What happened

This decision concerned whether the Administrative Appeals Tribunal (the Tribunal) had jurisdiction to review an NDIA decision approving a statement of participant supports contained in a participant plan (Plan 1), and whether any Tribunal review was limited to the period when that statement was in effect.

Key chronological events (as the Tribunal records them):

• 24 October 2018: NDIA made a decision under s 33(2) NDIS Act approving a statement of participant supports for the Applicant; that statement was contained in Plan 1 (Plan 1’s life is recorded as 23 October 2018 to 23 October 2019 in the background summary) (see BACKGROUND paras 3 and 5).
• 14 January 2019: Applicant's father requested internal review of that decision under s 100(2) NDIS Act (BACKGROUND para 4).
• The NDIA did not make a decision on that internal review within the statutory or reasonable time: eleven months elapsed between the internal review request and the Applicant's application to the Tribunal (see CONSIDERATION, para 1).
• 22 October 2019: Plan 2 came into effect, replacing Plan 1 (BACKGROUND para 7; CONSIDERATION paras 4-5).
• 12 December 2019: Applicant applied to the Tribunal (BACKGROUND para 4).
• 18 March 2020: NDIA delegate wrote a decision reviewing the statement of supports in Plan 2 (and attaching a new plan, called Plan 3, commencing 18 March 2020). The NDIA treated that decision as a s 100(6) internal review decision and notified the applicant of Tribunal review rights (BACKGROUND paras 8-11).
• 4 September 2020: The Tribunal (Senior Member J C Kelly) decided it had jurisdiction to review the originally challenged 24 October 2018 decision but that the Tribunal's review was confined to the period during which Plan 1 was in effect: 24 October 2018 to 22 October 2019 (CONCLUSION).

The substantive dispute concerned multiple supports (capital, capacity building, core supports, and weekly ABA therapy). By the time of the decision the parties had resolved most supports except ABA therapy; however, the decision before the Tribunal was jurisdictional and temporal, not the substantive sufficiency of funding (BACKGROUND paras 5 and 11).

Why the court decided this way

Three central statutory and doctrinal propositions drove the Tribunal’s decision.

1. Deemed decision where NDIA fails to decide promptly

   • The Tribunal found that the NDIA had not made a decision within the time required by s 100(6) of the NDIS Act. The Tribunal treated the NDIA as having made a deemed decision affirming the original decision by operation of s 25(5) of the AAT Act as construed in NNXF [2019] AATA 5552. That deemed affirmation was therefore reviewable by the Tribunal under s 103 NDIS Act (CONSIDERATION para 1). The Tribunal explicitly relied on the construction of s 25(5) in NNXF to reach this conclusion.

2. Temporal limit of review: a statement of participant supports is tied to the plan that contains it

   • The Tribunal emphasised that a statement of participant supports is a component of a plan under s 33 of the NDIS Act and that when a plan is replaced the replaced plan ceases to be in effect per s 37(3)(a) NDIS Act (CONSIDERATION para 4). Because Plan 1 was replaced by Plan 2 on 22 October 2019, the statement of participant supports which was approved on 24 October 2018 ceased on that date. The Tribunal therefore concluded that while the application to review the 24 October 2018 decision remained on foot, its substantive effect was limited to the period when Plan 1 was in effect (CONSIDERATION paras 4-6, CONCLUSION).

3. Later NDIA decision does not become the reviewable decision for the Tribunal in this proceeding

   • The NDIA had made a later decision (18 March 2020) that addressed Plan 2/Plan 3 and which it characterised as a s 100(6) decision. The Tribunal determined that such a later decision related to a different plan and did not substitute for the reviewable decision that related to Plan 1. Consequently s 26(1) AAT Act (which restricts how a decision under review may be altered) did not operate to make the 18 March decision the subject of the applicant's earlier Tribunal application (CONSIDERATION paras 5-6, 'The decision made on 18 March 2020').

The Tribunal also considered, and rejected, the applicant's submission (derived from s 43(6) AAT Act and some case authorities) that a Tribunal variation should be treated as having effect from the day the original decision had effect thereby operating to extend the period of substantive effect. The Tribunal concluded s 43(6) does not change the NDIS Act's operation in this respect (CONSIDERATION para 10).

Finally, the Tribunal considered remittal under s 42D AAT Act and refused it on grounds of lack of utility given the NDIA’s position (s 42D discussion).

Before and after state of the law

Before this decision:

• Reasonable reading of prior AAT decisions had established that a decision-maker's failure to decide within a statutory time can produce a deemed decision, and that the AAT's s 25(5) AAT Act interactions with NDIS internal review timeframes require careful treatment (NNXF was cited for this construction).
• There was existing discussion in AAT decisions about whether the Tribunal could review historical decisions once plans were replaced, QZHH had observed that purely historical resolutions may be of little use (QZHH [2018] AATA 1465 at [65] was cited for that point), and Williamson had discussed practical relevance of replaced plans.

Effect of this decision:

• This decision confirms a two-step practical approach in the NDIS context:
  1. If the NDIA fails to decide an internal review in time, a deemed affirmation arises that is reviewable by the Tribunal (application of s 25(5) as construed in NNXF).
  2. The Tribunal's substantive review of such a deemed decision is, however, temporally constrained to the period that the statement of participant supports was in effect, replacement of a plan ends the temporal scope of review for that statement (the Tribunal will not, in effect, remedy or rewrite entitlements outside the original plan period).
• It clarifies that the existence of later NDIA decisions about subsequent plans does not automatically expand the Tribunal’s remedial timeframe in relation to earlier plans.

Key passages with plain-English translation

Selected passages from the decision with a short plain-English translation and reference to the judgment paragraphs reproduced in the reasons.

1. "Because a decision was not made within the prescribed time ... the NDIA is deemed to have made a decision affirming the 24 October 2018 decision which is reviewable by the Tribunal pursuant to s 103 of the NDIS Act." (CONSIDERATION para 1)

   • Plain English: The NDIA failed to decide the internal review quickly enough; that failure is treated as if the NDIA had decided to uphold its original 24 October 2018 decision, and that 'deemed' upholding can be challenged in the Tribunal.

2. "The reviewable decision relates to the statement of participant supports that was approved and included in Plan 1 which ceased to be in effect on 22 October 2019 ... it remains on foot but is limited in effect to the period when Plan 1 ... were in effect. Section 43(6) of the AAT Act does not change the operation of the NDIS Act." (CONSIDERATION para 10)

   • Plain English: Even though the Tribunal can review the deemed decision, that review only covers what the statement of supports said while Plan 1 was active. A general AAT statutory provision about Tribunal decisions does not stretch the NDIS Act’s time limits.

3. "The decision made by the NDIA on 18 March 2020 specifically related to the statement of supports in Plan 2, not to the statement of supports in Plan 1 ... Section 26(1) of the AAT Act does not apply." (CONSIDERATION para 5)

   • Plain English: The NDIA's later decision concerned a different plan; the Tribunal will not treat that later decision as replacing or changing the original decision that the applicant sought to review.

4. Quotation of Williamson: "In practical terms, replacement of the plan means that the CEO has approved a new participant's plan and not a variation of the previously existing plan. Replacement of plan does not mean that the replaced plan is of no relevance." (CONSIDERATION para 10)

   • Plain English: Replacing a plan creates a new plan rather than varying the old one; but the old plan can still matter for particular legal questions, subject to its temporal limits.

What fact patterns trigger this precedent

This decision is directly relevant where:

• An applicant requests internal review under s 100(2) NDIS Act and the NDIA does not make a decision 'as soon as reasonably practicable' (see CONSIDERATION para 1). In such cases, practitioners should consider the deemed-decision consequences under s 25(5) AAT Act as construed by NNXF.
• The challenged NDIA decision relates to a statement of participant supports contained in an NDIS plan and that plan is subsequently replaced before the Tribunal makes its determination. The Tribunal is likely to treat its review as temporally confined to the replaced plan’s period of effect (see CONSIDERATION paras 4-10).
• The NDIA makes subsequent decisions about later plans and claims those later decisions resolve or subsume the earlier dispute: this decision shows a Tribunal will examine whether the later decision actually concerns the same reviewable decision and will not permit substitution simply because a later plan exists (CONSIDERATION paras 5-6).

In short, this precedent triggers when there is a late internal-review decision and intervening plan replacement.

How later courts have treated it

As of this decision, the Tribunal relied on and distinguished a set of AAT precedents:

• NNXF [2019] AATA 5552 was applied to construe s 25(5) AAT Act to produce a deemed affirmation where the NDIA did not decide promptly (CONSIDERATION para 1).
• QZHH [2018] AATA 1465 was cited (and quoted at [65]) for the proposition that purely historical determinations may be of little utility (CONSIDERATION para 1).
• The Tribunal relied on Williamson [2019] AATA 2944 to explain practical consequences of plan replacement (CONSIDERATION para 10).
• The NDIA had relied on LQMG [2019] AATA 4975 and Williamson to advance an opposing view; the Tribunal considered those authorities in reaching its conclusion.

This decision therefore sits in dialogue with other AAT decisions and applies NNXF and Williamson to confirm practical limits on post hoc review once a plan has been replaced. Parties in later cases will likely cite this decision for the proposition that Tribunal jurisdiction exists where the NDIA fails to decide an internal review, but that the Tribunal cannot extend remedies beyond the replaced plan’s period.

Still-open questions

Several issues remain unsettled or practically consequential and were noted in the decision:

1. Remedies for historical access to supports

   • The Tribunal recognised the potential futility of purely historical remedies (citing QZHH at [65]), but did not definitively lay out how, in close cases, compensatory or retrospective relief may operate where a participant lost access to supports during the life of a plan because of delay. The decision stops short of prescribing whether and when retrospective reimbursement claims can be meaningfully pursued, and on what statutory basis.

2. Interaction of s 43(6) AAT Act with the NDIS statutory scheme

   • The Tribunal held s 43(6) did not change the NDIS Act's operation with respect to this fact pattern. However, there remains a question about edge cases where a Tribunal decision could practically be made to operate 'from' the day the original decision had effect. The decision limits s 43(6)'s effect here, but the exact contours of when a Tribunal variation can change practical entitlements across plan replacements may need further clarification.

3. Procedural routes where NDIA makes later decisions

   • The NDIA argued that the applicant could seek review of the 18 March 2020 decision and obtain an extension of time. The Tribunal did not fully explore the practical access-to-justice consequences where there are gaps between plan replacement and later NDIA decisions: for example, how an applicant should manage concurrent or successive review routes without inadvertently losing rights.

4. Remittal under s 42D AAT Act

   • The Tribunal refused remittal because the NDIA would not make the decision the applicant sought. The decision leaves open the circumstances in which remittal should be ordered because of administrative convenience rather than the respondent’s position, the decision leans towards refusing remittal where there is no likely utility, but a fuller statement of criteria for remittal in the NDIS context would be useful.

These open questions point to further litigation and possible refinement of the law on temporal limits of Tribunal review where plans are replaced and on remedies for participants affected by administrative delay.

Note: This is an explanatory analysis of the Tribunal reasons in FDFF and National Disability Insurance Agency [2020] AATA 3385 (4 September 2020). It summarises and explains what the Tribunal said and the statutory and precedential context it relied upon. It is legal information, not legal advice. I may make mistakes. Before you act on, rely on, or use any of this material, get a qualified Australian lawyer to check it.