King and CEO, National Disability Insurance Agency (Practice and procedure)
[2025] ARTA 1497
•22 August 2025
King and CEO, National Disability Insurance Agency (Practice and procedure) [2025] ARTA 1497 (22 August 2025)
Applicant/s: Reulyn King
Respondent: CEO, National Disability Insurance Agency
Tribunal Number: 2025/0628
Tribunal:Deputy President K Dordevic
Place:Sydney
Date:22 August 2025
Decision:The application to stay the operation of the reviewable decision is refused.
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Deputy President K Dordevic
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – practice and procedure – application for stay of reviewable decision – whether Applicant’s funding remains self-managed – Tribunal’s power to stay an application – prejudice against Respondent if stay were granted – misuse of funding in participant’s plan – purchase of goods not considered reasonable and necessary – relevant discretions – stay refused
Legislation
Administrative Review Tribunal Act 2024 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
Cases
GAP-AAA and GAP-AAB; Child Support Registrar [2024] ARTA 1
Statement of Reasons
On 30 January 2025 Ms King lodged an application for review of a decision made by the Chief Executive Officer (CEO) of the National Disability Insurance Agency (Respondent) to approve a statement of participant supports for inclusion in her participant plan for the period 4 November 2024 to 3 November 2025.
The supports in dispute as at the time of the application were:
a)increased funding for physiotherapy;
b)increased funding for hydrotherapy; and
c)self-management of the current plan.
On 26 July 2025 Ms King’s parents and representatives lodged an application for a stay order, stating:
The N.D.I.A want Reulyn to be plan managed, and denied her physiotherapist an allied health professionals requests for more hours to continue my care
For Reulyn to be self managed to pay the bills and the physiotherapist and allied health professionals to be allowed,
If Reulyn is not allowed to be self managed then the bills wont be able to be paid as the rates for being planned managed will not cover the physiotherapists and allied health professionals costs, and they will not be able to continue her care. Providers are thin on the ground on the North West Coast of Tasmania, and her current one, who we’ve have had for several years, is the best qualified on the coast to deal with her disabilities. The loss of her would be detrimental to Reulyns’s outcomes and the positives advances she has made through her care. The hours the NDIA are allowing and not enough to continue her advancement towards a measure of independence.
The Respondent objected to the stay application in written submissions dated 4 August 2025:
…
The Respondent notes that pursuant to s32 (1) of the ART Act, a review application does not usually stay the decision under review. Although the ART has the power to order a stay, there is no evidence to suggest that such an order will ensure the effectiveness of the review as required by s32(2) of the Act. The Respondent submits that the application should simply be dealt with on its merits, noting that funding is available under the current plan.
…
An interlocutory hearing was convened on 21 August 2025. The Respondent was represented at that hearing by Mr Guest of Sparke Helmore Lawyers. Ms King was represented by Ms Jane Ogunkoya, Advocacy Tasmania. Ms King’s parents were also in attendance and made submissions on behalf of their daughter.
The legislation
The Tribunal’s power to make a stay order is found in subsection 32 of the Administrative Review Tribunal Act 2024 (ART Act). Subsection 32(1) provides that, generally, making an application to the Tribunal does not affect the operation of the decision or taking action to implement the decision.
Subsection 32(2) of the Act permits an exemption to this general rule. Upon application by a party to a proceeding the Tribunal may make an order staying the decision or operation or implementation of a decision if the Tribunal considers that it is desirable to do so for the purpose of ensuring the effectiveness of the review.
Before making such a decision, subsection 32(7) states that the Tribunal must not make a stay decision unless the parties have been given a reasonable opportunity to make submissions and the Tribunal has taken into account the interests of any person who may be affected by the review of the decision.
Section 46 of the National Disability Insurance Scheme Act 2013 (NDIS Act) requires a participant to spend money only on NDIS supports and in accordance with the participant’s plan.
Section 44 of the NDIS Act outlines when a participant must not manage the funding for supports under the participant’s plan. This includes, at paragraph 44(1)(c), when the CEO is satisfied that section 46 of the NDIS Act would not be complied with.
Section 99 of the NDIS Act sets down the decisions that are reviewable by the CEO. This relevantly includes a decision to approve a statement of participant supports in a participant’s plan. Subsection 100(6) of the NDIS Act states that a reviewer of a decision may confirm, vary or set aside the reviewable decision.
Subsection 103(1) of the NDIS Act states that an application can be made to this Tribunal for decisions that are made by a reviewer under subsection 100(6) of the Act.
Submissions
The submissions made on behalf of Ms King can be summarised as follows. Self-management is essential in order to meet Ms King’s needs. Without self-management, Ms King cannot be provided with essential hydrotherapy and physiotherapy. The NDIS pricing arrangements and price limits are inadequate to meet Ms King’s actual therapy costs. Ms King’s care team now charge for therapy on the basis that Ms King is a private patient, rather than an NDIS recipient, which is at a reduced costs. Ms King is no longer transported to hydrotherapy by her physiotherapist and is instead transported by her mother. Ms King now only attends one hydrotherapy session per week. As a result of the change to plan management, the family have not drawn on plan funding and have incurred about $7,000 in therapy costs. There is no risk of overutilising funds. To address the Respondent’s concerns about misuse of funding, it is suggested that monthly funding is authorised.
The Respondent’s view is that the change to plan-management is appropriate as Ms King has misused funding in the past, including by purchasing Thermomix utensils, a portable clothes line and a gaming controller. There is no suggestion that under plan-management arrangements the funds will be overutilised; in fact, funding for therapy has not been drawn on since the change to plan management. Further, there is no evidence to suggest that permitting plan management will ensure the effectiveness of the review.
Consideration
In the matter GAP-AAA and GAP-AAB; Child Support Registrar [2024] ARTA 1 Kyrou J, the President of the Tribunal, set down the relevant principles when considering a stay application in respect to subsection 127(1) of the ART Act (where a party can seek a stay order in guidance and appeal panel decisions). Subsection 127(1) largely mirrors the provisions subsection 33(2) of the ART Act. It is uncontroversial that the same principles apply when considering a stay application pursuant to subsection 33(2) of the ART Act. These principles are succinctly outlined in the decision:
12.A stay order will not be granted as a matter of course. Section 127(2) of the ART Act makes it clear that the power to make such an order is discretionary. A precondition to the exercise of the discretion to grant a stay order is the existence of material before the Tribunal indicating that the effectiveness of the referral application will be adversely affected in the absence of a stay. The effectiveness of the referral application will be adversely affected if the party seeking the stay would suffer irreversible prejudice if the stay sought were not granted, such as where a successful outcome before the GAP would be rendered nugatory. The existence of such prejudice would militate in favour of granting a stay.
13.The fact that the party seeking a stay is able to point to material indicating that the effectiveness of the referral application will be adversely affected in the absence of a stay does not necessarily mean that the Tribunal is required to exercise the discretion in favour of granting a stay order. That is because any prejudice to the party seeking a stay if the stay sought is not granted must be balanced against any prejudice to the party opposing the stay if the stay sought is granted. Thus, if the party opposing a stay would suffer irreversible prejudice if the stay sought is granted, that would militate against the granting of the stay.
14.It follows that consideration of an application for a stay will involve an examination of any prejudice to the party seeking a stay if the stay sought is not granted and any prejudice to the party opposing a stay if the stay sought is granted.
15.Ultimately, a decision about whether to grant a stay will depend on a balancing of all the considerations militating in favour of a stay with those militating against granting it, and reaching a decision based on what the interests of justice require in the particular circumstances of the case.
Having considered the submissions presented I am not persuaded that a stay in respect of the plan management issue ought to be granted.
It is evident that the change from self-managed to plan managed has caused significant distress for Ms King’s family. They are extremely concerned that this change inhibits Ms King attending regular appointments with her care team. As I understand it, the family have met Ms King’s therapy costs since the change to plan management from their own funds rather than drawing on NDIS funding because the NDIS pricing arrangements do not accurately reflect the actual costs associated with Ms King attending physiotherapy and hydrotherapy.
I accept that in not granting the stay it is likely that Ms King will continue to self-fund her therapy rather than draw down on available funds in her current plan. Nevertheless, I am not satisfied that this amounts to an irreversible prejudice if Ms King was ultimately successful in her application to this Tribunal.
It is arguable that granting the stay would amount to a prejudice to the Respondent. The submissions regarding previous misuse of funding weighs in favour of refusing the stay application.
After balancing the prejudice to Ms King and to the Agency and giving due consideration of what the interests of justice requires in this particular case, I am not persuaded that a stay is desirable for the purposes of securing the effectiveness of the review.
Accordingly, the application is refused.
Decision
The application to stay the operation of the reviewable decision is refused.
Date(s) of hearing: 21 August 2025 Advocate for the Applicant: Ms Jane Ogunkoya Solicitors for the Respondent: Mr Greg Guest, Sparke Helmore
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