NATIONAL DISABILITY INSURANCE SCHEME - application to review statement of participant supports - Applicant first entered a residential care service on a permanent basis in 2023 after he had turned 65 years of age - CEO continued to make statement of participant supports with the Applicant - CEO unaware of changed living - application to dismiss review - no operative decision by virtue of operation of s29(1)(b) and s37(3)(c) of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) - no jurisdiction to review

Administrative Review Tribunal Act 2024 (Cth) s97

Aged Care Act 1997 (Cth) s41-3, Sch 1

National Disability Insurance Scheme Act 2013 (Cth) s29(1)(b), s37(3)(c)

McVeigh and National Disability Insurance Agency [2021] AATA 69

Nohmen and National Disability Insurance Agency [2023] AATA 20

1. The Applicant is now 68 years old and resides at James Barker House. James Barker House provides residential aged care and accommodation services.

1. On 9 July 2025, the Applicant lodged an application for review of a decision made by the Respondent on 19 February 2025 to include a statement of participant supports (SOPS) in his NDIS plan. By his application, the Applicant sought to have funding for Specialist Disability Accommodation included in his SOPS.

1. The Respondent has made an application to the Tribunal for dismissal of the Applicant's application for review. In written submissions in support of the dismissal application, the Respondent states that in or around October 2025 it became aware that on 23 September 2023 the Applicant became a resident of James Barker House, having entered into a Resident and Accommodation Agreement under the Aged Care Act 1997 (Cth).

1. The Respondent contends that, having regard to the combined effects of sections 29(1)(b) and 37(3)(c) of the National Disability Insurance Scheme Act 2013 (Cth) (the Act), the Applicant ceased to be a participant of the National Disability Insurance Scheme (the Scheme) on 23 September 2023 and his NDIS plan also ceased to be in effect. As a consequence, the reviewable decision does not have effect and so there is nothing for the Tribunal to review.

1. In support of its submissions the Respondent lodged a copy of a Resident and Accommodation Agreement between the Applicant and the accommodation provider which confirms an entry date of 23 September 2023.[1] At that date, the Applicant was 66 years of age. The Respondent also lodged a copy of a letter to the Applicant dated 12 December 2025 headed "You are leaving the NDIS".[2] The letter said, in part:

I am writing to confirm you left the NDIS on 23/09/2023. This is because we confirmed that you are aged over 65 and started receiving aged care services for the first time.

The letter advised the Applicant that he could use aged care services instead of the NDIS, and that he was not an NDIS participant and did not have an NDIS plan anymore.

1. The Applicant contends he still is, and should be, an NDIS participant.

1. An interlocutory hearing was held on 28 January 2026 to determine the application for dismissal.

1. The Tribunal heard from both parties and permitted the Applicant to lodge further information following the hearing. Much of the information subsequently lodged by the Applicant duplicated information in the 'T' Documents lodged by the Respondent on 26 August 2025 for the substantive application.

1. There was however some new information which I have considered, together with the submissions made by the Applicant's advocate at the hearing. The new information includes statements from: the Applicant's brother; the Clinical Care Manager at James Barker House, and a representative of Affinity Care Services, a registered provider of NDIS services who has provided supports for the Applicant for a period of years.

1. In short, the Applicant's position is that his placement at James Barker House in 2023 was temporary, pending the identification of more a suitable accommodation pathway. The Applicant contends the original placement at James Barker House occurred in March 2023 following his discharge from hospital. The statement from the Clinical Care Manager confirms the original admission was on a respite care basis, but that extensions were granted due to delays in securing alternative housing. This state of affairs continued until September 2023, when the Resident and Accommodation Agreement was made.

1. Nevertheless, it appears that all concerned with the Applicant's care continued to regard the arrangement as temporary. They hold the view that the Respondent also understood the placement was temporary and continued to provide funded supports through a SOPS in full awareness of those circumstances.

1. I have no doubt the Applicant's support team have engaged with the Agency in good faith and are genuinely surprised and disturbed by this recent turn of events.

1. Equally, I am satisfied that, most unfortunately, the Respondent did not become aware of the Applicant's living situation until October 2025.

1. At the time the Applicant entered into the agreement with James Barker House in 2023, section 29 of the Act relevantly provided:

(1) A person ceases to be a participant in the National Disability Insurance Scheme when:

(b) the person enters a residential care service on a permanent basis, or starts being provided with home care on a permanent basis, and this first occurs only after the person turns 65 years of age;

Note: Residential care service and home care have the same meanings as in the Aged Care Act 1997.

(2) A person is not entitled to be paid NDIS amounts so far as the amounts relate to reasonable and necessary supports that would otherwise have been funded in respect of a period after he or she ceased to be a participant.

Residential care service was defined as an undertaking through which residential care is provided (Sch 1 Aged Care Act 1997 (Cth)), and residential care was defined to include personal care provided to a person in a residential facility in which the person is also provided with accommodation (s41-3 Aged Care Act 1997).

1. Section 29(1)(b) has recently been amended to reflect the repeal of the Aged Care Act 1997 (Cth) and the commencement of the Aged Care Act 2024 (Cth) on 1 November 2025. Section 29(1)(b) now employs the terminology of "ongoing funded aged care services" for consistency with the regime of aged care services under the new Aged Care Act.

1. The effect of s 29(1)(b) has not altered by the amendment: a person ceases to be participant of the NDIS automatically by operation of the provision if the person first enters permanent aged care after they turn 65. Unusually in this matter, that occurred some 2 years before the Applicant's participant status came to the attention of the Respondent. I find that the Applicant first entered a residential care service on a permanent basis on 23 September 2023. At that time, he was 66. Accordingly, the Applicant's participant status automatically ceased on 23 September 2023 by operation of the provision as it stood at that time.[3]

1. Unfortunately, I cannot accept the Applicant's submission regarding the temporary nature of the accommodation. The Agreement provides rather starkly that it "will end on your death" or by the giving of 7 days written notice of intention permanently to leave.

1. The Respondent submits, and I accept, that the Tribunal does not have the power to review the cessation of participant status pursuant to section 29(1)(b).[4]

1. Section 37(3)(c) of the Act provides that a participant's plan ceases to be in effect in any case - when the participant ceases to be a participant. I understand the Applicant's view is that he should still be a participant by virtue of the fact that the Respondent continued to engage with him as a participant and provide funded supports until recently.

1. The Respondent submits that the effect of section 37(3)(c) is that the Applicant's NDIS plan has ceased to be in effect; the SOPs that formed part of the plan is no longer operative and the internal review decision from which the Applicant has applied to the Tribunal is also no longer operative. Accordingly, there is nothing for the Tribunal to review.

1. I accept this submission as the unavoidable effect of the provision. It does not seem to me that the fact that the Respondent continued to engage with the Applicant as though he were still a participant after 23 September 2023 alters the effect of the clear words of the provision. I propose to dismiss the Applicant's application for no jurisdiction on the basis that the decisions to make and then confirm the SOPS are not operative. Therefore, there is no decision in respect of which the Tribunal can exercise its review power.

1. I am mindful of the impact of this decision on the Applicant, his brother and his support team. The circumstances are regrettable but the Tribunal is unable to make a different decision in this case.

1. The Applicant's application lodged on 9 July 2025 is dismissed pursuant to section 97 of the Administrative Review Tribunal Act 2024 (Cth).

[1] A1 to the Respondent's written submission dated 17 December 2025

[2] A2 to the Respondent's written submission dated 17 December 2025

[3] Nohmen and National Disability Insurance Agency [2023] AATA 20 at [14]

[4] McVeigh and National Disability Insurance Agency [2021] AATA 69