3. The Agency submits that a plan duration of 12 months is appropriate and consistent with the Operational Guideline, which indicates that a participant's plan will 'generally' go for one year if the participant has a positive behaviour support plan with restrictive practices. The respondent emphasises that the requirement to review the behaviour support plan at least every 12 months is a significant factor, and that a 12-month plan duration allows the Agency to reassess the participant's supports following review of that plan and other progress reports and clinical evidence. The respondent also references the decision in LPXH and National Disability Insurance Agency (NDIS) [2025] ARTA 194, in which the Tribunal affirmed a 12-month plan duration for a participant who sought a five-year plan.
4. Mr Lettenmaier submitted that the plan itself, on page nine, contemplates the behaviour support practitioner providing a report six weeks before the next reassessment, which is designed to operate within a 12-month reassessment cycle. He submitted that the certainty argument carries limited weight because plan duration does not lock in supports, and that the financial sustainability of the scheme is a relevant objective. He relied on the principles established in Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, and submitted, correctly in my view, that if the Tribunal were to depart from the policy, it should make specific findings about why a departure from policy was warranted, as those findings would inform how far to depart.

1. I accept the applicant's submission that the NDIS Act does not prescribe a maximum plan duration. I also accept that the Operational Guideline employs the word 'generally', which is permissive and not prescriptive.
2. The status of government policy in administrative decision making is fairly well established. For present purposes, it suffices to observe that a Tribunal, standing in the shoes of the original decision-maker, is not bound to apply such a policy as if it were law, but is ordinarily required to give it proper consideration and to apply it unless there are cogent reasons to depart from it in the circumstances of the particular case.[2] No party suggested that any of the policy documents were unlawful in any relevant sense.
3. Applying the principles established in Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, guidelines are a relevant consideration for, but do not bind, the Tribunal. The question I must address is what plan duration is appropriate in the applicant's circumstances, having regard to all relevant matters and the principles set out in s 31 of the NDIS Act.
4. I accept the applicant's submission that the requirement to review the positive behaviour support plan at least every 12 months under rules 21 and 22 of the Restrictive Practices Rules is an obligation that exists independently of plan duration and will occur independent of plan duration. That is, the behaviour support plan must be reviewed at least every 12 months whether the plan duration is 12 months or 36 months. I do not accept that the behaviour support plan review requirement, is in itself, a persuasive reason for a 12-month plan duration.
5. However, as Mr Lettenmaier quite properly submitted, the Operational Guideline on plan duration and the Restrictive Practices Rules are part of the context within with the relevant policy exists and they should all be approached in a harmonious way.
6. I accept that the plan itself contemplates that the behaviour support practitioner will provide a report six weeks before the next reassessment. I accept that the policy and the Restrictive Practices Rules work together and should be approached on the basis that they each have work to do. While the behaviour support plan review requirement does not of itself require a 12-month plan, the alignment between that review and plan reassessment is a logical feature of the scheme that I consider has merit. The arrangement ensures that comprehensive information about the effectiveness of restrictive practice management is available at the point of plan reassessment, allowing the Agency to make an informed decision about the supports to be funded in the next plan period.
7. Additionally, plan reassessment under div 4 of the NDIS Act serves a broader purpose than merely aligning with behaviour support plan review. A formal reassessment involves a comprehensive reconsideration of all supports in the plan, their quantum and configuration, in light of all available material. That material includes, but is not limited to, the 'outcomes of behaviour support plan review, clinical progress reports, any observations from service providers, and any changes in the participant's circumstances or goals. A reassessment may result in additional funding, reduced funding, or no change to funding. The value of a reassessment at 12 months is that there is a structured opportunity to ensure the plan continues to meet the participant's needs in the context of evolving circumstances.
8. Moreover, under s 50 of the NDIS Act, the CEO may request information for the purposes of varying or reassessing a participant's plan. Under s 36, the CEO may request information and reports when making a decision about the supports to be included in a plan. These statutory powers are available in the context of a reassessment. While the CEO is not deprived of all power outside of a reassessment, a regular reassessment date ensures the exercise of those powers in a structured and predictable way. I am satisfied this contributes to the integrity and responsiveness of the scheme as a whole.
9. In the applicant's case, there are further, persuasive, reasons why the applicant's circumstances are not yet settled and a 12-month reassessment is appropriate.
10. The applicant has active restrictive practices, including locked exit doors, locked pantry, and chemical restraints (Risperidone routine, Escitalopram routine, and Lorazepam as needed). I am satisfied that the protective function of regular reassessments is heightened where restrictive practices are in place. I am satisfied that this is a sound reason why a reassessment should occur in line with the policy.
11. The Community Outcome Report and the positive behaviour support plan dated 17 October 2025 prepared by Ms Larkin of Melior PBS indicate that the applicant's support needs are proactively being managed and may evolve as behavioural strategies take effect. These are dynamic circumstances that may require review at 12 months. That is particularly where, the supports now included in the plan are, in significant respects, new and the applicant's plan is now, both parties agree, appropriately funded. The 2:1 social, economic and community participation supports have not previously been funded.
12. I am further satisfied that there are changing circumstances, including the implementation of a new protocol for collection of sleep data. The information gathered during the initial 12 months of the plan will materially inform the assessment of whether plan duration should be extended at the next reassessment.
13. Insofar as the applicant submits that check-ins provide adequate oversight and substitute for a 12-month reassessment, I do not accept that submission. A check-in, as described in the NDIS Factsheet on 'Check-ins', is a conversation between the participant and their NDIS contact, usually occurring every 12 months if the participant's situation is stable. It is a monitoring tool designed to ensure the plan is working and supports are being utilised appropriately. Conversely, a formal reassessment under div 4 is a fundamentally different process. It involves a reconsideration of the participant's supports under ss 33 and 34 of the NDIS Act, informed by relevant assessments and the principles set out in s 31 of the NDIS Act.
14. In the applicant's circumstances, characterised by high-cost supports totalling $911,342.88 and active restrictive practices, and the very real possibility of the appropriate level of overnight support changing, I am satisfied that a reassessment is warranted at the 12-month mark, not merely a check-in. While check-ins may provide useful ongoing oversight and communication, they are not an adequate substitute for the structured reconsideration that a formal reassessment entails.
15. The applicant contends that she has experienced a protracted period of inadequate funding, causing significant distress and uncertainty for herself, her family, and her service providers. I acknowledge that concern. I do not, however, make any finding about whether 'underfunding' occurred in the past. I consider such a finding to be neither necessary or appropriate in the circumstances. It is not the task of the Tribunal in these proceedings to inquire into what was, or was not, included, or should, or should not, have been included in the applicant's SoPS in the past. The Tribunal's task is to stand in the shoes of the Agency and make the correct or preferrable decision at the time of the decision.
16. What is material is that the parties have now reached agreement on the reasonable and necessary supports to be included in the applicant's plan, and the plan approved on 10 April 2026 reflects that agreement. I am satisfied that the concern about funding instability is substantially addressed by the adequacy of the current supports. I do not accept that a 12-month reassessment date is inappropriate in these circumstances.
17. I accept Ms Silvestri's evidence that managing Ms Murdoch's NDIS plan on top of full-time employment is demanding and burdensome. I accept that preparing for a reassessment will involve specific tasks, namely contacting approximately five treating practitioners, corresponding about reports, reviewing draft reports, seeking clarification, and attending appointments outside of work hours. I accept that these are additional demands on a person who is already carrying a significant load both in relation to her own life and managing the life of Ms Murdoch.
18. However, I note that in cross-examination, Ms Silvestri accepted that the tasks specifically related to reassessment preparation are a smaller proportion of her overall workload than the day-to-day management and implementation of the plan. I also accept that the plan now includes 80 hours of specialist support coordination, which is available to reduce the workload on Ms Silvestri. I further note that Ms Silvestri accepted that a protocol is being implemented for more systematic sleep data collection through a phone application, and that this would make the evidence-gathering process easier at any future reassessment.
19. I give Ms Silvestri's evidence about administrative burden some weight. It is a relevant consideration, and I do not dismiss or underestimate it. However, it is not, in my assessment, determinative of the plan duration question. The protective function of reassessment at 12 months, having regard to the factors and various matters I have identified, outweighs the incremental administrative burden that a reassessment would impose.
20. Ms Silvestri gave evidence about the difficulty of engaging and retaining community support providers for Ms Murdoch. I accept that evidence. She described a recurring cycle of engagement, training, rapport-building, and ultimately disengagement, with the process taking approximately six months (or longer) each time. However, in cross-examination, Ms Silvestri accepted that providers disengage because of Ms Murdoch's behaviours of concern, not because of the plan duration. I am not satisfied longer plan duration will, on the evidence before me, address this underlying issue of support providers disengaging. Whilst I accept that this cycle may mean that Ms Murdoch will require longer to adjust or respond to the additional support now being provided, I am not satisfied that is a sound or appropriate reason to extend the reassessment as proposed, particularly whilst there are ongoing restrictive practices.
21. Ms Silvestri expressed a deeply held concern that if the plan were reassessed at 12 months, funding would be reduced as it had been in the past. Her evidence was that this concern is based on her experience of previous plans. I acknowledge that concern, borne as it is out of her past experience. However, whilst a reduction in funding is possible, I am not satisfied that a reassessment is the threat to the applicant's funding as Ms Silvestri believes. In that respect, and without intending any disrespect, Ms Silvestri appeared to have no real ability to see a situation where the Agency would either continue, or perhaps increase, the funding without her having to 'fight' for it when a reassessment was to occur.
22. The fact that there has been disagreement between the applicant and the Agency as to what supports are reasonable and necessary does not persuade me that a 12-month plan duration will result in 'underfunding', at least from an objective perspective, in the future. Rather, I am satisfied that it is a process that may confirm the adequacy of existing supports, increase them, or reduce them as the evidence warrants. That evidence will include the evidence that is presently before the Tribunal, and one would expect that given what the Agency now agrees are reasonable and necessary, if the Agency was to conduct a reassessment in a way which was adverse to the applicant, it would be based on new evidence. The fact that the applicant has now obtained the level of funding and support she sought does not diminish the benefit of periodic reassessment.
23. The applicant submits that a longer plan does not prevent the Agency from varying or reassessing the plan at any point if the applicant's support needs change. Ms Preston otherwise submitted that the Operational Guideline itself states that longer plans give participants more stability by providing certainty about funding over a longer period, and that this supports a longer plan duration. I accept that the Operational Guideline does contain that statement. However, as Mr Lettenmaier submitted, 'plan duration' does not lock in supports. The Agency retains the power to vary or reassess at any time. As such, I give limited weight to the certainty argument.
24. Section 33(2)(c) requires the plan to specify 'the date by which, or the circumstances in which' the Agency must reassess the plan. The language 'by which' suggests a deadline, that is the date by which reassessment must occur, not the earliest date on which it may occur. Nothing in the NDIS Act prevents the Agency from conducting a reassessment before the specified date if circumstances warrant it and the NDIS Act provides for reassessments to occur at the initiative of the Chief Executive Officer (or their delegate if that power has been delegated).
25. However, the inclusion of a reassessment date under s 33(2)(c) is the mechanism by which the plan ensures that reassessment occurs no later than a specified date. It is the only tool available to the Tribunal in deciding the correct or preferable decision to guarantee that the plan will be comprehensively reassessed by a particular date. This is of particular importance where, as here, the participant has a positive behaviour support plan with restrictive practices. I am satisfied that regular reassessment in those circumstances serves a protective function, ensuring that the overall configuration of supports is reviewed, considering behaviour support plan outcomes, clinical and real-world progress (or regression), and any changes in the participant's needs. I consider that a reassessment date 12 months from the plan start date appropriately discharges this protective function and reflects the dynamic nature of the applicant's support arrangements.
26. For these reasons, I find that a plan duration of 12 months, with a reassessment date of 9 April 2027 as specified in the plan approved on 10 April 2026, is appropriate in the applicant's circumstances. I am not persuaded that a longer plan duration would better serve the applicant's interests or reflect the legislative requirements applicable to her plan.

1. For these reasons, I find that the plan approved on 10 April 2026, represents the correct or preferable decision. I am satisfied that the plan appropriately discharges the requirements of s 33 of the NDIS Act and reflects the applicant's circumstances, clinical needs, and the principles set out in s 31 of the NDIS Act.

I certify that the preceding 70 (seventy) paragraphs are a true copy of the reasons for the decision herein of General Member Robertson

..........................[SGD].........................

Ms Candice Peston, Sussex Street Community Legal Centre

[1] On 16 and 17 April 2026 the written reasons on pp 18-19 were amended to correct an obvious error pursuant to s 114(1)(b) of the Administrative Review Tribunal Act 2024 (Cth).

[2] Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634; G v Minister for Immigration and Border Protection [2018] FCA 1229; (2018) 266 FCR 511.