ZDMW and Chief Executive Officer, National Disability Insurance Agency (Practice and procedure) - [2025] ARTA 2293

ZDMW and Chief Executive Officer, National Disability Insurance Agency (Practice and procedure) [2025] ARTA 2293 (24 October 2025)
Applicant/s:  ZDMW
Respondent:  Chief Executive Officer, National Disability Insurance Agency
Tribunal Number:                2024/9763

Tribunal: General Member A Colvin
Place:Brisbane
Date:24 October 2025

Decision:The application for an order under subsection 32(2) of the Administrative Review Tribunal Act 2024 is dismissed.

..................SGD..................
General Member A Colvin
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – practice and procedure – application for stay of reviewable decision – subsection 32(2) of the Administrative Review Tribunal Act 2024 – deemed refusal to vary plan – remittal – preparation of new plan – 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
Salathiel and CEO, National Disability Insurance Agency (Practice and procedure) [2025] ARTA 1366
Stephan-Miller and National Disability Insurance Agency (Practice and procedure) [2025] ARTA 43
Lewis and National Disability Insurance Agency (Practice and procedure) [2025] ARTA 391
Allied Asia Holdings (Aust) Pty Ltd v Australian Securities and Investment Commission [2022] FCA 566
Duncan v Companies Auditors Liquidators Disciplinary Board and Others [2006] FCA 1747
ZNVT by his Nominee and CEO, National Disability Insurance Agency [2025] ARTA 1824
PTJR and CEO, National Disability Insurance Agency [2025] ARTA 196
Pizzini and CEO, National Disability Insurance Agency [2025] ARTA 486

Statement of Reasons

ZDMW is an adult participant in the National Disability Insurance Scheme (NDIS). On 17 June 2024 a new participant plan came into effect for ZDMW, starting on that date and ending on 17 June 2025 (the 2024 plan).
In November 2024, ZDMW lodged an application with this Tribunal seeking review of a decision made by the Chief Executive Officer of the National Disability Insurance Agency (Agency). On 27 February 2025 a differently constituted Tribunal determined that the Tribunal has jurisdiction to review a deemed decision of the Respondent dated 22 October 2024 not to vary ZDMW’s 2024 plan.
The matter was remitted to the Respondent for reconsideration. On reconsideration, the Respondent prepared a new plan for ZDMW with a start date of 24 March 2025 and reassessment date of 23 March 2026 (the current plan).
ZDMW applied for a stay, stating in her application that she sought orders:
·     to stay the implementation of the current plan;
·     to extend the 2024 plan for an additional 12 months; and
·     that all funding not spent in the first year of the 2024 plan be rolled over and included in the extended 2024 plan.
The application for a stay was listed for hearing on the papers on 26 September 2025, with directions made on 19 August 2025 regarding filing of material regarding that application. Both parties consented to the stay application being determined in the absence of the parties and I am satisfied for the purposes of subsection 106(2) of the Administrative Review Tribunal Act 2024 (Cth) (ART Act) that the issues can be adequately determined in the absence of the parties.
THE LAW
The general rule, set out in subsection 32(1) of the ART Act, is that making an application to the Tribunal for review of a reviewable decision does not affect the operation of the decision or prevent the taking of action to implement the decision.
However, subsection 32(2) of the ART Act creates an exception to that general rule. It provides that, on application by a party to a proceeding, the Tribunal may make an order staying or otherwise affecting the operation or implementation of the reviewable decision if the Tribunal considers that it is desirable to do so for the purpose of ensuring the effectiveness of the review. Before doing so, the Tribunal must have given parties a reasonable opportunity to make submissions and must have taken into account the interests of any person who may be affected by the review of the decision: subsection 32(7) of the ART Act.
In Salathiel and CEO, National Disability Insurance Agency (Practice and procedure),[1] Deputy President Dordevic observed:
In 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.
[1] [2025] ARTA 1366
Those principles, as set out in GAP-AAA and GAP-AAB; Child Support Registrar are as follows:[2]
12.A stay order will not be granted as a matter of course. Subsection 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.
SUBMISSIONS
[2] [2024] ARTA 1
ZDMW’s submissions
In addition to completing an application form for a stay dated 27 June 2025, ZDMW provided extensive written submissions headed ‘Application for a stay (on the papers)’, followed by further detailed submissions headed ‘Second submission for stay’.
In essence, in her written submissions ZDMW contended that the current plan has ‘a serious legal error’. She contended that some funding that had previously been available to use flexibly for assistance with daily living, was instead now stated funding, in ‘Home and Living’, for exploration and design of a potential independent living option. She said that since there was no alternative ADL funding in the current plan, her ADL funding had, as a matter of practicality, been removed.
ZDMW contended that if the Tribunal ordered a stay, the 2024 plan could be reinstated and given a new end date, including extending the funding to that date. She said that she did not request any significant changes to the 2024 plan, just an additional year of funding indexed according to the current prices in the relevant price guide and to ‘roll over’ any remaining funding. She referred the Tribunal to two decisions (discussed below).
As to the substance of ZDMW’s application for review, she indicated in her submissions that she was at the Tribunal to ask the Tribunal to consider variations to her 2024 plan, including extending the plan for multiple years. Later in her submissions she said that ‘my whole review can be settled with a few targeted variations to the 2024 plan as well as identifying the impairments that are relevant to those changes’.
ZDMW has provided many other documents to the Tribunal. These include a letter from her support coordinator dated 12 June 2025 regarding a gardening service for ZDMW. They also include a letter dated 16 June 2025 from an independent living options manager expressing serious concern that the current SOPS allocate $110,000 as a stated support for ‘Explore and Design’ (Stage 1) of an ILO, and that this appeared to be an error. The manager urged the Tribunal to urgently consider this issue and restore ‘appropriate and flexible ADL funding’ to enable progress of exploration and design of ILO and to prevent financial hardship or breach of NDIS funding rules.
The Respondent’s submissions
The Respondent objected to the stay application in submissions dated 20 August 2025.
First, the Respondent set out what it regarded to be the ‘reviewable decision’: It contended that:
· On reconsideration, the Respondent conducted a reassessment under subsection 48(1) of the NDIS Act, and then, pursuant to subparagraph 48(7)(b)(ii) of the NDIS Act, it prepared a new plan for ZDMW, the current plan. In doing so, it approved the SOPS in the current plan.
· Subsection 85(6) of the ART Act provides that if, on remittal, a decision-maker sets aside the decision and makes a new decision in substitution, ‘the application for review of the decision is taken to be an application for review of the new decision instead’.
· The decision to conduct a reassessment is not reviewable. Nor is the decision to prepare a new plan. The only reviewable decision for the purposes of section 99 of the NDIS Act is the decision to approve the SOP in the current plan, made under subsection 33(2) of the NDIS Act.
Regarding the first order sought by ZDMW, the Respondent contended in essence as follows:
· When the current plan was made, the 2024 plan ceased to be in effect, by virtue of paragraph 37(3)(a) of the National Disability Insurance Scheme Act 2013 (NDIS Act) and was replaced by the current plan by virtue of subsection 37(4) of the NDIS Act.
·     A stay could only affect the operation or implementation of a decision, not the fact that the decision has been made: Allied Asia Holdings (Aust) Pty Ltd v Australian Securities and Investment Commission[3] and Duncan v Companies Auditors Liquidators Disciplinary Board and Others.[4]
·     A stay of the decision to approve the SOPS in the current plan would therefore not ‘revive’ or ‘reinstate’ the 2024 plan.
·     Instead, the practical outcome would be that ZDMW would be without any NDIS funding while proceedings at the Tribunal were on foot;
·     A stay order that left ZDMW without funding should not be made and would be without utility.
· The Tribunal could not be satisfied in those circumstances that it was desirable to make the order for the purpose of ensuring the effectiveness of the review, as required by subsection 32(2) of the ART Act.
[3] [2022] FCA 566 at [16]
[4] [2006] FCA 1747 at [8] and [9]
Regarding the second and third orders sought by ZDMW, the Respondent contended in essence as follows:
· The CEO of the Agency, and therefore the Tribunal, has no power to reinstate a plan that has ceased to have effect for the purpose of section 37 of the NDIS Act.
· The two decisions referred to by ZDMW, Stephan-Miller and Lewis, provide no support for the contentions advanced by ZDMW. Both were matters where the Agency had revoked the applicant’s status as a participant in the NDIS. It was those decisions that were stayed. In neither matter did the Tribunal ‘reinstate’ a plan or extend the reassessment date for a plan. Instead, by staying the revocation of their status, each applicant resumed their status as an NDIS participant. New plans were then prepared for each applicant from the date of the stay order.
· Order 3 sought by the applicant is premised on order 2 being made and the Tribunal does not have power to make order 2.
The Respondent did not address ZDMW’s assertion that there was an error in the current SOPS, preventing her from accessing supports for ADL.
CONSIDERATION
The SOPS in the 2024 plan and the current plan
The SOPS in ZDMW’s 2024 plan included total funded supports of $159,232.57 of which $22,014.93 was capacity building supports and core supports accounted for $137,217.64. In relation to core supports, the SOPS identified that core supports included $20,426.64 in flexible core funding for social, community and civic participation, and $5,000 for a stated support and this was for ‘individualised living options – exploration and design’. The SOPS indicated that Individualised Living Option (ILO) Support Level 1 (of $105,000) was considered suitable and appropriate and should be reflected in the service proposal, but otherwise did not specify core supports.
The SOPS in ZDMW’s current plan include total funded supports of $156,084.72. Of this, $23,214.96 is for capacity building supports (all of which are stated supports) and $132,869.76 is for core supports. Within core supports, there is funding of $110,007 as a plan-managed stated support for ‘home and living’ and $21,078.72 for assistance with social, economic and community participation. Regarding home and living funding, the SOPS state that the funding is for exploration and design of a potential ILO with a chosen provider and that the service proposal should reflect ILO Support Level 1 as this level is considered suitable and appropriate.
The reviewable decision
The power in subsection 32(2) of the ART Act is not a broad or general power to make orders affecting the parties to a review. It is limited to making an order staying or otherwise affecting the operation or implementation of the reviewable decision. I have therefore set out below what I consider to be the ‘reviewable decision’ in this matter.
On 27 February 2025 a differently constituted Tribunal determined that ZDMW had sought changes to the 2024 plan, namely recategorisation of funding and a variation of funding periods or plan reassessment dates. These were valid variation requests within section 47A of the NDIS Act. The Tribunal considered that the Respondent was deemed to have decided not to vary ZDMW’s 2024 plan, by virtue of subsection 47A(5) of the NDIS Act. A deemed decision under subsection 47A(5) of the NDIS Act not to vary a plan is a reviewable decision under section 99 of the NDIS Act. Having failed to review that decision within 90 days, the Tribunal determined that the Respondent was taken to have affirmed its decision not to vary the plan, by virtue of subsection 100(6A) of the NDIS Act.
The Tribunal considered that its jurisdiction extended to considering the nature of the variations requested by ZDMW and remitted the matter to the Respondent under subsection 85(1) of the ART Act.
On remittal, under section 85 of the ART Act it was open to the Respondent to affirm or vary the deemed decision. It was also open to the Respondent to set aside that decision and make a new decision in substitution. The Respondent contends that it set aside the deemed decision not to vary the 2024 plan, under section 47A of the NDIS Act and substituted a new decision, under section 48, with the effect that the reviewable decision became the decision to approve the SOPS in the current plan.
However, where a participant requests variation of a plan, the Respondent is required to do one of three things: vary the plan, not vary the plan, or request more information: subsection 47A(4) of the NDIS Act. In my view therefore on remittal these were the permissible decisions the Respondent could make, pursuant to subsection 85(2) of the ART Act. It could set aside the deemed decision and substitute a decision to vary the 2024 plan, or it could set aside the deemed decision and substitute a decision to request more information. Alternatively, it could affirm the earlier decision not to vary the plan. In my view, on reconsideration it affirmed its earlier decision to not vary the 2024 plan.[5] The Respondent then conducted a reassessment under section 48 of the NDIS Act on its own initiative, as it is entitled to do at any time.
[5] If it did not make that decision expressly, it is taken to have done so under subsection 47A(5) of the NDIS Act.
The Respondent having conducted a reassessment, the effect of subsection 103(2) of the NDIS Act is that, to the extent the decision not to vary the 2024 plan related to a SOPS, ZDMW’s application for review is taken to also be an application of the decision to approve the SOPS in the current plan.
The decision under review is therefore, in my view, the deemed decision to not vary the 2024 plan and the subsequent decision to approve the SOPS in the current plan.
Although I have taken a different view to the Respondent on the nature of its decision on remittal, there is little practical difference. The current operative decision for the purposes of this review is the decision to approve the SOPS in the current plan. If ZDMW still seeks to recategorise some funding and change the reassessment date, that will be considered in the context of the current SOPS. The decision not to vary the 2024 plan appears to no longer be of any substance.[6]
[6] ZNVT by his Nominee and CEO, National Disability Insurance Agency [2025] ARTA 1824, PTJR and CEO, National Disability Insurance Agency [2025] ARTA 196 and Pizzini and CEO, National Disability Insurance Agency [2025] ARTA 486
This means that under subsection 32(2) of the ART Act the Tribunal could stay the approval of the current SOPS, since that is the reviewable decision. The Tribunal has no power however under subsection 32(2) to prevent the operation of the current plan since the Respondent’s decision to conduct a reassessment and prepare the current plan in accordance with subsection 48(7) of the NDIS Act is not reviewable.
Staying the approval of SOPS in the current plan would not ‘reinstate’ the 2024 plan and the SOPS in that plan. I accept the Respondent’s submission that preparation of the current plan had the effect that the 2024 plan came to an end.
Even if that were not the case, ZDMW contends that the Tribunal should do more than reinstate the 2024 plan or the SOPS in that plan. She contends that the Tribunal should alter the end date, include an additional year of funding indexed according to the current prices, and ‘roll over’ any remaining funding. In my view that is not a course open to the Tribunal. The date of reassessment and the reasonable and necessary supports that will be funded are both matters to be included in a SOPS: subsection 33(2) of the NDIS Act. They are matters that can be determined by the Tribunal at a final review hearing when reviewing the current SOPS. However, subsection 32(2) of the ART Act only confers a power to stay or otherwise affect the operation or implementation of the reviewable decision. It does not confer a power to change the funded supports or reassessment date in the SOPS in the 2024 plan or in the current plan. The decisions referred to by ZDMW, Stephan-Miller and Lewis, are not authority for making such orders and relate to very different circumstances.
Ensuring the effectiveness of the review
If ZDMW is only seeking a few ‘targeted changes’ to her plan, as she asserts, the substance of her application for review can be dealt with expeditiously through the usual process of review. In line with this, the application for review is listed for final hearing on 12 December 2025. As the matter presently stands, ZDMW has not yet identified for the Tribunal and the Respondent what supports, or other changes to the current SOPS, she is seeking at that final review hearing.

In considering whether to make an order under subsection 32(2) of the ART Act I must balance the prejudice to both parties and reach a decision based on what the interests of justice require in the circumstances of this case. ZDMW contends that the effect of approving the SOPS in the current plan is that ADL funding has, as a matter of practicality, been removed. The Respondent has not addressed that contention. However, if I accept ZDMW is correct, for the reasons set out earlier, if approval of the current SOPS is stayed, ZDMW will be without any funding. If approval of the current SOPS is not stayed, ZDMW will continue to have access to some funding in the current SOPS.
I am not satisfied in these circumstances that a stay is desirable for the purposes of securing the effectiveness of the review.
Decision
The application for an order under subsection 32(2) of the Administrative Review Tribunal Act 2024 is dismissed.

Date of hearing: 26 September 2025

Advocate for the Applicant: Self-represented

Solicitors for the Respondent: Moray & Agnew

Counsel for the Respondent: Mills Oakley
C

M Fisher