XRCW and The CEO, National Disability Insurance Agency (NDIS)

XRCW and The CEO, National Disability Insurance Agency (NDIS) [2024] ARTA 79 (19 December 2024)
Applicant/s:  XRCW
Respondent:  The CEO, National Disability Insurance Agency
Tribunal Number:                2024/0423

Tribunal:General Member N Purcell
Place:Sydney
Date:19 December 2024

Decision:The Tribunal affirms the decision under review.

.............................[SGD]...........................................
General Member N Purcell

Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – parental conflict – self-management – parental responsibility – Rule 3.7 – no unreasonable risk – decision affirmed.
Legislation
Administrative Review Tribunal Act 2024 (Cth) s 74(4).
Family Law Act 1975 (Cth) ss 61D, 64B(2).
National Disability Insurance Scheme Act 2013 (Cth) ss 43, 44, 75.
National Disability Insurance Scheme (Plan Management) Rules 2023 (Cth).
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth).
Cases
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 635.
Secondary material
Child Representatives Guideline (28 October 2024).
World Health Organisation, (2011), International Classification of Functioning, Disability and Health, Geneva.
World Health Organisation (2002), Towards a Common Language for Disability Functioning and Health, ICF, Geneva, WHO/EIP/GPE/CAS/0.1.3 (WHO: 2002).
Statement of Reasons
INTRODUCTION

The issue before the Tribunal is whether the Applicant’s NDIS funds in his statement of participant supports (SOPS) should be plan managed or self-managed.
The Applicant is a primary school aged child who lives with his Mother in a regional NSW town. He spends significant time with his Father subject to Family Court orders made by consent in May 2023. The parents have equal shared parental responsibility for the Applicant and his sibling, except for health and medical issues, for which the Mother has sole parental responsibility. While not central to the Tribunal’s consideration of the matter, the proceedings have arisen in the context of ongoing tension between the parents, including the interpretation of Family Court orders.
For the purpose of the National Disability Insurance Scheme Act 2023 (Cth) (NDIS Act), the Mother has parental responsibility pursuant to section 75(1)(a) and the Father also has parental responsibility pursuant to section 75(1)(b)(ii). Such people are often referred to as ‘child representatives.’ They are authorised to do anything that the NDIS Act would authorise or require the Applicant to do.[1]
[1] NDIS Act, section 74(1)(a)
The Applicant’s father sought internal review of a decision made on 9 October 2023 (Original Decision) to approve a SOPS in the Applicant’s plan under section 33(2) of the NDIS Act. This decision to approve a SOPS in the Applicant’s new plan gave effect to (and continued) an earlier decision made on 31 August 2022 by a delegate of the CEO approving the Mother’s request to self-manage the Applicant’s NDIS funding.[2]
[2] Section 33(2)(d) of the Act provides that the SOPS must specify ‘the management of the funding for supports under the plan’.
On 18 December 2023, the Respondent affirmed the original decision (Reviewable Decision) pursuant to section 100(6) of the NDIS Act. The Father, on behalf of the Applicant, then sought external review of the decision by the Administrative Appeals Tribunal (AAT) pursuant to section 103 of the NDIS Act on 11 January 2024. The AAT was replaced by the Administrative Review Tribunal (ART) on 14 October 2024 and by virtue of the transitional arrangements, the Applicant’s matter was automatically transferred to the ART.
The Father contends that the decision of the 9 October 2023 has the effect of continuing the Mother’s ability to self-manage the Applicant’s NDIS funding. In his view, the Applicant’s NDIS funding should be plan managed or agency managed. The Mother maintains she should continue managing the Applicant’s funding on his behalf. This matter is unusual in the sense that the Applicant has two representatives who are at odds with each other. The Respondent submits the decision under review should be affirmed, for reasons which will be considered below.
Background
The Applicant became a participant of the NDIS in 2019 on the basis that he had been diagnosed with autism spectrum disorder – level 2. His first NDIS plan was approved on 17 September 2019. The Agency reassessed the Applicant’s NDIS plan prior to the reassessment date contained in that plan and each subsequent plan. A new plan has been approved on 4 occasions in accordance with section 37 of the NDIS Act.
On 1 August 2022, the Mother telephoned the Agency to discuss the automatic extension of the Applicant’s plan. During that telephone conversation, the Mother advised the Agency that the Applicant would be commencing school in 2023 and indicated she would like to commence self-management of his funds, which amounted to approximately $20,000 for capacity building supports. Prior to this request, the Applicant’s funds had been plan-managed. The Mother did not discuss her request with the Father.
Although section 43(1) of the NDIS Act authorises the participant to make the request, by reason of section 74(1)(a), a parent of a participant who is authorised to act on behalf of the child is entitled to make the request.
The Agency considered the Mother’s request and on 31 August 2022, a delegate of the CEO approved a new plan for the Applicant, giving effect to the Mother’s request as required by subsection 43(2) of the Act. In the covering letter accompanying the plan, the delegate wrote:
Plan self-management request
Thank you for your request to self-manage the supports included in this plan.
The NDIS Act 2013 and National Disability Insurance Scheme (Plan Management) Rules 2013 require that we consider whether there would be any risk if you self-manage [the Applicant’s] NDIS plan funding for supports.
We have considered all of the information available to make a decision and I am pleased to confirm that your request to self-manage the funding in [the Applicant’s] NDIS plan has been approved.
You may request a review of this plan management decision. Details about how to do this are included at the end of this letter.[3]
[3] R003 of JHB, p362-363.
The Applicant’s funds have been self-managed by the Mother since 31 August 2022.
As will be discussed further below, section 43(2) of the NDIS Act requires the CEO to give effect to the request for self-management in the SOPS unless one of the provisions in section 44(1) applies to the participant, or in this case, child representative.
PRE-HEARING PROCESS
On 19 September 2024, the Father made a request to the Tribunal to issue a summons to the Applicant’s Early Childhood Coordinator, requiring her to give oral evidence at the hearing. The reasons for the request were:
I am applying to the AAT for a Summons for [Early Childhood Coordinator] from [local service provider] to appear in the matter 2024/0423.
[Early Childhood Coordinator] has been the Applicant’s ‘Partner in the Community’ for several years, and has assisted with the Applicant’s last three reviews.
It is my view that [Early Childhood Coordinator] may be able to assist to the AAT, with information and details, to bring resolution to this matter, as she is very intimate with the Applicant’s case.
I ask for my Application to be considered Urgent, due to a Hearing Date having been set for 28 October 2024.
On 2 October 2024, prior to an interlocutory hearing on the summons issue and the filing of the Respondent’s Statement of Facts, Issues and Contentions, the Tribunal requested additional information from the parties. This request included:
The parties should also advise if there are any other past or present legal proceedings between the mother and father which the Tribunal should be aware of.
On 7 October 2024, the Father provided a copy of an undated Apprehended Domestic Violence Order (ADVO) against the Mother, with the Father listed as the protected person. The order states the Mother must attend Court on 27 February 2018,[4] suggesting it was not a final order.
[4] A39 of JHB.
On 25 October 2024, the Mother sent the following email response:
In 2018 [the Father] filed for an ADVO against me after I left him taking the children with me at the same time he was requesting the children be returned to him as I came under mental health (all not true).
Hence the ADVO provided being an interim and not a final. The ADVO was never granted as a result of proceedings unlike the ADVO to protect me filled by NSW police and granted in 2017.
Unfortunately I left marriage with nothing but my children, my car and anything in my car at the time so am unable to provide a copy.[5]
[5] On 4 December 2024, while reviewing material as part of its deliberations prior to the resumed hearing on 16 December 2024, the Tribunal realised that the Respondent and Father were not copied into the email and it was omitted from the JHB. The Tribunal caused an email to be sent to the Father, Mother and Respondent the same day, attaching a copy of the email from the Mother. The email was later admitted and marked ‘E4’.
The Father confirmed in his oral evidence at the final hearing that an ADVO was made against him in 2017. When asked why he did not inform the Tribunal of this order in his earlier correspondence, he indicated he thought he had provided a copy of the order.
An interlocutory hearing on the summons issue was held on 21 October 2024. The Father contended that the Early Childhood Coordinator would be able to give evidence about the Mother paying invoices for NDIS supports or services after the due date. The Mother conceded she paid invoices late on occasion. The Respondent was relatively neutral on the issue but was unsure that the proposed witness would have much to add, noting the late payment of invoices was not contested. The Tribunal declined to issue the summons pursuant to section 74(4) of the Administrative Review Tribunal Act 2024 (Cth) (ART Act), as there was no dispute that the Mother had paid invoices late on occasion.
Three business days before the final hearing, the Father requested a 2-week adjournment for the purpose of obtaining legal advice in relation to the Respondent’s Statement of Facts, Issues and Contentions. By Order made on 24 October 2024, the Tribunal refused this request and gave the following reason:
Noting the Tribunal’s statutory objective outlined in section 9 of the Administrative Review Tribunal Act 2024, the application has been before the Tribunal for almost 1 year. The parties have been afforded a substantial opportunity to attempt to resolve the dispute by alternative dispute resolution which has been unsuccessful. It is now necessary for the proceeding to be heard and determined.
A referral was made on or around 24 May 2024 for the Applicant to speak with a legal aid lawyer on 19 June 2024. The final hearing was listed on 18 September 2024.
I am satisfied the Applicant has been provided with a reasonable opportunity to seek legal advice about his application regarding the issue of plan management prior to the hearing.
The Tribunal has made itself available to determine the matter on 28 October 2024. Other hearings preclude this matter being listed in November.
The Mother raised a question in her written submission, dated 25 August 2024,[6] whether the Father could or should be removed as a child representative of the Applicant pursuant to section 75(3) of the NDIS Act. At the commencement of the hearing, the Tribunal explained for the benefit of both parents that the decision relating to child representatives was not one contained in the SOPS and therefore it was not apparent that a Reviewable Decision in relation to that issue was before the Tribunal.
[6] A012 of JHB, p251.
The Respondent confirmed that the Mother had not sought internal view of a decision under section 75 of the NDIS Act and therefore the scope and jurisdiction of the hearing was limited to the fund management issue. It is open to the Mother to seek further information from the Agency and/or legal advice about that issue. The Father later gave evidence that he had previously been removed as a child representative, which was also the subject of AAT proceedings.[7] The Mother gave evidence that the Father also initiated child support proceedings at the AAT.[8] This Tribunal was unaware of those proceedings and has not further informed itself of those matters and/or if any decisions were made by the AAT.
[7] Transcript of hearing dated 28 October 2024, p26.
[8] Transcript of hearing, dated 28 October 2024, p48.
THE HEARING
The Tribunal held a hearing by video on 28 October and 16 December 2024. The Father and Mother were unrepresented in the proceedings. The Agency was represented by Mr Arron Hartnett of counsel. Both the Father and Mother gave oral evidence at the hearing. Due to the nature of the issues in dispute between them, they were permitted to hear each other’s evidence.
Due to apparent tension between the parents during telephone directions hearings in the lead up to final hearing, the Member who had the matter constituted to them at the time attempted to limit interactions and the exchange of material between the parents. On 30 July 2024, the Member directed “there is no requirement for either of the Applicant’s representatives to provide submissions or material to the other”. As a result, a joint hearing bundle (JHB) was not directed to be prepared prior to hearing.
The matter was reconstituted to a different Member on 10 October 2024.
Both parties representing the Applicant were permitted to file evidence late in the proceedings. Relevant evidence was shown to both parents during the hearing. This Tribunal considered a JHB would assist the Tribunal to make the correct or preferable decision and to ensure all relevant evidence was before it. As a matter of procedural fairness to both parents and the Respondent, it was important that each party could also see and comment on relevant material, including any adverse material. The Tribunal requested the Respondent assist the Tribunal by compiling all evidence filed by the parties into a JHB. This was then provided to the parties shortly after the final hearing on 28 October 2024.
On the 7 November 2024, an Associate contacted the parties confirming that the JHB had been provided and advised that the Tribunal was intending to admit the bundle into evidence, subject to any objection. The parties had until 15 November 2024 to raise any concern. Later that day, the Father replied as follows:
Hello Associate,
I continue to have serious concern to the Tribunal accepting documents from the Respondent during the actual hearing on the 28^th October, which disallowed by opportunity to prepare a response for such documentation.
On the 8 November 2024, the Tribunal gave the following direction:
1. On or before 15 November 2024 at 12pm, if any party objects to any document contained in the Joint Hearing Book (JHB) being admitted into evidence, they must:
a. identify the document(s) by reference to the Tab and page number in the JHB index.
b. file with the Tribunal and give to each other party written reasons, outlining the grounds for the objection.
On the 14 November 2024, the Father sent a further email objecting to 4 computer screen shots of the Applicant’s NDIS portal, taken by the Mother and requested by the Tribunal during the hearing:
Hello Associate,
In line with the Direction of 8th November 2024, I am objecting to the Tribunal accepting Tab A44, Pages 337, 338, 339 and 340, in the proposed Hearing Bundle.
My reasons for this objection are:
1. Under Best Evidence consideration, what had been provided are computer screenshots, and not documentation, emails, etc.
2. The documents being objected to, were not provided by the Respondent, to the Applicant prior to the Hearing... Even through the Respondent had access to these documents.
3. The Applicant was not given the option to seek leave to consider these documents, but instead was Cross Examined on these documents, by the NDIS's Barrister immediately upon being presented with them during the Hearing.
On the 18 November 2024, the Respondent’s solicitor replied as follows:
Dear Associate
I refer to [the Father’s] email below dated 14 November 2024.
The Respondent is in the Tribunal's hands as to how the Tribunal wishes to deal with [the Father’s] objection. However, the Respondent wishes to correct [the Father’s] assertion at point 2. The Respondent did not have access to the documents at Tab A44 prior to the hearing and was not aware of their existence prior to the final hearing of this matter. [The Mother] referred to the documents during the course of the hearing and the Tribunal indicated that she should provide a copy to the Respondent. Subsequently, the Respondent provided a copy of the documents at Tab A44 to the Tribunal and [the Father] at the direction of the Tribunal.
If the Tribunal requires any further assistance from the Respondent, please let me know.
Kind regards
[Solicitor for the Respondent]
It is correct that neither the Respondent nor the Tribunal was aware of or had access to the documents provided by the Mother until the Tribunal requested them during the hearing. The Tribunal is not persuaded by the Father’s submission that computer screen shots of the Applicant’s NDIS portal are irrelevant to the proceedings or are not a valid form of evidence. The Tribunal finds they are relevant to a fact in issue, namely the claim that the Mother does not properly manage the Applicant’s NDIS funds or pay invoices on time. There was no suggestion the screenshots were inauthentic. Under section 52 of the ART Act, the Tribunal is not bound by the rules of evidence “but may inform itself on any matter in such manner as it considers appropriate.”
The Tribunal does accept that there was limited time for the Father to consider the evidence, however the nature of litigation is such that a witness (in this case, the Mother) may give evidence that is either unexpected, unhelpful or potentially harmful to one’s case. Whilst this may be frustrating to a party, there is nothing unusual or improper about new evidence coming to light during the course of proceedings. However, it is important that each party has a reasonable opportunity to be heard on the evidence and make any relevant submissions as to the weight the evidence should be given.
Out of an abundance of caution, noting that neither parent was legally represented, and a joint hearing bundle had not been prepared prior to hearing, the following email was sent to the parties on 18 November 2024:
Dear Parties,
Member Purcell has considered the response of [the Father] dated 14 November 2024 regarding the admission of evidence in these proceedings and the clarification provided by [the Respondent’s solicitor] in her email dated 18 November 2024. She has also identified two additional documents filed with the Tribunal but omitted from the joint hearing bundle.
Please find attached:
1. Email from [Early Childhood Coordinator] ('E1')
2. Screenshot of NDIA bank account details ('E2')
Member Purcell proposes to relist the matter for hearing (approximately 1 hour duration), to provide the parties with a final opportunity to:
1. Address the Tribunal on the relevance or irrelevance of documents or materials filed with the Tribunal (noting [the Father’s] objections to the Tribunal receiving into evidence the material contained at Tab 44, p337-340 inclusive).
2. Ask any further question and/or make any final submissions on issues arising from the material.
Member Purcell has availability on Monday 2 December at 10am or Monday 16 December at 10am. If any party is unable to attend on either of those dates, could they please advise by COB Wednesday 20 November 2024.
On the 20 November 2024, the Father replied as follows:
Good morning Associate,
Whilst I put myself in the Tribunal's hands, I would have concerns for my mental wellbeing, if I were to continue to be cross-examined by the NDIS on this matter... I have discussed these concerns with my GP.
On the previous occasion, before Member Purcell, I was cross-examined at considerable length by the NDIS' barrister, Mr Hartnett... And the Tribunal would be aware, this process of this matter has now been ongoing for a year.
I note that, although I was permitted to make oral-submissions on the last occasion, the tribunal did not have sufficient time to permit for myself to direct any questions, whatsoever, to either the NDIS Representative or [the Mother].
So, in short, the NDIS has cross examined me at great length and I have not had the opportunity to cross examine them, in-turn.
If the Tribunal wishes to convene for a 1 hour hearing, I ask that such limited time be used to allow me to direct questions to the NDIS Representative and to [the Mother] accordingly, as I've not yet had opportunity to do this.
I do re-iterate that continuing to be cross-examined by the NDIS Solicitors and Barrister, will raise concerns for my mental health... And that the NDIS has had ample opportunity to put all questions to me during the Hearing.
With thanks
[the Father]

The Tribunal observes the Father did not file any material in relation to his mental health, nor was this raised as a consideration which might impact his participation at the interlocutory hearing or final hearing. The first hearing day commenced at 10am on Monday 28 October 2024 and concluded at approximately 2:50pm the same day, with a 45-minute lunch break. The Father was questioned for approximately 37 minutes before requesting a short adjournment. An adjournment of 15 minutes was granted. He was then questioned for a further 28 minutes. The Mother was then questioned for approximately 70 minutes until the lunch break. Both counsel and the Tribunal asked questions of the Father and Mother. Prior to the lunch break, the Mother informed the Tribunal she would need to leave by 2:50pm to pick up the children from school. The Tribunal shortened the length of the lunch break to allow a further 50 minutes for any final questions and submissions. All parties consented to this approach.
Accepting that the Father and Mother may not have had sufficient opportunity to ask questions of each other due to school pick-up arrangements, on the 21 November 2024, the matter was relisted for hearing on 16 December 2024 at 10am. The following Direction was sent to the parties:
The Tribunal DIRECTS:
1.On or before 29 November 2024, the Father must file with the Tribunal and give to the Respondent a list of no more than 12 questions he has for the Mother OR advise that he has no further questions.
2. On or before 29 November 2024 the Mother must file with the Tribunal and give to the Respondent a list of no more than 12 questions she has for the Father OR advise that she has no further questions.
3. Noting the ongoing tension between the parents, the Tribunal will not permit the Father or Mother to ask questions directly of each other at the resumed hearing.
4.The Respondent may seek leave from the Tribunal to ask a question of either the Father and/or the Mother at the hearing.
NOTATIONS
1. Hearing Process: The Tribunal will consider the questions submitted by the Father and/or Mother and will ask the other party any question that the Tribunal determines is sufficiently clear, relevant and not harassing or offensive.
2.The Respondent is not a witness in the proceeding and their legal representative may not be cross-examined at the hearing.
On the 29 November, the Father submitted 12 questions spanning 3 pages. The Mother did not submit any further questions.
At the resumed hearing on 16 December 2024, the Tribunal read each of the Father’s questions onto the record. The Tribunal then decided whether the question was a submission or a question. There were several questions where the premise of the question was factually incorrect or had already been addressed by the Mother in her oral evidence. One question was focused on Ritalin and therefore irrelevant to the Tribunal’s task while another asked the mother to speculate on the consequences of the Tribunal’s decision and was therefore disallowed. The Tribunal requested updates from the Mother on whether there were any new outstanding invoices and whether she had identified a possible OT for the Applicant. The Mother informed the Tribunal that she had submitted invoices on the NDIS portal for payment by the Respondent. She alleges that the Father had cancelled those requests and offered to send through additional screenshots. The Tribunal declined to receive any additional evidence on this point as sufficient evidence had already been filed in relation to the portal issue. The Mother said she had not yet been able to identify a new OT due to shortages in her region and noted the Applicant was on a wait list.
In arriving at its decision, the Tribunal has considered the documents contained in the Joint Hearing Bundle (JHB) which was accepted into evidence. This included:
·section 37 of the AAT Act (‘T-Documents’)
·a Statement of Facts, Issues and Contentions prepared by the Respondent dated 18 October 2024
·Various documents filed by the parents of the Applicant including copies of correspondence with service providers, correspondence with each other, family law documents, details of invoices for NDIS services, screen shots of the Applicant’s NDIS portal and submissions/correspondence to the Respondent and Tribunal.
Several documents omitted from the JHB were also admitted into evidence including:
(a)An email from the Applicant’s Early Childhood Coordinator responding to a request by the Father to give evidence, dated 19 August 2024, marked E1.
(b)A screen shot of the Applicant’s NDIA portal where the Father’s bank details are included on 22 October 2024, marked E2.
(c)The Father’s additional questions and submissions filed on the 29 November 2024, marked E3.
(d)An email from the Mother to the Tribunal dated 25 October 2024, marked E4.
LEGISLATIVE PROVISIONS
The NDIS was established under the NDIS Act. Its objectives are set out in section 3 and its general principles guiding actions taken under the NDIS Act are set out in section 4. Section 3(1)(c) relevantly states the objectives of the Act are to support the independence and social and economic participation of people with disability.
The relevant legislative provision in relation to management of NDIS funds include sections 43 and 44:
43 Choice for the participant in relation to plan management
(1) A participant for whom a plan is in effect or is being prepared may make a request (a plan management request):
(a) that he or she manage the funding for supports under the plan wholly or to the extent specified in the request; or
(b) that the funding for supports under the plan be managed wholly, or to the extent specified in the request, by a registered plan management provider he or she nominates; or
(c) that the funding for supports under the plan be managed wholly, or to the extent specified in the request, by the Agency.
(2) If a participant makes a plan management request, the statement of participant supports in the plan must give effect to the request, except to the extent set out in subsections (2A) to (6).
…
(3) If:
(a) a participant makes a plan management request covered by paragraph (1)(a); and
(b) subsection 44(1) applies in relation to the participant;
the statement of participant supports in the plan must provide for the funding for supports under the plan:
(c) if paragraph 44(1)(a) or (aa) applies—to be wholly managed by the Agency; and
(d) if paragraph 44(1)(b) or (c) applies—to be managed by the Agency to the extent covered by that paragraph.
44 Circumstances in which persons must not manage funding
Participant
(1) For the purposes of paragraph 43(3)(b), this subsection applies in relation to a participant if:
(a) the participant is an insolvent under administration; or
(aa) the participant has been convicted of an offence against a law of the Commonwealth, a State or a Territory that:
(i) is punishable by imprisonment for 2 years or more; or
(ii) involves fraud or dishonesty; or
(b) the CEO is satisfied that the participant’s management of the funding for supports under the plan to a particular extent would:
(i) present an unreasonable risk to the participant; or
(ii) permit the participant to manage matters that are prescribed by the National Disability Insurance Scheme rules as being matters that must not be managed by a participant; or
(c) the CEO is satisfied that section 46 (acquittal of NDIS amounts) would be unlikely to be complied with if the participant were to manage the funding for supports under the plan to a particular extent.
Whilst not explicitly framed in this way by the Father, the Tribunal understands the Father essentially contends section 43(3)(b) of the Act applies to the Mother because, in his view, the Mother cannot manage finances and is late paying invoices. He claims late payments interfere with the provision of disability supports to the Applicant, creating an unreasonable risk pursuant to section 44(1)(b) which justifies not giving effect to the Mother’s request to self-manage the funds under section 43(2). Section 43(3) is only enlivened if one of the matters set out in section 44(1) applies – discussed further below. In the alternative, it appears the Father contends the proper ‘choice’ that should be exercised under section 43(1) of the Act is a request for plan management or agency management of the Applicant’s NDIS funds.
Under subsection 209(1) of the NDIS Act, the Minister may make rules prescribing certain matters, which form part of the legislative framework. The relevant rules in this matter are the National Disability Insurance Scheme (Plan Management) Rules 2023 (Cth). In relation to the issue of risk in section 44(1), Rule 3.7 states:
If the participant is a child, or is represented by a plan nominee, the CEO is to have regard to the following:
(a) the capacity of the child’s representative or the plan nominee to manage finances;
(b) whether the child’s representative or the plan nominee has an interest that could lead a reasonable person to consider that NDIS amounts within their control might be spent other than in accordance with the participant’s plan;
(c) whether, and the extent to which, any risks could be mitigated by any safeguards or strategies the Agency could put in place through the participant’s plan.
ISSUES AND EVIDENCE
Father’s evidence and submissions
In his application for review dated 11 January 2024, the Father outlined why he thought the reviewable decision was wrong:
NDIA change my son's Plan from Plan Managed to Self Managed with (sic) my Consent... As a Child Representative for my son, alongside with his mother. I note, in the NDIS guidelines, that a child's Plan Management would need an application from BOTH Child Representative to change the Plan Management Type... I did not get consulted about this change (prior to it occouring) (sic) from either the NDIS or my son's mother.
To support my position, I have shown evidence to NDIS of my son's mother withholding payment to providers since the Plan became Self Managed, taking up to 6 months to pay providers (even though she has claimed monies from NDIS immediately on Provider Invoicing).[9]
[9] T001 of JHB, p6.
The Father told the Tribunal that 3 occupational therapists (OT) have ceased providing services to his son since 2020, essentially due to non-payment of invoices by the Mother. He alleges it has “taken 5 – 6 months for the Mother to pay an invoice, which has put a strain on providers”.[10] He indicated the Applicant is currently without an OT and his behaviour support therapy, provided by “Behaviour Support Provider 5 – VL” had been suspended for similar reasons. He described the cessation of these supports as “unsafe” for the Applicant and suggested the Mother was withholding public money.[11]
[10] Transcript, p10.
[11] Transcript, p20.
The Father claims that plan management is the most appropriate way to manage NDIS funds, particularly when parents are separated. He said, “most providers feel that it works best if it’s just plan managed or NDIA managed” but conceded “I realise this evidence isn’t compelling”.[12]
[12] Transcript, p25.
The Father told the Tribunal that his account has been the nominated bank account for the purpose of receiving NDIS funds “at one or two stages”.[13] He could not recall when those periods were. He confirmed he made his account the nominated account “because providers were ringing me, chasing payments of invoices and these include some of those invoices that were delayed up to six months… and so I requested that I could have those payments so I can remit the providers immediately”.[14] The Tribunal observes that the Father did not file any invoices showing an overdue payment of 5 or 6 months nor any emails evidencing providers chasing him for payment.
[13] Transcript, p20.
[14] Transcript, p21.
He claims the Applicant’s first OT provider “OT Provider 1 – MH” ceased providing services to the Applicant shortly after commencing therapy.[15] He estimates the second provider “OT Provider 2 – THO” lasted about 6 months. The third provider “OT Provider 3 – VH” worked with the Applicant for about 12 months which ended in August 2024.[16]
[15] Transcript, p23.
[16] Transcript, p23.
The Father did not file any material in relation to OT Provider 1 – MH. The Tribunal understands from the timeline that these services were provided in 2019 or sometime in the first half of 2020. The Applicant’s funds were plan-managed at this time.
The Father filed a report dated 28 October 2020 from OT Provider 2 – THO which noted that the Applicant had been discharged from the service.[17] The Applicant was also plan-managed at this time. The Father explained that he was concerned that he was not made aware of the Mother’s decision to stop seeing OT Provider 2 – THO. When asked what he would have liked to achieve if he had been informed or consulted, the Father replied, “I believe that question is in hindsight. I’m not comfortable with answering that question if that’s okay”.[18]
[17] See A33, p300.
[18] Transcript, p15.
The Father acknowledged that the Mother’s decision in relation to OT Provider 2 - THO pre-dated the Family Court order of 2023, but maintained other family court orders were in place to the same effect. These were not filed with the Tribunal. When asked about his understanding of sole parental responsibility, he replied, “I’m not going to answer that question without legal representation”.[19] He said the Mother is “not able to make that decision without writing me an e-mail and giving me the opportunity of seven days for a response”.[20] The following exchange took place:
[19] Transcript, p18-19.
[20] Transcript, p19.
Counsel: Okay. So it’s about the opportunity to seek a response. But, I just want to work through it, because if you do send that response, the response is received, but you don’t get a say in that decision apart from responding, do you?
Father:Sorry, this is hearsay, mate.
Counsel:No, it’s not. I’m asking you a question about whether you think that you’re entitled to make a decision about whether to continue with a particular service provider, or not?
Father: I’m entitled to expect the orders by consent of the Family Court to be abided by, thank you.
Counsel:Okay. So have you taken any steps to enforce the Family Court orders?
Father:I don’t understand your question?
Counsel:If you think that there’s been non-compliance with the Family Court’s orders, what steps, if any, have you taken about that non-compliance?
Father:Well, we’re here
…
Counsel:What I’ve been hearing in response to the questions that I’ve asked you is that you seem to be suggesting that you’re not participating in the decision to cease services is more to do with the Family Court order than it is about anything else and I’m just trying to get to the bottom of that..
Father:No, it’s very much in relation to the NDIS Act, thanks…[21]
[21] Transcript, p19 – 20.
As will be discussed below, the Tribunal is of the view that decisions in relation to NDIS services are properly considered a health matter and therefore not subject to the consultation clause outlined in the Family Court orders. The Father did not identify any concern about the actual decision to cease services beyond the alleged lack of compliance with Family Court orders. He later submitted that the interruption to services affected the Applicant’s development and integration into the community.
The Mother told the Tribunal that OT Provider 2 – THO made the decision to cease providing services. Her evidence suggests there was significant conflict between the parents at that time which may have partly prompted OT Provider 2 - THO to discontinue their services. The Mother told the Tribunal she also directed the Plan Manager not to pay an invoice for a 1-hour meeting between the OT and the Father,[22] because she was not invited to or involved in the meeting.[23]
[22] Transcript, p39-40.
[23] Transcript, p65.
The third OT from OT Provider 3 - VH began providing services to the Applicant about 12 months ago. The Father filed an email exchange dated 7 and 8 August 2024 whereby the OT raised the issue of unpaid invoices with the Mother, saying “outstanding payments leave OT Provider 3 - VH with no option other than to suspend OT services to [Applicant] until outstanding invoices are paid. I’m more than happy to recommence services once this is complete.”[24] The email also stated:
I have been informed that you have raised concerned (sic) about an invoice which relates to a meeting between myself, [the Father] and [the Applicant’s Behaviour Support Practitioner]. This meeting was completed, and subsequent invoice was raised, based on [the Father’s] inclusion as a child representative on [the Applicant’s] NDIS plan. There was also a query regarding time billed on 19^th June. This was time spent preparing for the interagency stakeholder meeting for [the Applicant]. You may recall I was unable to participate for the full meeting due to technology issues, but I spent time preparing for the meeting and was able to hear some of the discussion on that occasion.[25] (Tribunal’s emphasis)
[24] A32, p296-297.
[25] A32 of JHB, p1-2.
The Mother responded the following day:
I am glad you have come to this decision as I have already discussed discontinuing with you.
Is (sic) in [the Applicant’s] best interest as you have been incompetent in our agreement moving forward in 2024 with communication to BOTH parents which I have emailed you about to receive an apology as a response and then a continuation of no communication.
I have full parental responsibility health and medical which you are aware of… This is not the first contravention you have been part of.[26] (Tribunal’s emphasis)
[26] A32 of JHB, p1.
This issue will be discussed further below.
The Father emailed the Service Manager from “Service Provider 4 – BEC” which provides speech therapy to the Applicant on 25 June 2024:
Hi [Service Manager],
Hope you are well... I am currently in the process of asking the NDIS to revert [the Applicant’s] Plan, back from Self Managed, to Plan Managed. Can you please write me an email, showing the following:
1. Historically, has [the Mother] paid invoices unreasonably, beyond the due date... Any examples would assist (ie: Invoice No's, Due Dates, and Paid Dates)
2. Has historic unpaid invoices ever caused [Service Provider 4 – BEC] to consider suspending services to [the Applicant], whether or not this did occur. Feel free to let me know if any clarification of what is required needed.
With thanks
[The Father].[27]
[27] A018 of JHB, p260-261.
The Father subsequently filed a letter dated 13 August 2024 from Service Provider 4 – BEC which states:
Hi [Father],
Services for [the Applicant] during Term 4, 2022 were paused while [Service Provider 4 – BEC] was waiting for accounts to be paid. Services for [the Applicant] during Term 1, 2023 did not commence as we were waiting on paperwork from the school to be completed to allow [Service Provider 4 – BEC] staff entry to individual classrooms and for accounts to be finalised.
Regards,
Service Manager.[28]
[28] A26 of JHB.
The Tribunal asked the Father what led him to reach out to Service Provider 4 – BEC. He said “to assist the Tribunal to understand…a pattern of behaviour”.[29]
[29] Transcript, p27.
Later, the Mother explained the Term 4 invoices went unpaid in 2022 because she “had no idea what [she] was doing” after the plan became self-managed. The mother recalled being on the phone a lot and one person promising to send a manual to assist but this never eventuated. “And you know, we went around a few circles, got there eventually. Yes, I just toughed it out”.[30] She also explained there was a lot of paperwork that the school had to complete before services could be provided in a school environment. “[A]ll I do is like sign one document and then the rest if up to them, and they took their time”.[31]
[30] Transcript, p47.
[31] Transcript, p47.

The Father filed a spreadsheet of 23 invoices from Service Provider 4 – BEC between August 2023 and May 2024.[32] It purported to show the Mother had paid 16 invoices past the 7 day payment term, set out in the provider’s terms of service.[33] There was no evidence filed showing Provider 4 – BEC contacting either the Mother or the Father with concern about the late payment of invoices. In the Tribunal’s view, the correspondence from the Father to Provider 4 – BEC[34] does not reflect Provider 4 – BEC initiating contact with him because of concern about late payments. Rather, they tend to demonstrate the Father’s attempts to obtain evidence against the Mother in these proceedings, well after he filed his application with this Tribunal on 11 January 2024.[35] All but 4 invoices were paid by the Mother within 35 calendar days of the due date. The most overdue invoice, totalling $48.50 was paid 66 days late. The spreadsheet does not record any invoices between 20 July 2023 and 30 May 2024 as unpaid.[36]
[32] A23 of JHB.
[33] A025 of JHB.
[34] A018 of JHB, p260-261
[35] See also A028 - a letter filed by the Father from the plan management provider dated 7 August 2024 regarding the cessation of services at the Mother’s request in September 2022.
[36] See T001C of JHB, p16-17.
The Father also claimed during the hearing that the Applicant’s behaviour support had recently been suspended.[37] An email from the Behaviour Support Practitioner (BSP) dated 21 October 2024 does not support this contention, with the Mother requesting a single meeting be cancelled “until the issues with the invoicing can be resolved.”[38] The BSP’s attendance at the meeting with the paediatrician on the 12 August 2024 suggests he has been actively involved with the Applicant.[39] As will be discussed below, there were issues with invoicing because the Mother was unable to pay the provider after funds from the Respondent were re-directed to the Father’s bank account.
[37] Transcript, p23-24.
[38] A40 of JHB, p322-323.
[39] A30 of JHB, p293.
The Father also claims the Mother isn’t providing Ritalin to the Applicant in accordance with the paediatrician’s instructions. He filed 3 reports from the Applicant’s paediatrician in support of this submission. The Father added: “the only reason I’m providing that…[is] to show a pattern of behaviour which I believe to be coercive in the sense that I believe there’s more interest here in having control over [the Applicant’s] funds than paying his providers.”[40] The Tribunal notes the Paediatrician wrote on the 5 February 2024: “It sounds as if [the Mother] will often omit Ritalin on the weekends, [the Father] on the other hand would prefer to give Ritalin on the weekend and this is fine”.[41]
[40] Transcript, p10
[41] A042 of JHB, p328-329.
On the 12 August 2024, the Paediatrician wrote:
Given the afternoon behavioural issues, I have suggested a change to Ritalin LA 30mg in the morning. [The Mother] has some Ritalin 10 mg tablets remaining and I have suggested that these could be given to [the Father] as there are quite a few of them, and these could assist [the Father] with weekend behaviours. He could give 1 tablet in the morning and 1 tablet at midday on weekends and during vacation periods. This might settle a long standing dispute between the parents on this medication issues.[42]
[42] A042 of JHB, p330-331.
The Father also filed a series of email exchanges with the Mother dated between 22 August and 18 October 2024 which essentially reflect a dispute between the parents about the desirability of the Applicant taking Ritalin when not at school.[43] On the 28 August 2024, the Father wrote:
Hi [Mother],
You are notified that if all Ritalin 10mg Tablets are not returned at changeover on Friday, 30th August 2024, as per [the Paediatrician’s] suggestion in his report, instructions to commence Legal proceedings will be undertaken.
You are advised that there is record of [Applicant’s primary school] having returned 63 off Ritalin 10mg Tablets to you, and this record will be submitted in evidence, along with Dr McCrossin's report, dated 12th August 2024.
Your email confirms that you have only passed on 43 off Ritalin Tablets.
With thanks,
[Father].[44] (Tribunal’s emphasis)
[43] A043 of JHB.
[44] A043 of JHB, p335.
The same day the Mother replied:
43 tablet is more than enough for now.
Please refer to work completed by Behavioral Therapist in the mean time (sic).
[The Applicant] does very well without Ritalin at my end I hope in time you can accomplish the same.
Please refer also again to exactly how the Meeting went and how the report is worded in regards to [the Paediatrician’s] report.[45]
[45] A043 of JHB, p335.
In the Tribunal’s view, the disagreement about the dose of Ritalin is wholly irrelevant to the questions to be decided in these proceedings. The Tribunal has no power with respect to the dose of Ritalin prescribed or given to the Applicant. However, the filing of the above material and the Father’s oral evidence does suggest he has sought to use these proceedings to ventilate grievances with respect to the Family Court orders and against the Mother more generally.
In relation to disputed invoices, where the mother did not attend meetings with the OTs from OT Provider 2 – THO and OT Provider 3 – VH, the Tribunal asked the Father if there was any reason why details of those meetings had not been communicated to the Mother. The Father asserted that the Mother had been invited to meetings. The Mother denied this had ever occurred.[46] The Tribunal notes that earlier in the hearing, when asked by counsel whether the Father had met with OT Provider 3 – VH without the Mother’s knowledge, the Father replied, “Yes, I did, and I met with – yes. Yes, is the short answer”.[47]
[46] Transcript, p65.
[47] Transcript, p18.
Mother’s evidence and submissions
The Mother indicated she decided to request self-management in August 2022 because she was experiencing a range of issues with plan management. She explained she had communicated with someone from the NDIS who suggested she self-manage the funds:
Because I told them in depth the complications and (indistinct). Sorry. And yes, so that’s what I did. Because I had no choice. In my mind I had no choice. And the person was very supportive. I’ve communicated with this person from the NDIS on many occasions about complications. And desperate times call for desperate measures.[48]
[48] Transcript, p29.
The Mother’s evidence suggests she was concerned about both a lack of communication from the plan manager and the Applicant’s “fairly limited” funds being spent on services that did not directly involve him. She described the Father holding meetings with service providers without her knowledge or involvement and then charging the costs associated with those meetings against the Applicant’s plan. “I have communicated to all providers that, you know, debriefs via email to both parents are something I want” and that if communications are charged against the Applicant’s plan “it needs to involve both parents”.[49] The Mother acknowledged the Father plays a significant role in the Applicant’s life but submitted that as the child lives with her, it is in his best interests that she be kept “in the loop”.[50] She said: “But we’re dealing with some massive power and control issues and someone who has a lot more time on their hands than I do”.[51]
[49] Transcript, p30.
[50] Transcript, p38.
[51] Transcript, p31.
The Mother confirmed both parents have meetings with therapists, usually twice a term. The Father filed evidence showing the parents had meetings with the Applicant’s paediatrician most recently on 23 November 2023, 5 February 2024 and August 2024.[52] The Mother explained the Father “wants it more often than that” and “still wants one-on-one”.[53] Other than his right to obtain information from providers under the Family Court orders, the Father did not appear to offer any explanation as to why he requires separate meetings with the Applicant’s service providers.
[52] A042 of JHB, p326-331.
[53][53] Transcript, p38.
In relation to the issue with OT Provider 3 – VH described above at [54] and [55], the Mother denied there was several unpaid invoices from that service. She explained that earlier in the year she had reached an agreement with the OT who would allocate 10-15 minutes from each session to prepare an email update to both parents.[54] Following the meeting between the Father, the OT and the behaviour support practitioner (BSP) from Provider 5 – VL, the BSP contacted the Mother to inform her of the meeting and to offer a similar arrangement. The Mother asserts this is the first she knew of the meeting.[55]
[54] Transcript, p42.
[55] Transcript, p49.
In relation to OT Provider 3 – VH, the Mother described initially coming across something which indicated her son was receiving services from Service Provider 3 – VH. She contacted them and discovered the Applicant was seeing a therapist at school who she knew nothing about; pointing out to them that the address recorded on their system was 2.5 hours from his public school.[56] It is concerning to the Tribunal how this occurred without the Mother’s knowledge or consent, noting the Family Court orders.
[56] Transcript, p65.
The Mother explained she is up to date with paying NDIS invoices except for 3 recent invoices totalling $905.29. In relation to these outstanding amounts, she told the Tribunal she submitted 1 invoice from Provider 4 – BEC for speech pathology and 2 invoices from Provider 5 – VL for behavioural therapy to the Respondent for payment.[57] Usually, payment is received from the Respondent into her account within 24 hours and she then pays the funds to the providers. [58]
But twice this month, and I’ve got proof, as soon as I submit invoices, [the Father] changes the bank details. And the first time he did it, which was the 14^th of October, $905.20. And that’s what’s lead to [the Applicant] losing his supports at the moment because I can’t pay the bills because I don’t have the money.
[57] A044 of JHB, p338-340. See also Transcript p33.
[58] Transcript, p33.
She explained to the Tribunal that when this happens, the Father’s bank details effectively override hers and results in the funds being deposited into the Father’s account. The Mother confirmed she had screen shots of these most recent changes on the NDIA portal.[59] The Tribunal invited her to file the screen shots of the changes to the NDIA portal and the 3 outstanding invoices described above during the lunch break.[60]
[59] Transcript, p36.
[60] Transcript, p 37. These documents are contained in A044 of JHB.
Prior to hearing, the Mother had filed screen shots of the Applicant’s NDIS portal, which showed her bank details were replaced by the Father’s bank details on 6 June 2023,[61] 14 June 2023,[62] and 19 June 2023.[63]
There was one time though, like when he changed the bank details, he might have got a number wrong and then the payments weren’t clearing for weeks and hadn’t realised that he had changed it… and then I changed it and as soon as I changed it, it went straight through.[64]
[61] A007 of JHB.
[62] A008 of JHB.
[63] A009 of JHB.
[64] Transcript, p35.
The Father later claimed that some of the bank changes “have been done in error by the NDIS” and that it “might be a computer problem”. He denied changing the bank account details on the portal in October 2024.[65] He added, “I’ve already admitted in my submissions that I have made changes in the past in order to have providers paid, and I’ve paid those providers within seven days”.[66] He also gave evidence that on occasion he has received funds in his account and he wasn’t sure who it was for, so he called the Applicant’s providers to see where the money belongs.[67]
Counsel: [The Mother] knows where it belongs, doesn’t she. Because she would get the invoice?
Father: I would assume she does.
Counsel:So…I’m wondering why you would change the bank account details in those circumstances?
Father:I’ve answered that suggestion. I didn’t change the bank account details in October.
[65] Transcript, p52-53.
[66] Transcript, p52.
[67] Transcript, p53.
When asked whether he updated the portal with his bank details on the 14 October 2024, he replied, “I didn’t update my bank account on that date, but I did notice funds were paid into my accounts”.[68] He said he paid two of the invoices from the money received but conceded he was yet to pay the third because he was waiting on a copy of the invoice and “with everything that was going on here, I didn’t follow that up”.[69] By the time of the resumed hearing on 16 December 2024, this invoice had been paid.
[68] Transcript, p52.
[69] Transcript, p55.
In her email to the Tribunal dated 25 August 2024, the Mother claimed:
Being 7 years of constant harassment, I find myself investing time and money that would be better used caring for my son being the applicant... [The Father] is red flagged in NSW Police records for being vexatious towards me. Although this is in place NSW Police have apologetically visited my home within the past 2 weeks.
…
Recently an Invoice came through dated 31/07/2024. It was $630 when usually the Invoice from this service is around $240. I started to investigate which resulted in a heated email from the applicants Occupational Therapist. Please find attached Document 8 for reference and please note claims of Invoices outstanding from May is incorrect.[70]
[70] A12 of JHB, p251.
The Tribunal understands the invoice for $630 is from OT Provider 3 – VH and includes the costs of the meeting held between the OT, the BSP and the Father, as described above.
In relation to the issue of police attendance, the Mother explained, “it used to be worse, but they red flagged him. I don’t know whether he was aware of that, but now he is. So I don’t see [the Police] as often”.[71] She said when the police come “our eldest child gets this look in his face, eh, you know, he’s about to turn 10… The amounts of times the police have come to my old home, to this home, you know, most families don’t have that”.[72]
[71] Transcript, p48.
[72] See Transcript, p48. The Tribunal re-listened to this part of the recording which was marked indistinct in the Transcript.
The Tribunal found the Mother to be forthcoming and candid in her evidence, and appropriately child-focused. She acknowledged that it was a steep learning curve when she first took over the management of the Applicant’s funds in late 2022, lamenting that there was not a manual to assist her in the early days. However, it is clear to the Tribunal that she now has a good understanding of the payment process. Her explanations of the portal system and her payment of current invoices suggest she is both capable and diligent with respect to managing the Applicant’s funding. Whilst there have been some late payments, the Tribunal is not satisfied on the evidence that this has significantly interrupted any services to the Applicant, particularly in the past year.
Respondent’s submissions
The Respondent submits it was bound to give effect to the Mother’s plan management request unless the CEO formed a positive state of satisfaction that there would be a risk of harm to the child Applicant in the proceedings. The Respondent contends the evidence presented at the time of the original decision and internal review, and throughout the hearing does not cause them to have that requisite state of satisfaction that such arrangements pose a risk.
The Respondent contends that the provisions of section 44 of the NDIS Act are not engaged because:
·Section 44(1)(a) – there is no evidence the Mother is insolvent under Administration.
·Section 44(1)(aa) – there is no evidence that the Mother has been convicted of an offence punishable by imprisonment for 2 years or more or which involves fraud or dishonesty.
·Section 44(1)(b) – there is no evidence of an unreasonable risk to the Applicant who is a child, as described by Rule 3.7 (see below).
·Section 44(1)(c) – there is no evidence the Mother has not complied with section 46 regarding the spending of NDIS funds in accordance with the plan.
With respect to Rule 3.7, Mr Hartnett for the Respondent submitted:
(a)There was no evidence of any impaired capacity or any dangerous finance management behaviours in these proceedings.
(b)There is no evidence that the Mother has an interest that could lead a reasonable person to consider that NDIS amounts within her control might be spent other than in accordance with the plan. While some payments have been made late, funds have not been misused for some other purpose.
(c)The final consideration regarding the use of strategies or safeguards to manage any risk is irrelevant because no risk has been identified.
The Tribunal agrees.
FINDINGS AND CONSIDERATION
The Tribunal finds that the first and second OT ceased providing services to the Applicant during a period when his funds were plan-managed.
The evidence supports a finding that at least two invoices have not been paid in circumstances involving conflict between the parents. This first occurred with OT Provider 2 – THO and more recently with OT Provider 3 – VH. The Tribunal is satisfied the recent failure to pay the OT Service Provider 3 – VH invoice arose in the context of an OT failing to appropriately consult with the Mother, as the person with sole parental responsibility for health and medical issues.
The Tribunal prefers the evidence of the Mother which was corroborated by the email exchange with the OT on the 7 and 8 August 2024. The Tribunal accepts that the Mother did not know about the meeting until the BSP told her and that she had previously raised the issue of communication with the OT. The Tribunal finds the Mother understandably objected to the expenditure of NDIS funds for a meeting she did not know about, attend nor approve. This objection does not constitute ‘late payment’; rather it demonstrates the Mother effectively self-managing the funds over which she has authority and responsibility.
The Mother said she doesn’t enjoy the extra responsibility of self-management, particularly as she knows the NDIS will pay someone else to do it. However, she has often felt it the only way to ensure providers communicate with her.[73] The Mother indicated she was in discussions with a local plan manager provider.[74] Irrespective of the Tribunal’s decision, the Mother retains the authority to appoint a plan manager or request agency management should she choose to do so.
[73] Transcript, p31.
[74] Transcript, p36.
Apart from a period of adjustment to self-management, there is no evidence of significant late payments arising from a lack of financial management capacity or recklessness on the Mother’s part. The Tribunal accepts there have been some periods where services have been interrupted for a range of reasons including non-payment of invoices however there is no objective evidence that this has caused any harm to the Applicant nor that it poses an unreasonable risk to his safety, wellbeing or development. The Respondent submitted that the evidence of bank account details being changed was more causative of recent payment problems than self-management and if that were to give rise to a risk, it would be a risk created by the Father. The Tribunal agrees.
The changing of bank account details on the portal disrupted the timely payment of 3 invoices in the month prior to the hearing. It is clear the Mother bears no responsibility for this disruption and would clearly prefer that such changes stop. The Tribunal does not accept the Father’s claim that such changes have occurred due to systems or computer errors. Rather, the changes seem to reflect an attempt by him to undermine the Mother’s management of NDIS funds. This is particularly concerning given the current proceedings before the Tribunal.
The Tribunal is satisfied that the Applicant has been receiving a range of capacity building supports with relative consistency since becoming a NDIS participant.
RELEVANCE OF THE FAMILY COURT ORDERS

During the proceedings, the Father repeatedly contended that despite being a child representative, he was not consulted by the Mother before she made her request to self-manage the Applicant’s NDIS funds. He also submitted that he was not properly involved in decision-making with respect to the ongoing management of funds and supports by the Mother. The Tribunal is of the view that there is some utility in expressing an opinion on the application of the Family Court orders to this matter, noting that the issue seemed to be central to the Father’s case. This does not affect the findings or decision on an otherwise relatively narrow legal question at the heart of this review.
Parental responsibility is defined in section 61B of the Family Law Act 1975 (Cth) (Family Law Act) to mean ‘all the duties, powers, responsibilities and authority which, by law, parents have in relation to children’. The default position is that all parents have parental responsibility for their children. This is expressly subject to any order of a family court.[75] A ‘parenting order’ is defined in section 64B of the Family Law Act. The allocation of parental responsibility is one of the matters that can be included in a parenting order.[76] Pursuant to the Family Law Act, a court has the power to alter, change or otherwise affect how the ‘default position’ operates. Parenting orders often distribute parental responsibility between parents on an ‘equal shared’ basis.
[75] Family Law Act 1975 (Cth) s 61D.
[76] Ibid s 64B(2).
The May 2023 parenting orders allocated parental responsibility between the Mother and Father on an equal shared basis except for health and medical decisions, with the Mother allocated sole parental responsibility for those two issues. The order also relevantly states:
2. a) In the exercise of her Parental Responsibility for medical issues, the Mother shall provide the Father with notice of her intention to make any long-term decisions for the children by sending the Father an email prior to the making of the decision. The Father shall respond by email to the Mother to make any comment within 7 days and thereafter the Mother shall make the final decision and notify the Father of it within 7 days of making the said decision.[77]
…
4. That the Mother shall keep the Father advised in relation to medical issues pertaining to the children and shall ensure that the Father is promptly advised of any major medical decision with respect to the Children, and the Father pursuant to this order is authorised to speak with and obtain information from any medical practitioner or therapist engaged with the Children without the need of the Mother’s consent.
[77] T004, p36.
The effect of the parenting order is such that the Mother has no obligation to consult the Father (except to the extent stated in the order in relation to long-term medical issues) about decisions she makes in respect of the Applicant’s health or about non-long-term medical issues, such as, for example, taking the child to a general practitioner if he is unwell.
The question arises whether, in this case, the request to self-manage the Applicant’s NDIS funding and the ongoing management of his funding properly falls within the concept of health. Relevantly, the World Health Organisation (WHO) provides some guidance on this issue through its International Classification of Functioning, Disability and Health (ICF) which classifies human function in the context of a ‘health condition’.[78]
ICF puts the notions of ‘health’ and ‘disability’ in a new light. It acknowledges that every human being can experience a decrement in health and thereby experience some disability. This is not something that happens to only a minority of humanity. ICF thus ‘mainstreams’ the experience of disability and recognises it as a universal human experience. By shifting the focus from cause to impact it places all health conditions on an equal footing allowing them to be compared using a common metric – the ruler of health and disability.[79]
[78] World Health Organisation, (2011), International Classification of Functioning, Disability and Health, Geneva.
[79] World Health Organisation (2002), Towards a Common Language for Disability Functioning and Health, ICF, Geneva, WHO/EIP/GPE/CAS/0.1.3 (WHO: 2002) at page 3.
As a significant international framework for measuring health and disability, the NDIS Rules require the CEO to have regard to the ICF when specifying assessment tools.[80] The ICF’s conceptualisation of ‘disability’ suggest an inherent link to health. This, of course, does not discount the social barriers that may compound or exacerbate experiences of disability.
[80] See Part 7 of the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)(“Access Rules”) and Part 4 of the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (“Supports Rules”) empower the CEO to specify assessment tools for the purpose of deciding whether a person meets the access requirements or relating to a decision about participant supports. Rule 4.6(b) of the Access Rules and Rule 7.5(b) of the Supports Rules provides such a tool must have reference to areas of activity and social and economic participation identified in the ICF.
In this case, the Applicant experiences impairments associated with ASD, such as speech difficulties and challenges with emotional regulation. The NDIS funds reasonable and necessary supports,[81] such as speech therapy and behaviour support to help ameliorate the impact of the Applicant’s impairments on his functional capacity, for example, to communicate and participate effectively in school. These supports, along with occupational therapy, are clearly understood to be allied health supports.[82]
[81] See sections 33 and 34(1) of the NDIS Act.
[82] For example, see NDIS Pricing Arrangement and Price Limits 2024-25, p56 -
Accordingly, in the Tribunal’s view, the Mother’s request to self-manage the Applicant’s NDIS funds and her ongoing management and expenditure of those funds, including choice of providers, should properly be considered health (and disability) related decisions. This NDIS matter does not involve consideration of medical interventions alongside NDIS supports and the Ritalin issue sits firmly within the purview of the Applicant’s paediatrician and/or general practitioner.[83] While final interpretation of Family Court orders is ultimately a matter for the Family Courts, the Tribunal is of the view that the Mother is not required to consult with the Father on NDIS-related decisions in this case because such decisions are not long-term medical decisions.
[83] See Rule 7.5 of the National Disability Insurance Scheme (Supports for Participants) Rules 2013.
The Father is authorised to speak with and obtain information from the Applicant’s medical practitioners or therapists without the Mother’s consent. This does not mean he has authority to spend the Applicant’s NDIS funds on meetings or other costs associated with obtaining such information.
The Father contended that the NDIS Operational Guideline – Child Representatives[84] requires separated parents to consult with each other before making decisions. The guideline relevantly states:
If both parents have parental responsibility, both parents can be the child representatives for NDIS purposes, even if they are separated.
Unless an order made under the Family Law Act 1975 or a law of a state or territory removes parental responsibility, the parent, or parents, who were already the child representative will continue.
We expect parents to talk to each other before doings things or making decisions about NDIS matters.
We have a duty of care to make sure that whoever is representing the child is the most appropriate representative for the child specifically for NDIS matters. If separated parents are unable to work together on NDIS matters then we may decide only one parent should be the child representative.[85]
[84]
[85] Child Representatives guideline, p15.
Operational Guidelines represent government policy and should ordinarily be applied by the Respondent (and Tribunal) unless there is good reason not to do so.[86] In this case, there was not only a good reason to depart from the expectation that the “parents will talk to each other before doing things or making decisions about NDIS matters”, there was a legal requirement to do so by order of the Family Court.
[86] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at [635].
DECISION
The Tribunal finds the Respondent was obliged to give effect to the plan management request made by the Mother pursuant to section 43(1)(a) of the NDIS Act. The provisions of section 44(1) are not enlivened. The Mother managing the Applicant’s funds does not present a risk to the child, let alone an unreasonable one.
The Tribunal affirms the decision under review.

Date(s) of hearing: 28 October 2024 and 16 December 2024

Advocate for the Applicant: Mother and Father of XRCW

Counsel for the Respondent: Mr A Hartnett, Counsel

Solicitors for the Respondent: Ms I Heath, Maddocks

[2024] ARTA 79

19 December 2024

Key Legal Topics

Areas of Law

Administrative Law

Legal Concepts

Administrative Review

Statutory Interpretation

Jurisdiction

Res Judicata

Unjust Enrichment

Risk Management

Date(s) of hearing:	28 October 2024 and 16 December 2024
Advocate for the Applicant:	Mother and Father of XRCW
Counsel for the Respondent:	Mr A Hartnett, Counsel
Solicitors for the Respondent:	Ms I Heath, Maddocks