Introduction
A frequent issue that arises in NDIS appeals is, if I pay my (or my child’s) support expenses (eg, therapy fees) while I am disputing the NDIS plan funding at the Administrative Appeals Tribunal, will the NDIA reimburse me for these payments if my appeal is ultimately successful?
This is something of a grey area at law. Reimbursement is not expressly provided for in the National Disability Insurance Act 2013 (Cth). The Administrative Appeals Tribunal does not in this Act, nor the Administrative Appeals Tribunal Act 1975 (Cth), have the power to order that the NDIA reimburse a participant applicant.
Recent AAT decision
However, the Tribunal’s 20 October 2023 decision in PBZB and National Disability Insurance Agency [2023] AATA 3385 has provided some clarity on how existing provisions work. Para [37] of the decision (by Member Barker) directly states (my italics):
Although the Tribunal cannot order reimbursement, as appears understood and acknowledged by the parties, the Tribunal does have power to determine that a support is reasonable and necessary in any SOPS [statement of participant supports] it has jurisdiction to review, including a past SOPS. Pursuant to s 39 of the [NDIS] Act, the Agency must comply with the SOPS in a plan. Accordingly, if the Tribunal finds a support is reasonable and necessary, and a participant can sufficiently demonstrate that they have expended personal funds relating to the acquisition of that support, then the Agency is required to reimburse that participant. What evidence the Agency considers is necessary to provide reimbursement is solely a matter for itself and its auditors.
That is, if through the appeals process, the Tribunal determines that in the past, a support was reasonable and necessary, then the National Disability Insurance Agency (NDIA) should reimburse the participant for any out-of-pocket expenses they have incurred to purchase that reasonable and necessary support.
Agreement to reimburse in AAT settlements
In several Tribunal settlements I have supported participants with, the NDIA has agreed to reimburse them for equipment and allied health expenses they purchased because of past NDIS underfunding, once the parties have agreed those supports should have been funded in the past. The agreement has been noted in the section 42C (settlement) terms of agreement.
Processing of agreed reimbursement
In practice, the NDIA’s Finance area manages the processing of any agreed or determined reimbursement. They will typically ask the participant to provide relevant invoices (with sufficient detail of the supports paid for) and proof of payment (eg, bank transfer records). They aim to process in 21 days, but client experience is that it can takes several weeks before payment is received.
Reimbursement issues can be complex. Please contact Special Voices for legal advice tailored to your circumstances.
