Federal Court of Australia

Bossner v Chief Executive Officer of the National Disability Insurance Agency [2026] FCA 706

ORDERS

THE COURT ORDERS THAT:

1.    The proceeding be referred to the National Operations Team for allocation to a docket judge, and be listed for a case management hearing on a date to be fixed.

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

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from transcript)

HORAN J:

1    The applicant, Mr Michael Bossner, seeks relief against the Chief Executive Officer (CEO) of the National Disability Insurance Agency in relation to his participant’s plan under the National Disability Insurance Scheme (NDIS), which was suspended as a result of his temporary absence from Australia beyond the statutory grace period. In essence, the applicant contends that the suspension of his plan under s 40(3) of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) ceased upon the date of his return to Australia, and seeks the immediate reinstatement of his supports under the plan.

2    The applicant has applied on an urgent basis for an interlocutory injunction to compel the respondent to restore his participant’s plan under the NDIS to an “active state” and release access to funding under that plan until the hearing and determination of the proceeding. That interlocutory application has been referred to me as the duty judge.

3    The relevant background to the matter is set out in the applicant’s affidavit affirmed on 27 May 2026. In response, the respondent relied on an affidavit of Mr Samuel Woods affirmed on 29 May 2026. I provide the following summary of the background facts as revealed in those affidavits.

4    The applicant is a disability support pensioner, and a participant in the NDIS. He had a participant’s plan dated 13 January 2026, under which the total funding amount was $113,299.56 (13 January plan). This was a 12-month plan that was expressed to start on 13 January 2026 and to end on 12 January 2027.

5    The applicant was separately a party to proceedings before the Administrative Review Tribunal in which he sought review of a decision under s 33(2) of the NDIS Act in relation to the statement of participant supports in a previous iteration of his NDIS plan.

6    On 11 March 2026, while the Tribunal proceedings were pending, the applicant departed Australia temporarily to stay with his brother overseas.

7    On 12 May 2026, the applicant was notified by his plan manager that he had received a new participant’s plan. After returning to Australia on 14 May 2026, he discovered that a new plan had purportedly been issued on 11 May 2026, which was expressed to be in effect for a period of five years until 10 May 2031. The total funding amount under this plan was stated as $0.00.

8    I interpose that this reflects an administrative practice that appears to have been adopted by the respondent in accordance with its operational guidelines. Those guidelines contemplate that when the Agency suspends a plan, it sends the participant a new plan “that shows your funding is suspended” and that “will have no NDIS supports”. The guidelines state that if a plan is suspended while a participant is overseas, the Agency will “create a new plan once you return to Australia”, referring in a footnote to s 40(3) of the NDIS Act. It is unnecessary for present purposes to consider whether or not this administrative practice is consistent with the provisions of the NDIS Act, including ss 40(3) and 41(2).

9    The applicant recounted his subsequent communications with various officers at the Agency, both in person and by telephone and email, in an attempt to reinstate the 13 January plan. Apart from being informed that his matter was “with an NDIA delegate”, he was unable to obtain a decision or any action to reinstate funding for the supports under his participant’s plan.

10    In the meantime, on 13 May 2026, a consent decision was made in the Tribunal proceeding to give effect to an agreement that had been reached between the parties to that proceeding. The Tribunal set aside the previous statement of participant supports, and remitted the matter for reconsideration in accordance with directions as to certain agreed supports funded under the applicant’s plan, as well as changing the management of the funding for supports under the plan to self-managed. Counsel for the respondent submitted that the Agency has 28 days to implement a new plan in accordance with the Tribunal’s decision, and that this period has not yet concluded.

11    On 27 May 2026, the respondent approved a new participant’s plan for the applicant. This is a 12-month plan that starts on 27 May 2026 and ends on 26 May 2027, with a total funding amount of $113,044.70 (the 27 May plan), and was apparently implemented as “a replication of the previous plan that was suspended”, at least pending the implementation of the agreed supports under the Tribunal’s decision. As was the case with the 13 January plan, the funding under the 27 May plan is plan-managed by a registered plan manager. The respondent has separately indicated that the Agency can consider reimbursement for any costs incurred between 14 May 2026 and 27 May 2026 in relation to the applicant’s supports.

12    In support of his application for interlocutory relief, the applicant deposed that, as a person with disabilities, he was currently facing immediate and severe risks due to the cessation of his NDIS supports since he returned to Australia on 14 May 2026. The applicant stated that his provider network had been forced to halt all services, including essential support workers, daily living assistance, meal preparation, and clinical therapies. The applicant stated that he was struggling to maintain basic nutrition and household health, and the cessation of therapies and lack of support were causing him severe psychological distress. The applicant stated that he has exhausted his personal financial resources and has no money left to continue funding any of his own care.

13    Sections 37 to 41 of the NDIS Act deal with when a participant’s plan is in effect. Under s 40, a plan is not affected by the participant’s temporary absence from Australia during a “grace period” of six weeks, or such longer period as may be decided by the CEO. Section 40(3) provides for the suspension of a plan if the participant remains absent from Australia for longer than the grace period:

(3)    If a participant for whom a plan is in effect is temporarily absent from Australia after the end of the grace period for the absence, the participant’s plan is suspended from the end of the grace period until the participant returns to Australia.

For such purposes, a person’s absence is temporary if the person does not cease to reside in Australia throughout the period of their absence: s 40(4).

14    The effect of suspension is dealt with in s 41 of the NDIS Act. Section 41(2) relevantly provides that “the plan remains in effect”, but that the person is not entitled to be paid NDIS amounts for supports that are acquired or provided during the period of suspension. Further, the Agency is not required to provide or fund other supports under the plan during a period of suspension, but is not prevented from doing so if the CEO considers it appropriate.

15    Counsel for the respondent submitted that, in the light of the approval of the 27 May plan, the applicant’s access to funding for his supports has been restored, and there is therefore no urgency in the interlocutory relief sought by the applicant. The respondent accepted that the 27 May plan was intended to be the same in material respects as the 13 January plan. Although there appeared to be some dispute about whether that is in fact the case, the respondent has undertaken to correct any differences in the supports and funding available under the respective plans.

16    The applicant submitted that the approval of the new plan did not alleviate the urgency of his situation. He submitted that the new plan forces him back into plan management, which is contrary to the outcome of the Tribunal proceedings. He noted that, as a result of the plan dated 11 May 2026 (which was Agency-managed and had funding of zero dollars), his plan manager had ceased services, so that he would now be required to sign up a plan manager in order to access funding under the new plan.

17    In my view, while questions might remain about the lawfulness of decisions made by the respondent in relation to the suspension of the 13 January plan and the new plans purportedly made on 11 May 2026 and 27 May 2026 respectively, including whether the actions taken by the respondent are consistent with ss 40 and 41 of the NDIS Act, the approval of the 27 May plan removes the need for any urgent interlocutory relief that is capable of being granted by the Court in the current proceeding. The 27 May plan operates to restore in substance the supports that were available under the 13 January plan. The respondent has undertaken to ensure that there is no material difference in the supports available to the applicant under the new plan.

18    The implementation of the outcome reached in the Tribunal proceedings is not within the scope of the issues raised in this proceeding. In particular, the question whether the applicant’s plan is self-managed is not something that can be addressed in the current application.

19    While the manner in which the applicant’s plan was reinstated after its suspension might have had some practical consequences in relation to the provision of supports in the gap between 14 and 27 May 2026, and in relation to the need to engage or re-engage a plan manager, those are not matters that are capable of being addressed today by way of interlocutory relief.

20    For those reasons, I consider that there is no longer any urgency in the present application, and that the applicant has not established any basis for interlocutory relief to be granted on an urgent basis today. Further directions can be made in due course for the conduct of the proceeding, including the hearing of any outstanding application for interlocutory relief.

Associate:

Dated:    5 June 2026