The National Disability Insurance Scheme (NDIS) plays a crucial role in supporting individuals with disabilities in Australia. Administered by the National Disability Insurance Agency (NDIA), it offers tailored NDIS plans to help participants achieve their goals and enhance their quality of life.
This article explores the intricacies of the NDIS and investigates the divergent perspectives within the judicial landscape, focusing on the recent Federal Court decision in Klewer v National Disability Insurance Agency1 (Klewer), and the subsequent Administrative Appeals Tribunal (Tribunal) decision in Pavlakis and National Disability Insurance Agency2 (Pavlakis). These decisions have raised questions about the scope and nature of Tribunal reviews, specifically regarding whether:
The NDIA provides funding by way of the NDIS. Under the NDIS, eligible persons with a disability (known as Participants) are provided a plan to assist them to gain greater independence, access to new skills, jobs, or volunteering opportunities, and an improved quality of life.
NDIS plans are unique to each Participant and contain a Statement of Participant Supports (SPS) which is reviewed periodically to reflect the progress or changing needs of the Participant.
If a Participant considers that their NDIS plan is not able to achieve its intended purpose, they may seek an internal review of the NDIS plan decision. If the NDIA chooses to affirm its decision, the Participant may seek a review of this decision in the Tribunal.
Section 42D of the Administrative Appeals Tribunal Act 1975 (Cth) (Act) allows, at any stage of a proceeding for review of a decision, the Tribunal to remit the decision to the person who made it for reconsideration of the decision by the person. Upon remittal under section 42D the original decision maker may affirm, vary or set aside the decision.
While Tribunal proceedings are underway and new information comes to light, or the original NDIS plan expires, it is often the case that an “interim” NDIS plan is provided to the applicant under section 42D of the Act.
In the recent Federal Court of Australia decision of Klewer, the Court determined that an “interim” NDIS plan made pursuant to section 42D of the Act replaces the original NDIS plan as the decision under review.
The Court found that:
This was a welcomed finding for NDIS Participants with a section 42D interim plan, as these interim plans are made parallel to the Tribunal proceedings and take into consideration any new information that has come to light, thus resulting in a plan more suited to the Participant and their needs.
Following the court's ruling in Klewer, the Tribunal handed down an inconsistent decision in the case of Pavlakis.
Plavakis outlines and highlights the divergence in opinion within the judicial landscape on this topic by reference to various Federal Court decisions including Klewer, QDKH v National Disability Insurance Agency3 (QDKH), and McGarrigle v National Disability Insurance Agency4 (McGarrigle).
Firstly, the Tribunal referred to the finding in Klewer that the Tribunal could, in its assessment of decision under review, limit itself to reconsidering only the supports requested by the participant. The Tribunal noted that this conclusion was inconsistent with that in QDHK, which determined that the Tribunal is to stand in the shoes of the original decision maker, conduct a full merits review of the support plan, and determine for itself the decision that should be made. The Tribunal’s role is therefore to re-make the original decision, taking into account all relevant information (not just focusing on the supports that the participant raises).
Secondly, the Tribunal referred to the conclusion in Klewer that a plan amended as a result of review proceedings led to the creation of a new plan.
The Tribunal observed that this finding was inconsistent with the Court’s decision in McGarrigle which determined that the function of the Tribunal is to approve, vary or modify the supports in the existing plan and, by virtue of various other provisions in the NDIS Act, does not give the Tribunal (or original decision maker) the power to create a new plan or end the original plan. McGarrigle specifies that although a different SPS may be inserted into the plan, it is not a “new plan” that is generated.
Ultimately, the Tribunal in Pavlakis chose to follow the reasoning in QDHK and McGarrigle rather than Klewer, saying that following a section 42D remittal, if the original decision maker specifies additional supports, or other features of the SPS that are expressly within power (having regard to section 33(2) of the NDIS Act), it is open to the original decision maker to re-issue the original plan, with the updated SPS, however, it is not within the statutory power of the original decision maker to issue a new plan.
The inconsistency between the decisions of the Federal Court raises questions about how the Tribunal should conduct its reviews of NDIS decisions and whether it has the flexibility to choose a more limited scope of review or is obligated to conduct a full and thorough re-evaluation of all relevant aspects.
It is worth noting that, as a matter of procedure, the Court in Klewer was required to consider the legislative framework as it was at the time of the original Tribunal decision, being early 2022.
On 1 July 2022 the legislative framework was updated to incorporate a number of changes, most relevantly, section 103 to the NDIS Act which states that if the NDIA varies or makes the participant a new plan (i.e. to provide new funding), then the review application is also taken to be an application for review of the new plan. That is, the Tribunal retains jurisdiction to merits review the original plan that triggered the review, and any plans made after that until it finally determines the application but does not replace the original plan the subject of the review proceedings.
Recent legal developments, particularly the Klewer case and subsequent Tribunal decisions, have brought into focus the intricate nature of NDIS plans and the review process. The varying interpretations within the judiciary regarding the scope of Tribunal reviews highlight the complexity of balancing participants' needs and the scheme's operational framework.
Moreover, the evolving legislative landscape, marked by changes introduced in July 2022, underscores the importance of a clear legal framework in guiding NDIS proceedings. While these developments may bring clarity to some aspects of the NDIS, they also raise questions about the flexibility of the Tribunal in conducting reviews.
In the ever-evolving realm of disability support, it is crucial for participants, their advocates, and service providers, to stay informed about the latest legal interpretations and legislative changes.
If you require legal advice in relation to your NDIS Tribunal proceedings, please contact the Litigation and Dispute Resolution team at Lavan.
1  FCA 630.
2Pavlakis and National Disability Insurance Agency  AATA 2485.
3QDKH, by his litigation representative BGJF v National Disability Insurance Agency  FCAFC 189.
4 FCA 308.