Kakakios and National Disability Insurance Agency

This matter concerned an application by the Applicant, Ms Kakakios, for an order to stay a decision made by the National Disability Insurance Agency (NDIA). The NDIA's decision was that Ms Kakakios did not meet the criteria to access the National Disability Insurance Scheme (NDIS). The application was heard by P. Hunter M of the Administrative Appeals Tribunal (AAT).

The primary legal issue before the Tribunal was whether it had the power to grant a stay of the NDIA's decision, and if so, whether it was desirable to do so in the circumstances. The Applicant sought the stay to facilitate interim access to the NDIS pending the final determination of her review application. The NDIA argued that the Tribunal lacked the power to grant interim access to the NDIS, as this was not a decision contemplated by the NDIS Act, and that the Applicant was free to access other services.

The Tribunal considered section 41(2) of the Administrative Appeals Tribunal Act 1975 (AAT Act), which permits the Tribunal to make orders staying or otherwise affecting the operation of a decision to secure the effectiveness of a hearing. However, the Tribunal found that staying the NDIA's decision would have no utility for the Applicant, as a stay order does not grant access to the NDIS. Crucially, the Tribunal determined that there was no provision within the NDIS Act for interim access to the scheme, meaning the NDIA could not make such a decision, and consequently, the Tribunal could not review or substitute such a decision. To grant interim access would be to act *ultra vires*. Furthermore, the Tribunal considered that a stay was not in the Applicant's best interests, as it would delay the resolution of proceedings, and that such a delay was incompatible with the AAT Act's objectives of providing a quick review mechanism.

Consequently, the Applicant's application for an order staying the NDIA's decision pursuant to section 41(2) of the AAT Act was refused.