata fortnightly payments of Level 1 Transport Allowance to the value of $1,606.00 per annum would have been reasonable and necessary during the period from 3 April 2019 to 30 October 2019.
…
In relation to your request the Transport Allowance be backdated to 15 September 2017, Transport Allowance for the plan approved 15 September 2017 has already been reviewed and declined through the NDIA’s Internal Review Process…
In relation to plans approved 4 December 2017 and 20 December 2018, you failed to lodge a Review of Reviewable Decision within 3 months of receiving the plan notice that accompanied these plans. Each plan notice outlined your right to request an Internal Review within 3 months of receiving each plan as per section 100 of the NDIS Act 2013. Given your request for back payment was received on 11 June 2019 (outside 3 month timeframe), the NDIA is unable to consider these requests. [87]
[87] AT2 folios 15-16.

On 22 April 2020, RTRH applied to the Tribunal for review of this decision (application 2020/2316)[88] and also for review of the internal review decision made on 5 December 2017 (application 2020/2311).[89]
[88] AT1.
[89] AT3.
On 17 July 2020, the Tribunal (differently constituted) granted RTRH an extension of time in which to apply for review of the 5 December 2017 internal review decision.[90]
[90] RTRH and National Disability Insurance Agency [2020] AATA 2367.
Tribunal review jurisdiction
As can be seen from the procedural history, RTRH made 3 applications to the Tribunal for review of the following internal review decisions:
(a)5 December 2017 in respect of an SPS that was approved on 18 September 2017 (with effect from 15 September 2017) in Plan A – application 2020/2311;
(b)15 January 2020 in respect of an SPS that was approved on 31 October 2019 and had effect from that date under Plan E – application 2020/0754; and
(c)3 April 2020 in respect of an SPS that was approved on 3 April 2019 which had effect from that date under Plan D – application 2020/2316.
The extent of the Tribunal’s jurisdiction in each application is to be determined. There are questions whether the Tribunal has jurisdiction in respect of each SPS approved under Plans A, B, C, D, E, F and G.
In order to address these questions, it is necessary to consider the Agency’s submissions about the scope of the Tribunal’s review jurisdiction.
The Agency accepts that the Tribunal has jurisdiction under s 103 to review an internal review decision made under s 100(6). The Agency submits that, where a new plan comes into effect under s 37(1), the Tribunal has no jurisdiction to review the SPS approved in that plan unless the approval decision has been subject to internal review under s 100. The Agency argues that where an internal review decision is made to vary or to set aside the SPS originally approved by the CEO and substitute another decision, s 37(2) of the NDIS Act applies and a new plan is required to give effect to that decision. In such circumstances, so the argument goes, while the Tribunal has jurisdiction to review the internal review decision, it does not have jurisdiction to review the SPS that is included in the new plan unless the SPS has been reviewed under s 100 and a further application for review has been made to the Tribunal. The Agency asserts that the Tribunal’s jurisdiction is confined to the period during which the CEO’s initial approval of the SPS remains effective under the participant’s plan that gave it force. In support of these propositions, the Agency relies on elements of the Tribunal’s decision in Williamson and National Disability Insurance Agency (Williamson).[91]
[91] [2019] AATA 2944 at [21]-[30].
Furthermore, the Agency argues that, where the original SPS under review is part of a participant’s plan that is no longer in force, the Tribunal cannot extend the effective period of the SPS. For this reason, the Agency maintains that, while the Tribunal may increase the quantum of reasonable and necessary supports that are to be funded by varying or setting aside and substituting the SPS with another, the Tribunal has no jurisdiction or power to determine matters relating to payments or to direct the Agency to reimburse any amount in respect of costs incurred or payments made for supports under a participant’s plan that is no longer current. Support for this proposition is drawn from the Tribunal’s decision in XXWC and National Disability Insurance Agency (XXWC).[92]
[92] [2020] AATA 923 at [121]-[124].
The kernel of these submissions can be accepted, namely that the Tribunal’s jurisdiction is conferred by s 103 of the NDIS Act and is confined to review of a decision made under s 100(6) of that Act. That kernel, however, is clothed in submissions drawn from a particular construction of the legislation at the heart of which lies a very knotty issue relating to the operation of s 37 of the NDIS Act and provisions made for review of decisions that are set out in Part 6 of Chapter 4. It is in this context that the first matter of principle arises.
As I comprehend the Agency’s submissions, these statutory provisions should be construed with the following effect:
(a)Under s 37(1), a participant’s plan (1^st plan) commences when a participant’s SGA is received and the CEO has approved an SPS (1^st SPS) under s 33(2).
(b)Under item 4 in s 99(1), the 1^st SPS is a reviewable decision.
(c)Where a request is made under s 100(2) for review of the 1^st SPS, a reviewer must make a decision as soon as reasonably practicable under s 100(6).
(d)Under s 103, application may be made to the Tribunal for review of the s 100(6) decision.
(e)Where the s 100(6) decision is to vary the contents of the 1^st SPS or to set it aside and substitute a new SPS, in order to comply with the bar imposed by s 37(2) on varying a plan that is in effect, a new plan (2^nd plan) is required to give effect to the varied or substituted SPS (2^nd SPS).
(f)Under s 37(3), the 1st plan ceases when it is replaced by the 2^nd plan.
(g)The 2nd plan contains the 2^nd SPS which is a reviewable decision under item 4 of s 99(1).
(h)A request may be made under s 100(2) for review of the 2^nd SPS in the 2^nd plan, whereupon steps (c) to (g) are engaged again.
(i)The Tribunal’s review jurisdiction is confined to the matters addressed in the s 100(6) decision. Where the 1^st plan containing the 1^st SPS addressed by the reviewer under s 100(6) has been replaced by a new plan, the 2^nd plan containing the 2^nd SPS, the Tribunal has no jurisdiction to review the 2^nd SPS unless it has been subject to review under s 100 and an application for review by the Tribunal has been made under s 103.
(j)Where this has not occurred, the Tribunal may only confirm, vary or substitute supports that should have been funded in the 1^st SPS in the 1^st plan. Should the Tribunal decide that additional supports should have been funded in the 1^st SPS under the 1^st plan, following XXWC, the participant may be able to claim a reimbursement for money spent but this is a matter for the Agency to decide.
There are 4 things to say immediately about these submissions.
Firstly, the construction contended for by the Agency creates an awkward circularity of decision-making which curtails the Tribunal’s jurisdiction. There is a question whether this is authorised by the legislation. The construction proceeds on the assumption that, in order to comply with s 37(2), s 37(1) and (3) are engaged in circumstances where an internal review has been undertaken and a decision has been made by a reviewer under s 100(6)(b) or (c), but the plan review provisions set out in Division 4, Part 2, Chapter 3 of the NDIS Act have not otherwise been applied or followed.
Secondly, when faced with apparent ambiguity in the language of the legislation, while the beneficial nature of the NDIS Act is a relevant consideration, this does not enable an unreasonable or unnatural construction, or the rewriting of a provision.[93] While a beneficial construction of legislation may “legitimately influence constructional choices in a given case which arise from the use of generalised language to describe a necessary connection between two things”,[94] the legislation should be construed in a manner that gives “the most complete remedy which is consistent “with the actual language employed” and to which its words “are fairly open””.[95] The correct approach is to construe the particular provisions in their terms and legislative context[96] in a manner that is consistent with the language and purposes of all the provisions of the NDIS Act.[97]
[93] I W v City of Perth [1997] HCA 30; (1996) 191 CLR 1 at 12 per Brennan CJ and McHugh J, at 58 per Kirby J; Newcastle City Council v GIO General Limited [1997] HCA 53; (1997) 191 CLR 85 at 113 per McHugh J.
[94] Eichmann v Commissioner of Taxation [2020] FCAFC 155 at [40].
[95] Khoury v Government Insurance Office of New South Wales [1984] HCA 55; (1984) 165 CLR 622 at 638 per Mason, Brennan, Deane and Dawson JJ.
[96] Stingel v Clark [2006] HCA 37; (2006) 226 CLR 442 at 454 per Gleeson CJ, Callinan, Heydon and Crennan JJ.
[97] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at 381 (per McHugh, Gummow, Kirby and Hayne JJ); Network Ten Pty Limited v TCN Channel Nine Pty Limited [2004] HCA 14; (2004) 218 CLR 273 at 280-281 (per McHugh A-CJ, Gummow and Hayne JJ).
Thirdly, the Agency correctly refers to the importance of maintaining a steady eye on the nature of the decisions that are before the Tribunal:
It is important to remember that the decisions under review before the Tribunal are not decisions as to the Applicant’s participant plan but rather decisions as to the statement of participant supports that must be included in the Applicant’s participant plan.[98]
[98] Respondent’s Written Submissions on Jurisdiction of the Tribunal, 4 November 2021 at [3].
Even though an approved SPS is instrumental in the coming into effect of a participant’s plan, it is not a “plan”. The word plan is given particular meaning in s 9:
plan, for a participant, means the participant’s plan that is in effect under section 37.
Further explanation is provided in the National Disability Insurance Scheme (Facilitating the Preparation of Participants’ Plans—Australian Capital Territory) Rules 2014, made for the purposes of s 32 and s 32A of the NDIS Act:
1.1 Each participant in the NDIS will have a plan, prepared by and with the participant and approved by the CEO of the Agency. Among other things, a participant’s plan sets out the supports that will be funded for the participant.
Some care is required to ensure that this distinction is not lost when considering the ambit of the Tribunal’s jurisdiction. It is inapt and incorrect to refer to a request for review of an SPS decision as a request for review of an NDIS plan,[99] or to refer to an SDS approval decision, or an internal review of such a decision, as an approval or internal review of a participant’s plan.[100] The importance of the difference between reviews of these kinds was noted by the Tribunal in NNXF v National Disability Insurance Agency (NNXF).[101] Where inapt language is used, it may lead to confusion or error. Furthermore, it may be adopted by participants who do not know better,[102] and this may affect the exercise of clear and separate review rights conferred under s 48 and under s 100 of the NDIS Act.
[99] Ibid, at 15.1, 16.1, 16.2, 16.3, 16.5 and 17, for example.
[100] See AT2, folio 15 and AT29, folio 246, for example.
[101] [2019] AATA 5552 at [46].
[102] See AT7A, folio 39, for example.
Fourthly, the Agency’s submissions are not consistent with and do not address a number of recent decisions of the Tribunal in which very similar issues were traversed without any consequent appeal being made in the Federal Court, see Holland v National Disability Insurance Agency (Holland),[103] and Ewin v NDIA (Ewin)[104] and SSLP v National Disability Insurance Agency (SSLP) [105] for example. One would expect the Agency to adhere to its statutory obligation under s 33(1AA) and (1AB) of the AAT Act to assist the Tribunal to make the correct or preferable decision, and to do so by referring to recent decisions in proceedings to which it was a party that dealt with the same or similar points of contention.
[103] [2021] AATA 92.
[104] [2018] AATA 4726 at [294]-[295].
[105] [2021] AATA 4207 at [25]-[28].
The Tribunal’s review jurisdiction in cases of this kind is conferred under s 103 of the NDIS Act –
Applications may be made to the Administrative Appeals Tribunal for review of a decision made by a reviewer under subsection 100(6).
In order to understand the scope of this provision it is necessary to consider the review provisions set out in Part 6 of Chapter 4 of the NDIS Act. In particular, relevantly -
99 Reviewable decisions and decision‑makers
(1) The following table sets out:
(a) the reviewable decisions under this Act; and
(b) the decision‑maker in respect of each of those decisions.

Reviewable decisions and decision‑makers

Item

Column 1

Reviewable decision

Column 2

Provision under which the reviewable decision is made

Column 3

Decision‑maker

1

…

2

…

3

…

4

a decision to approve the statement of participant supports in a participant’s plan

subsection 33(2)

CEO

5

…

6

a decision not to reassess a participant’s plan

subsection 48(2)

CEO

…

100 Review of reviewable decisions
(1) The decision‑maker of a reviewable decision must give written notice of the reviewable decision to each person directly affected by the reviewable decision.
(1A) The notice must include a statement:
(a) that:
(i) the person may request a review of the reviewable decision in accordance with this section; or
(ii) if the decision‑maker is taken to have made the reviewable decision because of subsection 21(3) or 48(2)—the decision will be reviewed automatically; and
(b) that the person may seek further review under section 103.

Reviewable decisions and decision‑makers
1	…
2	…
3	…
4	a decision to approve the statement of participant supports in a participant’s plan	subsection 33(2)	CEO
5	…
6	a decision not to reassess a participant’s plan	subsection 48(2)	CEO
…

(2) A person who is directly affected by a reviewable decision may request the decision‑maker to review the reviewable decision. If the person is given a notice under subsection (1) the person must make the request within 3 months after receiving the notice.
(3) A request may be made by:
(a) sending or delivering a written request to the decision‑maker; or
(b) making an oral request, in person or by telephone or other means, to the decision‑maker.

(4) If a person makes an oral request in accordance with paragraph (3)(b), the person receiving the oral request must:
(a) make a written record of the details of the request; and
(b) note on the record the day the request is made.

(5) If:
(a) the decision‑maker receives a request for review of a reviewable decision; or
(b) the decision‑maker is taken to have made a reviewable decision because of subsection 21(3) or 48(2);

the decision‑maker must cause the reviewable decision to be reviewed by a person (the reviewer):
(c) to whom the decision‑maker’s powers and functions under this section are delegated; and
(d) who was not involved in making the reviewable decision.

(6) The reviewer must, as soon as reasonably practicable, make a decision:
(a) confirming the reviewable decision; or
(b) varying the reviewable decision; or
(c) setting aside the reviewable decision and substituting a new decision.

(7) A request for review of a reviewable decision, or a requirement to review a reviewable decision that the decision‑maker is taken to have made, does not affect the operation of the decision or prevent the taking of action to implement the decision.
(8) ...

Despite the rather confusing language, the 3-tiered review structure the NDIS Act provides in respect of reviewable decisions can clearly be seen.
First, a ‘reviewable decision’ is made. In a case like this one, involving a dispute over reasonable and necessary supports that are to be funded, the ‘reviewable decision’ is the CEO’s decision to approve an SPS under s 33(2).
Second, an internal review decision is made by a ‘reviewer’ under s 100(6). A reviewer is a person to whom the powers and functions of the person who made the reviewable decision are delegated for the purposes of a review under s 100. Section 99(1) sets out the ‘decision-maker’ for each kind of reviewable decision: the decision-maker of a reviewable decision under s 33(2) is the CEO. Importantly, under s 100(5A) and (5B) the decision-maker, or the delegate of the decision-maker, cannot review the reviewable decision if they were involved in making it. Furthermore, the reviewer must make a decision to confirm, vary or set aside the reviewable decision and substitute a new decision as soon as reasonably practicable. Where a reviewer does not make a decision as soon as reasonably practicable, a decision to confirm the reviewable decision may be deemed to have been made.
Third, an application for review of such a decision must be lodged with the Tribunal for the purposes of s 25 of the AAT Act. It is the actual or deemed decision of the reviewer that is reviewable by the Tribunal.
Once the Tribunal’s jurisdiction is enlivened, the Tribunal must proceed to review the s 100(6) internal review decision, in effect the operative decision, and make a new decision. In so doing, the Tribunal must consider all matters that were capable of being decided by the reviewer and by the person who made the primary decision. For this purpose, under s 43(1) of the AAT Act, the Tribunal is able to exercise all of the powers and discretions conferred upon the reviewer and is subject to the same constraints[106] –
(1) For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:
(a) affirming the decision under review;
(b) varying the decision under review; or
(c) setting aside the decision under review and:
(i) making a decision in substitution for the decision so set aside; or
(ii) remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.
[106] Frugtniet v ASIC [2019] HCA 16, per Keifel CJ, Keane and Nettle JJ at [15]; Bell, Gageler, Gordon and Edelman JJ at [51].
Under s 43(6) of the AAT Act, a decision under s 43(1)(b) or (c) is deemed to be a decision of the person who made the decision under review, with effect from the date that decision had effect or could have had effect.
Thus, when exercising the jurisdiction conferred by s 103 of the NDIS Act, it is the entirety of the CEO’s task for the purposes of s 33(2) that must be done again, de novo,[107] and for this purpose the powers conferred upon a reviewer to confirm, to vary or to set aside and substitute the SPS decision are those of the CEO for the purposes of s 33(2). The Tribunal stands in the shoes of the reviewer and makes a fresh decision on the relevant materials placed before it,[108] answering the same questions that were to be answered by the reviewer and by the person who made the primary decision and being subject to the same constraints.[109] Effectively, where the reviewer has confirmed the original decision, it is the original decision that is the operative decision under review by the Tribunal, and where the reviewer has varied or set aside and substituted the original decision it is the decision as varied or substituted that is before the Tribunal on review. The Tribunal is not limited to consideration of matters at the time of the internal review decision, rather it is obliged to consider the totality of relevant matters from the date the original decision first had (or could have had) effect.
[107] MMBX and National Disability Insurance Agency [2022] AATA 13 at [81].
[108] LWVR and National Disability Insurance Agency [2021] AATA 4822 at [7].
[109] QDKH v National Disability Insurance Agency [2021] FCAFC 189 at [7].
With regard to the Tribunal’s function, the general approach has been to consider this within the continuum of administrative decision making that is authorised under the particular legislation, where one decision may be set aside and substituted with another on review.[110] Subject to the nature and incidents of the decision under review,[111] the claim or the entitlement of the person is to be considered from the date the original decision had effect under the particular legislation to the date of the Tribunal’s decision on review. The ambit of the Tribunal’s review is necessarily influenced by the ambit of the steps and decisions prior to the Tribunal’s review.[112]
[110] Frugtniet v ASIC [2019] HCA 16, per Bell, Gageler, Gordon and Edelman JJ at [53]; Jebb v Repatriation Commission [1988] FCA 105 at [10].
[111] Some kinds of decision require a point in time assessment to be made, whereby the Tribunal’s review must address the relevant circumstances pertaining at the time.
[112] See Shi v Migration Agents Registration Authority [2008] HCA 31, per Kirby J at [45]-[46].

Importantly, the general approach is derived from the statutory function of substituting one administrative decision with another. It is a continuum of this kind that is established under Part 6 of Chapter 4 in the NDIS Act. Under these provisions, an operative decision to approve an SPS under s 33(2) may be varied or set aside and substituted with an internal review decision made under s 100(6), which on further review may be varied or set aside and substituted with a decision of the Tribunal under s 43(1) of the AAT Act.
Following the consent decision delivered by the Full Federal Court in QDKH v National Disability Insurance Agency (QDKH)[113], when dealing with a reviewable decision under s 33(2) of the NDIS Act in this continuum of administrative decision-making, the scope of an internal review under s 100 and a review by the Tribunal pursuant to s 103 and s 25 of the AAT Act, is not limited to particular supports raised previously by a participant. The question to be answered at each level of decision making is the same, and that is framed by s 33(2) of the NDIS Act. Essentially the questions are:
(a)What are the general supports that will be provided to the participant?
(b)What are the reasonable and necessary supports that will be funded in the participant’s Plan under the NDIS?
(c)When should the participant’s Plan be reviewed?
(d)How should the funding of the participant’s Plan be managed?
(e)How should other aspects of the participant’s Plan be managed?
[113] [2021] FCAFC 189.
Just as a reviewer must address these questions when reviewing an approved SPS, so too must the Tribunal when reviewing an SPS internal review decision and, in doing so, it must have regard to the period in which the SPS had or has effect.
A decision to refuse to include a support sought by a participant in an SPS is like any other negative decision in respect of a claimed benefit: it is made at a point in time and, on review, should a decision favourable to the person be made, the person is entitled to recover the cost of the support from the time the support was first capable of being provided or funded under the plan in which the SPS under review was instrumental. There is no express or implied provision in the NDIS Act that requires any different conclusion.
The nature and incidents of a decision to approve an SPS under s 33(2) of the NDIS Act do not, therefore, limit the consideration of a reviewer or the Tribunal to the time when the primary decision was made. The participant’s entitlement to reasonable and necessary supports that will be funded under the NDIS commences on the date the SPS was approved and the plan under which it is to be managed came into effect under s 37(1), and it runs to the present unless, in the particular circumstances of each case, the entitlement is exhausted or it comes to an end on cessation of the relevant participant’s plan under s 37(3). It is with reference to this period, from the first date of effect to the last date of effect (or the present) of the SPS under review, that the Tribunal must determine the reasonable and necessary supports that will be funded and all other relevant matters under s 33(2).
Importantly, for the purposes of s 37(1) and under ss 33(1) and (2) each participant’s plan has two essential components: a statement of goals and aspirations (SGA) prepared by the participant, and an SPS prepared with the participant and approved by the CEO, setting out (among other things) reasonable and necessary supports that will be funded under the NDIS. A plan comes into effect only when the SGA has been given to the CEO and the CEO has approved an SPS. The plan ceases to be in effect only when the requirements of s 37(3) are met.
It is of critical importance, therefore, to determine the date on which a plan and the SPS it contains commenced and ceased to have effect, if at all.
This is to be determined under s 37, which is in the following terms –
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.
(2) A participant’s plan cannot be varied after it comes into effect, but can be replaced under Division 4.
Note: Under Division 4, a participant may request a review of his or her plan at any time and may revise the participant’s statement of goals and aspirations at any time, which results in the replacement of the plan.
(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 under Division 4;
(b) when the participant ceases to be a participant.
The CEO’s power to approve an SPS for the purposes of s 37(1)(b) resides in s 33(2).
As can be seen, a “participant’s plan” cannot be varied after it comes into effect, but it can be replaced under “Division 4”, being Division 4 of Part 2 of Chapter 3 of the NDIS Act.
This Division sets out only 2 mechanisms for replacement of a participant’s plan. There are no other statutory mechanisms under the NDIS Act for replacement of a plan once it has come into effect.
The first mechanism is where a participant changes their SGA under s 47 –
47 Participant may change participant’s statement of goals and aspirations at any time
(1) A participant may give the CEO a changed version of the participant’s statement of goals and aspirations at any time.
Note: The participant may also request a review of his or her plan at any time under subsection 48(1) and the CEO may review a participant’s plan at any time under subsection 48(4).
(2) If a participant gives a changed version of the participant’s statement of goals and aspirations to the CEO, the plan is taken to be replaced by a new plan comprising:
(a) the changed version of the participant’s statement of goals and aspirations; and
(b) the statement of participant supports in the existing plan.
(3) The Agency must provide a copy of the new plan to the participant within 7 days of receiving the changed version of the participant’s statement of goals and aspirations.
The second mechanism involves a review of the participant’s plan under s 48 –
48 Review of participant’s plan
(1) A participant may request that the CEO conduct a review of the participant’s plan at any time.
(2) The CEO must decide whether or not to conduct the review within 14 days after receiving the request. If the CEO does not make a decision within that period, he or she is taken to have decided not to conduct the review.
Note 1: The period may be extended under National Disability Insurance Scheme rules made under section 204.
Note 2: Notice of a decision that the CEO makes, or is taken to have made, must be given because of subsection 100(1), and a decision the CEO is taken to have made will be automatically reviewed because of subsection 100(5).
(3) If the CEO decides to conduct a review under subsection (1), the CEO must commence to facilitate the review within 14 days after so deciding and must complete the review as soon as reasonably practicable.
(4) The CEO may, on the CEO’s initiative, conduct a review of a participant’s plan at any time.
(5) The CEO must conduct a review of a participant’s plan before the plan’s review date and in the circumstances, if any, specified in the plan.
(6) The CEO must conduct a review of a participant’s plan in the circumstances (if any) prescribed by the National Disability Insurance Scheme rules.
Essentially, a review of this kind involves 3 steps. Firstly, the CEO deciding at any time to conduct a review of the participant’s plan. Secondly, facilitating the review, including providing the participant with a reasonable opportunity to provide information requested by the CEO under s 50. And thirdly, deciding the outcome of the review and facilitating the preparation of a new plan with the participant in compliance with s 49:
49 Outcome of review
If the CEO conducts a review of a participant’s plan under section 48, the CEO must facilitate the preparation of a new plan with the participant in accordance with Division 2.
Note 1: If the participant does not wish to change the participant’s statement of goals and aspirations, the statement remains unchanged and forms part of the new plan.
Note 2: Because the new plan is prepared in accordance with Division 2, a decision to approve the statement of participant supports in the plan would be made under subsection 33(2) and be reviewable under subsection 99(1).
It is very clear that a plan review, necessarily, requires the CEO to facilitate the preparation of a new plan with the participant in accordance with the requirements and provisions set out in Division 2, Part 2, Chapter 3 of the NDIS Act.
The NDIS Act does not give any special meaning to the word facilitate and its ordinary meaning may be applied: to make easier or less difficult; help forward; assist the progress of.[114] On this basis, the phrase facilitate the preparation of a new plan with the participant can readily be understood. Nevertheless, the nature and extent of the CEO’s obligation to facilitate with the participant for the purposes of s 49 is not so clear, although the matters about which the CEO must be satisfied under s 32 and s 32A (which set out the CEO’s obligation to facilitate preparation of a plan for a new participant) illuminate what may be required. This includes giving the participant a reasonable opportunity to provide any information sought under s 36 or s 50, and addressing all of the matters specified in s 33, including, in particular, the requirements of s 33(2) and (5), and consequentially s 34 and relevant parts of the Rules.
[114] Macquarie Online Dictionary, MacMillan Publishers Australia, 2022.
Whatever meaning is given to the word facilitate, this cannot transform the procedure for internal review of a s 33(2) SPS approval decision of the CEO under s 100 in Part 6, Chapter 4 into a plan review under s 48 and s 49. The latter has a broader ambit and a different procedure than the former. Review under s 100 involves merits review of a singular decision made at a point in time in the past in which the reviewer has power to confirm or vary the CEO’s decision or to set it aside and substitute a different decision. Provision is made in s 101 for variation of a reviewable decision prior to completion of a review under s 100 (although the circumstances in which this might occur are not clear). Review under s 48 and s 49 involves the preparation of a new plan, prospectively, with the participant which, once it comes into effect, cannot be varied and will continue to have effect, subject only to s 37(3). A review of this kind is clearly distinguished from provisions for review of a reviewable decision under s 100.
Where an SPS approval decision is subject of review under s 100, the reviewer must address afresh the requirements of s 33, s 34 and relevant parts of the Rules in the particular case. Noting that the preparation of an SPS is a collaborative process,[115] the reviewer is required to step into the shoes of the CEO and make the correct or preferable decision about what should be included in the SPS at the time of the CEO’s original decision and at the time of the reviewer’s decision, subject only to the continuing effect of the plan in which the SPS is instrumental. Thus, whether the reviewer decides to vary or to set aside the reviewable decision and substitute a new decision, the reviewer’s decision is taken to be the decision of the original decision-maker, with effect from the date the original decision was made or came into effect. Consequently, the participant is able to recover the costs of supports that were not previously included in the SPS as originally approved.
[115] QDKH v National Disability Insurance Agency [2021] FCAFC 189 at [7].
The substitution of a reviewable decision with a decision made by a reviewer under s 100(6) does not involve the making of a new reviewable decision for the purposes of s 99, rather the reviewable decision is substituted with the decision of the reviewer (or the Tribunal on further review). This does not trigger fresh review rights under s 100(2). It does not involve or amount to the CEO making a new decision under s 33(2), rather it involves a reviewer (or the Tribunal) doing over again the CEO’s original approval decision. By operation of s 100(5), the reviewer’s decision is made using the powers of the decision-maker, namely the CEO. Under s 100(7), the operation of the original decision is not affected. The decision of a reviewer is taken to be, and has effect as, the original decision of the CEO. Consequently, the contents of an approved SPS may be changed on review, but the plan remains in effect unless and until it is replaced in either of the ways provided for in s 37(3), neither of which are triggered by the variation or substitution of an SPS approval decision on review under s 100.
For the purposes of s 37(1), the SPS approved by the CEO under s 33(2) is instrumental in commencement of the plan under which supports are provided or funded. It is for this reason an approved SPS applies during the period in which the plan in which it is instrumental has (or had) effect. Once that plan ceases in one of the 2 ways authorised under s 37(3), the period in which the approved SPS is operative comes to an end. In such circumstances, the effect of a reviewer’s decision, or a decision of the Tribunal, to vary or to set aside and substitute the CEO’s SPS approval decision is confined to the period the plan in which it was instrumental had effect.
This does not change if the CEO’s decision is varied or substituted under s 100(6). It is the CEO’s approval decision that authorises the expenditure of public funding for supports under a participant’s plan.
A reviewer’s decision to vary or substitute a decision of the CEO to approve an SPS under s 33(2) does not require a new plan to give it effect. A reviewer’s decision has effect as or in substitution for the CEO’s decision within the plan in which the CEO’s original decision was instrumental. There is no provision in Division 4, Part 2, Chapter 3 for replacing a participant’s plan in such circumstances. And, under s 37 there is no authority under the NDIS Act for doing so. The bar imposed by s 37(2) on varying a plan once it has come into effect does not authorise the replacement of a plan in any circumstances other than those set out in s 37(3).
Where a replacement plan has come into effect under either of the mechanisms authorised in Division 4, Part 2, Chapter 3, the SPS approved by the CEO in the preparation of the new plan with the participant is a reviewable decision. The Tribunal’s jurisdiction to review a decision of this kind is enlivened only where the decision has been subject to internal review under s 100, and an actual or deemed decision has been made under s 100(6). Without this occurring, the Tribunal has no jurisdiction to review it.
Thus, in circumstances where a purportedly new plan has been issued by the Agency consequent upon and for the purposes of giving effect to a reviewer’s decision under s 100(6)(b) or (c), s 37(3) is not engaged unless it is established that a new plan has been prepared with the participant under s 48 and s 49, or the participant has given the CEO a new SGA under s 47.
If the provisions of Division 4, Part 2, Chapter 3 are not engaged, the best that can be said of a ‘plan’ issued to give effect to a reviewer’s decision is that it is a reiteration or reissuing of the plan that came into effect with the CEO’s original SPS decision. The alternative is that a ‘plan’ of that kind is not a plan as defined in s 9 and, where it is issued without proper statutory authority or in excess of power under the NDIS Act, it is invalid or a nullity.
Whichever view is taken, where s 37(3) is not engaged, the issuing of such a ‘plan’ does not replace the plan that was in effect and it does not cause the previous plan to cease to be in effect. Furthermore, it does not trigger new review rights under s 100(2) as a decision under s 100(6) is not a reviewable decision, and it does not curtail the Tribunal’s jurisdiction should the reviewer’s decision be subject of an application to the Tribunal under s 103.
Tribunal’s jurisdiction in this case
RTRH wants transport support to be paid from 15 September 2017.
In the Agency’s submission, the Tribunal has jurisdiction only in respect of the following:
(a)the 5 December 2017 internal review decision in respect of the period from 15 September 2017 to 4 December 2017 as covered by Plan A;
(b)the 15 January 2020 internal review decision in respect of the period from 31 October 2019 covered by Plan E to either 15 January 2020 when Plan F was issued, 4 February 2020 when Plan G was issued, or to the present; and
(c)the 3 April 2020 internal review decision in respect of the period from 3 April 2019 to 31 October 2019 as covered by Plan D.[116]
[116] Respondent’s Written Submissions on Jurisdiction of the Tribunal, 4 November 2021.
With regard to the 15 January 2020 internal review decision, the Agency asserts that Plan F did not give effect to the internal review decision as the Plan contained an error. In those circumstances, the Agency argues that this meant that it was open for it to remake a new plan that gave effect to the internal review decision,[117] and Plan E (which commenced on 31 October 2019) did not come to an end until 4 February 2020, when Plan G came into effect.
[117] Ibid, Table following [18].
This notwithstanding, the Agency contends that the Tribunal may have power to determine RTRH’s supports to the present, although if Plan G is taken to be an internal review decision under s 100(6), a new application for review would be required.[118]
[118] Ibid, [11]-[12].
As will appear, there are real concerns about the legal effectiveness of Plan B, Plan F and Plan G and whether they lawfully replaced Plan A and Plan E. It is not for the Tribunal to determine if these plans were properly made and valid. Nevertheless, in order to determine the ambit of the Tribunal’s jurisdiction in respect of the 3 applications RTRH has made, doing the best with the available evidence, it is necessary to make findings about the circumstances in which these plans allegedly came into effect and to draw conclusions derived from those findings.
With regard to application 2020/2311, the Tribunal has jurisdiction to review the 5 December 2017 internal review decision and the original SPS that was approved by the CEO on 18 September 2017 with effect from 15 September 2017. The 15 September 2017 SPS was instrumental in Plan A.
Plan B was notified to RTRH by a delegate of the CEO on 5 December 2017. The delegate is not the same person as the reviewer. It is not clear if the delegate who issued the notice also approved the SPS for inclusion in Plan B.
The notice sets out the following information in respect of review:
How to request for your plan approval decision to be reviewed
If you disagree with the decision about your plan approval you can request for the decision to be reviewed within 3 months of receiving this notice.
…
Following the review, if you still disagree with the decision you can seek further review by making an application to the Administrative Appeals Tribunal.[119]
[119] AT26, folio 210. The review information is repeated in the notices issued in respect of Plan A, Plan C, Plan D and Plan E.
Even though the notice refers review of a plan approval decision, the information appears to relate to the review provisions set out in s 100, under which review of an SPS approval decision under s 33(2) may be requested within 3 months and a decision made under s 100(6), whereupon application for further review by the Tribunal may be made under s 103. These provisions do not apply to review of a participant’s plan. This suggests that no plan review was undertaken. As I have said, the mechanism for review of a participant’s plan is set out in Division 4 of Part 2 in Chapter 3 of the NDIS Act, specifically s 48 and s 49, under which a participant may request review of a plan at any time. The notice provides no information about this mechanism for reviewing a participant’s plan.

Applying this meaning in the context of s 7.21(a), the Agency is responsible for supports that make independent transport possible for the participant or that make the person able or give them the power, means or ability to travel independently.
In RTRH’s case, the only possible point of intersection between the facts of her case and s 7.21(a) is that provision of the transport support may make it cheaper for her to travel independently using her own car. To my mind, while there is a real difference between enabling a person to travel independently and reducing the cost of independent travel for a person who is able to travel independently, reducing the cost may make it more possible or easier for RTRH to travel independently, as she asserts.
There is no reason to apply a narrow meaning to the word enable, or to read the section down.
That being so, I am satisfied that the transport support funding RTRH seeks would make it more possible and easier for her to travel independently using her own car.
For this reason, even if a binary construction is not correct, I am satisfied that s 34(1)(f) is met and the question should be answered Yes.
Consequently, I am satisfied that each of the requirements in s 34(1) is met.
Discretion and Part 5 of the Rules
The final consideration involves the discretion under s 33(2) and the applicability of Part 5 of the Rules.
Part 5 of the Rules is in the following terms:
General criteria for supports
5.1     A support will not be provided or funded under the NDIS if:
(a)     it is likely to cause harm to the participant or pose a risk to others; or
(b)     it is not related to the participant’s disability; or
(c)     it duplicates other supports delivered under alternative funding through the NDIS; or
(d)     it relates to day-to-day living costs (for example, rent, groceries and utility fees) that are not attributable to a participant’s disability support needs.
5.2     The day-to-day living costs referred to in paragraph 5.1(d) do not include the following (which may be funded under the NDIS if they relate to reasonable and necessary supports):
(a)     additional living costs that are incurred by a participant solely and directly as a result of their disability support needs;
(b)     costs that are ancillary to another support that is funded or provided under the participant’s plan, and which the participant would not otherwise incur.
Supports that will not be funded or provided
5.3     The following supports will not be provided or funded under the NDIS:
(a)     a support the provision of which would be contrary to:
(i)        a law of the Commonwealth; or
(ii)       a law of a State or Territory in which the support would be provided;
(b)     a support that consists of income replacement.
There is no evidence that RTRH’s use of her private car is a risk to her or to others. Section 5.1(a) does not apply.
Under s 5.1(b), the transport support will not be provided or funded if it is not related to RTRH’s disability. The connection between the support sought and the disability that is conveyed by the words related to is not confined to one that is direct, immediate or causal. On the evidence of Ms Evans and Dr Newbery, I am satisfied that RTRH’s use of her private car may be related to her disability. The connection is established because she faces substantially difficulties using public or community transport services, although she is able to use private transport services such as taxis. It is safer for her to use her private car when she is capable of doing so, as this poses less risk of exacerbating her bilateral hip condition. That being so, I am satisfied that s 5(1)(b) does not apply.
For reasons I have explained, the transport support RTRH seeks in respect of her use of her private car does not duplicate other supports provided delivered under alternative funding through the NDIS. The funding provided for RTRH to use taxis is additional and different to the transport support she is seeking in respect of her use of her private car. For this reason, s 5.1(c) does not apply.
With regard to s 5.1(d), as I have said, I accept that transportation costs are within the ambit of everyday living costs for most Australians. In many regards, RTRH’s use of her private car in the course of her everyday activities, such as travelling to shops, is no different than any other person who uses a private car. The transport support funding RTRH seeks is a day-to-day living cost, but this is not the end of the matter.
It is important to maintain a steady eye on the test to be applied when deciding if the exclusion in s 5.1(d) applies in the particular circumstances. The test is whether the day-to-day living costs are not attributable to the participant’s disability support needs. It is not whether the living cost is one the participant would incur regardless of her disability.[162] The exclusion in s 5.1(d) does not set out a but for test of this kind. It does not invite speculation about the kinds of day-to-day living costs a participant might incur absent disability; nor does it require a comparison between the kinds of day-to-day living costs a participant might incur and those anyone else might incur. The day-to-day living costs are those of the participant. Where these are not attributable to the participant’s disability support needs, they will not be funded under the NDIS. This is a factual matter to be decided on the available evidence. Once the test is satisfied, if the day-to-day living costs are not attributable to the person’s disability support needs, and they are not within the carve out in s 5.2, the exclusion applies.[163]
[162] McLaughlin at [124].
[163] See Blattman at [34], for example.
I note the Agency’s Including Specific Types of Supports in Plans Operational Guideline – Transport (Transport Guideline) includes the following:
A support will not be funded under the NDIS if it relates to day-to-day living costs (rule 5.1(d) of the Supports for Participants Rules).
… Transport is an incidental cost of everyday life for most people and, therefore, can also be considered to be a day-to-day living cost.
However, the NDIS may fund day-to-day living costs that are incurred by a participant solely and directly as a result of their disability support needs (rule 5.2(a) of the Supports for Participants Rules).
…
Transport should only be funded where it has been determined to be reasonable and necessary, where it is an additional cost incurred solely and directly as a result of a participant’s disability support needs and, where ancillary to another funded support, it is a cost the participant would not otherwise incur.[164]
…
A participant will generally be able to access funding through the NDIS for transport assistance if the participant cannot use public transport without substantial difficulty due to their disability.[165]
[164] Exhibit 1, page 506.
[165] Ibid, page 507.
As can be seen, this Guideline does not accurately refer to the test in s 5.1(d) of the Rules insofar as it makes no reference to the threshold test in that section, namely living costs that are not attributable to the participant’s disability support needs. Instead, the Guideline applies a blanket bar to the funding of day-to-day living costs, subject only to the carve out in s 5.2. To this extent, the Guideline exceeds what the legislation expressly provides and, in that regard, for that reason, I will apply the legislation and not the Guideline.
Day-to-day living costs that are attributable to the person’s disability support needs do not enliven the exclusive bar in s 5.1(d). Section 5.2 illuminates this point and narrows the content day-to-day living costs in s 5.1(d) by carving out additional living costs that are incurred solely and directly as a result of the participant’s disability support needs and costs that are ancillary to another funded support that the participant would not otherwise incur. These carve outs are described inclusively and, where it is established that a day-to-day living cost is attributable to a participant’s disability support needs, the exclusionary effect of s 5.1(d) does not apply.
The phrase disability support needs is not given any special meaning in the NDIS Act or the Rules. It can readily be understood to refer to the support a person needs as a result of disability.
It can be accepted that RTRH’s disability support needs include transport support. This includes the use of taxis when she is unable to drive herself because of her disability.
RTRH asserts that using her private car is a disability support need. In her submission use of her private car is directly related to her disability and it is the lowest cost option available to her. There is some force to this assertion. Nevertheless, the generality of the assertion does not address the precise factual circumstances that must be considered. Like any other person who uses a private car in their daily activities, RTRH uses her car by choice within the constraints of her health and her financial capability. The point of difference is that, because of her disability, RTRH has fewer transport options than others. Her choices are confined to her own car, taxis and possibly public or community transport services should such services provide suitably equipped vehicles with sufficient frequency in close proximity to RTRH’s home at some time in the future.
RTRH contends that, absent her disability, she would not maintain and drive a private car. This is no more than a hypothesis raised without evidence; it is unsupported speculation that cannot be accepted as a fact. The hypothesis may be possible, but the independence RTRH’s enjoys through using her private car points to a different possibility: that she would enjoy the independence of using her private car in any event. The extent of RTRH’s disability support needs is a factual matter to be determined on the available evidence. The task involves an assessment of her disability support needs in the actual circumstances at the particular time. It does not extend to hypothetical considerations, such as what her disability support needs might be if she could not drive her own car.
RTRH has used her car during the periods I must consider since 15 September 2017 without the provision of support under the NDIS. The costs RTRH incurs using her car in everyday activities, such as travelling to shops for example, are day-to-day living costs. These are costs that are not solely and directly attributable to her disability support needs. They are costs of living.
That said, RTRH’s disability support needs include obtaining medical and therapeutic treatments from treating doctors, therapists and pharmacies. The costs she incurs travelling for these purposes are solely and directly attributable to her disability support needs. Those costs, which may be difficult to quantify accurately, are not within the terms of s 5.1(d). They are additional day-to-day living costs that are solely and directly attributable to RTRH’s disability support needs.
RTRH’s case was not put on this basis and, perhaps for this reason, the transport support she is seeking is not tailored in this way. Rather, her case is put in respect of all running costs of her private car. Nevertheless, I have carefully examined the available materials and I am compelled to conclude that some of the costs RTRH incurs using her private car are attributable to her disability support needs.
On the information RTRH provided to Horizon Therapy Services,[166] she travelled to obtain treatment from her doctor once each month and from her pharmacist 4 times per month, amounting to a total of 42 kilometres per month. On her calculation, applying a rate of $0.68 per kilometre, this amounts to $28.56 per month. Considering the medical conditions underlying RTRH’s disability, and the symptoms she endures, I have no difficulty accepting that these costs were incurred undertaking journeys for the purposes of attending medical appointments or obtaining treatment that are solely and directly related to her disability support needs. They may be taken to be additional living costs within the terms of s 5.2(a) of the Rules that are, therefore, excluded from day-to-day living costs under s 5.1(d).
[166] Exhibit 1, pages 220-221.
Weighing all of the evidence, and having carefully considered the submissions each party has made, I am reasonably satisfied that RTRH’s use of her private car for the purposes of obtaining treatment and her use of taxis when she is unable to use her car are reasonable and necessary supports that will be funded under the NDIS during the following periods:
(a)from 15 September 2017 to 3 December 2017;
(b)from 3 April 2019 to 30 October 2019; and
(c)from 31 October 2019 to the present.
The quantum of funding for these supports is estimated to be:
(a)$28.56 per month for private car use when obtaining medical treatment; and
(b)$136.36 per month for use of taxis when RTRH is unable to drive herself.
It should be noted that the amount of funding provided for RTRH to use her private car for the purposes of obtaining treatment is in addition to the funding provided for her to use taxis when she is unable to drive herself.
With regard to the 3 levels of transport funding set out in the Agency’s Transport Guideline, the total quantum of transport funding provided to RTRH as result of this decision is within the Level 2 range. I note that Guideline states that There are generally three levels of funding support for transport.[167] The word generally suggests a degree of latitude in application of the levels should this be justified in the particular circumstances of any case. The circumstances of RTRH’s case justify some latitude in applying the threshold specified for Level 2 funding, namely:
the NDIS will provide up to $2,472 per year for participants who are currently working or studying part-time (up to 15 hours per week), participating in day programs and for other social, recreational or leisure activities.
[167] Exhibit 1, page 507.
No disadvantage and other matters
The final matters to be dealt with relate to RTRH’s submissions about disadvantage, the Convention and the Sars-Cov-2 Covid 19 pandemic.
It is RTRH’s submission that she has suffered disadvantage through removal of mobility allowance or transport support funding that was previously provided to her, from which she paid the costs of using her private car. This is submission is made in the broad without supporting evidence.
The principle of no disadvantage is dealt with in s 10.9.1 and s 10.9.2 of the Guidelines.[168]
[168] AT34, folios 323-324.
RTRH has not provided the Tribunal with detailed financial records or other relevant materials in support of her assertion of disadvantage. Without such materials and evidence, there is no proper basis for the Tribunal to make relevant factual findings. The bald assertion of disadvantage following a change, even a reduction, in supports or the level of support funding is not enough. Evidence to establish the facts of the particular disadvantage suffered is required.
On the available materials, RTRH used her private car at all times, before and after the reduction in funding she asserts. The evidence before the Tribunal does not establish that after becoming a participant in the NDIS, RTRH was unable to achieve the same level of social or economic participation, or that she was unable to maintain the ability to undertake the same range of activities, that she achieved previously. It may be accepted that reduction in public funding may have affected her financial circumstances to some degree, but the degree cannot be ascertained without evidence and without evidence it is not possible to determine if disadvantage has been suffered.
Insofar as her submission relates to the removal of transport support funding from one plan to another under the NDIS, any such change is not within the terms of the no disadvantage policy. Decisions of that kind are made under the NDIS Act, whereupon the participant may exercise rights conferred under s 100 (and s 103) to request review of such a decision. In part at least, that is what RTRH has done.
RTRH has made extensive and voluminous submissions in respect of the nature of the NDIS, the provisions of the NDIS Act and the Rules, and the conduct of the Agency, about which she is highly critical. She has also made submissions about the rights of people with disability under the Convention. These submissions are made personally and generally.
I have read, listened to, and carefully considered all the matters that RTRH has raised.
Many of the matters she has raised in these submissions are not best directed to the Tribunal. Some of the criticisms RTRH has made about the complexity of the NDIS and the way in which the Agency administers it may reflect her experience. It will be apparent by now from matters I have dealt with relating to the Tribunal’s jurisdiction, above, that there are some procedural issues arising from the construction the Agency has adopted which add to the complexity of the NDIS and which may cause some confusion and increased difficulties for participants.
Finally, RTRH made submissions about the increased risks of people with disability from the Sars-Cov-2 Covid 19 pandemic, as advised by the Department of Health and the effect this has had, for her, avoiding the increased risk of exposure to infection.
It can be accepted that the risk of infection necessitates avoidant action. So much is abundantly clear from public health orders that have been made by the ACT Government from time to time. It can also be accepted that RTRH may have a greater risk than someone without disability.
These considerations do not, however, compel any different outcome in this case. There is simply no evidence to support the proposition that the pandemic is a factor that compels provision of the transport support funding RTRH seeks for use of her private car during the periods under consideration.
Decisions
Application 2020/0754
The internal review decision of 15 January 2020 under s 100(6) of the NDIS Act, which varied the CEO’s SPS approval decision on 31 October 2019 under s 33(2) in Plan E, is varied in the following terms:
(a)the following additional reasonable and necessary supports are to be funded and included:
(i)the Samsung Galaxy Note 9 Evo (smart phone plus stylus) plus invisible glass that was purchased by RTRH, in the amount of $1,575, as previously agreed by the parties;
(ii)use of RTRH’s private car to obtain medical and therapeutic treatment, in the amount of $28.56 per month;
(b)the date by which the CEO must review the plan is 12 months after the date of this decision (review date);
(c)all other reasonable and necessary supports in the SPS as varied by the internal review decision are to be funded on a pro-rata basis until the review date; and
(d)the internal review decision in respect of management arrangements for the plan is not changed and those arrangements apply until the review date.
Application 2020/2311
The internal review decision of 5 December 2017 under s 100(6) of the NDIS Act, which varied the CEO’s SPS approval decision on 15 September 2017 under s 33(2) in Plan A, is varied in the following terms:
(a)the following additional reasonable and necessary supports are to be funded and included:
(i)use of RTRH’s private car to obtain medical and therapeutic treatment, in the amount of $28.56 per month;
(b)otherwise, the internal review decision is affirmed.
Application 2020/2316
The internal review decision of 3 April 2020 under s 100(6) of the NDIS Act, which varied the CEO’s SPS approval decision on 3 April 2019 under s 33(2) in Plan D, is varied in the following terms:
(a)the following additional reasonable and necessary supports are to be funded and included:
(i)use of RTRH’s private car to obtain medical and therapeutic treatment, in the amount of $28.56 per month;
(b)otherwise, the internal review decision is affirmed.

286. I certify that the preceding 285 (two hundred and eighty-five) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member.

..............[Sgd]..........
Associate
Dated: 9 February 2022
Hearing dates: 20 September 2021
21 September 2021
1 November 2021
4 November 2021

Applicant: RTRH
Counsel for the Respondent: Ms Prue Bindon
Solicitor for the Respondent: Ms Megan Knight

ADMINISTRATIVE APPEALS TRIBUNAL	)
)	No: 2020/0754
NATIONAL DISABILITY INSURANCE SCHEME DIVISION	)

Reviewable decisions and decision‑makers
Item	Column 1 Reviewable decision	Column 2 Provision under which the reviewable decision is made	Column 3 Decision‑maker
1	…
2	…
3	…
4	a decision to approve the statement of participant supports in a participant’s plan	subsection 33(2)	CEO
5	…
6	a decision not to reassess a participant’s plan	subsection 48(2)	CEO
…