NATIONAL DISABILITY INSURANCE SCHEME - practice and procedure - application for dismissal - decision to approve a Statement of Participant Supports - requested support for physiotherapy - whether Applicant's case lacks substance or a reasonable prospect of success - scope of enquiry under sections 10 and 34(1)(aa) - application for dismissal refused

Administrative Review Tribunal Act 2024 (Cth)

National Disability Insurance Scheme Act 2013 (Cth)

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

National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) (NDIS Supports) Transitional Rules 2024 (Cth)

Re Williams and Australian Electoral Commission [1995] AATA 160; (1995) 21 AAR 467

Barthel and Australian National University (Compensation) [2019] AATA 548

Taylor and National Disability Insurance Agency [2021] AATA 1042

Johnstone and National Disability Insurance Agency (NDIS) [2025] ARTA 106

YCTK and Chief Executive Officer, National Disability Insurance Agency (NDIS) [2025] ARTA 536

FSWN and National Disability Insurance Agency (NDIS) [2025] ARTA 114

Forrest and National Disability Insurance Scheme (NDIS) [2025] ARTA 1131

1. This is an application by Ms Berry for review of a decision the National Disability Insurance Agency (the Agency) made on 18 March 2025 to approve a Statement of Participant Supports (SoPS) in Ms Berry's National Disability Insurance Scheme (NDIS) plan.
2. Ms Berry is a NDIS participant who was approved for access to the NDIS in 2019 for psychosocial disabilities. She disagreed with the decision of the Agency dated 18 March 2025 on the basis that funding for 24 hours per year of physiotherapy was not included in her NDIS plan. She sought a review, but on 26 May 2025, an internal review officer confirmed the original decision, on the basis that:
   • There was insufficient evidence to demonstrate the requested support was likely to be effective and beneficial having regard to current good practice and evidence.
   • The NDIS could not fund a support if it was not related to the participant's disability. Ms Berry met access to the NDIS for non-physical disabilities, and the evidence did not demonstrate the extent to which the requested funding directly related to the functional impact of the disabilities for which Ms Berry met access to the NDIS.
3. On 30 May 2025, Ms Berry lodged an application for review with the Administrative Review Tribunal (the Tribunal). At or before a case conference held on 5 November 2025, the Agency asked the Tribunal to dismiss the application for review, on the basis that it was lacking in substance or had no reasonable prospect of success. Both parties filed written submissions in relation to the dismissal application, and attended an Interlocutory Hearing before me on 3 February 2026, to make further oral submissions.
4. For the reasons that follow, the Agency's application for dismissal is refused.
5. The material before me is as follows:

(a) The documents filed under section 23 of the Administrative Review Tribunal Act 2024 (ART Act) numbered T1 to T302 (known as the T-documents), > > (b) The Respondent's submissions in support of the application for dismissal, dated 25 November 2025 and 6 February 2026, > > (c) The Applicant's response to the application for dismissal, dated 11 December 2025, > > (d) Paper titled "Physiotherapy and Mental Health" by Michel Probst extracted from Clinical Physiotherapy, pages 179-194, > > (e) Response to the Agency's targeted questions from Ms Berry's physiotherapist, Karisma David, dated 29 September 2025, > > (f) ART Fast Track Conference Technical Advice dated 28 October 2025.

1. Paragraph 101(1)(b) of the ART Act says that the Tribunal may, at any time, dismiss an application if the Tribunal is satisfied that it is:

(a) frivolous, vexatious, misconceived or lacking in substance; or > > (b) has no reasonable prospects of success; or > > (c) is otherwise an abuse of process.

2. The Agency noted in their written submissions that the discretionary power to dismiss under section 101 of the ART Act "must be exercised cautiously and sparingly"[1] because it "curtails merits review of the decision contested by an applicant".[2] However, the Agency submitted that this consideration should be weighed against the objectives of the ART Act which include ensuring that applications are "resolved as quickly, and with as little formality and expense, as a proper consideration of the matters before the tribunal permits".[3]
3. In Taylor and National Disability Insurance Agency,[4] the Tribunal stated that "if an application can serve no purpose for the applicant, it should not continue to use the Tribunal's time and resources". In Barthel and Australian National University (Compensation),[5] the Tribunal noted that a case that was more than fanciful may still be found to have some prospect of success but:

Where a case is found to have some prospect of succeeding, the key test for the purposes of s 42B(1)(b) of the AAT Act[6] is whether it is below the threshold for a reasonable prospect of success (emphasis added).

1. In summary, the Agency submitted that Ms Berry's application for review was lacking in substance and had no reasonable prospect of success because the requested support (physiotherapy) could not be funded due to section 10 of the National Disability Insurance Scheme Act 2013 (NDIS Act) and the National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) (NDIS Supports) Transitional Rules 2024 (Transitional Rules) that came into force on 3 October 2024. The effect of those provisions, it was argued, was to exclude physiotherapy as a NDIS support that was capable of being included in Ms Berry's SoPS. Alternatively, the Agency submitted that paragraph 34(1)(aa) of the NDIS Act was not satisfied, as there was no link or connection between the request for physiotherapy and the needs of Ms Berry arising from her psychosocial impairment.

1. A person may apply to become a participant in the NDIS, in which case the CEO of the Agency must determine whether the person meets 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 concern the nature and extent of a person's impairments.
2. If a person becomes a participant in the scheme, the CEO must facilitate the preparation of a plan for the participant. Section 33 of the NDIS Act sets out the matters that must be included in a NDIS Participant Plan (Plan). Pursuant to subsection 33(1) the Plan must include the Participant's Statement of Goals and Aspirations. Pursuant to subsection 33(2) the Plan must include a SoPS, prepared with the participant and approved by the CEO, that specifies the reasonable and necessary supports that will be funded under the NDIS.
3. Section 34 of the NDIS Act determines what is a "reasonable and necessary support" for the purposes of subsection 33(2) and contains a list of criteria, each of which must be satisfied, for any support to be funded.
4. Section 34 of the NDIS Act provides, insofar as is relevant to this matter:

(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 the needs of the participant arising from an impairment in relation to which the participant meets the disability requirement (see section 24) or the early intervention requirement (see section 25); ...

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

1. Turning firstly to paragraph 34(1)(f), section 10[7] defines what is and what is not a NDIS support. Subsection 10(1) provides that a support will be a 'NDIS support' if the support is so declared by the NDIS rules made for the purposes of section 10 either in respect of all participants or prospective participants or a specified class of participants or prospective participants. Conversely, subsection 10(4) provides that the NDIS rules may declare that a support is 'not a NDIS support' either in respect of all participants or prospective participants or a specified class of participants or prospective participants.
2. Sub-item 138 of Schedule 1 of the National Disability Insurance Scheme (Getting the NDIS Back on Track No 1) Act 2024 provides that the Minister may, by legislative instrument, make rules prescribing matters of a transitional nature relating to the amendments and repeals to the NDIS Act made by that Schedule. Pursuant to that power the Transitional Rules were made by the Minister and came into force on 3 October 2024. The Transitional Rules must be applied in the review of a decision concerning a SoPS completed on or after that date, even if that decision predates the entry into force of the Rules.
3. The Transitional Rules designate, by operation of Rule 5 and by reference to Schedules 1 and 2 of those Rules, those Supports that are "NDIS Supports" and those that are "generally not NDIS Supports" for the purpose of section 10. As to the meaning of the word 'generally' in the heading "generally not NDIS Supports", General Member Toohey noted in Johnstone and National Disability Insurance Agency (NDIS)[8] that at first glance the heading seems to imply that there could be circumstances in which supports that are not generally NDIS supports could nevertheless be a support for a specific participant. However, the member noted that the meaning of 'generally' in this context is informed by the rule-making provision in subsection 10(4) which states:

The National Disability Insurance Scheme rules may declare that a support is not a NDIS support for:

(a) participants or prospective participants generally; or

(b) a class of participants or prospective participants.

1. The member concluded that the term 'generally' was used in the header in the sense of 'applying to all participants', rather than in the sense of 'in most circumstances'. This interpretation is supported by Rule 5(2) of the Transitional Provisions which states:

(2) For the purposes of subsection 10(4) of the NDIS Act, a support covered by column 2 of an item in the table in clause 1 of Schedule 2 to this instrument is not a NDIS support for any participant...or prospective participant (emphasis added)

1. In FSWN and National Disability Insurance Agency (NDIS)[9] (FSWN) Senior Member French noted that as a result of the Amending Act and Transitional Rules, the relevant enquiry under section 34 involves two stages and the following steps:

Stage 1 Ascertain if the requested support is an "NDIS" Support as defined. This inquiry is focused on the support, not the participant.

Step 1: Determine if the requested support is of a character that falls within the scope of a category of support specified in column 1 of the Table to Schedule 2 of the Transitional Rules by reference to the description of supports that fall within the scope of that category contained in column 2 of the Table.

If the answer to that question is "yes", then stage 1 is complete. The requested support is not a NDIS Support and cannot be approved for inclusion in a SoPS because of s 34(1)(f) (subject to a replacement support determination being made).

If the answer to that question is "no", then proceed to step 2 of stage 1:

Step 2: Determine if the requested support is of a character capable of falling within the scope of a category of support specified in column 1 of the Table to Schedule 1 of the Transitional Rules by reference to the description of supports that can fall within the scope of that category contained in column 2 of that Table.

If the answer to that question is "no", then the requested support will not be a NDIS Support and cannot be approved for including in a SoPS because of s 34(1)(f).

If the answer to that question is "yes", then the requested support will be a NDIS Support that is capable of being approved for inclusion in a SoPS by operation of s 34(1)(f), and stage 2 of the enquiry is reached.

Stage 2: Ascertain if the requested support satisfies each of the other criteria specified in s 34(1)(aa) to (e) and the associated Supports Rules. There is some overlap of the stage 1 and 2 enquiries. However, in my opinion stage 2 is primarily a participant focused enquiry. That is, it seeks to establish the benefit of the support to the participant.

1. Senior Member French concluded[10] that:

The question of whether a requested support is, or is not, a NDIS support is a mixed question of fact and law. The issue of fact to be determined is whether the requested support falls within a category of items specified in column 1 of the Tables to Schedules 1 and 2 of the Transitional Rules. If it does, it will either be, or not be, a NDIS support by operation of law.

It is important to observe that in the scheme of the Transitional Rules it is not sufficient to find that a support is not excluded as a NDIS Support by operation [of] Schedule 2. It must also be found to be included as a NDIS Support by Schedule 1. That is, both Schedules have work to do in determining what is not a NDIS Support...

If a requested support is not a NDIS Support by operation of the Transitional Rules, the criteria in s 34(1)(f) cannot be satisfied...As each of the requirements of s 34(1) must be met before a support can be approved in a SoPS there is no utility in considering if the requested supports meets the other requirements of that section. The enquiry ends with the determination that the requested support is not a NDIS support.

1. In Ms Berry's case, the following parts of Schedules 1 and 2 are relevant:

Schedule 1 - Supports that are NDIS supports unless otherwise provided

Exercise physiology and personal well‑being activities

Supports that maintain or increase physical mobility or well‑being through personal training or exercise physiology to address the functional impact of the participant's disability.

(a) accessing services from an appropriately qualified professional;

(b) assessment and development of a personalised exercise program which aims to increase or maintain a participant's functional capacity;

(c) maintenance of muscle strength, range of motion, balance and mobility.

Supports that provide evidence‑based therapy to help participants improve or maintain their functional capacity in areas such as language and communication, personal care, mobility and movement, interpersonal interactions, functioning (including psychosocial functioning) and community living.

This includes an assessment by allied health professionals for support planning and review as required.

Schedule 2 - Supports that generally are not NDIS supports

Not evidenced based - alternative and complementary therapies

(b) tarot card reading, psychics, mediums, and clairvoyants;

(i) animal therapy, including puppy therapy and goat therapy;

(a) the diagnosis, early intervention and clinical treatment of health and dental health conditions, including ongoing or chronic health conditions;

(c) time‑limited, recovery‑oriented services and therapies:

(i) where the predominant purpose is treatment directly related to the person's health status; or

(ii) that are provided after a recent medical or surgical event, with the aim of improving the person's functional status, including post‑acute rehabilitation or post‑acute care;...

1. The process set out in FSWN requires the decision-maker at Stage 1, Step 1 to determine whether the requested support is of a character that falls within the Table to Schedule 2 - which sets out those supports that are not NDIS supports. That is because, although a support may fall within a category set out in the Table to Schedule 1, that table sets out what is a NDIS support unless otherwise provided.
2. The Agency contended that, for the purposes of the Stage 1 enquiry as set out in FSWN, the request for funding for 24 hours per year of physiotherapy was a non-NDIS support because it fell within the terms of Items 9(k) and 12(a) and (c)(i) of the Table to Schedule 2.
3. Item 9(k) refers to 'alternative and complementary medicine'. There is no definition of this phrase. When read in the context of the other therapies listed in Item 9, for example cuddle therapy and crystal therapy, it is my view that physiotherapy is not an alternative and complementary form of therapy but an established field of medicine. Presumably the point being made by the Agency is that physiotherapy is an alternative and complementary medicine in relation to psychosocial disability, which is the condition for which Ms Berry was granted access to the NDIS. However, as noted by Senior Member French, the requirement at Stage 1 is to determine whether the requested support falls within the relevant description and category. In my view, physiotherapy is not an alternative and complementary medicine that is not evidence based and it is does not fall within this category. I do not consider that Item 9(k) is applicable.
4. Item 12(a) refers to the diagnosis, early intervention and clinical treatment of health and dental conditions, while (c)(i) refers to time-limited, recovery-oriented services and therapies, where the predominant purpose is treatment directly related to the person's health status. The purpose of Item 12 is presumably to ensure that NDIS funds are not used for the purposes of diagnosing or treating illnesses or injury that are ordinarily the responsibility of the healthcare system. This item necessarily involves an analysis of the purpose of the requested support, that is, whether it is utilised to diagnose or clinically treat a health condition and/or whether its primary purpose is related to a person's health status.
5. Ms Berry provided a written submission in which she explained the importance of physiotherapy for her mental health and her participation in social and community life. A report from her psychologist dated 2 April 2025 included his professional opinion that Ms Berry benefitted from physiotherapy both physically and mentally. Included in the Tribunal documents was a paper from Michel Probst which sets out the importance of physiotherapy in mental health disorders. A report from Ms Berry's NDIS Co-ordinator dated 20 May 2025 noted that chronic fatigue exacerbated Ms Berry's psychosocial symptoms and that physiotherapy had improved both her overall physical capacity and function, as well as her mental health. On the other hand, a report from Ms Berry's physiotherapist dated 10 January 2024 focussed on the treatment of physical symptoms for Ms Berry's occasional lower back pain and chronic fatigue. However, on 29 September 2025, the physiotherapist was asked to confirm whether psychosocial symptoms were assisted by the therapy. The physiotherapist explained how physiotherapy was able to assist in the therapeutic management of depression, anxiety, obsessive compulsive disorder and hoarding disorder.
6. Ultimately, there is a fact-finding task to be undertaken to determine whether Item 12(a) applies in this case. Given the material filed to date, as summarised above, I do not accept that Ms Berry has no reasonable prospect of success in relation to this issue or that her application lacks substance.
7. The Agency next contended that for the purposes of Stage 1, Step 2[11] of the process in FSWN the request for 24 hours per year of physiotherapy did not meet the requirements in Schedule 1. The Agency submitted that physiotherapy did not fall within Item 18 or Item 34 because Ms Berry was granted access to the Scheme for psychosocial disorders, not for any physical impairments.
8. The decision-maker at Stage 1, Step 2 must determine whether the requested support is of a character that falls within the Table to Schedule 1 - which sets out those supports that are NDIS supports. Again, the requirement at Stage 1 is to determine whether the requested support falls within the relevant description and category. In my view, it is evident that physiotherapy falls within the description of both Items 18 and 34 and is therefore capable of being included in a SoPS, as physiotherapy aims to maintain or improve functional capacity, muscle strength, range of motion and mobility. Accordingly, I reject the Agency's submission in respect of Stage 1, Step 2.
9. Stage 2 of the process in FSWN requires the decision-maker to ascertain whether the requested support satisfies each of the other criteria (apart from paragraph (f)) set out in subsection 34(1).
10. The Agency contended that Ms Berry was unable to meet paragraph 34(1)(aa) because there was insufficient evidence to establish a link between her psychosocial impairments and the need for or benefit obtained from physiotherapy.
11. Paragraph 34(1)(aa) provides that a support must be necessary to address the needs of the participant arising from an impairment in relation to which the participant meets the disability requirement in section 24 of the NDIS Act or the early intervention requirement in section 25. Section 24 provides that a person meets the disability requirement if the person has one or more intellectual, cognitive, neurological, sensory or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable; the impairment or impairments are permanent, result in substantially reduced functional capacity, affect the person's capacity for social or economic participation; and the person is likely to need NDIS supports for their lifetime. Note 1 then states that: "The time at which a requirement in this section needs to be met is the time the matter falls to be determined."
12. In Forrest and National Disability Insurance Scheme (NDIS)[12] (Forrest), the Applicant similarly became a participant in the NDIS because of psychosocial disability, but she also experienced pain, neurological and physical impairments. She sought funding for physiotherapy and exercise physiology. The Agency submitted that a SoPS could only contain supports that address a participant's needs arising from an impairment in relation to which the participant met the disability requirements when they obtained access to the scheme. That submission was rejected by Senior Member French, who concluded that:

[T]he text of paragraph (aa), considered in light of its context and purpose, each indicate the issue is to be determined at the time the SoPS is approved (and reviewed), and not by reference to the matters that were before the delegate who determined the participant met the requirements for access to the NDIS at some earlier point in time...

With respect to paragraph 34(1)(aa) that can only mean, in my opinion, that the Tribunal must satisfy itself that a requested support is necessary to address the needs of the participant in relation to a current impairment which, relevantly to this case, meets the disability requirements. That is, it must be permanent, result in substantially reduced functional capacity in one of the six life activity areas specified in s 24(1)(c), affect the participant's capacity for social and economic participation, and in relation to that impairment, the participant is likely to require NDIS supports under the NDIS for their lifetime.

1. In Forrest, Senior Member French was not satisfied that the Applicant's pain, neurological or physical impairments met the test set out in section 24, but found that her pain exacerbated her psychosocial disability, impacting on her ability to acquire skills, focus attention and think. This impact was relevant to the assessment of what support was necessary to address the Applicant's needs arising from her psychosocial impairment. That is because Note (b) in subsection 34(1) states that a participant's disability support needs arising from an impairment in relation to which the participant meets the disability requirements may be affected by a variety of factors, including the impact of another impairment in relation to which the participant does not meet that requirement.[13]
2. In Forrest, Senior Member French was satisfied on the evidence that pain derived from the Applicant's neurological and physical impairments aggravated the impairments to which her psychosocial disability was attributable. In turn, physiotherapy and exercise physiology were regarded as supports that would address the Applicant's needs arising from impairments to which her psychosocial disability was attributable because they were directed towards the control of an aggravating factor for those impairments, being pain. The member was satisfied (a) that the request for physiotherapy and exercise physiology were NDIS supports because they met the description in Items 18 and 34 of the table in Schedule 1[14] and (b) they were reasonable and necessary supports that should be approved for inclusion in the Applicant's SoPS.
3. Here, it is Ms Berry's case that physiotherapy is necessary to address her psychosocial disability, as it helps to elevate her mood, increases her capacity to engage in social interaction, and assists her to achieve the goals set out in her Plan. She explained that due to her mental health conditions she tended to withdraw from life and society; she felt weak, timid, confused, depressed and anxious. Physiotherapy helped her to connect with her body and gain feelings of confidence and mental strength. As a result, she had been able to increase social participation through gardening, walking or jogging, and was better able to manage her hoarding behaviours. She also explained that she had trialled many forms of treatment and therapy over time but found that a combination of psychology once per month, physiotherapy fortnightly and a support worker three times per fortnight had achieved results, where other forms of treatment and supports had failed.
4. Ms Berry submitted evidence in support of her contention that physiotherapy is necessary to address the impact of chronic fatigue and pain on her mental health. As noted in the letter from her NDIS Support Co-ordinator dated 30 May 2025, various reports and letters from Ms Barry's occupational therapist, physiotherapist and psychologist all endorsed the inclusion of physiotherapy and highlighted the significant personal benefits she had gained from such therapy. The letter stated that the sudden withdrawal of funding for physiotherapy had disrupted "a proven support strategy that has enabled Ms Berry to maintain stability and participate more meaningfully in life".
5. Applying the reasoning in Forrest, there is a two stepped enquiry required when applying paragraph 34(1)(aa). Firstly, the provision requires the decision-maker to consider which of the participant's conditions meet the requirements of section 24 or section 25, as at the time of approval of the SoPS. Secondly, the decision-maker must determine whether any of the participant's conditions that do not meet the requirements of sections 24 or 25 impact upon or exacerbate a condition that does meet those requirements, to the extent that a support is necessary to address those impacts.
6. These matters require an assessment of the evidence. There is material supporting Ms Berry's claim that physiotherapy is a necessary support required to address the needs arising from her particular impairments. It cannot be said that Ms Berry has no reasonable prospects of success in terms of meeting at least one of the above tests.
7. Accordingly, I do not accept the contention of the Agency that there is insufficient evidence to establish a link between Ms Berry's psychosocial impairments and the need for or benefit obtained from physiotherapy, nor that the application for review is lacking in substance or has no reasonable prospects of success for this reason.
8. Lastly the Agency noted that Ms Berry could achieve the benefits of physical activity through means other than physiotherapy, such as through walks, swimming or yoga. Again, that is a matter to be assessed by the Tribunal on the basis of the available evidence, following a substantive hearing.
9. Accordingly, the application for dismissal must be refused. In doing so, I note that in making their dismissal application the Agency has relied heavily on the objective set out in paragraph 9(b) of the ART Act, which relates to ensuring that applications are resolved quickly, with as little formality and expense as proper consideration would allow. However, there are competing objectives in section 9 that must also be kept in mind, including the requirement to be fair, just, accessible and responsive to the needs of diverse parties, to improve transparency of government decision-making and to promote public trust and confidence in the Tribunal. In my opinion these factors militate against dismissal of a NDIS participant's application for review, prior to a substantive hearing, in anything other than the clearest of circumstances. It is evident that is not the case here.

[1] Re Williams and Australian Electoral Commission [1995] AATA 160; (1995) 21 AAR 467, [473]

[2] Barthel and Australian National University (Compensation) [2019] AATA 548, [36]

[4] [2021] AATA 1042, [21]

[5] [2019] AATA 548, [37]

[6] Section 42B of the Administrative Appeals Tribunal Act 1975 preceded, and was in substantially the same terms as, s101 of the ART Act.

[7] The National Disability Insurance Scheme (Getting the NDIS Back on Track No 1) Act 2024 (Cth) (the Amending Act) introduced amendments to the NDIS Act commenced on 3 October 2024. Schedule 1 of the Amending Act introduced a new section 10 into the NDIS Act, containing a definition of 'NDIS support' and an amendment to section 34 to include additional criteria that must be satisfied before a support can be approved for inclusion in a participant's SoPS.

[8] [2025] ARTA 106, [27-32], cited with approval in YCTK and Chief Executive Officer, National Disability Insurance Agency (NDIS) [2025] ARTA 536, [23-25]

[11] The Agency's written submissions incorrectly referred to Stage 1, Step 2, as Stage 2 of the process described in FSNW.

[13] In Forrest, the Tribunal noted that Note (b) does not form part of the Act. It is extrinsic material that may be considered in the interpretation of it: Acts Interpretation Act 1901 (Cth) ss 13 and 15AB(2)(a) respectively.

[14] The decision does not consider the potential effect of Item 12 in the table in Schedule 2.