Stephan-Miller and National Disability Insurance Agency (Practice and procedure)
[2025] ARTA 43
•14 January 2025
Stephan-Miller and National Disability Insurance Agency (Practice and procedure) [2025] ARTA 43 (14 January 2025)
Respondent: National Disability Insurance Agency
Tribunal Number: 2024/8788
Tribunal:General Member Bubutievski
Place:Sydney
Date:14 January 2025
Decision:The application for a stay is granted on the following conditions:
(a)The stay shall lapse at the expiration of the period of six months from the date of this decision;
(b)The Applicant may only expend plan funds in the manner in which they have been allocated by the Respondent during the period of the stay.
Statement made on 14 January 2025 at 2:36pm
..................[SGD]...................
General Member Bubutievski
Catchwords
PRACTICE AND PROCEDURE – STAY APPLICATION – revocation of access to NDIS –prospects of success – consequences of refusal on the Applicant – consequences of grant on the Respondent – public interest – hardship – whether refusal renders final relief nugatory – timing
Legislation
Administrative Review Tribunal Act 2024 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
Cases
Australian Securities and Investments Commission v Administrative Appeals Tribunal (2009) 181 FCR 130; [2009] FCAFC 185
Australian Securities and Investments Commission v PTLZ [2008] FCAFC 164
Evans and Tax Practitioners Board [2019] AATA 1408
McDonald v Director General of Social Security (1984) 1 FCR 354
Mulligan v National Disability Insurance Agency [2015] 233 FCR 201
Oaklands and Australian Securities and Investments Commission [2011] AATA 199Scott v Australian Securities and Investment Commission [2009] AATA 798
Statement of Reasons
BACKGROUND
The Applicant is a 54 year-old woman who was granted access as a participant in the National Disability Insurance Scheme (NDIS) administered under the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) on 20 September 2019. This access was granted on the basis that the Applicant was a transferee from a defined program, and consequently was not required to meet the usual disability or early intervention criteria to have access to the scheme. This included the usual evidentiary requirements. Her application to be granted access to the NDIS states her primary disability to be fibromyalgia, with secondary disabilities of chronic fatigue syndrome, ischaemic heart disease and ankylosing spondylosis.[1]
[1] T-Documents, T4, 45.
On 15 February 2024 advice was received from the Agency’s Technical Advice and Practice Improvement Branch (TAPIB) that the Agency currently had insufficient evidence to determine if the Applicant still met the access criteria for her listed primary and secondary disabilities.[2] It was recommended that the Applicant be referred for an eligibility reassessment. This advice noted that the Applicant’s disability was originally recorded as ‘unspecified intellectual disability’, but that this was amended to major depressive disorder on 3 May 2019. It was unclear on what basis both disabilities were determined to be the Applicant’s primary disability.[3] Neither disability was listed on her application for access to the scheme.
[2] T-Documents, T43, 259.
[3] Ibid, 257.
After the interlocutory hearing the Respondent provided interaction notes which show that the Applicant’s primary disability was changed to major depressive disorder on 3 May 2019 based on advice from the Applicant that this was her primary disability.[4] The interaction notes also show that this advice was given in the context of the Applicant’s eligibility for the scheme not yet having been determined because the disabilities described in the application form of fibromyalgia, chronic fatigue syndrome, ischaemic heart disease and ankylosing spondylosis were considered by the Agency to be health related, rather than disabilities, and so the Applicant was considered not to meet the access requirements for the NDIS.
[4] Interaction notes 03.05.2019.
The interaction notes also show that the Agency communicated with the Applicant’s support co‑ordinator on 20 April 2020 seeking further information about the Applicant’s disability and noted that she seems to have a ‘significant level of health related impairments that are the responsibility of mainstream services’.[5] On 5 May 2020 it is recorded that the Applicant made a complaint to the Agency that she was not satisfied with a request for documents to reconfirm her diagnoses.[6] She subsequently provided some medical documentation and occupational therapy reports and the issue was not raised again until March 2023, when it was raised in the context of the supports sought by the Applicant.
[5] Interaction notes 20.04.2020.
[6] Interaction notes 05.05.2020.
On 15 March 2024 the Respondent wrote to the Applicant and requested additional information for the purpose of the eligibility check. The Respondent asked the Applicant to provide evidence which shows that she has an impairment which is permanent or is likely to be permanent and which substantially reduces her functional capacity. It also asked for any evidence which demonstrated that the Applicant would require support from the NDIS for life. The Applicant provided medical documents and a functional capacity assessment.
A second TAPIB advice of 3 September 2024 concludes that the Applicant does not meet either the disability or early intervention criteria for access to the NDIS.[7] Within the advice, it is noted that there was a qualifier in relation to the Applicant’s mobility:
the evidence is inconclusive as to whether the Applicant meets this domain in its entirety further objective information would be beneficial to determine the severity of reduced functional capacity in terms of mobility.[8]
[7] T-Documents, T50, 310.
[8] Ibid, 306.
No further objective information was obtained and on 9 September 2024 a delegate of the Chief Executive Officer of the National Disability Insurance Agency (NDIA or the Agency) (the Respondent) decided that the Applicant no longer met the access criteria and her status as a participant would be revoked from 7 October 2024. The Applicant sought an internal review and on 23 October 2024 a decision was made under section 100 of the NDIS Act, confirming the decision to revoke her access to the scheme (the Internal Review decision).
On 27 October 2024 the Applicant applied to the Administrative Review Tribunal (the Tribunal) for review of the internal review decision. The Tribunal has jurisdiction to review the decision by virtue of section 103 of the NDIS Act. This review is ongoing before the Tribunal.
The Applicant is represented in the review application by the Villamanta Disability Rights Legal Service. Pending the determination of the review application, an application was made by the Applicant’s representative for an order pursuant to subsection 32(2) of the Administrative Review Tribunal Act 2024 (Cth) (ART Act) to stay the decision of the Respondent (interlocutory application).
The interlocutory application was heard by the Tribunal on 18 December 2024.
SUBMISSIONS
Applicant’s submissions
The Applicant’s reasons for requesting a stay can briefly be summarised as follows:
·her physical strength has deteriorated since funding for physiotherapy ceased in October 2024, which places her at increased risk of falls, which would lead to hospitalisation;
·she has no assistance for cooking and cannot cook nutritional meals without assistance. This further increases her risk of falls and further heart issues;
·she is now paying to hire equipment previously funded through her NDIS plan and is experiencing financial hardship;
·she is unable to maintain her home and fears that she will be evicted in the context of previous tenancy problems.[9]
[9] Applicant Submissions, [15].
The Applicant argues that the two TAPIB advices and the internal review decision to revoke the Applicant’s access to the NDIS did not take into account relevant evidence that had been provided to the Agency. It proposes that the decision is so unreasonable that a reasonable decision-maker would not have made it; that it was based on findings of fact for which there was no evidence; and the decision-maker did not observe procedures it was required by law to observe. Therefore, the decision itself is ultra vires.
The Applicant submits that the medical evidence she has provided to the Agency since she became a participant in the NDIS have been consistent in their findings and have demonstrated a reduction in functional capacity. It is stated that the Applicant relies on support for the most basic of daily activities such as cooking, cleaning, changing her bed and doing the laundry and that her health and well-being are at immediate risk when these supports are not available to her.[10]
[10] Applicant Submissions, [22]-[23].
It is argued that there is an absence of good faith by the NDIA, in that it failed to adequately engage with the Applicant to explain the evidence required; it did not utilise the legislative framework available at section 50 of the NDIS Act to allow the Respondent to ask medical practitioners specific questions; it failed to take into account evidence subsequently provided; and it failed to conduct any kind of risk assessment as to the potential impacts of the decision on the Applicant or consideration of a transition to any other form of support.[11]
[11] Applicant Submissions, [24].
The Applicant argues that there is no evidence that the decision made to grant the Applicant access to the NDIS was wrong either at the time it was made, or subsequently.
Further, the Applicant argues that she was not granted procedural fairness in the making of the decision, and that if there was a failure to provide the requisite evidence, this is because the Respondent did not actually ask the Applicant to provide the evidence it needed:
a) When the Respondent commenced the eligibility reassessment process, these concerns were not communicated to the Applicant. Rather, the Respondent informed the Applicant that she may no longer meet eligibility requirements with a 10 page letter listing the criteria for NDIS eligibility and general information about evidence requirements for NDIS access (T46).
b) The 10-page letter provided no reasons why the Applicant’s situation had changed after 6 years as a participant and no information specific to the Applicant’s matter.
c) The letter mentioned that several documents had been submitted and were being reviewed, but did not identify these documents. The Applicant was not provided with a list of documents already reviewed by or on file with the NDIA.[12]
[12] Applicant Submissions, [30].
At the hearing, Mr Bowden, for the Applicant, argued that the Applicant would be prejudiced in the Tribunal’s proceedings if she did not have access to supports while the proceedings were on foot. Further, if she did not receive supports and was then subsequently successful in the substantive hearing, her condition would likely have deteriorated in the interim and there is no way for her to be compensated for the supports she has missed out on. It was argued that as the Respondent already has the outcome it is seeking there is no incentive for the Respondent to engage in a timely resolution of the matter, which is to the detriment of the Applicant.
Respondent’s submissions
The Respondent opposed a stay, even with conditions. The Respondent submits that only a person who has been found eligible to become a participant in the NDIS can be provided with services funded by the NDIS. The Respondent argues that the evidence to hand does not establish that the Applicant qualifies to remain an NDIS participant. Consequently, the impact of granting a stay would be to provide NDIS supports to a person who is not qualified to receive them. This is not the legislative intention. ‘The Respondent’s revocation decision ought to stand until there is further and better information including cogent evidence that supports the making of a more preferable decision.’[13]
[13] Respondent's Submissions, [32].
The Respondent notes that the reasons the Applicant gives for seeking a stay are similar to those she gave for seeking a change of circumstances review in October 2023, which was declined by the Agency. Further, the Respondent noted that although the Applicant’s health may have declined since she ceased receiving physiotherapy supports, physiotherapy was not a reasonable and necessary support funded in the Applicant’s plan. In fact, physiotherapy, counselling and massage therapy, all of which have been funded by the Applicant using her NDIS plan, had not been approved supports. The Applicant has an obligation to spend her plan funds in accordance with the plan allocation under section 46 of the NDIS Act.
The Respondent submitted that granting a stay would give the Applicant access to NDIS supports in circumstances where she does not meet the access criteria and may continue to spend public funds on services, treatments and items that are not approved or permitted under the NDIS Act. It also argued that there will be no incentive for the Applicant to participate in a timely review of the substantive application. It argues that the Agency would be prejudiced in such a case because there will be no reasonable prospect of recovering those public funds paid to the Applicant during any stay period. The Respondent would be unable to be restored to its original position if successful in this application.[14]
[14] Respondent’s Submissions [40].
The Respondent argues that the supports sought by the Applicant are primarily to do with the clinical management of her health conditions and are therefore not the responsibility of the NDIS to fund. She could access supports such as mental health treatment and physiotherapy through an extended care plan from her GP. She could also access supports such as cleaning from the Victorian HACC PYP program.[15]
[15] Respondent’s Submissions [36]-[39]; [43]-[46].
The Respondent proposed a timetable for the matter to go to hearing. The Applicant did not object to this timetable and the Tribunal issued directions in that regard. The Tribunal notes that, as the Respondent is of the view that it requires an independent functional capacity assessment, and the Christmas break was immanent, the proposed timetable would not see this matter heard in less than 5.5 months from the interlocutory hearing. This would mean that in the event that the matter goes to hearing and the Applicant is successful, she will have been without funded supports for at least eight months.
An issue arose at the interlocutory hearing about a sit-to-stand recliner being used by the Applicant. The Applicant contended that it had been funded by the NDIS as a reasonable and necessary support, but the original item had been defective and had been returned. A refund was then issued to the NDIA. In the absence of the funds being available to the Applicant to purchase a new chair, she commenced to hire a chair at a cost of $50 per week, which was being paid for from her plan. She is now bearing that expense herself. Mr Bowden identified the funds for the recliner to have been in the plan for the period 10 May 2021 to 10 May 2023. The Applicant advised that she had been hiring the current chair for around 14 months.
The Respondent submitted that this item of assistive technology had never been approved as a reasonable and necessary support and so the Agency had not authorised the purchase or hire of the recliner. The interaction notes provided show that a request for a recliner was made in conjunction with the plan which commenced on 12 April 2023.[16] The funding was not approved in this plan, and in a conversation with the Applicant on 10 August 2023 she confirmed that she was seeking $2,000 for the purchase of a sit-to-stand recliner. The internal review of this plan, conducted on 15 August 2023, specifically declined to fund this support.[17] Importantly, this review declined to fund any supports in relation to physical impairments.
[16] Interaction notes.
[17] T-Documents, T36, 203.
Nonetheless, the Tribunal can see that both the plans commencing on 10 May 2021 and 12 April 2023 had a floating allowance for repair and maintenance of assistive technology of $5,000. The plan of 10 May 2021 also included $10,000 of funding for identified assistive technology needs but is not specific about these needs. The functional capacity assessment of Ms Zulian, occupational therapist, on 15 March 2023[18] confirms that the Applicant had an electric recliner by that time and that it was not meeting her needs. It is suggested that the recliner be assessed by the supplier to see if adjustments could be made, that low‑cost assistive technology be trialled to increase comfort, and that if that fails, the Applicant be assessed for a new recliner. On 23 December 2024 the Applicant provided a bundle of pre‑planning documents in relation to the May 2021 plan which clearly support a conclusion that the sit-to-stand recliner was part of the identified assistive technology in that plan.[19] The Tribunal is satisfied that the original recliner was purchased from the 10 May 2021 plan, with the 2023 request being for a replacement product.
[18] T-Documents, T25, 135.
[19] Pre-planning documents, filed 23 December 2024.
Although the original request was presumably found to be a reasonable and necessary support, as funds were provided for the purchase, the purchase of a replacement product was specifically not found to be reasonable and necessary in the next plan period commencing on 12 April 2023 and upon internal review of that plan. This is the most recent plan which was in force prior to the revocation. As the evidence stands, the Tribunal is unable to form a view that the hire of the recliner by the Applicant represents her paying the cost of a funded support. The recliner was no longer a funded support in the most recent plan, although it may have been previously. The supports which are funded for a person change from plan to plan, and the funding of this support changed. The Tribunal accepts that the Applicant has chosen to hire this equipment for her own comfort and safety but does not accept that the cost associated with this is an issue relevant to the grant of a stay.
LEGISLATIVE CONTEXT
Section 9 of the ART Act sets out the objectives of this Tribunal:
The Tribunal must pursue the objective of providing an independent mechanism of
review that:
(a) is fair and just; and
(b) ensures that applications to the Tribunal are resolved as quickly, and with as
little formality and expense, as a proper consideration of the matters before the
Tribunal permits; and
(c) is accessible and responsive to the diverse needs of parties to proceedings;
and
(d) improves the transparency and quality of government decision-making; and
(e) promotes public trust and confidence in the Tribunal.
The Tribunal is required to resolve this application as quickly, and with as little expense, as a proper consideration allows. This interlocutory application is not about the resolution of the matter. At this stage, the Tribunal is not determining whether the decision to revoke the Applicant’s status as a participant in the NDIS is correct. That will be a matter for the substantive hearing. Subsection 32(1) of the ART Act provides that a decision will continue to operate regardless of an application being made to the Tribunal for review.
The present issue is whether the revocation can be stayed until a final hearing, thereby allowing the Applicant to continue to receive NDIS supports. The stay power is found in subsection 32(2) of the ART Act, which provides that the Tribunal may make an order staying or otherwise affecting the operation or implementation of the decision if the Tribunal considers it desirable for the purpose of ensuring the effectiveness of the review.
Subsection 32(4) provides that the stay order has effect until the decision of the Tribunal on the application for review comes into operation, unless the Tribunal determines that the stay operates for a different time period. The Tribunal can also impose conditions upon which a stay will be granted.
The matters relevant to the granting of stay are well established. In Scott v Australian Securities and Investment Commission [2009] AATA 798 (Scott) Downes J, President, considered the matters that were relevant to the grant of a stay. They include but by no means are limited to:
(i)the prospects of success;
(ii)the consequences of the refusal of a stay for the Applicant and for others;
(iii)the consequences of granting a stay for the Respondent;
(iv)the public interest;
(v)whether the refusal of a stay would render the final relief nugatory;
(vi)the time between the granting or refusal of the stay and the final hearing and decision; and
(vii)any other matters that might be relevant.
This approach has consistently been applied by the Tribunal and I will apply it here. It is necessary to highlight that the Applicant bears the onus of satisfying me that a stay should be granted.[20]
Case law has provided some refinement to these considerations. In Australian Securities and Investments Commission v Administrative Appeals Tribunal (2009) 181 FCR 130; [2009] FCAFC 185, the Full Court of the Federal Court of Australia clarified that where the exercise of power by the [then] AAT requires the resolution of competing interests, due regard must be paid to the objects of the statutory scheme under which the primary decision was made. The objects of the NDIS are set out in section 3 of the NDIS Act and include giving effect to Australia’s obligations under the Convention on the Rights of Persons with Disabilities; to support the independence and social and economic participation of people with disability; to provide reasonable and necessary supports for participants in the NDIS; and to enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports.
[20] Re Oaklands and Australian Securities and Investments Commission [2011] AATA 199 at [11].
The interests of the parties to the review should also be considered. In Australian Securities and Investments Commission v PTLZ (2008) 48 AAR 559; [2008] FCAFC 164, North and Downes JJ at [29] explained that when a stay is granted it should be accompanied by directions for the expedition of the matter to limit the adverse effect of the decision on both the Applicant and the Respondent.
SHOULD THE DECISION BE STAYED?
The decision in Scott provides a framework for dealing with stay applications. The six considerations referred to in that decision are not intended as an exhaustive list of matters which may be relevant. I will deal with each point below. In doing so, I acknowledge I must keep in mind the nature of the power being exercised and the objectives evident in the Act.
Prospects of success at review
It is not my role to make a decision on the final merits of the case. However, I must assess whether, having regard to all the evidence presently available, there would be the potential of success at any final review hearing.[21]
[21] Re Oaklands and Australian Securities and Investments Commission [2011] AATA 199 at [20]; Evans and Tax Practitioners Board [2019] AATA 1408 at [171]-[172].
As things presently stand and without dealing with the actual evidence and full argument, the matter does have a prospect of success. The Applicant’s rheumatologist has given an opinion that the Applicant’s condition is complex, chronic, and has no known cure. He states that medication is contraindicated and that no further evidence-based treatments are available. The Applicant’s condition is not expected to improve.[22] While this is a medical opinion and access to the NDIS does not depend upon medical opinion and diagnosis, it does support a finding that the Applicant has permanent disability. The test for access to the NDIS is ‘avowedly functional’.[23] The current functional capacity evidence indicates that the Applicant uses a powered wheelchair, even within her home, and is only able to walk for 20 metres. This evidence indicates that the Applicant may satisfy the test of having a substantially reduced functional capacity in the domain of mobility, which would qualify her to be a participant in the NDIS under the disability access criteria.
[22] T-Documents, Letters from Dr Chris McMaster, Consultant Rheumatologist, 18 July 2024 and 3 October 2024
[23] Mulligan v National Disability Insurance Agency [2015] 233 FCR 201, [55].
The TAPIB advice of 3 September 2024 states that independent evidence about the Applicant’s function would be beneficial to help determine the Applicant’s level of functional impairment in mobility, as the current evidence in relation to this domain is inconclusive. The NDIA could have obtained an independent functional assessment of the Applicant in response to this advice, rather than revoking her access. There was no impediment to it doing so. If it had done so, and this assessment had supported a view that the Applicant does not have a substantial impairment in the domain of mobility, the revocation decision it made would have been on much firmer ground than that on which it presently stands. It is arguable that this would have been the best procedural course considering the TAPIB advice.
The issue of whether there is a reversed onus in the case of a revocation of access has not been firmly decided by the Tribunal or the Court, but it is arguable in law that there is. It is the removal of a benefit conferred by beneficial legislation and such a reversed onus has been found in other administrative law matters dealing with the removal of benefits and the raising of debts of social security payments.[24] It is entirely possible, as a matter of law, that it is therefore the NDIA’s responsibility to obtain evidence before revoking an access decision, rather than the Applicant being required to provide it.
[24] McDonald v Director General of Social Security (1984) 1 FCR 354.
As access to the NDIS is based on functional impairment, there is no impediment to the Applicant being granted access on the basis of the permanent functional impairments she experiences as a result of her fibromyalgia and secondary disabilities, regardless of the Agency’s assessment that the conditions themselves are ‘medical conditions’. If she can demonstrate a severe functional impairment in any domain after all reasonable medical treatment has been tried, access to the NDIS is available.
I am satisfied that the prospects of the case weigh towards granting of a stay.
The consequences of the refusal of a stay for the Applicant and for others
The Applicant has submitted that the refusal of a stay will leave her without the funded supports she requires to cook and manage household tasks. It is submitted that her physical condition will deteriorate without access to therapies and that her ability to participate fully in the Tribunal’s processes will be undermined if she cannot access supports during the Tribunal process. It is noted that the Applicant requires assistance for basic household tasks. The Applicant stated that she is unable to leave the house without assistance, so that she has to rely on her housemate to try and transport her. He has a back injury and should not be lifting her wheelchair.
The Applicant described some loss of balance but has not had a fall recently. She is independent in self-care and transfers as long as she is careful but is only showering about twice per week. The Tribunal notes that the funded supports in her last plan included support workers to assist with cooking, cleaning, house and garden maintenance and encouraging and supporting self-care.
The Applicant advised that she is funding the hire of her recliner at the cost of $50 per week. Her sole income is disability support pension, so this is causing her financial difficulty. The Tribunal finds that a sit-to-stand recliner was not approved as a specific support in the current plan. A previous plan provided funds from which assistive technology (AT) could be purchased and the current plan provides funds for the maintenance of AT. The Tribunal could not be satisfied that the hire of the recliner would meet the criteria for maintenance of AT but it does find that the original recliner that was returned was purchased from plan funds. As it is not a presently approved support, and was in fact specifically declined by the Agency in August 2023, the Tribunal cannot find that the Applicant’s hire of a sit-to-stand recliner is a factor to consider in the issue of a stay.
The Applicant has also changed her diet to simple high carbohydrate food that she can make easily. She has been offered use of a food pantry or a weekly communal meal, but she is unable to get there. She has applied for domestic assistance through the Victorian HACC PYP program, but as the management of this program is currently being changed she has not received any assistance and had been advised that her application will not be assessed until at least January 2025. Her former physiotherapist volunteered two hours of her time to assist her with meal preparation so that she could freeze meals in bulk. A friend is currently paying for her to have a cleaner fortnightly.
The Applicant acknowledged that she could access physiotherapy and psychology services with a complex care plan from her GP but argued that she could not afford the associated gaps of approximately $70 for physiotherapy and $120 for psychology. There was no evidence presented as to the availability of bulk billed services. Mr Bowden noted that it was the funded support work services that are most critical for the Applicant and that those services cannot be obtained elsewhere.
The consequences of the stay not being granted would mean that the Applicant would be without funded supports for many months, even with the matter being expedited in the Tribunal. I accept that refusing to stay the decision will impact on the Applicant’s quality of life, especially self-care in the form of encouragement to bathe, changing her sheets and preparing meals. I am satisfied this consideration weighs for ordering a stay in the circumstances of this case.
The consequences of granting a stay for the Respondent
I accept that the granting of a stay may cause the Respondent to be obliged to provide funded supports to a person who is not qualified to receive them if the substantive matter is decided in the Respondent’s favour. I accept that there is no reasonable prosect of the Respondent recouping paid funds in that event. The effect of this can be reduced somewhat by an expedited hearing of the matter but cannot be completely ameliorated.
I am also satisfied that the plan funds have not been expended by the Applicant in the manner in which they were intended. I note that the Applicant had a support co‑ordinator and a plan manager, both of whom could, and should, have assisted the Applicant to expend her funds correctly. The Applicant stated that she understood that her plan could be used flexibly. She could not recall ever having been told that physiotherapy, counselling and massage were not approved expenditures. Certainly, if a stay were to be granted, I am of the opinion that the Applicant would need to be subject to a condition that she only expend plan funds as intended in order to mitigate against this risk. The allied health supports she allegedly requires were not the supports funded in the plan in the first place, which were limited to an occupational therapy assessment (which has occurred) and exercise physiology, which the Applicant confirmed that she has not accessed.
I am satisfied this consideration counts against ordering a stay in the circumstances of this case, particularly a stay which is not time limited and conditional.
The public interest
It is not in the public interest for public monies to be used to provide funded supports to a person who is not qualified to receive them; or to provide support to a participant which should not be funded. It is not the expectation of either the public or the NDIS. On the other hand, it is expressly the purpose of the NDIS to expend such funds in providing support to those members of the community who are participants in the scheme. Until now, the Applicant has been a participant in the scheme, and the review of the evidence to the extent permitted in such an interlocutory matter indicates that she may in fact validly continue to be so. It would not be in the public interest for her to be unsupported in that event. On balance, this fact does not weigh either for or against the grant of a stay.
Whether the refusal of a stay would render the final relief nugatory
The effects of the refusal to stay the proceedings on the Applicant will be temporary (assuming the Applicant is successful at review hearing) and will encourage the Applicant to proceed to final hearing with some expediency. If she is successful in her application, her access to the NDIS will be restored.
Refusal to issue a stay will not render the final relief nugatory, although it will not fully address any deficiencies of support that the Applicant experiences in the interim. Refusal to issue a stay will leave the Respondent in its current position, and will remove the risk of providing funded services to a person who is not qualified to receive them. I am satisfied this consideration counts against ordering a stay in the circumstances of this case.
Any other matters that might be relevant
This matter is not ready for hearing, in part due to the Agency deciding that it would now like to obtain the independent functional assessment that TAPIB indicated was desirable in September 2023, prior to the revocation. It will be many months before the hearing can be listed and the matter resolved, assuming that the parties are unable to come to terms. If the Applicant is successful in her application, this is a concerning amount of time for her to have been without supports which are necessary for her day-to-day functioning and may pose an unacceptable risk to her well-being.
The NDIS Act is beneficial legislation which is intended to confer a benefit on the Applicant if she is qualified to receive such a benefit. Removal of such benefits in their entirety is a matter to be approached with good procedure and solid evidence. The manner in which the Respondent has approached the revocation in this case is troubling. The impact of the loss of services on a vulnerable person with a disability or medical conditions is serious and has a much greater impact on their health and quality of life than the continued provision of those services on an interim basis to a single individual would have on the Respondent.
The Applicant argued that she should be able to expend her plan funds flexibly during the period of any stay, in particular, to be able to use support worker hours for community access as well as in home supports. The Tribunal notes the core funding in the April 2023 plan allows for both support at home and community access. A continuation of the plan would allow for the Applicant to expend plan funds on community access.
The Respondent argued that a stay on conditions would still allow the Applicant to change her plan goals and have all the other rights of a participant in the NDIS, even if the stay is time limited or the Applicant has been precluded from spending plan funds in a particular manner. So be it. The Respondent proceeds on the basis that the Applicant is not qualified to be a participant in the NDIS, but, in my view, that is far from clear. She should be allowed to have all the rights of a participant during any period that a stay operates.
CONCLUSION
Weighed together, the considerations suggest it would be appropriate to order a stay – on conditions. I find that the Applicant is at risk from the sudden and complete cessation of supports. The Respondent is also at risk of the Applicant not seeking a quick resolution once supports are again available, and of funds being used inappropriately if there are no conditions on the stay. A stay on conditions is the best way to ameliorate the risks posed to both parties in this current matter.
I am of the view that the stay should only be granted for a period of six months, to allow the finalisation of the substantive application. This will help to focus the minds of both parties on continued engagement towards resolution. I am also of the view that the Applicant must be bound by a condition to only expend plan funds for the purpose they were intended to be used in accordance with section 46 of the NDIS Act. To be clear, this means that the Applicant will be able to expend core funds on support worker hours; and capacity building funds on exercise physiology during the period of the stay. She will not be able to use NDIS funds for physiotherapy, counselling or massage therapy as these have never been approved supports. If the Applicant is in any doubt about this, she should liaise with the Respondent to be sure that she does not make any errors, or she can agree to have her plan Agency managed during the period of the stay.
DECISION
The application for a stay is granted on the following conditions:
(2)The stay shall lapse at the expiration of the period of six months from the date of this decision;
(3)The Applicant may only expend plan funds in the manner in which they have been allocated by the Respondent during the period of the stay.
I certify that the preceding 57 (fifty-seven) paragraphs are a true copy of the reasons for the decision herein of General Member T. Bubutievski
...[SGD]...
Associate
Dated: 14 January 2025
Date(s) of hearing:
18 December 2024
Date final submissions received:
23 December 2024
Solicitors for the Applicant:
Mr Bowden, Villamanta Disability Rights Legal Service
Solicitors for the Respondent:
Ms Barac, Maddocks
0
6
0