Federal Court of Australia

Australian Epic Health Services Pty Ltd v National Disability Insurance Agency [2025] FCA 449

ORDERS

THE COURT ORDERS THAT:

1.    The Applicant’s amended originating application is dismissed.

2.    The Applicant pay the Respondent’s costs to be agreed or taxed in default of agreement.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

HILL J:

INTRODUCTION

1    This is an application to review a decision made by the Respondent (the Agency) on 17 January 2025, which rejected 273 claims for payment made by the Applicant (Epic Health) under the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act). The Agency rejected those claims on the basis that Epic Health had not provided sufficient information to substantiate them; in particular, Epic Health had not provided any information about the nature and extent of the services provided. In outline, Epic Health contends that the Agency’s decision to reject these 273 claims is legally unreasonable, or illogical or irrational, because:

    the Agency approved 50 travel claims which (it was said) were only payable if support services were provided, which meant the Agency’s reasoning process was internally contradictory in so far as the Agency rejected the 50 claims for support services that were associated with the approved travel claims;

    Epic Health provided other documents relating to the support services claims (such as timesheets, payslips, travel logs and invoices), which established the time and date that services were provided, the identity of the service provider and of the National Disability Insurance Scheme (NDIS) participant to whom the services were provided. It was said to be legally unreasonable, or illogical and irrational, for the Agency to reject the 273 claims in these circumstances, particularly when Epic Health had offered to provide more information if required.

2    For the reasons set out below, Epic Health has not met the high threshold required to establish that an administrative decision is legally unreasonable, or illogical or irrational in a legal sense. The amended originating application must therefore be dismissed. There does not seem to be any reason why costs should not follow the event; however, I will hear from the parties on whether there is a reason to depart from the usual position.

Background

3    Applicant: Epic Health has been registered as a provider of supports and services under the NDIS since October 2019. It operates from three locations across Melbourne in Dandenong, Preston and Reservoir. NDIS funding is its sole source of funding.

4    Before 28 June 2024, Epic Health submitted numerous payment requests to the Agency for services provided to NDIS participants, and those requests were processed automatically. However, since 28 June 2024, the Agency has conducted “manual reviews” of payment requests made by Epic Health, with different payment requests grouped together under an “RTP” (“request to provide”) identifier.

5    RTP notices and initial decisions (Jul-Oct 2024): Between July and October 2024, the Agency conducted several reviews of payment requests posted by Epic Health, grouped together under the following five RTP identifiers:

    RTP0351: The Agency sent a request for information (or RFI) to Epic Health on 8 July 2024 about payment requests posted between 28 June and 2 July 2024. On 12 August 2024 the outcome of the review was to cancel 18 payment requests totalling $35,188.47.

    RTP0403: The Agency sent an RFI on 10 July 2024 about payment requests posted on 8 July 2024. On 16 September 2024 the outcome of the review was to cancel 47 payment requests totalling $73,105.

    RTP0421: The Agency sent an RFI on 29 July 2024 about payment requests posted between 9 and 17 July 2024. On 19 September 2024 the outcome of the review was to cancel 140 payment requests totalling $93,081.96.

    RTP0562: The Agency sent an RFI on 9 August 2024 about payment requests posted on 5 August 2024. On 16 September 2024 the outcome of the review was to cancel 20 payment requests totalling $73,994.40.

    RTP0582: The Agency sent an RFI (dated 9 August 2024) on 12 August 2024 about payment requests posted between 28 June and 7 July 2024. On 10 October 2024 the outcome of the review was to cancel 118 payment requests totalling $164,108.69.

6    Although the Agency has sent other notices to Epic Health since then, these proceedings concern payment requests covered by the five RTP identifiers set out above.

7    Reasons for cancellation: Each decision notifying the outcome of review attached a review outcome document, which set out in table form details of the payment request and a column titled “reasons”, which contained a brief statement for the outcome in respect of that payment request. Those reasons varied somewhat as between the different RTP identifiers:

    With RTP0351, payment requests were mostly cancelled for the stated reason of “overservicing” or “not in accordance to participant’s plan”.

    With RTP0403, all payment requests were refused for the sole stated reason that “No case notes submitted hence there is insufficient information to validate the claim”.

    With RTP0421, all payment requests were refused for the sole stated reason that “No case notes as such information provided is deemed insufficient to validate the claim”.

    With RTP0562, all except two of the payment requests were refused for the sole stated reason that “No case notes, reference number does not match invoice number”. The other two claims in this cohort were refused for the stated reason of “No support logs submitted covering this period; No case notes, reference number does not match invoice number”.

    With RTP0582, all payment requests were refused for the sole stated reason that “only part 1 of zip file was received which has invoices,serv agreements and case notes for period 22-28/06. No sufficient information to validate claims”.

8    Initial cancellation decisions set aside by consent (9 Dec 2024): On 29 October 2024, Epic Health sought judicial review in this Court of these cancellation decisions, in proceedings VID1148/2024. These proceedings concerned not only the cancellation decisions set out above (referred to as the “determined claims”), but also other requests for payment that had not been determined by the Agency at that time (called the “undetermined claims”). On 9 December 2024, Justice Horan made consent orders setting aside the cancellation decisions set out above relating to the determined claims, on the basis that the Agency accepted “that it did not provide [Epic Health] with sufficient procedural fairness prior to rejecting the determined claims”. In addition, these orders required (relevantly):

    by 13 December 2024, the Agency to invite Epic Health, in writing, to provide evidence or submissions on certain issues in relation to the determined and undetermined claims;

    by 24 December 2024, Epic Health to respond to that invitation; and

    by 17 January 2025, the Agency to make a decision on the determined claims in accordance with law (and make a decision by the same date on the undetermined claims).

9    Agency invitation to comment (13 Dec 2024): On 13 December 2024, the Agency sent Epic Health an invitation to comment, as required by the orders of Horan J. The invitation set out, and sought comment on, information received by the Agency that may be considered adverse to Epic Health. Relevantly for present purposes, the invitation set out the following:

8.    Information AEHS has provided the Agency suggests AEHS has not failed substantiated [sic] that certain claimed supports have in fact been provided. Details of this are set out in Annexure A to this letter and the claims are set out in Attachment A to this letter.

Our initial view is that this information is relevant to AEHS’s payment claims and may lead the Agency to doubt whether services AEHS claims to have provided to participants were (i) in fact provided, (ii) appropriately provided in accordance with participants’ plans; and (iii) payable pursuant to s 45 of the NDIS Act in the absence of credible corroborative information suggesting they are payable.

…

Annexure A

RTP0351, RTP0403, RTP0421, RTP0562

•    The Agency has considered each payslip relied on to substantiate the payment claims. The Agency has formed the preliminary view that the payslips were unreliable to substantiate the legitimacy of payments that were alleged to be made to employees as they:

o    Consistently round up figures to the dollar amount and did not contain decimal amounts. For example, tax withheld amounts were rounded up to the nearest dollar. This is inconsistent with regular calculations, and tax withheld amounts were incorrect based on calculations inputted into the ‘Tax Withheld Calculator’ on the ATO website. and

o     Lacked standard information that is ordinarily included in payslips such as year to date figures, relevant award rates, associated classifications and whether the employee was casual or part time, and

o     Included inconsistent sized fonts.

o    This information gave the perception that the document had been manually altered and not produced through a payment invoice software,

•    Community Supports (Access, community, social and recreational activities)

o    In combination with considerations pertaining to the payslips, the Agency did not receive any support notes to show what specific supports had been provided to the NDIS participant. Support notes are vital for the Agency to authenticate who rendered the support, what support was provided and whether the support accorded with what was claimed.

•    Assistance in Supported Independent Living

o    In combination with considerations pertaining to the payslips, the Agency did not receive any support notes to show what specific supports had been provided to the NDIS participant. Support notes are vital for the Agency to authenticate who rendered the support, what support was provided and whether the support accorded with what was claimed.

•    Access with self-care activities

o    In combination with considerations pertaining to the payslips, the Agency did not receive any support notes to show what specific supports had been provided to the NDIS participant. Support notes are vital for the Agency to authenticate who rendered the support, what support was provided and whether the support accorded with what was claimed.

•    Short Term Accommodation and Respite

o    In combination with considerations pertaining to the payslips, the Agency did not receive any support notes to show what specific supports had been provided to the NDIS participant. Support notes are vital for the Agency to authenticate who rendered the support, what support was provided and whether the support accorded with what was claimed.

RTP0582

•    The Agency does not have sufficient evidence to substantiate the fact that services have been rendered in accordance with the plan.

•    [Epic Health] has failed to provide case notes and pay slips to substantiate that the claimed supports have in fact been provided.

•    The Agency was not able to substantiate claims as invoices, support coordination case notes and service agreements alone are insufficient to substantiate what service was rendered, who rendered the service, which participant benefited from the service and whether the service accorded with the claim for payment by way of duration and specific service.

•    Our initial view is that this information is relevant to the claims you have made.

10    Epic Health response (23 Dec 2024): On 23 December 2024, Epic Health emailed a letter responding to the Agency’s invitation to comment, again in accordance with the orders of Horan J. This response stated that enclosed with that letter were all the documents submitted to the Agency in respect of (relevantly) RTP0351, RTP0403, RTP0421, RTP0562, and RTP0582. The letter then listed the types of documents that were provided for each RTP matter. For RTP0351, RTP0403, and RTP0582, the documents that were said to be provided included “Case Notes”.

11    Epic Health’s letter gave the following response about the lack of case notes for support services, raised by point 8 in the Agency’s invitation to comment (set out in [9] above):

Lack of case notes for support services

87.    It is extremely concerning that the [Agency] appears to use the failure to provide case notes for support services as something which leads the [Agency] to doubt whether services [Epic Health] claims to have provided to participants were in fact provided.

88.    [Epic Health] was not asked to provide case notes for support services, the only request for the first six payment claims was for case notes for support coordination services (which we do not provide).

89.    It was on this basis that the [Agency] conceded that it did not afford [Epic Health] procedural fairness in the Federal Court proceeding, and to use this as evidence to deny [Epic Health]’s payment claims would again be a denial of procedural fairness and would be unreasonable.

90.    In any event, [Epic Health] includes with this letter all case notes for support services, noting these have not been requested.

12    Although these statements suggest that Epic Health provided case notes to the Agency, as explained below, I find on the evidence before the Court that case notes for support services were not provided at this time.

13    Epic Health’s letter also stated:

96.    … If the [Agency] has any remaining concerns about specific claims, we welcome the opportunity to provide further specific information in respect of those specific claims. We consider that it would be legally unreasonable to deny the payment claims more broadly in the circumstances where we have provided supporting evidence corroborating the claims.

14    Agency decision (Jan 2025): On 17 January 2025, the Acting General Manager of the Fraud Fusion Taskforce and Integrity Capability within the Agency made a decision (called “Outcome of manual review of claims for payment”), which is the decision under review. This decision covered both what the orders of Horan J referred to as the determined claims, as well as the undetermined claims (relating to additional RTP references RTP1083, RTP1341, and RTP1362). The Agency approved 50 claims for payment, but rejected the other 2,232 claims. As explained below, this proceeding concerns 273 of the unsuccessful claims.

15    The decision letter stated that its decision did not prevent Epic Health from submitting the rejected claims again:

The [Agency]’s decision to reject 2,232 claims does not prevent the resubmission of the rejected claims for payment. You are encouraged to provide any additional documents or information that substantiates these claims and identify which claim/s the document/s relates to.

16    The Agency’s reasons are set out in Addendum A to the decision letter. In summary:

    The decision-maker considered that, to establish that a claim submitted by Epic Health is payable under the Act, he needed to be reasonably satisfied the supports that were the subject of the claims were in fact provided, and were payable in accordance with the relevant participants’ plans and the Act. The decision-maker stated that he had considered the matters raised in Epic Health’s response to the invitation to comment, but did not consider that those matters would meet the requirement of reasonable satisfaction, in the absence of corroborative information.

    In the case of 50 payment claims, the decision-maker was satisfied based on the available information, including the additional information provided by Epic Health (such as invoices, timesheets, case notes, travel logs and other material such as support worker details, support logs and payslips) that the amounts claimed were payable under the Act. The 50 approved claims were then listed by payment number.

    In the case of 1,959 payment claims, no documentary material (in addition to Epic Health’s correspondence with the Agency) was provided by Epic Health to substantiate them. In the absence of any credible documentation or information demonstrating the nature and extent of supports said to be provided, and to whom they were provided, there was insufficient information to allow the decision-maker to be reasonably satisfied that the amount was payable. The 1,959 rejected claims were then listed by payment number.

    In the case of 273 payment claims, the decision-maker reasoned as follows:

… these claims are supported by an invoice, timesheet, staff payslip and support logs. However, there is no information before me describing the nature and extent of the supports. The information shows hours allegedly worked by a support worker, which support worker allegedly delivered the support and what participant who allegedly received the support, but the information does not disclose what specific support was provided to the participant.

The decision-maker considered that this was insufficient to enable him to be reasonably satisfied that the supports were in fact provided, and provided in accordance with the participants’ plans and the Act. The 273 rejected claims were then listed by payment number.

17    These proceedings concern the Agency’s decision to reject the 273 payment claims. Epic Health does not challenge the rejection of the other 1,959 payment claims.

18    As a preliminary matter, Epic Health observed in oral argument that the chronologies for the relevant RTPs in the Agency’s decision letter referred (erroneously) to Epic Health providing a response on 25 December 2024, which meant (it was said) that the Agency must have considered only correspondence from Epic Health’s solicitors which bore that date, not the substantive response of 23 December 2024. However, it is clear from the way that the Agency described Epic Health’s response to the invitation to comment elsewhere in the decision letter that the Agency had regard to the correct document, and that the reference to 25 December is in the nature of a typographical error. Indeed, Addendum A refers (correctly) to Epic Health’s letter dated 23 December 2024.

19    Originating application (Feb-Mar 2025): On 12 February 2025, Epic Health filed an originating application seeking relief against the Agency under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act). Epic Health has since filed amended originating applications on 5 March 2025 and 21 March 2025. The operative amended application seeks orders that the decisions to cancel the 273 payment claims be quashed and re-determined in accordance with law and after affording Epic Health procedural fairness. Initially, the operative grounds were grounds 4 to 8; however, at the hearing, Epic Health pressed only grounds 4 and 8.

20    Grounds 4 and 8 both contend that the Agency’s decision was legally unreasonable, or illogical or irrational, but focus on different aspects of the Agency’s reasoning process:

    Ground 4 contends that it was internally contradictory for the Agency to approve 50 claims (that are said to be travel claims) but also refuse the 50 support service claims that were associated with those travel claims. This ground, if established, would affect only 50 of the 273 claims rejected which are the subject of review.

    Ground 8 contends, in substance, that it was legally unreasonable for the Agency to refuse the relevant claims on the basis that without case notes there was insufficient evidence to substantiate them, in circumstances where (i) Epic Health had already provided other information that was sufficient (it was said) to substantiate those claims; (ii) Epic Health had indicated that it was willing to provide further material if required; and (iii) (it was said) the Agency had not indicated in its RFI letters that it required case notes for support services. This ground, if established, would apply to all 273 claims.

21    The relevant grounds of review under the ADJR Act are those contained in s 5(1)(f) (error of law, whether or not the error appears on the record of the decision) and s 5(1)(e) read with s 5(2)(g) (an exercise of power so unreasonable that no reasonable person could have exercised the power). Neither party submitted that there is any difference between the content of these grounds under the ADJR Act, and the content of legal unreasonableness or illogicality and irrationality at common law.

22    Evidence: Epic Health relies on an affidavit of Mr Anil Bathini (its director) affirmed on 28 February 2025. That affidavit was admitted, subject to certain passages that were in the nature of submissions not being read. The Agency relies on an affidavit of Mr Nicholas Todd Winton (a Branch Manager in the Agency) affirmed on 3 April 2025, which was admitted without objection. Neither witness was cross-examined.

Legislative Scheme

23    Objects (NDIS Act s 3): The objects of the NDIS Act are set out in s 3(1), and include to provide reasonable and necessary supports, including early intervention supports, for participants in the NDIS (s 3(1)(d)). In giving effect to these objects, regard is to be had to the matters in s 3(3), which include “the need to ensure the financial sustainability of the [NDIS]” (s 3(3)(b)).

24    Participants and their plans (NDIS Act Ch 3): Chapter 3 of the NDIS Act deals with participants and their plans:

    A person becomes a participant in the NDIS when the CEO of the Agency decides that the person meets the access criteria (s 28).

    If a person becomes a participant, the CEO must facilitate the preparation of the participant’s plan (s 32(1)). The NDIS Act deals separately with the content of “new framework plans” (a concept added in October 2024) and “old framework plans”. An old framework plan must include the participant’s statement of goals and aspirations, and a statement of participant supports (s 33(1) and (2)).

    The statement of participant supports in an old framework plan, which is to be prepared with the participant and approved by the CEO, must specify (among other things) the general supports (if any) that will be provided to, or in relation to, the participant; the reasonable and necessary supports (if any) that will be funded under the NDIS; and the management of the funding for supports under the plan (ss 33(2)(a), (b) and (d)).

25    Managing the funding for supports (NDIS Act Ch 3, Pt 2, Div 3): Part 2, Div 3 in Ch 3 of the NDIS Act deals with managing the funding for supports under participants’ plans.

26    Managing the funding for supports: For the purposes of the NDIS Act, the phrase “managing the funding for supports” under a participant’s plan means doing one or more of purchasing the supports identified in the plan (including paying any applicable indirect costs, such as taxes, associated with the supports), or receiving, managing or acquitting any funding provided by the Agency (s 42(1)). In specifying the management of the funding for supports under a participant’s plan, the plan must specify that such funding is to be managed wholly, or to a specified extent, by the participant, a registered plan management provider, the Agency or the plan nominee (s 42(2)). A participant may request that the funding for supports under his or her plan either be self-managed, or be managed by a nominated registered plan management provider or by the Agency (s 43(1)).

27    Payment of amounts payable (s 45): Section 45 makes the following provision for the payment of amounts payable under the NDIS (focusing for present purposes on payments under old framework plans):

45    Payment of amounts payable under the National Disability Insurance Scheme—general

(1)     An amount payable under the National Disability Insurance Scheme in respect of a participant’s plan is to be paid:

(a)    to the person determined by the CEO; and

(b)    either:

(i)    in accordance with the National Disability Insurance Scheme rules prescribed for the purposes of this subparagraph; or

(ii)    if there are no such rules—in the manner determined by the CEO.

(2)     Paragraph (1)(b) extends to dealing with:

(a)    whether amounts are to be paid in instalments or as lump sums; and

(b)    if amounts are to be paid in instalments—the amounts of those instalments; and

(c)    the timing of payments of amounts.

(3)    The National Disability Insurance Scheme rules may provide that an amount is not payable to a person until the person nominates a bank account into which the amount is to be paid.

(4)    The Agency must not pay an amount under the National Disability Insurance Scheme to any person in respect of a participant’s plan if:

…

(c)    the plan is an old framework plan and the payment would result in any of the following events occurring:

(i)    the total amount of funding provided under the plan for reasonable and necessary supports exceeding the total funding amount specified in the plan;

(ii)    the total amount of funding provided under the plan for reasonable and necessary supports in a group of supports to which a funding component amount relates exceeding that funding component amount;

(iii)    if the plan specifies funding periods for all reasonable and necessary supports funded under the plan, taken as a whole—the total amount of funding provided under the plan for such supports during a funding period exceeding the amount of funding for such supports that is to be provided under the plan during the funding period;

(iv)    if the plan specifies funding periods for one or more groups of reasonable and necessary supports—the total amount of funding provided under the plan for supports in such a group during a funding period for that group exceeding the amount of funding for supports in that group that is to be provided under the plan during the funding period.

…

28    Section 45(4) is subject to the exceptions in s 45(5) (such as where the CEO is satisfied that the relevant event would occur because the participant has experienced fraud or financial exploitation: s 45(5)(a)).

29    Need for a claim (s 45A): Section 45A, which came into effect on 3 October 2024, provides that an amount is not payable under the NDIS in respect of the acquisition or provision of a support under a participant’s plan unless the CEO is satisfied (among other things) that the claim is in the approved form; and includes any information, and is accompanied by any documents, required by the CEO (s 45A(3)).

30    Acquittal of NDIS amounts (s 46): Section 46(1) provides that a participant who receives an NDIS amount, or a person who receives an NDIS amount on behalf of a participant, must spend the money in accordance with the participant’s plan. The NDIS rules may make provision for and in relation to the retention of records of NDIS amounts paid to participants and other persons, or the retention of records by NDIS providers that receive NDIS amounts on behalf of participants, including requiring that prescribed records be retained for a prescribed period (s 46(2) and (3)).

31    Protection of NDIS amounts (s 46A): Section 46A further provides that an NDIS amount is “absolutely inalienable, whether by way of, or in consequence of, sale, assignment, charge, execution, bankruptcy or otherwise”, subject to the provisions relating to debt recovery contained in Pt 1 of Ch 7, such as s 182 (debts due to the Agency).

32    NDIS Plan Management Rules, Pt 4: Sections 45 and 46 of the NDIS Act refer to payments being made and records provided in accordance with the NDIS rules, made under s 209 of that Act. Relevantly, Pt 4 of the National Disability Insurance Scheme (Plan Management) Rules 2013 (Cth) (NDIS Plan Management Rules), as these Rules were called at the time, deals with the timing and manner of payment of “NDIS amounts”. An “NDIS amount” is defined in s 9 of the NDIS Act to mean “an amount paid under the [NDIS] in respect of supports (other than general supports) funded under a participant’s plan”.

33    Part 4 of the NDIS Plan Management Rules relevantly provides:

Part 4 Payment of NDIS amounts

4.1    A participant’s plan specifies, among other things, the reasonable and necessary supports (if any) that will be funded under the NDIS. Amounts paid under the NDIS in respect of such supports are known as NDIS amounts.

4.2    NDIS amounts are to be paid to the participant, or to a person who is managing the funding for supports under a participant’s plan, in accordance with this Part.

Paragraphs 4.1 and 4.2 summarise paragraph 33(2)(b) and section 45 of the Act.

…

34    Agency functions (NDIS Act s 118): Chapter 6 of the NDIS Act deals with the Agency, which is established by s 117. The Agency’s functions are set out in s 118, and include:

    to manage, and to advise and report on, the financial sustainability of the NDIS, including by identifying and managing risks and issues relevant to the financial sustainability of the NDIS (s 118(1)(b)(ii));

    to prevent, detect, investigate and respond to misuse or abuse of, or criminal activity involving, the NDIS (whether systemic or otherwise) where this relates to (relevantly) claims for payment under the NDIS (s 118(1)(ba)(i)); and

    to do anything incidental or conducive to the performance of the above functions (s 118(1)(h)).

35    2024 amendments: The NDIS Act was amended by the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 (Cth) (2024 Amendment Act), which added provisions such as s 45(4) and (5), s 45A and s 118(1)(ba) (see Sch 1 items 74, 74A and 103A). The 2024 Amendment Act commenced on 3 October 2024 (see s 2(1)).

36    The Agency relies on the following statements in the Revised Supplementary Explanatory Memorandum SK118 to the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Bill 2024 (Cth) (at pp 7-8):

Claims and Payments Framework

The NDIS Act does not currently have a legislated claims and payments framework, which means it is unclear as to how people, including participants and providers, may make ‘claims’ for NDIS amounts and how and when the Agency must ‘pay’ relevant amounts.

New provisions will be inserted into the NDIS Act to establish a legislative claims and payments framework for the National Disability and Insurance Scheme (Scheme). The provisions legislate the Agency’s current operational practice but provides set parameters and more clarity around how the framework operates. The new provisions will provide a more streamlined process for participants and providers, with specific legislative requirements that will determine when a claim will or will not be paid.

The Agency processes approximately 400,000 claims per day. Many of these claims do not contain sufficient information to identify whether the claim is appropriate to be paid under the Scheme. This can cause delays and additional burdens on participants in responding to requests for information. New section 45A outlines the mechanical requirements for a claim. For a claim to be payable, it must be made by an authorised person, be made in the approved form, and contain all required information. This is in addition to the other substantive requirements in the Act, such as section 45. It will also become a requirement for a claim to be made within two years of the support being provided.

This measure will enable the [Agency] CEO to adhere to obligations under the Public Governance, Performance and Accountability Act 2013 including by enabling claims to be processed quickly while balancing fraud and data quality risks. The [Agency] CEO retains some discretion to allow claims which do not meet these requirements where it is appropriate to do so.

37    The Agency also relies on the following statement in the Revised Supplementary Explanatory Memorandum SK118 (at p 10) that the new function conferred by s 118(1)(ba):

… will enable the Agency to properly monitor and respond to misconduct, fraud, and related abuses within the Scheme. It is a critical step to protecting participants from fraud and financial exploitation, as well as ensuring NDIS funds are spent appropriately and will continue to be available for the hundreds of thousands of participants that genuinely need them.

38    There was some discussion at the hearing as to whether the 2024 amendments to the NDIS Act applied to the Agency’s decision of 17 January 2025 to reject the 273 payment claims, given that this decision related to services that had been provided, and claims that had been made, before the amendments took effect. In the case of s 45A, it applies “in relation to payments made on or after [its] commencement [ie 3 October 2024]” (see 2024 Amendment Act, Sch 1 item 132A). That is, new s 45A applies by reference to the date of payment (or non-payment), rather than the date that services were provided, or a claim submitted. New s 45A is therefore relevant to the Agency’s decision of 17 January 2025.

39    PGPA Act duties: The extrinsic materials above refer to the obligations of the Agency’s Board and employees under the Public Governance, Performance and Accountability Act 2013 (Cth) (PGPA Act). Under that Act, the Board must govern the Agency in a way that promotes the proper use and management of public resources of the NDIS and promotes its financial sustainability (s 15(1)), and must establish and maintain appropriate risk and control systems (s 16). Further, the Board must take all reasonable measures to prevent, detect and respond to fraud and corruption relating to the Agency (see Public Governance, Performance and Accountability Rule 2014 (Cth), r 10, made under the PGPA Act s 102).

GROUND 4: WAS THE REFUSAL DECISION UNREASONABLE, OR ILLOGICAL OR IRRATIONAL, GIVEN THE APPROVAL OF TRAVEL CLAIMS?

40    Ground 4 contends that the Agency’s decision was legally unreasonable, or illogical or irrational, in that the Agency rejected 273 payment claims but at the same time approved 50 other claims that are said to be inextricably linked to 50 of the 273 claims that were rejected. In terms, this argument would only affect 50 of the 273 rejected claims.

Steps in Epic Health’s argument

41    The essence of this ground is a perceived inconsistency or contradiction in the Agency’s reasoning. Epic Health’s argument on this ground proceeds in four steps:

(1)    The 50 payment claims that were approved related solely to travel claims in respect of the matters coming within RTP0351, RTP0403, RTP0421, RTP0562 and RTP0582. The 273 payment claims that were rejected related to the same RTPs.

(2)    Travel claims can only be made (that is, are only payable) if a support worker is actively providing support to a participant who requires transportation during the support worker’s shift, which (it is said) “inherently link[s] travel to the provision of services”.

(3)    Accordingly, if travel components are found to be payable, then it is inconsistent with those findings for the Agency also to find that the associated claims for support services were not payable.

(4)    This internal inconsistency means (it is said) that the Agency’s decision is either legally unreasonable, or illogical or irrational, so as to be invalid.

42    The Agency submits that the conclusion in step (4) does not follow even if the first three steps were established, but also challenges (or at least seeks to qualify) steps (1) to (3) set out above.

43    Step (1) (services for which payments were approved): The first step in the argument is that the 50 approved claims all relate solely to travel claims. The Agency qualifies that proposition in two respects:

44    First, it is common ground that two of the payments that were approved relate to the coordination of supports, rather than travel claims. This qualification applies to the payments with the reference numbers 477794910 and 479254183. Accordingly, at most only 48 of the approved claims relate to travel.

45    Second, and more substantively, the Agency challenged Epic Health’s characterisation of the remaining 48 claims as “travel claims”. Mr Winton’s evidence is that the Agency took the view that these approved claims were properly characterised as “transport claims”. On Mr Winton’s evidence, the Agency distinguishes between “travel claims” (or “provider travel claims”) and “transport claims” as follows:

    Mr Winton states that a “transport” claim allows a participant to pay a provider to transport them to an activity. That could include an activity that is not itself a support; for example, transport to enable a participant to go grocery shopping. In other words, a transport claim can be payable in circumstances when there is no corresponding NDIS support service being provided.

    By contrast, a “travel” or “provider travel” claim (as defined in a policy document titled “National Disability Insurance Scheme: Pricing Arrangements and Price Limits (2023-24)” (Pricing Arrangements and Price Limits)) is when a provider is seeking to recover travel costs in respect of the delivery of a support service. That is, the provider is claiming amounts to cover the provider’s own travel to or from the participant.

46    Epic Health submits that the Agency’s conclusion that these claims were transport claims, not travel claims, is incorrect. It appears from Mr Bathini’s affidavit evidence that Epic Health may use a different definition of a “travel claim”. Whatever the position, it is significant for ground 4 that the Agency’s actual chain of reasoning was that these claims were transport claims, not travel claims. Further, the Agency submits that ground 4 should be rejected in any event, even if the 48 remaining approved claims were “travel” claims as that term is used by Epic Health.

47    Step (2) (approved travel claims linked to the provision of services): The second step in Epic Health’s argument on ground 4 is that the approved claims were inextricably linked to the provision of services. As just noted, that link is not established if those claims are properly analysed as “transport” claims.

48    On the other hand, the parties agree that there is a link between a “travel” claim, however that term is defined, and the provision of support services. The Pricing Arrangements and Price Limits policy document states that providers “can only claim from a participant’s plan for travel costs in respect of the delivery of a support item if all the following conditions are met”. Those conditions include:

•    The NDIS Pricing Arrangements and Price Limits indicates that providers can claim for Provider Travel in respect of that support item; and

•    …

•    The activities are part of delivering a specific disability support item to that participant;

•    …

49    The Pricing Arrangements and Price Limits policy document states that claims for travel in respect of a support “must be made separately to the claim for the primary support (the support for which the travel is necessary)” (emphasis added).

50    The Pricing Arrangements and Price Limits is a policy document, not a legislative instrument. That means that, even though the criteria for payment of a travel claim are connected to whether a service was provided as a matter of policy, the decision whether to pay a travel claim is not legally dependent on whether the Agency also approves a claim for the associated service. (By way of contrast, the criteria for a protection visa for a family member under s 36(2)(b) and (c) of the Migration Act 1958 (Cth) are legally dependent on whether a protection visa of the same class is held by the principal applicant.)

51    That said, the second step of Epic Health’s argument is largely correct, at least in relation to travel claims (as distinct from transport claims).

52    Step (3) (inconsistent to approve travel claims but reject associated support claims): The third step in Epic Health’s argument is that, given the necessary link between a travel claim and the provision of a service, it is inconsistent for the Agency to approve travel claims, on the one hand, but also to reject the claims for the support services associated with those travel claims, on the other.

53    The Agency in oral argument accepted that, if the 48 approved claims were travel claims (not transport claims), there would at least be some tension between approving those claims and rejecting the associated support services claims. The key issue then becomes whether this inconsistency or tension would amount to reviewable error.

Does internal inconsistency in reasoning give rise to reviewable error (step (4))?

54    The Agency submits that, even if the first three steps in Epic Health’s argument are made out, any inconsistency would not amount to reviewable error under the ADJR Act.

55    Unreasonableness, and illogicality and irrationality, impose stringent tests: The Agency submits, first, that the grounds of legal unreasonableness, and of illogicality and irrationality, impose stringent tests, in order to preserve the distinction between the legality and merits of administrative decisions. That submission is plainly correct: see for example, in relation to legal unreasonableness, Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 at [11] (Kiefel CJ), [52] (Gageler J), [135] (Edelman J); Minister for Home Affairs v DUA16 [2020] HCA 46; (2020) 271 CLR 550 at [26] (the Court); EUF20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 130; (2023) 298 FCR 492 at [65] (the Court); and, in relation to illogicality and irrationality review, SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; (2012) 202 FCR 1 at [84]-[85] (McKerracher J, with Reeves J agreeing on this point: at [112]); DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175 at [30](5) (the Court).

56    At the same time, it is well established that legal unreasonableness is not confined to the reasonableness of the final decision, but extends to how a decision is made. That is, it is necessary that an administrative decision both has an intelligible basis, and be made through an intelligible decision-making process: see for example Palmer v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 154; (2024) 306 FCR 154 at [101] (Derrington and Hespe JJ), see also [157]-[158] (Feutrill J).

57    Not every inconsistency amounts to reviewable error: The Agency then submits that not every inconsistency in administrative decision-making amounts to a reviewable error under the ADJR Act (whether that be legal unreasonableness, or illogicality and irrationality). Again, the parties do not suggest that there is any difference between the content of these grounds under the ADJR Act, and under the common law.

58    The Agency accepts, as it must, that in some circumstances an internal inconsistency on material issues can mean that an administrative decision is illogical or irrational in a legal sense. In BQG21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 865, the Administrative Appeals Tribunal affirmed a decision to refuse an application for Australian citizenship under s 24(3) of the Australian Citizenship Act 2007 (Cth), on the ground that the Tribunal was not satisfied as to the identity of the applicant. In holding that the Tribunal’s decision was illogical and irrational in a legal sense, Mortimer CJ concluded (at [45]):

… the Tribunal’s fact finding is internally inconsistent on material issues. It is irrational to accept as accurate all the applicant’s Iraqi documentation, and supporting testimony, and then to find in substance that he should not be believed because of the existence of other documentation for which there could well have been explanations wholly consistent with the applicant’s narrative, but not explored at all by the Tribunal. … It is irrational for the Tribunal to have accepted all the documentation put forward by the applicant, and the supporting testimony, and impliedly accept the validity of the grant of the protection visa to him on that basis, and then find itself not satisfied of his identity. It is irrational for the Tribunal to find the applicant was the same person as A2 and then not accept his identity. All these irrationalities were central to the reasoning of the Tribunal on s 24(3).

59    The Agency also submits, on the other hand, that “[a]n inconsistency in reasons does not necessarily and of itself demonstrate an illogical finding of fact or any other error of law”, citing QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 166; (2021) 287 FCR 328 (QYFM FC) at [28] (McKerracher and Griffiths JJ). QYFM FC was overturned on an unrelated ground relating to apprehended bias in QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; (2023) 279 CLR 148. That overturning means that the reasoning in QYFM FC at [28] is not binding on me: see Director of Public Prosecutions v Patrick Stevedores Holdings Pty Ltd [2012] VSCA 300; (2012) 41 VR 81 at [121] (the Court); Sparks v Hobson [2018] NSWCA 29; (2018) 361 ALR 115 at [38] (Basten JA). Even so, I find that this statement in QYFM FC is compelling as a matter of principle, and supported by other authority:

    In Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611, Crennan and Bell JJ stated that it has been accepted in the context of the ADJR Act that “a detectable instance of want of logic will not necessarily constitute an error of law”, and further that “[n]ot every lapse in logic will give rise to jurisdictional error”: at [113], [130], respectively.

    In RPQB v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1419, Rofe J quoted the above passage from QYFM FC with approval, with her Honour noting that the decision had been overturned by the High Court on unrelated grounds: at [96]. In RPQB, the Tribunal accepted that the applicant was born in 1997, but one part of its reasons appeared to treat his birth year as 1995, and (it was said) the Tribunal failed to appreciate that some courts who had sentenced the applicant as an adult did not realise that he was a child until 2015. These errors meant (it was said) there was a “flawed factual basis” for the Tribunal’s consideration of the applicant’s criminal offending: RPQB at [90]. Rofe J rejected this argument. The Tribunal’s miscalculation of the applicant’s age did not have a bearing on the Tribunal’s consideration, and any error in the calculation of the applicant’s age by sentencing courts did not affect those aspects of the sentencing remarks on which the Tribunal relied (such as a description of the offending), and therefore did not infect the Tribunal’s reasoning: RPQB at [103], [105].

60    Is there a reviewable error? I accept that not every lapse in logic will amount to jurisdictional error. It is necessary to consider carefully the particular chain of reasoning, and the nature of the statutory task.

61    The cases summarised above indicate that two important matters are: (1) whether there is a probative basis for each finding (or at least each material finding) and (2) if there is an apparent inconsistency or tension between two material findings, whether there is a rational explanation for this inconsistency or tension. In saying this, the onus of establishing jurisdictional error remains of course with an applicant for judicial review.

    In BQG21, the difficulty with the Tribunal’s reasons is that it did not provide any explanation for how it could simultaneously find that certain documentation was genuine, but also find that the applicant was not the person he claimed to be. The matters that were said to indicate that he was not that person were far from incontrovertible, and therefore an explanation was required.

    In QYFM FC, there was no real inconsistency between the Tribunal stating that, generally, it would not accept factual claims that were not corroborated by other reliable evidence, but also accepting the appellant’s statement that he was currently in dispute with his wife. And the appellant’s statement provided a rational basis for the finding that there was a marital dispute: QYFM at [28].

    In RPQB, the apparent factual inconsistencies relating to the applicant’s age were not material to the Tribunal’s reasoning.

62    Here, the Agency submits that there is a clear explanation for the apparent difference of approach in its approving 48 travel claims, but refusing the associated claims for support services. The travel claims are all for modest amounts, mostly for less than $100 each, and cumulatively (for the 50 total approved claims) $4,423.78. By contrast, the Agency calculates the total of the 273 rejected claims as $387,882 (noting that Epic Health arrives at a higher total for those rejected claims). The Agency then submits:

(1)    There is a qualitative difference between the extent of information required to substantiate a travel claim, and to substantiate a support claim.

(2)    Deciding to approve a very modest “travel” payment claim on the basis of scant or no supporting or corroborating documentation, but to require case notes or other information in relation to the nature of the support that was provided before concluding a significantly greater claim (in many cases for thousands of dollars) is payable, is squarely within the “decisional freedom” that the cases suggest should be afforded to administrative decision-makers; and

(3)    A favourable decision on some payment claims does not lead to any implicit and enforceable promise that other payment claims will be accepted, where the decision-maker is not in fact satisfied that the latter are payable, citing Palmer at [92]-[97] (Derrington and Hespe JJ). That is particularly so, when s 182 of the NDIS Act proceeds on a premise that some payments will be wrongly made to, and are liable to be recovered from, persons under the NDIS.

63    On point (1) above, I certainly accept that there is a qualitative difference between the extent of information required to substantiate a transport claim and a support service claim: the fact of transport can readily be inferred from a transport log, given that there is no requirement to establish whether any service was provided as well. However, in the case of a travel claim, the policy criteria for payment depend on a service of a particular type being provided: see [48] above.

64    I accept point (3) above: a favourable approach with respect to one type of claim (such as approving travel claims even if case notes are not provided) does not create an estoppel or some other legally binding requirement that the Agency must take a similarly favourable approach with respect to a different type of claim. Instead, the relevant constraints are the administrative law doctrines of legal unreasonableness, and illogicality and irrationality. And as noted, those doctrines impose stringent tests, to ensure that courts do not enter upon the merits of administrative decision-making.

65    Given my reservations about point (1) in relation to travel claims, the crucial matter is therefore point (2) above: whether it is open to the Agency to require a greater level of substantiating information to approve a large claim than it requires to approve a modest claim, when those two claims are connected. Epic Health submits that this approach is not open, because an amount is either payable or it is not.

66    Ground 4 is rejected: For the following reasons, I consider that it is open to the Agency to require a greater level of substantiating information to approve a larger claim than it requires for a modest claim, even when the two claims are connected. Accordingly, there is no contradiction amounting to reviewable error for the Agency to require more information about the nature and extent of services to substantiate claims for the provision of support services, even though the Agency did not require this information to approve associated travel claims.

    First, an assessment of what is reasonable (and illogical or irrational) takes account of the statutory context. Here, the Agency must have regard to the financial sustainability of the NDIS (NDIS Act s 3(3)(b)), and has the function of identifying and managing risks relevant to this financial sustainability (s 118(1)(b)(ii)). That is, the Agency is permitted to engage in risk management, a matter which is reinforced by the duties imposed on agencies and officials by the PGPA Act: see particularly s 16(a) (an obligation to establish an appropriate system of risk oversight and management) and s 25 (a duty to exercise functions with a reasonable degree of care and diligence). A risk management approach supports the Agency subjecting large claims to a greater degree of individual scrutiny: a large claim will have a greater effect on the financial sustainability of the NDIS than a small or modest payment.

    Second, any apparent inconsistency in the Agency’s approach actually worked in Epic Health’s favour here: the Agency approved 48 travel-related claims, even though those claims did not have case notes to establish that the necessary service had been provided in connection with them. The fact that the Agency took a more favourable approach with respect to one type of claim does not mean it is constrained to take a similarly favourable approach with respect to a different, more expensive, type of claim.

    Third, and more generally, it is worth emphasising that legal unreasonableness, and review on the grounds of illogicality and irrationality, both impose a stringent standard of review. Epic Health’s arguments do not go beyond expressing emphatic disagreement with the decision, which is insufficient.

67    Separately from these conclusions, I would if necessary find that the Agency’s decision was made on the basis that the 48 remaining approved claims were for transport, not travel. Transport claims can be approved, whether or not a support service was provided. Accordingly, for that reason alone, the chain of reasoning actually adopted by the Agency did not contain any inconsistency, and therefore an essential premise of Epic Health’s argument is incorrect: see [45]-[46] above.

GROUND 8: WAS THE AGENCY’S REFUSAL DECISION OTHERWISE lEGALLY UNREASONABLE?

68    The other ground pressed by Epic Health, ground 8, contends in its terms that the Agency acted unreasonably or irrationally, because it:

… made findings of fact without a sufficient evidentiary basis (to reject the 273 payment claims) and ignored [Epic Health]’s offer to provide more information upon request, so that the [Agency] would be in a position to make an informed decision.

69    As developed at the hearing, however, the argument became that the information which Epic Health had provided was more than sufficient to substantiate the claims, and that it was unreasonable of the Agency to require still further information in the form of case notes for support services. Epic Health submitted that, by reference to the scope and purpose of the NDIS Act, the Agency had given disproportionate weight to some factor (the need for case notes) or reasoned illogically or irrationally, citing Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [72] (Hayne, Kiefel and Bell JJ). On this revised form of the argument, the fact that Epic Health had offered to provide more information if requested is relied on as part of the factual circumstances that demonstrate legal unreasonableness.

70    Case notes not provided: As noted, the reasons given in the Agency’s 17 January 2025 decision state that there was no information before the decision-maker describing the nature and extent of the supports said to be provided. The decision strictly did not require that case notes be provided; however, it is common ground that a case note is the most obvious source of the information sought. Mr Winton’s evidence is that “case notes” (or “support notes”) is a term used by providers and the Agency, and means business records which will typically show (a) identifying information such as who the support was provided by and who the support was provided to, (b) dates and times, and (c) a description of what support was provided. The last of these matters (description of the support) is the relevant matter here.

71    As noted, some parts of Epic Health’s letter dated 23 December 2024 might suggest that it did provide case notes as part of its response: see [12] above. However, Mr Winton’s evidence is that case notes for support services were not in fact provided. At the hearing, Epic Health’s counsel was able to take the Court to two case notes for support coordination services in the materials, but no other case notes. (The Respondent pointed out that the claims associated with those case notes for support coordination services were approved.) And Mr Bathini’s affidavit contains a statement that “should the lack of case notes be cited as a reason for withholding payments on all claims, [Epic Health] is more than willing to provide this additional documentation”, which implicitly acknowledges that those case notes had not been provided previously. In those circumstances, I am satisfied that, at the time of the decision under review, Epic Health had not provided to the Agency case notes for support services.

72    Information provided by Epic Health: Epic Health relies on the information that it did provide, being timesheets, invoices, payslips, service agreements and support and travel logs. I was taken to an example of each type of document. Based on that sample, it is clear that timesheets, invoices and payslips do not contain information about the services being provided to NDIS participants. Service agreements identify the supports that should be provided, but are not evidence that any support was in fact provided at a particular time.

73    The support logs to which my attention was directed have at most a brief description of service type, such as “Community access”, “SIL” (meaning supported independent living), “STA” (short term accommodation) or “Daily activities”. The travel logs to which my attention was directed contain a heading “purpose of the trip”, but for the most part that column contains only a brief description of the start and end points (such as “From SECU [secure extended care unit] Austin to Darebun [sic] Parklands”).

74    There are a small number of travel logs in the sample to which my attention was directed that have more information in the “purpose of trip” column. To take two examples:

    A travel log for 28 June 2024 states that the purpose of a trip between 12.45 pm and 1.10 pm was “Drove Mary from Comm Bank Flinders St to Oakleigh Central Shopping Centre to buy some gifts for a friends birthday in the hospital, see her friend who works at the rug store, browse shops for winter clothes and grab lunch and a coffee”. This is the most detailed description, and I have identified six other travel logs in the sample with comparable level of detail.

    A travel log for 3 July 2024 states that the purpose of a trip between 12.20 pm and 1 pm was “After Deb’s CTT appointment we went for a bbq at Yan Yean park”. I have identified seven further travel logs in the sample with a similar level of detail.

75    Statutory context: An assessment of legal unreasonableness must take account of the statutory context and the factual circumstances: see for example, Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [48] (the Court); BNGP v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 111; (2023) 298 FCR 609 at [48]-[49] (Perry J, with Bromwich and Kennett JJ agreeing on this point: at [138]).

76    Here, a key part of the statutory context is that a claim for payment in respect of a support is only payable under s 45 of the NDIS Act if the support is provided in accordance with a participant’s plan. That is probably implicit in the reference in s 45(1) to an amount being payable “in respect of a participant’s plan”, but is confirmed by the limits on payment now contained in s 45(4). I accept the Agency’s submission that, to determine whether a support has been provided in accordance with a participant’s plan, the Agency requires not just information about the type of service, but also information that allows the Agency to assess whether the provision of that service is reasonable.

77    Other parts of the statutory context provide high level support for the Agency taking a relatively rigorous approach in deciding whether large claims are sufficiently substantiated. The NDIS Act contains a specific obligation on the Agency to have regard to the need to ensure the financial sustainability of the NDIS (NDIS Act s 3(3)(b)); and confers functions on the Agency of managing risks relating to the financial sustainability of the NDIS, and detecting and responding to the misuse of the NDIS where this relates to (relevantly) claims for payment under the NDIS (s 118(1)(b) and (ba)). Further, new s 45A was added by the 2024 Amendment Act, with the intended purpose of enabling the Agency more effectively to give effect to its obligations under the PGPA Act to ensure the responsible use of public money: see [36]-[37] above.

78    Offer to provide more information does not affect the position: As to factual circumstances bearing on legal unreasonableness, Epic Health draws attention to the fact that it stated it was willing to provide further information if requested. However, I would not give that consideration any weight, essentially for two reasons.

79    First, at the time of this offer on 23 December 2024, the Agency had already asked Epic Health to provide case notes for support services. In particular:

    The Agency’s invitation to comment dated 13 December 2024 stated that Epic Health had failed to substantiate certain claims, as elaborated in Annexure A: see [9] above. Annexure A stated in relation to RTP0351, RTP0403, RTP0421 and RTP0562 that one of the Agency’s concerns was:

… the Agency did not receive any support notes to show what specific supports had been provided to the NDIS participant. Support notes are vital for the Agency to authenticate who rendered the support, what support was provided and whether the support accorded with what was claimed.

(As noted, Mr Winton’s evidence is that “support notes” and “case notes” are used interchangeably.)

    In relation to RTP0582, Annexure A stated that Epic Health had “failed to provide case notes and pay slips to substantiate that the claimed supports have in fact been provided”, and that:

… invoices, support coordination case notes and service agreements alone are insufficient to substantiate what service was rendered, who rendered the service, which participant benefited from the service and whether the service accorded with the claim for payment by way of duration and specific service.

80    Thus, the question is not whether it was unreasonable for the Agency not to seek further information, but whether it was unreasonable not to ask for a second time. The Agency also relied on the fact that the absence of case notes had been a significant part of its reasons in the initial refusal decisions: see [7] above. However, given those decisions were set aside by consent, it is unclear what weight could be given to the Agency’s previous reasoning. Equally, it is not important what information the Agency had requested in the original RFI letters (as raised by Epic Health): the Agency’s invitation to comment clearly drew attention to the lack of case notes for support services, as set out above.

81    The second reason is that the Agency was required by the orders of Horan J to make a decision by 17 January 2025, having received the response from Epic Health on 23 December 2024. It is true, as Epic Health submits, that these orders, and this timetable, were made by consent. Even so, this relatively short period, over the Christmas holidays, bears on whether it was unreasonable not to seek further information, noting that any request would need to give Epic Health a reasonable time to respond, and give the Agency enough time to consider any response.

82    Another relevant matter, of lesser weight, is that the Agency stated that its decision did not prevent Epic Health from re-submitting the claims with additional information: see [15] above.

83    Not unreasonable to require more information: Epic Health’s arguments should be assessed in light of the statutory context and factual circumstances set out above.

84    Epic Health submits that the information it provided to the Agency (summarised above) established the date and time on which a service was provided, the person who provided the services, and the NDIS participant who received the service. This may be accepted, but the concern raised in the Agency’s decision is that it did not have information describing the nature and extent of supports.

85    The timesheets, invoices, payslips, service agreements, and support and travel logs relied on by Epic Health do not suggest any legal error in the Agency’s approach. As discussed above, those documents almost without exception do not describe the service being provided in any detail at all. Epic Health’s argument (as developed at the hearing) that the Agency did not need any more information, or that case notes would not have added anything, is merely to express emphatic disagreement with the Agency’s decision.

86    There are a small number of travel logs which contain more information about the services being provided, as summarised in [74] above. Although the position is less straightforward with these documents, I am not prepared to find that it was legally unreasonable for the Agency to decide that it would require more information before it could approve the claims to which these travel logs relate. Again, legal unreasonableness imposes a stringent standard, and I cannot be satisfied on the evidence before the Court that the Agency’s decision is one that no reasonable decision-maker could make.

87    There was some discussion at the hearing of whether the “flexibility” of participant plans (as contended for by Epic Health) justified a more relaxed approach to substantiating claims for payment. The Court was not taken to any participant plans, but in any event this argument seems only to suggest that another approach might be possible, not that the Agency’s approach was legally unreasonable.

88    Ground 8 rejected: For these reasons, I reject ground 8. It was not legally unreasonable for the Agency to reject the 273 claims on the basis that it required more information about the nature and extent of services said to be provided. In the circumstances, it was of no significance that Epic Health had stated it could provide more information if requested.

Conclusion

89    The amended originating application is dismissed. Presently I do not see any reason why costs should not follow the event. However, I will hear from the parties on whether there is any reason to depart from the usual position.

Associate:

Dated:    7 May 2025