Federal Court of Australia

National Disability Insurance Agency v Deayton [2025] FCA 562

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed with costs.

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 appeal on questions of law under s 44 of the former Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) from a decision of the former Administrative Appeals Tribunal. Relevantly to the notice of appeal, the Tribunal directed the Applicant (the Agency) to approve funding for the Respondent (Mr Deayton) under the National Disability Insurance Scheme (NDIS) in respect of the following supports (each to be treated as a “stated support”):

    the cost of excessive electricity usage by Mr Deayton resulting from the use or equipment by reason of his disability, calculated as the total monthly amounts charged (after any Victorian-based concessions have been applied and deductions made) to Mr Deayton over the previous 12-month period in respect of electricity usage in excess of 7.34 kWh per day, and minus any lump sum payment made by the Commonwealth to Mr Deayton for an “Essential Medical Equipment Payment” (the Electricity support);

    funding for 56 hours of physiotherapy and 27 hours of remedial massage therapy (the Therapy support); and

    the cost per annum of providing Mr Deayton with access to Foxtel sports channels, calculated as 50% of the total amount that he is currently charged by Foxtel for his current yearly “full package” Foxtel subscription (the Foxtel support).

2    Grounds of appeal: The Agency’s initial grounds of appeal make four broad arguments:

    Ground 1 contends that the Tribunal misconstrued the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) and the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (Supports Rules) in finding that the Foxtel support was payable.

    Grounds 2 and 3 contend that the Tribunal failed to consider certain of the Agency’s submissions as to why the Foxtel support was not payable, and failed to consider the Agency’s submission that there was insufficient evidence to find that the quantum of the Therapy support sought by Mr Deayton was payable, respectively.

    Ground 5 contends that the Tribunal misconstrued the NDIS Act in approving partial funding for the Electricity support, because (it is said) a support can only be fully funded under the NDIS or not at all.

3    I do not accept any of these arguments. On my reading of the Tribunal’s reasons, it has not committed any of the errors in the interpretation of the NDIS Act and the Supports Rules alleged in Ground 1. On a fair reading of the Tribunal’s reasons as a whole, I am satisfied that the Tribunal has considered the substance of the Agency’s submissions identified in grounds 2 and 3. Contrary to Ground 5, the Electricity support as directed by the Tribunal is not “partially funded” in any prohibited sense.

4    Effect of 2024 amendments: The Agency argues separately in new Ground 6 that it is now prevented from implementing the directions in the Tribunal’s decision, by reason of intervening legislative amendments made with effect from 3 October 2024 by the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 (Cth) (2024 Amendment Act), and the National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (Cth) (Supports Transitional Rules). The Agency seeks a declaration to this effect, as an alternative to its grounds of appeal. Mr Deayton brings a cross-appeal, contending that, if this be the effect of the 2024 amendments, then the Tribunal made an error of law in deciding to remit the matter to the Agency.

5    I reject the Agency’s argument. Section 6(2)(b) of the Supports Transitional Rules preserves the effect of the Tribunal’s decision, and excludes the operation of other rules that would prevent funding for electricity bills and subscriptions for streaming services. None of the other amendments made by the 2024 Amendment Act would prevent the Agency from giving effect to the Tribunal’s decision, and it is doubtful that any of those amendments apply in respect of Mr Deayton’s plan in any event. It is therefore not necessary to determine the cross-appeal.

6    Repeal of AAT Act does not render proceedings moot: I note that the AAT Act was repealed, and the Tribunal replaced by the Administrative Review Tribunal (ART), on 14 October 2024. However, transitional provisions preserve the ability to bring these proceedings to challenge the Tribunal’s decision: see Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth), Sch 16 item 25. Those provisions would allow the matter to be remitted to the new ART, if an error were identified in the Tribunal’s decision: see Waraich v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 305 at [141] (Horan J).

Background

7    Respondent: Mr Deayton lives with congenital nemaline myopathy, a rare genetic muscle disorder. This condition leads to weakness of his skeletal muscles, and is permanent and progressive. He needs a wheelchair to assist him to mobilise, and he has difficulties managing his thermoregulation. He was 60 years old at the time of the Tribunal’s decision.

8    Transition to NDIS; NDIS plan made (2018, 2022): Mr Deayton became a participant in NDIS around 9 February 2018. Previously he had received support under an individual support plan under State law. On 9 September 2022, a delegate of the CEO approved Mr Deayton’s current NDIS plan, which has a notional period of two years.

9    Application to AAT (Jul 2024): Following an internal review decision dated 3 January 2023, Mr Deayton applied to the Tribunal on 21 July 2023 for merits review of that decision, contending that certain supports which had not been approved were properly payable. The Tribunal heard the matter on 4 and 13 March 2024. The Tribunal identified four supports that were in dispute before it: an “Electricity Support”, a “Physiotherapy and Massage Support” (that is, the Therapy support identified above), a “Foxtel Support”, and a “Powerchair Events Support” (a request for the associated cost of his regular support worker from Melbourne accompany him interstate to attend two Powerchair sporting events per year).

10    AAT decision (Sep 2024): On 16 September 2024, the Tribunal decided, relevantly, that all four disputed supports were “reasonable and necessary supports” and should be funded under the NDIS. The Tribunal’s decision on the first three of these supports is the subject of the Agency’s initial grounds of appeal. The Tribunal’s reasoning is summarised below, under the relevant ground(s) of appeal.

11    Notice of appeal (Oct 2024): On 14 October 2024, the Agency filed a notice of appeal, containing five grounds. The Agency does not press Ground 4.

    The first two grounds concern the Foxtel support: the Agency contends that the Tribunal misconstrued s 34(1)(c) of the NDIS Act and rr 3.1(a) and 5.2(a) of the Supports Rules in various ways (Ground 1); and overlooked a submission from the Agency (Ground 2).

    Ground 3 contends that the Tribunal failed to consider the Agency’s submission that there was insufficient evidence to be satisfied as to the quantum of Therapy support.

    Ground 5 contends that the Tribunal misconstrued the NDIS Act, by approving partial funding for Mr Deayton’s electricity usage.

12    Application for declaration; cross-appeal (Apr to May 2025): The Agency in its reply submissions raised a new argument that the legislative amendments to the NDIS Act and provisions in the Supports Transitional Rules, both of which took effect from 3 October 2024, prevented the Agency from now giving effect to the Tribunal’s directions. An urgent case management hearing was called on 28 April 2025. The Agency was granted leave to amend its notice of appeal to add an application for declaratory relief, and Mr Deayton was granted leave to file a notice of cross-appeal to respond to the new argument, to contend that the Tribunal had erred in the form of its orders.

13    Cross-appeal: The notice of cross-appeal dated 2 May 2025 contends that the Tribunal erred in remitting the matter to the Agency, rather than substituting its decision for the decision under review. Mr Deayton relies on the following particulars:

a.    The [Tribunal] considered all of the supports in dispute between the parties at the time of the hearing, and exercised its power to determine all matters in dispute in the proceeding.

b.    In doing so, the Tribunal exhausted the decision-making power, leaving no further matters for reconsideration on remittal.

c.    The Tribunal erred by remitting the matter to the Respondent in circumstances where there were no matters available for reconsideration.

d.     The Tribunal erred by failing to substitute the decision under review.

14    The notice of cross-appeal asks this Court to make a finding of fact under s 44(7) of the AAT Act that the Agency did not, and has not, implemented the Tribunal’s decision dated 16 September 2024.

15    Amended notice of appeal: The amended notice of appeal filed on 6 May 2025 adds a new Ground 6, and an application for declaratory relief (order 3). These amendments are summarised when considering new Ground 6 below.

Legislative Framework

16    The following sets out the legislative framework as in force at the time of the Tribunal’s decision in September 2024. It is convenient to continue to refer to this framework in the present tense, as many of these provisions remain in force.

17    NDIS Act: The objects of the NDIS Act are set out in s 3(1), and include:

    to support the “independence and social and economic participation of people with disability” (s 3(1)(c));

    to provide “reasonable and necessary supports, including early intervention supports, for participants in the [NDIS]” (s 3(1)(d)); and

    to enable people with disability to “exercise choice and control in the pursuit of their goals and the planning and delivery of their supports” (s 3(1)(e)).

18    General principles (s 4): Section 4 of the NDIS Act sets out general principles guiding actions under that Act, which include:

4 General principles guiding actions under this Act

(1)    People with disability have the same right as other members of Australian society to realise their potential for physical, social, emotional and intellectual development.

(2)    People with disability should be supported to participate in and contribute to social and economic life.

…

(5)    People with disability should be supported to receive reasonable and necessary supports, including early intervention supports.

…

(11)    Reasonable and necessary supports for people with disability should:

(a)    support people with disability to pursue their goals and maximise their independence; and

(b)    support people with disability to live independently and to be included in the community as fully participating citizens; and

(c)    develop and support the capacity of people with disability to undertake activities that enable them to participate in the community and in employment.

…

(17)    It is the intention of the Parliament that the Ministerial Council, the Minister, the Board, the CEO, the Commissioner and any other person or body is to perform functions and exercise powers under this Act in accordance with these principles, having regard to the need to ensure the financial sustainability of the National Disability Insurance Scheme.

19    Participants and their plans (Ch 3): Chapter 3 of the NDIS Act deals with participants and their plans. A person may make a request to the Agency to become a participant in the NDIS (s 18). A person becomes a participant in the NDIS on the day that the CEO of the Agency decides that person meets the “access criteria”, as set out in s 21(1) to (2) (s 28(1)). Those criteria relate to age (s 22), residence (s 23), and either disability (s 24) or the need for early intervention (s 25).

20    Statement of participant supports: Once a person becomes a participant in the scheme, the CEO of the Agency (or delegate) must facilitate the preparation of a plan for the participant (s 32(1)). A plan must include a statement of goals and aspirations prepared by the participant (s 33(1)), and a statement of participant supports (sometimes referred to as “SOPS”), which is prepared with the participant and approved by the CEO (s 33(2)).

    A statement of participant supports must specify the matters in s 33(2)(a) to (e). One of those matters is the “reasonable and necessary supports that will be funded under the [NDIS]” (s 33(2)(b)).

    By s 33(5), in deciding whether or not to approve a statement of participant supports, the CEO must (relevantly) be satisfied as mentioned in s 34 in relation to the reasonable and necessary supports that will be funded (s 33(5)(c)), and apply the NDIS rules made for the purposes of s 35 (s 33(5)(d)).

21    Section 34(1) requirements: By s 34(1), before reasonable and necessary supports can be approved, the CEO (or delegate) must be satisfied of all the matters set out in s 34(1)(a) to (f). Those matters include:

(c)    the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;

(d)    the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;

And:

(f)    the support is most appropriately funded or provided through the [NDIS], and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:

(i)    as part of a universal service obligation; or

(ii)    in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.

22    It may be noted that s 34(1)(f) has been amended since the Tribunal’s decision: see [36] below.

23    The NDIS rules may prescribe matters for s 34(1) (ss 34(2), 35(1)): By s 34(2), the NDIS rules may prescribe methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding whether or not he or she is satisfied of the matters in s 34(1)(a) to (f).

24    Similarly, s 35(1) provides that the NDIS rules may make provision in connection with the funding or provision of (relevantly) reasonable and necessary supports, including by prescribing:

(a)    methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding, the reasonable and necessary supports … that will be funded … under the [NDIS]; and

(b)    reasonable and necessary supports … that will not be funded … under the [NDIS]; and

(c)    reasonable and necessary supports … that will or will not be funded … under the [NDIS] for prescribed participants.

25    NDIS rules (s 209): The NDIS rules are legislative instruments made by the Minister under s 209 of the NDIS Act. They may prescribe (a) matters required or permitted by the NDIS Act to be prescribed by the NDIS rules; or (b) matters necessary or convenient to be prescribed in order to carry out or give effect to the NDIS Act.

26    Supports Rules: The Supports Rules state that they are made for the purposes of ss 33 and 34 of the NDIS Act. (However, some rules appear to be made for the purposes of s 35(1): see [31] below.)

27    Criteria to assess proposed supports (rr 3.1 to 3.3): Part 3 of the Supports Rules sets out criteria or considerations that the CEO is to use in deciding whether the CEO is satisfied in relation to certain matters.

28    Paragraph 3.1 deals with whether a support is value for money (cf NDIS Act s 34(1)(c)), and provides:

Value for money

3.1    In deciding whether the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support, the CEO is to consider the following matters:

(a)    whether there are comparable supports which would achieve the same outcome at a substantially lower cost;

…

(e)    whether the cost of the support is comparable to the cost of supports of the same kind that are provided in the area in which the participant resides;

29    Rules 3.2 and 3.3 of the Supports Rules deal with whether a support is effective and beneficial and current good practice (cf NDIS Act s 34(1)(d)).

30    Supports that will not be funded (rr 5.1 to 5.2): Part 5 of the Supports Rules sets out general criteria for supports, and supports that will not be funded. Relevantly, rr 5.1 and 5.2 of the Rules restrict the funding of day-to-day living costs under the NDIS, as follows:

General criteria for supports

5.1    A support will not be provided or funded under the NDIS if:

…

(d)    it relates to day-to-day living costs (for example, rent, groceries and utility fees) that are not attributable to a participant’s disability support needs.

5.2    The day-to-day living costs referred to in paragraph 5.1(d) do not include the following (which may be funded under the NDIS if they relate to reasonable and necessary supports):

(a)    additional living costs that are incurred by a participant solely and directly as a result of their disability support needs;

31    These rules would appear to be made for the purposes of s 35(1)(b) of the NDIS Act (reasonable and necessary supports that will not be funded under the NDIS).

32    2024 Amendment Act: The 2024 Amendment Act amended the NDIS Act with effect from 3 October 2024 (see s 2(1)). Three amendments should be mentioned.

33    Definition of “NDIS support” (s 10): First, the 2024 Amendment Act (in Sch 1 item 14) added a new s 10 of the NDIS Act, which added a definition for “NDIS support”.

    By s 10(1), a support is an NDIS support for a participant or prospective participant if the support is declared by NDIS rules made for the purposes of s 10(1) to be an NDIS support for (a) participants or prospective participants generally; or (b) a class of participants or prospective participants that includes the person. Those rules must satisfy the requirements in s 10(2) and (3).

    By s 10(4), the NDIS rules may declare that a support is not an NDIS support for (a) participants or prospective participants generally; or (b) a class of participants or prospective participants. Section 10(9) sets out specified supports that are not NDIS supports (such as a support consisting of the provision of alcohol: s 10(9)(b)).

34    “New framework” and “old framework” plans: Second, the 2024 Amendment Act (in Sch 1 item 36) added new ss 32A to 32M of the NDIS Act which, in outline, introduced the concepts of “new framework” and “old framework” plans.

    The content of new framework plans is determined under the new ss 32C to 32L. Those provisions apply in the circumstances set out in new s 32C (such as the participant has been given a notice under new s 32B(2) that the participant is to have a new framework plan).

    Old framework plans are all other participant plans (see new s 32M). New s 33(2A) to (2F) (added by Sch 1 item 39) set out requirements for total funding amounts, funding component amounts, and funding periods for old framework plans.

    By new s 32B, the NDIS rules may specify the classes of participants that are now to have new framework plans, and for each class the period within which the CEO must give notice to participants in that class that they are to have new plans.

35    That is, Mr Deayton’s participant plan did not automatically become subject to the rules applicable to “new framework” plans on the commencement of the 2024 Amendment Act. The Agency’s counsel advised at the hearing that the process required to put Mr Deayton on a new framework plan has not commenced.

36    Amendments to s 34(1): Third, the 2024 Amendment Act made various amendments to s 34 of the NDIS Act (see Sch 1 items 46 to 47A). Relevantly, a new s 34(1)(aa) was added, and a new s 34(1)(f) was substituted. Those new paragraphs provide as follows:

(aa)    the support is necessary to address needs of the participant arising from an impairment in relation to which the participant meets the disability requirements (see section 24) or the early intervention requirements (see section 25);

And:

(f)    the support is an NDIS support for the participant.

37    The new s 34(1)(f) engages the new s 10. Transitional NDIS rules (described below) set out the supports that are “NDIS supports” for these purposes.

38    Application provisions; power to make transitional NDIS rules: The 2024 Amendment Act contains application provisions for the new s 10 of the Act (Sch 1 item 124), and for the amendments made to ss 33 to 35 of the NDIS Act (Sch 1 item 129). Those application provisions are discussed under new Ground 6 below.

39    Item 138 of Sch 1 to the 2024 Amendment Act confers power to make transitional rules. Item 138(1) provides that the Minister may, by legislative instrument, make rules prescribing matters of a transitional nature (including prescribing any saving or application provisions) relating to the amendments or repeals made by Sch 1. Schedule 1 (other than the limits in item 138(3)) does not limit the rules that may be made under item 138(1) (item 138(4)).

40    Supports Transitional Rules: The Supports Transitional Rules are made under item 138 of Sch 1 to the 2024 Amendment Act (s 3). They commenced on 3 October 2024 (see s 2(1)).

41    Section 5 of the Supports Transitional Rules sets out general rules about what supports are NDIS supports for the purposes of new s 10 of the NDIS Act.

    By s 5(1), a support identified in Sch 1 of the Supports Transitional Rules is an NDIS support for the purposes of s 10(1) of the NDIS Act (subject to s 10(4) and (9)) for (relevantly) the participants as identified in Sch 1 who have old framework plans.

    By s 5(2), a support identified in Sch 2 to the Supports Transitional Rules is not an NDIS support for the purposes of s 10(4) of the NDIS Act for any participant (subject to s 10(6) of the NDIS Act) or prospective participant. Relevantly for this case, the list of supports in Sch 2 that are generally not NDIS supports includes “water, gas and electricity bills” (item 1(f)), and “subscriptions for streaming services” (item 4(f)).

42    Section 6 of the Supports Transitional Rules sets out transitional rules for certain pre-commencement plans, and is discussed below in considering new Ground 6.

Grounds 1 and 2: the Foxtel Support

43    Grounds 1 and 2 challenge the Tribunal’s decision to approve the Foxtel support for funding.

    Ground 1 contends that the Tribunal misconstrued s 34(1)(c) of the Act and r 3.1(a) of the Supports Rules (relating to value for money), and also misconstrued r 5.2(a) (relating to day-to-day living costs).

    Ground 2 contends that the Tribunal failed to consider the Agency’s submission that the cost of the Foxtel subscription was not attributable to Mr Deayton’s disability support needs.

44    Mr Deayton’s counsel emphasise that the Foxtel support is for the cost of Foxtel sports channels (which the Tribunal found to be relevant to Mr Deayton’s disability), not additional Foxtel services bought by Mr Deayton for other reasons, such as being able to watch movies with his nieces: see AAT decision (AAT), order [2](e).

45    Tribunal’s reasoning (Foxtel support): The Tribunal took a two-stage approach to determining whether the Foxtel support was a “reasonable and necessary support” for the purposes of the NDIS Act, as required by Public Trustee of South Australia (as litigation representative for Isherwood) v National Disability Insurance Agency (No 2) [2023] FCA 852; (2023) 182 ALD 259 at [17]-[23] (Colvin J):AAT [156], read with [44].

46    Whether reasonable and necessary in the light of the NDIS Act as a whole: The first stage was to determine whether the cost of the Foxtel support is a reasonable and necessary support in the light of the NDIS Act as a whole, including the objectives in s 3 and the guiding principles in s 4: AAT [156]-[157]. The Tribunal was satisfied that, based on the objectives and guiding principles of the NDIS Act, a Foxtel support could in special cases be a reasonable and necessary support in respect of Mr Deayton and his individual circumstances: AAT [158].

47    Whether Tribunal satisfied that s 34(1) requirements met: The second stage was to determine whether the Tribunal was satisfied that the Foxtel support met the criteria in s 34(1)(a) to (f) of the NDIS Act. In particulars (a) to (c) of Ground 1, the Agency challenges the Tribunal’s reasoning in relation to the criterion in s 34(1)(c) (value for money), as elaborated in r 3.1 of the Supports Rules.

48    The Tribunal set out the Agency’s submission that the Foxtel support is not value for money, because of the ways that Mr Deayton can continue to engage with football and horse racing using free-to-air television, and using radio or the internet to be aware of the results of a race or sporting events: AAT [169]-[170]. The Tribunal’s reasoning on why the Foxtel support provided value for money can be summarised as follows:

    The Tribunal accepted that if it were not for Mr Deayton’s disability he would have attended a lot more football matches and races in person, including those in locations away from his home town: AAT [174].

    In relation to football, one solution to Mr Deayton’s thermoregulation issues is for him to attend those matches in an air-conditioned room (such as a corporate box). The cost of doing so would cost substantially more than the cost of a Foxtel sports channel subscription: AAT [175].

    The Tribunal was not satisfied that watching free-to-air television will achieve the same outcome, because only some AFL football matches are streamed (broadcast) free-to-air. Further, interstate horse racing (except for some significant races) are also not streamed on free-to-air television. The Tribunal accepted Mr Deayton’s evidence that he has a strong interest in and is a close follower of both interstate and local horse racing: AAT [176]. The Tribunal found that free-to-air television is not a comparable support that Mr Deayton can access at a substantially lower cost, as it will not achieve the same outcome as the Foxtel support: AAT [177].

    The Tribunal concluded (at AAT [178]):

Overall, the Tribunal is satisfied that in the specific individual circumstances of Mr Deayton’s case, the cost of the Foxtel Support represents “value for money” in that the cost of this support is reasonable, relative to both the benefits achieved and the cost of an alternative support, being the cost of purchasing a ticket permitting him to enter an air-conditioned area of the venue. The Foxtel Support will enable Mr Deayton to have access to watching the horse races and football matches of his choosing and to keep abreast of latest developments in horseracing and football so he is well-informed when conversing and socialising with his personal networks about those activities.

49    Relevantly to particulars (d) and (e) of Ground 1 (and Ground 2), the Tribunal’s reasons on whether the Foxtel support related to day-to-day living costs within rr 5.1(d) and 5.2(a) of the Supports Rules can be summarised as follows:

    The Tribunal stated (at AAT [182]) that it is reticent to approve a streaming service for an NDIS participant, because it is a “day-to-day living cost” that is excluded by r 5.1(d) of the Supports Rules, subject to the exceptions in r 5.2. However, the Tribunal was satisfied that the exception in r 5.2(a) applied in Mr Deayton’s case:

182.    … Mr Deayton is from a family with very close ties to AFL football. Mr Deayton is also a member of a horse syndicate with other people. He and his syndicate members track the progress of 10 horses and races they are involved in. Sport is significant aspect of his personal expression and how he likes to enjoy life with his family and friends. It forms an important platform upon which he regularly socialises with others, including his siblings.

183.    It is important to customise Mr Deayton’s NDIS plan to provide him with supports which respond to the specific ways in which he prefers to socialise with his family and friends. The Tribunal has accepted Mr Deayton’s evidence at the hearing and in his submissions as to why it is no longer possible or easy for him to attend the sporting events in person in the way he used to be able to do so, and the adverse impacts upon him at times he has endeavoured to do so. The Tribunal is satisfied that Mr Deayton’s now needs to watch those events streamed via Foxtel on his television and this need arises solely and directly from his disability. The Tribunal finds that if Mr Deayton was not living with this disability, he would be attending Marvel Stadium in person to watch his team, St Kilda, play football during the winter season, and he would also attend various horse races to be track-side and watch them in person, as he gave evidence, like he used to be able to do.

    The Tribunal concluded that all of the criteria under s 34(1) of the NDIS Act were met in relation to the Foxtel support, and funding for this support was not excluded by reason of r 5.1(d) of the Supports Rules: AAT [184].

50    Did the Tribunal misconstrue the NDIS Act or Supports Rules (Ground 1)? Ground 1 (particulars (a) to (c)) contends that the Tribunal misconstrued s 34(1)(c) of the Act and r 3.1(a) of the Supports Rules in three ways:

    by finding that free-to-air television was not a comparable support to Foxtel;

    by requiring the comparable support to produce the same physical outcome, rather than the same outcome in terms of benefits to Mr Deayton; and

    by not considering if Foxtel was value for money relative to the benefits achieved and cost of alternative support that would produce the same or similar benefits.

51    Ground 1 (particulars (d) and (e)) contends that the Tribunal misconstrued r 5.2(a) of the Supports Rules in two ways:

    by finding that the Foxtel subscription was incurred “solely and directly” as a result of Mr Deayton’s disability support needs; and

    having identified the Foxtel subscription as a day-to-day living cost, by failing to identify any additional cost Mr Deayton incurred above the ordinary cost of the subscription.

52    Is there an error of law? A preliminary issue is whether any of these arguments raise a question of law. Mr Deayton submits that the errors contended for by the Agency, even if established, do not give rise to any error of law, but are merely part of the fact-finding function that is given to the Tribunal. The Agency responds that whether facts as found fall within a statutory provision properly construed is a question of law.

53    In Minister for Immigration, Citizenship and Multicultural Affairs v Su [2024] FCAFC 68; (2024) 303 FCR 342, the Full Court set out the following principles about the scope of an appeal on a question of law under s 44 of the AAT Act (citations omitted):

[14]    Following the decision of the High Court in Comptroller-General of Customs v Pharm-A-Care Laboratories Pty Ltd [2020] HCA 2; (2020) 270 CLR 494 (Pharm-A-Care) (esp at [41]–[45]), the following principles are relevant:

(1)    Whether the words used in a statute bear their ordinary meaning is a question of law ….

(2)    The question of whether the facts fully found fall within the provision of a statute properly construed will very frequently be exclusively a question of law ….

(3)    Special considerations apply where a statute, on examination, is found to use words according to their common understanding and the question is whether the facts as found fall within those words. In such cases, the question raised is whether the conclusion drawn by the tribunal/decision-maker was unreasonable …. If different conclusions are reasonably open, the determination of which is correct is a question of fact ….

(4)    A question exclusively of law arises if on the facts only one conclusion is open ….

[15]    These principles were encapsulated by the High Court in Pharm-A-Care in a single sentence (at [41]):

Within the bounds of reasonableness, the application or non-application of the common understanding of an expression used in a statute to facts that have been found is itself a question of fact.

[16]    A finding of fact can be erroneous in law if the finding is reached through the application of a wrong legal test … This may occur if the decision-maker has not applied the well understood ordinary meaning of a term but has given to it a meaning or qualification of his or her own ….

54    In applying these principles, it is important to keep in mind two points made by the Full Court in Haritos v Federal Commissioner of Taxation [2015] FCAFC 92; (2015) 233 FCR 315:

    First, the right of appeal under s 44 of the AAT Act does not extend to mixed questions of fact and law where, in order to decide the question of law, the Court must positively determine a question of fact itself, rather than judicially review the Tribunal’s fact-finding: Haritos at [192].

    Second, where the facts found are capable of falling within or without the description used in the statute, the decision which side of the line they fall on will generally be a decision of fact and not law: Haritos at [195]. However, a finding of fact may be vitiated by an error of law, such as when the Tribunal has applied the wrong legal test, or there is no evidence to support a particular finding of fact: Haritos at [197], read with [157].

55    NDIS Act and Supports Rules use common understanding of terms: A key issue raised by Su is whether the NDIS Act and the Supports Rules use words according to their common understanding.

56    In National Disability Insurance Agency v WRMF [2020] FCAFC 79; (2020) 276 FCR 415, the Full Court stated (at [143]) that whether, in a given case, the requested support is a “reasonable and necessary support”:

… will in our opinion generally be a question of fact, on the evidence before the decision-maker. Subject to matters such as rationality and legal unreasonableness, there may be an area of decisional freedom in the conclusion reached by a decision-maker about whether a support is properly characterised as a “reasonable and necessary support”. The phrase has a qualitative aspect.

This exercise is fact-intensive, and highly individualised to take account of the circumstances of a particular individual: WRMF at [152].

57    The Full Court in WRMF also observed that the decision-maker must be positively satisfied about each matter set out in s 34(1). This satisfaction must be “reasonably and rationally formed, not taking into account irrelevant considerations, and taking into account any relevant considerations, but otherwise it is for the decision-maker to form the requisite state of satisfaction on the given material”: WRMF at [201]. The s 34(1) criteria are “straightforward and pragmatic”, and the decision-maker’s approach is also entitled to be of the same kind: WRMF at [202].

58    This reasoning in WRMF indicates that the terms in s 34(1) of the NDIS Act are used according to their common understanding: that follows from the fact that a decision-maker has an area of decisional freedom, bounded by the requirements of rationality and legal unreasonableness. In particular, the NDIS Act uses the common understanding of terms such as whether costs are “reasonable”, relative to “benefits” and “cost” of “alternative” supports (s 34(1)(c)), whether the support will or is likely to be “effective and beneficial” for the participant, having regard to “current good practice” (s 34(1)(d)); and whether (prior to the 2024 amendments) the support is “most appropriately” funded through the NDIS and not “more appropriately” funded or provided by another general system (s 34(1)(f)). The same is true of the terms used in rr 3.1, 3.2, 5.1 and 5.2 of the Supports Rules.

59    Accordingly, the question is whether the conclusions drawn by the Tribunal are unreasonable: Su at [14](3), [15]. It is not sufficient simply for the Agency to contend that the Tribunal’s findings were incorrect. There is a distinction between the construction of a statutory phrase and the application of that phrase in a given case: see WRMF at [179]; National Disability Insurance Agency v Davis [2022] FCA 1002 at [162] (Mortimer J). The former is always a question of law, the latter is only an error of law if some ground of review can be established.

60    Tribunal’s review function: In assessing whether there is an error of law, it is also necessary to identify the function that was being performed by the Tribunal on the review. In McGarrigle v National Disability Insurance Agency [2017] FCA 308; (2017) 252 FCR 121 at [85], Mortimer J identified the review function of the Tribunal as to approve, vary or modify the supports as set out in the participant plan. In performing that function, the Tribunal must have regard to the matters in s 33(5), and form its satisfaction in accordance with s 34. Relevantly to Ground 1, the matters in s 33(5) include:

    the decision-maker must be satisfied as mentioned in s 34 in relation to the reasonable and necessary supports that will be funded (and the general supports that will be provided): s 33(5)(c); and

    the decision-maker must apply the NDIS rules made for the purposes of s 35 (s 33(5)(d)). Those rules include rr 5.1 and 5.2 of the Supports Rules: see [30] above.

61    The errors contended for by the Agency can be considered in light of the principles set out above. It is convenient to consider particulars (a) to (c) together, then particulars (d) and (e).

62    Choice of comparator; “same” outcome; relative costs and benefits: Particulars (a) to (c) of Ground 1 contend that the Tribunal:

    selected the wrong comparator to Foxtel (an air-conditioned corporate box, not free-to-air television, with the Agency’s oral submissions referring additionally to radio and internet);

    wrongly rejected free-to-air television as a comparable support because the Tribunal required comparable supports to produce the same physical outcome (rather than the same outcome in terms of benefits of Mr Deayton); and

    erred by not considering whether Foxtel was value for money relative to the benefits achieved and the cost of an alternative support that would produce the same or similar benefits.

63    These arguments are related. The Tribunal found that free-to-air television was not a “comparable” support to Foxtel because it did not achieve the same outcome, in that not all AFL football matches and horse races are broadcast on free-to-air television: AAT [176]-[177]. The Tribunal had previously set out the limitations of listening to races on the radio: AAT [154]. The Tribunal found that the Foxtel subscription was value for money when compared to the cost of a ticket to an air-conditioned area: AAT [178], [175].

64    A key to the Tribunal’s reasoning was that it analysed the relevant support as enabling Mr Deayton to watch AFL games and horse races of his choosing, not just any AFL games or any horse races. This is apparent from the Tribunal’s discussion of whether the Foxtel support satisfied the s 34(1)(b) criterion (social and economic participation). The Agency submitted that it was not necessary for Mr Deayton to have access to every AFL game or every horse race to maintain his social connections: AAT [164]. The Tribunal rejected that submission, stating (AAT [165]):

… the Foxtel support will ensure that Mr Deayton will be able to watch the horse races and the football matches of his choosing. The Tribunal is satisfied that this will assist Mr Deayton to participate socially and economically into the future as a member of the community.

The same point appears in AAT [161], discussing s 34(1)(a) (goals, objectives and aspirations). Similarly, the Tribunal stated (at AAT [183]) that “[i]t is important to customise Mr Deayton’s NDIS plan to provide him with supports which respond to the specific ways in which he prefers to socialise with his family and friends”.

65    No doubt the Agency takes a different view of what is sufficient to provide Mr Deayton with a necessary and reasonable support. But I do not read the Tribunal’s reasons as rigidly requiring an alternative support to achieve the same outcome (noting this language is derived from r 3.1(a)): apart from anything else, an air-conditioned corporate box does not achieve the same outcome as a Foxtel subscription: see AAT [171]. Instead, the Tribunal considered whether the proposed alternatives were sufficiently similar in achieving the objectives of the participant’s plan. The Tribunal’s decision on this point could perhaps be considered generous. However, a decision that enables Mr Deayton to watch AFL games and horse races of his choosing is in keeping with the objects in s 3(1)(e) and (g) (enabling people with disability to exercise choice and control, and to maximise independent supports and full inclusion in the community), and the general principles in s 4(1) and (11) of the NDIS Act (about the rights of people with disability to realise their potential for social development, and to participate in the community), referred to at AAT [157].

66    The Agency contends that, notwithstanding the findings in AAT [176]-[177], the Tribunal was required to consider free-to-air television (and radio and internet) as a comparator in assessing value for money, because there was no finding that those supports would achieve no benefit. As noted, the Tribunal found that free-to-air television is not a comparable support that would achieve the same outcome at a substantially lower cost, because it does not allow Mr Deayton to watch games and races of his choosing: AAT [176]-[177]. That finding reflects the language of r 3.1(a). Implicit in this finding is that radio and internet were not comparable either. Having found that the support provided by free-to-air television was not a “comparable” support (meaning not sufficiently comparable), there was no obligation on the Tribunal under s 34(1)(c) or r 3.1(a) to consider that support any further in determining whether that support nonetheless provided value for money. On the Tribunal’s findings, free-to-air television was not an “alternative support” for the purposes s 34(1)(c) of the NDIS Act (as explained by r 3.1(a) of the Supports Rules). The Tribunal was entitled to take a “straightforward and pragmatic” approach: WRMF at [202].

67    In my view, the Agency’s objections to this aspect of the Tribunal’s decision do not demonstrate any error of law in the Tribunal’s decision.

68    “Additional” living costs; “solely and directly” as a result of disability: Particulars (d) and (e) of Ground 1 contend that the Tribunal erred because it was not open (it is said) for the Tribunal to find that the cost of the Foxtel subscription was incurred “solely and directly” as a result of Mr Deayton’s disability support needs, and because the Tribunal failed to find what was the additional living cost of the Foxtel subscription.

69    These arguments concern r 5.2(a) of the Supports Rules, which provides that the prohibition in r 5.1(d) on funding day-to-day living costs does not apply to:

… additional living costs that are incurred by a participant solely and directly as a result of their disability support needs. (emphasis added)

70    The Agency relies on the following reasoning of Perram J in Warwick v National Disability Insurance Agency [2024] FCA 616 at [19]:

The point of paragraph 5.2(a) is to permit recovery of everyday costs where those costs relate solely to disability support needs. Thus the telephone bill is out, but transport costs for a person unable to drive or to utilise public transport because of a disability are in. Expenses which are disability-related but which would be incurred anyway even if the person did not have a disability are not recoverable. Thus the fact that a telephone is used for purposes which relate to disability does not make it recoverable if it is used for other non-disability-related purposes too.

71    In this case, the Tribunal was satisfied that Mr Deayton’s need to watch AFL and racing via Foxtel arose solely and directly because of his disability, because (the Tribunal found) if Mr Deayton was not living with his disability, he would be attending football games and racing events in person, like he used to be able to do: AAT [183].

72    This finding about what Mr Deayton would be doing if he were not living with his disability explains why the Tribunal considered that the cost of the Foxtel subscription was incurred “solely and directly” as a result of his disability support needs. The Agency submitted to the Tribunal (and submits now to the Court) that Mr Deayton would have incurred the cost of Foxtel support anyway, due to his interest in sport and his desire to watch horse racing events across Australia (as mentioned in AAT [182]). But that is to assume that a person who is interested in sport will buy a Foxtel subscription, even if (unlike Mr Deayton’s current position) they are able to attend events in person. Contrary to that assumption, the Tribunal accepted that, if not for his disability, Mr Deayton would have attended a lot more football matches and races in person, including those in locations away from his home town: AAT [174], [183]. It is implicit in these findings that the Tribunal did not accept that Mr Deayton would have bought a Foxtel sports subscription even without his disability. Given its findings about what Mr Deayton would have done if not for his disability, the Tribunal’s finding that the Foxtel subscription was solely and directly a result of his disability support needs was open to it. This case is therefore distinguishable on its facts from Warwick.

73    The Agency submits that the Tribunal asked the wrong question in AAT [183] by identifying the need for Mr Deayton to buy a Foxtel subscription (being his disability), whereas (it is said) r 5.2(a) looks to the reason for incurring the costs. This argument elevates form over substance: r 5.2(a) asks whether costs are incurred solely and directly as a result of a participant’s disability support needs. Thus a connection between the incurring of the cost, and the disability-related need for the support, is inherent in r 5.2(a). The Tribunal’s finding that the need for a support arises solely and directly from Mr Deayton’s disability (having found elsewhere that the support will be effective and beneficial for him within s 34(1)(d): AAT [179]) covers the substance of r 5.2(a), and this infelicity of expression is of no significance.

74    Similar reasoning applies to the Agency’s remaining argument on Ground 1. It is true that the Tribunal stated that a streaming service is a “day-to-day living cost”: AAT [182]. That was a statement of the general position. Here, it is at least implicit in the Tribunal’s findings (just set out) that Mr Deayton would not have incurred the cost of a Foxtel sports subscription at all, if not for his disability support needs, because he would have attended these events in person instead. That is, the entire cost of the Foxtel sports subscription was the additional cost for the purposes of r 5.2(a). I note that the Tribunal needed to quantify the cost of the Foxtel sports subscription, because in fact Mr Deayton purchased a subscription that provided him with both sports channels and movie channels: AAT [184]. But that quantification does not detract from the Tribunal’s conclusion that the Foxtel support (that is, to enable Mr Deayton to watch sports channels) was an additional day-to-day living cost that was incurred solely and directly as a result of his disability support needs.

75    The Agency submits, however, that the word “additional” in r 5.2(a) only covers the situation where a participant incurs a cost above the standard cost (such as an excess electricity charge), and does not cover the situation when (as here) a person incurs a standard cost solely and directly as a result of their disability that they would not otherwise have incurred at all. As a matter of ordinary meaning, however, “additional” is capable of applying to both situations. In Warwick, Perram J stated that, once the Tribunal found that relocation costs were a day-to-day living expense within r 5.1(d), “[t]he question for the Tribunal therefore became whether the relocation costs could be described as having been incurred ‘solely and directly’ as a result of Mr Warwick’s disability support needs”: at [9]. His Honour did not require that the costs of relocation be anything above the ordinary. (That said, Perram J ultimately held that relocation costs were not “day-to-day” living costs: Warwick at [15].) I reject the Agency’s argument.

76    Failure to consider a submission (Ground 2)? Ground 2 contends that the Tribunal failed to consider the Agency’s submission that the cost of Mr Deayton’s Foxtel subscription was incurred due to his interest in sport, and was not incurred solely and directly as a result of his disability support needs. That submission was clearly made to the Tribunal.

77    General principles: The Agency is correct that the Tribunal is required to consider any clearly articulated argument of substance made to it. A failure to do so can be analysed as a breach of procedural fairness, or a failure to perform the statutory task of review: see Mulligan at [57]-[61]. Further, the Tribunal was required by s 43(2) and (2B) of the AAT Act to give reasons for its decision, and those reasons must set out “findings on material questions of fact and a reference to the evidence or other material on which those findings were based”.

78    At the same time, it is also clear that the Tribunal is not obliged to engage in a line-by-line refutation of a party’s submissions: National Disability Insurance Agency v KKTB [2022] FCAFC 181; (2022) 295 FCR 379 at [112] (Mortimer and Abraham JJ). An argument may be dealt with implicitly, rather than expressly; for example, a finding made by the Tribunal may reduce an argument to insignificance: WRMF at [226], [229] (the Court); Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [47] (the Court). It is a question of whether, in substance, an argument has been considered: labels such as “active intellectual process” or “proper, genuine and realistic consideration” do not permit the Court to examine the merits of an administrative decision: Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582 at [26] (Kiefel CJ, Keane, Gordon and Steward JJ).

79    Submission dealt with implicitly: Here, the Tribunal’s reasons do not expressly identify a submission from the Agency that the Foxtel support would be incurred because of Mr Deayton’s interest in sport, and would not be incurred solely and directly as a result of his disability support needs. However, the Tribunal does identify Mr Deayton’s keen interest in sport, including his membership in a horse syndicate: AAT [182]. And as previously explained, the Tribunal found, in substance, that the need to watch the Foxtel sports subscription (and thus the cost incurred) was solely and directly attributable to his disability support needs: see AAT [183]. These findings either cover, or reduce to insignificance, the Agency’s submission: see WRMF at [229]. Put another way, it was unnecessary for the Tribunal to make a specific finding on the Agency’s submission, because it rested on a factual premise (what Mr Deayton would have done, if he did not have a disability) that was rejected: see WAEE at [47].

80    Conclusion – grounds 1 and 2 rejected: For these reasons, the Agency’s objections to the Tribunal’s reasons as to the Foxtel support do not demonstrate any error of law, contrary to Ground 1. And contrary to Ground 2, the Tribunal did sufficiently consider the Agency’s submissions as to why that support was not payable.

Ground 3: The Therapy Support

81    Ground 3 challenges the Tribunal’s decision to approve the Therapy support for funding. The Agency contends that the Tribunal failed to consider its submission that there was insufficient evidence to be satisfied that the quantum or hours of support sought by Mr Deayton satisfied s 34(1)(c) of the NDIS Act. In particular, the Agency argued before the Tribunal that there was no contemporaneous evidence from a properly qualified medical practitioner recommending 78 hours of support.

82    Tribunal’s reasoning (Therapy support): Adopting the same two-stage approach from Public Trustee of South Australia, the Tribunal was satisfied at the first stage that the Therapy support could be a reasonable and necessary support in respect of Mr Deayton in his individual circumstances, in light of the NDIS Act as a whole: AAT [121].

83    The second stage was determining whether the Tribunal was satisfied that the Therapy support met the criteria in s 34(1)(a) to (f) of the NDIS Act. The parts of the Tribunal’s reasons relevant to Ground 3 are as follows:

    The Tribunal identified that Mr Deayton was seeking a two-hour session of physiotherapy per fortnight (that is, 52 hours per year) and a one-hour session of massage therapy on the alternate week (that is, 26 hours per year), compared to the current funding of 12 hours of physiotherapy and 28 hours for “other professionals”: AAT [110]-[111]. The Tribunal added four extra hours for physiotherapy and one extra hour for massage therapy per year, to allow the health practitioners to prepare and issue comprehensive progress supports: AAT [142].

    In considering s 34(1)(b) (social and economic participation), the Tribunal dealt with a submission from the Agency as follows (emphasis added):

126.    Mr Deayton has a serious genetic condition that adversely impacts the muscles in his body. The NDIA contends that there is insufficient evidence to support Mr Deayton’s request for the Physiotherapy and Massage Support. However, the Tribunal notes that in Dr Dobbing’s Letter, the doctor states that Mr Deayton has been his patient since 28 December 2023 and that Mr Deayton benefits from regular physiotherapy and massage. Specifically, Dr Dobbing confirms that these two therapies assist with flexibility and maintaining muscle strength to enable him to manage his activities of daily living.

127.    The Tribunal accepts this evidence and is satisfied that the Physiotherapy and Massage Support will assist Mr Deayton to optimise his mobility to the greatest extent possible given his condition, and that this will assist him to facilitate his social and economic participation both within his home and when he ventures out into the community.

    In considering s 34(1)(c) (value for money), the Tribunal again identified that Mr Deayton was requesting one two-hour session of physiotherapy per fortnight and, on the alternate weeks, a one-hour session of massage therapy: AAT [130]. The Tribunal was satisfied (AAT [130]) that this was value for money for the likely benefits that Mr Deayton will receive from having those therapeutic interventions, based on evidence summarised in AAT [110] to [116], [125] and [126]. Those paragraphs include oral evidence of Mr Deayton that he had two-hour sessions with the physiotherapist as she would work on his whole body, and not just part: AAT [115].

    In considering s 34(1)(f) (whether the support could be funded through other general systems), the Tribunal found that the Therapy support was not more appropriately funded under the Medicare Benefits Scheme (MBS). The Tribunal found that the MBS is limited in the level of support it will provide to a person receiving physiotherapy, and “does not provide access to a sufficient intensity of this type of intervention that Mr Deayton seems to require to provide a benefit to him”: AAT [138], [140].

84    Did the Tribunal consider the Agency’s submission? The general principles about the requirement to consider clearly articulated submissions are set out under Ground 2: see [77]-[78] above. It is plain that the Agency made a submission that there was insufficient evidence: it is recorded in the Tribunal’s reasons at AAT [126]. The Agency submits that it can be inferred that the Tribunal did not consider this submission, because (it is said) the Tribunal did not explain how the Agency’s submission was overcome, and did not explain how the Tribunal was positively satisfied that the higher figure (56 hours of physiotherapy and 27 hours of massage therapy) was value for money as opposed to fewer hours.

85    Submission was identified: As a starting point, the fact that the Tribunal identified the submission in its reasons makes it more difficult to infer that the submission was overlooked: WAEE at [47]. Contrary to the Agency’s argument, I consider that, when read in context, the Tribunal’s description of the argument sufficiently captures the point sought to be raised by the Agency; namely, that the issue was how much therapy was necessary to achieve the benefit sought. The Tribunal recorded at AAT [110]-[111] that Mr Deayton was seeking funding for a greater number of hours for this support than had been previously funded. In that setting, the statement in AAT [126] that the Agency submitted there was insufficient evidence “to support Mr Deayton’s request for the Physiotherapy and Massage Support” (emphasis added) can only mean that the Tribunal understood the Agency to be submitting that there was insufficient evidence to support the greater number of hours sought, not that there was insufficient evidence to support any funding at all.

86    Tribunal treated Dr Dobbing’s letter as probative: It is true that the Tribunal does not expressly state why it does not accept the Agency’s argument that the evidence was insufficient. However, after setting out the Agency’s submission, the Tribunal refers in AAT [126] to the letter from Dr Dobbing (Mr Deayton’s general practitioner since December 2023), dated 6 March 2024. The Tribunal noted that Dr Dobbing stated that Mr Deayton received benefits from regular physiotherapy and massage, and confirmed that these two therapies assist with flexibility and maintaining muscle strength to enable him to manage his activities of daily living. It is clear from AAT [127] that the Tribunal regarded this then recent letter as both contemporaneous and probative, and supportive of the July 2023 report of Ms Clough (an occupational therapist) and the evidence of Mr Deayton himself. Those conclusions were open to the Tribunal, and were not of a kind that required detailed explanation. The Agency submitted only that the evidence before the Tribunal was insufficient. The Tribunal disagreed. This is not a case where the Tribunal was required to choose between conflicting evidence, where some explanation may be necessary: cf Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431, where the Tribunal gave no reasons for choosing to rely on outdated country information, rather than a more recent report provided by the applicant.

87    Tribunal found that a higher level of support was required: Other parts of the Tribunal’s reasons make clear that the Tribunal considered that Mr Deayton required a greater level of support than he was currently receiving. In assessing whether the support was most appropriately funded through the NDIS, the Tribunal accepted Mr Deayton’s evidence that he required physiotherapy and massage therapy of “sufficient intensity” for this support to be of benefit to him: AAT [140]. And in considering value for money, the AAT referred back to evidence that demonstrated a need for a higher level of support, including Mr Deayton’s evidence summarised at AAT [115] about the benefits of a two-hour physiotherapy session: see AAT [130]. It is necessary to consider the Tribunal’s reasons as a whole to determine whether a submission has been considered: see, for example, Minister for Immigration, Citizenship and Multicultural Affairs v RGKY [2022] FCAFC 177 at [110] (Farrell and Halley JJ).

88    Conclusion – Ground 3 rejected: When the Tribunal’s reasons are read fairly and as a whole, an inference cannot properly be drawn that the Tribunal failed to consider the Agency’s submission that there was insufficient evidence to substantiate the Therapy support. The Tribunal identified the submission, and gave reasons responsive to that submission. Nothing further was required.

Ground 5: The Electricity support

89    Ground 5 challenges the Tribunal’s decision to approve the Electricity support for funding. The Agency contends that the Tribunal misconstrued ss 33(5)(c) and 34 of the NDIS Act, by approving partial funding for Mr Deayton’s electricity usage.

90    Tribunal’s direction: This argument is based on the form of the Tribunal’s decision on the Electricity support. The Tribunal’s decision included a direction that Mr Deayton’s statement of participant supports include a provision approving funding in respect of:

a.    as a “Stated Support”, the cost of excessive electricity usage by Mr Deayton resulting from the use of equipment by reason of his disability, being an amount equivalent to the total monthly amounts charged to Mr Deayton (that is, after any Victorian-based concessions have been applied and deductions made, as recorded on those bills) over the previous 12-month period, in respect of the electricity usage in excess of 7.34 kWh per day, and minus any lump sum payment made to Mr Deayton by the Commonwealth for an Essential Medical Equipment Payment (emphasis added)

91    The Agency contends, in effect, that the NDIS Act only permits supports to be funded in full, or not at all.

92    Tribunal’s reasoning (Electricity support): The Tribunal adopted the same two-stage process to determine whether the Electricity support was a “reasonable and necessary support” for the purposes of the NDIS Act. On the first stage, the Tribunal was satisfied that the Electricity support could be a reasonable and necessary support in respect of Mr Deayton and his individual circumstances, in the light of the NDIS Act as a whole: AAT [63].

93    On the second stage (whether the criteria in s 34(1) were met), the Agency’s principal submission was that s 34(1)(f) was not met, because this support was more appropriately funded by the State government: AAT [60]. In particular, the Agency submitted that the State government provides the following relief from electricity bills to a person who has higher electricity costs due to medical needs (and who holds a concession card): the “medical cooling concession” and the “life support concession”. The Agency contended further that the calculation of the electricity usage directly related to Mr Deayton’s disability is very difficult, and the appropriate support is therefore a subsidy, already provided by the State, rather than a precise support through the NDIS: AAT [96].

94    The Tribunal responded to that submission as follows:

    In considering s 34(1)(f) and whether a support is most appropriately funded through the NDIS, rather than another general service system, the Tribunal takes into account factors such as (a) the type of support available under the other general system compared to the NDIS; (b) whether the general system will fund or provide the support to the participant in full, or will partially subsidise it; (c) the availability of the support under the other general system to the participant in question, including whether Mr Deayton is eligible to receive it; and (d) other relevant distinguishing features (if any) between the general system and the NDIS: AAT [83].

    The Tribunal accepted that, as a general proposition, if a person is already receiving a particular disability-related support, it would not be effective or beneficial for them to be funded for that same support under the NDIS: AAT [97]. The Tribunal also accepted that there is no scope for a support to be partially funded under the NDIS: once the CEO has formed the state of satisfaction that the support is reasonable and necessary, and not more appropriately funded or provided through other general systems of service delivery or support services, the support must be fully funded: AAT [98], quoting National Disability Insurance Agency v Foster [2023] FCAFC 11; (2023) 295 FCR 521 at [98] (the Court).

    The Tribunal found that Mr Deayton is eligible and does receive the State annual electricity concession of 17.5%, and also the medical cooling concession in the warmer months. The Tribunal found that Mr Deayton is also eligible to receive the Commonwealth essential medical equipment payment, which is an annual lump sum of $191: AAT [103]. There was no finding that Mr Deayton does in fact receive this lump sum, which explains why the Tribunal’s orders state “minus any lump sum payment” from the Commonwealth under its scheme: AAT order [2](a).

    The Tribunal found that there would not be any duplication of supports, because the effect of the State concessions is that Mr Deayton is not charged for a certain component of his excess electricity usage fees: AAT [98]. Mr Deayton was asking for the NDIS to pay 100% of the excess electricity usage charges rendered to him by Origin Energy (that is, after any State-based concessions have been applied). The Tribunal found that Mr Deayton’s circumstances were distinguishable from McGarrigle, where the Agency had decided to fund only a portion of the total requested support. The situation also was not inconsistent with Foster, and did not involve any duplication of supports: AAT [104].

    The purpose of the “Victorian-based concessions” (said to include the essential medical equipment payment, although that may merely be a misplaced bracket) was to provide “help” (that is, a subsidy), whereas the NDIS provides full funding. This was a significant distinguishing feature relevant to the determination as to which is more appropriate to fund this support for Mr Deayton: AAT [107].

95    The NDIS does not permit the partial funding of a support: As noted, the Agency contends that the Tribunal’s decision on the Electricity support involves an impermissible partial funding of a support. The Agency submits that the NDIS Act only permits supports to be funded fully, or not at all. That argument is based on the Full Court decision in Foster, which approved the earlier decision of Mortimer J in McGarrigle.

96    McGarrigle (2017): In McGarrigle, the Tribunal affirmed a decision to approve 75% of the applicant’s weekday travel costs. The Tribunal considered that funding 75% of these costs struck an appropriate balance between what was reasonable and necessary for him, and the overall financial sustainability of the NDIS: McGarrigle at [47]. Mortimer J held that the Tribunal’s discretion miscarried, because s 34(1)(e) does not authorise the decision-maker to be satisfied that a support which otherwise has been found to be “reasonable and necessary” should only be partially funded because others can make up the funding difference: McGarrigle at [100].

97    The key parts of her Honour’s reasons are as follows:

    Once a decision is made that the support, as identified and described, is reasonable and necessary, then subject to the other requirements in s 33(5) and s 34, the scheme requires and contemplates that support “will” be funded. That can only mean wholly or fully funded: McGarrigle at [94].

    The subject matter of the CEO’s approval in s 33(2)(b) is the reasonable and necessary supports that “will” be funded. The language is imperative, and establishes that the relevant gateway established by the legislative scheme is whether the support is “reasonable and necessary”, and once through that gateway, the scheme intends the support will be fully funded. There are no references in these provisions to “contributions” from the participant, the participants’ family or carers. Parliament did not intend the decision-maker to ask, in forming a state of satisfaction, whether the community could or should make a financial contribution to the funding of a support found by the decision-maker to be reasonable and necessary in order for the participant to work towards the goals, objectives and aspirations set out in the participant’s plan: McGarrigle at [95].

    The NDIS Act does not require a decision-maker to either accept “all” of the support proposed or “nothing” of the support proposed. However, the scheme does contemplate that whatever support the decision-maker determines is reasonable and necessary is the support which will be fully funded. In McGarrigle, the Tribunal accepted that five days’ transport for Mr McGarrigle was a reasonable and necessary support: having done that, it could not determine that support should only be funded to 75% of its cost. Its function under ss 33 and 34 is not to determine funding proportions. Its function, relevantly, was to determine what supports were necessary and reasonable: McGarrigle at [98].

98    On appeal, it was common ground that the Tribunal’s decision should be set aside for legal error. However, the parties’ arguments raised a question whether the reasoning in McGarrigle at [95] should be taken to mean that, in every case where a support was reasonable and necessary, it must be fully funded. The Full Court held that this passage in McGarrigle was simply addressing the particular way in which the argument had been formulated before her Honour. The Full Court noted, to avoid doubt, that it would be open to the Tribunal to conclude that some or all of the supports sought by Mr McGarrigle in respect of transport are to be funded, depending on the Tribunal’s assessment of the evidence and materials before it: National Disability Insurance Agency v McGarrigle [2017] FCAFC 132; (2017) 157 ALD 458 at [2]-[5] (the Court).

99    Foster (2023): In Foster, Mr Foster was seeking from the NDIS sufficient funding for a certain type of catheter. He received an annual subsidy from the Commonwealth for the cost of his catheters under the Continence Aids Payment Scheme (CAPS), which amounted to approximately 5% of the annual cost of catheters: Foster at [12]. The Tribunal found that Mr Foster was not able to participate effectively or completely in the activity of self-care, within the meaning of NDIS rules made for the purposes of s 24(1)(c) of the NDIS Act. The Tribunal also found that Mr Foster was likely to require support under the NDIS for a lifetime within s 24(1)(e) of the NDIS Act: Foster at [22].

100    In addressing s 24(1)(e) of the NDIS Act, the Tribunal had asked whether there was an agency, department or service providing “comparable” mainstream support: see Foster at [92]. The Full Court (Sarah C Derrington J, with Katzmann and Perry JJ agreeing) held that, to the extent that the Tribunal asked whether support under the CAPS was comparable to what would be available under the NDIS, it asked itself the wrong question: Foster at [95].

101    The Tribunal also stated that it did not follow from the existence of a subsidy scheme for catheters, to which Mr Foster had had access, that he “should be confined to obtaining support from that scheme only”: see Foster at [96]. The Full Court held that this reasoning contained several errors of law.

    The passage was premised on the erroneous conflation of the specific tasks or actions described in guidelines with the activities prescribed by s 24(1)(c), and wrongly identified Mr Foster’s requirement for catheters as being for the purpose of improving functioning relating to his self-care: Foster at [97].

    Relevantly to this case, the Full Court held (at [98]) that the Tribunal’s statement that Mr Foster should not be confined to obtaining support from the CAPS only was also in error:

The passage also contemplates that Mr Foster should not “be confined” to obtaining support from the CAPS scheme only, implying that he could be funded under both schemes. To the extent that the Tribunal made such a finding, it was in error. There is no scope for support to be partially funded under the NDIS. Once the CEO has formed a state of satisfaction about whether a support is “reasonable and necessary”, and “not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body” (s 34(1)(f)), it must be fully funded: McGarrigle … at [94] per Mortimer J. (emphasis added)

102    Did the Tribunal provide an impermissible partial funding of a support? The issue is whether the Tribunal’s decision on the Electricity support involved an impermissible partial funding of a support, contrary to McGarrigle and Foster. As noted, the Tribunal referred to both decisions, and considered them distinguishable, because the relevant support sought by Mr Deayton was to cover the amount actually charged by Origin Energy in relation to his excess electricity usage above 7.34 kWh per day. On that basis, the Tribunal considered that this situation was unlike McGarrigle, where the Tribunal’s decision left the participant to pay the remaining 25%. This situation was also considered not to be inconsistent with the principles in Foster, as there was no duplication of supports: AAT [104].

103    No clash with McGarrigle: I accept Mr Deayton’s submission that the Tribunal’s decision on the Electricity support is not contrary to McGarrigle. In that case, the reference to supports being “partially funded” was assessed from the perspective of the participant: the Tribunal’s decision would have required the participant to fund the remaining 25%. Mortimer J held that, once a support was found to be reasonable and necessary (and satisfied the other requirements of ss 33(5) and 34), then the participant was to be funded fully for that support. If a support was only partially funded, then it might not in fact be provided at all, if the person could not make up the funding shortfall: McGarrigle at [101].

104    Understanding Foster at [98]: The more difficult question is whether the Tribunal’s decision is contrary to Foster. This aspect of Foster concerned s 24(1)(e) of the NDIS Act, not s 34(1)(f). That said, the Full Court stated that the focus of s 24(1)(e) “is on whether a prospective participant is likely to require support under the NDIS, or whether those support needs are most appropriately met by other systems”: Foster at [93], which at the very least has some resonance with s 34(1)(f). And, like this case, Foster was considering whether a participant could receive funding under the NDIS and another scheme, rather than being only partially funded. The Full Court in Foster appears to reject that possibility entirely, stating (at [98]) that “[t]here is no scope for support to be partially funded under the NDIS”. The Full Court cites McGarrigle at [94] for this statement, but (as just noted) McGarrigle was concerned with the different problem of a person not receiving enough funding, rather than there being dual sources of funding.

105    If the Full Court in Foster had meant to state that a person could never receive funding for a support under the NDIS and another scheme (a matter not covered by McGarrigle), it might be expected that there would have been more extended reasons for that conclusion, beyond a bare citation of the earlier decision. When read in context, this statement in Foster should be understood as meaning only that the possibility of a participant receiving funding from another source is not a reason for the Agency to commit to funding something less than the full support. That proposition is supported by McGarrigle. For example, in Foster, the Agency could not decide to fund only 95% of the relevant support, on the assumption that the remaining 5% would be met by the CAPS. At the same time, however, that does not mean that the NDIS Act permits “double dipping”, such that a participant could receive more than 100% of the cost of a reasonable and necessary support from a combination of different public funding. That result would run counter to the general objectives of ensuring the financial sustainability of the NDIS, such as ss 3(3)(b) and 4(17).

106    In argument, the Agency submitted that Foster should be taken to mean what is says, and that in situations like the present the Tribunal can deal with impermissible duplication between NDIS funding and other sources of funding by (1) requiring evidence that the participant does not receive funding under the other support (even if they are eligible); (2) doing nothing (thus creating the potential for the participant to receive funding in excess of what is required); or (3) defining the relevant “support” to be funded under the NDIS in such a way as to avoid overlap between NDIS funding and the other source of funding. Options (1) and (2) result in more funding being paid from the NDIS than might otherwise be required to ensure that a support is fully funded. Option (3) seems to encourage unnecessary technicality, and runs counter to the Agency’s own submission that the NDIS funds supports (here, electricity), not funding. Again, these results are not required by McGarrigle, and run counter to ss 3(3)(b) and 4(17) of the NDIS Act.

107    Tribunal decision ensures full funding, without duplication: Here, the Tribunal’s approach ensured the full funding of the Electricity support, but also removed the possibility of duplication: Mr Deayton is to receive the full amount he is charged for excess electricity consumption (thus taking account of the effect of Victorian concessions, if any), and less any lump sum payment made by the Commonwealth under the essential medical equipment scheme for that year. The Tribunal recognised that, if for whatever reason, Mr Deayton was no longer eligible for the Victorian concessions (or the Commonwealth lump sum for that matter), he would be entitled to a corresponding increase in the amount payable under the NDIS: AAT [104]. That approach gives effect to McGarrigle, and objects and principles in ss 3 and 4 of the NDIS Act. In my view, this approach is not precluded by Foster.

108    Relationship with s 34(1)(f) (what is “most appropriately funded”): Often an overlap in funding between the NDIS and other schemes will be avoided by considering whether the support is “most appropriately” funded through the NDIS, under s 34(1)(f). A separate difficulty in Foster was that the Tribunal had only asked whether services provided by other agencies, departments or organisations provided a “comparable mainstream support”: Foster at [92], [95]. Here, by contrast, the Tribunal correctly understood that the question under s 34(1)(f) was whether the Electricity support was most appropriately funded through the NDIS, or more appropriately funded under the Victorian concessions programs (or Commonwealth payments): AAT [83], [85].

109    The Tribunal considered a range of factors in addressing that question, including whether the other system will fund the support in full, or only partially subsidise it: AAT [83](b). The Tribunal accepted, as a general proposition, that if a person is already receiving a particular disability-related support, it would not be effective or beneficial (that is, appropriate) for them to receive the same support under the NDIS: AAT [97]. In this case, however, the Victorian concessions (and the Commonwealth essential medical equipment payment) provided a subsidy only, not a full payment. This was a “significant distinguishing feature” relevant to which system was more appropriate: AAT [107]. In my view, Foster does not prevent a decision-maker from having regard to the extent of supports provided under another system as one relevant matter in deciding whether a support is “most appropriately” funded through the NDIS. The Agency conceded that the extent of funding provided under another system is relevant to s 34(1)(f).

110    Conclusion – Ground 5 rejected: For these reasons, I would reject Ground 5. It is true (following McGarrigle and Foster) that the NDIS Act does not permit the partial funding of a support that is found to be reasonable and necessary, and which satisfies all other statutory requirements. However, the Electricity support is not a “partial funding” in this sense, because the way in which the support is defined ensures that it will be funded completely.

new GROUND 6: Effect of the 2024 amendments and Supports Transitional rules

111    New Ground 6 contends that, separately from the grounds of appeal considered above, the Agency is prevented by the October 2024 amendments to the NDIS Act and the Supports Transitional Rules from now giving effect to the Tribunal’s decision. As noted, the Agency raises this issue as a matter going to the utility of relief: it is said there would be no point simply dismissing the appeal if the Agency were unable to implement the Tribunal’s decision.

112    New Ground 6; declaratory relief sought: The particulars to new Ground 6 set out the argument as to why the Agency cannot now provide the Foxtel and Electricity supports:

a.    The Tribunal’s direction was not implemented prior to 3 October 2024.

b.    On 3 October 2024 s 34(1)(f) of the Act was amended and s 34(1)(aa) added by the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024.

c.    The Applicant can only provide supports as directed by the Tribunal if those supports are NDIS supports for the Respondent pursuant to 34(1)(f) of the Act and those supports satisfy s 34(1)(aa) of the Act as amended on 3 October 2024.

d.    The Foxtel support and Electricity support are not NDIS supports as they are excluded by Schedule 2 to the National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024, and not NDIS supports pursuant to s 6 of those Rules.

113    New order 3 in the amended notice of appeal sets out the declaratory relief sought by the Agency. Paragraphs 3(a) and (b) substantially reproduce the arguments in Ground 6.

114    RACV support, Training Course support (order 3(c)): Order 3(c) of the amended notice of appeal also seeks the following declaratory relief in respect of other parts of the Tribunal’s decision that are not covered by the grounds of appeal:

The following supports in the Tribunal’s Direction are not NDIS supports for the Respondent pursuant to s 6 of the National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 being:

i.    the cost of the Respondent’s annual subscription to RACV Roadside Assist for a Wheelchair being $25.50 per annum [the RACV support]; and

ii.    the costs associated with the registration and attendance by the Respondent of a training course in respect of the self-management of a NDIS plan so that he may better understand a participant’s obligations under s 46 of the NDIS Act when doing so [the Training Course support].

115    The RACV support and Training Course support are referred to in paras 2(j) and (k) of the Tribunal’s orders.

116    Evidentiary position: It can be seen that a premise of new Ground 6 is that the Agency had not implemented the Tribunal’s decision by 3 October 2024, noting that the Tribunal’s decision was made on 16 September 2024 (particular (a)). I was informed by senior counsel for the Agency at the case management hearing on 28 April 2025 that it still has not implemented the Tribunal’s decision, although there is no evidence before the Court on that matter.

117    Mr Deayton’s senior counsel submitted at the case management hearing that the Agency should be required to file evidence explaining why it has not yet implemented the Tribunal’s decision. I decided that the Agency would not be required to file any evidence, if the Agency was prepared to give an undertaking that it would not rely on the absence of evidence as to its internal processes in relation to its implementation of the Tribunal’s direction in resisting a submission by Mr Deayton that declaratory relief should be refused in the exercise of discretion. The Agency gave a written undertaking to this effect on 7 May 2025, through its Deputy Chief Counsel of the Dispute Resolution and Litigation branch.

118    NDIS Act ss 10, 34(1)(aa) and (f); Supports Transitional Rules s 5(2), Sch 2: The key provisions for Ground 6 are the new s 34(1)(f) of the NDIS Act (read with the definition of “NDIS support” in the new s 10), and s 5(2) and Sch 2 of the Supports Transitional Rules. Briefly, the effect of those provisions is as follows:

    by s 34(1)(f) as amended, a support cannot be approved under s 34 unless the support is an “NDIS support” as defined in s 10;

    s 10 defines an NDIS support as a support that is declared by the NDIS rules to be an NDIS support, and the NDIS rules can declare that a support is not an NDIS support;

    the Supports Transitional Rules s 5(2) and Sch 2 declare that certain supports are not NDIS supports, including (relevantly) “water, gas and electricity bills” and “subscriptions for streaming services”.

119    The Agency contends that the Foxtel support and Electricity support are specifically excluded by s 5(2) and Sch 2 to the Supports Transitional Rules. The Agency contends further that there is a “real risk” that the RACV support and the Training Course support do not come within any of the supports listed in Sch 1 to the Supports Transitional Rules (read with s 5(1)), and therefore do not satisfy the requirement in s 34(1)(f) that a support must be an “NDIS support”.

120    I note that new s 34(1)(aa) (also added by the 2024 Amendment Act) relevantly provides that a decision-maker must be satisfied that the support is necessary to address needs of the participant arising from an impairment in relation to which the participant meets the disability requirements.

121    Application provisions: The amendments set out above apply in accordance with the following provisions in the 2024 Amendment Act and the Supports Transitional Rules.

122    Application of new s 10 (Sch 1, item 124): Item 124 of Sch 1 to the 2024 Amendment Act makes the following provision for the application of the new s 10 to old framework plans:

124 NDIS supports

(1)    This item applies until the commencement of the first National Disability Insurance Scheme rules made for the purposes of subsection 10(1) of the National Disability Insurance Scheme Act 2013, as inserted by this Schedule.

(2)    Section 10 of that Act has effect as if a reference in that section to the National Disability Insurance Scheme rules were a reference to rules made under item 138 of this Schedule.

123    Application of new ss 33 to 35 (Sch 1, item 129): Item 129 of Sch 1 to the 2024 Amendment Act makes the following provision for the application of the amendments to ss 33 to 35 of the NDIS Act to old framework plans:

129 Old framework plans—content and approval of statement of participant supports

(1)    Subject to subitem (3), sections 33, 34 and 35 of the National Disability Insurance Scheme Act 2013, as in force on and after the commencement of this Schedule, apply in relation to a statement of participant supports included in an old framework plan for a participant if the statement is approved or varied on or after that commencement.

(2)    Subitem (1) applies:

(a)    whether the participant becomes a participant; and

(b)    in the case of a variation—whether the plan comes into effect;

before, on or after that commencement.

(3)    Subsection 33(2A) of the National Disability Insurance Scheme Act 2013, as in force on and after the commencement of this Schedule, applies in relation to a statement of participant supports included in an old framework plan for a participant if:

(a)    the statement is approved on or after the commencement (the determination commencement) of the first determination made under subsection 33(2E) of that Act (as inserted by this Schedule); and

(b)    the decision to approve the statement is not covered by subitem (4).

(4)    This subitem covers the following decisions made on or after the determination commencement:

(a)    a decision made by a reviewer under subsection 100(6) of the National Disability Insurance Scheme Act 2013 on review of a decision made by a decision-maker before the determination commencement;

(b)    a decision, made by the Administrative Appeals Tribunal, on review of a decision made by a reviewer under that subsection:

(i)    before the determination commencement; or

(ii)    on or after the determination commencement, if the decision reviewed by the reviewer was made by a decision-maker before the determination commencement.

(5)    Subitem (3) applies whether the participant becomes a participant before, on or after the determination commencement.

124    Application of Supports Transitional Rules (s 6): Section 6 of the Supports Transitional Rules makes the following provision for the application of new s 5, and Schs 1 and 2, to pre-commencement plans:

6 Transitional rule for certain pre-commencement plans

(1)    This section applies in relation to a participant if the plan that is in effect for the participant includes a statement of participant supports approved by the CEO before the commencement of Schedule 1 to the amending Act.

(2)    A support specified in the statement as a reasonable and necessary support for the participant for the purposes of paragraph 33(2)(b) of the NDIS Act is taken to be an NDIS support for the participant if:

(a)    the support is expressed in the statement to be a stated support; or

(b)    the Administrative Appeals Tribunal, in making any of the following decisions before the commencement of Schedule 1 to the amending Act:

(i)    a decision to vary the statement;

(ii)    a decision to approve the statement, having set aside the approval of a different statement of participant supports for the participant;

(iii)    a decision to remit the approval of a statement of participant supports for the participant for reconsideration by the CEO;

made a decision to the effect that that particular support should be specified in, or funded under, the plan as a reasonable and necessary support.

(3)    For the purposes of subparagraph (2)(b)(iii), it does not matter:

(a)    whether the Tribunal remitted the approval of the statement in accordance with any directions or recommendations of the Tribunal; or

(b)    whether the Tribunal also set aside the approval of the statement.

(4)    Subsection (2) applies:

(a)    despite subsection 10(4) of the NDIS Act and subsection 5(2) of this instrument; but

(b)    subject to subsection 10(9) of the NDIS Act.

Note 1:    Subsection 10(4) of the NDIS Act allows supports to be declared to not be NDIS supports for participants or prospective participants. Those supports are declared under subsection 5(2) of this instrument.

Note 2:    Subsection 10(9) of the NDIS Act provides that a support is not an NDIS support for a participant if the support consists of the provision of:

(a)    sexual services; or

(b)    alcohol; or

(c)    drugs, the possession of which is a contravention of a law of the Commonwealth, a State or a Territory.

125    Exclusions in Supports Transitional Rules do not apply: The key issue for new Ground 6 is whether Mr Deayton’s case comes within s 6(2)(b) of the Supports Transitional Rules. His case plainly satisfies some of the key requirements of that provision.

    Mr Deayton had a plan that included a statement of participant supports that was approved before the commencement of Sch 1 to the 2024 Amending Act on 3 October 2024 (albeit that at this time the supports were those approved by the internal reviewer): cf s 6(1).

    The Tribunal made a decision before 3 October 2024 to remit the approval of a statement of participant supports for the participant for reconsideration by the CEO. That decision was to the effect that specified supports should be specified in, and funded under, the plan as reasonable and necessary supports: cf s 6.2(b).

126    Agency’s argument: The Agency contends, however, that s 6(2) does not apply, because s 6(2)(b) only applies to a support “specified in the statement”. That means the statement mentioned in s 6(1), which in turn is said to mean the statement as approved by the CEO before 3 October 2024. As a matter of fact, it is said, the supports that the Tribunal directed were to be included in Mr Deayton’s plan were not specified in that statement at 3 October 2024. The Agency contends that s 6(2)(b) only applies when a Tribunal decision or direction had been implemented but the specific support had not been “stated” in a new plan document before 3 October 2024.

127    Extrinsic materials indicate broader operation: The extrinsic materials indicate that s 6(2)(b) has a somewhat broader scope of operation. The Explanatory Statement to the Supports Transitional Rules at pp 12 to 13 explains the purpose of s 6, and s 6(2)(b), as follows (emphasis added):

[Section 6] will ensure a participant who has a support stated in their plan can continue to access that support after commencement if it is not an NDIS support. It will also ensure participants who have received a decision from the Tribunal that identifies a particular support as reasonable and necessary for them can continue to access that support if it is not an NDIS support. This will apply for as long as the relevant plan is in effect.

…

This provision is important to ensure that participants can continue to access supports that are not NDIS supports if they have been specifically identified as reasonable and necessary for the participant prior to the Amending Act commencing. This will provide continuity of supports for a period of time while the participant becomes familiar with the list of supports that are NDIS supports and is able to select alternatives, if applicable.

Paragraph 6(2)(b) is included as a safeguard for participants who have received a Tribunal decision, because their plan will not always state each individual support as reasonable and necessary. This provision will ensure any support assessed as reasonable and necessary by the Tribunal will continue to be available until the participant receives their next plan. It will also capture supports that are included in a participant’s plan as a result of a remittal under section 42D of the Administrative Appeals Tribunal Act 1975, whether those supports are specifically stated in the participant’s plan or not.

128    Agency’s construction leads to arbitrary results: The Agency’s interpretation of s 6(2)(b) would lead to results that could be seen as arbitrary or anomalous: on the Agency’s approach, the application of s 6(2)(b)(iii) (and the preservation of a Tribunal decision that certain supports are to be approved) depends on whether the Agency had implemented the Tribunal’s decision before the commencement of the 2024 Amendment Act on 3 October 2024. That result seems odd, given that s 6(2)(b) treats together the situations where before 3 October 2024 the Tribunal (i) itself varies a statement, (ii) itself approves a different statement of supports, or (iii) remits a statement for reconsideration. A participant in situations (i) and (ii) always takes the benefit of s 6(2)(b), but (on the Agency’s interpretation) not a participant in situation (iii), unless the Agency happened to implement the Tribunal’s decision before 3 October 2024.

129    Another factor tending against the Agency’s argument is that s 6(2) is concerned with the substance of the decision made by the Tribunal, not its form: s 6(2) refers to the Tribunal making a decision “to the effect” that a support should be specified or funded as a reasonable and necessary support, and s 6(3) makes clear that it does not matter whether the Tribunal remits the matter with directions, or sets aside the approval of the statement. Given this focus on the substance of the Tribunal’s decision, it would be curious if s 6(2)(b)(iii) operated by reference to when the Tribunal’s decision comes to be implemented by the Agency on a remitter. There does not seem to be any coherent reason why s 6(2)(b)(iii) would allow the possibility that two different participants, both who had the benefit of Tribunal decisions made on the same day before 3 October 2024, might be in a different position, if the Agency implemented one decision before that date, and one decision after. True it is that the overall objective of s 5 and Schs 1 and 2 of the Supports Transitional Rules is to reduce the amount of funding under the NDIS; however, s 6 qualifies that general objective.

130    Section 6(2)(b) contains its own temporal limit: The flaw in the Agency’s argument is to assume that the reference to a “support specified” in a plan in s 6(2) must be a support that was specified before 3 October 2024. But s 6(2)(b) contains its own temporal limit: the Tribunal’s decision must be made before 3 October 2024. That temporal limit would not be necessary in s 6(2)(b) if s 6(2) only applied to supports that were specified in a participant’s plan before 3 October 2024. It is true that the precondition in s 6(1) requires that there was a statement of participant supports for a person that was approved before 3 October 2024. It does not follow, however, that the reference in s 6(2) to “[a] support specified in the statement” is confined to those supports that were specified in the plan before 3 October 2024; that phrase extends to supports that are or become specified in the plan through the operation of s 6(2)(b). And the temporal limit in s 6(2)(b) is that the Tribunal’s decision be made before 3 October 2024; there is no further requirement that the Tribunal’s decision be given effect to before that date. As just noted, it would be anomalous if the preservation of the effect of a Tribunal decision by s 6(2)(b)(iii) had a different temporal operation from s 6(2)(b)(i) and (ii), given s 6(2)(b) treats these three situations together. Further, as the Respondent points out, there is a change of language between s 6(2)(b)(i) and (ii) (which refer to “the” statement of supports) and (iii) (which refers to “a” statement of supports). That change of language reflects that the supports preserved by s 6(2)(b) include some that are included in the person’s statement after 3 October 2024, through the operation of s 6(2)(b)(iii).

131    Tribunal supports not excluded by Supports Transitional Rules s 5(2) and Sch 2: For these reasons, the effect of the Tribunal’s decision is preserved by s 6(2)(b) of the Supports Transitional Rules. That rule operates despite s 10(4) of the NDIS Act and s 5(2) of those Rules: see s 6(4). It follows that the Foxtel and Electricity supports are not excluded by s 5(2) and Sch 2 of the Supports Transitional Rules. In addition, there is no need for the RACV support and the Training Course support to meet the requirements of s 5(1) and Sch 1 of the Supports Transitional Rules, because the supports specified in the Tribunal’s directions are taken by s 6(2)(b) to be NDIS supports.

132    Unnecessary to determine whether amendments to ss 33 to 35 apply: This analysis makes it strictly unnecessary to determine whether the amendments to ss 33 to 35 of the NDIS Act (such as the new ss 33(2A) or 34(1)(aa)) apply here: it is not suggested that any of these other amendments independently prevent the Agency from giving effect to the Tribunal’s decision.

133    Doubtful whether amendments apply: With that said, it is at least doubtful whether those amendments apply in respect of Mr Deayton’s participant plan.

    As noted, item 129(1) of Sch 1 to the 2024 Amendment Act provides that ss 33 to 35 of the NDIS Act, in their amended form, apply in relation to a statement of participant supports included in an old framework plan for a participant “if the statement is approved or varied on or after that commencement [that is, 3 October 2024]”. The reference to “variation” would mean variation in accordance with s 47A of the NDIS Act. Here, the Tribunal’s decision required the Agency to re-exercise the power of approval on remittal. The issue then becomes what step amounted to the “approval” of Mr Deayton’s plan for these purposes: is it the directions given by the Tribunal, or the Agency’s implementation of those directions?

    There is much to be said for the view that the relevant “approval” of Mr Deayton’s plan was constituted by the Tribunal’s directions that the Agency approve funding for the specified supports, not the later step of the Agency implementing those directions. Once the Tribunal issued its directions, the better view is that the Agency was bound to take account of and give effect to those directions: see, for example, Re Devine and Commonwealth of Australia (1982) 5 ALN N28 at N30; see also Maurangi v Bowen [2012] FCA 15; (2012) 200 FCR 191 at [20] (Lander J); Collector of Customs v LNC (Wholesale) Pty Ltd (No 2) [1989] FCA 703; (1989) 19 ALD 341 at 346 (Davies J) (the primary decision-maker has both a power and a duty to give effect to a Tribunal decision promptly and in good faith). The date of the Tribunal’s directions is fixed and certain, and focusing on this date gives item 129(1) an operation consistent with item 129(3) to (4) (which apply the new s 33(2A)), especially item 129(4)(b). As with the Agency’s construction of s 6(2), the alternative construction would give item 129(1) an arbitrary operation, which would depend on the happenstance of when the Agency had gotten around to implementing the Tribunal’s directions.

    Here, the Tribunal’s directions were given on 16 September 2024. Those directions were consistent with the NDIS Act and NDIS rules at the time they were made. The effect of those directions is preserved by s 6 of the Supports Transitional Rules, as set out above. If the date of the Tribunal’s directions is the date on which Mr Deayton’s plan was approved (as suggested above), then his plan was approved before the commencement of the 2024 Amendment Act, and therefore item 129(1) does not apply the amended ss 33 to 35 of the NDIS Act in relation to the statement of participant supports included in his plan.

134    Does not matter whether s 43(1)(c) directions are strictly binding: The Agency observes, correctly, that there is some debate in the decisions of this Court about whether a direction made by the Tribunal under s 43(1)(c)(ii) of the AAT Act is binding on the body to which the matter is remitted. The Agency refers to Minister for Immigration and Multicultural Affairs v Amani [1999] FCA 1040 at [17] (where Lee J stated that “directions” in s 415(2)(c) of the Migration Act 1958 (Cth) (as it then was) meant only an “emphatic recommendation”), and Minister for Immigration and Citizenship v Dhanoa [2009] FCAFC 153; (2009) 180 FCR 510 at [5] (where Moore J, dissenting in the result, stated that a direction given under a similar provision in the Migration Act “probably must be complied with”).

135    In my view, however, this debate does not affect the proper interpretation of item 129(1) of Sch 1 to the 2024 Amendment Act. The Agency accepts that a direction from the Tribunal cannot simply be ignored, and that the Agency would need to provide a participant with procedural fairness before acting inconsistently with those directions. A direction from the Tribunal therefore has sufficient substance to treat this date (that is, 16 September 2024) as the relevant date of approval of a participant’s plan, to avoid the arbitrary consequences that would arise on the alternative construction of item 129.

136    In addition, this reasoning is supported by the fact that the Explanatory Statement expressly contemplates that s 6(2)(b) of the Supports Transitional Rules is capable of preserving a Tribunal decision when a matter had been remitted for reconsideration under s 42D of the AAT Act (rather than s 43(1)(c)(ii)): see [127] above. Unlike s 43(1)(c)(ii), s 42D did not contain a formal power of direction. If an unofficial indication by the Tribunal under s 42D, short of a direction, that a particular support should be specified in, or funded under, a participant plan as a reasonable and necessary support is sufficient to engage s 6(2)(b), then it must follow that a direction under s 43(1)(c)(ii) also engages s 6(2)(b), whether or not that direction is strictly binding.

137    Not necessary to decide cross-appeal: These conclusions make it unnecessary to determine the cross-appeal. The 2024 Amendment Act and the Supports Transitional Rules do not prevent the Agency from giving effect to the Tribunal’s decision. It should do so, without delay.

conclusion

138    The appeal should be dismissed with costs.

Associate:

Dated:    2 June 2025