Nairn v National Disability Insurance Scheme Agency [2017] AATA 242 was a somewhat technical decision, focusing on the internal review and Tribunal review processes. At [60] the Tribunal concluded:

Parliament has clearly separated the steps in the decision-making process. The CEO has the power to review a participant’s plan on his own initiative or as required by ss 48(5) or (6) or after making a decision to do so under s 48(2). When the CEO conducts a review of a participant’s plan under s 48, that must lead to the CEO’s facilitating a new plan with the participant under Division 2 of Part 2 of Chapter 3 of the NDIS Act. As Note 2 to s 49 explains, that will lead to a decision to approve a new statement of participant supports under s 33(2). Parliament has provided that the decision to make that new statement of participant supports is a reviewable decision but it has not provided that the review process itself that leads to that decision is a reviewable decision.

The underlying dispute was in relation to concerns with the current accommodation arrangements for the NDIS participant and a request for a reviewed plan which would have been more expensive.

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