1. No details as to which NDIS funded supports are replaced by the Board have been provided.

1. The Agency submits subsection 33(5)(d) of the NDIS Act requires that in deciding whether or not to approve a statement of participant supports the CEO must have regard to any rules made for the purpose of section 35, including with respect to supports that will or will not be funded.

1. The Agency notes the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 (Cth) (Amending Act), commenced on 3 October 2024 and introduced the concept of an 'NDIS Support'.

1. On the same date, the National Disability Insurance Scheme (Getting the NDIS Back of Track No.1) (NDIS Supports) Transitional Rules 2024 (Transitional Rules) commenced. Schedule 1 of the Transitional Rules sets out those supports which are generally NDIS supports. Schedule 2 of the Transitional Rules sets out those supports which are generally not NDIS supports.

1. Pursuant to the decision in CEO, National Disability Insurance Agency and Hyde (Guidance Appeals Panel)[2] the Agency argues that in order to be an NDIS Support, the requested support must fall within Schedule 1 of the Transitional Rules, and must not fall within one of the categories set out in Schedule 2 of the Transitional Rules.

1. They argue the focus in such consideration is on the support itself, not the participant.[3]

1. It is the Agency's contention that professional indemnity insurance for the Board is not an NDIS Support because:

1. It does not fall directly or indirectly, within any of the categories of supports outlined in Schedule 1 of the Transitional Rules.
2. It falls within Item 2 of Schedule 2 of the Transitional Rules and is therefore specifically declared to be not an NDIS Support.

1. The Agency further argue that section 34(1)(f) of the NDIS Act (as amended) provides that the only supports which may be funded under the Scheme are those which are NDIS Supports. As professional indemnity insurance is not an NDIS Support the applicant's application for review has no prospect of success and should be dismissed.

The Tribunal may, at any time, dismiss an application made to the Tribunal if the Tribunal is satisfied that the application:

(a) Is frivolous, vexatious, misconceived or lacking in substance; or

(b) Has no reasonable prospects of success; or

(c) Is otherwise an abuse of the process of the Tribunal.

1. This discretion is in essentially the same terms as the previous s42B(1) of the Administrative Appeals Tribunal Act 1975 (Cth) which governed the former Tribunal.

1. There is no argument before the Tribunal that Mr Sands' application is frivolous, vexatious or otherwise an abuse of process. This is a genuine application made by a person seeking to be assisted by services the Scheme may have to offer.

1. Instead, the dismissal application is bought on the basis that Mr Sands' application has no prospect of success and pursuant to section 101(1)(b) of the ART Act, the Tribunal's dismissal discretion is enlivened.

1. It is a discretion provided for so that the Tribunal may protect its own processes in pursuit of its objectives.

1. The objectives of the Tribunal are to pursue the objective of providing an independent mechanism of review that:

1. Is fair and just; and
2. Ensures that applications to the Tribunal are resolved as quickly and with as little formality and expense, as a proper consideration of the matters for the Tribunal permits; and
3. Is accessible and responsive to the diverse needs of parties to proceedings; and
4. Improves the transparency and quality of government decision-making; and
5. Promotes public trust and confidence in the Tribunal.

1. I have had regard to the principles to be applied in exercise of the discretion to dismiss as discussed by Senior Member French in the matter of Brickhill and National Disability Insurance Agency (Brickhill).[4] These principles have been distilled from many previous decisions of the former Tribunal and include that:

(a) The power is discretionary and only to be used in a clear case where the Tribunal is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion.

(b) It is a discretion that is to be used sparingly and cautiously in relation to cases that are so untenable they cannot possibly succeed. If a legitimate purpose could be achieved by allowing the application to continue, it ought to proceed. However, if an application can serve no purpose for the Applicant, it should not continue.

(c) The Tribunal will exercise the discretion to decide a determinative question of law if it is satisfied the point is clear. When it examines the evidence pursuant to an application to exercise the discretion in relation to a question of law, it does so for the purpose of determining if an arguable case for review is disclosed, not tor the purpose of making findings of fact.

(d) In determining if it has no prospect of success the Applicant's case must be taken at its highest.

(e) The summary dismissal Applicant (in this case the National Disability Insurance Agency) bears the practical onus of establishing that the substantive Applicant's case is so obviously untenable that it cannot succeed.

(f) The policy that lies behind the discretion is to enable the Tribunal to terminate a review at a preliminary stage when it is a futility to avoid the delay and public costs that would be associated with its continuation.

1. I also bear in mind the seriousness of a summary dismissal for the applicant in that in proceeding with a dismissal, the Tribunal 'curtails merits review of the decision contested by an applicant'.[5] For this reason the discretion must be used cautiously.

1. However, I note that in considering whether a matter has 'no prospect of success', I must necessarily give consideration to the merits of the applicant's case. His potential prejudice is thereby somewhat lessened.

1. There have now been two Guidance and Appeals Panel decisions issued with respect to the application of the Transitional Rules. These decisions are binding on the current Tribunal and are aligned on fundamental principles:

1. Not only must a Tribunal be satisfied that the support itself does not appear in Schedule 2 of the Transitional Rules; but
2. The Tribunal must be satisfied that the requested support does appear in Schedule 1 of the Transitional Rules.

1. The GAP decision of CEO, NDIA and Roberts[6] (Roberts) particularly undertook significant contextual analysis of the Transitional Rules in light of widely accepted statutory interpretation principles.

1. Section 5 of the Transitional Rules provides that in order for a support to be an NDIS Support it must appear in column 2 of an item in Schedule 1.

1. Equally, if a support is found in column 2 of Schedule 2 it is not an NDIS Support.

1. Considering the Explanatory Statement of the Transitional Support Rules (the Explanatory Statement) The Tribunal in Roberts set out the following:

This Schedule contains a table with 36 categories of supports, set out in column 1 to the table. These categories are loosely based on the provider registration groups set out in section 20 the National Disability Insurance Scheme (Provider Registration and Practices Standards) Rules 2018 (Provider Registration Rules). While the categories have some similarities with the Provider Registration Rules, this is for ease of organisation only. It does not have any impact on how providers are registered, their categories of registration or the kinds of supports that registered NDIS providers may provide.

Column 2 of the table contains a description of the supports that fall within each category. Many of the descriptions include a list of included supports. These lists are not exhaustive so do not exclude an item that is not listed in the description. The purpose of the listed supports is to clarify the kinds of supports that fall within the overarching description [my emphasis][7]

1. Relying on the interpretive rule of construction, that an express reference of one matter indicates that other matters are excluded (expression unius est exclusion alterius) (the express reference principle), the Tribunal in Roberts expressed the view that for a matter to be included in column 2 of Schedule 1, it must be expressly allowed for in the kinds of supports that fall within the overarching description in column 2.

1. In Roberts, the participant sought funding for a piece of exercise equipment. The Tribunal considered each Item in Schedule 1 of the Transitional Rules and considered that exercise equipment might fit within Items 18 or 34 of that Schedule.

1. However, their assessment of the kinds of supports which fell in each Item resulted in an overall finding that 'equipment' was not expressly allowed for in either Item.

1. Instead, the kinds of supports which fell within Item 18 (Exercise physiology and personal well-being activities) were determined to be professional services aimed at developing an individual program to build an applicant's physical capacity (paraphrased).

1. As such, provision of a piece of exercise equipment did not fit the description of the kind of supports allowed for. Such an omission was seen to be intentional.

1. Considering Item 34 of Schedule 1 (Therapeutic Supports) the Tribunal in Roberts determined that the kinds of supports described in column 2 referred again only to services, and not to provision of pieces of equipment.

1. The resulting conclusion was that the requested piece of equipment was not an NDIS support and could not be funded under the Scheme.

1. The respondent relies on Item 2 of Schedule 2 to argue that professional indemnity insurance is of a kind expressly declared to not be an NDIS support. Column 2 of item 2 refers to 'travel insurance, life insurance, income protection insurance, home and contents insurance, car insurance, and excess insurance for novated vehicles'.

1. While having regard to the Explanatory Memorandum and its reference to non-exclusive 'kinds of supports' I think in this case, the absence of any reference to 'and any other like insurances' makes it safer to apply the 'express reference' statutory interpretation principle.

1. I therefore find that professional indemnity insurance is not specifically barred in Schedule 2 as an NDIS support.

1. However, I am unable to find any item specifically described in column 2 of Schedule 1 which allows for the kind of support under which professional indemnity insurance might sit.

1. When specifically queried in relation to this matter the applicant was also unable to direct the Tribunal to any item in column 2 of Schedule 1 which might authorise the requested support as an NDIS support.

1. It is the inevitable conclusion, in applying the reasoning in Roberts and Hyde, that the requested support of professional indemnity insurance for the Board, is not an NDIS Support.

1. Section 34 of the NDIS Act sets out the cumulative requirements that must be met before the CEO (and the Tribunal when standing in her shoes) may be satisfied a requested support may be funded as a reasonable and necessary support under the Scheme. Section 34(1)(f) requires that the support must be an NDIS support for the participant.

1. For the reasons set out above I find the requested support, professional indemnity insurance for the Board, is not an NDIS support and cannot be funded under the Scheme.

1. Section 10(6) of the NDIS Act provides a mechanism that allows the CEO of the Agency to determine (on application by the participant) that a support that would generally not be an NDIS support, would be a support for that participant.

1. Such a declaration requires an application to the CEO which demonstrates:

1. the requested support would replace one or more other NDIS supports;

1. the cost of the support will be equal to or less than the replaced support; and

1. the new support would produce an equal or better outcome.

1. No such application has been made in this matter and it is not within the Tribunal's power to make such a determination.

1. I have found that pursuant to the Transitional Rules, the support in dispute is not an NDIS Support.

1. On the basis of that finding I find the applicant's application has no reasonable prospect of success.

1. Given this I will dismiss the application under section 101(1)(b) of the ART Act.

[1] Item 1, section 99 of the National Disability Insurance Scheme Act 2013

[3] FSWN and National Disability Insurance Agency [2025] ARTA 114 (FSWN)

[5] Barthel and Australian National University (Compensation) [2019] AATA 548, [36]