STTB and National Disability Insurance Agency (Practice and Procedure)
[2025] ARTA 807
•18 June 2025
STTB and National Disability Insurance Agency (Practice and Procedure) [2025] ARTA 807 (18 June 2025)
Applicant:STTB
Respondent: National Disability Insurance Agency
Tribunal Number: 2024/7670
Tribunal:General Member J Toohey
Place:Brisbane
Date:18 June 2025
Decision:The Tribunal has jurisdiction to consider the decision made on 28 August 2024, being a decision not to conduct a reassessment of the Applicant’s plan.
Statement made on 18 June 2025 at 11:21am
.........[SGD].........
General Member Justin Toohey
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – Practice and Procedure – Jurisdiction – Variation under section 47A – Reassessment under section 48 – Deemed decisions – Limited scope of reviewable decisions made under section 48
Legislation
Administrative Review Tribunal Act 2024 (Cth)National Disability Insurance Scheme Act 2013 (Cth)
Cases
Nairn and National Disability Insurance Agency [2017] AATA 242
Statement of Reasons
SUMMARY
This is a decision about the Tribunal’s jurisdiction. I have decided that Tribunal has jurisdiction to consider the decision made on 28 August 2024, being a decision not to conduct a reassessment of the Applicant’s plan.
However, as discussed below, I do not consider that this means that the Tribunal is able to conduct the reassessment and decide whether the support requested should be include in the Applicant’s statement of participant supports. The Tribunal will be limited to considering whether or not the Agency should conduct a reassessment.
This decision is made under sections 16 and 19 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act). The reasons for this decision are as set out below.
INTRODUCTION
The Applicant’s is a 16-year-old adolescent who is a participant under the National Disability Insurance Scheme Act 2013 (Cth) (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, a delegate of the Chief Executive Office (CEO) of the National disability Insurance Agency (the Agency) notified the Applicant that an internal review had been completed which confirmed a decision not to reassess the Applicant’s plan.
TIMELINE OF KEY EVENTS
The following events are relevant to assessing the Tribunal’s jurisdiction:
(a)on 27 June 2023, the Agency approved a plan for the Applicant for the period 27July 2023 to 27 June 2025;
(b)on 4 April 2024, the Applicant submitted a change of situation form to the Agency requesting funding for a computer. On this form, the Applicant selected that the request was for a ‘plan variation’;
(c)on 1 July 2024, the Applicant submitted a further change of situation form to the Agency requesting additional supports including behaviour management and home modifications. On this form, the Applicant selected ‘not sure’ as to the type of request being made. An email from the Applicant’s behaviour support practitioner, on the same date, indicated that funding was now extremely limited;
(d)on 18 July 2024, the Applicant spoke to a representative of the Agency to remove the request made on 4 April 2024 to fund a computer as this issue had since been resolved. The Applicant confirmed that the request now being made was for the additional supports set out in the 1 July 2024 change of situation form;
(e)on 28 August 2024, the Agency sent the Applicant a decision letter stating that an internal review had been completed which confirmed the decision not to reassess the Applicant’s plan. The letter refers to the request to fund a computer. The letter does not refer to the other requested supports,
(f)on 23 September 2024, the Applicant applied to the Tribunal for a review of the 28 August 2024 decision, and
(g)on 24 December 2024, the Agency approved a new plan for the period 24 December 2024 to 24 June 2025. This plan provided ‘top-up’ funding.
LEGISLATION
Division 4 of the NDIS Act deals which varying and replacing participants’ plans. Broadly, there are three main ways of changing a plan, by:
(a)variation under section 47 or 47A,
(b)reassessment during a plan period under section 48, or
(c)reassessment before the end of a plan period (or when other specified circumstances are met) under section 49 or 49A.
Section 47 is not relevant here as it deals a change to a participant’s statement of goals and aspirations, which has not been requested.
Section 47A states that the Agency may vary a participant’s plan on the request of the participant or on the Agency’s own initiative. Only some variations are permitted under section 47A, and these variations are different for new framework plans and old framework plans. STTB has an old framework plan. The permitted variations for old framework plans are set out in subsection 47A(1A). Subsection 47A(1B)(b) states that the total funding in an old framework plan cannot be varied unless the variation is covered by section 47A(1A)(d) being:
(d) a variation of the statement of participant supports included in the plan, or of the funding of supports under the plan, if:
(i) the CEO is satisfied that the participant requires crisis or emergency funding as a result of a significant change to the participant's support needs; or
(ii) after the participant's plan comes into effect, the CEO receives information in response to a request that had been made under subsection 36(2) or 50(2) in relation to the plan (other than a request made under subsection 50(2) for the purposes of varying the plan on the CEO's own initiative), and the variation relates to that information; or
(iii) the variation is made for the purposes of dealing with a change to the reassessment date of the participant's plan; or
(iv) the variation is a minor variation that results in an increase to the funding of supports under the participant's plan.
Subsection 47A(4) states that the CEO has 21 days to decide whether or not to vary the plan, or inform the participant that more time is required to consider the variation. Subsection 47A(5) further states that, it the CEO does not do one of the above things within 21 days, then the CEO is taken to have decided not to vary the plan. In this way, the CEO is deemed to have made a decision if no action is taken in response to a variation request within 21 days.
This deeming also flows through to a participant’s right to request a review of a decision. Section 99 sets out which decisions are reviewable decisions. A decision to refuse to vary a participant’s plan under both subsections 47A(4)(b) and 47A(5) are reviewable decisions. Subsection 100(6A)(b) states that, following a deemed refusal to vary a plan under subsection 47A(5), the CEO is also deemed to have reviewed the decision not to vary the plan if a further 90 days passes from the initial deemed refusal without an review decision being made. Section 103 then provides that a participant can apply to the Tribunal to review this deemed decision.
A reassessment under section 48 is not limited in scope in the same way as a section 47A variation. Subsection 48(3) allows the CEO 21 days in which to decide whether to vary the participant’s plan under section 47A, conduct a reassessment, or not to conduct a reassessment. Under subsection 48(4), if the CEO takes no action within 21 days, the CEO is taken to have decided not to conduct a reassessment. The CEO is also deemed to have reviewed such a decision in a further 90 days under section 100. This in turn gives a participant review rights at the Tribunal under section 103.
If the CEO decides to conduct a reassessment, the timeframes for completing a reassessment are not specified in the same way as they are for section 47A variation requests. Subsection 48(8) says that a reassessment must be completed within a period prescribed in the rules or otherwise ‘as soon as reasonably practicable’. I am not aware of any timeframe that has been prescribed for completion of a section 48 reassessment.
There is also a difference between section 47A variations request and section 48 reassessment in terms of the specific decisions which are a ‘reviewable decision’ under section 99. For section 47A, both a decision to vary or not to vary a plan are reviewable decisions. For section 48, only the decision not to conduct a reassessment is a reviewable decision. As discussed below, this distinction is important in determining the scope of the Tribunal’s decision-making powers.
A reassessment under section 49 must be completed before the reassessment date in a participant’s plan. It must be started before the period prescribed in the rules, if any. I am not aware of any timeframe that has been prescribed in the rules for the commencement of a section 49 reassessment. The reassessment date in the Applicant’s plan is 24 June 2025.
CONSIDERATION
Applying the legislation to the events outlined above, I have reached the following conclusions:
(a)The Applicant’s request on 4 April 2024 was a variation request under section 47A. This request required a decision within 21 days, being 25 April 2024. As no action was taken, the CEO was deemed to have made a decision not to vary the Applicant’s plan. Following a further 90 days, on 24 July 2024, the Agency was taken to have made a reviewable decision not to vary the plan. To the extent that the letter from the Agency dated 28 August 2024 seems to deal with the content of this variation request, it cannot affect the decision which was already deemed to have been made on 24 July 2024.
(b)The Applicant’s request on 1 July 2024 was capable of being treated as a reassessment request under section 48. This CEO was taken to have made a decision not to conduct a reassessment 21 days later, being 22 July 2024. The internal review which was notified to the Applicant on 28 August 2024 was within 90 days of 22 July 2024. The application to the Tribunal was then made within 28 days of this notice being given.
The Tribunal has jurisdiction to consider the reviewable decision notified to the Applicant on 28 August 2024.
However, 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) an internal review must either confirm, vary or set aside the reviewable decision and substitute a new decision. As the reviewable decision is only with regards to the decision not to conduct a reassessment of a participant's plan, the Tribunal is limited to binary outcomes, being either to confirm that the CEO was correct and a reassessment does not need to be conducted, or to set aside this decision and substitute a decision that the CEO is to conduct a reassessment. Importantly, the Tribunal is not empowered in this situation to proceed with conducting the reassessment and determining which supports should be included in the participant’s plan.[2]
[2] Nairn and National Disability Insurance Agency [2017] AATA 242.
If the Applicant still wishes to proceed to a substantive hearing, the Tribunal will need to schedule this hearing and receive submissions with regards to whether the Agency was correct to not conduct a reassessment, or whether the Agency should now be required to conduct the reassessment.
I note 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.[3]
[3] See section 5(f) for the NDIS Act.
DECISION
The Tribunal has jurisdiction to consider the decision made on 28 August 2024, being a decision not to conduct a reassessment of the Applicant’s plan.
Date of interlocutory hearing: 21 May 2025 Date final submissions received: 11 June 2025 Advocate for the Applicant: Mr A Winning, Advocacy Support Australia Solicitor for the Respondent:
Mr G Guest, Sparke Helmore Lawyers
0
1
0