1. By operation of s 37 of the NDIS Act, once that plan was approved, it could not be varied but could be replaced in accordance with the Act. Moreover, when the applicant's statement of participant supports was approved on 16 June 2021, s 48(5) of the NDIS Act required the Respondent to conduct a review of a participant's plan before the plan's review date.
2. On 1 July 2022, the NDIS Act was amended by the National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Act 2022 (Cth) (the Amending Act). The Amending Act, among other things, replaced references to a 'review' of a plan with the concept of a 'reassessment'. Specifically, s 33(2)(c) was amended to require a statement of participant supports to specify 'the date by which, or the circumstances in which, the Agency must reassess the plan under Division 4' (emphasis added).
3. Section 37 of the NDIS Act was amended by the Amending Act to delete s 37(2), as the Amending Act introduced a new s 47A which permitted the Respondent to vary a participant's plan. Additionally, the Amending Act made amendments to s 48 of the NDIS Act and repealed s 48(5).
4. Section 49 was also amended into the following form:

49 Reassessment of participant's plan before plan's reassessment date > > (1) The CEO must do the following before the reassessment date of a participant's plan: > > (a) complete a reassessment of the plan; > > (b) either:

(i) vary, under subsection 47A(1), the participant's plan as a result of that reassessment; or

(ii) prepare a new plan with the participant in accordance with Division 2 and approve, under subsection 33(2), the statement of participant supports in the new plan.

(2) The CEO must start the reassessment under subsection (1) before the period (if any) worked out in accordance with the National Disability Insurance Scheme rules prescribed for the purposes of this subsection.

1. Following the commencement of her plan in 2021, on the Respondent's case, the Applicant's plan was effectively 'rolled over' at various intervals. In their oral submissions, the Respondent appeared to accept that this roll over procedure is not, and was not, provided for in the NDIS Act.
2. One of these so-called roll overs occurred on 16 May 2024. On that date a plan was communicated to the Applicant which included a statement of participant supports that started on '16 June 2021' and would be reviewed by 15 March 2025. It also contained a statement that '[a] National Disability Insurance Agency (NDIA) representative will contact me about my plan review before my plan review due date.' The letter contained the following signature block:

[name omitted] > > Delegate of the CEO > > NEC Scheduled Reassessments > > National Disability Insurance Agency

3. On 16 May 2024, s 33(2)(c) of the NDIS Act provided that a participant's plan must include a statement of participant supports which in turn must specify the day by which, or the circumstances in which, the Agency must reassess the plan under div 4. The mandatory nature of the requirement to include a date by which a reassessment under div 4 is to occur is reinforced by s 39 of the Act, which provides that '[t]he Agency must comply with the statement of participant supports in a participant's plan' (emphasis added).
4. . On or around 28 March 2025, the Applicant's support coordinator requested a copy of the Applicant's plan. In response, the Agency transmitted a document to the Applicant. It is common ground that this document contained the watermark 'preview.' However, the document differed materially from the correspondence of 16 May 2024 in two respects. First, the document stated that the plan 'will be reviewed by 15 March 2026.' Second, the total amount specified as being funded for the supports and budgeted items had increased to take into account the extended duration of the plan. That is, the extension to 15 March 2026.
5. Subsequently, and in response to this correspondence, on 10 June 2025 the Applicant requested an internal review of the decision, being the document dated 28 March 2025. The Agency did not make a decision on that request within the statutory 90-day period.

1. The Respondent contends that the 2022 amendments created a distinction between the 'review date' specified in old plans and the 'reassessment date' required by the amended legislation. The Respondent argues that because the Applicant's plan referred to a 'review date', it did not contain a 'reassessment date' and therefore fell into a statutory lacuna where the Agency was under no obligation to conduct neither a review nor a reassessment under div 4.
2. The text of the NDIS Act is to be construed according to it's context 'by reference to the language of the instrument viewed as a whole'.[1]
3. In my view, a beneficial piece of social welfare legislation should not be construed in a way that undermines the clear statutory intention evident both prior to, and after, the Amending Act, that a statement of participant supports should clearly identify when a plan will be reviewed or reassessed under div 4.[2] I am satisfied that, by operation of s 7 of the Acts Interpretation Act 1901 (Cth), the accrued right of the Applicant to have her plan reviewed was not extinguished by the Amending Act. I find that the 'review date' specified in the plan is legally equivalent to the 'reassessment date' required by s 33(2)(c).
4. Section 33(2) of the NDIS Act is mandatory. It requires that a participant's plan must include a statement of participant supports which must specify the date by which the plan is to be reassessed. If I were to accept the Respondent's construction, the Applicant's plan would fail to comply with s 33(2) and I am not persuaded that I should adopt a construction which would see the Respondent fail to comply with the requirements in s 33(2). That is particularly so given that s 39 of the NDIS Act expressly requires the Agency to comply with a statement of participant supports.
5. Even if I were wrong in this respect, it is tolerably clear, and I find, that on 16 May 2024 a statement of participant supports was approved for the Applicant. That the plan was said to commence on 16 June 2021 is not to the point. The question is whether a decision was, in fact, made.
6. In the present matter, I am satisfied that on 16 May 2024 there was a variation of the Applicant's plan as contemplated by, and expressly provided for in, s 49(1)(b)(i) of the NDIS Act. I also find that, properly construed, the variation of the plan was such that it included the date of 15 March 2025 in the statement of participant supports, and specified this date, for the purposes of s 33(2)(c) of the NDIS Act, as the date by which the Agency must reassess the plan under div 4. I do not accept the respondent's submissions to the contrary.
7. I now turn to the 28 March 2025 documentation. The Respondent further submits that the document of 28 March 2025 should be disregarded as a 'mere administrative error' or an automatically generated draft incapable of constituting a decision.
8. I do not accept that the manner in which the document was brought into existence permits the Agency to ignore or disavow its legal effect once it has been communicated to a participant. The document provided to the Applicant purported to be her approved plan. It purported to be, notwithstanding being marked as preview, sent by a delegate of the CEO within the 'NEC Scheduled Reassessments'. On any view, it purported to alter the legal rights of the Applicant by extending the date by which her plan was to be 'reviewed' from 15 March 2025 to 15 March 2026 as if to convey that the review that was previously foreshadowed in May 2024 had occurred. In those circumstances, an objective bystander would have considered the document to be communicating a decision to approve a statement of participant supports.
9. Section 33(2)(c) of the NDIS Act defines the 'statement of participant supports' by reference to s 33(2) which, by operation of s 33(2)(c), includes the date by which the Agency must reassess the plan. Therefore, a decision to alter that date is, viewed objectively, a decision to approve a new statement of participant supports with a new date specified for the purposes of s 33(2)(c) of the NDIS Act.
10. I find that the document dated 28 March 2025 operated to vary the reassessment date to 15 March 2026. I am satisfied that, by issuing (actually or purportedly) a document that specified a new reassessment date, the Agency approved a statement of participant supports.

1. Section 99 of the NDIS Act sets out decisions, in a table, that are 'reviewable decisions' for the purposes of the Act. For present purposes, the following are 'reviewable decisions':

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

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

1. Item 4 in the table at s 99 of the NDIS Act provides that a decision to approve a statement of participant supports under s 33(2) is a reviewable decision.
2. It follows that because the approval of a statement of participant supports on 28 March 2025 was a reviewable decision, the Applicant was entitled to seek an internal review under s 100 of the NDIS Act. I find she validly exercised this right on 10 June 2025.
3. It is conceded by the Respondent that no decision was made on the internal review request within the prescribed 90-day period. The Respondent accepted that, where the reviewer fails to make a decision within the prescribed period, the reviewer is taken to have made a decision affirming the original decision. There was no issue taken that such a deemed decision is properly reviewable by the Tribunal.
4. Accordingly, I find that there is a reviewable decision before the Tribunal. The Tribunal has jurisdiction to proceed to a review of the substantive application.
5. Since application for review was lodged on 6 November 2025, a further development has occurred. On 25 November 2025, the Agency completed a reassessment of the Applicant's plan pursuant to s 48 of the NDIS Act (the New Plan).
6. The Respondent has invited the Applicant to withdraw the review application lodged on 6 November 2025 and seek review of the New Plan.
7. That said, the existence of the New Plan does not extinguish the Tribunal's jurisdiction. Rather, the NDIS Act provides a specific mechanism to ensure the continuity of review proceedings in these circumstances.
8. Section 103(2) of the NDIS Act addresses the situation where a participant has made an application to the Tribunal for review of a statement of participant supports, and that statement is subsequently varied or replaced. The section provides that, in such cases, the application is taken to be an application for review of the new plan.
9. Having found that the Tribunal had jurisdiction to review the original decision, I am satisfied the operation of s 103(2) is engaged. Accordingly, the application is now deemed to be an application for review of the New Plan. The decision properly before the Tribunal, and the subject of this review, is the decision to approve the statement of participant supports in the plan dated 25 November 2025.

1. The Tribunal has jurisdiction to conduct a review.

1. I certify that the preceding 36 (thirty-six) paragraphs are a true copy of the reasons for the decision herein of General Member Robertson

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

James Lovel, National Disability Insurance Agency

[1] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, [69].

[2] As to the construction of beneficial and remedial legislation, see Adco Constructions Pty Ltd v Goudappel (2014) 254 CLR 1; AB v Western Australia (2011) 244 CLR 390.