Administrative Review Tribunal Act 2024

National Disability Insurance Scheme Act 2013

National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024

Social Security (Administration) Act 1999

Australian Broadcasting Tribunal v Bond [1990] HCA 33

Citta Hobart Pty Ltd & Anor v Cawthorn [2022] HCA 16.

Garcia Albiol and National Disability Insurance Agency [2024] AATA 496

Mulligan v National Disability Insurance Agency [2015] FCA 544

VZG and Secretary, Department of Family and Community Services [1999] AATA 298

1. This is an application by the applicant, HRSV, for review of a decision said to have been made on 29 January 2025, concerning the scope of her impairments accepted by the respondent, the CEO of the National Disability Insurance Agency (the Agency), as qualifying her for access to the National Disability Insurance Scheme (the NDIS or the scheme).
2. The applicant has been granted access to the scheme. What the applicant seeks, in substance, is that the respondent recognises that her conditions of chronic fatigue syndrome and fibromyalgia result in impairments that qualify her for access to the scheme. The respondent says that the Tribunal lacks jurisdiction to make that decision.
3. For reasons that follow, the application must be dismissed under section 97 of the Administrative Review Tribunal Act 2024 (ART Act). The applicant has a legitimate grievance, and I have made some comments about that below, but this application is not a vehicle capable of resolving it.

DECISION WITHOUT A HEARING AND DOCUMENTS RELIED UPON

1. Section 106 of the ART Act sets out circumstances in which the Tribunal may make a decision in relation to an application without holding a hearing of the proceeding. Subsection 106(2), materially, provides that that may happen if:

(a) all of the parties to the proceeding consent to the proceeding being determined without the hearing of the proceeding, and > > (b) it appears to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding.

2. The matter was listed for a substantive hearing on 19 January 2026.
3. On 13 January 2026, the applicant's representative wrote to the Tribunal and the respondent's representatives requesting, amongst other things, that the application be determined without a hearing. On 14 January 2026, the respondent consented.
4. It appeared to me (and still appears to me) that the issues for determination could be adequately determined in the absence of the parties and so the hearing was vacated. Had the hearing proceeded, I understand that the only witness who might have been called to give evidence was the applicant herself. Both parties have filed detailed submissions. As will appear, the dispositive issues are technical and not a matter for witness evidence.
5. There was something of an impasse between the parties in connection with a direction to file a joint tender bundle. In substitution, on 16 January 2026, I made directions for each party to file a list of documents that the Tribunal should have regard to, and an opportunity for each party to object to any documents sought to be tendered by the other.
6. Following compliance with those directions, the material before me is as follows:

(a) The document filed under section 23 of the ART Act on 9 September 2025 (numbered T1 to T27, known as the T-documents), > > (b) The applicant's statement of facts, issues and contentions, filed on 24 October 2025, with annexures A to D, > > (c) The respondent's statement of facts, issues and contentions dated 18 December 2025, > > (d) An internal document of the Agency entitled 'ART Technical Advice (Short)' dated 7 January 2026 - there is some objection to tender of this document, > > (e) The applicant's written submissions, filed on 14 January 2026, with annexures A and B, > > (f) The respondent's written submissions dated 16 January 2026, > > (g) An email from the applicant's representative dated 19 January 2026 attaching: > > > (i) a response to the respondent's submissions, > > > > (ii) a response to the 'Technical Advice', > > > > (iii) a response to the respondent's statement of facts, issues and contentions, > > > > (iv) a letter from the NDIA to the applicant dated 10 July 2024 acknowledging a request to reassess the plan, and > > > > (v) emails between the parties and the Tribunal dated 21 and 22 October 2025, 1 December 2025, and 16 to 24 December 2025.

7. In relation to the document at (d), the applicant's representative objected on 15 January 2026 to the Tribunal placing any weight on the document unless the applicant, who had not seen the document at that time, had a reasonable opportunity to respond. The email of 19 January 2026 contains a response to the document about the weight that should be afforded to it, rather than pressing the objection to it being tendered at all. Regardless, the ostensible relevance of the document is in relation to the whether the disability requirements (referred to below) are met in connection with the applicant's fibromyalgia and chronic fatigue syndrome. As I have not reached that question, the document is irrelevant and there is no need to determine any objection.

1. The first thing to be said is that the Tribunal does not have jurisdiction to review government decision making 'at large', but only where the power to do so is conferred by statute. Section 12 of the ART Act says:

(1) A decision is a reviewable decision if an Act or a legislative instrument provides for an application to be made to the Tribunal for review of the decision. > > Note: To find out whether a decision is a reviewable decision, start by looking at the Act or legislative instrument under which the decision is made. > > (2) In addition, if an Act or a legislative instrument provides for an application to be made to the Tribunal for review of a decision of a person under a power, a decision under the power is a reviewable decision, whether or not it is made by the person. > > Note: Under subsection (2), the decision is a reviewable decision even if made by a person who is not authorised to make the decision.

2. However, section 16 of the ART Act provides that decisions can be taken to have been made in some cases:

(a) a decision of a person not to do a thing is a reviewable decision; and

(b) an Act or an instrument made under an Act provides for a quantified period within which the person is required or permitted to do the thing; and

(c) the person does not do the thing within the period;

the person is taken, for the purposes of this Act and the Act or instrument that provides for an application to be made to the Tribunal for review of the decision, to have made a decision at the end of the period not to do the thing.

Note: If there is no quantified period within which the person is required or permitted to do the thing, see section 10 of the Ombudsman Act 1976.

1. The Tribunal's jurisdiction to review decisions made by the respondent is conferred by section 103 of the National Disability Insurance Scheme Act 2013 (NDIS Act). There are a few steps to get to the point where section 103 might apply.
2. As a first step, section 99 of the NDIS Act contains a list of decisions that are 'reviewable decisions' for the purposes of the NDIS Act.[1] Although lengthy, it is convenient to set out that list in full:

Provision under which the reviewable decision is made

a decision that a person does not meet the access criteria

paragraph 20(1)(a), subsection 21(3) or paragraph 26(2)(c)

a decision to revoke a person's status as a participant

subsection 30(1) or (5), paragraph 30A(1)(c) or subsection 30A(7)

a decision to vary, or not to vary, a notice given under subsection 32BA(1)

a decision to approve the statement of participant supports in a participant's plan

a decision to suspend the preparation of a new framework plan for a participant

a decision not to conduct a reassessment of a participant's plan

a decision to refuse to register a person as a registered NDIS provider

a decision to impose conditions to which a person's registration as a registered NDIS provider is subject

a decision to vary, or refuse to vary, the registration of a registered NDIS provider

a decision to suspend the registration of a registered NDIS provider

a decision to revoke, or not to revoke, the registration of a person as a registered NDIS provider

a decision to refuse to approve a person or body as an approved quality auditor

a decision to specify conditions in an approval given under subsection 73U(1)

a decision to vary an approval given under subsection 73U(1)

a decision to revoke an approval given under subsection 73U(1)

a decision to give a compliance notice to an NDIS provider

a decision to vary, or to refuse to vary or revoke, a banning order

a decision to make, or not to make, a determination in relation to a person

a decision not to make a determination that subsections 74(1) and (2) do not apply to a child

a decision to make, or not to make, a determination that a person has parental responsibility for a child

a decision to cancel or suspend, or not to cancel or suspend, the appointment of a nominee

a decision to give a notice to require a person to take reasonable action to claim or obtain compensation

a decision to take action to claim or obtain compensation

a decision to give a notice that the CEO proposes to recover an amount

a decision not to treat the whole or part of a compensation payment as not having been fixed by a judgment or settlement

a decision that the CEO is not required to waive a debt

a decision that the CEO is not required to waive a debt

1. The effect of the table is that for a decision to be a reviewable decision it must be made under a statutory power in column 3 and have the outcome identified in column 2 of any given item.
2. To understand the contents of any of the decisions listed in that table it is of course necessary to understand the broader operation of the statutory scheme, and to examine the specific statutory power to make the identified decision. For present purposes, it suffices to summarise the operation of the scheme as follows:

(a) A person may apply to become a participant in the scheme, in which case the CEO is to determine whether they meet the access criteria in section 21 of the NDIS Act. The access criteria include age and residence requirements, and the prospective participant must meet either disability requirements (in section 24) or early intervention requirements (in section 25), both of which go to the nature and extent of a person's impairments. > > (b) If a person becomes a participant in the scheme, the CEO must facilitate the preparation of a plan for the participant, which is to include the participant's statement of goals and aspirations, and a statement of participant supports prepared with the participant and approved by the CEO (sections 32 and 33). The statement of participant supports sets out the reasonable and necessary supports that will be funded under the NDIS for the participant. That is, it governs what expenses a participant can expect to be indemnified for by the NDIS. > > (c) A support must be reasonable and necessary to be included in the statement of participant supports and so funded under the NDIS. Section 34 of the NDIS Act contains a list of criteria, each of which must be satisfied, for any support to be funded. Importantly for this matter, the first criterion (since 3 October 2024) is that: > > (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) > > (d) Section 48 of the NDIS Act permits a participant to request a reassessment of their plan, in which case the CEO is to make a decision within 21 days that the plan needs to be varied, that the plan needs to be reassessed or that the Agency will not conduct a reassessment of the plan.

3. A reviewable decision in item 1 is a decision made under paragraph 20(1)(a), subsection 21(3) or paragraph 26(2)(c) of the NDIS Act. In each case, the power to make a decision is enlivened by a person making an access request (that is, a request - under section 18 of the NDIS Act - to become a participant). The outcome of that decision must be that the person does not meet the access criteria (or, for subsection 21(3), that they are deemed not to do so because of the time allowed for that decision has lapsed). A decision that a person does meet access criteria may also be made under paragraph 20(1)(a) but is not a reviewable decision because it does not have the outcome identified in column 2.
4. As a second step, section 100 of the NDIS Act permits a person who is directly affected by a reviewable decision to request that the decision-maker (either the CEO of the Agency or the Commissioner of the NDIS Quality and Safeguards Commission) to seek review of that decision. If a request for review of a reviewable decision is made (and in some instances if a reviewable decision is deemed to have been made because of the passage of time), the decision-maker must review the decision (subsection 100(5)).
5. As a third step, the CEO's decision-making powers are delegated to officers of the Agency, and the officer tasked with making the second decision must not have been involved with the original decision (subsection 100(5B)).
6. The reviewer is to make a decision confirming, varying or setting aside the reviewable decision and substituting a new decision (subsection 100(6)). There are time limits on conducting a review. In most cases, the decision-maker has 90 days to conduct a review beginning on the day the request is received (subsection 100(6A)).
7. Section 103 of the NDIS Act, which confers power on the Tribunal to review decisions, is relatively narrow. It provides, materially, that applications may be made for review of a decision made by a reviewer under subsection 100(6) of the Act. Because of the time limits on making a decision, though, the effect of section 16 of the ART Act is that an application can also be made after the period of 90 days if no decision has been made in that time frame.
8. In summary, then, the Tribunal's jurisdiction to review a decision turns on:

(a) identifying a reviewable decision per the table in section 99 of the NDIS Act, > > (b) for which a request for review has been made by a person directly affected by the decision (unless that is not required because the original decision was deemed to have been made by the passage of time), and > > (c) which has been the subject of internal review (or in respect of which time to make a review decision has lapsed).

9. For the event that the Tribunal lacks jurisdiction, section 97 of the ART Act provides that:

(a) the application is made for review of a decision; and

(b) the Tribunal is satisfied that the decision is not reviewable by the Tribunal.

1. The applicant has been a participant in the NDIS since 2022.[2]
2. According to the respondent's statement of facts, issues and contentions, and consistent with the subsequent actions taken by the applicant, the delegate of the CEO who made the decision to grant access recorded that the disability requirements were met by reference to impairments attributable to major depressive illness and post‑traumatic stress disorder.[3]
3. On 9 September 2022,[4] a delegate of the CEO approved the applicant's first plan, which was said to operate for the period 9 September 2022 to 8 September 2024.
4. On 16 April 2024,[5] a delegate of the CEO approved a second plan, which was said to operate from 16 April 2024 to 16 April 2027.
5. On 6 July 2024,[6] the applicant's representative signed a form headed 'Change of details or change of situation', which is said to be for use if:
   • - 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.
6. The form sought a plan reassessment on the basis that:

[The applicant] has several debilitating conditions, both physical and psychosocial. [The applicant] has provided information at access but it was not actioned. [The applicant] lives with chronic fatigue syndrome, Fibromyalgia, Lumbar Spine arthritis, Dissociative Disorder, along with her recognised conditions of Major Depressive Disorder and CPTSD.

1. Submission of the form constituted an application under section 48 of the NDIS Act. While section 48 requires a decision on whether a plan will be varied or reassessed (but not the resulting variation or reassessment) within 21 days, the decision was not made until 12 December 2024,[7] at which time the Agency wrote to the applicant approving her request for a reassessment of her plan.
2. On 5 September 2024,[8] a 'local area coordinator' (which I understand is a person contracted by the Agency to assist participants in navigating the NDIS, and not an Agency employee or delegate of the CEO) emailed the applicant and her representative:

Adding secondary disability request has been declined.

Reason: The information presented does not indicate that all available and appropriate treatment options that are likely to improve the impacts of the disability have been explored.

These treatment options must be explored before this requirement can be met.

Further clinical evidence is required to be provided around a history of treatment to substantiate permanence, evidence around what treatments/supports have been explored, duration/frequency of treatments and results of treatments.

Depending on the disability, treatments may include medications, therapies, clinics, surgeries or rehabilitation etc.

1. On 8 September 2024,[9] the applicant's representative filed a request for review of a decision, identifying the decision as the 'access condition refusal' per the local area coordinator's email, for which no letter had been provided to the applicant.
2. The applicant's representative provided medical evidence to the Agency on 12 November 2024.[10]
3. On 3 October 2024, provisions of the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 commenced, including incorporating paragraph 34(1)(aa) in the criteria for a support to be included in a statement of participant supports (which, as above, requires that any included support be necessary to address needs arising from an impairment in respect of which the participant would meet the disability requirements or early intervention requirements).
4. On 12 November 2024, an Agency planner (the delegate tasked with preparing the reassessed plan) emailed the applicant's representative. The email quotes from a decision of the Administrative Appeals Tribunal (AAT) in which the AAT found that the disability requirements were not met for a person with chronic fatigue syndrome or myalgic encephalomyelitis.[11] Before and after the quote, the email says:

As a result, I am unable to provide funding for Chronic Fatigue Syndrome ...

If you would like me to proceed with the plan review, please advise. I can only fund for PTSD/Major Depressive illness, as these are the listed disabilities.

1. I can see no connection between the AAT's decision and the planner's apparent view that they could only include funding for 'listed disabilities'.
2. On the same day, in reply, the applicant's representative asked if the planner could 're‑review'.[12]
3. On 9 January 2025,[13] the local area coordinator emailed the applicant and her representative:

Outcome of disability has come yesterday, and they have declined to add the disability.

"This request has been reviewed by a National Planning Support Team delegate.

[The applicant] does not meet the disability requirements as set out in Sections 24 of the NDIS Act 2013, specifically: The information presented does not indicate that all available and appropriate treatment options that are likely to improve the impacts of the disability/s have been explored.

These treatment options must be explored before this requirement can be met. Further clinical evidence is required to be provided around a history of treatment to substantiate permanence, evidence around what treatments/supports have been explored, duration/frequency of treatments and results of treatments. Depending on the disability, treatments may include medications, therapies, clinics, surgeries or rehabilitation etc. - Section 24(1)(c) the prospective participant's impairment/s result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the following relevant activities: a. communication; b. social interaction; c. learning; d. mobility; e. self-care; or f. self‑management."

1. The 2 emails from the local area coordinator require some interpretation. Read with the section 48 application, the point appears to be that someone at the Agency had formed the view or made a decision that the applicant's conditions that had not previously been 'recognised' (chronic fatigue syndrome, fibromyalgia, lumbar spine arthritis, and dissociative disorder did not give rise to impairments that would meet paragraph 34(1)(aa)). The local area coordinator was, it seems, instructed to advise the applicant of that view.
2. On 29 January 2025,[14] the Agency planner wrote to the applicant's representative:

The decision from our Technical Advisory Branch has come back.

There is very limited and current functional information available and so we can't be satisfied that Section 24(1)(c) is met - substantially reduced functional capacity. Impairments related to CFS cannot be added at this stage

As you would be aware, you have right of appeal for this decision following the usual processes.

I can complete [the applicant's] plan to approval without the verified disability and look forward to your response.

1. On 29 January 2025, the applicant filed the present application for review of decision with the Tribunal, identifying the correspondence of 29 January 2025 as the decision under review. The reasons for the application say:

The NDIS initially rejected additional diagnosis to be added in September 2024 with advice through the LAC [quotes from the 5 September 2024 email] ... > > A S100 was lodged and rejected by a planner - who advised [quotes from the 12 November 2024 email]

2. The plan that resulted from the reassessment was approved on 30 January 2025[15] and was to operate until 29 January 2026. Despite the recent enactment of paragraph 34(1)(aa) and the correspondence from the local area coordinator, the plan does not identify the impairments that are said to meet the disability requirements.
3. I have not closely enquired into the procedural course of the application before the Tribunal, and it may be that the parties would have much to say about why it has taken so long to reach a point of resolution. It is apparent from the respondent's statement of facts, issues and contentions that the issue of the Tribunal's jurisdiction to provide relief to the applicant was raised as early as February 2025, but the matter did not come to an interlocutory hearing until August or September 2025. T-documents were not filed until October 2025. Whatever the explanation and at least with the benefit of hindsight, that delay is unfortunate.
4. On 1 September 2025, the Tribunal (differently constituted) made factual findings that the opinion expressed by the Agency's technical adviser, relayed in the planner's email of 29 January 2025 (and italicised in the quote of that email above) constituted a decision made under paragraph 100(6)(a) of the NDIS Act, which is a decision to confirm a reviewable decision (and as I have identified above, the Tribunal is empowered to review decisions under subsection 100(6)). The Tribunal's reasons do not indicate what the substance of the original decision that was confirmed by the technical adviser might have been.
5. The Tribunal, at that stage, directed that the respondent file T-documents and otherwise made directions to have the matter proceed to hearing.
6. The matter was listed for hearing on 19 January 2026 and constituted to me on 10 December 2025. I conducted a directions hearing with the parties' representatives on 18 December 2025, during which the respondent's representatives maintained that the Tribunal lacked jurisdiction and I was not bound by the Tribunal's findings on 1 September 2025. I indicated that as the hearing was scheduled for one day in any case, I would hear from the parties on both jurisdictional and substantive issues. In the event, though, I have prepared these reasons without a hearing.

1. As above, the Tribunal's jurisdiction turns on there having been a 'reviewable decision' within the meaning of the ART Act. That is, a decision must have been made under one of the statutory powers identified in section 99 of the NDIS Act. Thereafter, the applicant (or a person directly affected by the decision) must have requested review, and there must be a resulting decision to confirm, or set aside the first decision (or time to make such a decision must have lapsed).
2. I cannot get past even the first of those hurdles, in respect of anything that might be the subject matter of the application.
3. First, the applicant made an application under section 48 for a reassessment of her plan. That was acceded to, albeit outside the statutory timeframe, and the decision to conduct a reassessment (as opposed to the resulting reassessment) is not and would not be contested by the applicant.
4. Second, the decision communicated on 5 September 2024, 12 November 2024, 9 January 2025 and 29 January 2025 that the applicant's plan (which was ultimately issued on 30 January 2025) would not include funding for supports required in relation to the applicant's chronic fatigue syndrome and fibromyalgia is not a decision that finds any grounding as a reviewable decision in section 99 of the NDIS Act. It could be fairly called a decision in the ordinary sense of the word, but it is not a decision that the applicant does not meet the access criteria (item 1, the statutory power for which is set out above), as the applicant's representative characterised it in submissions.[16] The applicant had been found to meet the access criteria in 2022 and that has not since been in issue. It is not a decision to approve a statement of participant supports (item 4), and it is not a decision to vary or not to vary a plan (item 6 or 6A).
5. What it is, in fact, is a reason for the decision that was made on 30 January 2025 (expressed in advance of that decision) as to what was included in the applicant's statement of participant supports. There is a good deal of well-known jurisprudence about what constitutes a 'decision' capable of review in administrative decision-making generally. Much of that is not directly applicable to the NDIS, because the NDIS Act so specifically and exhaustively sets out - in section 99 - what decisions are reviewable.[17] Nonetheless, it is fitting to observe that the distinction made by the High Court in Australian Broadcasting Tribunal v Bond [1990] HCA 33 between a final and operative decision on one hand, and the steps that have led to that decision on the other, tends to hold here. An officer of the Agency made a decision that certain impairments did not meet the description in paragraph 34(1)(aa) and a delegate of the CEO relied on that decision in formulating the statement of participant supports. Within the prescriptive confines of the NDIS Act (and, were the Act not so prescriptive, as a matter of common law), only the latter decision is a reviewable decision.
6. Arguably, the decision was made on 5 September 2024, review was then sought on 8 September 2024, and it was either confirmed on 29 January 2025 or was deemed to have been confirmed 90 days after 8 September 2024. That was said in submissions made by the applicant's representative on 29 August 2025.[18] But that still requires that the first decision was a reviewable decision within the meaning of the NDIS Act, and it was not.
7. Third, the applicant's plan issued on 30 January 2025 is certainly a reviewable decision within the meaning of the NDIS Act (item 4 of section 99) but (1) the application for review of a decision was filed the day before it was issued, and (2) it is not a decision that, at least at the point the application was filed and it seems even now, had been the subject of internal review.
8. It is not strictly material, but I understand the applicant does not, in fact, dispute what is funded in the statement of participant supports. Her concern is more fundamental, relating to what impairments she might be able to seek support for.
9. It follows that there is no decision that is reviewable by the Tribunal.
10. In the applicant's submission of 14 January 2026, it was said that the issue of jurisdiction is settled, which I take to mean that it was determined by the Tribunal on 1 September 2025 and I cannot or should not revisit it.
11. I cannot accept that position for the following reasons:

(a) In respect of any given decision, the Tribunal either has jurisdiction to conduct a review or it does not. If it does not, a member of the Tribunal cannot go on to exercise its power in section 105 of the ART Act to affirm, vary or set aside the 'reviewable decision' (within the meaning of the ART Act) because there is no reviewable decision as defined in section 12 (which is set out above). > > (b) There is, it may be observed, no express power under the ART Act to decide that there is jurisdiction. The Tribunal did not purport to make a decision on 1 September 2025 but rather expressed a factual finding. Even if the Tribunal has that power,[19] there is a continuing obligation on the Tribunal imposed by section 97 that, at the point the test in that section is made out, it must dismiss the application. > > (c) There is no procedural unfairness to the applicant in revisiting the question of jurisdiction. It was identified at the directions hearing on 18 December 2025 that I may do so. Both parties have filed submissions since.

12. I do not find that I am prevented from reconsidering the question of jurisdiction. To the contrary, I could not lawfully make a substantive decision to affirm, vary or set aside the decision of 29 January 2025 where I find that the decision is not reviewable by the Tribunal.
13. That is the end of matter. It is not necessary or appropriate that I examine whether, hypothetically, impairments resulting from the applicant's chronic fatigue syndrome and fibromyalgia would meet the paragraph 34(1)(aa) criterion. It may be useful, though, to add some additional comments.
14. There is, as can be seen from the table in section 99 of the NDIS Act, no statutory power to make a decision as to what impairments a participant has that qualifies them for the scheme. More than that, the Agency's recording as to what impairments it might accept for a participant has, by itself, no legal force at all.
15. In VZG and Secretary, Department of Family and Community Services [1999] AATA 298, the recording of the applicant's gender had no effect on the applicant's statutory entitlements and would not bind future decision-makers. The AAT found it had no jurisdiction to correct (or affirm) the administrative recording.
16. This matter has a similar feature. The recording of the applicant's impairments (excluding impairments resulting from chronic fatigue syndrome and fibromyalgia) was an administrative device and would not bind decision-makers. At the point that that information was used to deny funding for a particular support in a statement of participant supports (especially by reference to the paragraph 34(1)(aa) criterion), the applicant would have review rights available in respect of that plan.
17. I come to why I said at the outset that the applicant has a legitimate grievance. I make no criticism of the Agency for making administrative recordings of the impairments that are thought to qualify a person for access to the scheme - there is obvious efficiency in doing so - but its decision-makers are not bound by those administrative recordings.
18. One of the problems with relying on the administrative recordings is that the Agency's practice appears to be to record diagnoses. Access to the NDIS and the contents of a statement of participant supports depends primarily on impairments (loss of or damage to a bodily function, which may arise from some - or a combination of - medical conditions or diagnoses).[20]
19. Further, it seems that the NDIS planner may have felt they were bound and expressed that view to the applicant's representative. More than that, the applicant's representative was told that a decision had been made and that review rights were available to the applicant in respect of that decision. The applicant has been misled into filing an application with the Tribunal that could not have resolved the issue.[21]
20. In all, it seems that the administrative recording of the impairments (or diagnoses) took on disproportionate weight here, such that the applicant - not unreasonably - saw it is appropriate and desirable to contest what was communicated by and on behalf of the Agency.
21. In order for the applicant to have the Tribunal make a factual finding (and whether made by a delegate or the Tribunal it will not be a decision, but a reason for a decision) that her chronic fatigue syndrome and fibromyalgia result in impairments that meet the disability requirements, in circumstances where she is already a participant, it would be necessary that:

(a) she identifies a support that she wants funded and which a delegate refuses funding for in a statement of participant supports by reference to the test in paragraph 34(1)(aa), > > (b) does not achieve a favourable result from an internal review, and > > (c) the respondent maintains its position through to a substantive hearing.

22. I do not suggest that the applicant should try to force that to happen. Even if those steps were followed, there is no certainty that the Tribunal would find it necessary to make the factual finding sought by the applicant. The question would be whether a particular support in dispute would be 'necessary to address needs of the participant arising from an impairment in relation to which the participant meets the disability requirements or the early intervention requirements', and the applicant has other impairments that are accepted as meeting those requirements.
23. Instead, the applicant can work with the Agency to create her NDIS plans from time to time in the usual manner and exercise her review rights, if she wants to, at the point she disagrees with a decision that has been made and which adversely affects her.
24. As a final comment, I acknowledge this will be a disappointing result for the applicant. This matter has been in the Tribunal for a long time only to end for a reason that has been agitated by the respondent since early on. Unfortunately, though, that is the only possible outcome.

[1] Some care must be taken to distinguish between a 'reviewable decision' in the NDIS Act, which is a decision capable of internal review, and a 'reviewable decision' in the ART Act, which is a decision capable of review by the Tribunal.

[2] Applicant's statement of facts, issues and contentions, annexure C, letter dated 23 August 2022.

[3] Respondent's statement of facts, issues and contentions at [4].

[11] Garcia Albiol and National Disability Insurance Agency [2024] AATA 496, which is often cited by the Tribunal for the proposition that one of the criteria for the disability requirements to be met, that an impairment results in substantially reduced functional capacity, is a high threshold to meet.

[12] Applicant's statement of facts, issues and contentions, annexure B.

[16] Applicant's statement of facts, issues and contentions, annexure B, email of 29 August 2025.

[17] See by way of contrast, for example, section 129 of the Social Security (Administration) Act 1999 which permits review of any decision made under the social security law, subject only to some narrow exceptions, and where a 'decision' takes on the expansive meaning in section 4 of the ART Act.

[18] Applicant's statement of facts, issues and contentions, annexure B.

[19] And it may do inherently: Citta Hobart Pty Ltd & Anor v Cawthorn [2022] HCA 16 at [22]

[20] See Mulligan v National Disability Insurance Agency [2015] FCA 544 at [51]

[21] The applicant's statement of facts, issues and contentions descripts the procedural history as demonstrating 'systemic confusion between access, plan reassessment, and internal review processes'. It is hard to disagree.