STTB and National Disability Insurance Agency (NDIS)
[2025] ARTA 1876
•15 September 2025
STTB and National Disability Insurance Agency (NDIS) [2025] ARTA 1876 (15 September 2025)
Applicant:STTB
Respondent: National Disability Insurance Agency
Tribunal Number: 2024/7670
Tribunal:General Member J Toohey
Place:Brisbane
Oral Decision: 15 September 2025
Written Reasons: 19 September 2025
Decision: 1. The decision of the Respondent not to conduct a reassessment of the Applicant’s plan, which was made on 28 August 2024, is set aside.
2. The Respondent is required to conduct a reassessment of the Applicant’s plan as soon as reasonably practicable under section 48 of the National Disability Insurance Scheme Act 2013.
3. The Applicant’s request for the Tribunal to specify a time by which the reassessment must be completed is refused.
Statement made on 19 September 2025 at 12:00pm
.........[SGD].........
General Member Justin Toohey
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – Reassessment of a participant’s plan – Respondent agrees to conduct reassessment – Tribunal may exercise powers of decision-maker – Whether the Tribunal can specify a time in which the reassessment must occur – Reassessment must be completed as soon as practicable – Timing of reassessment is subject to requests for information – Participant service guarantee not prescribed in rules
Legislation
Administrative Appeals Tribunal Act 1975
Administrative Review Tribunal Act 2024National Disability Insurance Scheme Act 2013
National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Act 2022
Cases
QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189
Frugtniet v Australian Securities and Investments Commission [2019] HCA 16
Williamson and National Disability Insurance Agency [2019] AATA 2944
NNXF and National Disability Insurance Agency [2019] AATA 5552Secondary material
National Disability Insurance Agency, Participant Service Guarantee
Commonwealth Ombudsman: Own Motion Investigation Statement ‘The NDIA’s communication with participants about PSG timeframes for access and planning’February 2023
Statement of Reasons
SUMMARY
This is a decision about conducting a reassessment of the Applicant’s plan under section 48 of the National Disability Insurance Scheme Act 2013 (NDIS Act). The decision under review is a decision that was made on 28 August 2024 by a delegate of the Chief Executive Officer (CEO) of the National Disability Insurance Agency (the Agency). In this decision, the Agency notified the Applicant that an internal review had been completed which confirmed a decision not to reassess the Applicant’s plan.
During this proceeding, the Agency agreed to conduct a reassessment of the Applicant’s plan. The parties were unable to agree on a timeframe in which the reassessment should be completed. The Applicant requested that the Tribunal order that the Agency conduct the reassessment within 21 days. The Agency submitted that such an order could not be made.
The Tribunal conducted a hearing on 15 September 2025 with the parties participating by audio. The Tribunal set aside the decision of the Agency not to conduct a reassessment. The Tribunal confirmed that the Agency is required to conduct a reassessment of the Applicant’s plan under section 48 of the NDIS Act as soon as reasonably practicable. The Applicant’s request for the Tribunal to specify a time by which the reassessment must be completed was refused. Oral reasons for the Tribunal’s decision were provided at the conclusion of the hearing. These written reasons are provided as required by section 111 of the Administrative Review Tribunal Act 2024 (ART Act). This decision is made under section 105 of the ART Act.
BACKGROUND
The Applicant is a 16-year-old male who is a participant under the NDIS Act. The Applicant has impairments from several neurodevelopmental diagnoses including attention deficit hyperactivity disorder (ADHD), autism spectrum disorder (ASD level 2), learning disorders in the areas of reading, mathematics and written expression, a non-verbal learning disorder, as well as oppositional defiant disorder (ODD), anxiety, post-traumatic stress disorder (PTSD), and obsessive-compulsive disorder (OCD).[1]
[1] Neuropsychology assessment report dated 8 December 2023.
Between April and July 2024, the Applicant requested a variation and reassessment of the Applicant’s plan. On 28 August 2024, the Agency notified the Applicant that an internal review had been completed which confirmed a decision not to reassess the Applicant’s plan. The Applicant lodged an appeal with the Tribunal on 23 September 2024.
This matter was referred to me to consider the scope of the Tribunal’s jurisdiction in April 2025. On 18 June 2025, I decided that the Tribunal had jurisdiction to consider the decision made on 28 August 2024, being a decision not to conduct a reassessment of the Applicant’s plan. In this decision, I also confirmed that the Tribunal was limited to considering whether or not the Agency should conduct a reassessment. I confirmed that the Tribunal was not able to conduct the reassessment and decide whether the supports requested should be included in the Applicant’s statement of participant supports. I also observed that:
… a reassessment under section 49 is again due for the Applicant. It remains open to the parties to agree for this reassessment to proceed. The Tribunal has been advised that the Agency has been offered to conduct that a reassessment. The Applicant’s advocate has indicated that the Applicant is not agreeable to a reassessment unless this can be conducted within a specific timeframe.
Given the limited scope of the Tribunal’s jurisdiction in this matter, it is not clear to me that the Tribunal has the authority to set a timeframe within which a reassessment must occur. Ultimately, this is a question that is properly considered by the member at the substantive hearing. I would encourage both parties to consider whether proceeding to a substantive hearing is in the best interests of the Applicant in these circumstances.[2]
[2] See section 5(f) for the NDIS Act.
The parties were not able to agree on a timeframe for conducting the reassessment and the matter was listed for a final hearing before me. On 8 August 2025, I made an order under section 53 of the ART Act to limit the scope of the issues to be determined in this review to:
Whether the CEO must conduct a reassessment of the applicant’s plan under section 48 of the National Disability Insurance Scheme Act 2013; and
Whether the Tribunal can specify a timeframe in which a reassessment is required to be completed; and
If so, whether a timeframe should be specified, and what timeframe would be appropriate to specify.
Prior to the hearing, both parties provided written submissions. The Applicant also provided witness statements from STTB, his mother, and his behaviour support practitioner. These witness statements were accepted into evidence along with the ‘T-documents,’ being all the documents required to be provided by the Agency under section 23 of the ART Act. The parties and Tribunal agreed to proceed without requiring oral evidence from the witnesses. At the hearing, the Applicant was represented by his advocate Mr Winning and the Agency was represented by Mr Guest of Sparke Helmore Lawyers.
CONSIDERATION
In summary, the Agency submits that:
·The Tribunal’s jurisdiction is limited to those matters conferred on it by statute.
·The Tribunal is not ‘at-large’ to consider any application made to it in respect of the Agency’s decision-making.
·Under section 48(3) of the NDIS Act there are limited options open to the decision-maker, and the Tribunal on review.
·Section 48 of the NDIS Act does not specify a timeline and requires the reassessment to be conducted ‘as soon as reasonably practicable’.
·This timeframe recognises the flexibility required when exercising the powers under section 50 of the NDIS Act to request information or reports as part of the reassessment process.
In support of these propositions, the Agency relies on the decisions in QDKH,[3] Frugtniet,[4] and Williamson.[5]
[3] QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189.
[4] Frugtniet v Australian Securities and Investments Commission [2019] HCA 16.
[5] Williamson and National Disability Insurance Agency [2019] AATA 2944.
In summary, the Applicant submits that:
·The Tribunal ‘stands in the shoes’ of decision-maker and can exercise all the powers of the NDIA CEO.
·The Tribunal has jurisdiction to impose a timeframe under section 103 of the NDIS Act and section 43 of the ART Act.
·Making the correct and preferable decision requires not only determining that reassessment must occur but also ensuring that it is done in an effective way.
·The power to impose a timeframe is a necessary incident of the Tribunal’s merits review role.
·The phrase ‘as soon as reasonably practicable’ must be construed in the light of STTB’s best interests and the evidence of serious and ongoing harm from delay.
·In the circumstances, reassessment must be completed within 21 days to give effect to the statutory objects and Australia’s human rights obligations.
In support of these propositions, the Applicant also refers to the decisions in QDKH and Frugtniet, the witness statements, and the object and principles of the NDIS Act, including:
·To give effect to Australia's obligations under the Convention on the Rights of Persons with Disabilities.[6]
·Supporting the independence and social and economic participation of people with disability.[7]
·That the best interests of the child are paramount.[8]
[6] NDIS Act, section 3(1)(a).
[7] NDIS Act, section 3(1)(c).
[8] NDIS Act, section 5(f).
On balance, I consider that the submissions of the Agency are correct. The scope of the Tribunal’s decision-making authority is limited to the scope of the decision being reviewed. The Tribunal has the same powers as an internal reviewer. Under section 100(6) of the NDIS Act a reviewer must either confirm, vary, or set aside the reviewable decision and substitute a new decision. In this matter, the reviewable decision is whether or not to conduct a reassessment of the participant plan. Section 54 of the ART Act states:
Tribunal can exercise powers of decision - maker
For the purposes of reviewing a reviewable decision, the Tribunal may exercise all the powers and discretions that are conferred on the decision - maker by an Act or an instrument made under an Act.
Section 54 enables the Tribunal to exercise all of the powers and discretions of the decision-maker. Section 54 also limits these powers to those that are conferred on the decision-maker by an Act, in this case the NDIS Act. The Tribunal is required to consider the specific powers and discretions contained in sections 48 and related provisions of the NDIS Act.
Section 48(8) of the NDIS Act says that a reassessment must be completed within a period prescribed in the rules or otherwise ‘as soon as reasonably practicable’. No period has been prescribed in rules for the completion of a section 48 reassessment. Section 48(8)(b) further states that the reassessment must be completed:
if there are no such rules - as soon as reasonably practicable, including what is reasonably practicable having regard to section 50 (information and reports).
The timeframe ‘as soon as reasonably practicable’ in section 48 is subject to whether further information or reports are requested under section 50 of the NDIS Act.
I do not consider that it is incidental to the powers or directions in section 48 to set a specific timeframe. In conducting a reassessment, a decision-maker will need to consider whether further information is required.
A reviewer of a decision of whether or not to conduct a reassessment, including the Tribunal, cannot set a time limit on the delegate conducting the reassessment. This would restrict the delegate’s ability to properly exercise their powers and discretions in conducting the reassessment, including by requesting further information or reports.
In reaching this conclusion I have also considered the Agency’s published Participant Service Guarantee (PSG) which states that:
The Participant Service Guarantee sets clear timeframes for key NDIS processes.
The NDIA must make decisions about access, plan approvals, plan reviews and nominee changes within these timeframes. This gives participants, families and carers greater certainty about how long processes will take.[9]
[9] Accessed at >
The PSG commits the Agency to completing a plan reassessment that has been agreed to within 28 days, and the Agency reports that this timeframe was met in 81% of reassessments in the June 2025 quarter. Presently, the PSG is a policy statement and, as mentioned above, the timeframes have not been prescribed in rules. As such, the PSG does not enable the Tribunal to require a reassessment to be completed within 28 days.
I would expect the Agency to use their best endeavours to either complete a section 48 reassessment of STTB’s plan within 28 days or advise that further information and reports are requested under section 50 of the NDIS Act. This is especially so when there are risks that have been identified to the wellbeing of a child. If the Applicant is not satisfied that the reassessment is being conducted in accordance with the PSG, he may consider raising a complaint with the Commonwealth Ombudsman who has been given responsibility for monitoring the Agency’s implementation of the PSG.[10]
[10] Commonwealth Ombudsman: Own Motion Investigation Statement The NDIA’s communication with participants about PSG timeframes for access and planning February 2023.
It is not clear to me why the Agency was not able to provide an undertaking to take such steps within the PSG timeframes. However, it is also not clear to me that the Applicant would have agreed to resolve the matter based on such an undertaking. While it may have been open to the parties to resolve the matter on this basis, it is not within the Tribunal’s power to compel the Agency in the terms of the order requested by the Applicant.
It is also less clear to me that the Tribunal can make a determination that a reassessment is taken to not have been made under section 16 of the ART Act. The decision in NNXF[11] was made under the equivalent section 25(5) of the Administrative Appeals Tribunal Act 1975. The principles set out in NNXF would still seem to apply to section 16 of the ART Act. However, NNXF was also decided prior to the amendments made by the National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Act 2022. The Tribunal would need to carefully consider whether these amendments affect the conclusion reached in NNXF.
As the Agency has agreed to complete a reassessment and being satisfied that it is appropriate for a reassessment to be conducted, I will set aside the Agency’s decision not to conduct a reassessment and order that the Agency proceed with conducting the reassessment as soon as reasonably practicable. If the Applicant is not satisfied with the outcome of the reassessment, he may request a further review under sections 100 and 103 in the NDIS Act.
DECISION
(a)The decision of the Respondent not to conduct a reassessment of the Applicant’s plan, which was made on 28 August 2024, is set aside.
(b)The Respondent is required to conduct a reassessment of the Applicant’s plan as soon as reasonably practicable under section 48 of the National Disability Insurance Scheme Act 2013.
(c)The Applicant’s request for the Tribunal to specify a time by which the reassessment must be completed is refused.
Date of hearing: 15 September 2025 Date of oral decision: 15 September 2025 Date of written reasons: 19 September 2025 Advocate for the Applicant: Mr A Winning, Advocacy Support Australia Solicitor for the Respondent:
Mr G Guest, Sparke Helmore Lawyers
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