YGBW and Chief Executive Officer of the National Disability Insurance Agency (NDIS) - [2025] ARTA 1054

YGBW and Chief Executive Officer of the National Disability Insurance Agency (NDIS) [2025] ARTA 1054 (21 July 2025)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number: 2023/9058

Re: YGBW

APPLICANT

And Chief Executive Officer of the National Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Senior Member J Collins
Date:21 July 2025
Place:Brisbane

DECISION

Pursuant to section 105 (c)(ii) of the Administrative Review Tribunal Act 2024 (Cth) the decision under review is set aside. The matter is remitted to the Agency for reconsideration with a direction that:

1. Within 14 days of this decision YGBW’s statement of participant supports specifies the following supports as reasonable and necessary:
·24 hours per day of high intensity support worker assistance;
·8 hours per day of health supports provided by a registered nurse;
·164 hours of speech therapy;
·100 hours of Level 3, specialist support coordination.

2.    The date by which the Agency must reassess YGBW’s plan is to be 12 months after the date on which the supports in (1) above are included in YGBW’s statement of participant supports.
3.    All other supports in YGBW’s existing statement of participant supports are to be replicated pro-rata from the date of this decision until the reassessment date.
4.    That YGBW’s plan include the notation that YGBW’s Level 3, specialist support coordination funding as referred to in (1) may be used to also fund Level 2 coordination supports.
5. YGBW’s plan is to be plan managed pursuant to section 42(2)(b) of the NDIS Act.

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

Senior Member J Collins

Catchwords

NATIONAL DISABILITY INSURANCE SCHEME – cerebral palsy – global developmental delay – epilepsy – visual impairment – hearing impairment – chronic lung disease – severe dysphasia management – airway and respiratory management – enteral feeding and management – reasonable and necessary supports – high intensity support worker – high intensity daily personal activities – registered nursing support – high intensity support worker – delegated model of care – anat baniel therapy – remedial massage – travel insurance premium – support coordination - trexo robotic system – rifton pacer – short term accommodation – culturally diverse – ability to use supports overseas – grace period – consideration of section 34 National Disability Insurance Scheme Act 2013 (Cth)) – decision set aside and remitted to the Respondent

Legislation

Administrative Review Tribunal Act 2024 (Cth) s105
National Disability Insurance Scheme Act 2013 (Cth) s34, s35
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024

Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act)

National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (‘Transitional Rules’)

National Disability Insurance Scheme (Supports for Participants) Rules - 1 July 2013, (‘Supports Rules’) National Disability Insurance Scheme (Provider Registration and Practice Standards) Rules 2018
National Disability Insurance Scheme (Plan Management) Rules 2013

Cases

G v Minister for Immigration and Border Protection [2018] FCA 1229
McGarrigle v National Disability Insurance Agency [2017] FCA…

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.

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Details

AGLC: YGBW and Chief Executive Officer of the National Disability Insurance Agency (NDIS) [2025] ARTA 1054
Case: [2025] ARTA 1054
Decision Date: 21 July 2025

CaseChat Overview and Summary

YGBW, a participant in the National Disability Insurance Scheme (NDIS), sought judicial review of a decision by the National Disability Insurance Agency (NDIS) to deny funding for additional supports and services. The case was heard by the Administrative Review Tribunal. The dispute centred on the adequacy of the current support plan for YGBW, who has multiple complex health conditions including cerebral palsy, global developmental delay, epilepsy, visual and hearing impairments, and chronic lung disease. The primary legal issues were whether the proposed supports, such as additional high-intensity support workers, registered nursing support, anat baniel therapy, and the provision of specific equipment like the trexo robotic system and rifton pacer, were reasonable and necessary under the NDIS Act. Additionally, the court had to consider the appropriateness of the delegated model of care, the need for culturally diverse support, and the ability to use the proposed supports overseas.

The Tribunal examined the evidence presented by both parties and assessed whether the NDIS had properly exercised its discretion in denying the requested supports. The Tribunal found that the NDIS had not adequately considered the totality of YGBW’s needs and the necessity of the proposed supports, particularly in the context of her severe dysphasia management, airway and respiratory management, and enteral feeding. The Tribunal concluded that the NDIS had failed to provide a reasoned explanation for the refusal of funding and that the decision was therefore flawed. As a result, the Tribunal set aside the decision and remitted it to the NDIS for reconsideration, directing that the decision-maker take into account the evidence and arguments presented during the review process.

In light of the Tribunal's findings, the NDIS was required to reassess the application for additional supports, ensuring that all relevant factors were considered and appropriately weighed. The Tribunal's decision underscored the importance of thorough and reasoned decision-making in the context of NDIS funding approvals, emphasising the need for a comprehensive evaluation of each participant's unique needs.

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

On 1 December 2023 the Agency affirmed its original decision to refuse funding for these additional supports (‘the decision under review’). [3][3] T2. YGBW subsequently applied to the Administrative Appeals Tribunal (‘AAT’) for a review of the decision under review on 1 December 2023.[4] [4] T1. From 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal. YGBW’s plan has since that time been reviewed. At the time of the hearing YGBW’s plan and SOPS were for the period 14 June 2024 to 14 June 2025.[5][5] B2. At the hearing YGBW was not legally represented. Her mother M and father F advocated on her behalf. The Agency was represented by Mr Hartnett of Counsel, instructed by Maddox Lawyers.

Ratio Decidendi

Legal Principle Established

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