Santagada and CEO, National Disability Insurance Agency (Practice and procedure)
[2025] ARTA 676
•2 June 2025
Santagada and CEO, National Disability Insurance Agency (Practice and procedure) [2025] ARTA 676 (2 June 2025)
Applicant/s: Mr Mark Santagada
Respondent: CEO, National Disability Insurance Agency
Tribunal Number: 2022/0360
Tribunal:General Member N. Purcell
Place:Sydney
Date:2 June 2025
Decision:The Tribunal, pursuant to section 105 and 108(5) of the Administrative Review Tribunal Act 2024 (Cth) sets aside the decision under review and makes the following decision in substitution:
The Respondent is not responsible for funding or providing the supports contained in the Applicant’s statement of participant supports by reason of section 7(3) of the National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (Miscellaneous Provisions) Transitional Rules 2024 (Cth)1.
The decision comes into operation on 4 October 2025. 2.
....................[SGD]....................................................
General Member N Purcell
CATCHWORDS
PRACTICE AND PROCEDURE – NATIONAL DISABILITY INSURANCE SCHEME – Miscellaneous Provisions Transitional Rules – other statutory compensation schemes – workplace injury – NDIS not responsible for supports – decision under review set aside and substituted.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth) ss 105, 108(5).
Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme Amendment (Getting the NDIS back on Track No. 1) Act 2024 (Cth)
National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) (NDIS Supports) Transitional Rules 2024 (Cth)
National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (Miscellaneous Provisions) Transitional Rules 2024 (Cth)
Workplace, Injury Rehabilitation and Compensation Act 2013 (Vic)
CASES
Beezley v Repatriation Commission [2015] FCAFC 165
Esber v The Commonwealth (1992) 174 CLR 430
Frugtniet v Australian Securities and Investment Commission (2019) 266 CLR 250
QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Burchell and National Disability Insurance Agency [2019] AATA 1256
Young and National Disability Insurance Agency [2014] AATA 401
FTXB; Secretary, Department of Social Services and (Social services second review) [2024] AATA 3021
Pavlakis v National Disability Insurance Agency [2023] AATA 2485
XNTW and National Disability Insurance Scheme [2023] AATA 759
FSWN and National Disability Insurance Agency (NDIS) [2025] ARTA 114VPYC and The CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 3
SECONDARY MATERIALS
Operational Guidelines – Reasonable and Necessary supports, 28 March 2025.
Statement of Reasons
INTRODUCTION
The Applicant, Mr Santagada is a 56-year-old man who was granted access to the National Disability Insurance Scheme (‘the NDIS’ or ‘the scheme’) in February 2019 as a result of impairments arising from an acquired brain injury (ABI). On 8 May 2015, the Applicant had a seizure and suffered a significant fall from a ladder whilst working as an electrician. He received acute treatment in hospital and was then transferred to a brain injury unit for rehabilitation. He lives with his wife and young adult daughter in a suburb of Melbourne.[1]
[1] A1 of JHB, p2.
Since his workplace injury, the Applicant has been unable to work and lives with cognitive fatigue, daily headaches and difficulties with concentration, short-term memory, executive functioning, and emotional dysregulation. He also experiences anxiety and depression.[2]
[2] SD6 of JHB, p277.
Decision under review
On 9 December 2021, a delegate of the Chief Executive Officer (CEO) of the Respondent approved the Applicant’s statement of participant supports (SOPS) for the period 9 December 2021 to 9 December 2022 under section 33(2) of the National Disability Insurance Act 2013 (Cth) (NDIS Act). On 13 December 2021, the Applicant requested an internal review of the decision to approve the SOPS pursuant to section 100(2) of the NDIS Act. On 12 January 2022, a delegate of the CEO confirmed the original decision (reviewable decision) pursuant to section 100(6) of the NDIS Act.[3]
[3] A1 of JHB, p1.
On 14 January 2022, the Applicant applied to the then Administrative Appeals Tribunal (AAT) seeking external review of the reviewable decision under section 103(1) of the NDIS Act. Pursuant to section 42D of the Administrative Appeals Tribunal Act 1975 (Cth), the matter was remitted to the Respondent and the reviewable decision was varied on 7 December 2022, 31 May 2023 and 11 December 2023 and 9 July 2024.[4]
[4] T1 of JHB, p49. See also A1 of JHB, p1.
The AAT was abolished on 13 October 2024 and the Administrative Review Tribunal (ART) began on the 14 October 2024. By virtue of the transitional arrangements, the Applicant’s matter was automatically transferred to the ART.[5] Pursuant to section 85 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act), the application for review is taken to be an application for review of the last of those decisions taken on 9 July 2024 (current plan).
[5] See Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (Cth).
As part of his application for review, the Applicant requested the following additional supports be included in his SOPS:
(a)60 days of Short-Term Accommodation (STA) per year;
(b)2704 (two-thousand, seven hundred and four) hours of house and yard maintenance per year;
(c)416 hours of assistance with personal domestic activities per year;
(d)41 hours of social, civil and community participation per week comprising:
(i)5 hours per day Monday to Friday;
(ii)8 hours per Saturday
(iii)8 hours per Sunday
(e)21 hours of assistance with self-care per week
(f)20 hours of Occupational Therapy (OT) per year
(g)48 hours of dietetics per year
(h)144 hours of remedial massage per year (3 hours per week)
(i)12 hours of osteopathy per year
(j)24 hours of physiotherapy per year
(k)24 hours of neuropsychology per year
(l)Meal preparation and delivery support ($160 per week with 70% reimbursement)
(m)Level 3 transport
(n)$12,000 per year assistive technology and consumables (including a replacement road bike, parts and repairs).[6]
[6] A1 of JHB1, p3-4.
During the case conferencing phase of the proceedings, the Applicant’s disability advocate sent an email to the Respondent’s lawyer on 24 June 2024 advising that the Applicant was receiving supports from WorkSafe Victoria (WSV) in relation to the workplace accident that resulted in his ABI.[7]
[7] SD10 of JHB1, p311.
The Respondent told the Tribunal that it was unaware of the Applicant’s eligibility for supports from WSV prior to receiving the email dated 24 June 2024. The Tribunal observes there were references to ‘work cover’ in a NDIS plan review report dated 26 August 2021 prepared by the Applicant’s support coordinator.[8] As a result of this information, an unforeseen legal issue emerged about whether the NDIS is responsible for the Applicant’s current and requested supports or whether they are most appropriately funded by WSV. This issue is discussed in greater detail below.
[8] See T5 of JHB1, p86.
Role of the Tribunal
In reviewing the decision:
(a)the Tribunal stands in the shoes of the delegate/internal reviewer and must make the correct or preferable decision based upon the evidence and other material before it;[9] and
(b)the scope of the Tribunal’s jurisdiction is determined by reference to the scope of the internal reviewer’s powers under section 100 of the NDIS Act, which is in turn informed by the scope of power under section 33(2) of the NDIS Act.[10]
[9] See Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [37]-[38], [45]-[46] (Kirby J), [99] (Hayne and Heydon JJ), [143] (Kiefel J), Esber v The Commonwealth (1992) 174 CLR 430 at 440; Frugtniet v Australian Securities and Investment Commission (2019) 266 CLR 250 at [51]; QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189.
[10] QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189 at [7].
The relevant provisions under the new Administrative Review Tribunal Act 2024 (Cth) (ART Act) are sections 54 and 105.
The hearing
The hearing was conducted over 2 days by video. The Applicant represented himself. Ms Ruth Hamnett of Counsel represented the Respondent.
The Tribunal admitted into evidence a joint hearing bundle (JHB1) of relevant documents and a supplementary bundle of summons materials from WSV (JHB2). The Respondent filed closing written submissions on 17 April 2025. The Applicant was also directed at the conclusion of the hearing to file closing written submissions on or before 16 May 2025 or to advise that no further submissions would be filed. The Applicant did not comply with this direction. However, on the 21 May 2025, he filed two decisions from WSV dated 25 March 2024 and 4 March 2025[11] along with brief written submissions.
[11] These are admitted and marked E1 and E2.
The Respondent’s primary submissions in its Statement of Facts, Issues and Contentions (SOFIC) dated 3 March 2025[12], was that it could not fund the majority of the Applicant’s supports. The Respondent contended that it does not have legislative responsibility to provide funding for supports flowing from a workplace injury, unless the Applicant has taken reasonable action to claim those supports from WSV. In the alternative, the Respondent submitted that the requested supports are not reasonable and necessary pursuant to section 34(1) of the NDIS Act and/or relevant rules.
[12] A1 of JHB1, at [38].
The implication of the Respondent’s primary submission became clearer at hearing – that it was not responsible for any of the Applicant’s supports, including those contained in his current SOPS, and those for which he had received funding since February 2019. Current supports include:
(a)12 days of STA per year
(b)52 hours of house and yard maintenance per year
(c)5 hours per week of assistance with personal domestic activities
(d)10 hours per week of social, civil and community participation comprising:
(i)2 hours per week at 1:1
(ii)8 hours for group activities
(e)20 hours for therapy assistant level 1 per year.
(f)10 hours per year (Other professional) for assessment, recommendation, or training (for example, OT)
(g)20 hours of physiotherapy per year
(h)20 hours of psychology per year
(i)1 hour of personal training per week
(j)Level 2 transport
(k)$3,675 for assistive technology.[13]
[13] A1 of JHB1, p4.
The Applicant contended that the supports provided by WSV are insufficient compared to the supports he receives through the NDIS, and which he has received for over 6 years. He further contended that the additional supports are reasonable and necessary to address impairments arising from his ABI.
The Applicant gave evidence that he did not approach the NDIS; rather he was approached by an organisation that had sought to sign him up to the scheme. The Applicant was understandably distressed at the prospect of no longer receiving NDIS supports; having received them for 6 years.
At the hearing, the Respondent explained that whilst the scheme has some data sharing arrangements in place with other agencies, it currently does not have a data sharing arrangement with WSV. There was no other evidence before the Tribunal regarding the arrangements the Respondent has in place to periodically review whether NDIS participants may be eligible for and/or receiving supports from another agency or insurer. The Tribunal observes that robust systems for ensuring participants do not deliberately or inadvertently receive supports for which they would otherwise not be entitled have an important role to play in maintaining the integrity and sustainability of the scheme generally.
The Respondent indicated to the Tribunal that it did not seek to interrogate the circumstances surrounding the Applicant’s entry to the scheme and which has led to the current predicament. The Respondent elected to deal with the issue in a forward-looking manner. It did not suggest or press the issue of a debt being raised against the Applicant. Noting that his current plan is approximately $89,000[14], any potential debt would have been significant and financially consequential for the Applicant and his family.
[14] See D4 of JHB1, p4798.
There were two key questions at hearing:
(a)Whether the NDIS has responsibility for supports in relation to the Applicant’s ABI; (threshold question); and
(b)Whether the requested supports, beyond consideration of section 34(1)(f), are reasonable and necessary in accordance with the rest of the cumulative criteria in section 34(1) of the NDIS Act and any relevant rules.
For reasons which will become apparent, the Tribunal did not hear substantive evidence in relation to the Applicant’s current or requested supports.
RELEVANT LAW
The NDIS was established under the NDIS Act. Its objectives are set out in section 3 and its general principles guiding actions taken under the NDIS Act are set out in section 4.
The National Disability Insurance Scheme Amendment (Getting the NDIS back on Track No. 1) Act 2024 (Cth) came into force on 3 October 2024, changing several key provisions. Subitem 129(2) of Schedule 1 of the Amending Act provides that if a SOPS is approved or varied on or after 3 October 2024, the amendments apply irrespective of whether the Applicant’s plan came into effect before, or on or after commencement.
The Amending Act introduced a new section 10 regarding a definition of NDIS support which stipulates that for a support to be a NDIS support, the Minister must be satisfied that the support is appropriately funded or provided through the NDIS.[15] The Amending Act also changed section 34(1) in relation to assessing reasonable and necessary supports. Under the new section 34(1)(f), the support must be an NDIS support for the participant. These changes apply to the Applicant’s SOPS and must be considered by the Tribunal.
[15] See section 10(2).
Subsection 34(1) of the NDIS Act now relevantly states:
(1)For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:
(aa)the support is necessary to address needs of the participant arising from an impairment in relation to which the participant meets the disability requirements (see section 24) or the early intervention requirements (see section 25);
(a)the support will assist the participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations;
(b)the support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation;
(c)the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;
(d)the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
(e)the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;
(f)the support is an NDIS support for the participant.
Note: For the purposes of paragraph (aa):
(a) the time at which the disability requirements or the early intervention requirements need to be met is the time the CEO decides to approve the statement of participant supports; and
(b) a participant’s disability support needs arising from an impairment in relation to which the participant meets the disability requirements or the early intervention requirements may be affected by a variety of factors, including environmental factors or the impact of another impairment in relation to which the participant does not meet either of those requirements.
(2) The National Disability Insurance Scheme rules may prescribe methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding whether or not he or she is satisfied as mentioned in any of paragraphs (1)(aa) to (f).
Prior to the Amending Act, section 34(1)(f) relevantly stated:
(f) the support is most appropriately funded or provided through the National Disability Insurance Scheme, and is not more appropriately funded or provided through other general systems of service delivery offered by a person, agency or body, or systems of service delivery or support services offered:
(i) as part of a universal service obligation; or
(ii) in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
The Amending Act provides for transitional rules until permanent rules have been developed and agreed with all States and Territories. The National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) (Miscellaneous Provisions) Transitional Rules 2024 (Cth) (‘the Miscellaneous Provisions Rules’) apply to this application.[16]
[16] Made under item 138 of Schedule 1 of the Amending Act.
Section 7(3) of the Miscellaneous Provisions Rules reflects the ‘old’ section 34(1)(f) provision prior to the 2024 amendments and relevantly provides:
(2)The matter of which the CEO must be satisfied is that the support is most appropriately funded or provided through the National Disability Insurance Scheme, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:
a.as part of a universal service obligation; or
b.in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
Rules that were prescribed for the purposes of sections 34(1)(f) and 34(2) in force immediately prior to the Amending Act, such as the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (‘the Supports Rules’) continue to apply.
The National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) (NDIS Supports) Transitional Rules 2024 (Cth) (‘the Transitional Supports Rules’) introduce several key changes. Schedule 1 of the Transitional Supports Rules identify supports that are NDIS supports while Schedule 2 stipulates supports that are not considered NDIS supports.
EVIDENCE AND CONTENTIONS
The Applicant’s position
The Applicant told the Tribunal that 2 or 3 years after his injury, his WSV supports started to decline. He indicated he has been through the appeal process at WSV at least two times, participating in a conciliation process most recently in about 2018. The Tribunal requested information from the Applicant as to how long it took him to reach a conciliation meeting or conference, however this information was not provided.
The Applicant told the Tribunal that the supports received through the NDIS are much more flexible. He explained that he is required to pay ‘out-of-pocket’ expenses for many supports funded or provided by WSV because WSV’s contribution doesn’t cover the full cost of the support, for example, the hourly rate of a gardener.
Despite being on notice since about June 2024 regarding the question of whether the NDIS or WSV should fund his requested supports, the Applicant had not sent the list of requested NDIS supports to WSV for consideration. As discussed in more detail below, the Applicant contacted WSV the day before the hearing to ask about several supports.
The decision by WSV dated 25 March 2024 refers to a request from the Applicant for remedial massage on 15 December 2023, which was accompanied by a letter of Dr W Yu. The decision states:
After considering the available information, WorkSafe requires further information to consider the request for Remedial Massage. WorkSafe are unable to fund this treatment as a result, as there is insufficient information to indicate it is reasonable and/or necessary for your compensable injury.[17]
[17] E1.
WSV provided the following reasons for its decision:
WorkSafe’s decision to deny funding for your request for remedial massage has been based on the following information:
On 19 December 2023, WorkSafe received Dr Yu’s referral, dated 15 December 2023. The referral requested remedial massage to treat your back and neck pain.
Upon receipt, WorkSafe reviewed your file and identified that the Medical Panel Opinion (MPO) dated 27 March 2018 considered that any further chiropractor, physiotherapy or massage treatments were no longer appropriate, with your main injury being your acquired brain injury and psychiatric condition. They did not consider that there was any requirement for you to attend these physical treatments based on their assessment.
WorkSafe then attempted to seek further information from Dr Yu and yourself to review if any changes had occurred since the Medical Panel Opinion to support that this treatment was now necessary for your workplace injury.
WorkSafe requested the below further information from Dr Yu on 27 December 2023:
- The specific work-related and functional goals of the treatment
- Reasons as to why the additional treatment is required
- The duration of the treatment and number of services
- What outcome measures will be used to measure the success of the treatment
WorkSafe’s Remedial Massage services policy and guidelines advises provision of remedial massage follows the Clinical Framework for the delivery of health:
The Clinical Framework is based on the following principles:
- Measurable treatment effectiveness must be demonstrated.
- A biopsychosocial approach is essential for the management of pain.
- Treatment must focus on empowering the worker to manage their injury.
- Treatment goals must be functional and focused on return to work.
- Treatment must be based on the best evidence available.
On 3 January 2024 WorkSafe contacted you via phone and email to advise that further information has been requested, and encouraged you to follow up with Dr Yu to assist us in receiving this.
On 7 March 2024 WorkSafe called your Dr Yu’s clinic to enquire if they had received the request for further information. WorkSafe were advised that Dr Yu was on leave and as such the request for more information and was forwarded to Dr Abrahams to complete.
On 15 May 2024, WorkSafe sent another email to Dr Yu, listing follow up questions regarding his remedial massage request.
On 3 June 2024, WorkSafe called Dr Yu’s office and was told that the requests had been received and reception was going to follow up with Dr Yu.
On 21 June 2024, a follow up request report was sent to Dr Yu regarding remedial massage.
On 11 July 2024, WorkSafe called Dr Yu to obtain this information but was informed that he was unsure why you were requesting this treatment.
On 11 July 2024, WorkSafe sent an email requesting you set up an appointment with Dr Yu to discuss the further information, and assist in getting them sent through.
On 9 December 2024, WorkSafe emailed you explaining that while Dr Yu is requesting remedial massage, WorkSafe require the further information in order to fund the treatment.
To date, Dr Yu has not provided any of the requested information.
Therefore, WorkSafe are unable to approve remedial massage because there is insufficient information to indicate that it is a reasonable and/or necessary treatment for your work-related injury or illness.
Should WorkSafe receive the requested information, a further review of this treatment will take place.[18]
[18] E1
The decision provided detailed information about the Applicant’s review rights and options to challenge and/or appeal the decision.[19]
[19] E1.
The decision of WSV dated 4 March 2025 considered a request for a gym/swim membership, made on 12 December 2024. It provided reasons in similar terms to those described above.[20]
[20] E2.
The Applicant confirmed he has a current Traffic Accident Commission of Victoria (TAC) claim following a bicycle accident in 2024 and is receiving physical therapies for injuries associated with that accident.
Respondent’s position
The Respondent’s position is set out in its Statement of Facts, Issues and Contentions (footnotes omitted):
31. The Respondent contends that WSV has the legislative responsibility to fund and provide care and supports services for the participant under the Accident Compensation Act 1985 (ACA), the Accident Compensation (WorkCover Insurance) Act 1993 (ACWI Act) and the Workplace, Injury Rehabilitation and Compensation Act 2013 (WIRC Act). The WIRC Act merges the ACA and the ACWI Act.
32. Section 39(1) of the WIRC Act provides that if a worker is injured in the course of, or arising out of, their employment, they are entitled to compensation under the WIRC.
33. Section 224 of the WIRC Act provides that if a worker is entitled to compensation, the reasonable costs of medical and like expenses can be claimed by the worker. This ensures that an injured worker receives fair and equitable compensation for costs they incur as a result of an injury and aims to assist the worker to achieve a safe and sustainable return to work (see Annexure B).
34. WSV has a Claims Manual and a Schedule of Fees that apply to the making of payments in relation to costs to support an injured worker to return to work.
35. The Respondent contends that the Requested Supports are most appropriately funded by WSV.
36. WSV may pay for the following types supports:
a) Medical treatment includes; doctor, dentist, nursing care, orthosis, consumables, pain management and therapies;
b) Rehabilitative therapies; occupational therapist, optometrist, podiatrist,
psychologist, speech therapist, acupuncture, audiology, dietetics, exercise
physiology, social work, remedial massage, naturopathy, physiotherapy and
chiropractor;
c) Return to work support (including workplace modifications);
d) Home modifications;
e) Vehicle modifications;
f) Attendant care;
g) Community access;
h) Household and personal services (includes help with daily tasks such as
shopping, cooking or banking);
i) Aids and appliances; and
j) Travel for treatment.
37. The evidence suggests that the Applicant’s primary disability of ABI for which he met access to the Scheme is directly connected to the compensable event, that is, his workplace injury in May 2015.
38. The Scheme is designed to complement, not replace, existing compensation arrangements. Accordingly, the Respondent contends that it cannot fund the majority of the Applicant’s supports because it does not have legislative responsibility to provide funding for supports flowing from compensable injuries. The Respondent does not have legislative responsibility to provide funding for supports arising from his workplace injury, unless the Applicant has taken reasonable action to claim or obtain compensation for this injury.[21]
39. On 24 June 2024, the Applicant’s advocate advised via email correspondence that the Applicant actively receives support through WSV for:
a) Fortnightly neuropsychology;
b) 15 minute consultations with chiropractor; and
c) 3 - 4 sessions per year with neurologist.
40. The Respondent was also informed that WSV fund occasional taxi travel to medical appointments.
41. The Respondent is aware that additional supports may be available to the Applicant however he has not provided evidence that he has taken reasonable action to claim or compensation (sic) for his 2015 workplace injury. Therefore, the Respondent does not have the legislative responsibility to provide funding for supports arising from this injury.[22]
[21] The Respondent clarified its position at hearing, indicating it is currently not responsible to fund any of the supports included in the Applicant’s current SOPS or the additional supports requested.
[22] A1 of JHB1, p6-8.
In its written closing submission dated 17 April 2025, the Respondent clarified that it did not press reliance on sections 104 and 105 of the NDIS Act regarding actions required to obtain compensation. The Tribunal understands that the Applicant has received a compensation payout from WSV.
The Respondent relies on section 7(3) of the Miscellaneous Provisions Rules, contending that it operates in such a way that in order for the requested supports (and the current supports more generally) to be reasonable and necessary, the supports must, in addition to satisfying all the criteria under section 34(1), be most appropriately funded or provided through the NDIS, and not more appropriately funded or provided by other general systems of service delivery or support services.[23]
[23] Respondent’s closing written submissions, dated 17 April 2025.
The Respondent further contends that the Applicant’s evidence at hearing on 3 April 2025 confirms he is yet to fully explore his available options with WSV with respect to the requested supports. The Applicant’s evidence at hearing on this point can be summarised as follows: He
(a)had not made a request to WSV for STA other than by phone the day prior to hearing (2 April 2025);
(b)had received house help services from WSV in the past but had not made a recent request;
(c)had not requested supports equivalent to Social, Civil and Community Participation from WSV;
(d)was eligible for and had received chiropractic services from WSV;
(e)had not requested dietician support from WSV;
(f)may have claimed for osteopathy on one occasion;
(g)had requested physiotherapy but was told by WSV that he cannot see 2 physical therapists at the same time;
(h)had not requested meal preparation/delivery from WSV;
(i)receives funding from WSV for fortnightly psychology sessions and regularly sees clinical neuropsychologist Mr Oliver Beadle but Mr Beadle does not invoice for his services;
(j)receives some taxi funding to attend medical appointments;
(k)does not like to ride his bike to medical appointments;
(l)has not requested assistive technology from WSV but was told by phone the day prior to hearing that WSV does not fund road bikes.[24]
[24] See Respondent’s closing written submissions, dated 17 April 2025 at [9]. The Tribunal is satisfied this represents an accurate account of the evidence given by the Applicant.
As is clear from the Applicant’s other evidence above, he also requested remedial massage in December 2023 and a gym/swim membership in December 2024 from WSV.
The Respondent submits that WSV is the most appropriate system to support the Applicant. They rely on summons material which demonstrates that the Applicant has an accepted claim with WSV which has involved Independent Medical Examinations, allied health professional treater notes and reports, claims payment summary, letters detailing the approval and decline of supports since the date of injury on 8 May 2015 until the material was produced on 1 November 2024.[25] In the absence of the Applicant claiming the requested supports through WSV and, if necessary, challenging a WSV decision through the conciliation process, seeking independent review through the Workers’ Compensation Independent Review Service (WCIRS) or an arbitration process and/or appealing to the Magistrates’ or County Court of Victoria, the Respondent contends it is not responsible for providing the Applicant’s current or requested supports.[26]
[25] SD13 of JHB1, p403. See also JHB2.
[26] See Respondent’s closing written submission, dated 17 April 2025 at [10] and SD14 of JHB1, p4611 which refers to challenging decisions of WSV.
The Respondent pointed to the decision of Burchell and National Disability Insurance Agency [2019] AATA 1256, submitting that when considering what is most appropriately funded or provided through the scheme, the Tribunal is not required to evaluate what supports should be provided by other service providers or make a determination that they should provide a service even if they do not.[27]
[27] At [84]-[85].
In Young and National Disability Insurance Agency [2014] AATA 401, the Tribunal similarly stated that whether or not funding is available through other general systems is not the test of whether it is most appropriately funded or provided through the NDIS.[28]
[28] At [41].
The Tribunal accepts the general premise that it is not for the Tribunal to determine what may or may not be funded by WSV. However, it was necessary to consider whether there was any statutory bar or time limit effecting the Applicant’s access to supports from WSV. Were that to be the case, then the availability of certain supports under WSV may have been relevant to deciding this matter. There was no evidence of any time limit preventing the Applicant from requesting further supports from WSV. The recent letter dated 4 March 2025 confirms that WSV continues to respond to the Applicant’s requests.[29]
[29] E2.
The Respondent conceded that supports related to travel and community access might be supports that are either very limited or not available under WSV. Depending on the outcome of a WSV decision and an appropriate challenge to the decision, the Applicant might be able to seek funding for those and/or other supports from the NDIS in the future, particularly if it was the case that certain supports are not available under the WSV statutory scheme. The Respondent would still be required to consider any such request in accordance with section 34(1) of the NDIS Act and relevant rules at the time.
Transitional period
In circumstances where the Tribunal varies or sets aside a reviewable decision, the Tribunal’s decision is taken to have had effect from the time at which the reviewable decision has or had effect, unless the Tribunal orders otherwise under section 108(4) and (5) of the ART Act.
At hearing, the Tribunal sought submissions from the parties on a ‘transitional period’ should it accept the Respondent’s primary submission that the NDIS is not responsible for funding or providing the Applicant’s current or requested supports. On this point, the Respondent drew the Tribunal’s attention to the Senior Member’s comments in Pavlakis v National Disability Insurance Agency [2023] AATA 2485:
The decision of the Tribunal automatically takes effect from the date on which the decision under review has or had effect. This may date as far back as the CEO’s original decision if aspects of the [SOPS] are to be specified for the supports which should have been specified in the original decision, particularly where the participant has already been meeting the cost. However, for forward looking issues, such as management of funds, re-assessment dates and funding for support not yet paid for by the participant, it may be necessary to expressly stipulate that these supports are to be funded from the date of the decision and not earlier. The preferable approach will depend on the facts in each case.[30]
[30] At [38]. The Respondent noted that while these comments were made in respect of the Tribunal’s power in s 43(6) of the Administrative Appeals Tribunal Act 1976 (Cth), s108(4) and (5) of the ART Act are to the same effect.
The Respondent indicated during the hearing that it did not oppose the Tribunal providing a reasonable delay for the decision to take effect under section 108(5), noting that this would allow the Applicant an opportunity to make arrangements for his support needs to be met by other systems outside of the NDIS, particularly WSV.[31]
[31] See Respondent’s closing written submission, dated 17 April 2025 at [13].
The Respondent also made the following written submissions:
16. Although Pavlakis raised the issue in respect of funding of supports, the Respondent notes a similar question may arise about the date on which the Tribunal should decide that supports which were unable to be funded under the NDIS ought to therefore be removed from the plan.
17. The Respondent considers that it is open to the Tribunal to determine in its discretion whether or not removal of supports in the SOPS should be delayed to a date other than the date of the original decision to approve the SOPS (that is, the decision dated 9 December 2021). It may well be that consequences under the Act arise if those supports are removed with effect from a date earlier than the day on which the Tribunal’s decision would come into effect. Whether the Tribunal considers it appropriate to exercise that discretion is ultimately a matter for the Tribunal.
18. The Respondent also encourages the Applicant to utilise the time until the decision is delivered to commence making alternative care arrangements so that if the Tribunal finds that the supports requested are the responsibility of WSV, he is able to make that transition as smooth and efficient as possible. (Tribunal’s emphasis)
The ‘consequences under the Act’ refer to the possible accrual of a debt by the Applicant for NDIS supports received since the date on which his SOPS was approved.
In his written submissions received by the Tribunal on the 21 May 2025, the Applicant said:
Dear All,
Please see attached documents showing Worksafe Victoria rejection for Remedial massage therapy and Gym/Swim as an example.
These are the typical letters l continually received over the last 10 years after my severe traumatic brain injury.
Worksafe Victoria requires a lot of information of which GP’s and medical specialists are not able to provide due to the time and costs involved of which Worksafe will not pay for.
Worksafe Victoria does not provide medical assistance and community support when your conditions get worse as is my case.
Worksafe Victoria does not provide full funding ongoing medical assistance when your injuries deteriorate as is my case.
I have been unable to work for over 10 years now and struggle to live a meaningful life.
I request that my current NDIS plan continues with the current support I have and used over the past 7 years .
Kind regards
Mark Santagada
CONSIDERATION
Threshold question
The Tribunal decided that the threshold question should be considered first at hearing. This is in line with other recent decisions with respect to the Transitional Support Rules. For example, if a support appears in Schedule 2 of the Transitional Supports Rules, then it is not a NDIS support. If the Tribunal can make a conclusive finding on this point, it is unnecessary to consider whether it is reasonable and necessary, more broadly, in the circumstances of the individual applicant’s case.[32]
[32] See FSWN and National Disability Insurance Agency (NDIS) [2025] ARTA 114 at [43-46]; VPYC and The CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 3 at [107]
Similarly, if the Tribunal forms a view that the supports requested are not most appropriately funded by the NDIS by reason of section 7 of the Miscellaneous Transitional Rules, then it unnecessary to consider whether the supports are, or might otherwise be, reasonable and necessary under the other criteria in section 34(1) in relation to the circumstances of the individual applicant.
Following evidence on the first day of hearing, the Tribunal was satisfied that the Applicant had not requested the current or requested NDIS supports from WSV. While the Tribunal accepts that there appears to have been some ad-hoc requests over the years, the Applicant has not made a comprehensive request to WSV since the commencement of these proceedings. Whilst there was evidence of at least 2 decisions by WSV in the past 18 months, there was no evidence of the Applicant challenging a decision or undertaking an appeal process in recent years.
The Tribunal indicated its preliminary view that the evidence supported a conclusion that WSV was responsible for both the Applicant’s current and requested supports, save for any decision by WSV which demonstrated a particular support was outside their legislative responsibility. In addition to the matters outlined above, the Tribunal was conscious that in circumstances where the Applicant had not made a comprehensive request for all supports to WSV, it was undesirable for the Tribunal to make factual findings about whether certain supports are reasonable and necessary or not, as this could prejudice any future application to WSV. For these reasons, the requested supports were not considered further by the Tribunal.
Noting that the key issue before the Tribunal was narrowed to a legal question, the parties were provided an opportunity to file written closing submissions. The Applicant was afforded additional time so that he could obtain further legal advice prior to making any final submissions on the legal question at hand.
Application of Section 7(3) of the Miscellaneous Provisions Rules
In the decision of FTXB; Secretary, Department of Social Services and (Social services second review) [2024] AATA 3021, Tribunal President Justice Kyrou and Senior Members Kennedy and Trotter set out the principles of statutory interpretation as follows (footnotes omitted):
[62] The starting point in construing a statutory provision is its text, considered in the light of its context and purpose. It is necessary to strive to give meaning to every word of the provision.
[63] Context includes the surrounding statutory provisions because the meaning of a statutory provision must be determined by reference to the language of the statute viewed as a whole. It is necessary to construe the provision so that it is consistent with the language and purpose of all the provisions of the statute…
[64] In some circumstances – such as where a statute is part of a wider legislative scheme – context may include reading a statute together with other statutes so that, together, those statutes are construed as a combined statement of the will of the legislature.
Section 7(3) of the Miscellaneous Provisions Rules provide that the requested support must be most appropriately funded or provided through the scheme, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered as part of a universal service obligation or in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
In the Tribunal’s view, the key question arising from section 7(3) refers to whether the supports sought by the Applicant are most appropriately funded or provided through the NDIS and are not more appropriately funded or provided through support services offered by an ‘agency or body’ such as WSV. General systems of service delivery, such as the health and education systems, universal service obligations and reasonable adjustments were not relevant to this application.
The words ‘must be most appropriately funded or provided’ should be given their ordinary meaning. The words ‘through the scheme’ should be given their ordinary meaning within the broader context of the legislative scheme including sections 33 and 34 which govern how funds for reasonable and necessary supports are approved and included in a participant’s SOPS. The words ‘not more appropriately funded or provided through other’ should be given their ordinary meaning; inviting a comparison with another alternative form of support. The relevant alternative form of support identified in this application is ‘support services offered by an agency or body’. As a Victorian statutory scheme providing support, treatment, and compensation for those who experience a work-place injury, WSV falls within a plain reading of the terms ‘agency or body’. The construction of the provision requires the Tribunal to be satisfied that the NDIS is the most appropriate provider of the supports and that there is not another more appropriate provider of the supports.
In addition to a plain reading of the provision, the Explanatory Statement which accompanied the Miscellaneous Provisions Rules states that the Amending Act responds to priority recommendations from the NDIS Review conducted by Professor Bruce Bonyhady AM and Ms Lisa Paul AO PSM handed down in December 2023 and represents the first tranche of amendments to the Act.[33]
It followed agreement by the National Cabinet that the Commonwealth would work with state and territory governments to implement legislative and other changes to return the NDIS to its original intent of supporting people with permanent and significant disability, within a broader ecosystem of supports.[34] (Tribunal’s emphasis).
[33] Explanatory Statement, Issued by the authority of the Minister for the National Disability Insurance Scheme re National Disability Insurance Scheme Act 2013 and National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) (Miscellaneous Provisions) Transitional Rules 2024, registered 1 October 2024.
[34] Ibid, p2.
With respect to section 7 of the Miscellaneous Provisions Rules specifically, the Explanatory Statement says:
The instrument will also impose a requirement that the Chief Executive Officer (CEO) of the National Disability Insurance Agency must specifically consider whether reasonable and necessary supports are appropriately funded by the NDIS under subsection 34(1). This is particularly relevant to supports that may otherwise be provided through statutory compensation schemes.
This requirements exists in paragraph 34(1)(f), which currently provides that to be a reasonable and necessary support the CEO must be satisfied that:
(f) the support is most appropriately funded or provided through the National Disability Insurance Scheme, and is not more appropriately funded or provided through other general systems of service delivery offered by a person, agency or body, or systems of service delivery or support services offered:
(i) as part of a universal service obligation; or
(ii) in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
As noted above the Amending Act repeals and replaces this with a requirement for a support to be an NDIS support.
One of the criteria for prescribing a support as an NDIS support is that it is appropriately funded by the NDIS (or is not appropriately funded by the NDIS, in the case of something that is not an NDIS support).
Further work is required to understand how some supports interact with other supports on the list and the responsibility of the NDIS compared to other service systems. This is primarily a concern for supports that are available through statutory insurance schemes and other similar compensation arrangements. This needs to be carefully worked through to ensure participants are not disadvantaged by any change.
In the interim, the instrument re-imposes the requirement to consider whether a support is appropriately funded or provide by the NDIS in assessing whether it is reasonable and necessary. This will apply only until rules are made that provide how the CEO is to take into account a support that may be funded or provided under a scheme of insurance, or under a Commonwealth, State or Territory law.[35] (Tribunal’s emphasis).
[35] Ibid, p5.
The reference to not disadvantaging participants appears to be concerned with supports that ‘are available’ under other insurance schemes or compensation arrangements and which may no longer be available to NDIS participants by virtue of the changes to sections 10 and 34(1)(f). The introduction of Schedules 1 and 2 of the Transitional Supports Rules list in explicit terms supports that will or will not be considered NDIS supports. The ‘disadvantage’ contemplated in the Explanatory Statement was not relevant to the present application. It was the Applicant’s strong preference to retain supports through the NDIS, and to pursue his original application for additional supports. The Applicant claims that he would be disadvantaged by relying on WSV alone. He submits that his current supports funded by the NDIS are either not available from WSV or provided at a lower-level or rate by WSV.
The current operational guideline with respect to reasonable and necessary supports provides some additional guidance on the issue:
We have to be satisfied that the support is considered an NDIS support which means the support is something that can be funded or provided through the NDIS. Some supports are not considered an NDIS support because they’re more appropriately funded or provided through:
• other service systems or supports offered by a person, agency or body (like a State or Territory Statutory Scheme)
• services or supports offered as part of a universal service obligation (like the health or education system)
• services or supports offered in line with reasonable adjustments required under discrimination laws (like your employer, or the health or education system)
We won’t fund the support if the support should be provided by someone else, even if the other service system doesn’t actually provide it. We don’t make up for other organisations and systems that don’t provide the supports they should.[36] (Tribunal’s emphasis).
[36] Operational Guidelines – Reasonable and Necessary supports, 28 March 2025, p18.
In the decision XNTW and National Disability Insurance Scheme [2023] AATA 759, the Tribunal grappled with the process for determining whether the NDIS or another service delivery system, namely the ACT Education Directorate, was most appropriate to provide or fund a support under the pre-amendment legislative arrangements.
54. In broad terms, even if a support meets the requirements in paragraphs (a) to (d) in section 34, a support can only be included in a Statement if the Tribunal is satisfied that provision through, or funding by, the NDIA, is the most appropriate system for delivering the support.
55. Determining which delivery system is ‘most appropriate’ to deliver a service to a citizen is not normally the province of an executive decision maker dealing with a specific item of expenditure. It clearly involves a value judgment, but it is not easy to discern on what basis the judgment is to be made.
…
60. The Fear[37] decision was concerned with the provision of health appliances to a person with a disability outside of the hospital context. The Tribunal in that case decided that the equipment sought was more appropriately funded through the general health system and the Tribunal was clearly influenced by the need to ensure that the NDIS did not ‘weaken the incentives by government to properly fund mainstream services for people with a disability’.
61. In Burchell and National Disability Insurance Agency[38] the Tribunal took specific issue with the Tribunal’s reliance in Fear on the Productivity Commission report. In Burchell, the Tribunal’s concern was that the Tribunal, by use of the report, was making an impermissible use of extrinsic material in interpreting a statute.
62. I agree with the view expressed in Burchell that the early vision of the Productivity Commission and the principles it applied in thinking about the scheme in the abstract are unlikely to provide much assistance in determining the meaning of particular provisions of the NDIS Act. However, it is important to note that when the Tribunal is determining which service delivery system is the most appropriate, it is making an evaluative judgment on a question given to it by the Parliament to answer, not engaging in an exercise in statutory interpretation. Consequently, to the extent that the report highlights that an issue arises about who is the most appropriate funder or provider of a support and that the risk of inappropriate cost shifting is an issue to be guarded against in determining appropriateness, that can be relevant to the evaluative exercise that the Tribunal is obliged to undertake.
63. The question then is, what other tools are available to the Tribunal to undertake the necessary evaluation. If a decision maker reaches the conclusion that a support meets the requirements of paragraphs 34(1) (a) to (d) and is otherwise satisfied that the support is a reasonable and necessary support, the last remaining question is who should pay for it or provide it. As I have already noted, there is little guidance on how to reach an answer. It is clear from the financing of the NDIS that the scheme is a shared responsibility between the states and the Commonwealth. But it is not intended to be an exclusive all-encompassing response to the needs of its participants. The reference in the objects of the NDIS Act to the National Disability Strategy 2010-2020, which talks extensively about the co-operative approach which needs to be taken between the various levels of government in the provision of services and support to people with a disability, recognises that meeting the needs of persons with a disability is a shared responsibility and that agencies other than the NDIA have a role to perform. The question of who should pay for supports in any particular area is a question which the various levels of government know exists. They have engaged in processes to answer the question by negotiation. The results of those negotiations are reflected both in the Support Rules and the Bilateral Agreement between the Commonwealth of Australia and the Australian Capital Territory on the National Disability Insurance Scheme.[39]
1. [37] See Fear by his mother Vanda Fear and National Disability Insurance Agency [2015] AATA 706 (‘Fear’). In this early NDIS decision, the Tribunal used the Productivity Commission’s 2011 Report ‘Disability Care and Support’ to identify principles which could inform an assessment of which service system was most appropriate for providing a particular support.
[38] [2019] AATA 1256 (‘Burchell’)
[39] [2023] AATA 759.
The decisions referred to above are distinguishable from the present application because the key issue was whether the supports should be provided by an education or health department. The Supports Rules provide direct guidance on the division of responsibility between key public service sectors including health, mental health, justice, education and transport. However, the Tribunal is of the view that the principle of shared responsibility is relevant to this application with respect to the role of other agencies including insurance schemes or compensation arrangements which exist in other States and Territories around the country, as contemplated by section 7(3) of the Miscellaneous Provisions Rules. WSV is clearly one such agency as a Victorian statutory authority set up to provide treatment and support to people who are injured at work, and who may, because of such injury, acquire a long-term or life-long disability.
Further, while it may be the case that different schemes or agencies provide different types, amounts or/or levels of support that could result in actual or perceived inequity between participants of different schemes or compensation arrangements across the country, that is not an issue the Tribunal can appropriately engage with or allow to influence its decision. While the Tribunal acknowledges the desirability of fairness and equity when people access supports or services of the nature provided by the NDIS and WSV, resolution of such matters must be left to the Commonwealth, State and Territory parliaments to address. The transitional nature of the rules suggests there is further work to be done in this space.
As the Tribunal stated in Young with respect to the pre-amendment arrangements:
The fact that the health system does not fund entirely, or even at all, what is essentially clinical treatment, or some other form of support that is more appropriately funded through the health system, does not make it the responsibility of the NDIS. In our view, s 34(1)(f) reflects the statement of the Productivity Commission, which we have referred to above, that the purpose of the NDIS is not to respond to any shortfalls in mainstream services (nor does it purport to impose any obligations on another service system to fund or provide particular supports: cl 7.3 of sch 1).[40]
[40] [2014] AATA 401 at [41].
Finally, the Explanatory Memoranda clearly contemplated the impact of section 7 in the Miscellaneous Provisions Rules:
To the extent that the Instrument may be seen to limit some of the rights mentioned above by re-introducing a consideration of whether a support is appropriately funded or provided by the NDIS, this is a necessary and appropriate limitation. This consideration is consistent with the law as in effect prior to the commencement of the Amending Act, and it will operate only for a transitional period until specific NDIS rules are made… It is also an important consideration to ensure that supports remain available outside the NDIS, including for participants who have a disability resulting from a compensable event or circumstance.[41] (Tribunal’s emphasis).
[41] Ibid, p13-14.
Accordingly, the Tribunal cannot be satisfied that the Applicant’s current and requested supports are not more appropriately funded or provided by WSV pursuant to section 7(3) of the Miscellaneous Provisions Rules. Therefore, such supports are not most appropriately funded by the Respondent. The Respondent is not responsible for continuing to fund the Applicant’s current supports and it is unnecessary for the Tribunal to consider the requested supports further under section 34(1) of the Act.
In practical terms, the Applicant is required to request the supports he seeks from WSV. The Respondent contended that the Applicant would also need to exhaust his appeal options in relation to any relevant decision by WSV declining supports. It is unnecessary for the Tribunal to decide that question, given the Applicant has not made a comprehensive request to WSV or initiated even the first stage of challenging any decision through the conciliation process. His SOPS will effectively remain empty until such time as he has shown to have appropriately challenged any WSV. Depending on the outcome of any challenge and/or appeal, including the identification of a type of support that is outside the legislative responsibility of WSV, the Applicant may again be eligible for reasonable and necessary supports provided or funded by the NDIS.
The Tribunal observes that this decision does not have any impact on the Applicant’s status as a participant of the NDIS. He continues to be a participant eligible to receive general supports under the scheme. Further, if the Applicant was to experience impairments not arising from his workplace injury, he could seek support for those impairments from the NDIS, noting that section 34(1)(aa) requires such impairments satisfy the disability or early intervention requirements.
In circumstances where there is no evidence of any deliberate wrong-doing by the Applicant, the Respondent did not appear to carry out routine processes to cross-check or assess ongoing eligibility and the quantum of the debt would be significant, the Tribunal is satisfied it is appropriate to exercise its discretion under section 108(5) of the ART Act so that the decision comes into effect in the future. This means no debt will be raised against the Applicant.
Whilst the Applicant has been on notice of this issue since approximately June 2024, the Tribunal acknowledges he was not legally represented, and the Respondent’s SOFIC did not adequately foreshadow that his current supports were also in question. The Applicant currently receives a range of supports including core and capacity building supports which have been provided through the NDIS over several years. The Applicant was again put on notice from the 4 April 2025 that a likely outcome of these proceedings would be that the Respondent would cease to fund or provide his current supports. He was also informed of the practical steps he could take while awaiting the final decision of the Tribunal. The Tribunal takes these matters into consideration for the purpose of determining when the decision should take effect.
The Tribunal considers that 6 months from the date the Applicant was put on notice at the hearing is a reasonable time for him to take practical steps necessary to request the supports he is seeking from WSV.
Pursuant to section 108(5) of the ART Act, the Tribunal’s decision will come into operation on 4 October 2025.
DECISION
The Tribunal, pursuant to section 105 and 108(5) of the Administrative Review Tribunal Act 2024 (Cth) sets aside the decision under review and makes the following decision in substitution:
1. The Respondent is not responsible for funding or providing the supports contained in the Applicant’s statement of participant supports by reason of section 7(3) of the National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (Miscellaneous Provisions) Transitional Rules 2024 (Cth)
2. The decision comes into operation on 4 October 2025.
Date(s) of hearing: 3 and 4 April 2025 Applicant: Self-Represented Counsel for the Respondent: Ms Ruth Hamnett Solicitors for the Respondent: Maddocks Lawyers