ZDMW and Chief Executive Officer, National Disability Insurance Agency (Practice and procedure) - [2025] ARTA 2293

ZDMW and Chief Executive Officer, National Disability Insurance Agency (Practice and procedure) [2025] ARTA 2293 (24 October 2025)
Applicant/s:  ZDMW
Respondent:  Chief Executive Officer, National Disability Insurance Agency
Tribunal Number:                2024/9763

Tribunal: General Member A Colvin
Place:Brisbane
Date:24 October 2025

Decision:The application for an order under subsection 32(2) of the Administrative Review Tribunal Act 2024 is dismissed.

..................SGD..................
General Member A Colvin
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – practice and procedure – application for stay of reviewable decision – subsection 32(2) of the Administrative Review Tribunal Act 2024 – deemed refusal to vary plan – remittal – preparation of new plan – stay refused
Legislation
Administrative Review Tribunal Act 2024 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
Cases
GAP-AAA and GAP-AAB; Child Support Registrar [2024] ARTA 1
Salathiel and CEO, National Disability Insurance Agency (Practice and procedure) [2025] ARTA 1366
Stephan-Miller and National Disability Insurance Agency (Practice and procedure) [2025] ARTA 43
Lewis and National Disability Insurance Agency (Practice and procedure) [2025] ARTA 391
Allied Asia Holdings (Aust) Pty Ltd v Australian Securities and Investment Commission [2022] FCA 566
Duncan v Companies Auditors Liquidators Disciplinary Board and Others [2006] FCA 1747
ZNVT by his Nominee and CEO, National Disability Insurance Agency [2025] ARTA 1824
PTJR and CEO, National Disability Insurance Agency [2025] ARTA 196
Pizzini and CEO, National Disability Insurance Agency [2025] ARTA 486

Statement of Reasons

ZDMW is an adult participant in the National Disability Insurance Scheme (NDIS). On 17 June 2024 a new participant plan came into effect for ZDMW, starting on that date and ending on 17 June 2025 (the 2024 plan).
In November 2024, ZDMW lodged an application with this Tribunal seeking review of a decision made by the Chief Executive Officer of the National Disability Insurance Agency (Agency). On 27 February 2025 a differently constituted Tribunal determined that the Tribunal has jurisdiction to review a deemed decision of the Respondent dated 22 October 2024 not to vary ZDMW’s 2024 plan.
The matter was remitted to the Respondent for reconsideration. On reconsideration, the Respondent prepared a new plan for ZDMW with a start date of 24 March 2025 and reassessment date of 23 March 2026 (the current plan).
ZDMW applied for a stay, stating in her application that she sought orders:
·     to stay the implementation of the current plan;
·     to extend the 2024 plan for an additional 12 months; and
·     that all funding not spent in the first year of the 2024 plan be rolled over and included in the extended 2024 plan.
The application for a stay was listed for hearing on the papers on 26 September 2025, with directions made on 19 August 2025 regarding filing of material regarding that application. Both parties consented to the stay application being determined in the absence of the parties and I am satisfied for the purposes of subsection 106(2) of the Administrative Review Tribunal Act 2024 (Cth) (ART Act) that the issues…

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: ZDMW and Chief Executive Officer, National Disability Insurance Agency (Practice and procedure) [2025] ARTA 2293
Case: [2025] ARTA 2293
Decision Date: 24 October 2025

CaseChat Overview and Summary

The case before the Administrative Appeals Tribunal involves ZDMW, a participant under the National Disability Insurance Scheme (NDIS), and the Chief Executive Officer of the National Disability Insurance Agency (NDIA). The dispute revolves around the NDIA's refusal to vary ZDMW's NDIS plan, and ZDMW's subsequent application for a stay of the reviewable decision. The Tribunal was required to determine whether it should grant a stay under subsection 32(2) of the Administrative Review Tribunal Act 2024 and if the reviewable decision was properly identified and implemented.

The central legal issue was whether the Tribunal had correctly identified the reviewable decision and whether the NDIA had properly exercised its discretion under the NDIS Act to vary ZDMW's plan. Specifically, the court needed to determine if the deemed refusal to vary the 2024 plan was properly affirmed, and if the NDIA's subsequent decision to approve the Statements of Participants’ Supports (SOPS) in the current plan was an appropriate exercise of its powers.

The Tribunal found that the reviewable decision was the deemed refusal to vary ZDMW's 2024 plan, affirmed after the 90-day review period. On remittal, the Tribunal held that the NDIA did not set aside the deemed decision to not vary the plan but instead affirmed it. The Tribunal considered the NDIA's subsequent approval of the SOPS in the current plan to be a new decision made under section 48 of the NDIS Act. The court found that the NDIA's actions were within its powers and that the reviewable decision was correctly identified. Consequently, the Tribunal refused the application for a stay of the reviewable decision.

The Tribunal's decision was grounded in the proper interpretation of the NDIS Act and the Administrative Review Tribunal Act 2024, ensuring that the NDIA's actions were in accordance with the statutory framework. The Tribunal emphasised the limited scope of its power to make orders affecting the parties, which is restricted to the operation or implementation of the reviewable decision. The court concluded that the NDIA had properly exercised its discretion and that the reviewable decision was correctly identified and implemented.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The SOPS in ZDMW’s current plan include total funded supports of $156,084.72. Of this, $23,214.96 is for capacity building supports (all of which are stated supports) and $132,869.76 is for core supports. Within core supports, there is funding of $110,007 as a plan-managed stated support for ‘home and living’ and $21,078.72 for assistance with social, economic and community participation. Regarding home and living funding, the SOPS state that the funding is for exploration and design of a potential ILO with a chosen provider and that the service proposal should reflect ILO Support Level 1 as this level is considered suitable and appropriate. The reviewable decision The power in subsection 32(2) of the ART Act is not a broad or general power to make orders affecting the parties to a review. It is limited to making an order staying or otherwise affecting the operation or implementation of the reviewable decision. I have therefore set out below what I consider to be the ‘reviewable decision’ in this matter. On 27 February 2025 a differently constituted Tribunal determined that ZDMW had sought changes to the 2024 plan, namely recategorisation of funding and a variation of funding periods or plan reassessment dates. These were valid variation requests within section 47A of the NDIS Act. The Tribunal considered that the Respondent was deemed to have decided not to vary ZDMW’s 2024 plan, by virtue of subsection 47A(5) of the NDIS Act. A deemed decision under subsection 47A(5) of the NDIS Act not to vary a plan is a reviewable decision under section 99 of the NDIS Act. Having failed to review that decision within 90 days, the Tribunal determined that the Respondent was taken to have affirmed its decision not to vary the plan, by virtue of subsection 100(6A) of the NDIS Act. The Tribunal considered that its jurisdiction extended to considering the nature of the variations requested by ZDMW and remitted the matter to the Respondent under subsection 85(1) of the ART Act. On remittal, under section 85 of the ART Act it was open to the Respondent to affirm or vary the deemed decision. It was also open to the Respondent to set aside that decision and make a new decision in substitution. The Respondent contends that it set aside the deemed decision not to vary the 2024 plan, under section 47A of the NDIS Act and substituted a new decision, under section 48, with the effect that the reviewable decision became the decision to approve the SOPS in the current plan. However, where a participant requests variation of a plan, the Respondent is required to do one of three things: vary the plan, not vary the plan, or request more information: subsection 47A(4) of the NDIS Act. In my view therefore on remittal these were the permissible decisions the Respondent could make, pursuant to subsection 85(2) of the ART Act. It could set aside the deemed decision and substitute a decision to vary the 2024 plan, or it could set aside the deemed decision and substitute a decision to request more information. Alternatively, it could affirm the earlier decision not to vary the plan. In my view, on reconsideration it affirmed its earlier decision to not vary the 2024 plan.[5] The Respondent then conducted a reassessment under section 48 of the NDIS Act on its own initiative, as it is entitled to do at any time. [5] If it did not make that decision expressly, it is taken to have done so under subsection 47A(5) of the NDIS Act.

Ratio Decidendi

Legal Principle Established

The Respondent did not address ZDMW’s assertion that there was an error in the current SOPS, preventing her from accessing supports for ADL.CONSIDERATIONThe SOPS in the 2024 plan and the current plan The SOPS in ZDMW’s 2024 plan included total funded supports of $159,232.57 of which $22,014.93 was capacity building supports and core supports accounted for $137,217.64. In relation to core supports, the SOPS identified that core supports included $20,426.64 in flexible core funding for social, community and civic participation, and $5,000 for a stated support and this was for ‘individualised living options – exploration and design’. The SOPS indicated that Individualised Living Option (ILO) Support Level 1 (of $105,000) was considered suitable and appropriate and should be reflected in the service proposal, but otherwise did not specify core supports. The SOPS in ZDMW’s current plan include total funded supports of $156,084.72. Of this, $23,214.96 is for capacity building supports (all of which are stated supports) and $132,869.76 is for core supports. Within core supports, there is funding of $110,007 as a plan-managed stated support for ‘home and living’ and $21,078.72 for assistance with social, economic and community participation. Regarding home and living funding, the SOPS state that the funding is for exploration and design of a potential ILO with a chosen provider and that the service proposal should reflect ILO Support Level 1 as this level is considered suitable and appropriate. The reviewable decision The power in subsection 32(2) of the ART Act is not a broad or general power to make orders affecting the parties to a review. It is limited to making an order staying or otherwise affecting the operation or implementation of the reviewable decision. I have therefore set out below what I consider to be the ‘reviewable decision’ in this matter. On 27 February 2025 a differently constituted Tribunal determined that ZDMW had sought changes to the 2024 plan, namely recategorisation of funding and a variation of funding periods or plan reassessment dates. These were valid variation requests within section 47A of the NDIS Act. The Tribunal considered that the Respondent was deemed to have decided not to vary ZDMW’s 2024 plan, by virtue of subsection 47A(5) of the NDIS Act. A deemed decision under subsection 47A(5) of the NDIS Act not to vary a plan is a reviewable decision under section 99 of the NDIS Act. Having failed to review that decision within 90 days, the Tribunal determined that the Respondent was taken to have affirmed its decision not to vary the plan, by virtue of subsection 100(6A) of the NDIS Act. The Tribunal considered that its jurisdiction extended to considering the nature of the variations requested by ZDMW and remitted the matter to the Respondent under subsection 85(1) of the ART Act. On remittal, under section 85 of the ART Act it was open to the Respondent to affirm or vary the deemed decision. It was also open to the Respondent to set aside that decision and make a new decision in substitution. The Respondent contends that it set aside the deemed decision not to vary the 2024 plan, under section 47A of the NDIS Act and substituted a new decision, under section 48, with the effect that the reviewable decision became the decision to approve the SOPS in the current plan.