Mr Alex Anderson, by his Plan Nominee and CEO, National Disability Insurance Agency (Practice and procedure)

[2025] ARTA 1551

Mr Alex Anderson, by his Plan Nominee and CEO, National Disability Insurance Agency (Practice and procedure) [2025] ARTA 1551 (27 August 2025)

Applicant:Mr Alex Anderson, by his Plan Nominee

Respondent:  CEO, National Disability Insurance Agency

Tribunal Number:                2024/8517

Tribunal:Deputy President K Dordevic

Place:Sydney

Date:27 August 2025

Decision:The application to stay the operation of the reviewable decision is refused.  

..........................[SGD]..............................................

Deputy President K Dordevic

Catchwords

NATIONAL DISABILITY INSURANCE SCHEME – practice and procedure – application for stay of reviewable decision – Tribunal’s power to grant the application – funding periods in participants plan – utilisation of supports in participants plan – prejudice to respondent if stay were granted – 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

1. Mr Anderson has a current 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 his participant plan. Since lodging his application there have been new plans approved. Relevant to this application it includes statements of participant supports dated 25 June 2025 and 25 July 2025.

2. On 30 July 2025 an application to stay the decision to approve a statement of participant supports dated 25 July 2025 was received by the Tribunal. This application was lodged by Mr Anderson’s mother, Ms Annette Anderson, who is also his plan nominee. The basis of the application was outlined as follows:

   25/07/2025 the NDIA created a new plan for the applicant
   The plan had a large reduction in community access hours,
   Only 30 days of overnight support for the year and very restrictive funding periods.

   …

   The Applicant has access to the scheme for severe intellectual disability and fluctuating and progressive neurological disabilities that impact him 24 hours a day 365 days per year.

   These changes and restrictions put Axel and his family at significant risk as highlighted in the recent letter from his treating psychiatrist, occupational therapist and remedial specialist and accompanying incidents that were contributed to due to the impacts on the continuity of his care from plan depletion from funding restrictions.

   The Applicant lives in a regional area with highly nuanced support needs as highlighted by his psychiatrist in the accompanying letter. The planning periods, removal of community access hours and overnight restrictions have wreaked havoc on the continuity of his care and have contributed to severe pain and suffering in the Applicant due to severe exacerbation of his accepted but unsupported extremely rare neurological condition that makes his hands and legs feel like they are on fire.

3. In response to the question ‘Describe the order you want’ Ms Anderson wrote:

   Removal of funding periods
   Stay of the overnight supports for the duration of the plan
   Reinstatement of community access hours as per previous plan detail in the respondents statement of issues from March

4. The Respondent objected to the stay application and provided written submissions dated 25 August 2025.

5. Submissions in respect of the stay application were provided on Mr Anderson’s behalf on 27 August 2025.

6. An interlocutory hearing was convened on 27 August 2025. Mr Anderson did not attend. He was represented by Mr Davison of the Young People in Nursing Homes Alliance. Ms Anderson was also in attendance. The Respondent was represented at that hearing by Mr Young of Mills Oakley.

   The legislation

7. 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.

8. 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.

9. 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 considered the interests of any person who may be affected by the review of the decision.

10. 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.

11. 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.

12. 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.

13. Subsection 100(6) of the NDIS Act states that a reviewer of a decision may confirm, vary or set aside the reviewable decision.

14. 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.

15. Subsection 103(2) of the NDIS Act states that if a request is made for review of a statement of participants supports or a participant’s plan and before a decision on review is made there is a variation to a statement of participant supports or a new plan, the request for review is also taken to be a request for review of the decision to vary the statement of participant supports or the new plan.

    Submissions

16. I am satisfied that the parties have been given a reasonable opportunity to make submissions. I have also considered the interests of any person who may be affected by the review of the decision, including Ms Anderson.

17. Mr Davison’s submissions can be summarised as follows.

18. The preferred outcome is not to secure a stay of the decision in contention (that is, the plan dated 25 July 2025). The request is narrower, being to stay the implementation of the application of monthly funding periods with the July 2025 statement of supports. Further, it is requested that the Tribunal to order that a single funding period applies to the provision of all supports within the July 2025 plan.

19. Narrowing the scope of the stay is based on the submission that the Tribunal’s power is not limited to simply staying the decision in its entirety. It also includes the power to issue an order otherwise affecting the operation or implementation of part of the decision, provided the Tribunal is persuaded it is desirable to do so to ensure the effectiveness of the review.

20. The current plan is does not meet Mr Anderson’s needs and in fact places him, his family, his support workers and first responders at significant risk of harm. If monthly funding periods continue, within a short period Mr Anderson’s Home and Living supports funding will be exhausted and unable to be replenished until the next monthly anniversary. Further, without adequate support provided until the Tribunal can determine the matter, Mr Anderson is at high risk of being hospitalised, where there is a risk of severe consequences to his mental and physical health. This will in turn potentially increase the costs to the Respondent post discharge.

21. The monthly funding is premised on the provision of 1:2 support for nine hours per day and inactive overnight support. This is untenable. The Respondent is ‘potentially reckless, even wanton as to the inherent safety risks’[1] that this poses. Instead, the ability to flexibly accessing funding will allow Mr Anderson and his carers to remain safe whilst the substantive application is determined. Without this flexibility, Ms Anderson will be hampered in her ability to represent her son’s interests at the Tribunal.

    [1] Submissions regarding the applicant’s stay application, folio 7.

22. To the issue of the utility of granting the stay order given that the June 2025 statement of participant supports also stipulated a monthly funding period, it was submitted that the effect of the stay would not be to revive the June 2025 statement of participant supports.

23. It is submitted that Mr Anderson will suffer irreversible prejudice if the stay is not granted, whereas the Respondent will not suffer any prejudice if the stay application were successful.

24. The Respondent’s view is that there is no basis to grant the stay. If it were granted it would give rise to a jurisdictional issue as contemplated by Deputy President Mischin in Dunn and National Disability Insurance Agency [2022] AATA 4061 (Dunn) where there is no scope to ‘revive’ the previous statement of participant supports which had ceased to have effect. Alternatively, if this approach is not correct and if the stay was granted there is no utility in granting the stay as the preceding statement of participant supports also dictates monthly funding. Reviving this previous statement of participant supports would also result in a reduction of supports for Mr Anderson, most notably seeing a reduction of overall funding of $97,853.05 and inactive overnight care at a 1:1 ratio would revert to inactive overnight care at 1:2 ratio. Either option prejudices Mr Anderson.

25. The Respondent also submits that in refusing the stay application, any prejudice to the Applicant would not rise to the level of irreversible prejudice.

    Consideration

26. I first considered the stay application in respect to narrow issue of the fund management as requested on behalf of the Applicant.

27. Both the Applicant and Respondent’s submissions refer to the matter GAP-AAA and GAP-AAB; Child Support Registrar [2024] ARTA 1 whereby 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. The principles are succinctly outlined at paragraphs [12] to [15] of that decision and do not require repeating. I adopt Kyrou J’s reasoning for the purposes of determining this application.

28. Having considered the submissions presented I am not persuaded that a stay application as sought is permissible.  

29. Firstly, I do not accept the proposition that should an order be made to cease monthly funding it would necessarily follow that annual funding would be reinstated.

30. It is not in dispute that in seeking a change to the funding arrangements the Applicant is seeking to access funding ‘earlier’ than would be permissible if funding was provided in monthly increments. That is, additional support workers would be engaged over and above the type and ratios currently funded by the Agency. That this will result in overutilisation of the Applicant’s funding there can be no doubt.  I accept that, having properly ventilated their case and with the provision of further evidence, it may well be the case that this Tribunal will ultimately determine that Mr Anderson’s current funding is inadequate to meet his high and complex needs.

31. If the Tribunal proceeded to issue the stay order as sought (that is, the funding should be provided on an annual and not monthly basis), this would in effect be setting aside the decision under review and substituting a new decision. This is not the proper purpose of a stay order. I am firmly of the view that this is best properly tested at hearing. In any event, not granting the stay in the terms sought will have no bearing on ensuring the effectiveness of the review. There is nothing to suggest that if Mr Anderson was success on review the decision would be ‘rendered nugatory’.[2]

    [2] GAP-AAA and GAP-AAB; Child Support Registrar [2024] ARTA 1 at [12].

32. Further, I am not persuaded that in not granting the stay as sought there would be irreversible prejudice to Mr Anderson, especially as the matter was programmed for an expedited hearing (as negotiated in these proceedings). In reaching my conclusion on this point I do not mean to suggest that I do not accept Ms Anderson’s statements and Mr Davison’s submissions that Mr Anderson engages in self-harming and violent acts (albeit involuntary). However, I am not satisfied that this amounts to an irreversible prejudice.

33. In fact, I find that there would be irreversible prejudice to Mr Anderson if I were to grant the stay. I accept the reasoning of Deputy President Mischin in Dunn[3] that in a case such as this where the 25 July 2025 plan replaced the 25 June 2025 plan pursuant to subsection 37(3) of the NDIS Act the effect of a stay order would result in Mr Anderson having no supports at all as the previous plan has ceased to have effect.

    [3] Dunn and National Disability Insurance Agency [2022] AATA 4061.

34. After balancing the prejudice to Mr Anderson and to the Agency and giving due consideration of what the interests of justice requires in this particular case, I am not satisfied that a stay is desirable for the purposes of securing the effectiveness of the review.

35. Accordingly, the application is refused.

    Decision

36. The application to stay the operation of the reviewable decision is refused.

Date(s) of hearing:	27 August 2025
Advocate for the Applicant:	Mr Steven Davison
Solicitors for the Respondent:	Mr Taylor Young, Mills Oakley