Profound Autism Network

What is the Administrative Review Tribunal (ART), and when can I apply?
The ART is an independent body that conducts a full merits review of NDIA decisions (Administrative Review Tribunal Act 2024 (Cth) – s 12). You can apply for review if you disagree with a S.100 Review Internal Review Decision (IRD) about your child’s NDIS plan, for example, therapy hours, support-worker funding, safety equipment, behaviour support, or other reasonable and necessary supports.
Most families of children with Level 3 autism, minimal or no spoken language, profound functional impairment, global developmental delay, and high safety risks reach the ART when the NDIA applies a rigid dosage limit that does not reflect their child’s circumstances.

Who can apply, and what is the time limit?
Under s 17 of the ART Act, a person whose interests are affected by the decision (usually the participant or their representative) can apply. The general rule (s 18) is 28 days from the date you receive the Internal Review Decision. The Tribunal can extend this time (s 19) if it is fair to do so.

What is the NDIA’s obligation once I apply?
Section 56 of the Administrative Review Tribunal Act 2024 requires the NDIA (as the decision-maker) to use its best endeavours to assist the Tribunal to reach the correct or preferable decision. This includes being transparent about the evidence it relies on, especially when applying population-level research (such as Sandbank et al. 2024) to a child with profound needs and safety risks.

What are “directions submissions” and why are they important?
Directions submissions are a formal request (often filed before the first directions hearing) asking the Tribunal to order the NDIA to clarify exactly what evidence it intends to rely on. They are a powerful tool under s 56 to ensure the proceeding is decided on a complete and testable evidentiary basis, particularly important when the NDIA seeks to impose therapy-hour limits without evidence that children “in like circumstances” (r 3.2 of the NDIS Supports Rules) were included in the studies.

What evidence will the Tribunal consider for a child with profound needs?
The Tribunal looks at child-specific evidence of functional impairment, safety risks, carer capacity, and real-world outcomes. It must be satisfied that any research relied upon (including Sandbank et al. 2024) actually applies to children with Level 3 autism, minimal verbal communication, profound adaptive impairment, and elevated risk of harm. Tribunals have repeatedly found that one-size-fits-all dosage caps are neither safe nor lawful when the evidence does not demonstrate their applicability to the relevant cohort.

Will the ART take my child’s safety risks seriously?
Yes. Elevated risk of harm (elopement, drowning, self-injury, absconding) is a central consideration under s 34 of the NDIS Act and r 3.2 of the NDIS (Supports for Participants) Rules. Tribunals have funded intensive supervision, environmental safeguards, and 1:1/2:1 support precisely because inadequate funding leaves the child unsafe.

What can the Tribunal actually do?
The ART conducts a full merits review. It can:
Set aside the NDIA decision.
Substitute a new decision (including a completely new Statement of Participant Supports);
Remit the matter to the NDIA with directions.
In recent cases involving children with profound needs, the Tribunal has routinely approved materially larger, safer, and more appropriate packages than the NDIA initially offered.

What are the key Practice Directions I should know about?
Common Procedures Practice Direction 2026 covers the general process, documents, directions hearings, and obligations of parties.
Expert Evidence Practice Direction 2026 sets strict rules for expert reports and concurrent evidence.
Both are available on the ART website and apply to NDIS matters.

What practical steps should I take right now?
Keep detailed records of daily functioning, safety incidents, and regression. This includes video, photographic evidence and witness statements.
Gather independent functional assessments.
Consider filing directions submissions before the first hearing.
Seek advocacy support early, as government-funded advocacy places are limited; many families successfully self-represent with clear, child-focused evidence.

Does this constitute legal advice?
No. This page summarises the Administrative Review Tribunal Act 2024, NDIS legislation, and common issues families face at the time of publication. Every child’s and family’s circumstances are unique. You will need to obtain personalised support from a disability advocate and/or disability lawyer for the ART process. Some families may qualify for legal aid services in their state.

Where can I find more information?
Further resources are available at: https://qai.org.au/ndis-resources/

Legislation and practice guidance
ART Practice Directions and other Guidance
Administrative Review Tribunal Act 2024
NDIS Legislation

Queensland Advocacy for Inclusion have developed some great resources that can be used by the Profound Autism community.

Statement of Lived Experience –Supports Dispute. This template can be used to explain the participant’s lived experience, including how their disability affects their daily life and why the requested supports are necessary.

For participants with profound autism or significant communication disability, it may not be possible for them to prepare a written statement or explain their experience conventionally. In these circumstances, supporting evidence may need to include videos, photographs, behavioural observations, carer statements, therapist reports, daily records, or other material that captures the participant’s real-life experience.

A participant’s behaviour may be their primary form of communication. The Tribunal should give proper consideration to this, including evidence that shows distress, dysregulation, sensory overload, self-injurious behaviour, communication attempts, support needs, and the impact of inadequate or inappropriate supports. Clear examples and real-life evidence can help demonstrate why the requested supports are reasonable and necessary.

Carer Statement –Supports Dispute. This template is for family members, carers, or support people to explain how the absence of appropriate supports affects you and those who assist you.

Letter to Expert – Supports Dispute. This template can help you request information or evidence from a treating professional or other expert to support your application or appeal.

Table of Requested Supports – Supports Dispute. Use this table to clearly set out each support you are requesting and match it with the evidence you have provided.

FAQ – Reasonable and Necessary Supports – Explains what “reasonable and necessary” means and how to prove it. Fact sheet – PDF (942 KB) Fact sheet – Word (2 MB)

Documents for Reasonable and Necessary – Fact sheet– Guidance on the evidence the NDIA and ART look for.

FAQ – How to Navigate Appeals for Supports – Step-by-step guide to the ART process for support disputes.

FAQ – Lodging an ART Appeal – Practical fact sheet on appealing an Internal Review Decision to the ART.

Where can I find more information?
Further resources are available at: https://qai.org.au/ndis-resources/

Q: How do I request T-documents?

A: After lodging your ART application, ask the NDIA to provide the T-documents as soon as possible, as these are documents that include all the material relevant to the decision under review.

This request is separate from an FOI request. It should be sent to the NDIA’s ART correspondence team, with the ART copied in.

Send to: ART.CORRESPONDENCE@ndis.gov.au
CC: artreviews@art.gov.au

Subject:
Request for T-documents – [Participant Name] – [ART Matter Number]

Email template:

Dear NDIA ART Correspondence Team,

I refer to the Administrative Review Tribunal application lodged on [insert date] in relation to [participant name], NDIS number [insert number], ART matter number [insert matter number].

Please provide the T-documents for this matter within 28 days.

This includes all documents the Respondent intends to rely upon for this matter.

Please provide the documents electronically in a searchable PDF format.

Kind regards,
[Your full name]
[Parent / Child Representative / Nominee]
[Phone number]
[Email address]
[NDIS number]

Q: I received the T-documents. What do I do with them?

A: Once you receive them, read them carefully and cross-check with your submissions. Check whether the NDIA has included all relevant information, including reports, internal notes, reasons, policies, research, or guidance that may have influenced the decision.

If anything appears to be missing, write to the NDIA ART Correspondence Team, and ask them why the material is missing and attach the missing documents if you have them to add to the T documents.

Q: What documents should I submit during the T-Documents stage

At a minimum, you should prepare a clear summary of the supports in dispute so that the Respondent understands exactly what remains contested.

The summary should identify:

• The support that was requested.
• Whether the NDIA approved or refused the support;
• Why the support is needed; and
• The evidence relied on in support of the request.

For clarity, the Applicant should include a table summarising the disputed supports. The table should be redacted or de-identified so that it does not include names, participant details, provider details, addresses, dates of birth, NDIS numbers, claim references, or any other information that could identify the Applicant or other persons.

An example de-identified summary table is set out below.

Support Workers – Core Supports

Transport – Core Supports

Alternative Requests

If the Tribunal determines that the requested Support Worker, Occupational Therapy and Dietitian supports are not reasonable and necessary, the Applicant seeks the following supports by way of alternative resolution to access the community and prevent functional capacity deterioration:

Helpful templates are available at:
https://qai.org.au/ndis-resources/

Q: What is a Participant Information Access Request?

A Participant Information Access request, often called a PIA request, is another way to ask for information from the participant’s NDIS file.

It may be faster than a full FOI request and should be made as soon as possible after the ART application is lodged.

Use the official form here:
https://www.ndis.gov.au/about-us/sharing-information/participant-information-access-request-form

In the “additional information” section, you can write:

“This request is urgent because there are current Administrative Review Tribunal proceedings: [insert case number]. The next directions hearing is listed for [insert date]. Please provide all planner notes, delegate notes, internal review notes, PACE records, meeting notes, emails, justification records, and documents relied on for the statement of participant supports or internal review decision.”

A: Generally, this is not recommended and unlikely to be funded by the NDIS.

Smartwatches (such as Apple iWatch devices) are considered mainstream, multi-purpose products and are only funded if approved as a replacement support.

This is important because:

• Replacement supports can result in reductions to funding in other areas (e.g., therapy or support hours), and
• They are assessed differently from disability-specific supports.

Q: When should I use a Freedom of Information (FOI) request?

A: In most cases, no. Smartwatches are not designed specifically for disability-specific supports.

Use FOI when you need documents that may not appear in the participant’s ordinary NDIS file.

This may include:

• any internal NDIA guidance relied upon to make your decision;
• Technical Advisory Branch advice;
• research relied on by the NDIA;
• internal ABA or therapy dosage guidance;
• case management guidelines
• documents showing how research such as Sandbank et al. (2024) was considered or applied;
• internal case management notes, once a case manager has been assigned;
• independent medical examination protocols, if relevant;
• emails, file notes, policy documents, and decision-making material.
• transcript of planning meeting and internal review meeting (if held).
• external case manager notes
• internal review notes

The FOI process is especially important where the NDIA appears to rely on a general rule, policy, research paper, internal guideline, or agency position that has not been disclosed.

Important note: You do not need to wait until an ART application has been lodged. An FOI request can be made at any time. It can be useful to make the request early, particularly where you need to understand what information the NDIA relied on, or whether a broader internal policy or practice influenced the decision.

If the NDIA does not provide the relevant material through T-documents, PIA, or FOI, you may also ask the Tribunal to issue a summons requiring the production of specific documents.

This can be important because the NDIA, as the respondent, may seek extensive documents from the participant, family, providers, schools, therapists, or other third parties. The participant should also be entitled to seek the documents the NDIA relied on, particularly where those documents go to the basis of the decision under review.

The process should be fair and transparent. If the NDIA relies on a policy, research paper, internal guideline, technical advice, or general position to justify refusing or reducing supports, that material should be identified and produced.

Q: What should I do if the NDIA asks for more time to respond to my FOI request?

In our experience, agreeing to an extension of time may assist the NDIA to manage its own statutory obligations, but it may not assist the participant or their representative in obtaining documents quickly.

We are aware of circumstances where an extension was agreed to, but the requested documents were still not provided for a significant period despite repeated follow-up. In that situation, the person was not clearly alerted to the risk that delay could affect the timeframe for seeking review by the Office of the Australian Information Commissioner. This created an additional procedural hurdle before the review request could even be considered.

For that reason, participants and representatives should be cautious before agreeing to any extension of time. One option is to refuse the extension, ask the NDIA to comply with the statutory timeframe, and then consider seeking review or making a complaint to the OAIC if the NDIA does not respond within time.

This is general information only and is not legal advice. Participants and representatives should seek independent legal advice about their own circumstances before deciding whether to agree to an extension or take any review step.

Template response:

Dear FOI Team,

I do not consent to an extension of time.

There is a current Administrative Review Tribunal proceeding: [insert case number]. The next directions hearing is listed for [insert date].

The requested documents are required so the Tribunal can consider the matter on a complete evidentiary basis and determine the correct or preferable decision.

Please process the request within the statutory timeframe.

If the documents are not provided by [insert date 30 days from the FOI request], I will consider lodging a complaint with the Office of the Australian Information Commissioner for deemed refusal.

Kind regards,
[Your name]

Q. Is there a quicker way to find relevant NDIA documents?

A. Yes. Check the NDIA FOI Disclosure Log first:
https://www.ndis.gov.au/policies-rules-and-legal/about-freedom-information-foi/foi-disclosure-log

If a document appears relevant, email the NDIA FOI team and ask for a copy.

Send to: foi@ndis.gov.au

Subject:
FOI Request – Copy of Document from NDIA Disclosure Log – [Document Title or Reference]

Email template:

Dear FOI Team,

I refer to the NDIA FOI Disclosure Log entry titled [insert title and reference number].

I request a copy of this document under the Freedom of Information Act 1982 (Cth). If only part of the document was previously released, I request the full version, subject only to any lawful redactions. If the document listed has been superseded, I request that you supply me with the current version in operation.

This request is made in the context of current Administrative Review Tribunal proceedings: [insert case number] for a vulnerable participant at risk of harm.

Please provide the document electronically in a searchable PDF format.

Kind regards,
[Your full name]
[Parent / Child Representative / Nominee]
[Phone number]
[Email address]
[NDIS number]

Q. What should I do while waiting for the Respondent’s documents?

A. Keep moving.

While waiting, you should:

• keep a simple chronology of events;
• record the date of every request, email, phone call, and response;
• keep copies of everything sent and received;
• organise existing evidence by support category;
• prepare a table of the supports in dispute;
• Identify what evidence is still missing.
• Update your submissions once the documents are received.

When the T-documents, PIA material, or FOI material arrive, compare them against the NDIA’s decision and your own evidence.

If the documents reveal missing material, undisclosed guidance, or a failure to consider important evidence, you can raise this with the Tribuna
https://www.ndis.gov.au/policies-rules-and-legal/about-freedom-information-foi/foi-disclosure-log

Q.Should I keep photographs and videos as evidence

A. Yes. This can be very important.

Some participants, especially people with profound autism or significant communication disability, may not be able to explain their experience in words. Their behaviour may be their main form of communication.

Clear, dated photographs and short videos can help show the Tribunal what daily life is really like. This may include evidence of:

• severe sleep dysregulation;
• distress or dysregulation;
• damage to property;
• safety risks;
• self-injurious behaviour;
• the need for supervision;
• the impact on carers and family functioning;
• What happens when supports are insufficient?

This evidence should be respectful, relevant, and carefully stored. Keep each file dated, with a short description of what it shows.

Real-world evidence can be powerful because it helps the Tribunal understand the participant’s actual support needs, not just what appears on paper.

Q. How do I apply for a confidentiality order at the ART?
A. In limited circumstances, the Tribunal can make an order under section 70 of the Administrative Review Tribunal Act 2024 to:
Hold all or part of the hearing in private
Keep the name, address, or other identifying information of a party or witness confidential
Prohibit or restrict publication of the Tribunal’s decision (or parts of it)
This is particularly relevant for NDIS reviews involving children with profound needs, where sensitive information about behaviours, absconding risks, medical conditions, family circumstances, or safety plans may need protection.
How to request a confidentiality order You (or another party) can ask for a confidentiality order at any stage of the review — including in your directions submissions, at a directions hearing, or by writing directly to the ART registry.
Your request should clearly state:
Exactly what information or part of the proceeding you want kept confidential
Why there is a good reason (for example, risk of harm to the child or family, privacy of a profoundly disabled child, or sensitive behavioural/medical evidence)
The Tribunal will only make the order if it is satisfied that the harm from disclosure outweighs the public interest in open justice (see section 71 of the Act).
For many NDIS cases involving children, the Tribunal makes non-disclosure orders early in the proceeding to protect the child’s identity and sensitive information.
Tip: Raise this early if your case involves highly sensitive material, it helps the Tribunal manage the evidence safely and can be included in your directions submissions.
Official source: ART website – After you apply (Confidentiality orders)

Q. What if the NDIA says it will not provide a Statement of Issues until I submit all my evidence?
A. Pre-empt this legal tactic. As soon as you receive the T-documents, it is good practice to write to the NDIA and ask for its Statement of Issues within 21 days to help understand the NDIA’s position, including what issues the NDIA says are unresolved and what further evidence it says may be required.

Send the request to:

To: ART.CORRESPONDENCE@ndis.gov.au
Or: the assigned external case manager or NDIA lawyer, if one has been allocated
CC: artreviews@art.gov.au

The purpose of the Statement of Issues is to identify what remains in dispute. It should help the participant understand the NDIA’s position, including what issues the NDIA says are unresolved and what further evidence it says may be required.

At a directions hearing or case conference, the NDIA may say that it will not provide a Statement of Issues until the participant has filed all of their evidence. You should be prepared for this.

A simple and firm response is:

“The participant needs to understand the issues in dispute before they can know what further evidence is required. The NDIA should identify the issues it says remain unresolved, including any evidence it says is missing.”

You should not feel pressured to agree to an unfair timetable or to file all evidence before the NDIA has clearly explained its position.

If the NDIA is directed to file a Statement of Issues, you should ask the Tribunal for enough time after receiving it to:

• consider the NDIA’s position;
• identify what evidence is still needed;
• obtain any further reports or supporting material; and
• respond properly.

Unless the Tribunal has made directions requiring you to act sooner, it is reasonable to say that the participant should not be expected to finalise their evidence before they understand the NDIA’s case. Do not let the Tribunal make directions for you to submit evidence before you have received the first Statement of Issues.

Common Issues the NDIA May Raise to Delay or Extend ART Matters
Strategic Guidance for Applicants – Administrative Review Tribunal

The NDIA frequently uses requests for further information as a means of prolonging proceedings. While some requests are legitimate requests for evidence, many are vague, repetitive, or disproportionate. The Tribunal’s role is to reach the correct or preferable decision as efficiently as possible. Applicants who respond with clarity, precision, and discipline are far more likely to force the NDIA to crystallise its position and progress the matter.

The following guidance is designed to help you respond effectively, protect your position, and keep the proceedings moving toward resolution.

Q. What issues does the NDIA commonly raise to delay an ART matter?

The NDIA frequently states that it requires additional information before it can reconsider its position. Common requests include therapy notes, progress reports, daily timetables, carer statements, school or preschool records, employment information, and updated assessments and the summonsing these records if the participant does not supply them.

Strategic response:
Do not simply supply whatever is asked. Instead, reply in writing (copying the Tribunal registry) as follows:

“The participant requests that the NDIA identify, with precision:
(a) the specific issue(s) it says remains in dispute;
(b) the precise evidence it claims is missing;
(c) why that evidence is necessary to resolve the dispute;
(d) how the evidence relates to the supports sought under s 34 of the NDIS Act; and
(e) whether the NDIA will reconsider its position if that evidence is provided.
The participant seeks this information to ensure any further evidence is targeted and to avoid unnecessary delay.”

This forces the NDIA to articulate its real concerns and exposes vague or fishing expeditions.

Q. What if the NDIA says there is “limited evidence”?

This is one of the NDIA’s most common and least helpful responses. Vague assertions of “limited evidence” on progress, current funding adequacy, or reasonable and necessary criteria should never be accepted at face value.

Strategic response:
Reply:

“Please identify with precision:
(a) the exact evidence the NDIA says is missing;
(b) the specific issue(s) to which that evidence relates; and
(c) whether the NDIA will reconsider its position if that evidence is provided.
The participant is entitled to know the case it must meet in order to prepare targeted material and to progress the matter efficiently.”

This shifts the burden back onto the NDIA to justify its position.

Q. What if the NDIA asks for therapy progress reports?

The NDIA often seeks detailed reports covering frequency, goals, strategies trialled, progress measurement, and generalisation to home/school/community settings.

Strategic approach:
Do not allow therapists to produce lengthy, unfocused reports. Instead, provide a short, tightly drafted report (ideally 2–4 pages) that directly addresses the s 34 criteria. The report should focus on:

• Current functional capacity and limitations
• Disability-related risks (safety, elopement, self-injury, carer breakdown)
• Why existing supports are insufficient
• Why the requested support is necessary, effective, and value for money

Recommended instruction to therapists:
“Prepare a concise report that explains what the participant can and cannot do, the risks that arise without the requested support, and why the support meets the reasonable and necessary criteria. Avoid lengthy descriptions of sessions attended.”

Q. What if the NDIA says it needs more information about daily routines?

The NDIA may request a detailed weekly timetable. While this can feel intrusive, a well-prepared timetable is often powerful evidence.

Strategic approach:
Prepare a clear, factual timetable (not a perfect one) that demonstrates:

• When support is actually required
• When behaviours of concern or safety risks occur
• The gap between available informal support and actual need
• The unsustainable burden on family/carers

Tip: Use colour coding or simple annotations to highlight risk periods and support gaps. This is far more persuasive than pages of narrative.

Q. What if the NDIA says parents are expected to provide “normal parental care”?

This is a frequent and often misguided argument, particularly in cases involving young children with profound autism.

Strategic response:
Do not argue that parents should provide no care. Instead, focus on what is substantially beyond ordinary parental responsibility for a child of the same age without disability. Key examples include:

• Constant or heightened supervision due to elopement, absconding, or serious injury risk
• Severe sleep dysregulation requiring active overnight intervention
• Self-injurious behaviour or aggression necessitating specialist behaviour support
• Inability to communicate basic needs (pain, hunger, danger, distress)
• Toileting/continence needs well beyond developmental norms
• Carer burnout and risk of family breakdown

Frame the evidence around intensity, duration, risk, and disability-specific need, not merely the fact that care is being provided.

Q. What if the NDIA asks for evidence about informal supports?

The NDIA often seeks to minimise the need for formal supports by pointing to family, friends, or mainstream services.

Strategic response:
Distinguish clearly between:

• Support that is actually and reliably available
• Support that is theoretically available but practically unworkable
• Support that has been tried and failed
• Support that is unsuitable due to complexity, risk, or the participant’s specific disability profile

A short, targeted carer statement addressing these points is usually more effective than voluminous records.

Q. What if the NDIA says the requested support may duplicate another support?

The NDIA sometimes argues that one therapy or support can achieve the outcomes of another (e.g., OT addressing executive functioning so support workers are unnecessary).

Strategic response:
For each disputed support, prepare a short table or statement answering:

1. What is the distinct purpose of this support?
2. Why is the proposed provider the most appropriate person to deliver it?
3. What specific gap or risk remains if this support is not funded?
4. Why cannot existing funded supports achieve the same outcome?

This demonstrates that the request is not duplication but a necessary and targeted response to an identified functional need.

Q. What if the NDIA says a support is a health responsibility, not an NDIS responsibility?

This issue commonly arises with psychology, dietetics, exercise physiology, continence supports, and pain-related interventions.

Strategic response:
Focus on the purpose of the support, not its clinical title. A support is more likely to be NDIS-funded where it is directed to:

• Building or maintaining functional capacity
• Disability-specific skill development or behaviour support
• Reducing disability-related barriers to daily living or community participation

It is more likely to be treated as health responsibility where it is directed to diagnosis, acute medical treatment, medication management, or clinical management of a health condition.

The evidence should explicitly link the support to the participant’s disability-related functional needs.

Q. What if the NDIA wants to do an independent assessment and asks for consent?

The NDIA sometimes seeks an “independent assessment”, in proceedings.

Strategic response:
Do not agree immediately. Reply in writing:

“Before the participant can consider consenting to an independent assessment, (in person or on paper) please provide in writing:
(a) the name and qualifications of the proposed assessor;
(b) the precise questions the assessor will be asked to address;
(c) the documents the assessor will receive;
(d) whether the participant may provide additional documents;
(e) whether a support person may attend;
(f) whether the assessment will be conducted in a trauma-informed and disability-appropriate manner; and
(g) the proposed timeframe for the report and whether the participant will receive a copy.
The participant reserves the right to seek independent legal advice before providing consent.”

Q. What if the NDIA asks for consent to an independent assessment?

The NDIA occasionally proposes an independent assessment, often late in the proceeding and sometimes as a tactic to further delay resolution or to obtain evidence favourable to its position.

Strategic response – If you agree at all, agree only to a paper-based (file review) assessment.

In cases involving profound autism, minimal verbal communication, trauma history, or significant behavioural and sensory sensitivities, an in-person assessment carries a high risk of producing unreliable or incomplete evidence and can cause unnecessary distress to the participant. Where consent is to be given, it should be strictly limited to a paper-only review of the existing material.

Reply promptly in writing (copying the Tribunal registry) in the following terms:

“The participant consents to an independent assessment on a paper-only basis (that is, a file review of existing documents only) on the following conditions: (a) the NDIA first provides the participant, in writing, with the full name, qualifications, and relevant experience of the proposed assessor; (b) the precise questions the assessor will be directed to answer; (c) the complete list of documents the assessor will be given; (d) confirmation that the participant’s evidence has been forwarded to the assessor and that the participant may provide additional documents or submissions to the assessor up until [insert date]; (e) confirmation that no in-person assessment or direct contact with the participant will occur; (f) confirmation that the assessment will be conducted in a trauma-informed and disability-appropriate manner, with particular regard to the participant’s profound autism, complex communication needs, and any known behavioural or sensory sensitivities; (g) the proposed timeframe for completion of the assessment and provision of the report; and (h) confirmation that the participant will receive a full copy of the report at the same time it is provided to the NDIA. The participant expressly reserves the right to seek independent legal advice and to make submissions to the Tribunal before any consent is given or the assessment proceeds.”

Additional strategic options in profound needs cases

Where the participant has profound autism, minimal verbal communication, a history of trauma, significant behavioural risks, or sensory sensitivities, it is frequently appropriate to go further and:

• Decline consent outright; or
• Write to the Tribunal seeking directions that any assessment (if ordered) must be conducted by a practitioner with demonstrated expertise in profound autism and complex communication needs, and that the assessment process itself must not expose the participant to unnecessary distress or risk. The assessor must clearly identify any areas in which they are not qualified to provide expert opinion.

The Tribunal has broad powers under the Administrative Review Tribunal Act 2024 and the Common Procedures Practice Direction 2026 to control the conduct of proceedings, including the manner in which any independent assessment is undertaken. Late requests for independent assessments that appear designed to delay rather than genuinely assist the Tribunal in reaching the correct or preferable decision should be firmly resisted.

Q. What if the NDIA proposes summonses to providers, employers, schools, or other third parties?

The NDIA may seek broad summonses for clinical notes, employment records, school files, or child protection records.

Strategic response:
Do not consent to overly broad or fishing expeditions. A measured reply is:

“The participant does not object to the production of documents that are directly relevant to the supports in dispute. However, any summons must be confined in scope to documents that are necessary to resolve the specific issues in dispute and must not amount to a broad or intrusive search through private or sensitive records. The participant reserves the right to object to any summons that is oppressive, irrelevant, or disproportionate.”

Seek legal advice immediately if the proposed summons targets highly sensitive material (medical records, child protection files, employment records, or information about other family members).

Q. What if the NDIA says it needs additional time to consider new evidence?

Repeated requests for extra time can significantly delay proceedings.

Strategic response:
Ask the Tribunal to impose a clear timetable:

“The participant seeks directions that:
(a) the participant file any further evidence by [date];
(b) the NDIA file its response by [date];
(c) the NDIA state its final position on all issues by [date]; and
(d) the matter be listed for a case conference or directions hearing on [date].”

This prevents open-ended delay and forces the NDIA to crystallise its position.

Q. What if the NDIA says there is “no formal onus of proof” but still demands more evidence?

While the Tribunal must reach the correct or preferable decision and there is no formal onus in the court sense, the practical reality is that the applicant must persuade the Tribunal that the supports meet s 34.

Strategic approach:
Stay disciplined. Provide targeted evidence that directly addresses:

• The support requested
• Why is it needed (functional impact + risk)
• Why is current funding insufficient
• Why is it value for money and likely to be effective
• The consequences of not funding it

Do not be drawn into providing endless peripheral material.

Q. How can I prevent the matter from becoming bogged down by repeated evidence requests?

The single most effective strategy is to force clarity and a timetable.

Send the following written request (copying the Tribunal):

“The participant requests that the NDIA identify, in writing and by [date]:
(a) all remaining issues in dispute;
(b) all further evidence it says is required; and
(c) whether it will reconsider its position if that evidence is provided.
The participant seeks a clear timetable so this matter can be resolved without further unnecessary delay.”

Q. What should I ask the Tribunal for if the NDIA keeps delaying?

You may seek directions that require the NDIA to take concrete steps by fixed dates. Useful directions include:

• The NDIA is to file its final Statement of Issues by a set date
• The NDIA is to identify all evidence it claims is missing and the relevance of that evidence
• The NDIA is to confirm whether it seeks any independent assessment
• The NDIA is to particularise any proposed summonses and their scope
• The NDIA is to respond to the participant’s evidence by a fixed date
• The NDIA is to state whether the matter is ready for conciliation or hearing

The NDIA is entitled to test the evidence. It is not entitled to conduct an open-ended fishing expedition or to use repeated requests as a de facto stay. The Tribunal expects both parties to act consistently with the overarching purpose of the ART Act — the just, efficient, and timely resolution of disputes. Applicants who respond with precision, discipline, and a clear focus on the real issues in dispute are consistently more successful in bringing matters to a timely and favourable resolution.