Salathiel and CEO, National Disability Insurance Agency (Practice and procedure)
[2025] ARTA 1366
•15 August 2025
Salathiel and CEO, National Disability Insurance Agency (Practice and procedure) [2025] ARTA 1366 (15 August 2025)
Applicant/s: Claire Salathiel
Respondent: CEO, National Disability Insurance Agency
Tribunal Number: 2024/9878
Tribunal:Deputy President K Dordevic
Place:Sydney
Date:15 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 – Tribunal’s power to stay an application – transfer of monies between funding categories in participants plan – utilisation of participants plan - prejudice against 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
On 26 November 2024, Ms Salathiel 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 15 August 2024 to 14 August 2025.
The supports in dispute as at the time of Ms Salathiel’s application were:
a)supported independent living at a 1:1 ratio with active overnight support;
b)41 hours per annum of occupational therapy; and
c)continence aid consumable.
On 15 July 2025 Ms Salathiel ’s representative, Mr Mark Brown, lodged an application for a stay order, stating:
Because the Applicant currently has no funding for essential daily support that has occurred or will occur between July 1 and August 15, we seek an order to the effect:
That the Agency use its power to vary Claire Salathiel’s current plan such that funding already allocated to non-‘core’ categories, but remaining unspent, is moved to the ‘core’ category, such that attendant care services received between July 1 and August 15 can be claimed from that remaining amount without obstruction by the Agency.
This order would fall within the Tribunal’s S32(2) ART Act power to make interim orders “affecting the operation or implementation of the decision to which the proceeding relates”. The decision which is under review is the same decision which imposed the split of funding across categories and the related restrictions.
The Respondent objected to the stay application in written submissions dated 15 July 2025:
…
We refer to the request for a reimbursement and plan replenishment. We acknowledge the email from Ms Maalouf. However, we confirm the Agency’s position is that the invoice for $13,000.00 will not be reimbursed as these supports have not been considered reasonable and necessary and were not provided according to the NDIS plan. The Agency is willing to implement a plan replenishment on a “like for like” basis to ensure that Ms Salathiel continues to have access to funds in the interim.
…An interlocutory hearing was convened on 14 August 2025. The Respondent was represented at that hearing by Mills Oakley. Ms Salathiel was represented by Mr Brown and did not attend.
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. It does not include decisions to refuse to permit accessing funding from a Capacity Building – Improved Daily Living budget to fund other supports.
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.
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
Mr Brown’s submissions can be summarised as follows. The previous and current plan are grossly inadequate to meet Ms Salathiel’s needs. The ‘reset’ of the plan has partially remedied the crisis Ms Salathiel found herself in. There is no basis for the CEO to determine that Ms Salathiel’s plan should no longer be self-managed. He disputes any suggestion that Ms Salathiel is at risk of overutilizing funds; in fact, he stressed that the requirement of plan management does not obviate such a risk. Further, without the Tribunal taking a broader view of the phrase ‘for the purpose of ensuring the effectiveness of the review” in subsection 32(2) of the ART Act, Ms Salathiel is unable to participate in the substantive hearing on an equal footing and so she would be denied procedural fairness. Therefore, the Tribunal should issue an order that unexpended funds from non-core supports be moved to core supports. Mr Brown did not directly respond to the Tribunal’s questions as to the financial consequences to Ms Salathiel were the stay to be granted and she over expended her funds nor specifically whether she had the capacity to meet any demand to recover spending on supports that are ultimately determined not to be reasonable and necessary.
The Respondent’s view is that the change to plan-management is appropriate as Ms Salathiel overspent in respect of the 15 August 2024 plan. Therefore, a plan-managed arrangement will permit a greater level of oversight of plan spending, balancing choice and control. Additionally, the Tribunal does not have jurisdiction to consider the request to direct that available funding for stated supports fund other supports, as this is not a reviewable decision pursuant to section 99 of the NDIS Act.
Consideration
Ms Salathiel originally sought review with this Tribunal of a NDIS statement of supports set down in the plan approved on 15 August 2024, which was self-managed. The Tribunal understands that an invoice for $13,000 was not reimbursed as the Agency did not consider that the supports were reasonable and necessary and so were not provided in accordance with the plan.
Subsequently plan replenishment was required and a new plan was entered into on 22 July 2025 which largely mirrored the previous funding available under the 15 August 2024 plan. However, the funds were no longer self-managed and were instead plan-managed. Application of subsection 103(2) of the NDIS Act to these facts means that the request for review is also taken to be a request to review the new plan.
There can be no doubt that the Tribunal does not have jurisdiction to consider the decision not to transfer remaining funds from Ms Salathiel’s Capacity Building – Improved Daily living budget to fund other expenditure to make up any shortfall in expenditure. Being satisfied that this is not a reviewable decision under section 99 of the NDIS Act, it so follows that the Tribunal cannot make an order as sought by Ms Salathiel.
I next considered the stay application in respect to the fund management.
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 limited to the issue of plan management ought to be granted.
It is not in dispute that a plan replenishment was required and there are $13,000 in invoices that the Agency has refused to pay as they contend that the funds were expended for supports that were not included in Ms Salathiel’s plan. I accept that in not granting the stay Ms Salathiel has limited choice and control over the expenditure of her funds. However, I am not satisfied that this amounts to an irreversible prejudice. The evidence of over-expenditure weighs in favour of refusing the stay application. There is no suggestion that Ms Salathiel would be able to repay a debt to the Agency were she to incur non-funded costs and was ultimately unsuccessful in her application to this Tribunal.
After balancing the prejudice to Ms Salathiel 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. This conclusion is reached taking a broad construction of the provision as advocated by Mr Brown.
Accordingly, the application is refused.
Decision
The application to stay the operation of the reviewable decision is refused.
Date(s) of hearing: 14 August 2025 Advocate for the Applicant: Mr Mark Brown Solicitors for the Respondent: Ms Jacqueline Ziesel, Mills Oakley
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