Santagada and CEO, National Disability Insurance Agency (Practice and procedure) [2025] ARTA 676 (Link to JADE).
This decision appears to be the first to address the question of whether the NDIS (following legislative amendments in 2024) is responsible for supports for a person who had impairments arising from an acquired brain injury in circumstances where the person was said not to have taken reasonable action to obtain those supports from another statutory scheme – WorkSafe Victoria (WSV).
The dispute required consideration of recent legislation, the National Disability Insurance Scheme Amendment (Getting the NDIS back on Track No. 1) Act 2024 (Cth). The Amending Act introduced a new section 10 regarding a definition of NDIS support which stipulates that for a support to be a NDIS support, the Minister must be satisfied that the support is appropriately funded or provided through the NDIS. The Amending Act also changed section 34(1) in relation to assessing reasonable and necessary supports. Under the new section 34(1)(f), the support must be an NDIS support for the participant.
Following evidence on the first day of hearing, the Tribunal was satisfied that the Applicant had not requested the current or requested NDIS supports from WSV.
The Tribunal held at [73]:
In practical terms, the Applicant is required to request the supports he seeks from WSV. The Respondent contended that the Applicant would also need to exhaust his appeal options in relation to any relevant decision by WSV declining supports. It is unnecessary for the Tribunal to decide that question, given the Applicant has not made a comprehensive request to WSV or initiated even the first stage of challenging any decision through the conciliation process. His SOPS will effectively remain empty until such time as he has shown to have appropriately challenged any WSV. Depending on the outcome of any challenge and/or appeal, including the identification of a type of support that is outside the legislative responsibility of WSV, the Applicant may again be eligible for reasonable and necessary supports provided or funded by the NDIS.
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