Wilson and National Disability Insurance Agency (Practice and procedure)

Case [2025] ARTA 1452

Wilson and National Disability Insurance Agency (Practice and procedure) [2025] ARTA 1452 (20 August 2025)

Applicant/s:  James Eric Wilson by his grandmother

Respondent:  National Disability Insurance Agency

Tribunal Number:                2025/2296

Tribunal:General Member J Papalia

Place:Perth

Date:20 August 2025  

Decision:1. The review be programmed to an expedited final hearing.

2. These reasons be provided to the Office of Legal Services Coordination in the Attorney-General’s Department.

Statement made on 20 August 2025 at 3:49pm

CATCHWORDS

PRACTICE AND PROCEDURE – National Disability Insurance Scheme – Review of participant supports – Whether the Tribunal should expedite the review – non-compliance with programming directions by the Respondent

LEGISLATION

Administrative Review Tribunal Act 2024 (Cth)

Legal Services Directions 2017 (Cth)

National Disability Insurance Scheme Act 2013 (Cth)

CASES

National Disability Insurance Agency v Davis [2022] FCA 1002

Re Albert (a barrister) and McLean (a solicitor) [2021] VSC 297

Re Bunnings Group Limited and Privacy Commissioner (Guidance and Appeals Panel) [2024] ARTA 42

Re PRLT and National Disability Insurance Agency (Practice and Procedure) [2025] ARTA 993

Re Southam and National Disability Insurance Agency (Practice and Procedure) [2024] ARTA 198

Statement of Reasons

  1. The Applicant, Mr Wilson, is a participant of the National Disability Insurance Scheme (NDIS). His circumstances are summarised by his consultant psychiatrist in a letter dated 8 May 2025. It suffices to note that Mr Wilson has chronic treatment resistant schizophrenia which is complicated by an intellectual disability and several other disorders. He gained access to the NDIS based on impairments arising from those conditions. He lives in Victoria and is being medically treated pursuant to a Community Treatment Order. The dispute before the Tribunal concerns the funding within Mr Wilson’s Statement of Participant Supports (SoPS) for a support called ‘Supported Independent Living’ (SIL). SIL is a ‘paid personal support’ and ‘includes things like having someone to help with personal care or cooking meals.’[1] The Applicant seeks an increase in funding for SIL because this has reportedly been reduced over time. The Respondent presently submits that the requested increase in funding does not meet the statutory requirements found in ss 34(1)(c), (d) and (f) of the National Disability Insurance Scheme Act 2013 (NDIS Act). These reasons explain why the Tribunal decided to expedite the review process. They have been published because of the Respondent’s repeated non-compliance with orders made by the Tribunal and to explain why the Tribunal decided to further amend the programme by consent.

    [1] NDIS Operational Guideline, ‘Supported independent living’ dated 7 April 2025, page 2.

    BACKGROUND

  2. The Applicant is represented by his maternal grandmother, Aunty Margaret Knight, who is also his plan nominee. They have been assisted by the Villamanta Disability Rights Legal Service since 19 May 2025.

  3. The Respondent is a body corporate of the Commonwealth established by s 117 of the NDIS Act and is responsible for delivering the NDIS.[2]

    [2] See NDIS Act, s 118(1)(a).

  4. The application for review was made in March 2025 and concerned…

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AGLC
Wilson and National Disability Insurance Agency (Practice and procedure) [2025] ARTA 1452
Case
[2025] ARTA 1452
Decision Date

CaseChat Overview and Summary

The case between Wilson and the National Disability Insurance Agency (NDIA) was brought before the Administrative Review Tribunal (ART) to review a decision regarding the approved Supports for Participant Supports (SoPS) from October 2024. The decision was affirmed on internal review in February 2025, and a new plan decision was made on 11 June 2025. The review application was filed in March 2025, and the scope of review was extended by consent to include the merits of the new plan decision. The Respondent, represented by Ms Emily Baggett, was required to file and serve an updated Statement of Issues but failed to do so by the deadline, despite being given a second opportunity to do so. The Applicant sought to expedite the matter to a final hearing due to the risk of harm to the Applicant and others without sufficient supports.

The primary legal issue before the court was whether the Tribunal should expedite the review process given the non-compliance of the Respondent with the programming directions. The Applicant argued that the Respondent's failure to file and serve the updated Statement of Issues in accordance with the orders made by Registrar Rorrison justified expediting the matter to a final hearing. The Respondent contended that the non-compliance was due to the arrangements made for a functional capacity assessment by an occupational therapist, which was relevant to the case. The court had to determine if the non-compliance warranted expediting the matter and what orders, if any, should be made to address the non-compliance.

The court found that the Respondent's non-compliance with the programming directions was significant but did not warrant expediting the matter to a final hearing. The court noted that the Respondent had made arrangements for a functional capacity assessment, which was relevant to the case. However, the court also noted that the Respondent had been given a second opportunity to file and serve the updated Statement of Issues and had failed to do so. The court ordered the Respondent to pay the Applicant's costs of the case management hearing and directed the parties to confer with respect to the substantive hearing. The court also ordered the Respondent to file and serve the updated Statement of Issues within seven days of the date of the orders.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The application for review was made in March 2025 and concerned an approved SoPS from October 2024, which had been affirmed on internal review in February 2025 (Reviewable Decision).[3] [3] See T-documents filed 29 April 2025, T1, T1N, T42-T44. An order extending the time for seeking review of these decisions by the Tribunal was made by consent on 3 April 2025. The Reviewable Decision in this matter has now been superseded by a new plan decision made on 11 June 2025.[4] It appears this new plan decision was made by consent and to secure interim support pending the outcome of the review.[5] [4] See Respondent’s submissions dated 18 August 2025, [17]. [5] See email correspondence between the parties’ representatives (copied to the Tribunal) on 3 June 2025. By virtue of s 103(2)(e) of the Administrative Review Tribunal Act 2024 (ART Act), the scope of the review is taken to include the merits of the new plan. The new plan decision has yet to be provided to the Tribunal, despite the requirement to do so found in s 25 of the ART Act. On 8 April 2025, the Tribunal listed this matter for a case conference on 22 May 2025. Since 21 May 2025, the Respondent has been represented by Ms Emily Baggett. Ms Baggett is a Partner at Mills Oakley Lawyers Pty Ltd in Sydney. The Respondent filed and served a Statement of Issues (for the first case conference) with their updated notice of appearance on 21 May 2025. On 22 May 2025, and following the first case conference, Registrar Rorrison made orders requiring the parties to confer with respect to interim funding and for the Respondent to file and serve an updated Statement of Issues ‘within 21 days of receipt of any further evidence from the Applicant’. On 2 June 2025, the Applicant filed and served further evidence in support of the review. The Respondent’s updated Statement of Issues was therefore due to be filed and served on or before 23 June 2025. On 2 July 2025, the Applicant wrote to the Registry seeking that the matter be listed for case management with a view to being listed for substantive hearing. It was identified in this correspondence that the Respondent had failed to file and serve their updated Statement of Issues in accordance with the orders made by Registrar Rorrison. On 9 July 2025, the matter was scheduled into the duty list before me on 24 July 2025 at 2.00pm AWST. Immediately prior to that listing, at 1.19 pm AWST, the Respondent filed and served an updated Statement of Issues by email. This document included a ‘without prejudice’ indication that the Respondent had arranged for a functional capacity assessment to be conducted by an occupational therapist on 3 September 2025. This factor is relevant because it was specifically raised by the Respondent in support of their arguments made during the case management hearing (see below).[6] [6] Cf ART Act, s 88. At the first case management directions hearing, the Applicant sought that the matter be expedited to a final hearing under [4.8] of the Tribunal’s Common Procedures Practice Direction 2024 (Practice Direction). The application for expedition was based upon the material filed in June 2025 and evidence given from the bar table by Aunty Margaret regarding the Applicant’s impairments and behaviours of concern. That is, evidence of the Applicant and others around him being at risk of harm absent sufficient supports. This evidence was consistent with the contents of the letter from the Applicant’s treating psychiatrist dated 21 May 2025 (referred to above).

Ratio Decidendi

Legal Principle Established

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