1. The Act sets down the law that underpins the NDIS.
2. Individuals who are granted access to the scheme are referred to as 'participants'.[6] The scheme provides individual plans to participants, which fund certain specified supports.
3. Section 33 of the Act identifies the matters that must be included in a participant's plan. Section 33(2) requires that a plan include a statement of participant supports prepared with the participant and approved by the CEO. Section 33(2)(a) to (e) of the Act specify these statement of participant supports must include general, reasonable and necessary supports in addition to the date by which the Agency must reassess the plan, as well as information regarding management of other plan aspects.
4. Section 33(5) of the Act directs that when deciding whether to approve a statement of participant supports the CEO (and this Tribunal upon review) must have regard to the participant's statement of goals and aspirations, relevant assessments, the principle that a participant should manage their plan to the extent that they wish, the operation and effectiveness of previous plans and compliance with spending in addition to being satisfied the supports are reasonable and necessary and the NDIS rules are applied.[7]
5. On 3 October 2024 the National Disability Insurance Scheme Amendment (Getting the NDIS back on Track No. 1) Act 2024 (Amending Act) came into force. Numerous provisions in the Act were amended. The Amending Act introduced the concept of old framework plans.[8] Section 129(1) of the Amending Act outlines the content and approval of a statement of participant supports in an old framework plan.
6. Section 34(1) of the Act sets down what is required to be established in order to determine a support is 'reasonable and necessary':

(1) For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support: > > (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); > > (a) the support will assist the participant to pursue the goals, > > objectives and aspirations included in the participant's > > statement of goals and aspirations; > > (b) the support will assist the participant to undertake activities, > > so as to facilitate the participant's social and economic > > participation; > > (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; > > (e) the funding or provision of the support takes account of what > > it is reasonable to expect families, carers, informal networks > > and the community to provide; > > (f) the support is an NDIS support for the participant.

7. Section 47A of the Act permits a variation to a participant's plan on either the request of the participant or at the CEO's initiative. Section 47A(1) states that the CEO may vary a participant's plan if the variation is covered by s 47A(1A) and any conditions prescribed by the NDIS rules are satisfied.
8. The relevant rules are the National Disability Insurance Scheme (Variation and Reassessment of Participants' Plans) Rules 2025 (Variation Rules) that came into effect on 3 March 2025. NDIS Rules are legislative instruments and so are binding on the Tribunal.[9]
9. A variation of an old framework plan is required under s 47A(1A). Section 47A(4) states that, within 21 days, the CEO must either vary the plan, make a decision not to vary the plan or advise that further time is required to decide whether the plan needs to be varied.
10. Section 48 of the Act permits the reassessment of a participant's plan on either the request of the participant or at the CEO's initiative. Section 48(3) states that, within 21 days, the CEO must either vary the plan under s 47A(1), or make a decision that the plan needs to be reassessed or make a decision not to conduct a reassessment of the plan.
11. Item 4 of s 99 of the Act states that the Tribunal can review a decision to approve the statement of participant supports in a participant's plan pursuant to ss 32D(2) or 33(2). Item 6B of s 99 states that the Tribunal can review a decision not to vary a participant's plan pursuant to s 47A(8). Item 6C of s 99 states that the Tribunal can review a decision not to conduct a reassessment of a participant's plan pursuant to ss 48(3)(c) or 48(4).
12. Section 101(1)(b) of the Administrative Review Tribunal Act 2024 (ART Act) provides that the Tribunal may, at any time, dismiss an application if the Tribunal is satisfied that the application has no reasonable prospects of success.

1. The Agency contends that the application should be dismissed on the basis that it had no prospects of success pursuant to s 101(1)(b) of ART Act as the requested support does not fall within the parameters of a minor plan variation as required by s 47A(1A)(d)(iv) of the Act. As already outlined, it no longer pursues dismissal on the basis that the requested support is not an NDIS support at this stage of the proceedings.
2. The Tribunal must determine whether the application lodged on 25 November 2024 in the form of a 'Request for Home and Living Supports' Form[10] was a s 47A(1A) request, as submitted by the Agency.
3. This is pertinent because it goes directly to the powers the Tribunal has on review. If, on internal review, a decision is made not to vary a participant's plan pursuant to s 47A of the Act this would then limit the Tribunal to merely determining whether the decision not to vary the Applicant's plan was correct or not (Item 6A of s 99 of the Act). It does not permit the Tribunal to determine whether or not the requested support should be included in the Applicant's statement of participant supports (as permitted by Item 4 of s 99 of the Act).
4. For the following reasons, I am not satisfied that the original application made by the Applicant was a request for a minor variation to the statement of participant supports. Further, I am not satisfied that the internal review decision was made pursuant to s 47A of the Act, as contended by the Agency. Instead, it is apparent that the internal review decision was made pursuant to s 33(2) of the Act as the delegate of the CEO determined that the requested support was not a reasonable and necessary support pursuant to s34(1)(f) of the Act.
5. The conventional method of seeking a change to a plan is by completing a 'Change of details or change of situation' Form, available on the NDIS website.[11] This form relevantly states:

• your details have changed. You can change your contact details or who you give consent to at any time.
• you want to change something in your current plan, for example how funding in your plan is managed.
• your situation has changed and your plan no longer meets your disability support needs so you want a new plan.

When you ask us to change your plan we call this a participant requested plan change. Depending on what's changed for you, we may be able to work with you to change your current plan. We call this a plan variation. > > Or we may need to create a new plan with you. We call this a plan reassessment. > > We generally won't change your plan if you want more funding because you've used all the funding in the plan, or you want the same supports others have received. > > If there are significant changes to your situation, such as starting work for the first time or moving out of home, we might need to do a plan reassessment and create a new plan. > > For a plan reassessment you'll need to give us any new information to help us decide if we need to reassess your plan this may include any assessments, reports or other information.

1. A participant is required to complete Part H of this form, which relevantly states:

1. _ There have been small changes to my situation
2. _ There have been large changes to my situation
3. _ I need more or different supports urgently

1. _ Plan Variation
2. _ Plan Reassessment
3. _ Not sure. If you're not sure, we will contact you to discuss your situation.

1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. There is no evidence before me to indicate that the Applicant completed a 'Change of details or change of situation' Form. Instead, the Applicant sought funding for the requested support by submitting the 'Request for Home and Living Supports' Form.[12] It is not apparent whether the Agency considered the initial application a s 47A or s 48 request.
2. As a delegate of the CEO failed to make a decision within 21 days, as required under either ss 47A(5) or 48(4), the matter was referred for internal review under s 100 of the Act:[13]

Request Summary > > A Change and Review Request for a section 100 decision has been successfully submitted to the Internal Review Team. The Internal Review Team will communicate the outcome of the request within the next 60 calendar days. > > Request Details > > Request Date: 2024-12-12 > > Reviewer: Related Party > > Original Decision Type: External Decision

3. On 18 February 2024 a delegate of the CEO wrote to the Applicant in the following terms:

I am writing to let you know the outcome of your request to change your NDIS plan. > > I have decided not to approve your request to change your NDIS plan. > > The request to fund assessment/design related supports for the addition of a new > > dwelling on the participant's parent's property does not meet the reasonable and > > necessary criteria for the NDIS to fund. Specifically: Section 34, > > Part 1 (f). As outlined in Supports that are not NDIS Supports available at: What does > > NDIS fund? | NDIS > > the following are listed as not NDIS supports "Related to housing and community > > Infrastructure": > > • Housing for people with disability other than participants eligible for specialist > > disability accommodation. > > And > > "Accommodation and household related": > > • Standard home repairs, home improvements, standard renovations and maintenance. > > The proposed dwelling is both housing and a home renovation and is not an > > NDIS support that can be funded. > > ... > > What this means for you > > We have to make a decision about changing a plan within 21 days. We didn't make a > > decision within this time so the law for the NDIS says this means we have decided not > > to change your plan. When this happens, we automatically review your request. > > I completed this internal review and the outcome is I've confirmed the original decision > > not to change your plan. The reasons for my decision are outlined above. If you > > disagree with my internal review decision, you can ask for an external review of the > > decision.

4. The internal review decision makes no reference to s 47A of the Act nor does it state, either implicitly or explicitly, that a decision was made not to vary the Applicant's plan or to s 48 of the Act. Instead, it simply states that it was the "outcome of your request to change your NDIS plan".
5. It is abundantly clear that the internal review decision refused to fund the requested support on the basis that it was not an NDIS support, pursuant to s 34(1)(f) of the Act.
6. I am satisfied that the internal review decision was in respect of a statement of participant supports. On the material before me there is no other reasonable conclusion to be drawn.[14] Certainly, there is no material to persuade me that the initial application was a variation request or that the Agency, on its own initiative, undertook a plan variation.
7. It follows that the reviewable decision before the Tribunal is a decision made pursuant to s 33(2) of the Act and should proceed to substantive hearing on this basis. Separately, I will order a hearing timetable to progress this matter to hearing expeditiously.
8. Whilst it is not relevant to the determination of the jurisdictional question before me, I make the following comments in respect of what now constitutes a 'minor variation'.
9. The Agency submitted that the initial application was not a permitted plan variation, as it was not a 'minor variation' as set down in s 47A(1A)(d)(iv) of the Act. It relied on the Variation Rules, which relevantly state:

5 Variation of a participant's plan - conditions that must be satisfied

Conditions to be satisfied - minor variation that results in an increase to the funding of supports under the participant's plan

(4) This subsection applies to a variation covered by subparagraph 47A(1A)(d)(iv) if that variation will specify an additional reasonable and necessary support in the participant's statement of participant supports.

Note: Subparagraph 47A(1A)(d)(iv) provides that the CEO may vary the statement of participant supports included in a participant's old framework plan, or of the funding of supports under the plan, if the variation is a minor variation that results in an increase to the funding of supports under the participant's plan.

(5) For a variation to which subsection (4) applies, the following conditions must be satisfied:

(a) one of the following applies in relation to the additional reasonable and necessary support to be specified:

(i) the support is required for a specific period of time; or

(ii) the support is to be provided on a one-off basis; and

(b) one or more of the following applies in relation to the additional reasonable and necessary support to be specified:

(i) the support is a replacement, or repair or maintenance, of an assistive technology support in the participant's plan or a previous plan (such as a wheelchair or an orthotic);

(ii) the support is needed urgently to support the participant's economic participation for a specifically identified period of time;

(iii) the support is needed urgently to support capacity building or a life transition over a specified period of time; and

(c) for a support to which subparagraph (b)(ii) or (iii) applies - the additional reasonable and necessary support that will be specified in the participant's statement of participant supports is not substantially the same as, or does not produce substantially the same outcome as, any other reasonable and necessary support currently specified in that statement.

(6) This subsection applies to a variation covered by subparagraph 47A(1A)(d)(iv) if:

(a) the variation will increase the funding for a reasonable and necessary support that is specifically identified in the participant's statement of participant supports; and

(b) the specifically identified support is described as:

(i) home modification design and constructions;

(ii) vehicle modifications;

(iii) assistive technology.

Note: Subparagraph 47A(1A)(d)(iv) provides that the CEO may vary the statement of participant supports included in a participant's old framework plan, or the funding of supports under the plan, if the variation is a minor variation that results in an increase to the funding of supports under the participant's plan.

(7) For a variation to which subsection (6) applies, it is a condition that the participant requires additional funding for the support as a result of one or more of the following circumstances:

(a) the support is no longer reasonably available to the participant within the amount of funding currently specified in the participant's statement of participant supports;

(b) the manner in which the support was anticipated to be provided under the participant's plan is no longer reasonably available to the participant;

(c) provision of the support requires additional information (including assessments and quotations), services or materials that were not anticipated when the support was included in the participant's statement of participant supports.

1. It was not pressed that the application lodged by the Applicant was on the basis of a variation as set down in ss 47A(1A)(a), (ab), (ad), (ae), (ag), (b), (c) and (d)(i) to (iii).[15]
2. However, the submissions made by Legal Aid on behalf of the Applicant were that the requested support constituted a 'minor variation' as it was a fraction of the overall annual funding provided under the plan. Legal Aid relied on the decision of Mills and National Disability Insurance Scheme [2024] AATA 2914 at [32], a decision made before the introduction of the Variation Rules.
3. Contrary to the submissions from Legal Aid, the Variation Rules make no reference to the quantum of the requested support. It is evident that this is not a relevant factor in determining whether a plan is a 'minor variation'. Instead, a request is a 'minor variation' if, and only if, r 4 to 6 are established.
4. Application of the Applicant's current circumstances are illustrative. In this case, it is apparent that the requested support is required only on a 'one-off' basis. Therefore, r 5(a)(ii) is satisfied. However, there is no evidence to suggest that there is any urgency in the provision of the requested support to ensure the Applicant's economic participation, capacity building or a life transition. It follows that there is no basis to determine that r 5(4) is established. Furthermore, r 6 is not made out. The Applicant's current statement of participant supports does not include a specifically identified support in respect to home modification design and constructions as required by r 6(b) of the Variation Rules. Therefore, if the initial application was an application for a plan variation (which I determined it was not) the Respondent was correct in asserting that it would not have met the criteria for minor plan variation as set down in s 47(1A) of the Act.

The Tribunal has jurisdiction to review the decision of the Respondent dated 18 February 2025.

[8] See Chapter 3, Part 2, Subdivision C of the Act.

[11] https://www.ndis.gov.au/participants/using-your-plan/changing-your-plan/change-circumstances

[14] My conclusion on this point is consistent with previous decisions made by the Administrative Appeals Tribunal: ZKTN and National Disability Insurance Agency [2017] AATA 744, QMCT and National Disability Insurance Agency [2019] AATA 6111 and Farrall and National Disability Insurance Agency [2020] AATA 5077.

[15] That is, the requested support was not in respect of the plan's reassessment date, the categorisation of supports, funding periods or groups or plan management, crisis or emergency funding, a variation to general supports or specific providers, nor was it sought on the basis of new information.