3. There are two decisions under review before the Tribunal:

a) The decision of 11 April 2025 which affirms the Statement of Participant Supports approved on 15 January 2025 (made under section 100(6)) (First Decision); and

b) The Statement of Participant Supports approved on 11 July 2025 under s33(2), which is also under review before the Tribunal pursuant to s103(2)(e) (Second Decision);

4. The terms of the agreement are that the First Decision is affirmed while the Second Decision is set aside and in substitution it is decided...

1. On 18 August 2025 an assistant registrar of the Tribunal advised the parties that it was apparent that the Tribunal only had power to either affirm, vary or set aside a reviewable decision pursuant to section 105 of the ART Act, which was inconsistent with the terms of agreement at clauses 3 and 4. The Tribunal attached a proposed draft consent agreement for approval, removing any reference to affirming the 11 April 2025 decision and setting aside the 11 July 2025 decision, relevantly stating:

The parties having reached agreement and having signed terms and the Tribunal being satisfied that a decision in the terms of the agreement or consistent with those terms would be within the powers of the Tribunal; pursuant to section 103 of the Administrative Review Tribunal Act 2024, the Tribunal sets aside the decision under review made on 11 April 2025, which varied an approval of a statement of participant supports dated 15 January 2025 (as reassessed on 11 July 2025 pursuant to section 48 of the National Disability Insurance Scheme Act 2013) and, in substitution, decides that:

1. The proposed draft is consistent with proforma templates developed by the Tribunal.
2. On 21 August 2025 the respondent advised that it did not agree with the alternative draft, stating that the combined effect of subsections 33(2), 37(3) and 103(2) of the NDIS Act is that there are separate decisions before the Tribunal contained within single application, consistent with the decision of Nott and National Disability Insurance Agency (Practice and Procedure) [2025] ARTA 780 (Nott).
3. The Registrar referred the matter for consideration by a member of the Tribunal and so it was set down for an interlocutory hearing on 28 August 2025 to determine whether the consent order consistent with the terms filed could be made.
4. The Applicant was represented by his mother and the CEO by Mr Vercoe, principal legal officer at the NDIA.
5. Immediately following the hearing I issued an order pursuant to subsection 103(2) of the Act in the following terms:

The parties have reached agreement and have signed terms and the Tribunal is satisfied that a decision consistent with those terms would be within the powers of the Tribunal.

Pursuant to section 103 of the Administrative Review Tribunal Act 2024 the Tribunal sets aside the statement of participant supports approved on 11 July 2025, which is under review before the Tribunal pursuant to paragraph 103(2)(e) of the National Disability Insurance Scheme Act 2013, and in substitution decides:

1. That the date by which the Respondent will reassess the plan (the reassessment date) is 12 months after the day on which the supports under the statement of participant supports approved on 11 July 2025 are specified in the Applicant's statement of participant supports (the implementation date).

1. To specify the following reasonable and necessary supports that will be funded under the National Disability Insurance Scheme:

1. 20 hours - Assessment Recommendation Therapy or Training - Other Professional (to replace current 10 hours of Mealtime Management Plan Funding).

1. The management of the funding for supports under the Applicant's plan is to remain the same as the management of the support budgets in the Applicant's plan dated 11 July 2025, except for short-term accommodation to be Agency-managed.

1. Except for the supports specified in paragraph 1, the reasonable and necessary supports in the 11 July 2025 statement of participant support should be provided, on a pro rata basis, for the period from the implementation date until the reassessment date (excluding any one-off assistive technology supports already used).

1. Other than the improved daily living and consumable funding (which will have a single 12-month funding period), the funding periods in the plan will be evenly provided in 3-month funding periods.

1. Subsection 32(1) of the NDIS Act states that a participant of the NDIS must have a plan facilitated by the CEO.
2. Section 33 of the NDIS Act outlines matters that must be included in a participant's plan. Subsection 33(2) states that this includes a statement of participant supports.
3. The CEO, at a person's request or on her own initiative, can vary a participant's plan pursuant to section 47A of the NDIS Act; the variation in such circumstances is a change to the statement of participant supports. A delegate of the CEO can then approve a new statement of participant supports pursuant to subsection 33(2) of the NDIS Act. Further, the CEO may also, either at a person's request or on her own initiative, reassess a participant's plan pursuant to section 48 of the NDIS Act.
4. Section 37 of the NDIS Act states that a new plan comes into effect when the CEO has received the participant's statement of goals and aspirations and has approved the statement of participant supports. Paragraph 37(3)(a) states that the previous plan then ceases to have effect when the plan is replaced by another plan. Subsection 37(4) states that for the purposes of paragraph 37(3)(a), if a replacement plan comes into effect for a participant while another plan is in effect, the other plan is replaced by the replacement plan.
5. A person who is directly affected by a reviewable decision may request a review of the reviewable decision. Reviewable decisions under the NDIS Act include a decision to approve a statement of participant supports in a participant's plan, by operation of subsection 99(1) Item 4.
6. The delegate of the CEO reviewing that decision can either affirm, vary or set aside the decision pursuant to subsection 100(6) of the NDIS Act.
7. Subsection 103(1) of the NDIS Act states that applications may be made to this Tribunal for review of a decision made under subsection 100(6) of the NDIS Act. Section 12 of the ART Act states that a decision is a reviewable decision if an Act provides for an application to be made to the Tribunal for review of the decision.
8. Subsection 103(2) of the NDIS Act states that if an application is made to the Tribunal for review of a decision made under subsection 100(6) that relates to a statement of participant supports and, before the Tribunal makes its decision, the CEO varies the plan or a new plan comes into effect (including the statement of participant supports contained therein), then the application is also taken to be an application to vary or approve the statement of participant supports in the new plan.
9. Section 103 of the ART Act confers a discretion on the Tribunal to make a decision that is agreed by the parties (whether the agreement relates only to part of the proceeding or the reviewable decision in toto) if satisfied that a decision in the terms of the agreement would be within the Tribunal's powers, amongst other requirements.
10. Section 105 of the ART Act provides that in relation to a reviewable decision, the Tribunal must either affirm, vary or set aside the reviewable decision.

1. The Tribunal proposed terms to the respondent and applicant based on its proforma template, setting aside the 11 April 2025 internal review decision and referred to the reassessment that took place 11 July 2025 pursuant to section 48 of the NDIS Act.
2. The respondent's position was that this was not satisfactory and urged the Tribunal to make two decisions: to affirm the internal review decision dated 11 April 2025 and set aside the 11 July 2025 decision and substitute a new decision in the terms agreed by the parties.
3. It is self-evident that the Tribunal cannot both affirm and vary the same decision pursuant to section 105 of the ART Act and I accept this is not what the respondent is seeking.
4. As already outlined, on 28 August 2025 I set aside the 11 July 2025 decision in the terms agreed between the parties as each of the requirements set down in subsection 103(1) were satisfied in respect of the 11 July 2025 decision. This disposes of the substantive dispute which the applicant had sought review by this Tribunal.
5. Therefore, the remaining issue is whether the Tribunal should affirm the 11 April 2025 decision.
6. There is no dispute that in the general run of cases where terms of agreement are reached in the NDIS Jurisdictional Area of the Tribunal, whether the superseded statement of participant supports or plan are affirmed or dismissed on the basis that they are lacking in substance makes no difference to the outcome for an applicant.
7. Clearly in this case, by operation of subsection 103(2) of the NDIS Act there were two decisions before the Tribunal that are part of the one application: the internal review decision and the new plan that came into effect on 11 July 2025. Subsection 103(2) provides the Tribunal jurisdiction to not only review the internal review decision made pursuant to subsection 100(6) but also every other subsequent approval of a statement of participant supports or variation to a statement of participant supports until the matter is finally determined by the Tribunal.[1]
8. Further, it cannot be in doubt that subsection 103(2) of the NDIS Act is crucial to the efficient management of proceedings before the Tribunal and beneficial for parties in ensuring the timely resolution of matters. It is helpful to consider the history of subsection 103(2) which was succinctly outlined by Senior Member French in Nott:[2]

...The mischief that s 103(2) was designed to overcome was the frustration of applications for review of decisions concerning participant plans by the creation of a new participant plan. Prior to the amendment, if a new plan was created, the review was limited to the superseded plan. Review of the superseded plan was usually of no utility to the participant because it was no longer operative. Subsection 103(2) operates to place before the Tribunal plans made after the decision under review so that the review has continuing utility for an Applicant who remains dissatisfied by subsequent plan approval decisions. (Emphasis added)

1. Thus, practically, subsection 103(2) of the NDIS Act means that any subsequent decision made to vary or approve a statement of participant supports is also a reviewable decision pursuant to section 12 of the ART Act and so does not require a separate application (or applications) to the Tribunal.
2. In PTJR and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 196 (PTJR) the Tribunal, constituted by Senior Member French, summarised the legislative scheme in respect to the plan replacement.[3] Specifically, it stated that an existing plan comes to an end when it is replaced by a new plan, there is no concurrency of plans, the planning process is linear and prospective and the funding approved in a statement of participant supports includes funding that can be expended from the date of the statement of participant supports.[4]
3. In written submissions the respondent referred to the decisions of this Tribunal in Nott and Forrest and National Disability Insurance Agency [2025] ARTA 1131 (Forrest), where in both decisions, replaced or 'spent' statement of participant supports decisions before the Tribunal were dismissed on the grounds that they were lacking in substance, pursuant to paragraph 101(1)(a) of the ART Act. The respondent takes no issue with the decisions of Nott and Forrest per se, acknowledging that there was no reason to directly deal with the superseded statements of participant supports in both cases.
4. The terms proposed by the respondent in this application are generally consistent with those proposed in Nott. In that case the respondent requested that the internal review decision and a later decision to approve a statement of participant supports be affirmed and that the most recent decision to approve a statement of participant supports be set aside.
5. The respondent contends that this is the preferable and safer course in this case, notwithstanding the fact that those superseded statements of participant supports have not been the subject of substantive consideration by the Tribunal. There are four reasons underpinning their preferred approach, being that an applicant cannot withdraw one of the decisions under review, the parties cannot consent to a partial dismissal, it is not necessarily the case in all applications that an earlier decision within an application is lacking in substance and finally that the Tribunal's power to issue an order consistent with the terms of agreement does not invite consideration of the substance of the terms.
6. I accept that there can be no partial withdrawal or partial consent dismissal under sections 95 and 96 the ART Act. Similarly, there cannot be a partial dismissal under section 101 of the ART Act. Each of these provisions refers to the 'application' and not the decision or decisions before the Tribunal.
7. Relevant to this application, PTJR provides a helpful analysis of subsection 103(2) of the NDIS Act:

65...Subsection 103(2) operates to place before the Tribunal plans made after the decision under review so that the review has continuing utility for an Applicant who remains dissatisfied by subsequent plan approval decisions.

66. Subsection 103(2) is prospective in its scope. It places before the Tribunal any 'new' plan made after the decision under review. It does not operate retrospectively to place before the Tribunal spent plans that had been replaced by a later plan prior to the decision under review. Subsection 103(2) does not confer on the Tribunal jurisdiction at large to review the entire trajectory of a participant's participation in the NDIS. Subsection 103(2) is thus of no assistance to the Applicant in this case. It does not place before the Tribunal for review the approvals of the Statements of Participant Supports in Plans 12, 13 and 14. (Emphasis added)

1. For the reasons that follow I have determined that the form of the Tribunal's proforma template is to be preferred over the respondent's proposal that the Tribunal make a decision to either affirm, vary or set aside each reviewable decision before it.
2. The operation of subsection 103(2) of the NDIS Act is untested in the Federal Court and, as such, there is no current authority to guide the Tribunal. In such circumstances, I adopt the reasoning of both Nott and PTJR and so find that though a spent plan or spent statement of participant supports are technically decisions before the Tribunal, these decisions do not require consideration by the Tribunal should the matter proceed to be determined and, relevantly, when the Tribunal makes a decision in accordance with the terms of agreement reached by parties.
3. In cases such as this one where the substantive dispute between the parties was settled by a previously issued order pursuant to section 103(2) of the ART Act, I am satisfied that it is appropriate to dismiss a superseded plan or statement of participant supports pursuant to paragraph 101(1)(a) of the ART Act on the basis that it is lacking in substance rather than affirm pursuant to section 105. This reasoning is consistent with section 37 of the NDIS Act.
4. In this case though terms were reached, the Tribunal did not have the benefit of considering the superseded statement of participant supports or plan. It cannot be assumed that the decisions regarding the previous statement of participant supports or plan are correct (and so affirmed) without the Tribunal having the benefit of hearing argument and considering any relevant evidence, even though the parties may agree that the decision should be affirmed.
5. In reaching this conclusion I accept that a lack of substance is not merely made out because a superseded plan or statement of participant support could be affirmed.[5] There may well be merit to claims for additional supports during the periods that the superseded statement of participant supports were in place. Dismissing any superseded plans or statement of participant supports for lacking in substance is not equivalent to a finding that there was no arguable claim for supports or that the original request for review has no merit. Rather, determining that that aspect of an application lacks substance relates to the fact that there can be no utility in the Tribunal either affirming, varying or setting aside that decision (or decisions) because it has been replaced by another plan by operation of section 37 of the NDIS Act. In short, the dismissal is because the superseded plan or statement of participant supports does not warrant any legal attention because it has been replaced. I am of the view that it would be inappropriate to affirm a decision in such circumstances.
6. In reaching this conclusion, I agree with the respondent's general proposition that it is for the parties to determine what terms are suitable to resolve the dispute, subject to the Tribunal being satisfied that it has the power to make that decision. Of that there can be no doubt. However, it is equally important that the Tribunal achieve efficiencies in receiving, drafting and processing terms of agreement, and that there is a uniform standard of drafting and processing such terms that reflects the legislative scheme, including section 37 of the NDIS Act.
7. So, I dismiss the application for consent orders in respect to affirming the internal review decision dated 11 April 2025 on the basis that it is lacking in substance pursuant to paragraph 101(1)(a) of the ART Act.

Pursuant to paragraph 101(1)(a) of the Administrative Review Tribunal Act 2024 the parties' application for consent orders in relation to affirming the internal review decision of 11 April 2025 is dismissed on the ground that it is lacking in substance.

[1] Statement of Facts, Issues and Contentions at [13].

[4] Accepting that the exception to this is where a participant incurs an expense during the operation of a statement of participant supports and it is then replaced by a subsequent statement of participant supports and the participant seeks funding for support costs incurred during the superseded statement of participant supports: Nott at [24].

[5] Statement of Facts, Issues and Contentions at [39] - [42].