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.

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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

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.
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.
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.
The applicant resists this, contending…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Thomson and National Disability Insurance Agency (NDIS)

Details

AGLC: Thomson and National Disability Insurance Agency (NDIS) [2025] ARTA 1950
Case: [2025] ARTA 1950
Decision Date: 1 October 2025

CaseChat Overview and Summary

In the case of Thomson v National Disability Insurance Agency (NDIS), the applicant, Thomson, sought a review of a decision made by a delegate of the NDIS, affirmed on internal review, that he did not meet the access criteria under the National Disability Insurance Scheme Act 2013 (NDIS Act). After the filing of further evidence, the NDIS conceded that Thomson met the early intervention requirements under s 25 of the NDIS Act, thereby satisfying the access criteria. Thomson, however, maintained that he also met the disability requirements under s 24 of the NDIS Act. The NDIS sought to have the matter remitted to it for reconsideration so it could make a decision in Thomson's favour, while Thomson opposed this, arguing that the Tribunal should proceed to a hearing to determine the question of whether he met the disability requirements.

The legal issue before the court was whether the Tribunal should conduct a hearing to determine the dispute as to why Thomson met the access criteria, or whether it should remit the matter to the NDIS for reconsideration, allowing the NDIS to make a decision in Thomson's favour. The court considered the power to remit decisions to decision-makers for further consideration under s 85 of the Administrative Review Tribunal Act 2024 (ART Act). The court found that the power to remit a reviewable decision for reconsideration was discretionary and could be exercised according to the circumstances of the particular case. The court concluded that remittal was appropriate in this case as the NDIS had conceded that Thomson met the access criteria, and any further delay in providing him with supports would be unjust. The court remitted the decision under review for reconsideration within 28 days.

The court determined that remittal was appropriate because Thomson was already entitled to become a participant in the NDIS. The court found that the NDIS Act did not create different classes of participants depending on whether access was obtained under the disability requirements or the early intervention requirements. The court also found that the reasonable and necessary supports available to a participant were unaffected by the reasons for which access was granted. The court held that the NDIS's status in the scheme was the same regardless of whether it met the access criteria, and that the reasonable and necessary supports it was to receive were not affected by the reasons why it met the access criteria. The court found that, after Thomson became a participant in the NDIS, a decision-maker must reconsider afresh which of his impairments met the access requirements to determine the supports that were reasonable and necessary, and that the initial access decision was not binding on the decision-maker at the planning stage. The court also found that, absent remittal, Thomson could not become a participant in the NDIS until the review was completed, and that it was desirable for Thomson to be able to receive supports as soon as possible rather than delaying the provision of supports to resolve a dispute that had no practical effect.

The court remitted the decision under review, being the decision of the delegate of the Chief Executive Officer of the NDIS dated 18 September 2023 and as affirmed on internal review on 18 January 2024, for reconsideration within 28 days.

Orders

Orders of the court

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Background

Background to the litigation

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 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). 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. 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. 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 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). 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). 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). 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].

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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 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. 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. 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.