Thomson and National Disability Insurance Agency (NDIS)

[2025] ARTA 1950

Thomson and National Disability Insurance Agency (NDIS) [2025] ARTA 1950 (1 October 2025)

Applicant/s:  David Thomson

Respondent:  National Disability Insurance Agency

Tribunal Number:                2024/0710       

Tribunal:General Member Robertson

Place:Perth

Date:1 October 2025

Decision:1. The hearing listed for 11 November 2025 be and is hereby vacated.

2. Pursuant to s 85 of the Administrative Review Tribunal Act 2024 (Cth), the Tribunal remits the decision under review, being the decision of the delegate of the Chief Executive Officer of the respondent dated 18 September 2023 and as affirmed on internal review on 18 January 2024, for reconsideration within 28 days.

........................................................................

Statement made on 01 October 2025 at 11:27am

CATCHWORDS

NATIONAL DISABILITY INSURANCE SCHEME – practice and procedure – request for access – where respondent concedes the applicant meets the access criteria – where the respondent seeks remittal of the review application for reconsideration – where applicant opposes remittal – where parties agree that the applicant meets the access criteria but disagree as to why – whether the Tribunal should conduct a hearing to determine dispute as to why the applicant meets the access criteria – reviewable decision remitted pursuant to s 85 of the Administrative Review Tribunal Act 2024 (Cth) to permit applicant to become a participant

LEGISLATION

Administrative Review Tribunal 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)

CASES

Browne v Commissioner of Taxation [2013] AATA 866

Commissioner of Taxation v Cancer and Bowel Research Association (2013) 305 ALR 534; [2013] FCAFC 140

Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409

N1112/00A v Minister for Immigration and Multicultural Affairs [2000] FCA 1597

Negi and National Disability Insurance Agency [2022] AATA 1423

Pelovski and National Disability Insurance Agency [2022] AATA 3380

Statement of Reasons

INTRODUCTION

1. On 26 September 2025, I heard an application by the respondent for an order remitting the decision under review for reconsideration pursuant to s 85 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act). The applicant was represented by his father, Dr A Thomson. The respondent was represented by Mr T J Noonan of counsel. Both Dr Tomson and Mr Noonan made clear, concise, and helpful submissions. I thank them both for their submissions. I indicated to them that I would take some time to consider their submissions and provide a written decision together with my reasons.

2. In short, in relation to this review application, both the applicant and the respondent agree that the applicant meets the access criteria to become a participant in the National Disability Insurance Scheme (NDIS). They disagree, however, on the statutory basis for that access.

3. The respondent, having conceded that the applicant satisfies the early intervention requirements, asks the Tribunal to remit the matter for reconsideration so that a decision in relation to the applicant’s Statement of Participant Supports (SoPS) can be made.

4. The applicant resists this, contending the Tribunal ought to continue to hear the review application to also decide whether he meets the disability requirements.

5. The issue for determination is whether the Tribunal should exercise its discretion under s 85 of the ART Act to remit the decision under review in light of the respondent’s concession, or whether the review should continue to a final hearing.

6. For the following reasons, I have determined that the appropriate course is to remit the review application for reconsideration pursuant to s 85 of the ART Act.

   BACKGROUND

7. The substantive review application before the Tribunal is an application for review of a decision made by a delegate of the respondent on 11 September 2023, and affirmed on internal review on 18 January 2024, that the applicant did not meet the access criteria under the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act).

8. Following the filing of further evidence in accordance with directions that were made on 18 June 2025, the respondent now accepts that the applicant satisfies the early intervention requirements under s 25 of the NDIS Act and, therefore, meets the access criteria.

9. On 19 September 2025, the respondent sought an order under s 85 of the ART Act to give effect to that concession. The applicant, through his representative, maintains that he also meets the disability requirements under s 24 of the NDIS Act and submits the Tribunal should proceed to a hearing to determine that question.

10. The respondent argues that continuing the review to determine whether the applicant meets the disability requirements under s 24 of the Act would lack utility and serve no useful purpose. The respondent argues the only relief the applicant can obtain is a decision that he meets the access criteria, which it says is now concluded and is no longer in dispute. The respondent therefore seeks to have the matter remitted to it, pursuant to section 85 of the ART Act, so that it may make a decision in the applicant's favour in relation to whether he is granted access to the NDIS and, thereafter, make a decision in relation to the applicant’s SoPS.

    RELEVANT LAW

11. The power to remit decisions to decision-makers for further consideration is contained in s 85 of the ART Act. That section is in similar terms to its predecessor, s 42D of the Administrative Appeals Tribunal Act 1975 (Cth).

12. The power to remit the decision to the decision-maker for reconsideration can be exercised ‘at any time during a proceeding for review of a reviewable decision’.[1] Once remitted, the decision-maker must reconsider the decision and either:

    (a)affirm the decision;

    (b)vary the decision; or

    (c)set aside the decision and make a new decision in substitution for the decision set aside.[2]

    [1] Administrative Review Tribunal Act 2024 (Cth), s 85(1).

    [2] Administrative Review Tribunal Act 2024 (Cth), s 85(2).

13. After the decision has been reconsidered and affirmed, varied, or set aside with a new decision substituted, the proceeding in the Tribunal ‘resumes’ in relation to the new decision.[3] At that stage, an applicant may either proceed with the application or withdraw the application.[4]

    [3] Administrative Review Tribunal Act 2024 (Cth), s 85(3) read with s 85(5)-(6).

    [4] Administrative Review Tribunal Act 2024 (Cth), s 85(4).

14. The power to remit a reviewable decision for reconsideration is discretionary.[5] The discretion is unfettered and falls to be exercised according to the circumstances of the particular case, having regard to any considerations thought by the Tribunal to be relevant, and confined only by the subject matter and object of the section to permit the Tribunal to achieve its statutory objectives.[6]

    [5] Browne v Commissioner of Taxation [2013] AATA 866 [22].

    [6] Browne v Commissioner of Taxation [2013] AATA 866 [22].

15. The Tribunal may remit a matter under s 85 even where one or more of the parties do not agree to the remittal taking place.[7]

    [7] N1112/00A v Minister for Immigration and Multicultural Affairs [2000] FCA 1597 [17] (Emmett J); Pelovski and National Disability Insurance Agency [2022] AATA 3380 [21].

16. When remitting a decision for reconsideration, the Tribunal cannot direct the decision-maker with any direction as to how, or what, decision ought to be made.[8]

    [8] Commissioner of Taxation v Cancer and Bowel Research Association (2013) 305 ALR 534; [2013] FCAFC 140 [15]; Negi and National Disability Insurance Agency [2022] AATA 1423 [24].

    THE APPLICANT’S SUBMISSIONS

17. The applicant opposes a remittal under s 85 of the ART Act and submits that the review should proceed to a final hearing. Essentially, the applicant submits that a conclusion that the applicant meets the access criteria because he satisfies the early intervention requirements contained in s 25 of the NDIS Act does not resolve the substantive dispute between the parties. The applicant submits that he also meets the disability requirements in s 24 of the NDIS Act and that in order to reach the correct and preferrable decision, the Tribunal is required to determine this question.

18. The applicant submits that this has consistently been his position since the respondent foreshadowed the concession that has now been made. The applicant rejects the respondent’s submission that there is no utility in the review proceeding and submits that there are ‘material legal and practical consequences’ for the applicant reflected in the respondent’s ‘published guidance’ on ‘participant pathways’.[9]

    [9] See applicant’s written submissions, [4]; see also the applicant’s statement of facts, issues and contentions, footnote 39.

19. Finally, the applicant submits that the question of which access pathway he meets is the central issue in the review application and should be heard by the Tribunal with the benefit of the applicant’s response and evidence. The respondent submits that the Tribunal is not obliged to resolve the pathways dispute in making the correct and preferable decision.

    THE RESPONDENT’S SUBMISSIONS

20. The respondent submits that remittal is appropriate because the applicant is already entitled to become a participant in the NDIS. It argues that:

    (a)the NDIS Act does not create different classes of participants or ‘pathways’ depending on whether access is obtained under the disability requirements or the early intervention requirements;

    (b)the reasonable and necessary supports available to a participant are unaffected by whether access was granted via ss 24 or 25 of the NDIS Act;

    (c)any decision, or decisions, concerning supports in a SoPS involve a fresh assessment of the impairments requiring support and decision makers are not bound by the conclusions reached in any previous access decision for that purpose;

    (d)delaying remittal prolongs the period before the applicant can access and receive supports, notwithstanding that his entitlement to be a participant is no longer in dispute.

    CONSIDERATION

21. The Tribunal’s task on review is to determine whether the applicant meets the access criteria. Under s 21 of the NDIS Act, this requires satisfaction of the age requirements, the residence requirements, and either the disability requirements or the early intervention requirements.

22. The respondent submits that a remittal pursuant to s 85 of the ART Act should occur. Essentially, the respondent submits:

    (a)a participant’s status in the scheme is the same regardless of whether the meet the access criteria either because they satisfy the early intervention requirements (s 24) or the disability requirements (s 25) and that the Act does not create different classes of participants based on the way in which they satisfy the access criteria;

    (b)the reasonable and necessary supports that a person is to receive is not affected by the reasons why a person meets the access criteria;

    (c)after the applicant becomes a participant in the NDIS, when considering the applicant’s SoPS, a decision-maker must reconsider afresh which of the person’s impairments meet the access requirements to determine the supports that are reasonable and necessary and that the initial access decision is not binding on the decision-maker at the planning stage;

    (d)absent a remittal under s 85 of the ART Act, the applicant cannot become a participant in the NDIS until the review is completed and that as a person entitled to become a participant in the NDIS it is desirable for the applicant to be able to receive supports as soon as possible rather than delaying the provision of supports to resolve a dispute that has no practical effect.

23. When the Tribunal reviews a decision, its function is to stand in the shoes of the original decision maker and make the correct or preferable decision. The decision that the Tribunal is required to make is that which is provided for in s 20 of the NDIS Act, namely to decide whether or not the prospective participant meets the access criteria.[10] Whether a person meets the access criteria is determined by the requirements in s 21 of the NDIS Act.[11] In order to meet the access criteria, a prospective participant must meet:

    (a)the ‘age requirements’;[12]

    (b)the ‘residence requirements’;[13] and

    (c)either the disability requirements or the early intervention requirements.[14]

    [10] National Disability Insurance Scheme Act 2013 (Cth), s 20(1).

    [11] I note that s 21 of the NDIS Act was amended on 3 October 2024 by the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 (Cth). Among other things, those amendments require the respondent (and in my view likely the Tribunal on review), when making an access decision, to expressly identify whether access is being granted on the basis of the disability requirements or the early intervention requirements. However, the amendments do not apply to access requests made prior to 3 October 2024. The access request in the present case was made on 30 July 2023 and therefore these amendments do not alter my reasoning.

    [12] National Disability Insurance Scheme Act 2013 (Cth), s 21(1)(a) read with s 22.

    [13] National Disability Insurance Scheme Act 2013 (Cth), s 21(1)(b) read with s 23.

    [14] National Disability Insurance Scheme Act 2013 (Cth), s 21(1)(c) read with ss 24-25.

24. It is not in dispute that the applicant meets the age and residence requirements. The respondent now concedes that the applicant meets the early intervention requirements. That concession appears properly made on the basis of the material before the Tribunal. It follows that the applicant meets the access criteria and is entitled to become a participant in the NDIS.

25. The respondent’s concession that the applicant is entitled to become a participant does not, however, operate to make the applicant a participant. A person becomes a participant in the NDIS on the day that a decision is made that the person meets the access criteria.[15] 

    [15] National Disability Insurance Scheme Act 2013 (Cth), s 28(1).

26. A person can cease to become a participant in the NDIS in particular circumstances.[16] A person’s status as a NDIS participant can be revoked if the respondent is satisfied that the person no longer meets at least one of either the disability requirements or the early intervention requirements.[17] Such a decision is, however, a reviewable decision.[18]

    [16] National Disability Insurance Scheme Act 2013 (Cth), s 29.

    [17] National Disability Insurance Scheme Act 2013 (Cth), s 30.

    [18] National Disability Insurance Scheme Act 2013 (Cth), ss 99-103.

27. I accept the respondent’s submission that participant status under the NDIS does not depend upon the pathway to access. The NDIS Act does not distinguish classes of participants by reference to whether they qualified under s 24 or s 25.

28. I also accept that supports are determined at the planning stage by reference to what is reasonable and necessary, not by reference to the statutory basis on which access was originally granted. The statutory requirement in s 34(1)(aa) ensures that the decision-maker considers whether supports address the needs arising from impairments relevant to either the disability requirements or the early intervention requirements. I accept that this involves a fresh evaluation and it is not constrained by reasoning at the access stage.

29. The applicant submits that there are material legal and practical consequences arising from the respondent’s published guidance on participant pathways, and that these consequences warrant a determination by the Tribunal that he also meets the disability requirements.

30. I have considered this submission. The Tribunal’s task is to apply the statutory framework in the NDIS Act, not to determine matters by reference to the respondent’s internal policies or guidance save for particular circumstances.[19] Moreover, it is unclear the extent to which this published guidance is applicable in circumstances where the applicant’s access request was made prior to 3 October 2024.[20]

    [19] Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409

    [20] See footnote 11, above.

31. As already explained, the NDIS Act does not create separate classes of participants based on whether a person meets the access criteria under the disability requirements or the early intervention requirements. A participant has the same legal status in the scheme regardless of which ‘pathway’ facilitates access to the scheme. A person who becomes a participant in the scheme is, for present purposes at least, no less of a participant because they obtained access by meeting the criteria in either, or both, of s 24 or s 25 of the NDIS Act.

32. To the extent that the applicant has concerns about how published guidance may be applied in future planning decisions, those concerns are speculative. Any decision about supports will be subject to the statutory requirements in s 34 of the NDIS Act and, if necessary, to merits review by this Tribunal. I therefore do not accept that the guidance gives rise to legal or practical consequences which make it necessary, or even preferrable, for the Tribunal to continue this review.

33. Accordingly, I am satisfied the applicant will not be materially disadvantaged in any future planning decision by having gained access through the early intervention pathway.

    Delay and objectives of the scheme

34. If the matter were to proceed to a full hearing, the applicant would not become a participant in the NDIS until that process was completed and a decision made. This would delay his receipt of supports that the respondent now accepts he is entitled to receive. Such a delay would not only be inconsistent with the objectives of the NDIS, which emphasise timely support for persons with disability, but would also be contrary to the objectives of the ART Act, which require that proceedings be conducted quickly, fairly, and with as little formality and delay as proper consideration permits.

35. Balancing the competing considerations, I am satisfied that continuing the review to decide whether the applicant also satisfies the disability requirements would serve no practical purpose and would thus be contrary to the objects of both the NDIS Act and the ART Act. I am satisfied it would impose otherwise avoidable further delay and cost for no good reason. I further place weight on the fact that allowing the review application to proceed in the circumstances would have an effect on other persons who are waiting to have their review applications hearing and determined.

36. In this regard, there are presently more than 100,000 cases pending before the Tribunal. The Tribunal’s time, and that of its membership, is a finite and publicly funded resource which should not be used to engage in a review in circumstances where the parties are agreed as to the outcome, but remain only dispute as to the reasons for the outcome.

    CONCLUSION

37. The dispute before the Tribunal was whether the applicant met the access criteria for the NDIS. That dispute is resolved and both parties now accept that he does, albeit for different reasons. The further question raised by the applicant as to whether he also satisfies an alternative access pathway has no practical or legal utility in the circumstances.

38. The fair and efficient course is to remit the matter to the respondent under s 85 of the ART Act so that a decision in the applicant’s favour can be made without further delay.

    DECISION

39. The hearing listed for 11 November 2025 be and is hereby vacated.

40. Pursuant to s 85 of the Administrative Review Tribunal Act 2024 (Cth), the Tribunal remits the decision under review, being the decision of the delegate of the Chief Executive Officer of the respondent dated 18 September 2023 and as affirmed on internal review on 18 January 2024, for reconsideration within 28 days.

41.      

42.     I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of General Member Robertson

..........................[SGD].........................

Dated: 1 October 2025

Date of hearing:	26 September 2025
Advocate for the Applicant:	Dr A Thomson
Counsel for the Respondent:	Mr T J Noonan
Solicitors for the Respondent:	Mr B Richardson, Sparke Helmore Lawyers