1. At a directions hearing held on 27 March 2025 I considered, among other issues, requests from the Agency for the Tribunal to issue three summonses to produce documents, pursuant to section 74 of the Administrative Review Tribunal Act 2024 (Cth) (the ART Act). The issue of those requested summonses was opposed by Mr A. The parties' representatives each advised of their agreement to my considering and deciding that matter on the basis of written submissions they had filed.
2. The three summonses to produce documents that the Agency requested the Tribunal to issue were respectively directed to a Dr Lee, of Knox Private Hospital; to St Vincent's Hospital (Victoria); and to Queensland Health. Each summons sought the production of the following documents:

All medical records, clinical notes, reports, letter of referral, operation notes, recovery room notes, organ imaging reports, pathology reports, physiotherapy reports, ambulance reports, admission notes, nursing progress reports, all reports and images arising from or otherwise relating to any diagnostic test whatsoever, including but not limited to x-ray, CT and/or MRI images taken for any purpose including but not limited to investigative, comparative and secondary tests, clinical notes, discharge summaries and outpatient/casualty treatment records, including (but not limited to) those relating to a diagnosis and treatment of Multiple Sclerosis, relating to BHXJ.

1. After considering the parties' submissions I was satisfied that there were reasonable grounds to believe that each of the proposed recipients held documents in the nature of those sought, and that those documents would be relevant to the review proceeding. On 4 April 2025 the requested summonses were issued. Each recipient complied with their summons, by producing documents to the Tribunal, and on 8 July 2025 I issued an inspection order under section 78 of the ART Act, giving leave to the parties to inspect the documents produced by the three summons recipients (the summons material). That order provided for the Applicant to have the first right of inspection of the summons material, followed by the Agency. It also provided for the Agency's leave to inspect to be suspended if the Applicant, having first access, objected to the Agency inspecting all or some of the summons material.
2. On behalf of BHXJ, Mr A objected to the Agency inspecting the summons material. At a telephone directions hearing on 6 August 2025, I requested that Mr A file details of the basis for that objection, and that matter was listed for a further telephone directions hearing on 12 August 2025. At that hearing the Agency confirmed that after considering the Applicant's objections the issue of the Agency's access to the summons material was pressed, and leave was sought, and granted, for the Agency to file further written submissions. In those circumstances, orders were made to vacate and re-list the substantive hearing, then listed for the following week, and to hear the summons material inspection objection at an interlocutory hearing.
3. That hearing was held on 19 August 2025. The Applicant's objections to the Agency inspecting the summons material were as follows:
   1. Dr Lee - the material produced was irrelevant, as it did not refer to the Applicant's medical conditions leading to her current impairments. Further, the material was aged and had no evidentiary value, as the Applicant's conditions had changed over time.
   2. St Vincent's Hospital - this material has previously been provided to the Agency by the Applicant, and the Agency had failed to show (to Mr A), any variation as to what was provided and what was now sought.
   3. Queensland Health - similarly, it was submitted that this material was the same as other material previously provided to the Agency, and in seeking its production the Agency was seeking to discredit the Applicant by material that offered no insights into her impairments and needs and was 'game playing'.
4. Mr A's submissions were at times couched in emotive terms that displayed a significant level of antagonism toward the Agency and its representatives. For example, the objection to the summons material produced by Dr Lee asserted that the Agency's actions in seeking production and inspection of his records were 'despicable' and only intended to 'confuse the Tribunal.'
5. Regrettably, this approach was something of a recurrent theme regarding Mr A's submissions throughout the review. I accept that Mr A cares deeply for his wife and that there has been a now lengthy history of interaction between the Applicant and Mr A and the Agency, some of which could, from the material before me in evidence in this review, in my view be fairly characterised as difficult and challenging in their nature, for both partes. However, as is nearly always to be the case, I found these aspects of Mr A's submissions to be of little or no assistance in my consideration of the issues in this review, other than some insights they provided regarding my decisions as to how BHXJ's plan funding should be managed in the future, and the decision to cancel his appointment as BHXJ's nominee, which I will deal with later in my decision.
6. As noted, the Agency filed written submissions addressing Mr A's objections. These submissions were dated 15 August 2025 and were comprehensive in nature.
7. The Agency's submissions identified, correctly, that the primary issue was the apparent relevance of the summons material, and whether it is reasonably likely that the material will add to the relevant evidence in the review, in some way or other.[8] If so, the Tribunal will ordinarily permit inspection.[9] Given the nature of the objections raised by Mr A, the Agency's submissions also addressed the issue of 'legitimate forensic purpose' in seeking production and inspection of the documents. Noting the nature of the Tribunal's role in hearing the review (which I address below), the Agency submitted that the documents produced by providers of treatment with whom the Applicant has engaged will be relevant to the supports in dispute in the review and there was a real possibility that they will assist in the resolution of issues in the proceeding.[10]
8. As to the objection based on the grounds of possible 'duplication' of materials previously provided, the Agency submitted that this was in the nature of an administrative issue and not a basis for the Tribunal to refuse leave to inspect, and did not give rise to any risk of harm or prejudice to the Applicant.
9. After considering the parties' submissions I was satisfied that all of the summons material was likely to be relevant to the matters in issue in the review and may assist in the resolution of those issues. I ordered that pursuant to section 78 of the ART Act the Agency have leave to inspect the summons material.

1. At the 16 April 2025 directions hearing the Agency indicated that it may, for the final hearing of this review, seek to rely on some documents arising from previous review proceedings involving the Applicant.[11] These proceedings were decided by a Senior Member of the AAT in February 2023 - BHXJ and the National Disability Insurance Agency [2023] AATA 513. I will refer to this proceeding as the '2023 review' and that decision as 'BHXJ and NDIA [2023].'
2. In subsequent directions hearings the Agency confirmed this intention. It was noted that a confidentiality order was in place in the 2023 review, regarding the non-publication of the name and other information tending to reveal the identity of the Applicant. Accordingly, I made a corresponding order in this review, pursuant to section 70(1) of the ART Act, to facilitate the reference to relevant materials from the 2023 review in the current proceeding without contravening the previous confidentiality order, and to preserve the confidentiality of the Applicant. For this reason, the Applicant is again identified herein by the same pseudonym of 'BHXJ', and references to other material will be made in terms which do not identify her. Similarly, BHXJ's husband is identified as 'Mr A' herein, consistent with my order.

1. At some of the prior case events the parties addressed the issue of BHXJ possibly attending, at the request of the Agency, an independent medical examination, in the form of an assessment of her functional capacity, to be carried out at her home. Ultimately this request was not agreed to by BHXJ. Correspondence about the parties' engagement on this issue was before me in the Hearing Bundle.[12]

1. The review hearing was listed for 23 to 25 September 2025, by video (Microsoft Teams). BHXJ did not give evidence or attend the hearing, which proceeded on 23 and 24 September 2025. Mr A was the only witness who gave evidence. At the hearing, the Tribunal had before it all of the T-Documents and other materials lodged by the parties during the review. These relevant evidentiary and other materials were collated in the form of a Hearing Bundle, prepared and filed by the Agency, which became Exhibit 1. That bundle included the following materials:
   • All of the T-Documents filed during the review. These included lengthy records relating to the Agency's interactions with Mr A and the Applicant, and the Tribunal's decision in BHXJ and NDIA [2023].
   • Additional materials filed by the Applicant during the review, being:

(a) Letter from a treating hospital, dated 13 August 2024.

(b) Report of Mr Ryder, Physiotherapist, MS Queensland dated 19 September 2024.

(c) Report of Ms Wu, Occupational Therapist, dated 10 October 2024.

(e) Letter from a doctor, Hospital Radiology, dated 7 July 2024.

(f) Patient Health Summary, Health Centre, dated 2 August 2024.

(g) Medical Report from BHXJ's General Practitioner, dated 1 August 2024.

(h) Bundle containing medical discharge summary, pathology results, radiology results and EEG report.

• Materials filed by the Agency during the review, being:

(a) The Agency's initial and Updated SFICs.

(b) A Tender bundle containing correspondence with the Applicant's representatives and others; claim forms with attached invoices, and a letter from a former Specialist Support Coordinator for BHXJ, dated 21 February 2024.

(c) A further Tender Bundle containing the summons material, and records relating to the AAT proceeding leading to the decision in BHXJ and NDIA [2023].

1. The Agency also prepared and filed a bundle of all of the Applicant's NDIS plans, from 2020 to present. This plan bundle became Exhibit 2.
2. An email dated 20 November 2024 from Mr A's email account to the Agency was admitted into evidence during the hearing. That email became Exhibit 3.
3. At the beginning of the hearing the Tribunal confirmed with the parties that the supports remaining in issue in the review were those outlined by the Agency in its primary written submission, being its Updated Statement of Facts, Issues and Contentions (the Agency's Updated SFIC).[13] The specific supports requested by the Applicant were:

(b) Change all eligible supports for the Applicant to self-managed or plan-managed

and to flexible use (no supports stated in the Applicant's plan)

Requested Supports (reasonable and necessary supports)

(c) Return to level of support prior to June 2024, which is alleged to be approximately

1. Further explanation of these requested supports is provided below. I will hereafter refer to the three supports above at (d), (e) and (f) as 'the accommodation supports.'

1. In undertaking a review, the Tribunal's role is to come to its own independent conclusion, on the basis of the material before it, as to what is the correct and preferable decision. In Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 Smithers J said:

The duty of the Tribunal is to satisfy itself whether a decision in respect of which an application for review is duly instituted is a decision which, in its view, was objectively the right one to be made.[15]

The Tribunal effectively 'stands in the shoes' of the maker of the decision under review.[16] In undertaking its review, the Tribunal may exercise all of the powers and discretions that are conferred on the maker of the decision under review.[17] Also, the Tribunal may consider materials additional to those that were before the decision-maker.[18]

1. In review proceedings of this nature neither party bears a formal onus of proof. However, the Tribunal can only make its decision on the basis of material which is probative of and relevant to the matters required by the applicable statute. If an applicant seeking access to a benefit or interest under a legislative scheme does not provide evidence and information sufficient to meet the relevant statutory requirements (which here are the criteria in the NDIS Act relating to supports), they cannot succeed.[19]

1. After BHXJ's review application was filed with the Tribunal, substantial changes were made to the NDIS Act by amending legislation, being the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 (the amending Act). Of particular note is the changes that were effected by the amending Act to the NDIS planning provisions, including section 34, and to the definition of 'NDIS support' contained within section 10. These changes were effective from 3 October 2024.[20]
2. The amending Act included transitional provisions. Sub-items 129(1) and (2) of Schedule 1 of the amending Act provide that sections 33, 34 and 35 as in force on and after 3 October 2024 apply to a SoPS approved or varied after that date, irrespective of whether the participant's plan came into effect before, or on or after commencement. This means that as the Tribunal's decision is being made after 3 October 2024, the amended provisions will apply to any decision to approve or vary BHXJ's SoPS.
3. Changes made to sections 43 and 44 of the NDIS Act, dealing with plan management of funding for supports, apply from 3 October 2024 to any person who is a participant in the NDIS on or after that date.[21]
4. Further, pursuant to sub-item 138 of Schedule 1 of the amending Act transitional rules, being the National Disability Insurance Scheme (Getting the NDIS back on Track No.1) (NDIS Supports) Transitional Rules 2024 (the Transitional Rules) and the National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (Miscellaneous Provisions) Transitional Rules 2024 (the Miscellaneous Transitional Rules) were made, and apply in the review of a decision concerning a SoPS completed on or after 3 October 2024.

1. As noted, this review involves decisions made by the Agency regarding BHXJ's supports, the status of Mr A as nominee for BHXJ, and the management of funding for the supports in her plan. I will deal with the specific legislative frameworks for each of these areas, after noting some important provisions of general application.

1. The NDIS Act contains a statement of its objects, in section 3(1). They include to:
   • support the independence and social and economic participation of people with disability (section 3(1)(c));
   • provide reasonable and necessary supports, including early intervention supports, for participants in the NDIS (section 3(1)(d));
   • enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports (section 3(1)(e));
   • promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the community (section 3(1)(g); and
   • protect and prevent people with disability from experiencing harm arising from poor quality or unsafe supports or services provided under the NDIS (section 3(1)(ga)).

Section 3(3) provides that in giving effect to the objects of the NDIS Act, regard is to be had to the need to ensure the financial sustainability of the NDIS.

1. Section 4 of the NDIA Act provides a number of general principles to guide actions under the Act. They include the following:

4 General principles guiding actions under this Act

(1) People with disability have the same right as other members of Australian society to realise their potential for physical, social, emotional and intellectual development.

(2) People with disability should be supported to participate in and contribute to social and economic life.

(3) People with disability and their families and carers should have certainty that people with disability will receive the care and support they need over their lifetime.

(4) People with disability should be supported to exercise choice, including in relation to taking reasonable risks, in the pursuit of their goals and the planning and delivery of their supports.

(5) People with disability should be supported to receive reasonable and necessary supports, including early intervention supports.

(6) People with disability have the same right as other members of Australian society to respect for their worth and dignity and to live free from abuse, neglect and exploitation.

(8) People with disability have the same right as other members of Australian society to be able to determine their own best interests, including the right to exercise choice and control, and to engage as equal partners in decisions that will affect their lives.

(9) People with disability should be supported in all their dealings and communications with the Agency and the Commission so that their capacity to exercise choice and control is maximised in a way that is appropriate to their circumstances and cultural needs.

(10) People with disability should have their privacy and dignity respected.

(11) Reasonable and necessary supports for people with disability should:

(a) support people with disability to pursue their goals and maximise their independence; and

(b) support people with disability to live independently and to be included in the community as fully participating citizens; and

(c) develop and support the capacity of people with disability to undertake activities that enable them to participate in the community and in employment.

(12) The role of families, carers and other significant persons in the lives of people with disability is to be acknowledged and respected.

(12A) The relationship between people with disability and their families and carers is to be recognised and respected.

(16) Positive personal and social development of people with disability, including children and young people, is to be promoted.

(17) It is the intention of the Parliament that the Ministerial Council, the Minister, the Board, the CEO, the Commissioner and any other person or body is to perform functions and exercise powers under this Act in accordance with these principles, having regard to the need to ensure the financial sustainability of the National Disability Insurance Scheme.

1. Section 5 outlines further general principles, for 'guiding actions of people who may do acts or things on behalf of others' pursuant to the NDIS Act. These principles include:

(a) people with disability should be involved in decision making processes that affect them, and where possible make decisions for themselves;

(b) people with disability should be encouraged to engage in the life of the community;

(c) the judgements and decisions that people with disability would have made for themselves should be taken into account;

(d) the cultural and linguistic circumstances, and the sex, gender identity, sexual orientation and intersex status, of people with disability should be taken into account;

(e) the supportive relationships, friendships and connections with others of people with disability should be recognised;

1. Chapter 1 of the NDIS Act also contains a number of definitional provisions, including, within section 10, a lengthy definition of the term 'NDIS support'.

1. Chapter 3 of the NDIS Act deals with NDIS participants and their plans. Part 1A (section 17A) within that Chapter provides a number of principles relating to the participation of people with disability that must be had regard to 'in performing the CEO's functions and exercising the CEO's powers under this Chapter'. These principles are in addition to those set out within section 4 of the NDIA Act, as set out above. Section 17A provides:

17A Principles relating to the participation of people with disability

(1A) In performing the CEO's functions and exercising the CEO's powers under this Chapter, the CEO must have regard to the principles in this section.

(1) People with disability are assumed, so far as is reasonable in the circumstances, to have capacity to determine their own best interests and make decisions that affect their own lives.

(2) People with disability will be supported in their dealings and communications with the Agency so that their capacity to exercise choice and control is maximised.

(3) The National Disability Insurance Scheme is to:

(a) respect the interests of people with disability in exercising choice and control about matters that affect them; and

(b) enable people with disability to make decisions that will affect their lives; and

(c) support people with disability to participate in, and contribute to, social and economic life.

(4) The principles in this section are in addition to the principles in section 4 to which the CEO is to have regard in performing the CEO's functions and exercising the CEO's powers under this Act.

1. Part 2 of Chapter 3 deals with participants' plans. Section 31 within that Part provides for a number of principles relating to plans:

31 Principles relating to plans > > The preparation, variation, reassessment and replacement of a participant's plan, and the management of the funding for supports under a participant's plan, should so far as reasonably practicable: > > (a) be individualised; and > > (b) be directed by the participant; and

(c) where relevant, consider and respect the role of family, carers and other persons who are significant in the life of the participant; and

(ca) where relevant, recognise and respect the relationship between participants and their families and carers; and

(d) strengthen and build capacity of families and carers to support participants who are children; and

(da) if the participant and the participant's carers agree - strengthen and build the capacity of families and carers to support the participant in adult life; and

(e) consider the availability to the participant of informal support and other support services generally available to any person in the community; and

(f) support communities to respond to the individual goals and needs of participants; and

(g) be underpinned by the right of the participant to exercise control over his or her own life; and

(h) advance the inclusion and participation in the community of the participant with the aim of achieving his or her individual aspirations; and

(i) maximise the choice and independence of the participant; and

(j) facilitate tailored and flexible responses to the individual goals and needs of the participant; and

(k) provide the context for the provision of disability services to the participant and, where appropriate, coordinate the delivery of disability services where there is more than one disability service provider.

1. Section 32 requires the CEO to facilitate the preparation of a plan for a participant in the NDIS.
2. Section 33 specifies matters that must be included in a participant's plan. These include a statement of goals and aspirations (section 33(1)); and a SoPS - which is to be prepared 'with the participant and approved by the CEO' (section 33(2)).
3. In this context, I note the following comments of the Full Court of the Federal Court in the decision in National Disability Insurance Agency v WRMF [2020] FCAFC 79 (WRMF):

... the supports to be provided to a person who qualifies as a participant are intended to accommodate an individual's particular impairments and to assist that particular individual to be a participating member of the Australian community, and to do so on the basis of the values set out in the objects and guiding principle clauses of the Act, as well as the values set out in section 17A of the Act.[22]

1. Sections 33(2)(a) to (e) specify the matters that must be in the SoPS. These include the general supports (if any)[23] that will be provided to the participant (section 33(2)(a)); the 'reasonable and necessary supports' that will be funded by the NDIS (section 33(2)(b)); the date by which or the circumstances in which the Agency must review the plan (section 33(2)(c)); and how the funding for supports (section 33(2)(d)) and other aspects of the plan (section 33(2)(e)) are to be managed.
2. Section 33(3) provides how supports may be specified in a plan:

The supports that will be funded or provided under the National Disability Insurance Scheme may be specifically identified in the plan or described generally, whether by reference to a specified purpose or otherwise.

1. By section 33(5), in deciding whether or not to approve a SoPS under section 33(2), the CEO must:

(a) have regard to the participant's statement of goals and aspirations; and

(b) have regard to relevant assessments conducted in relation to the participant; and

(c) be satisfied as mentioned in section 34 in relation to the reasonable and necessary supports that will be funded and the general supports that will be provided; and

(d) apply the National Disability Insurance Scheme rules (if any) made for the purposes of section 35; and

(e) have regard to the principle that a participant should manage his or her plan to the extent that he or she wishes to do so; and

(f) have regard to the operation and effectiveness of any previous plans of the participant ...

(g) have regard to whether section 46 (acquittal of NDIS amounts) was complied with in relation to any previous plan for the participant.

1. Section 34 is entitled 'Reasonable and necessary supports.' Section 34(1) specifies the requirements, of which the CEO must be satisfied, in relation to the funding of each support in the SoPS. These requirements are:

(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.

(a) the time at which the disability requirements or the early intervention requirements need to be met is the time the CEO decides to approve the statement of participant supports; and

(b) a participant's disability support needs arising from an impairment in relation to which the participant meets the disability requirements or the early intervention requirements may be affected by a variety of factors, including environmental factors or the impact of another impairment in relation to which the participant does not meet either of those requirements.

1. All of the requirements in section 34(1) must be met. If a decision-maker is not positively satisfied of all requirements, the claim for support must be rejected.[24]
2. Further, section 34(2) provides that the NDIS Rules may provide methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding whether or not he or she is satisfied as mentioned in any of above requirements set out paragraphs (1)(aa) to (f) of section 34(1).
3. As noted, the amending Act made changes to section 34; these included adding new sections 34(1)(aa) and (f). The new section 34(1)(f), in referring to an 'NDIS support', imports the definition of that term as set out in section 10. That section provides also that rules may declare whether or not a support is an NDIS support; as noted, transitional rules to this effect have been introduced.
4. While the phrase 'reasonable and necessary supports' is not defined in the NDIA Act, it has naturally been the subject of consideration. In the case of McGarrigle v National Disability Insurance Agency [2017] FCA 308 (McGarrigle) Mortimer J (as she then was) noted:

Whether a support is "reasonable" requires a different assessment to whether a support is "necessary". Again, it is not necessary in the context of this proceeding to be definitive about the nature and extent of the meaning of the phrase, or its components. It is enough to observe that using the concept of necessity would appear to tie one aspect of the CEO's assessment to an evaluation of the kinds of factors set out in s 34(1)(a) and (b) and (d). The word "reasonable" would appear to be directed at factors such as those set out in s 34(1)(c) and (f). That is not to say the meaning of each word is exhausted by the factors set out in s 34(1): rather, it is to illustrate the different work that each concept does as an adjective in the phrase "reasonable and necessary supports".

Relevantly to this proceeding, the factor set out in s 34(1)(e) ("funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide") goes to both whether a support is "reasonable" (in the sense of it being subject to provision or funding by the Agency) as well as whether it is "necessary" (in the sense of whether it is a support that cannot be provided by others).

In my opinion, the text and context of s 33(5)(c), read with s 34(1) indicates that the CEO (or the delegate or Tribunal) must either be satisfied that a support has the character of being a reasonable and necessary support, or that it does not. Once a support is identified and described (to take an example away from this case, speech therapy lessons three times a week), then the question for the CEO (or the delegate or Tribunal) is whether she or he is satisfied that support, as identified, is reasonable and necessary for that particular participant. It may be open to the CEO to be satisfied that a differently identified support is reasonable and necessary: in this example, speech therapy lessons once a week. That determination can only be made on the basis of probative evidence.[25]

1. The Full Court of the Federal Court has said the following of the phrase in WRMF:

The phrase is a composite phrase. We accept the Agency's submissions that each limb of the phrase should be given work to do. That task is not difficult, or complicated, with these two particular words, which are readily understood as conveying different meanings. However, the Parliament has chosen to use a composite phrase rather than to stipulate two distinct requirements, and therefore, as Gleeson CJ cautioned in XYZ v Commonwealth [2006 HCA 25; (2006) 227 CLR 532 at [19], '[t]here are many instances where it is misleading to construe a composite phrase simply by combining the dictionary meanings of its component parts'. > > In our opinion, such a danger is present on the construction arguments presented by the Agency. Both adjectives qualify the noun 'support', but they do so as a composite phrase. It is not fruitful to split them off and consider them separately, just as it is neither fruitful nor appropriate to attempt any exhaustive or authoritative judicial definition of them. > > Nevertheless, there is no doubt that the contextual use of the phrase in this Act links it to public funding to be provided to a participant. In that context, the phrase connotes supports which meet a threshold which justifies - by reference to the context, objects and guiding principles of the Act and the facts of the case - the expenditure of public funds for that support, for a particular participant. As we have already explained, the phrase also needs to be understood taking into account what has qualified a person as a participant, and the links between a person's impairment and their full participation in the community, in the same variety of ways as persons without a disability might choose to participate. It is not accidental, in our opinion, that Parliament has chosen the term 'participant' to describe individuals who will receive funded support: the choice of that term reinforces, as we have sought to explain, that the driving objective of this Act is the holistic, improved and increased participation by persons with disability in the life of their communities, and in life itself. > > ... > > Ultimately, as the Full Court in McGarrigle recognised, the statutory task of determining the contents of a participant's plan, and what are the reasonable and necessary supports, is a fact‑intensive exercise. More so than in many legislative schemes that confer an administrative benefit, the circumstances of each participant will vary greatly. The exercise is highly individualised. There will be an area of 'decisional freedom' (Minister for Immigration and Citizenship v Li at [28] (French CJ)) for the decision‑maker, about what supports fall within this description, given the circumstances of a particular individual. Provided no substantive legal error attends the choices made, it is possible for reasonable minds exercising the power under s 33(2) to differ. So too on merits review. [26]

2. Section 35(1) states that the NDIS Rules may make provision in connection with the funding or provision of reasonable and necessary supports or general supports, including but not limited to prescribing:

(a) methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding, the reasonable and necessary supports or general supports that will be funded or provided under the National Disability Insurance Scheme; and

(b) reasonable and necessary supports or general supports that will not be funded or provided under the National Disability Insurance Scheme; and

(c) reasonable and necessary supports or general supports that will or will not be funded or provided under the National Disability Insurance Scheme for prescribed participants.

1. Section 35(2) provides that the NDIS rules referred to in subsection (1) may relate to the manner in which supports are to be funded or provided and by whom supports are to be provided.
2. Section 9 of the NDIS Act defines 'National Disability Insurance Scheme Rules' as meaning the rules mentioned in section 209 of the NDIS Act. Section 209(1) provides:

209 The National Disability Insurance Scheme rules

(1) The Minister may, by legislative instrument, make rules called the National Disability Insurance Scheme rules prescribing matters:

(a) required or permitted by this Act to be prescribed by the National Disability Insurance Scheme rules; or

(b) necessary or convenient to be prescribed in order to carry out or give effect to this Act.

1. NDIS rules relating to supports have been made - they are the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (the Support Rules). The preamble section of the Support Rules states:

These Rules are made for the purposes of sections 33 and 34 of the Act.

These Rules are about assessment and determination of the reasonable and necessary supports that will be funded for participants under the NDIS.[27]

1. In the decision of National Disability Insurance Agency v Warwick [2025] FCAFC 100, the Full Court of the Federal Court has explained that the relevant function of the Support Rules is:

... to prescribe, in more detail than the broad criteria in section 33 and section 34, matters that may and may not be included in a statement of participant supports, or matters to which regard is to be had in the preparation or approval of the statement.

1. In the case of McGarrigle, Mortimer J said the following about the Support Rules:

... (the Rules) are an important element of the legislative scheme, introducing the ability to modify the operation of ss 33 and 34 by, for example, excluding certain kinds of supports from inclusion in participant plans. It is through the Rules that the executive is able to implement, within the federalism constraints imposed in s 209, some policy decision-making about the nature and extent of supports to be provided or funded under the NDIS.[28]

2. The Outline contained in the Support Rules provides that Part 3 of the Rules set out criteria or considerations that the CEO is to use in deciding whether the CEO is satisfied in relation to some of the matters set out in Rule 2.3,[29] including value for money (paragraph 2.3(c)); whether the support is effective and beneficial (paragraph 2.3(d)); and taking account of the expectations of what is reasonable to expect families, carers, informal networks and the community to provide in informal supports (paragraph 2.3(e)). Relevantly, this Part of the Support Rules provides:

3.1 In deciding whether 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, the CEO is to consider the following matters:

(a) whether there are comparable supports which would achieve the same

(b) whether there is evidence that the support will substantially improve the life

stage outcomes for, and be of long-term benefit to, the participant;

(c) whether funding or provision of the support is likely to reduce the cost of the funding of supports for the participant in the long term (for example, some early intervention supports may be value for money given their potential to avoid or delay reliance on more costly supports);

(d) for supports that involve the provision of equipment or modifications:

(i) the comparative cost of purchasing or leasing the equipment or

(ii) whether there are any expected changes in technology or the

participant's circumstances in the short term that would make it

inappropriate to fund the equipment or modifications;

(e) whether the cost of the support is comparable to the cost of supports of the

same kind that are provided in the area in which the participant resides;

(f) whether the support will increase the participant's independence and

reduce the participant's need for other kinds of supports (for example,

some home modifications may reduce a participant's need for home care).

Effective and beneficial and current good practice

3.2 In deciding whether the support will be, or is likely to be, effective and beneficial

for a participant, having regard to current good practice, the CEO is to consider

the available evidence of the effectiveness of the support for others in like

(a) published and refereed literature and any consensus of expert opinion;

(b) the lived experience of the participant or their carers; or

(c) anything the Agency has learnt through delivery of the NDIS.

3.3 In deciding whether the support will be, or is likely to be, effective and beneficial

for a participant, having regard to current good practice, the CEO is to take into

3.4 In deciding whether funding or provision of the support takes account of what it is

reasonable to expect families, carers, informal networks and the community to

provide, the CEO is to consider the following matters:

(i) that it is normal for parents to provide substantial care and support for children; and

(ii) whether, because of the child's disability, the child's care needs are substantially greater than those of other children of a similar age; and

(iii) the extent of any risks to the wellbeing of the participant's family

(iv) whether the funding or provision of the support for a family would

improve the child's capacity or future capacity, or would reduce any risk to the child's wellbeing;

(c) for all participants - the desirability of supporting and developing the

potential contributions of informal supports and networks within their

1. Part 5 of the Support Rules sets out general criteria for supports, and for supports that will not be funded or provided. Relevant provisions within Part 5 include the following:

Part 5 General criteria for supports, and supports that will not be funded or provided

5.1 A support will not be provided or funded under the NDIS if:

(a) it is likely to cause harm to the participant or pose a risk to others; or

(b) it is not related to the participant's disability; or

(c) it duplicates other supports delivered under alternative funding through the NDIS; or

(d) it relates to day-to-day living costs (for example, rent, groceries and utility

fees) that are not attributable to a participant's disability support needs.

5.2 The day-to-day living costs referred to in paragraph 5.1(d) do not include the

following (which may be funded under the NDIS if they relate to reasonable and

(a) additional living costs that are incurred by a participant solely and directly

(b) costs that are ancillary to another support that is funded or provided under

the participant's plan, and which the participant would not otherwise incur.

1. Additionally, the Transitional Rules and the Miscellaneous Transitional Rules are also now of application.

Managing the funding for supports under participants' plans

1. On its website the Agency provides a simple explanation of the three options available to manage a participant's funding, being:
   • Self-management: The NDIA provides you with funding so you can access the supports that will best help you pursue your goals.
   • Plan-managed funding: The NDIA will provide funding in your plan to pay for a Plan Manager who pays your providers for you, helps you keep track of funds and takes care of financial reporting for you.
   • NDIA-managed funding: The NDIA pays your providers on your behalf.[30]
2. Division 3 of Part 2 of the NDIS Act provides for how the funding of supports in plans is to be managed. Section 42 provides:

42 Meaning of managing the funding for supports under a participant's plan

(1) For the purposes of this Act, managing the funding for supports under a participant's plan means doing one or more of the following:

(a) purchasing the supports funded under the plan (including paying any applicable indirect costs, such as taxes, associated with the supports);

(2) For the purposes of the statement of participant supports in a participant's plan, in specifying the management of the funding for supports under the plan as mentioned in paragraph 32D(2)(f) or 33(2)(d), the plan must specify that such funding is to be managed wholly, or to a specified extent, by:

1. Section 43 provides that a participant may make a 'plan management request' as to how their plan is to be managed, and how the CEO is to deal with such requests. The full section is very lengthy, and I will not set it out here, other than to note that if certain identified provisions in section 44 apply, including those that give rise to satisfaction on the part of the CEO that a funding management style would give rise to unreasonable risk to the participant, the SoPS must provide for the funding to be managed by the Agency.
2. Section 44 is headed 'Circumstances in which persons must not manage funding'. Section 44(1) provides (in part):

(1) For the purposes of paragraph 43(3)(b), this subsection applies in relation to a participant if:

(a) the participant is an insolvent under administration; or

(aa) the participant has been convicted of an offence against a law of the Commonwealth, a State or a Territory that:

(i) is punishable by imprisonment for 2 years or more; or

(b) the CEO is satisfied that the participant's management of the funding for supports under the plan to a particular extent would:

(i) present an unreasonable risk to the participant; or

(ii) permit the participant to manage matters that are prescribed by the National Disability Insurance Scheme rules as being matters that must not be managed by a participant; ...

(2) For the purposes of paragraph 43(4)(b), this subsection applies in relation to a registered plan management provider if the CEO is satisfied that the provider's management of the funding for supports under the plan to a particular extent would present an unreasonable risk to the participant.

1. Section 44(2A) applies in relation to a plan nominee where (among other circumstances):

(b) the CEO is satisfied that the plan nominee's management of the funding for supports under the plan to a particular extent would present an unreasonable risk to the participant.

National Disability Insurance Scheme rules relating to unreasonable risk

(3) The National Disability Insurance Scheme rules may prescribe criteria the CEO is to apply and matters to which the CEO is, or is not, to have regard in considering whether any of the following would present an unreasonable risk to the participant:

(a) a participant managing the funding for supports under the plan;

(aa) a registered plan management provider managing the funding for supports under the plan;

(b) a plan nominee managing the funding for supports under the plan.

(4) The National Disability Insurance Scheme rules may prescribe circumstances in which the management of funding for supports under a plan to a particular extent by a participant, a registered plan management provider or a plan nominee is taken to present an unreasonable risk to a participant.

1. Such rules have been made; being the National Disability Insurance Scheme (Management of Funding) Rules 2024 (the Management of Funding Rules).
2. Part 3 of those rules deals with the concept of 'unreasonable risk', as outlined in the above NDIS Act provisions, and relevantly provides (for participants and plan nominees[31]):

6 Considering whether there is an unreasonable risk to the participant - matters to which the CEO must, and must not, have regard

(1) This section is made for the purposes of subsections 44(3) of the Act and 74(6) of the Act.

Matters to which the CEO must have regard - participant

(2) The following are matters to which the CEO must have regard in considering, for the purposes of subsection 44(1) of the Act, whether a participant's management of the funding for supports under a plan to a particular extent would present an unreasonable risk to the participant:

(a) whether, and the extent to which, any identified risk could be mitigated by:

(i) particular supports, safeguards or strategies that are, or will be, included in the participant's statement of participant supports to which the plan management request relates;

(ii) any informal, community or mainstream supports that the participant has in place;

(b) whether, and the extent to which, any identified risk has been mitigated in the past by:

(i) particular supports, safeguards or strategies that were included in the participant's statement of participant supports;

(ii) any informal, community or mainstream supports that the participant had in place;

(c) the nature of the supports that are, or will be, included in the participant's statement of participant supports to which the plan management request relates;

(d) whether, and the extent to which, the participant is at risk of experiencing:

(e) the participant's ability or capacity to make decisions or to appropriately manage finances, taking into account any support or assistance the participant is likely to receive to do so;

(f) whether a court or tribunal has ordered another person to manage, wholly or partly, the property or finances of the participant;

(g) any matters raised by the participant that the CEO considers relevant;

(h) any other matters that the CEO considers relevant.

Matters to which the CEO must have regard - registered plan management provider

(3) The following are matters to which the CEO must have regard in considering, for the purposes of subsections 44(2) and 74(4A) of the Act, whether a plan management provider's management of the funding for supports under a plan to a particular extent would present an unreasonable risk to a participant:

(a) whether, and the extent to which, any identified risk could be mitigated by:

(i) particular supports, safeguards or strategies that are, or will be, included in the participant's statement of participant supports to which the plan management request relates; or

(ii) any informal, community or mainstream supports the participant has in place;

(b) whether, and the extent to which, any identified risk has been mitigated in the past by:

(i) particular supports, safeguards or strategies that were included in the participant's statement of participant supports;

(ii) any informal, community or mainstream supports that the participant had in place;

(c) whether, and the extent to which, the participant is at risk of experiencing:

(d) any matters raised by the following that the CEO considers relevant:

(ii) if the person is not the participant - the participant;

(e) any other matters that the CEO considers relevant.

Matters to which the CEO must have regard - plan nominee

(4) The following are matters to which the CEO must have regard in considering, for the purposes of subsection 44(2A) of the Act, whether a plan nominee's management of the funding for supports under a plan to a particular extent would present an unreasonable risk to a participant:

(a) whether, and the extent to which, any identified risk could be mitigated by:

(i) particular supports, safeguards or strategies that are, or will be, included in the participant's statement of participant supports to which the plan management decision relates; or

(ii) any informal, community or mainstream supports the participant and the plan nominee have in place;

(b) whether, and the extent to which, any identified risk has been mitigated in the past by:

(i) particular supports, safeguards or strategies that were included in the participant's statement of participant supports;

(ii) any informal, community or mainstream supports that the participant or the plan nominee had in place;

(c) the nature of the supports that are, or will be, included in the participant's statement of participant supports to which the plan management decision relates;

(d) whether, and the extent to which, the participant is at risk of experiencing:

(e) the plan nominee's ability or capacity to make decisions or to appropriately manage finances, taking into account any support or assistance the plan nominee is likely to receive to do so;

(f) whether a court or tribunal has ordered another person to manage, wholly or partly, the property or finances of the plan nominee;

(g) any matters raised by the participant or the plan nominee that the CEO considers relevant;

(h) any other matters that the CEO considers relevant.

Matters to which the CEO must not have regard - all decisions

(6) However, the following are matters to which the CEO must not have regard in undertaking any of the considerations mentioned in subsections (2), (3), (4) and (5):

(a) the nature of any of the participant's impairments;

(b) any total funding amount or funding component amount under the plan;

(c) if applicable, the fact that the amount of funding provided under a plan for the participant for a funding period was less than the amount that could have been provided for that period.

(7) Subsection (6) applies despite subsections (2), (3), (4) and (5) to the extent that those subsections would otherwise have the effect of requiring the CEO to have regard to a matter that is mentioned in subsection (6).

1. Chapter 4 of the NDIS Act deals with 'Administration' and Part 5 of that Chapter addresses nominees - including their functions and responsibilities, appointment, suspension and cancellation. By section 9 of the NDIS Act, the term 'nominee' is defined as follows:

nominee means the correspondence nominee of a participant or the plan nominee of a participant.

1. Plan nominees are appointed by the CEO of the Agency under section 86 of the NDIS Act, and a plan nominee can be appointed either at the request of a participant or on the initiative of the CEO. Section 78(1) of the NDIS Act provides as follows for plan nominees:

78 Actions of plan nominee on behalf of participant

(1) Any act that may be done by a participant under, or for the purposes of, this Act that relates to:

(a) the preparation, variation, reassessment or replacement of the participant's plan; or

(b) the management of the funding for supports under the participant's plan;

may be done by the participant's plan nominee, other than to the extent specified in the instrument of appointment of the plan nominee.

1. Section 79 provides for the actions of a correspondence nominee, as appointed under section 87.
2. Section 80 addresses the duties of nominees to participants. Section 80(1) provides:

(1) It is the duty of a nominee of a participant to ascertain the wishes of the participant and to act in a manner that promotes the personal and social wellbeing of the participant.

(4) The National Disability Insurance Scheme rules may prescribe other duties of a nominee, including duties requiring the nominee:

(a) to support decision‑making by the participant personally; or

(b) to have regard to, and give appropriate weight to, the views of the participant; or

(c) to inform the CEO and the participant if the nominee has, acquires, or is likely to acquire, any interest, pecuniary or otherwise, that conflicts or could conflict with the performance of the nominee's duties.

1. Section 88 of the NDIS Act provides as follows:

(1) A person may be appointed as the plan nominee and the correspondence nominee of the same participant.

(2) The CEO must not appoint a person as a nominee of a participant under section 86 or 87 except:

(a) with the written consent of the person to be appointed; and

(b) after taking into consideration the wishes (if any) of the participant regarding the making of the appointment.

(3) In appointing a person as a nominee of a participant under section 86 or 87, the CEO must consider whether the person is able to comply with section 80.

(4) In appointing a nominee of a participant under section 86 or 87, the CEO must have regard to whether there is a person who, under a law of the Commonwealth, a State or a Territory:

(b) is a person appointed by a court, tribunal, board or panel (however described) who has power to make decisions for the participant and whose responsibilities in relation to the participant are relevant to the duties of a nominee.

(5) The CEO must cause a copy of an appointment under section 86 or 87 to be given to:

(6) The National Disability Insurance Scheme rules may prescribe:

(a) persons who must not be appointed as nominees; and

(b) criteria the CEO is to apply or matters to which the CEO is to have regard in considering the appointment of a nominee.

1. Sections 89 and 90 deal with the cancellation of nominee appointments:

89 Circumstances in which the CEO must cancel appointment of nominees

(a) a person is appointed as a nominee of a participant under section 86 or 87 at the request of the participant; and

(b) the participant requests the CEO to cancel the appointment;

the CEO must cancel the appointment by written instrument:

(c) within the period worked out in accordance with the National Disability Insurance Scheme rules prescribed for the purposes of this paragraph; or

(d) if there are no such rules - as soon as reasonably practicable.

(2) A request under paragraph (1)(b) need not be made in writing. If the request is not made in writing, the CEO must make a written record of the request.

(a) a person is appointed as a nominee of a participant under section 86 or 87; and

(b) the person informs the CEO in writing that the person no longer wishes to be a nominee under that appointment;

the CEO must cancel the appointment by written instrument:

(c) within the period worked out in accordance with the National Disability Insurance Scheme rules prescribed for the purposes of this paragraph; or

(d) if there are no such rules - as soon as reasonably practicable.

(4) If the appointment of a person as a nominee of a participant is cancelled under this section, the CEO must give the person and participant a copy of the instrument of cancellation.

90 General circumstances in which CEO may cancel or suspend appointment of nominees

(a) a person is appointed as a nominee of a participant under section 86 or 87 on the initiative of the CEO; and

(b) the participant requests the CEO to cancel the appointment;

the CEO may, by written instrument, cancel the appointment.

(2) A request under paragraph (1)(b) need not be made in writing. If the request is not made in writing, the CEO must make a written record of the request.

(a) the CEO must decide whether to cancel the appointment within the following number of days after receiving the request:

(ii) if the National Disability Insurance Scheme rules prescribe a number of days for the purposes of this subparagraph - that number of days; and

(b) if the CEO decides not to cancel the appointment - the CEO must give the person and participant written notice of the CEO's decision.

(3A) The CEO may, by written instrument, cancel the appointment of a nominee of a participant if:

(a) at the time the appointment was made, the nominee was a person who, under a law of the Commonwealth, a State or a Territory:

(ii) was appointed by a court, tribunal, board or panel (however described) who had power to make decisions for the participant and whose responsibilities in relation to the participant were relevant to the duties of a nominee; and

(b) the nominee no longer has guardianship of the participant or no longer holds the appointment referred to in subparagraph (a)(ii) (as the case requires).

(4) The CEO may, by written instrument, suspend or cancel one or more of a nominee's appointments if:

(a) the CEO gives the nominee a notice under section 83; and

(b) in response to the notice, the nominee informs the Agency that an event or change of circumstances has happened or is likely to happen; and

(c) having regard to that response, the CEO is satisfied that it is appropriate to do so.

Failure to comply with a notice under section 83 or 84

(5) The CEO may, by written instrument, suspend or cancel one or more of a nominee's appointments if:

(a) the CEO gives the nominee a notice under section 83 or 84; and

(b) the nominee does not comply with a requirement specified in the notice.

Copy of instrument of cancellation or suspension to be given

(6) If the appointment of a person as a nominee of a participant is cancelled or suspended under this section, the CEO must give the person and participant a copy of the instrument of cancellation or suspension.

1. Sections 91 deals with the suspension and cancellation of nominees' appointments.

91 Suspension etc. of appointment of nominees in cases of physical, mental or financial harm

(1) The CEO may, by written instrument, suspend the appointment of a person as a nominee of a participant if the CEO has reasonable grounds to believe that the person has caused, or is likely to cause, physical, mental or financial harm to the participant.

(2) If the person's appointment is suspended under subsection (1), the CEO must:

(a) give the person and participant a copy of the instrument of suspension; and

(b) by written notice given to the person, request the person to give the CEO, within 28 days after the notice is given, a statement setting out reasons why the person's appointment should not be cancelled by the CEO under this section.

(3) If the person gives the CEO the statement within the 28‑day period, the CEO may, by written instrument, cancel the person's appointment.

(4) The CEO must decide whether to cancel the person's appointment under subsection (3) as soon as practicable after receiving the statement.

(5) If the CEO decides not to cancel the person's appointment under subsection (3):

(a) the suspension of the person's appointment ends; and

(b) the CEO must give the person and participant written notice of the CEO's decision.

(6) If the person does not give the CEO the statement within the 28‑day period, the CEO must, by written instrument, cancel the person's appointment as soon as practicable after that period ends.

(7) If the person's appointment is cancelled under this section, the CEO must give the person and participant a copy of the instrument of cancellation.

92 Other matters relating to cancellation or suspension of appointment

(a) the National Disability Insurance Scheme rules made for the purposes of subsection 46(2) apply in relation to a person who is a nominee; and

(b) the appointment of the person as a nominee is cancelled under section 89, 90 or 91;

those rules continue to apply in relation to the person as if the appointment had not been cancelled.

(2) While a person's appointment as a nominee is suspended, the appointment has no effect for the purposes of this Act.

(3) If a person's appointment as a nominee of a participant is suspended under section 90 or 91, the CEO may appoint another person under section 86 or 87 to be the nominee of the participant for a period specified in the instrument of appointment.

93 National Disability Insurance Scheme rules may prescribe requirements etc.

The National Disability Insurance Scheme rules may prescribe:

(a) requirements with which the CEO must comply relating to the appointment of nominees or the cancellation or suspension of the appointment of nominees; and

(b) criteria the CEO is to apply or matters to which the CEO is to have regard in appointing nominees or cancelling or suspending the appointment of nominees.

1. Rules have been made relating to nominees; these are the National Disability Insurance Scheme (Nominees) Rules 2013 (the Nominee Rules). The Nominee Rules are stated to be made for the purposes of sections 80, 88 and 93 of the NDIS Act, and further state that:

These Rules are about nominees, and deal with whether a nominee should be appointed, who should be appointed as a nominee, duties of nominees, and cancellation and suspension of nominees.

2. Part 4 of the Nominee Rules deals with the issue of who should be appointed as a nominee. This part includes rules that provide for the matters to be taken into account by the CEO when deciding who to appoint as nominee. They include the wishes of the participant (Rule 4.6) and whether the proposed nominee is willing to be appointed (Rule 4.7(a)) and is able to comply with a nominee's duties to the participant (Rule 4.7(b)), as set out in section 80 of the NDIS Act and Part 5 of the Nominee Rules.
3. Rule 4.8 provides that:

4.8 The CEO is also to have regard to the following:

(b) the degree to which the person:

(i) knows, and is in a relationship of trust with, the participant; and

(ii) is willing and able to:

(A) act in conjunction with other representatives and supporters of, and carers for, the participant to maximise the participant's wellbeing; and

(B) undertake the kinds of activities that a nominee is required to undertake in performing their functions under the Act (for example, a plan nominee might be required to enter into contracts on behalf of the participant); and

(C) involve the participant in decision-making processes; and

(D) assist the participant to make decisions for himself or herself; and

(E) ascertain what judgements and decisions the participant would have made for him or herself; and

(iii) understands and is committed to performing the duties of a nominee; and

(iv) is sensitive to the cultural and linguistic circumstances of the participant; and

(v) is familiar with, and able to work with, any communication system or other technological supports of the participant;

(c) the desirability of preserving family relationships and informal support networks of the participant;

(d) any existing arrangements that are in place between the person and the participant;

(e) where the CEO has asked the person to answer any questions or provide any information in relation to the possible appointment of that person as a nominee (including requesting the person to consent to the release of information concerning their criminal history or to disclose any conflict of interest in relation to the person and the participant):

(i) any answers or information that have been provided by the person; and

(ii) any refusal by the person to provide answers or information;

(f) any relevant views of:

(i) carers who assist the participant to manage their day-to-day activities and make decisions; and

(ii) other persons who provide support to the participant;

(g) any relevant conviction for an offence under Commonwealth, State or Territory law;

(h) any conflict of interest in relation to the person and the participant.

84. Part 6 of the Nominee Rules deals with the suspension and cancellation of the appointment of a nominee, and provide as follows:

Part 6 Suspension and cancellation of appointment of nominee

6.1 Under the Act, there are several situations in which the CEO is able, or is required, to suspend or cancel the appointment of a nominee.

6.2 The CEO is required to cancel an appointment if:

(a) the nominee was appointed at the request of the participant, and the participant requests the CEO to cancel the appointment; or

(b) the nominee informs the CEO that they no longer wish to be a nominee.

6.3 The CEO is able, but not required, to cancel an appointment if the nominee was appointed on the initiative of the CEO, and the participant requests the CEO to cancel the appointment.

6.4 The CEO is able, but not required, to cancel or suspend the appointment of a nominee if:

(a) the ability of the person to act as nominee becomes compromised; or

(b) the CEO has reasonable grounds to believe that the nominee has caused, or is likely to cause, physical, mental or financial harm to the participant.

Paragraphs 6.1 to 6.4 summarise sections 89, 90 and 91 of the Act. The provisions in the Act contain further details of the grounds of suspension and cancellation, and should be consulted where appropriate. The Act specifies a number of detailed procedural and other requirements that must be followed for these grounds of cancellation or suspension to be relied on.

6.5 When cancelling or suspending the appointment of a nominee in the situations described in paragraph 6.3 or paragraph 6.4, the CEO is to have regard to the following:

(a) any breach of a duty of the nominee to the participant under the Act or these Rules;

(b) the previous conduct of the nominee in relation to the participant;

(c) the results of any review of the participant's plan;

(d) the views of the participant, and of any person who cares for or supports the participant;

(e) the impact on the participant of any cancellation or suspension of appointment;

(f) whether the nominee has been convicted of a criminal offence that is reasonably likely to compromise the ability of the person to act as nominee;

(g) whether the participant still needs a nominee, having regard to the considerations mentioned in paragraph 3.14(b).

1. Specific rules have also been made in relation to Specialist Disability Accommodation (SDA), one of the supports in issue in the review. These are the National Disability Insurance Scheme (Specialist Disability Accommodation) Rules 2020.
2. The Agency has also issued some Operational Guidelines which are relevant to NDIS supports. In this review, the Agency identified the following guidelines as applicable to the decisions under review in this proceeding:[32]
   1. Reasonable and Necessary Supports
   2. Supports that are not NDIS supports
   3. Supports that are NDIS supports
   4. Assistive Technology
   5. Medium term accommodation
   6. Short term accommodation
3. Such guidelines are published on the NDIS website and are described by the NDIA as guidelines that set out some of the NDIA's 'operational information': '[T]hey explain what we need to consider and how we make decisions based on the legislation'. [33]
4. Unlike NDIS Rules, NDIS Guidelines are not made pursuant to a power conferred by the NDIS Act; they are issued in an exercise of executive power.[34] As such, the Guidelines set out the NDIA's policy and provide guidance in how relevant powers are to be exercised. Ordinarily the Tribunal will apply such policy in reviewing a decision, unless the policy is unlawful, or unless its application tends to produce an unjust decision in the circumstances of the particular case.[35]

1. BHXJ's current NDIS plan commenced on 29 November 2024, and was for a period of six months, falling to be reassessed by 28 May 2025.[36] On that date this plan was continued, for a further period of up to 12 months.[37]
2. This plan includes a section about BHXJ. In that section, it is recorded that BHXJ:
   • Lives at home with her partner, Mr A, and her pet cats and dogs. Mr A is her main support person. BHXJ says she does not go out much, except to medical appointments, and does not have much contact with her extended family.
   • On some days, cannot get out of bed due to her pain. On good days she will get up and sit in a chair. She enjoys the company of her pets and occasionally speaking to friends on the phone.
3. The plan also contains BHXJ's goals. They are:
   • I would like to be as independent as possible with communication and in my daily life activities.
   • It is my goal to have assistive technology that provides benefits to my health and welfare and allows me to maintain my levels of functionality.
   • I want to be able to live in suitable accommodation with my family so that my compromised immune system is not out at risk.
   • I would like to continue to stay living well in my own home, comfortably and safely.
   • I would like to be able to maintain my house and garden.
   • I would like to maximize my mobility and have support to get out into the community when I am able.
   • I would like to reduce the amount of pain I experience each day so that I can focus on other things.
4. The plan also lists BHXJ's current informal, community and mainstream supports. These include the mainstream supports of her GP, upon whom she attends each month; a hospital that she attends one to two times per year for injections to help manage her pain; a Rheumatologist and a Neurologist seen at hospital clinics, again one to two times per year. Her informal support is Mr A, who provides support every day.
5. The SoPS approved in BHXJ's plan has a total cost of $47,767.26, over the six-month life of the plan. This funding is available across two categories of supports, being 'Core', and 'Capacity Building'.
6. In Core supports, funding of $33,329.94 is available for 'Assistance with Daily Life', to assist or supervise BHXJ with her personal tasks during her day-to-day life. $3,513.12 is available for 'Assistance with Social, Economic and Community Participation', for supports to assist with or supervise BHXJ to engage in community, social and recreational activities. $250 is provided to buy 'low cost assistive technology' and for minor repairs to assistive technology. $803.04 is provided for transport costs. Total core funding is $37,896.12.
7. Each core support is a 'stated' support. BHXJ's plan explains this terminology as follows:

If your Core supports are stated, you can only use the funding to buy the approved supports in the Core supports budget. It cannot be used to pay for anything else.

1. For Capacity Building supports, $4,082.39 is allocated for 'Improved Daily Living Skills', in the form of assessment, training and therapy to help build BHXJ's skills, independence and community participation. This funding is specified to be:

... for an occupational therapist and a clinical nurse consultant to complete functional capacity and continence assessments and assess and provide strategies and assistive technology recommendations to increase my independence in activities of daily living.

1. $5,788.74 is allocated for 'Support Coordination and Psychosocial Recovery Coaches.' Both capacity building supports are 'stated supports.' Total Capacity Building supports funding is $9,871.14.
2. All funding in the plan is Agency-managed. BHXJ's plan explains this terminology as follows:

Your plan has agency-managed funded supports This means we will pay your providers on your behalf or for your nominee. You must use registered providers for agency-managed funded supports.

1. As noted, BHXJ's plan commencing on 29 November 2024 was continued until 28 May 2026. In its Updated SFIC, the Agency provided the following table regarding the funding in BHXJ's plan, and its use:

1. Amount - first figure is per annum - second figure for existing 18-month plan

1. Spending from 29 November 2024 as of 4 July 2025

2 hours per day for self-care activities, 2 hours per fortnight for cleaning and other household activities, 2 hours per month for house and yard maintenance

$53,636.52 was paid to Moving Solutions Australia PTY LTD

1. Leaving aside for the moment the plan nominee and funding management aspects of the Applicant's review, as I have noted above the supports in issue were identified in the Agency's Updated SFIC as:

Requested Supports (reasonable and necessary supports)

(c) Return to level of support prior to June 2024, which is alleged to be approximately

1. Regarding paragraph (c) of those supports, the Agency further stated:

... the Agency confirms that no plans have been provided in the Applicant's plan history which correspond with that requested amount. The Applicant's plan which was in place prior to June 2024 commenced in October 2023 (T21). The Agency notes that the October 2023 plan is similar to the current plan as outlined at paragraph 7 of this SFIC. The Agency considers the differences between the plans to form the remaining supports sought by the Applicant, which are:

(a) Increase to Daily Activities (core) for two hours per week of House Cleaning and Other Household Activities (currently funded for two hours per fortnight).

(b) Increase to Daily Activity (capacity building) for 5 hours (at weekday daytime rate) of delivery of health supports by a clinical nurse consultant (currently funded for 3 hours).

(c) Increase to Support Coordination (capacity building) for 72 hours per year of Level 2 support coordination, and 39 hours per year of Level 3 specialist support coordination (current funded for 109 hours per year of Level 2 support coordination).

(d) Assistive technology maintenance funding (inclusive of power wheelchair, manual wheelchair and walking frame).[38]

1. At the outset of the hearing Mr A confirmed the scope of the supports sought, as outlined above.
2. The Agency also noted that in an email from Mr A, the Applicant sought:

Increase in funding and self-management and flexibility in compensation for the administrative failures made by the agency and for the use of and endorsement of defamatory and libelous [sic] information against the participant.[39]

1. The requested support of assistive technology maintenance funding was resolved during the hearing, with the Agency confirming that it had provided the three items of assistive technology noted above to BHXJ and, on that basis, it was accepted that it is reasonable and necessary for the costs of maintaining those items to be met by the Agency.[40] It was also noted that the Agency's policy regarding these expenses provided for the quantum of support provided, and required quotes to be provided if maintenance costs were over a certain figure (for example, $1500) and as such it was unnecessary to specify a particular funding amount for this support.
2. Accordingly, noting the basis of the Agency's concession regarding these expenses, which I consider to be appropriate, I find maintenance expenses for BHXJ's Agency-provided assistive technology to be a reasonable and necessary support, that should be included in her SoPS, and that the decision under review should be varied so as to include this support.
3. I will deal with the other requested supports below.

1. Before addressing my consideration of the matters in issue in this review, it is helpful to set out some aspects of the relevant evidence given by Mr A. As noted, Mr A was the only witness to give evidence for the Applicant. The Tribunal was advised by Mr A that BHXJ had in recent months been diagnosed with a facial cancer and was unable to appear and /or give evidence herself at the hearing. It is noted that at some of the directions hearings preceding the substantive hearing, as noted above, the Tribunal engaged with Mr A about the provision of further medical evidence regarding BHXJ's circumstances. However, no additional evidence relating to this recent diagnosis was forthcoming, nor did BHXJ participate in a requested independent functional assessment.
2. Mr A gave evidence at the hearing on 23 September 2025. Matters addressed in his brief evidence-in-chief included:
   • BHXJ wished for him to be reinstated as her nominee.
   • Some of the information taken into account by the Agency in its decision to cancel his appointment as nominee, such as that provided by BHXJ's former Specialist Support Coordinator (as outlined below), was incorrect and 'defamatory.' Further, the Agency had not verified such information.
   • The issue of self-management (of the funding in BHXJ's plan) is of no relevance to Mr A. BHXJ is fully capable of managing her own affairs and that has nothing to do with him. The Agency has no evidence to show that BHXJ is unable to manage her own affairs.
   • The Agency had in fact granted BHXJ self-management of her plan funding, and then took six months to change its mind on that.[41]
   • As to requested supports, he and BHXJ were not demanding these supports, but had instead inquired about them, and were seeking a return to what they had some time ago.
3. Mr A was cross-examined at length by Counsel for the Agency. Matters addressed included the following:
   • BHXJ and Mr A had relocated interstate, residing at an Airbnb residence in a regional area, while BHXJ received treatment in a metropolitan location. BHXJ explained this was likely to be a permanent relocation. He did not wish to provide the address to the Agency, claiming it had instigated police undertaking welfare checks on BHXJ, which he described as 'unnecessary and unwarranted', and later as based on 'spurious information'.
   • Whether the material before the Tribunal contained any document reflecting BHXJ's stated wish to have Mr A reappointed as her nominee. Mr A stated this had been raised in conversation, and also in email, and reaffirmed BHXJ's wishes, explaining it was unreasonable of the Agency to expect her to appear at the hearing. [It is noted that there is an interaction record in the Hearing Bundle, reflecting a telephone conversation on 12 July 2024, between an Agency officer and BHXJ and Mr A, in which the request for plan management to be changed to self-managed was ventilated].[42]
   • The findings of the Tribunal in its 2023 decision, BHXJ and NDIA [2023]. I will deal with this evidence in more detail below.
   • Mr A did not see that if he was reappointed as BHXJ's nominee that he would effectively be managing her plan, if it was returned to self-management. He stated that the nominee issue 'has nothing to do with her request to self-manage on her own.' Again, he asserted that BHXJ had full capacity to manage her own affairs, and stated:

If she wants to self-manage, she can do what she wants. It doesn't have to involve me in any way, shape or form. So no, I don't agree that I pose any risk ...

If she had any concern about my, well, you probably call it influence perhaps, or involvement, she can obviously make a contact to the Agency and express her own wishes, and given that she, as far as I'm aware, she's never done that, it would seem that she clearly does not see that as a risk ... and the fact that she's never done that and has passed every welfare check that you've subjected her to, then it would seem to be nothing that says she can't look after herself.

• Mr A rejected suggestions that the Tribunals' findings in BHXJ and NDIA [2023] presented an unreasonable risk regarding BHXJ's plan management. He also rejected that he presented any such risk if BHXJ was self-managing her plan, while seriously unwell. He asserted that the Agency's focus was incorrectly on him, rather than on BHXJ and her capacity.
• As to the requested supports in issue:
  • Increase in support for cleaning and household activities - from two hours per fortnight to two hours per week: Mr A stated that more regular cleaning was necessary due to BHXJ's immune status. He acknowledged that only he and BHXJ lived in their residence and he did a variety of cleaning tasks that arose outside the time of the cleaners' fortnightly attendance. It was suggested to Mr A that there was no medical evidence to support this request. During this evidence it was noted that the physiotherapist, Mr Ryder, had noted in his report that BHXJ was unable to complete housework and home maintenance tasks, although he made no specific recommendation as to the level of support required.[43]

The report provided by Ms Wu, BHXJ's occupational therapist, was also noted, with Ms Wu suggesting that 'weekly cleaning services, up to two hours per week', were required.[44]

Mr A acknowledged that he and BHXJ had moved residence since the time of Ms Wu's report (prepared in October 2024), but that the property they now lived in was similar in size and design. He also confirmed that under their Airbnb arrangements he and BHXJ were responsible for cleaning.

• Increase in support for 5 hours (at weekday daytime rate) of delivery of health supports by a clinical nurse consultant (currently funded for 3 hours): There was initially some confusion as to what this specific request and this support entailed, with Mr A giving evidence that the requested increase was due to BHXJ's medical situation becoming more serious because of her cancer diagnosis, and the need for her to have support outside the times when nursing support was currently provided. However, Counsel for the Agency was able to clarify that the three hours provided in BHXJ's SoPS was for a fixed assessment for a clinical nurse consultant to complete functional capacity and continence assessments and assess and provide strategies and assistive technology recommendations to increase BHXJ's independence in activities of daily living.[45]
• Increase in support coordination (capacity building) for 72 hours per year of Level 2 support coordination, and 39 hours per year of Level 3 specialist support coordination (current funded for 109 hours per year of Level 2 support coordination). Mr A gave evidence that he was not seeking an increase, and that one of BHXJ's support coordinators may have adjusted her goals and thought that an increase was needed. He was very clear on this, stating that despite the analysis undertaken by the Agency to compare BHXJ's past and current plans, 'I didn't make a submission to anyone asking for any increases.'

As Mr A's evidence relating to this support developed, it emerged that he was of the view that only a Level 3 coordinator could assist with an SDA assessment, and hence that component may still be required, in that context. I will return to this aspect later in my decision.

• Assistive technology maintenance: as noted, this support was resolved during the hearing.
• The accommodation supports: Mr A agreed that it was fair to say that BHXJ's living arrangements were, as at the time of the hearing, temporary in nature and in a state of flux. He agreed that there was no report in evidence in the form of an assessment of BHXJ's needs for SDA accommodation.

Counsel for the Agency suggested that given the uncertainty as to BHXJ's living situation there was a question mark over whether or not low-cost home modifications might be one answer to supporting her independence. To this suggestion Mr A responded that given the timeframes attaching to Agency reports and uncertainty as to the decisions the Agency might make, 'it seems prudent to have these things in advance.'

Mr A gave evidence that while BHXJ had funding for occupational therapy support in her SoPS, and had an occupational therapist at her new location, she had not seen this therapist.

As to why Medium Term Accommodation (MTA) was requested, Mr A explained that this support:

... would have provided us with somewhere far more stable that's not at our cost ... and perhaps we would have found it more appropriate ... while we relocated for medical treatment.

Counsel for the Agency took Mr A to the Agency's operational guidelines applying to this support, and particularly the requirement that to be eligible for MTA the participant must have a long-term home they will move into after the MTA, but at which they cannot presently stay as disability supports are not in place. Mr A contended that this did not preclude BHXJ's current circumstances, as she had needed to relocate for reasons of her health.

Finally, Mr A explained that 28 days of Short Term accommodation (STA) was sought so that if BHXJ was hospitalised, upon discharge there would be a 'respite place' with necessary facilities available. Again, he advised this support was not needed now, but was sought as a 'backup measure should she need them.' He referred to Ms Wu's report as support for this request, although it was suggested by Counsel for the Agency that Ms Wu was referring to respite provision for BHXJ's informal support, that is, himself.

• Finally, Mr A was given an opportunity to comment of the request for an 'increase in funding and self-management and flexibility in compensation for the administrative failures made by the agency and for the use of and endorsement of defamatory and libelous [sic] information against the participant.'

In responding, Mr A referred to information provided by a former Specialist Support Coordinator for BHZJ, which I will deal with below. Mr A acknowledged that he understood the Tribunal may have no power to make a determination on this issue, but that 'it gets it on the record and it provides context to the Tribunal on the Agency's position on various issues, most especially their [lack of] concern for the Applicant.'

1. I will first deal with the request to reinstate Mr A as BHXJ's nominee.

Request to Reinstate Mr A as the Applicant's plan nominee

1. Mr A was appointed as BHXJ's plan and correspondence nominee on 24 February 2020.[46]
2. On 6 June 2024 the Agency wrote to BHXJ, advising that Mr A's appointment as nominee had been cancelled.[47] That letter advised:

The reason for cancelling the appointment of Mr A is because I have reasonable grounds to believe Mr A has failed their nominee duties to you and the NDIS. A nominee must utilize NDIS funding as specified in the plan of supports (NDIS Act 2013 section 46).

1. The letter attached a copy of the Instrument of Cancellation.[48] That instrument was headed 'National Disability Insurance Scheme Act 2013 - Instrument of Cancellation - Subsection 89(3),' and noted the delegate's decision to cancel Mr A's appointment as plan nominee and correspondence nominee, from the date of the instrument (being 6 June 2024).
2. I will refer to the decision to cancel Mr A's appointment as BHXJ's plan and correspondence nominee as 'the nominee decision.'
3. As noted above, BHXJ sought that the Agency conduct an internal review of various decisions relating to her plan, including the nominee decision. On 25 July 2024 a different delegate affirmed that decision. The outcome letter provided to BHXJ relevantly stated the following as to the delegate's review of the nominee decision:[49]

I have assessed your request in accordance with section 100 of the NDIS Act 2013 and relevant Nominee legislation. Available information demonstrates that section 46(1) of the NDIS act has not been met. After reviewing the evidence and correspondence with the NDIA, I am satisfied you have on multiple occasions failed to spend funding provided for BHXJ in accordance with her plan as approved by the agency. This is clearly highlighted within the Administrative Appeals Tribunal's explanation of decision on 2 February 2023, where they found that evidence supports a conclusion you had managed funding in BHXJ's plan that raises serious concerns regarding your capacity to manage plan finances in a responsible matter (sic).

Therefore, I have determined that the original decision to remove you as nominee was correct to mitigate risk.

1. The reference in the internal review outcome letter to the AAT's decision of 2 February 2023 is a reference to the 2023 review and the decision of BHXJ and NDIA [2023]. To provide context to the Agency's nominee decision, and that relating to the management of BHXJ's plan, it is necessary to provide some explanation as to the matters addressed in that decision and the Tribunal's findings.

The Tribunal's decision in BHXJ and NDIA [2023]

1. In its Updated SFIC the Agency set out the following summary of the decision,[50] which I will adopt:

48. The Tribunal's decision in BHXJ concerned, relevantly, the Respondent's decisions not to change the Applicant's plans at the relevant time to self-managed or plan managed for all supports, and also for the Respondent's refusal to approve for Mr A to be paid for the provision of personal care to the Applicant from plan funds.[51]

49. The Tribunal per the Hon. Matthew Groom, Senior Member, determined that on the evidence before the Tribunal, Mr A' management of the Applicant's plan whilst self-managed by him "raises serious questions regarding his capacity to manage finances in a responsible manner" and further that there was a demonstrated "lack of willingness or capacity on his part to responsibly and prudently manage finances".[52]

50. The Tribunal reached these conclusions having found:

(a) Mr A fully exhausted the applicant's core support funding within 6 months of a 12 month plan; (BHXJ, [32]);

(b) Mr A was aware that his use of the Applicant's plan funding would be exhausted, failed to implement any kind of budgeting, and took the view that further funding would simply be made available to him upon depletion of the Applicant's allocated funding (BHXJ, [34]);

(c) Mr A sought funding for reimbursement to himself for 24/7 personal care for the applicant in circumstances where: 1) Mr A knew the Applicant's plan did not provide for 24/7 personal care for the Applicant and 2) upon accessing the funds Mr A took the view the funding was available for his own personal use and to be expended as he saw fit (BHXJ, [35]-[36]); and

(d) there was no doubt that Mr A spent some of the funding available in the Applicant's plan other than in accordance with the plan, and there was a clear conflict of interest by Mr A seeking reimbursement for himself personally for his provision of personal care to the Applicant (BHXJ, [44]-[45]).

51. The Tribunal further found that in the event that the Applicant's plan was converted to either a self-managed plan or plan managed plan, this would present an unreasonable risk to the Applicant (BHXJ, [46]-[49]).

1. When giving his evidence at the hearing, Mr A was taken by Counsel for the Agency, during cross-examination, to the four findings of the Tribunal set out above at paragraphs 50(a)-(d) of the excerpt from the Agency's SFIC. Mr A acknowledged that the Tribunal had made these findings but stated that he disagreed with each of them. He also stated:

I was at all times I believe, operating within the framework that I believe that we had access to and if people disagree with it then they were entitled to do so at the time.[53]

2. Ordinarily previous decisions of this Tribunal are not binding authority, in terms of strict legal precedent, upon later Tribunal decisions.[54] Nevertheless, the benefits of consistency in how similar cases are decided, including in helping to establish administrative norms in how legislation is administered, have been recognised in many Tribunal decisions.[55]
3. It is also to be noted that the decision in BHXJ and NDIA [2023] turned upon the material then in evidence in that proceeding, as decided in February 2023, and significant time has elapsed between then and my present decision.
4. However, for present purposes, I would note the decision in BHXJ and NDIA [2023] provides important contextual information for the purposes of my determination of the issues in dispute in BHXJ's current review. This is particularly so in my evaluation of the evidence Mr A gave when asked about the Tribunal's findings in that review.

1. In a brief and general opening submission, Mr A explained that what the Applicant was seeking in this review was the affirmation or restoration of decisions previously made by the Agency, which were changed 'for no apparent reason.'
2. In his closing submissions, Mr A:
   • Advised that he and BHXJ had refused to agree to a previous request by the Agency to agree to remit the nominee decision, because the Agency's actions were wrong.
   • BHXJ wished for Mr A to be her nominee, and recognition should be given to her wishes, and the principle of 'choice of control'.
   • Rejected an assertion which he attributed to the Agency, to the effect that he was a 'threat' to BHXJ or that she was under risk, citing the outcome of the police welfare checks initiated by the Agency as evidence that he posed no such threat or risk.
   • Took issue with some of the findings made by the Tribunal in in BHXJ and NDIA [2023] and particularly the Agency's reliance upon them. He described the findings regarding the exhaustion of BHXJ's funding and his awareness of that as 'offensive', explaining that funding was depleted as BHXJ's needs increased, and the correct procedure was followed in seeking further funding. Further, these events happened three years ago, and if there was something that he did not do, it was the Agency's responsibility to work with himself and BHXJ to rectify that.
   • Reiterated the concerns expressed in his evidence as to the Agency's actions (which he described as 'disgusting'), and that the Tribunal should take those actions into account when considering the concerns it raised about him.

1. In its Updated SFIC, the Agency noted that the nominee decision was made pursuant to section 89(3) of the NDIS Act (which I have set out above). As such, this was an erroneous exercise of the CEO's powers to suspend or cancel the appointment of a nominee under the Act and the Nominee Rules. This was so as section 89(3) requires two preconditions to be enlivened, namely:
   1. The nominee was appointed under sections 86 or 87 of the Act.
   2. The nominee has informed the Agency, in writing, that the nominee no longer wishes to continue their appointment under sections 86 or 87 as nominee.
2. Here, the second of these preconditions is clearly not met, in that 'Mr A did not provide the Agency with written notification that he no longer wishes to continue his appointment as Nominee for the Applicant.'[56]
3. On that basis, the Agency submitted:

Accordingly, the decision to cancel Mr A's nominee appointment pursuant to s 89(3) of the Act was made outside the scope of the Agency's powers under the Act. The Agency no longer presses the affirmation of the decision to cancel the appointment of Mr A as the Applicant's Nominee for the purposes of this proceeding on review.

Accordingly, the Agency considers the correct and preferable decision for the Tribunal is one to set aside the cancellation made pursuant to s 89, and remit the decision to the decision maker with a recommendation that Mr A's appointment as the Applicant's Nominee be reconsidered pursuant to s 91 of the Act.[57]

1. I accept the submissions made by the Agency as to the erroneous nature of the Agency's decision under review, as to the power relied upon in cancelling Mr A's appointment as BHXJ's plan and correspondence nominee. The evidence clearly establishes that the circumstances addressed in section 89(3) of the Act did not apply; that is, Mr A did not inform the CEO in writing that he no longer wished to be a nominee.
2. As such, I find that the Agency's decision to cancel Mr A's appointment was not within the scope of its powers under that provision. That decision must therefore be set aside.
3. As to the decision that I should consequently make, section 105 of the Administrative Review Tribunal Act 2024 sets out what decisions the Tribunal can make on review of a reviewable decision:

105 Tribunal decision on review of reviewable decision

In relation to the reviewable decision, the Tribunal must make a decision:

(i) making a decision in substitution for the reviewable decision; or

(ii) remitting the matter to the decision‑maker for reconsideration in accordance with any orders or recommendations of the Tribunal.

1. BHXJ has requested that Mr A be reappointed as her plan nominee; this would be a decision made in substitution of the reviewable decision. The Agency submits that the correct and preferable decision for the Tribunal is to set aside the cancellation made pursuant to section 89 and remit the decision to the decision maker with a recommendation that Mr A's appointment as the Applicant's Nominee be reconsidered pursuant to section 91 of the Act. As set out above, section 91 of the NDIS Act deal with the suspension and cancellation of the appointment of nominees in cases of physical, mental or financial harm.
2. Having regard to the evidence, I am not persuaded that I should make the decision requested by the Applicant, to now substitute Mr A as her nominee. My reasons regarding the nominee decision are closely aligned with my findings and reasons regarding the plan management request, as set out below. In short, I am not satisfied, on the evidence, that making the decision sought by the Applicant would be appropriate, having regard to the Nominee Rules and the need to consider whether Mr A is able to comply with the duties of a nominee (Rule 4.7(b)), and the degree to which Mr A is able to meet the requirements in Rule 4.8(b)(ii) and (iii), and (h) of those Rules. It follows that I accept the Agency's submission that remittal occur, with a recommendation that Mr A's appointment be reconsidered pursuant to section 91 of the NDIS Act.
3. Accordingly, I will make a decision in the terms of that requested by the Agency; that is, to set aside the nominee decision and remit the matter to the Agency.

Plan management - change of supports from Agency to self or plan-managed and from stated to flexible

1. In addition to the submissions outlined already in the context of the nominee decision, Mr A (as explained at length in his evidence) placed reliance upon BHXJ's capacity and competence to manage her own funding, and her independence in doing this without experiencing any influence from him. Additionally, in closing submissions Mr A focused upon the Agency's actions, submitting that those actions, and not anything done by him, should be the subject of the greater concern.

1. In its Updated SFIC, the Agency noted the application of the relevant Management of Funding Rules and provisions in the NDIS Act, and submitted:

59. For the purposes of rules 6(4)(d)(i) and 6(e)-(h) of the Funding Rules, the Respondent relies upon the findings of the Tribunal in BHXJ, as those reasons are summarised at paragraphs 53 to 54 above.

60. The Tribunal's reasons in BHXJ clearly demonstrate that Mr A, at the relevant time, lacked the ability to manage the Applicant's plan finances in an appropriate manner, and further seriously impugned his willingness to do so.

61. Since the Tribunal's decision in BHXJ (delivered on 3 February 2023), there has been no evidence filed by the Applicant or on her behalf which would cause the Tribunal to reach a materially different conclusion in this proceeding.

62. Rather, the available evidence supports a finding that Mr A (despite the Tribunal's judgment in BHXJ) continues to demonstrate a lack of insight into, or a lack of willingness to accept, the proper purpose of the Applicant's plan funding - that is to provide the reasonable and necessary supports to the Applicant, for her disability related needs administered by the Act - as opposed to a pool of funding accessible to him as he sees fit.[58]

1. The Agency's SFIC continued, referencing a number of materials in evidence in the review which can be categorised as expressing concerns about Mr A's actions, in the context of BHXJ's NDIS funding and her support needs. These materials were described in some length in the Updated SFIC and I will summarise them.
2. The first was correspondence received by the Agency on 21 February 2024,[59] from a person who was at that time BHXJ's Specialist Support Coordinator (the Specialist Support Coordinator). That correspondence expressed the following concerns:
   • In the period since the Specialist Support Coordinator commenced in that role, some three months previously, they had not spoken to nor seen BHXJ. All communications were with Mr A.
   • BHXJ and Mr A had recently moved. A company based interstate claimed to still be providing services to BHXJ, although Mr A had advised that BHXJ was no longer receiving supports since the move. When these invoices were not paid, Mr A commenced submitting invoices naming another provider, which were in his (Mr A's) handwriting.
   • BHXJ and Mr A had not been forthcoming with information about their addresses, with Mr A providing untruthful information on occasions, and at one point seeking STA funding for four weeks in an Airbnb.
   • On occasions the Specialist Support Coordinator suspected that Mr A had impersonated BHXJ when engaging with Agency staff by telephone.
3. The next item relied upon by the Agency was internal Agency correspondence dated on or about 11 November 2024,[60] recording an interaction relating to a telephone call received by a real estate agent, who claimed that Mr A had advised him that the Agency would be paying for rental expenses as MTA support (when no such support was in place). Concern was expressed that Mr A was providing 'deceptive' information to a third party.
4. The Agency further submitted:

On 25 July 2024, the Agency explained to Mr A its reasons for declining his request made for MTA, and explaining the criteria for the same (Document T2).[61] On or about 30 May 2025, a request was made on behalf of the Applicant "asking about Manual Self-Managed Claim Forms for Medium Term Accommodation" (MTA) and attaching a bundle of invoices from "Saphire Estate Agents invoices for period between 3 October 2024 to 10 March 2025".'

1. The third item was correspondence received by the Agency on 5 December 2024, from BHXJ's then Support Coordinator (from MS Queensland).[62] This correspondence expressed concern about Mr A requesting provision of a number of items of office equipment, ostensibly on the basis of BHXJ being offered a data entry role, for which he was not able to provide an employment contract. The coordinator could not support the request, expressing doubt as to BHXJ's capacity to undertake such employment, and also noted that support provider appointments she had made for BHXJ had been cancelled prior to the commencement of services.
2. The Agency further noted that in the month following receipt of the above correspondence, Mr A sent the Agency invoices for a total amount of $5,767.73 for a gaming/office chair, a split system reverse cycle air conditioner, a hybrid digital camera and a gaming laptop. His covering email referred to these items as 'AT' (Assistive Technology). The Agency's lawyers engaged in the current review (Sparke Helmore) responded, explaining that the requests were declined, as they did not meet the 'reasonable and necessary criteria' for supports, and additionally were not NDIS supports. Mr A responded on 6 February 2025 rejecting those assertions and challenging the lawyers' authority to make such determinations.
3. Finally, the Agency referred to a request made by Mr A in May 2025, seeking funding for moving costs and accommodation, including STA. Again, these requests were rejected, with explanations provided as to why (for example, some costs were day to day living costs).
4. The Agency's submission regarding these materials concluded:

It is evident from Mr A's conduct as summarised above that Mr A continues, since the Tribunal's decision in BHXJ, to demonstrate a lack of capacity, or willingness, to manage the Applicant's plan finances in an appropriate manner. It is plain that the "very real risk" identified by the Tribunal in BHXJ[63] remains in the event that the Applicant's plan was self-managed or plan managed. That is, the risk that funds allocated to the Applicant in her [plan] will be utilised inappropriately by Mr A or otherwise not in accordance with the provisions of the Applicant's plan. Such an outcome would be a material detriment of the Applicant and represents an unreasonable risk to her.

77. As to rr 6(4)(a)-(b), and the issue of self-management, in BHXJ the Tribunal was satisfied on the evidence before it that (at [46]):

[I]f the applicant's plans were to be reverted to self-managed there would exist a very real risk of the funds allocated to the applicant being utilised in a manner that was not responsible and prudent and that, as a consequence, it would be reasonably likely that the applicant's plan funds would be expended prematurely and potentially for purposes not consistent with the provisions of the plan. The Tribunal is satisfied that such an outcome would be to the material detriment of the applicant. In the Tribunal's view, this would represent an unreasonable risk to the participant for the purpose of the NDIS Act and the Guidelines. The Tribunal is satisfied that this risk could not reasonably be managed through risk mitigation strategies including closer monitoring by the respondent, the applicant's husband providing services to the applicant through a third-party corporate structure, or by further reducing the time period for the duration of the plans.

78. The Respondent contends that, on the evidence before the Tribunal and the reasons given above at paragraphs 60 to 76,[65] the Tribunal would also find that the risk to the Applicant could not reasonably be managed through the risk mitigation strategies contemplated by r 6(4)(a), whilst the Tribunal's findings in BHXJ extracted immediately above are relevant to the Tribunal's consideration of r 6(4)(b).

79. Similarly, as to the issue of plan-management of the Applicant's plan, and rules 6(3)(a)-(b), the Tribunal in BHXJ determined (at [48]-[49]):

[T]he evidence has clearly demonstrated that the applicant's husband continues to maintain that he is entitled to payment as a family member for the provision of personal care to the applicant and that he ought to be able to access her plan funds accordingly and utilise those funds for his own personal use and as he sees fit. Further, it is clear from the evidence that the applicant's husband has also demonstrated a willingness to take deliberate steps to pressure or otherwise persuade the plan manager to release funds to him for his own personal use, including by acting in a manner that involved misrepresentation or that was otherwise misleading or not transparent....

The Tribunal is satisfied that if the applicant's plans were converted to plan managed it would present a real risk of a future plan manager being pressured or otherwise persuaded to release funds from the applicant's plans to the applicant's husband for his own personal use including by acting in a manner that involved misrepresentation or that was otherwise misleading or not transparent. In the Tribunal's view, these circumstances present a very real risk of the funds allocated to the applicant in her plan being utilised inappropriately or otherwise not in accordance with the provisions of her plan. The Tribunal is satisfied that such an outcome would be to the material detriment of the applicant. In the Tribunal's view, this would represent an unreasonable risk to the participant.

80. Mr A, for and on behalf of the Applicant, has not provided confirmation as to who the Applicant's nominated provider may be in the event her plan was to be planned managed - an issue also live in the decision of BHXJ.

81. Nevertheless, for the reasons given at paragraphs 60 to 76 above, and in the context of Mr A's ongoing conduct, the Respondent contends that the Tribunal would not be satisfied that a proposed nominated provider would have the capacity to effectively mitigate the risks of actual or likely financial harm to the Applicant.

1. The reviewable decision before me regarding plan management is a decision that the Applicant's plan is to be Agency-managed. The Applicant requests that her plan should be self-managed, or plan-managed, with no stated supports, and flexible use of supports.
2. In the decision under review, the CEO's delegate provided the following reasons why the requested changes were refused on internal review:

Change all eligible supports to self or plan managed and to flexible use

I have decided I am unable to approve the request for the plan management change in the current plan to be self or plan managed. In making my decision, I considered Sections 43 and 44 of the NDIS Act and Part 3 of the NDIS (Plan Management) Rules. Specifically, I have determined the following circumstances that prevent self-management or plan-management are applicable to the current plan.

Evidence indicates self-management or plan management of this plan would present an unreasonable risk to the participant - s44(2)(a), s44(2A). As explained in 'Our Guidelines - Creating Your Plan', we consider whether a plan nominee wanting to self-manage the funding would create an unreasonable risk to the participant. In line with the NDIS Self-Management Policy section 7.15, the NDIS considers a plan nominee's mismanagement of funding for supports in a participant's plan to be an unreasonable risk to the participant. This is due to the risk of being unable to pay providers, over utilising support funding and not managing the plan to procure the required reasonable and necessary supports for the participant. As determined by the AAT on 2 February 2023, evidence supports a conclusion that you had managed funding in BHXJ's plan that raises serious concerns regarding your capacity to manage plan finances in a responsible manner.

As per the AAT decision explanation, there is evidence that you have previously claimed funding for yourself as a paid support worker to provide 24/7 care despite being informed by the Agency on more than one occasion there was no provision in the plan for this level of support. Furthermore, a special exemption that would allow you to be paid in this capacity was not given by the Agency, representing a serious conflict of interest and risk to both the participant and the scheme. There has also been evidence of you attempting to have funding released for everyday items not approved in BHXJ's plan such as a laptop and exercise bike, whilst misrepresenting the existence of supporting evidence as well as pressuring plan managers to access funding for this purpose. In line with the requirements of self/plan managing NDIS funds and the AAT's decision, I have determined that self or plan management of the funds in BHXJ's plan would represent an unreasonable risk and that Agency management of the plan is reasonable and necessary.

For the same reasons as detailed above, I have also determined there would be a similar risk of misuse of funding in reinstating flexibility to core funding categories at this time.

1. In considering what the Applicant requests, the starting point is the Tribunal's 2023 decision. I accept the Agency's submission that the Tribunal's reasons in that decision demonstrate that Mr A, at the relevant time, 'lacked the ability to manage the Applicant's plan finances in an appropriate manner, and further seriously impugned his willingness to do so,' as an accurate summation of the Tribunal's 2023 decision.
2. That decision was made at a particular time, and on the evidence before that Tribunal. Mr A has noted that the events dealt with in the 2023 decision occurred some years ago. As such, it is necessary that I consider the evidence before me in the current proceeding, in terms of evaluating issues of risk and the parties' respective contentions as to the form of management that should now apply to BHXJ's plan, moving forward. For these reasons, I have given close consideration to whether there is evidence before me that would ameliorate or otherwise address the very serious concerns and risks that were found to exist in 2023 regarding Mr A's approach to BHXJ's funding.
3. I have set out above the evidence Mr A gave when taken by Counsel for the Agency to the Tribunal's findings in BHXJ and NDIA. Additionally, during his evidence I took Mr A to those findings and his evidence, and the submissions made by the Agency (which I have set out above), regarding risk and why I should not now depart from those findings on those considerations. I explained that the Agency was contending that there was no evidentiary basis for me to depart from those earlier findings, and also that those findings, together with the evidence in the current proceeding, reflected a continuing lack of insight or willingness on his part, as to the proper purpose of BHXJ's NDIS funding.[66]
4. In doing so, I advised Mr A that I understood his evidence, and the Applicant's position on these matters, to be as follows:
   • that while it was accepted that the Tribunal had made these findings in the 2023 decision, which were adverse to him, he disagreed with the factual basis for those findings; and
   • the focus of the Tribunal in the current proceeding should be on BHXJ's capacity to manage her funding, rather than on his past or present conduct.
5. I invited Mr A to address these matters further, if he wished.
6. Mr A rejected the Agency's submission regarding his insight or capacity to assist in ensuring BHXJ's NDIS funding was used for appropriate purposes. He initially interpreted this as an attack on his intelligence (which it was not) but also asserted that it was the Agency's responsibility to help people obtain that insight, which the Agency had not done. Further, he again contended that the focus should be on BHXJ's capacity; that he believed that he had operated at all times within the Agency's procedures, and that the events dealt with in the 2023 decision occurred several years ago. He also again submitted that the numerous police welfare checks undertaken apparently at the request of the Agency produced nothing to call into question BHXJ's capacity or that she was subject to undue influence from Mr A.
7. When I suggested to Mr A that the purpose of any welfare checks undertaken by police might be limited in scope and quite different in nature to what the Agency needed to consider in making decisions about a participant's plan management or nominee appointment, Mr A responded that the Agency had instigated the checks; 'the NDIS organised all those checks and they would have known what they were asking for and what they were specifically trying to establish.' He also stated that the police did not take any action and 'the NDIS just likes to ignore that stuff.'
8. Further, and notwithstanding the questions asked of Mr A during his cross examination, toward the end of the hearing I also directly took Mr A to the various sections of the Agency's SFIC, as set out above regarding the correspondence from former support coordinators and about MTA and other requested items. I did so to ensure that he understood the nature of the concerns raised in the materials cited by the Agency, and the submissions it was making, and to provide him with the further opportunity to directly respond to those materials and the concerns and assertions raised therein, and to make any further submissions about those materials.
9. Mr A's response was to generally question the credibility of the Specialist Support Coordinator and her statements noted above. He explained the materials relating to the request for MTA supports on the basis that there was no intent to defraud the Agency, and that such requests were not pursued after receiving the Agency's advice about its position. He further submitted that the Support Coordinator from MS Queensland had no authority to decide what supports were fair and reasonable, and rejected any imputation that there had been any demand for payment for those items, or the items claimed as 'assistive technology', or that 'there was a deliberate attempt to get stuff we weren't entitled to.' Mr A also noted that some of the moving expenses claimed for had in fact been paid by the Agency.
10. When taken to the Agency's concluding submission, as set out above, Mr A again contended that the Agency had a problem with him, but that should be put aside because of BHXJ's ability to act in her own interests and on her own behalf; '[i]f she's self-managed, I have no involvement in it anyway, I can't even have nomineeship'. He asserted that the Agency had made no attempt to speak with BHXJ, thereby removing her 'choice and control', and were more concerned about 'assassinating' him. He also again submitted that his previous actions should not be used against him, and that three years had elapsed (since the 2023 decision), during which time the Agency had not acted with any urgency. Again, he relied on the outcomes of the police welfare checks that he claimed the Agency initiated as evidence that he posed no risk to BHXJ.
11. Having considered the evidence and the parties' submissions, I accept the Agency's submission that there is no proper evidentiary basis which would cause me to now reach a materially different conclusion to that reached in the 2023 decision, regarding Mr A's inability and/or unwillingness to manage BHXJ's plan finances in an appropriate manner
12. I also accept the Agency's submission that the available evidence supports a finding that Mr A continues to demonstrate a lack or insight on willingness to accept the proper purpose of BHXJ's plan funding (being to provide the reasonable and necessary supports to BHXJ, for her disability related needs). I make that finding.
13. My reasons for arriving at these conclusions are as follows.
14. First, notwithstanding the very serious nature of the Tribunal's findings in the 2023 decision, Mr A in his evidence, as set out above, demonstrated a lack of willingness to accept the gravamen of that decision. He accepted that the Tribunal had made the findings that were adverse to him (he could not really do otherwise) but maintained his disagreement with the factual basis of those findings. Further, his general contention was that he had sought to comply with Agency procedures and that any shortcomings in his conduct were attributable, in essence, to lack of support or assistance from the Agency.
15. Further, Mr A repeatedly suggested that the focus should not be on his conduct, but rather, on that of the Agency, to which he attributes many and repeated administrative failures and shortcomings. There is perhaps some basis to some of the concerns expressed by Mr A; for example, the evidence regarding the mistaken advice provided to BHXJ at one point about her plan returning to self-management. I am also at somewhat of a loss to understand why, given the serious concerns aired in the Tribunal's 2023 decision, delivered in February 2023, the Agency did not act until June 2024 to cancel Mr A's nominee appointment. As conceded, that cancellation, when it did occur, was then made on a wrongful basis.
16. Notwithstanding that on an administrative level the Agency's actions from time to time may have fallen short of the optimal standards it aspires to, it is no answer for Mr A and the Applicant to assert, as was done continually at the hearing, that the answer to issues regarding Mr A's conduct and risk mitigation should lie in some comparative exercise of the Tribunal focusing on and evaluating the Agency's shortcomings.
17. To my mind, contentions such as the above do not reflect any sense of a developed recognition of the serious issues and concerns leading to the Tribunal's reasons and findings in its 2023 decision, such as might support Mr A in putting in place now an approach to support the management of BHXJ's funding in the way the NDIS Act intends, so as to mitigate the risks found in 2023. In short, Mr A's demonstrated reticence in acknowledging and responding to the serious concerns arising from the Tribunal's 2023 decision provides me with no confidence that his approach would now, notwithstanding the passage of time, be significantly different so as to address the serious risks identified in 2023.
18. Secondly, the evidence put forward in the current review additionally does not reflect any such willingness by Mr A to embrace those concerns and risks in a way that has led to any demonstrable change in his approach. There are two bases to this view. The first is that, as noted above, at no time was evidence put before me in the current proceeding by the Applicant that was in the nature of acknowledging the risks that were found to exist in 2023 and to explain any steps taken to address and mitigate those risks in the intervening years. Rather, as explained, the approach taken by Mr A was to essentially reject the basis for the findings in the 2023 decision and deflect to the Agency's conduct and perceived responsibilities in this context, rather than addressing his own.
19. The second basis is that, as I have found, the specific evidence in this review supports a finding that Mr A continues to demonstrate a lack of insight or willingness to accept the proper purpose of BHXJ's plan funding. I have set out above the evidence provided by the Agency as to concerns raised by two former support coordinators as to Mr A's conduct and approach to BHXJ's funding, as well as that provided by Agency officers and the Agency's legal representatives relating to expenses claimed by Mr A.
20. I have also set out Mr A's responses to these concerns. I found them unconvincing, in terms of persuading me that unreasonable risk would not arise for the Applicant should the funding management request be agreed to.
21. It is clear from the evidence that the relationships between Mr A and the Applicant, and the two former support coordinators who corresponded with the Agency, were difficult. Mr A's explanation that expenses were not pursued after being rejected does not reflect that his understanding of the proper purposes of BHXJ's plan funding has advanced in any appreciable way in the time that has elapsed since the 2023 decision. Rather, I find that this evidence supports the view advanced by the Agency that Mr A continues to see BHXJ's NDIS funding as 'a pool of funding accessible to him as he sees fit.'
22. Further, I note the evidence that I have set out previously regarding BHXJ's current SoPS and expenditure to July 2025, which shows significant under-utilisation of important core and capacity building supports.
23. In short, the evidence and the proceedings at the hearing demonstrate to me that little has changed since the 2023 decision, such as would now warrant my arrival at different conclusions.
24. Thirdly, I reject Mr A's contention that in determining this aspect of the review the focus should be on BHXJ's capacity, and not his conduct. I accept that the participant's plan management request is a relevant factor, but this is subject, as per sections 43(3) and (4) and sections 44(1) and (2) of the NDIS Act, and the Management of Funding Rules, to consideration of whether there is unreasonable risk to the participant. I also accept that in considering such risk, the participant's ability or capacity to make decisions or to appropriately manage finances is a relevant factor (Management of Funding Rules, 6(2)(e)).
25. Mr A repeatedly asserted that BHXJ was able to manage her own affairs and funding, without input or influence from him. There is in my view insufficient evidence to support such a finding, for the purposes of determining the funding management issue.
26. In this regard, as noted, I did not hear evidence directly from BHXJ such as might inform my view of her capacity. I find that it is also somewhat incongruous for Mr A to make this assertion, in circumstances where it was also submitted that BHXJ's health was seriously deteriorating due to her recent cancer diagnosis, to such an extent that she could not attend or otherwise participate in the hearing. While accepting that capacity is not always a fixed state, it remains that there must be a question mark over BHXJ's current and future capacity, in this context.
27. Most persuasively, all of the material before me reflects that Mr A is relied on to a very significant extent by BHXJ for both her day-to-day care and support (Mr A being her primary informal support) and for engagement with the Agency. The Hearing Bundle material reflects that the overwhelming majority of interactions with the Agency in the years since the 2023 decision have involved Mr A. Notwithstanding Mr A's appointment as nominee, prior to the purported cancellation of that appointment, the material reflects very limited active engagement by BHXJ, such as would demonstrate the level of capacity and independence claimed by Mr A.
28. In my view, it is simply illogical to assert that in such a context Mr A would have no engagement with or influence over BHXJ in the future management of her funding. There is nothing in the evidence to support such a finding. The evidence does not establish that BHXJ has taken a leading or even an active role in managing her engagement with the Agency and her NDIS funding.
29. Mr A's reliance upon the apparent outcomes of police welfare checks undertaken on BHXJ does not support his contention regarding BHXJ's capacity to manage her plan funding. The only evidence before me as to these episodes was that provided by Mr A. As I noted with him, and irrespective of whether the Agency may have initiated those checks, they do not provide cogent evidence informing the considerations I need to make regarding the management of BHXJ's funding.
30. Turning to the NDIS Act and the Management of Funding Rules and the consideration of risk to the participant, I accept the Agency's submission that the 'very real risk' identified by the Tribunal in BHXJ and NDIA,[67] remains in the event that BHXJ's plan was self-managed or plan managed.
31. Regarding self-management of funding, for the reasons set out above I find that the risks to BHXJ arising from self-management include, as was found previously in the 2023 decision, that her funding may be used inappropriately, and inconsistently with the intended purposes of that funding, being for the provision of her reasonable and necessary supports. I accept the Agency's contention that such outcomes would be of material detriment to BHXJ and represent unreasonable risk to her.
32. I am further satisfied that this identified risk cannot be mitigated in the ways contemplated by the Management of Funding Rules, such as the employment of particular supports, safeguards or strategies in her SoPS, nor through any informal, community or mainstream supports that BHXJ has in place.
33. Turning to funding management by a registered plan provider, I find similarly that such a management style would present an unreasonable risk to BHXJ, in that her funding may be used inappropriately, and inconsistently with the intended purposes of that funding, being for the provision of her reasonable and necessary supports. Thios would be of material detriment to her.
34. In addition to the reasons set out above, I note the concerns raised in the abovementioned correspondence from two former and recent support coordinators of the Applicant, regarding the lack of engagement directly with BHXJ, and Mr A's conduct in claiming certain expenses outside BHXJ's plan. The evidence about these relationships, and the lack of any satisfactory evidence from Mr A to address the concerns raised by them, points against the likely effectiveness of a plan management provider being able to mitigate these risks effectively.
35. Further, as the Agency has noted, Mr A has not provided confirmation as to who BHXJ's nominated provider would be, should her funding be plan managed.[68]
36. Accordingly, I am not satisfied that a nominated provider for plan management of BHXJ's funding would be able to effectively mitigate the risks arising for BHXJ.
37. It follows that I will affirm the Agency's decision under review regarding Agency management of BHXJ's plan.
38. The above findings and reasons also illustrate why, in my view, the correct decision regarding the nominee decision is to remit the matter to the Agency with a specific recommendation that Mr A's appointment as the Applicant's nominee be reconsidered pursuant to section 91 of the Act.
39. The Applicant's request regarding plan management also included requests for supports to be flexible, rather than stated. For the above reasons, I am not satisfied that this request should be actioned. To do so would, in my view, invite further risk that her supports will not be utilised as intended by her plan.
40. Finally, it was requested that a plan duration of 24 months be implemented. This request was not advanced in detail during the hearing, and I am not persuaded that it should be actioned. The Agency noted, relevantly in my view, the circumstances of the Applicant's health declining and her support needs increasing. That alone is a sufficient basis in my view not to change the plan duration at this time, irrespective of the concerns that continue to exist regarding unreasonable risk to the Applicant.

1. The requested supports can be dealt with in relatively short compass. I will deal with each requested support in turn below. Before doing so, I would note that the evidence as to the Applicant's recent circumstances as at the time of the hearing, and particularly that regarding her future support and accommodation needs, reflected a state of existing and likely future change, with BHXJ and Mr A living in temporary accommodation, having recently relocated interstate, which impacted upon connections with existing supports, including past treatment providers.
2. Additionally, there is the evidence provided by Mr A as to BHXJ's declining health and her consequential changing treatment and support needs.
3. All of this context underlines the challenge in determining the requested supports at this time. As BHXJ's circumstances settle, it may be necessary to reassess her support needs and develop a different SoPS. The upcoming review May 2026 date of her plan provides such an opportunity.

Increase in support for household and cleaning activities

1. BHXJ presently receives funding for two hours of support per fortnight. A doubling (that is, to weekly support) is requested.
2. The Agency does not dispute that support worker assistance with household cleaning and other household tasks is reasonable and necessary, but contends that the Tribunal cannot be satisfied that what is requested is reasonable and necessary:[69]

87. While the Applicant has previously been funded for that amount, there is no available contemporaneous evidence which addresses the need for this support. The Applicant's present address/home environment is currently unknown and there is no contemporaneous evidence which assesses the need for household supports in that environment. In the absence of recent evidence about the Applicant's functional capacity and home environment (including her functional capacity in that home environment), the true supports needs for the Applicant are unknown.

88. The Agency has undertaken reasonable efforts to obtain relevant and current evidence as to the Applicant's present functional capacity by way of organising an independent functional capacity assessment, which was not able to proceed. There is otherwise no evidence before the Tribunal addressing this support in any detail.

1. I accept this submission. While BHXJ's former occupational therapist (Ms Wu) opined in 2024 that up to two hours per week of such support may be required, there is a lack of current evidence as to what support is required, above and beyond what Mr A provides as BHXJ's primary informal support and also a co-resident living in the same house. It may be that with BHXJ's recent diagnosis her needs have changed, but there is no evidence before me as to such changes and how that impacts in support needs.
2. Additionally, the transitory nature of BHXJ's current residence is noted.
3. For these reasons, I find that there is insufficient evidence to enable me to conclude that the requested support meets the criteria in section 34(1). Those criteria are cumulative, and on the evidence, I am not satisfied that the requested support would constitute value for money (section 34(1)(c)), or that it is reasonable and necessary taking into account what it is reasonable to expect Mr A to provide, as BHXJ's informal carer, and co-resident (section 34(1)(e).

Increase in support - 5 hours clinical nurse consultant

1. As noted above, as Mr A's evidence about this support unfolded, the Agency provided clarification that it relates not to attendances upon BHXJ by a nurse, but to a fixed assessment for a clinical nurse consultant to complete functional capacity and continence assessments and to assess and provide strategies and assistive technology recommendations to increase BHXJ's independence in activities of daily living.
2. It would appear that this assessment has not been undertaken to date. In any event, there is no evidence before me to support a finding that there should be an increase in this support. As such, I find that the requested increase in this support is not reasonable and necessary.

1. During the hearing, Mr A expressly advised that he, on behalf of BHXJ, sought no such increase. I am content to regard this request as withdrawn, on that basis.
2. One issue did remain, regarding the undertaking of an SDA assessment by a suitable provider. I will deal with this below.

1. As addressed above, this support was resolved during the hearing.

1. As noted, it was accepted during the hearing that BHXJ's living arrangements were in a state of flux. This has significant implications for the accommodation supports requested. Additionally, it is fair to describe Mr A's position on these supports as largely pre-emptive in nature, in terms of his stated desire to have supports in place for the future, when the circumstances of BHXJ and himself are more settled.
2. The three accommodation supports in issue here, being SDA, MTA and STA, are all NDIS supports listed in clause 1 of Schedule 1 of the Transitional Rules, being respectively addressed by Items 29, 1 and 5 in that Schedule.
3. Otherwise, the NDIS does not generally provide for most housing related costs. For example, rent and mortgage repayments are included in Schedule 2, Item 1, as day-to-day living costs - accommodation and household, which are generally not NDIS supports. Similarly, Item 19 in that Schedule includes, among other things, housing for people with disability, other than participants eligible for SDA. Crisis housing costs are also excluded.

1. SDA is explained in the abovementioned Schedule 1, Item 29, as follows:

The provision of specialist disability accommodation which is accommodation for a participant who requires specialist housing solutions, including to assist with the delivery of supports that cater for the person's extreme functional impairment or very high support needs.

1. The previous treating allied health professionals of BHXJ, Ms Wu (occupational therapist) and Mr Ryder (physiotherapist), both opined that BHXJ would benefit from, or should participate in, a occupational therapy/functional assessment regarding SDA eligibility.
2. As the Agency noted, there is provision in BHXJ's current plan for support coordination. Counsel for the Agency clarified at the hearing that this support could be used for such a purpose, and also explained, particularly for Mr A's understanding, the level or speciality of the provider who would be recognised by the Agency to have the required experience and expertise to undertake an SDA assessment. This established that the provider does not necessarily need to be at a Level 3, in terms of the support coordination request mentioned previously.
3. There is insufficient evidence before me to establish that SDA support is reasonable and necessary for the Applicant. This can readily be demonstrated by reference to the SDA Rules, which prescribe, among other things, that to be eligible for SDA the participant must meet the SDA needs requirement, as per section 14 of those Rules:

14 When a participant meets the SDA needs requirement

(1) A participant meets the SDA needs requirement if, when compared to other supports alone, combined specialist disability accommodation and other supports would:

(a) better assist the participant to pursue the goals, objectives and aspirations set out in the participant's statement of goals and aspirations; and

(b) be more effective and beneficial, where possible, in:

(i) mitigating or alleviating the impact of the participant's impairment upon the participant's functional capacity; and

(ii) preventing the deterioration of the participant's functional capacity; and

(iii) improving the participant's functional capacity; and

(iv) maintaining or promoting the participant's ability to building capacity, including in the medium or long term; and

(v) maintaining or promoting the participant's opportunities to develop skills; and

(c) if the participant has very high supports needs - be more effective and beneficial, where possible, in:

(i) reducing the participant's future needs for supports which might be required due to inappropriate accommodation; and

(ii) assisting the participant to pursue goals related to life opportunities and life transitions; and

(d) if the participant has an extreme functional impairment - be more effective in providing the participant with stability and continuity of support; and

(2) For the purposes of paragraph (1)(e), regard must be had to the following matters if the participant has very high support needs:

(a) whether combined specialist accommodation support and other supports would be likely to substantially improve the life stage outcomes for, and be of long-term benefit to, the participant;

(b) the cost of providing the participant with supports needed to live in accommodation other than specialist disability accommodation, taking into account:

(i) whether those supports may be shared with other participants; and

(ii) limitations of the participant's informal support network.

1. Even assuming for the purposes of this exercise that that there was evidence to establish that BHXJ meets the requirements in the preceding rules, namely having either extreme functional impairment or very high support needs (and to be clear, there is insufficient evidence of this), the evidence before me does not permit the exercise required by Rule 14 to determine if BHXJ meets the SDA needs requirement, which, among other things, requires a comparative exercise to be undertaken as to outcomes for a participant from two hypothetical support arrangements, being other supports alone, and the combination of SDA and other supports.
2. In circumstances where BHXJ's current accommodation is temporary, and her needs are changing, at an appropriate time a comprehensive occupational therapy assessment should be undertaken to inform consideration of whether SDA is required and/or whether other possible supports, such as home modifications (as suggested by Counsel for the Agency) may address her needs.
3. I find that at this time there is insufficient evidence to establish that BHXJ is eligible for the requested support of SDA and as such I am not satisfied that it is a reasonable and necessary support for BHXJ.

1. The Agency submitted in its Updated SFIC that the reasons for why the Applicant sought MTA were unclear, and that neither Ms Wu nor Mr Ryder made a recommendation for it, nor was there otherwise any such recommendation in the evidence.[70]
2. What emerged from the evidence at the hearing was that Mr A had sought this form of support in effect as a housing solution, during periods when he and BHXJ were moving between residences and having to meet rental and other housing expenses. As such, what is sought appears to fall within the scope of supports that are not NDIS supports, as outlined above.
3. There is no evidence that the circumstances envisioned by the Agency's MTA operational guidelines exist. In making the decision under review regarding this support, the CEO's delegate advised the Applicant:

With reference to 'Our Guidelines - Medium Term Accommodation', this support is considered when a participant can't move into their long-term home because disability supports aren't ready or when major home modifications are being completed. This support is often part of a Home and Living decision. Medium term accommodation can also be considered to help a participant be discharged from a hospital sooner while finding a long-term home; however, this is in the context of being found eligible for Specialised Disability Accommodation, Support Independent Living, Individualised Living Options or home modifications. BHXJ has not been approved for any of these supports in her current plan and there has not been any updated evidence provided regarding BHXJ's functional status to determine if such supports would be needed to meet her current disability related needs, with the most recent Functional Capacity Assessment being completed in 2021.

Without the provision of updated evidence or approval of the aforementioned supports, I am unable to determine that Medium Term Accommodation would be effective, beneficial or value for the money for the NDIS to fund. It would be advantageous to work with NDIS health liaison officers, hospital discharge team and your allied health professionals to help us better understand BHXJ's current support needs and long-term accommodation requirements so that the necessary supports can be considered by NDIS planners.[71]

1. I agree with those views. There is insufficient evidence to establish eligibility under the above guideline, or that the value for money (section 34(1)(c)), or the 'effective and beneficial' (section 34(1)(d)) criteria are met for this requested support, and as such I am not satisfied that it is a reasonable and necessary support for BHXJ.

1. The Applicant's request for this support appears similarly misconceived. Mr A explained at the hearing that what was sought was in the nature of a 'back-up measure,' that could, for instance, be used as a place of 'respite', following upon BHXJ's discharge, should she be hospitalised at some future time. Again, from Mr A's evidence it appears that this potential support is viewed as a short-term housing solution, at some point in the future, at the expense of the NDIS.
2. This is not the purpose of the STA support. What is sought is more akin to the purpose of MTA, should the requisite circumstances for eligibility for that support be established.
3. The Agency outlined that:[72]

STA is an integrated support for self-care, accommodation, food and activities. It covers the cost of a participant's care in another place for up to 14 days at a time. STA funding can be used for respite to support the participant and their carers. It gives carers a short break from their caring role.[73] It is an NDIS Support as it falls within item 5 in clause 1 of Schedule 1 of the Transitional Rules.

1. I accept that potentially STA, in its intended form as outlined above, may be a suitable support for consideration of inclusion in a future SoPS for BHXJ, given the evidence as to Mr A's role as her only and primary provider of informal support. Ms Wu also noted the possible application of STA, particularly in the context or providing a 'reprieve' for Mr A, given his caring responsibilities.[74] However, as explained, this is not what Mr A, on behalf of the Applicant, seeks at this time.
2. As noted, BHXJ's current living arrangements are temporary. Her recent relocation and emerging health issues have both impacted upon her receipt of supports. At this time there is insufficient evidence before me to support a finding that STA is a reasonable and necessary support for BHXJ at this time.

Support in the form of compensation for the Agency's 'administrative failures'

1. As noted, Mr A acknowledged during the hearing, rightly,[75] that what he requested was beyond the power of the Tribunal.

1. My decision is as follows:
   1. The decision of the Agency dated 25 July 2024 to cancel the appointment of Mr A as the Applicant's plan and correspondence nominee is set aside, and that matter is remitted to the Agency for reconsideration with a recommendation that Mr A's appointment be reconsidered pursuant to section 91 of the National Disability Insurance Scheme Act 2013.
   2. The decision of the Agency dated 25 July 2024 regarding the approval of the Applicant's Statement of Participant Supports (SoPS) is varied, in that maintenance for assistive technology items (power wheelchair, manual wheelchair and walking frame) is a reasonable and necessary support and should be included in the Applicant's SoPS; the other aspects of that decision are affirmed, save for the matter in (1) above.

[1] As advised by Counsel for the Agency, closing submissions, 24 September 2025.

[2] Exhibit 1, Hearing Bundle (Hearing Bundle), Amended T-Documents, Document T12, Letter from the NDIA to BHXJ re cancellation of nominee', 6 June 2024, pages 89-92.

[3] Exhibit 2, Bundle of NDIS Plans of the Applicant, NDIS plan dated 7 June 2024, pages 127-147.

[4] Hearing Bundle, Document T13, NDIA Interaction record, section 100 request, page 93.

[5] Hearing Bundle, Document T2, Internal Review Decision, 25 July 2024, pages 14-26.

[6] Hearing Bundle, Document T1, Application for Review, 7 August 2024, pages 4-13.

[7] See Part 4, Division 4 of the Administrative Review Tribunal Act 2024 (Cth).

[8] Written submissions of the Agency in response to the Applicant's objections to inspection of summons material, 15 August 2025, at [4.3], citing Dorajay Pty Ltd v Aristocrat Leisure Ltd [2005] FCA 588 at [17].

[9] Ibid, at [4.4], citing Telstra Corporation Ltd v Minister for Communications, Information Technology and the Arts [2007] FCA 1398, at [47].

[11] Documents provided to or received in evidence by the Tribunal are subject to implied undertakings as to their use, see paragraphs 6.21 - 6.27 of the Administrative Review Tribunal (Common Procedures) Practice Direction 2024 (this version of the Common Procedures Practice Direction was in effect at the time of the directions and final hearings; it has since been replaced by a 2026 version).

[12] Hearing Bundle, Document 3.2.1, Correspondence between the Agency and Applicant's Representative regarding Occupational Therapy assessment, various dates, pages 574-580.

[13] Exhibit 1 Hearing Bundle, Document 3.3, Respondent's Updated Statement of Facts, Issues and Contentions, 8 September 2025, pages 727-751, (the Agency's Updated SFIC), at [9]-[11].

[14] This section and some others in this decision dealing with the applicable law have been adapted from previous decisions of the Member.

[15] Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, at [78].

[16] Shi v Migration Agents' Registration Authority [2008] HCA 31; (2008) 235 CLR 286, 324-325, 327 (Kiefel J).

[17] Administrative Review Tribunal Act 2024 (Cth), s 54.

[18] Shi (note 17) 300-301 (Kirby J); 314-315 (Hayne and Heydon JJ); 327-328 (Kiefel J).

[19] Beezley v Repatriation Commission [2015] FCAFC 165 [68], as applied in Sutherland v National Disability Insurance Agency [2024] AATA 411 [53].

[20] National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 (Cth), s 2.

[21] Item 132 of Schedule 1 of National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024.

[22] National Disability Insurance Agency v WRMF [2020] FCAFC 79 (WRMF), at [141].

[23] 'General support' is defined in section 13(2) of the NDIS Act.

[25] McGarrigle v National Disability Insurance Agency [2017] FCA 308 (McGarrigle), at [91]-[93].

[27] This section is also repeated in Part 1 of the Support Rules.

[29] Which in turn reflect some of the requirements under section 34(1) of the Act.

[30] See Ways to manage your funding | NDIS

[31] There are additional provisions (Rule 6(5)), dealing with the situation of and child representatives.

[33] See https://www.ndis.gov.au/about-us/operational-guidelines

[34] G v Minister for Home Affairs [2019] FCAFC 79, [18].

[35] Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634, 645 (President Brennan J).

[36] Exhibit 2, Document 10, Applicants NDIS Plan dated 29 November 2024 (Applicant's current plan), pages 148-166.

[37] Exhibit 2, Document 11, Letter form the NDIA to the Applicant re continuation of NDIS Plan, dated 28 May 2025, pages 167-171.

[40] Closing submissions of Counsel for the Agency, 24 September 2025.

[41] Counsel for the Agency confirmed at the hearing on 24 September 2025, that in February 2025 the Agency, by mistake, sent BHXJ a letter advising that her plan was to be self-managed.

[42] Hearing Bundle, Agency record of Contact, 12 July 2024, page 132.

[43] Hearing Bundle, Document 2.2, Report of Mr Ryder (Physiotherapist), 19 September 2024, pages 328-339, at pages 333 and 337.

[44] Hearing Bundle, Document 2.3, Report by Ms Wu (Occupational Therapist), dated 10 October 2024, pages 340-353, at page 348.

[45] See BHXJ's current plan (Exhibit 2, at page 152).

[47] Hearing Bundle, Document T12, Letter from the Agency to BHXJ (cancelling nominee appointment), 6 June 2024, pages 89-92.

[49] Hearing Bundle, Document T2, Internal Review outcome letter from the NDIA to BHXJ, 25 July 2024, pages 14-26 (internal review outcome letter). It is noted that this letter was addressed to BHXJ but commenced with the salutation 'Dear Mr A', which accounts for the phrasing in the above excerpt.

[50] Agency's Updated SFIC, at [48]-[51].

[51] BHXJ and NDIA, at [18]-[23].

[53] Evidence of Mr A, 23 September 2025.

[54] Re Ganchov and Commission for Safety, Rehabilitation and Compensation of Commonwealth Employees [1990] AATA 419, at [41].

[55] Ibid, and also see, for example, Re Scott and Commissioner for Superannuation (1986) 9 ALD 491 at 499.

[56] Agency's Updated SFIC, at [52]-[54].

[58] Agency's Updated SFIC, at [59]-[63].

[59] Hearing Bundle, Document 3.2.6, Email from Specialist Support Coordinator to the Agency, 21 February 2026, pages 722-725.

[60] Hearing Bundle, Document 3.2.3, Agency correspondence regarding MTA funding requests, pages 602-608, at 602-603.

[61] This is the Agency's Internal Review Decision Outcome letter.

[62] Hearing Bundle, Document 3.2.2, Correspondence from MS Queensland Support Coordinator, pages 581-601.

[64] Agency's Updated SFIC, at [77]-[81].

[65] These are references to the Agency's Updated SFIC.

[71] Internal Review Decision, at pages 23-24.

[72] Agency's Updated SFIC, at [107].

[73] Ibid, citing the Agency's operational guideline - Short Term Accommodation or Respite

[74] Hearing Bundle, Document 2.3, Report of Ms Wu, at page 349.

[75] See NDIS Act, sections 99, 100 and 103, as to decisions reviewable by the Tribunal.