Federal Court of Australia

National Disability Insurance Agency v Jones [2025] FCA 877

ORDERS

THE COURT ORDERS THAT:

1.    The decision of the Administrative Appeals Tribunal given orally on 23 May 2024 and in writing on 30 May 2024 be set aside.

2.    The matter be remitted to the Administrative Review Tribunal, differently constituted, for reconsideration according to law.

3.    There be no order as to costs.

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

REASONS FOR JUDGMENT

COLLIER J:

1    Before the Court is a Notice of Appeal from a Tribunal, being an appeal by the National Disability Insurance Agency (applicant) from a decision of the Administrative Appeals Tribunal (Tribunal) given orally on 23 May 2024 and in writing on 30 May 2024 (decision). In its decision the Tribunal set aside the review decision of the applicant dated 9 June 2023 (Review Decision). The Tribunal substituted the Review Decision with a decision that the first respondent (Ms Jones) met the early intervention requirements for access to the National Disability Insurance Scheme (NDIS) under s 25 of the National Disability Insurance Scheme Act 2013 (NDIS Act).

2    The lawful interpretation and application of s 25 of the NDIS Act is key to the present proceedings before me.

3    Unfortunately the proceeding before me was somewhat one-sided, in that there was no participation by Ms Jones at any time. In particular, at the hearing of the application, Mr Nolan for the applicant informed me as follows:

HER HONOUR: Good morning. Now, is there any appearance by the respondent?

MR NOLAN: As far as we’re aware, your Honour, no. The last email correspondence we are aware of was when the registry emailed both ourselves, the applicant solicitors and the respondent on Thursday the 14th with the link. And the email response from the respondent was “Leave me alone”. That was an email dated 5.59 pm.

HER HONOUR: Thank you.

MR NOLAN: On the 14th.

HER HONOUR: All right. Just to cover bases, Court Officer, can you please call the matter outside the courtroom?

COURT OFFICER: No appearance, your Honour.

HER HONOUR: Thank you, Court Officer. All right. Mr Nolan, thank you. I think we will proceed…

(transcript 18.11.24 page 2 lines 9-27)

4    In the circumstances, as the applicant had nothing of substance to add to its filed written submissions, I informed Mr Nolan that I would determine the matter on the papers before the Court.

5    Before turning to the application before the Court it is convenient to examine the background, including (so far as is relevant) the Review Decision of the applicant, and the decision of the Tribunal.

BACKGROUND

6    On 15 November 2022, Ms Jones made a request to the applicant to become a participant of the NDIS. The impairments nominated by Ms Jones in support of that request were “complex PTSD” and “possible dissociative disorder”. On 16 May 2023, Ms Jones’ request was refused by the applicant on the basis that she did not meet the disability requirements under s 24 of the NDIS Act, nor the early intervention requirements necessary to access the NDIS under s 25 of the NDIS Act.

7    Ms Jones requested a review of the original decision of the applicant on 22 May 2023. On 9 June 2023 the Review Decision affirmed that original decision. Ms Jones sought review of the Review Decision in the Tribunal on 15 June 2023.

8    Materially, the Tribunal found that s 24 of the NDIS Act was not satisfied, however the requirements of s 25 of the NDIS Act in relation to early intervention were satisfied.

REVIEW DECISION OF THE APPLICANT REFERABLE TO S 25 NDIS ACT

9    The reasoning of the applicant in the Review Decision can plainly be seen to inform the subsequent reasoning of the Tribunal in this matter. It is accordingly useful to note the reasons of the applicant in finding that Ms Jones had not satisfied the requirements of s 25 of the NDIS Act. Those reasons were as follows:

Access criteria: Section 25 Early Intervention

Decision: Not Satisfied

To meet the early intervention requirements, the NDIA must be satisfied that all of the three criteria in paragraph 25(1) have been met, and that the support is not more appropriately provided through other schemes or services.

Criteria (a) on impairments – an identified intellectual, cognitive, neurological, sensory or physical impairment that is (or is likely to be) permanent or (ii) an impairment due to a psychosocial disability that is (or is likely to be) permanent or (iii) a developmental delay.

I am not satisfied that this criterion has been met in relation to your psychosocial impairments.

Our Guidelines - Applying to the NDIS, explains that to meet this criterion, an applicant must have an impairment that is likely to be permanent. When deciding if a person has an impairment that is likely to be permanent, the NDIA considers the same things as in the disability requirements.

As outlined in Section 24(1)(b) of the Disability requirements, I am unable to conclude from the evidence provided your psychosocial impairments are permanent.

As such, it cannot be determined that you meet this criterion.

Criteria (b) on reducing future need for support – early intervention supports are likely to reduce future support needs in relation to disability.

I am not satisfied that this criterion has been met in relation to your psychosocial impairments.

To meet this criterion, Our Guidelines - Applying to the NDIS explain that early intervention (early access to supports) must be likely to reduce a person’s future disability support needs.

Due to the long-standing nature of your psychosocial impairments, I am not satisfied the supports required are ‘early intervention’ in nature. From the evidence provided, early intervention supports are not likely to reduce your future needs for support in relation to disability.

Criteria (c) on improving capacity, which may be shown in any one of four ways:

Improvement (i) – lessen the impairment’s impact on the functional capacity for communication, social interaction, learning, mobility, self-care or self-management.

or Improvement (ii) – prevent the deterioration of functional capacity

or Improvement (iii) – improve functional capacity

or Improvement (iv) – strengthen informal supports, including building the carer’s capacity.

I am satisfied that this criterion has been met in relation to your psychosocial impairments.

Criteria 25(3) that the NDIS is the most appropriate support system, and that early intervention supports are not more appropriately funded through other systems of service delivery or support services.

I am not satisfied that this criterion has been met in relation to your psychosocial impairments.

To meet this criterion, the support a person requires must be most appropriately funded or provided by the NDIS.

A person won’t be eligible if we decide the support required is more appropriately funded or provided:

•    by other general systems of service delivery or support services, such as a workers compensation scheme

•    under a universal service obligation that other government services must provide to all Australians, such as schools and public hospitals

•    as a reasonable adjustment under discrimination law, such as making places or venues accessible for you.

The evidence provided does not indicate that early intervention supports are most appropriately funded by the NDIS. Early intervention for your psychosocial impairments are most appropriately provided through the Health System or other government services. Clinical treatment is the responsibility of the Health System and not the NDIS.

This determination is in line with Our Guidelines - Applying to the NDIS. Further information on when early intervention supports are more appropriately funded by the NDIS or by other services can be found here:

•    Our mainstream and community supports guideline

•    Schedule 1 of the NDIS (Supports for Participant) Rules

DECISION OF THE TRIBUNAL

10    In its decision the Tribunal relevantly found as follows:

2.    I have decided that the Applicant meets the early intervention requirements as set out in section 25 of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act).

3.     I am aware that this is not what the Applicant is seeking but have decided this is the correct decision for the following reasons.

4.    I am satisfied that the Applicant has impairments to which a psychosocial disability is attributable. This is accepted by the Respondent, is clear from Dr Ewer’s 2024 report, and other information in this matter, including summons records from the Applicant’s treaters and hospital admissions. The focus here is on impairments, not diagnosis, so whether or not there is a specific diagnosis in relation to dissociative episodes is not required.

5.     I am satisfied that these impairments are likely to be permanent. Dr Ewer’s 2024 report does say that the Applicant’s prognosis is better, and that with new treatments, there is high probability the Applicant will improve significantly. However, I do not read this as meaning that the Applicant will improve to a point where she will no longer live with any impairments and consider it likely that some level of impairment will continue.

6.    I have considered the Respondent’s submissions in relation to permanency and the NDIS (Becoming a Participant) Rules. I agree that there are known and appropriate treatments indicated. I am not satisfied that these treatments are available to the Applicant. Dr Ewer first expressed this opinion in May 2022 and again in February 2024. It is now two-years since Dr Ewer’s first report and the Applicant has not progressed in accessing these treatments.

7.     I have considered the additional material and submissions made in relation to availability of these services. I also note the Applicant is not currently engaged with a regular GP, treating psychologist or psychiatrist. As Justice Mortimer (as the Chief Justice then was) said at paragraph 140 in Davis, affordability may not be the only factor impacting access to treatment. The combination of a person’s impairments may also mean that these treatments are not available to that person. I am not persuaded that the Applicant’s ability to fund past treatments are an indication of her ability to afford the current treatments recommended, even if these are partly funded through Medicare. I understand that the Applicant receives a pension. In my view, the cost of these services, as well as the Applicant’s impairments, are preventing her from accessing the recommended treatments. Without support to access these treatments, the impairments are likely to be permanent.

8.     In relation to sections 25(1)(b) and (c), I am satisfied that, if the Applicant was able to access the treatments suggested by Dr Ewer her functional capacity could improve and this could reduce her future needs.

9.     For section 25(3), I am not satisfied that early intervention supports are more appropriately funded or provided through other systems. I acknowledge that the treatments suggested by Dr Ewer, and the supports the Applicant says she would require, are clinical in nature and are primarily the responsibility of the health system to deliver. I agree with the decision in BBMC in this regard. However, the specific supports that may be provided are part of the planning process and these may yet be different from what the Applicant is asking for now. Due to the Applicant’s psychosocial disability, she has been unable to access the recommended clinical services. There is, in my view, a proper role for early intervention supports under the NDIS to assist a person with a psychosocial disability to access appropriate services.

10.     I acknowledge this is not an easy fit with the language of ‘early intervention’ given the longstanding nature of the Applicant’s disability. However, the improvement in prognosis and treatments identified in Dr Ewer’s report do warrant a fresh look at whether these interventions could change the trajectory of the Applicant’s impairments.

11.    In reaching this conclusion, I have also considered the objects and principles of the NDIS Act, including that people with disability should be supported to receive supports outside the NDIS, and be assisted to coordinate these supports with the supports provided under the NDIS. As well as, the need to adopt an insurance-based approach and ensure the financial sustainability of the Scheme, and the need for interaction between mainstream services and the NDIS.

12.     In relation to section 24, I am not satisfied that the Applicant, based on the current information, is likely to require the support of NDIS for her lifetime. It is yet to be seen whether the significant improvements indicated by Dr Ewer can be achieved given the Applicant’s longstanding impairments. However, it is possible that the Applicant’s impairments could be improved to a point where support from the NDIS is no longer required. Having reached that conclusion, I do not need to go through the other factors in section 24 and do not need to consider whether the Applicant currently has a substantially reduced functional capacity.

13.     I acknowledge the Respondent’s assistance in arranging the second report from Dr Ewer. When Dr Ewer says that Ms Jones has a number of unhelpful personality traits, in my view, this is an understatement. Ms Jones was disruptive and disrespectful throughout the hearing. I considered whether the Applicant’s conduct amounted to an abuse of process. However, I consider that the Applicant’s behaviour is likely to be related to her Complex PTSD. I consider that efforts to manage this behaviour during the hearing are a reasonable adjustment for the Applicant’s disability. I am sorry that the Respondent and its representatives were subject to the Applicant’s disruptive and abusive conduct. I am also sorry that the Tribunal process was distressing for the Applicant. I will be considering the Applicant’s feedback to improve future hearings that I am involved in.

14.    Overall, having considered the information before the Tribunal, the parties’ submissions, the NDIS Act, Rules, and evidence provided during the hearing, I have concluded that it is appropriate for early intervention support to be provided by the NDIS. Early intervention supports will give the Applicant the best opportunity to access psychosocial recovery services. In turn, early intervention may mean that the Applicant’s future needs for NDIS supports are reduced.

Conclusion

15.     The Tribunal sets aside the decision under review and remits the matter for reconsideration, with a direction that the Applicant meets the early intervention requirements for access to the National Disability Insurance Scheme as set out in section 25 of the National Disability Insurance Scheme Act 2013 (Cth).

(footnotes omitted)

Notice of Appeal

11    The applicant appealed from the whole of the Tribunal’s decision. Section 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth), as then in operation, relevantly provided that a party to a proceeding may appeal to the Court on a question of law from any decision of the Tribunal.

12    The question of law raised by the applicant in this matter was:

Whether the Tribunal, in determining that it was not satisfied that early intervention supports for the First Respondent were more appropriately funded through other systems, failed to ask itself the correct questions, misunderstood or misapplied s 25(3) of the NDIS Act or failed to perform its statutory task.

13    The grounds on which the applicant relied were as follows:

Question 1:

1.    When addressing s 25(3) of the NDIS Act the Tribunal found (at [9] of its Reasons for Decision) that:

(a)    The treatments suggested by Dr Ewer, and the supports the Applicant said she would require, are clinical in nature and are primarily the responsibility of the health system to deliver;

(b)     The specific supports that may be provided are part of the planning process and these may yet be different from what the Applicant is asking for now;

(c)    Due to the Applicant's psychosocial disability, she has been unable to access the recommended clinical services;

(d)     There is a proper role for early intervention supports under the NDIS to assist a person with a psychosocial disability to access appropriate services; and

(e)     It was not satisfied that early intervention supports are more appropriately funded or provided through other systems.

2.    By making the above findings, the Tribunal asked itself the wrong questions, misunderstood or misapplied s 25(3) of the NDIS Act and did not perform its statutory task, as:

(a)    Section 25 of the NDIS Act requires consideration of whether 'early intervention support' is not most appropriately funded or provided through the Scheme, and is more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or through systems of service delivery or support services offered as part of a universal service obligation.

(b)     The Tribunal should have determined this question by determining what 'early intervention supports' were required by the First Respondent and whether they were not most appropriately funded through the Scheme.

(c)    Instead the Tribunal determined this question on the basis that other 'early intervention supports', which had neither been sought by the Applicant nor recommended by Dr Ewer, 'may be provided' and 'may yet be different from what the Applicant was asking for now.'

(d)     The Tribunal stated that the 'proper role' for early intervention supports under the NDIS was to assist a person with a psychosocial disability to access appropriate clinical services that lie outside the NDIS , when the correct question under section 25(3) was to determine whether the early intervention support is more appropriately funded or provided through other systems of service delivery, as opposed to the NDIS.

SUBMISSIONS

14    As I noted earlier in these reasons, only the applicant made any submissions in this matter. In summary, the applicant submitted:

    The issue requiring determination by the Tribunal was whether Ms Jones met the disability requirements under s 24 or the early intervention requirements under s 25 of the NDIS Act.

    The Tribunal’s reasons attached significant weight to the reports of the psychiatrist Dr Ewer. In his later report Dr Ewer limited his diagnoses to Post-traumatic Stress Disorder and a Major Depressive Disorder.

    The Tribunal was satisfied that Ms Jones met the early intervention requirements under s 25 of the Act, however in doing so the Tribunal failed to ask itself the correct questions, misunderstood or misapplied s 25(3) of the NDIS Act and thereby failed to perform its statutory task.

    The legislation contemplates that the NDIS would not cover people whose requirements for support would most appropriately be met by other systems.

    The Tribunal found (at [9] of its reasons) that the treatments suggested by Dr Ewer, and the supports Ms Jones claimed she would require, were clinical in nature and were primarily the responsibility of the health system to deliver.

    The Tribunal found that the “specific supports” that “may be provided” to Ms Jones as part of the “planning process…may yet be different from what the Applicant is asking for now”, however that speculation was an erroneous basis on which to conclude that Ms Jones met the early intervention requirement.

    Assistance to access services that appropriately lie outside of the NDIS are “general supports” rather than “early intervention supports” for the purposes of s 25. The Tribunal incorrectly conflated “general supports” with “early intervention supports”.

    Although the NDIS Act was amended following the determination by the Tribunal, it is appropriate for the Court to apply s 25 as it stood prior to those amendments.

CONSIDERATION

15    In her application to the Tribunal Ms Jones sought review of the Review Decision on the following basis:

I have found that as the NDIS has moved in the mainstream of the disability sector. All access to resources are being moved over to the NDIS system. Meaning that people like myself are not even receiving the support that they need, as I am not considered disabled enough for the NDIS but on the other hand my access to any adequate support is accessible as they are all NDIS providers. I have been forced by the Government’s hand to be on the NDIS not because I want to but because there is no other option for me now. But at the same time the government wants me to fight to prove im disabled enough to be deemed fit to access any help through the NDIS to which they are declaring I am not and my claim was denied. I am very confused as to how the government has considered me disabled enough to place me on a disability pension but then conclude I’m not disabled enough to not have any access to resources through the NDIS to support a recovery to get off the disability pension (which I think at this stage will never happen).

(errors in original)

16    Ms Jones did not seek early intervention as contemplated by ss 21 and 25 of the NDIS Act. That this is so is plain from the transcript of the hearing before the Tribunal, which included the following exchange between Counsel for the applicant and Ms Jones:

Okay. Ms Jones, there’s, to give you some background, two sections which apply when someone is trying to apply under the NDIS. The second of that is known as section 25 (indistinct). And that’s to do with - - -?---Hurry up.

What’s called early intervention supports. I’m trying to clarify, are you saying any of the supports you say you are requiring early intervention? Or are you saying, you’re only - - -?---Do you think that I’m at the stages of early intervention? Early intervention, my love, would have been in 2004 when the first psychiatric report was written. That’s why I’m suing the government right now. Because I should have got early intervention when I was in the foster care system. I got nothing. I should have got early intervention when I was a ward of the state. I got nothing. Early intervention, do you understand what the definition of early intervention is? Can you explain what you believe early intervention is?

Well, Ms Jones, I’m trying to clarify whether you’re seeking to apply this section or not?---No. I am beyond early intervention, my love. I am, I have got a full blown disability. How are you going to intervene with that? How are you going to be early in intervening with that? No. I’m not looking for early, I am looking for permanent support. If someone had intervened earlier I maybe wouldn’t have a disability now, hey?

All right. And just - - -?---Next question.

(transcript of hearing before the Tribunal 23 May 2024 page 20 lines 11-33)

17    Generally, it appears, both from the material before the Tribunal and the reasons of the Tribunal, that the question for determination by the Tribunal was whether Ms Jones met the criteria required by s 21(1)(c) of the NDIS Act to gain access to the NDIS. The applicant has submitted that the Court should have regard to relevant sections of the NDIS Act as they were prior to the enactment of the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 (Cth). I agree. At the material time s 21(1) of the NDIS Act read as follows:

(1) A person meets the access criteria if:

(a) The CEO is satisfied that the person meets the age requirements (see section 22); and

(b) The CEO is satisfied that, at the time of considering the request, the person meets the residence requirements (see section 23); and

(c) The CEO is satisfied that, at the time of considering the request:

(i) the person meets the disability requirements (see section 24); or

(ii) the person meets the early intervention requirements (see section 25).

18    At the material time s 24 of the NDIS Act read:

(1) A person meets the disability requirements if:

(a) the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or to one or more impairments attributable to a psychiatric condition; and

(b) the impairment or impairments are, or are likely to be, permanent; and

(c) the impairment or impairments result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the following activities:

(i) communication;

(ii) social interaction;

(iii) learning;

(iv) mobility;

(v) self‑care;

(vi) self‑management; and

(d) the impairment or impairments affect the person’s capacity for social and economic participation; and

(e) the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime.

(2) For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the variation.

19    Section 25 at the material time provided:

(1) A person meets the early intervention requirements if:

(a) the person:

(i) has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent; or

(ii) has one or more identified impairments that are attributable to a psychiatric condition and are, or are likely to be, permanent; or

(iii) is a child who has developmental delay; and

(b) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person’s future needs for supports in relation to disability; and

(c) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by:

(i) mitigating or alleviating the impact of the person’s impairment upon the functional capacity of the person to undertake communication, social interaction, learning, mobility, self‑care or self‑management; or

(ii) preventing the deterioration of such functional capacity; or

(iii) improving such functional capacity; or

(iv) strengthening the sustainability of informal supports available to the person, including through building the capacity of the person’s carer.

Note: In certain circumstances, a person with a degenerative condition could meet the early intervention requirements and therefore become a participant.

(2) The CEO is taken to be satisfied as mentioned in paragraphs (1)(b) and (c) if one or more of the person’s impairments are prescribed by the National Disability Insurance Scheme rules for the purposes of this subsection.

(3) Despite subsections (1) and (2), the person does not meet the early intervention requirements if the CEO is satisfied that early intervention support for the person is not most appropriately funded or provided through the National Disability Insurance Scheme, and is more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or through systems of service delivery or support services offered:

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

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

20    In the Tribunal proceeding, the applicant accepted that Ms Jones met the criteria in s 24(1)(a) of the NDIS Act to the extent referable to the existence of impairments (attributable to her complex post-traumatic stress disorder and major depressive disorder), however at [12] the Tribunal found that it was not satisfied that Ms Jones was likely to require the support of the NDIS for her lifetime, and as such Ms Jones did not meet the disability requirements under s 24 of the NDIS Act.

21    In finding that Ms Jones did meet the criteria in s 25 of the NDIS Act, I note that the Tribunal made findings which it was not invited to make by either Ms Jones or the applicant. In any event I am satisfied that the decision of the Tribunal involved errors of law such that it should be set aside. In particular I find as follows.

22    Section 3 of the NDIS Act provides that the objects of the NDIS Act were to:

…

(d)    provide reasonable and necessary supports, including early intervention supports, for participants in the National Disability Insurance Scheme; and

23    As a general proposition, in order to find that a person meets the early intervention requirements under s 25 of the NDIS Act, it is necessary that the CEO of the applicant – or, in this case, the Tribunal – be satisfied that:

    the early intervention supports are reasonable and necessary;

    the early intervention supports are likely to benefit the person by reducing the person’s future needs for supports in relation to their disability (s 25(1)(b)); and

    the early intervention supports are likely to benefit the person by reference to the requirements of s 25(1)(c) of the NDIS Act.

24    Although the Tribunal found that “early intervention supports” were warranted for Ms Jones under s 25:

    It did not identify what those “early intervention supports” were, or could be, or how they could benefit Ms Jones in accordance with s 25(1)(b) and (c) of the NDIS Act.

    The finding of the Tribunal that “early intervention supports” were warranted does not appear to be referable to any evidence before the Tribunal identifying supports which were or could be “early intervention supports”. In this respect I note the psychiatric report of Dr Marty Ewer dated 3 May 2022, which identified the impairments of Ms Jones as being of longstanding, and recommended treatments and supports for those longstanding impairments.

    To the extent that the Tribunal could have considered the treatments suggested by Dr Ewer to be “early intervention supports” within the meaning of s 25 of the NDIS Act, it is entirely unclear how the Tribunal could reach that conclusion. Indeed at [9] of its reasons the Tribunal found that the treatments suggested by Dr Ewer were clinical in nature.

25    Further, s 25(3) of the NDIS Act specifically provides:

(3) Despite subsections (1) and (2), the person does not meet the early intervention requirements if the CEO is satisfied that early intervention support for the person is not most appropriately funded or provided through the National Disability Insurance Scheme, and is more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or through systems of service delivery or support services offered:

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

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

26    At [9] the Tribunal said:

9.    For section 25(3), I am not satisfied that early intervention supports are more appropriately funded or provided through other systems. I acknowledge that the treatments suggested by Dr Ewer, and the supports the Applicant says she would require, are clinical in nature and are primarily the responsibility of the health system to deliver. I agree with the decision in BBMC18 in this regard. However, the specific supports that may be provided are part of the planning process and these may yet be different from what the Applicant is asking for now. Due to the Applicant’s psychosocial disability, she has been unable to access the recommended clinical services. There is, in my view, a proper role for early intervention supports under the NDIS to assist a person with a psychosocial disability to access appropriate services.

27    Plainly, as a matter of logic and statutory construction, if the early intervention supports required were not identified by the Tribunal, then the various considerations referred to in s 25(3) could not be properly assessed. In particular:

    The Tribunal could not form a view as to whether those early intervention supports would be (or would not be) most appropriately funded or provided through the NDIS.

    It was not open to the Tribunal to speculate as to possible supports that Ms Jones could receive, and reach a view of the funding of those hypothetical supports under s 25(3) of the NDIS Act.

    It was not open to the Tribunal to form a view as to the manner in which unidentified early intervention supports could assist a person with a psychosocial disability to access appropriate services.

CONCLUSION

28    The decision of the Tribunal was attended by error of law. It should be set aside, and the matter be remitted to the Administrative Review Tribunal, differently constituted, for reconsideration according to law.

29    Although the applicant has been successful it has not sought its costs of the proceeding. Accordingly, I will make no order as to costs.

Associate:

Dated:    31 July 2025