Wood and CEO, National Disability Insurance Agency (NDIS) - [2025] ARTA 2151

Wood and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 2151 (3 October 2025)
Applicant/s:  Wendy WOOD
Respondent:  CEO, National Disability Insurance Agency
Tribunal Number:                2024/4341

Tribunal:General Member L Proske
Place:Adelaide
Date:3 October 2025

Decision:The Tribunal sets aside the decisions under review dated 19 June 2024 and 16 May 2025 and remits the matter for reconsideration in accordance with the order that:

1.The statement of participant supports specifies the reasonable and necessary supports include:
a) 80 hours of Psychosocial Recovery Coach supports.
2.All other supports in the Applicant’s existing statement of participant supports are to be replicated pro-rata from the date on which the supports specified in paragraph [1] above are included in the Applicant’s statement of participant supports.
3.The management of funding for reasonable and necessary supports in the Applicant’s statement of participant supports is to remain the same as the management of funding for those supports in the Applicant’s existing statement of participant supports.
4.The date by which the Respondent must reassess the Applicant’s plan is to be 12 months after the date on which the supports in paragraph [1] above are included in the Applicant’s statement of participant supports.

Statement made on 03 October 2025 at 2:06pm
Catchwords
NATIONAL DISABLITY INSURANCE SCHEME – reasonable and necessary supports – increased support worker assistance – floatation therapy – remedial massage – alternative and complementary medicine – allied health professional – NDIS support – value for money – effective and beneficial – decision remitted for reconsideration
Legislation
Administrative Appeals Tribunal Act 1975
National Disability Insurance Scheme Act 2013
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024
Administrative Review Tribunal Act 2024
Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024
National Disability Insurance Scheme (Supports for Participants) Rules 2013
National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024
National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1)(Miscellaneous Provisions) Transitional Rules 2024
Cases
Drake and Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Frugtniet v Australian Securities and Investments Commission [2019] HCA 16
McGarrigle v National Disability Insurance Agency [2017] FCA 308
QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189
Public Trustee of South Australia (as litigation representative for Isherwood) v National Disability Insurance Agency (No 2) [2023] FCA 852
FSWN and National Disability Insurance Agency (NDIS) [2025] ARTA 114
Secondary Materials
NDIS Guideline – Reasonable and Necessary Supports
NDIS Guideline – Principles we follow to create your plan
Statement of Reasons

The Applicant (Ms Wood) is a 57-year-old female. Ms Wood was granted access to the National Disability Insurance Scheme (NDIS) in February 2021 for psychosocial impairments attributable to her Post Traumatic Stress Disorder (PTSD), Major Depressive Disorder (MDD) and Generalised Anxiety Disorder (GAD); and physical impairments arising from her Still’s disease and peripheral neuropathy.[1]
[1] Respondent’s Statement of…

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 Wood and CEO, National Disability Insurance Agency (NDIS)

Details

AGLC: Wood and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 2151
Case: [2025] ARTA 2151
Decision Date: 3 October 2025

CaseChat Overview and Summary

In the case of Wood and CEO, National Disability Insurance Agency (NDIS), the applicant sought a review of decisions concerning the approval of certain supports under the NDIS. The primary dispute revolved around the eligibility of specific therapies, including floatation therapy, remedial massage, and alternative and complementary medicine, for funding under the NDIS. The Administrative Appeals Tribunal (AAT) was tasked with determining whether these therapies qualified as "reasonable and necessary supports" under the NDIS Act.

The legal issues before the Tribunal included whether the requested therapies fell within the definition of "NDIS support" as specified in the Transitional Rules and whether they met the criteria outlined in section 34(1) of the principal Act. The Tribunal was required to ascertain whether the requested supports were of a character that could fall within a category of supports specified in the Transitional Rules, and if they satisfied the other criteria for approval, such as being "effective and beneficial" to the participant.

The Tribunal found that the remedial massage sought by Ms Wood did not fall within the scope of any category of supports specified in Schedule 1 of the Transitional Rules. Consequently, it was not considered an NDIS support, and the Tribunal could not approve it as a reasonable and necessary support under Ms Wood’s Statement of Participant Supports (SoPS). The Tribunal concluded that the decision to include remedial massage as a support was not in accordance with the legislative requirements. The Tribunal set aside the decisions under review and remitted the matter for reconsideration, specifying that certain supports should be included in the SoPS and that the management of funding for these supports should remain unchanged.

In light of the above findings, the Tribunal ordered that the decisions under review be set aside and that the matter be remitted for reconsideration in line with the specified terms. This included the inclusion of 80 hours of Psychosocial Recovery Coach supports in Ms Wood’s SoPS, with all other supports replicated pro-rata from the date of inclusion of the specified supports, while maintaining the same funding management structure.

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

For the reasons outlined above, the Tribunal is not satisfied that the remedial massage sought by Ms Wood on review falls within item 34 of Schedule 1 to the Transitional Rules. It follows that the remedial massage sought by Ms Wood is not an NDIS support; and the requirement in s 34(1)(f) is not met. Accordingly, the Tribunal is not satisfied the remedial massage sought on review by Ms Wood meets the requirements in s 34(1) and it cannot be funded as a reasonable and necessary support in Ms Wood’s SOPS.DECISION The Tribunal sets aside the decisions under review dated 19 June 2024 and 16 May 2025 and remits the matter for reconsideration in accordance with the order that:1. The statement of participant supports specifies the reasonable and necessary supports include:a)80 hours of Psychosocial Recovery Coach supports.2. All other supports in the Applicant’s existing statement of participant supports are to be replicated pro-rata from the date on which the supports specified in paragraph [1] above are included in the Applicant’s statement of participant supports.3. The management of funding for reasonable and necessary supports in the Applicant’s statement of participant supports is to remain the same as the management of funding for those supports in the Applicant’s existing statement of participant supports.

Ratio Decidendi

Legal Principle Established

The Tribunal has considered the written evidence, oral evidence and submissions referred to in paragraphs [26] to [28]; and will refer to that below as relevant to the Tribunal’s consideration of the issues arising on review. CONSIDERATION In FSWN and National Disability Insurance Agency (NDIS) [2025] ARTA 114 (FSWN) Senior Member French described the process of enquiry involved when considering whether the requirements in s 34(1) are met, after the amendment of that section by the Amending Act. That process of enquiry as described by Senior Member French in FSWN is as follows: Having regard to the provisions of the principal Act as amended, the Transitional Rules, and the Supports Rules, the structure of the enquiry involved in this review involves two stages and the following steps:Stage 1 Ascertain if the requested support is an “NDIS” Support as defined. This inquiry is focused on the support, not the participant.Step 1: Determine if the requested support is of a character that falls within the scope of a category of support specified in column 1 of the Table to Schedule 2 of the Transitional Rules by reference to the description of supports that fall within the scope of that category contained in column 2 of the Table.If the answer to that question is “yes”, then stage 1 is complete. The requested support is not a NDIS Support and cannot be approved for inclusion in a SoPS because of s 34(1)(f) (subject to a replacement support determination being made, as to which see following).If the answer to that question is “no”, then proceed to step 2 of stage 1:Step 2: Determine if the requested support is of a character capable of falling within the scope of a category of support specified in column 1 of the Table to Schedule 1 of the Transitional Rules by reference to the description of supports that can fall within the scope of that category contained in column 2 of that Table.If the answer to that question is “no”, then the requested support will not be a NDIS Support and cannot be approved for including in a SoPS because of s 34(1)(f).If the answer to that question is “yes”, then the requested support will be a NDIS Support that is capable of being approved for inclusion in a SoPS by operation of s 34(1)(f), and stage 2 of the enquiry is reached.Stage 2: Ascertain if the requested support satisfies each of the other criteria specified in s 34(1)(aa) to (e) and the associated Supports Rules. There is some overlap of the stage 1 and 2 enquiries. However, in my opinion stage 2 is primarily a participant focused enquiry. That is, it seeks to establish the benefit of the support to the participant. To the extent that stage 2 also requires examination of the efficacy of the support per se it adds nothing to the outcome of the stage 1 enquiry in my opinion. The question of whether a requested support is, or is not, a NDIS support is a mixed question of fact and law. The issue of fact to be determined is whether the requested support falls within a category of items specified in column 1 of the Tables to Schedules 1 and 2 of the Transitional Rules. If it does, it will either be, or not be, a NDIS support by operation of law. It is important to observe that in the scheme of the Transitional Rules it is not sufficient to find that a support is not excluded as a NDIS Support by operation Schedule 2. It must also be found to be included as a NDIS Support by Schedule 1. That is, both Schedules have work to do in determining what is not a NDIS Support. To illustrate this point using absurd examples, a giraffe, hot-air balloon, and space craft are not excluded as NDIS supports by Schedule 2, but they are incapable of falling into any of the categories of NDIS Supports in Schedule 1. They are therefore not NDIS Supports by operation of Schedule 1, rather than Schedule 2. If a requested support is not a NDIS Support by operation of the Transitional Rules, the criteria specified by s 34(1)(f) of the principal Act as amended cannot be satisfied. Section 34(1) is conjunctive in its terms, as is indicated by use of the words ‘the CEO must be satisfied of all of the following ...’ (emphasis added). As each of the requirements of s 34(1) must be met before a support can be approved for inclusion in a SoPS there is no utility in considering if the requested support meets the other requirements of that section. The enquiry ends with the determination that the requested support is not a NDIS support.