Burke Lawyers recently proudly represented NDIS participant, Mr Deayton, in defending an appeal by the National Disability Insurance Agency (NDIA).
The NDIA was appealing against a decision by the former Administrative Appeals Tribunal (AAT) regarding funding for certain supports under the National Disability Insurance Scheme (NDIS). The matter was heard before His Honour Justice Hill at the Federal Court of Australia in Melbourne.
Decision
On 16 September 2024, the AAT directed the NDIA to provide funding for a number of supports for Mr Deayton.
The NDIA's appeal to the Federal Court included several grounds, arguing that the AAT:
- misconstrued the NDIS Act and the Supports Rules;
- failed to consider certain submissions; and
- improperly approved partial funding for electricity usage.
The AAT found that the supports were reasonable and necessary under the NDIS Act, and His Honour Justice Hill of the Federal Court upheld this finding, rejecting the NDIA's arguments.
The Federal Court found no error in the AAT’s interpretation of the NDIS Act and the Supports Rules, and it concluded that the Tribunal had considered the NDIA's submissions.
Transitional Rules
The NDIA also argued that legislative amendments effective from 3 October 2024 (being, the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024) prevented it from implementing the AAT’s directions.
Notably, despite the AAT direction on 16 September 2024, the NDIA did not implement a new NDIS Plan for Mr Deayton which included those directions.
His Honour Justice Hill rejected this and determined that the legislative amendments did not prevent the NDIA from implementing the AAT’s decision.
Whilst the legislative amendments have changed the definition of what supports can be funded under the NDIS, the National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (“the Transitional Rules”) specifically ensured that any supports ordered by the AAT before the legislative amendments continued to be available to affected participants like Mr Deayton.
The rules require only that the AAT’s decision have been made before the date the legislation came into effect, not that the supports had already been included in an updated NDIS plan.
Outcome
The Federal Court dismissed the NDIA's appeal, affirming the Tribunal's decision to approve funding for the supports in question. The Court ordered the NDIA to implement the Tribunal's decision without delay.
This case provides clarification to participants as to how the Transitional Rules apply with relation to any decisions of the AAT/ART made prior to the commencement of the amending legislation in October 2024.
The Team at Burke Lawyers can assist with any internal or external review of a decision made by the NDIS.
