Decision: The application to stay the operation of the decision under review, pending the hearing and final decision of this matter is refused.

NATIONAL DISABILITY INSURANCE SCHEME - practice and procedure - application to stay operation of decision under review - approval of a Statement of Participant Supports in participant's plan - reduction of supports from former plan - whether implementation of decision to approve Statement of Participant Supports should be stayed - exercise of discretion - relevant considerations - consequences for the Applicant - stay refused

Administrative Appeals Tribunal Act 1975 (Cth)

Administrative Review Tribunal Act 2024 (Cth)

National Disability Insurance Scheme Act 2013 (Cth)

National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) Act 2024 (Cth)

Allan Bailey and Comcare Australia [1995] AATA 148

Australian Securities and Investments Commission v Administrative Appeals Tribunal [2009] FCAFC 185; (2009) 181 FCR 130

Blackwell and Comcare (Compensation) [2017] AATA 1118

Caratti and Australian Securities and Investments Commission (Practice and procedure) [2024] ARTA 103

Clavero and Australian Postal Corporation (Compensation) [2020] AATA 4167

Clement and Comcare [2006] AATA 705

Dunn and National Disability Insurance Agency [2022] AATA 4061

GAP-AAA and GAP-BBB; Child Support Registrar [2024] ARTA 1

Re Scott and Australian Securities and Investments Commission [2009] AATA 798; 51 AAR 114

Explanatory Memorandum and Revised Explanatory Memorandum, Administrative Review Tribunal Bill 2024

1. Ms Jessica Hobbs is the Applicant in this matter. She is now 30 years of age. Since November 2022 Ms Hobbs has been a participant in the National Disability Insurance Scheme (the NDIS), having met the access requirements for the NDIS because of impairments to which a psychosocial disability is attributable.
2. Ms Hobbs, through her mother, has lodged an application with the Administrative Review Tribunal[1] seeking review of a decision made by the National Disability Insurance Agency (the Agency) on 23 January 2025 (the reviewable decision).[2] There were two aspects to that decision by the Agency. First, the decision confirmed an earlier decision of the Agency to change the management of Ms Hobbs' NDIS plan from self-management to Agency-managed. Secondly, the decision confirmed the approval on 5 September 2024 of a new Statement of Participant Supports (the current SoPS) for inclusion in Ms Hobbs' NDIS plan, for the period from 5 September 2024 until 5 September 2025.[3]
3. The new SoPs approved by the Agency was a significant reduction in the funding provided by the Agency to Ms Hobbs for several supports, when compared to those funded under her previous plan (the former SoPS), which had been for the period from 25 January 2023 until 24 January 2025.[4]
4. Ms Hobbs lives with her mother, Ms Sharon Dunstan, and her brother, whose name is Jordan Dunstan. Mr Dunstan is also a participant in the NDIS and has lodged a separate review application (Matter 2024/9747) with the Tribunal, which relates to decisions made by the Agency about his NDIS plan, which are similar in nature to those made in Ms Hobbs' matter.
5. On 15 February 2025 Ms Dunstan lodged an application,[5] on behalf of both her children, for an order staying the operation of the Agency's decisions.[6] The stay application described the Agency's decisions in the following terms:

(i) Decisions active 5 September 2024 to cut both NDIS plans, loss of services and trusted staff. > > (ii) Decision to change management style from self to Agency managed, plus cutting off access to vital book-keeping records and removing access to sufficient allied health.

6. The stay application also outlined the orders requested by Ms Hobbs and Mr Dunstan, and the grounds for those requests:

(i) stay decision to cut down both plans - revert to original funding, > > (ii) stay decision to remove self-management,

at least until ART reviews concluded.

Both plans cut, one and the other are not the same and reasons are not the same yet both affected.

Management style may be in question but if so, and mother to blame, then allow PWD[7] to manage alone, whether self or plan management to allow access to e.g. scarce capacity building allied health services.

1. The stay applications by Ms Hobbs and Mr Dunstan were listed for an interlocutory hearing on 26 June 2025. Both matters were heard together. Ms Perle of Kin Disability Advocacy Service appeared for the two applicants at the hearing, together with their mother Ms Dunstan. Ms Kuruc, a Principal Legal Officer with the National Disability Insurance Agency, appeared for the Agency, together with Ms Tadros and Ms Arnott of the Agency. On the day of the hearing the Tribunal was advised that external lawyers (Mills Oakley) had very recently been engaged by the Agency in Mr Dunstan's matter,[8] and Ms Hosking and Ms Baggert from that firm attended the hearing, together with Mr Sidak of the NDIA.
2. It is to be noted that the hearing of the stay applications was an interlocutory hearing of only those applications. It was not a comprehensive, independent consideration of the merits of the substantive review applications, to determine if the respective reviewable decisions should be affirmed, varied or set aside, pursuant to section 105 of the Administrative Review Tribunal Act 2024 (Cth) (the ART Act).
3. By the time of the hearing the Agency had agreed to amend the plans of both participants to allow for self-management.[9] This meant that the hearing of the stay application was confined to the request to stay the operation of the decisions relating the supports in the participants' SoPS. The Agency opposed the request for stay orders for both participants and filed written submissions on 28 May 2025 in support of its position. The Agency had also filed bundles of relevant documents (the T-documents) in each review.
4. While the stay applications made by Mr Dunstan and Ms Hobbs were heard together and raise similar issues, the Tribunal will publish separate decisions for each participant. This decision relates to the stay application in Ms Hobbs' review.

1. Section 32 of the ART Act provides as follows_:_

32 Reviewable decision continues to operate unless Tribunal orders otherwise

(1) The making of 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.

Exception - Tribunal may stay operation or implementation

(2) However, on application by a party to a proceeding for review of a reviewable decision, the Tribunal may make an order staying or otherwise affecting the operation or implementation of the decision if the Tribunal considers that it is desirable to do so for the purpose of ensuring the effectiveness of the review.

(3) The order is subject to any conditions specified in the order.

(4) The order has effect until the decision of the Tribunal on the application for review comes into operation.

(a) the order states that it applies for a period; and

(b) the period ends before the decision of the Tribunal on the application for review comes into operation;

(6) On application by a party to the proceeding, the Tribunal may, by order, vary or revoke the order.

Preconditions to making, varying or revoking an order

(7) The Tribunal must not make, vary or revoke an order staying or otherwise affecting the operation or implementation of a reviewable decision unless:

(a) the Tribunal has given the parties to the proceeding for review of the decision a reasonable opportunity to make submissions to the Tribunal in relation to the making, variation or revocation of the order; and

(b) the Tribunal has taken into account the interests of any person who may be affected by the review of the decision.

(8) However, paragraph (7)(a) does not prevent the Tribunal making, varying or revoking an order without giving a party an opportunity to make a submission to the Tribunal if the Tribunal is satisfied that it is not practicable to give the party the opportunity.

(9) If the Tribunal makes, varies or revokes an order without giving a party an opportunity to make a submission as mentioned in subsection (8), the order, variation or revocation does not take effect until a notice setting out the terms of the order, variation or revocation is given to the party.

1. On 14 October 2024, the former Administrative Appeals Tribunal became the Administrative Review Tribunal (the Tribunal). Given the relatively recent commencement of section 32, it is perhaps useful to note that this section is similar, but not identical to its predecessor version, which was section 41 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act).
2. Further, in the Tribunal decision of Caratti and Australian Securities and Investments Commission (Practice and procedure) [2024] ARTA 103 (Caratti) it was noted:[10]

The Explanatory Memorandum to the Administrative Review Tribunal Bill makes it clear that although the wording in s.32 of the ART Act is different in some respects to the wording of s.41 of the AAT Act, those changes were made to reflect "modern drafting practices" and "not to affect the operation or effect of the provision."[11] It follows that the authorities relevant to the principles to be applied in respect of s.41 of the AAT Act, remain relevant when considering s.32 of the ART Act.

1. Turning to the NDIS, the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act) contains in section 3(1) a statement of its objects, with section 3(3) providing that in giving effect to those objects regard is to be had to the need to ensure the financial sustainability of the NDIS. Section 4 provides a number of general principles to guide actions under the Act.
2. Chapter 3 of the NDIS Act deals with NDIS participants and their plans. Therein, by section 33(5), in deciding whether or not to approve a SoPS under section 33(2), the CEO must:

(a) have regard to the participant's statement of goals and aspirations; and

(b) have regard to relevant assessments conducted in relation to the participant; and

(c) be satisfied as mentioned in section 34 in relation to the reasonable and necessary supports that will be funded and the general supports that will be provided; and

(d) apply the National Disability Insurance Scheme rules (if any) made for the purposes of section 35; and

(e) have regard to the principle that a participant should manage his or her plan to the extent that he or she wishes to do so; and

(f) have regard to the operation and effectiveness of any previous plans of the participant; and

(g) have regard to whether section 46 (acquittal of NDIS amounts) was complied with in relation to any previous plan for the participant.

1. Section 34 is entitled 'Reasonable and necessary supports'. Section 34(1) specifies the requirements, of which the CEO must be satisfied, in relation to the funding of each support in the SoPS. These requirements are:

(aa) the support is necessary to address needs of the participant arising from an impairment in relation to which the participant meets the disability requirements (see section 24) or the early intervention requirements (see section 25);

(a) the support will assist the participant to pursue the goals, objectives and aspirations included in the participant's statement of goals and aspirations;

(b) the support will assist the participant to undertake activities, so as to facilitate the participant's social and economic participation;

(c) the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;

(d) the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;

(e) the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;

(f) the support is an NDIS support for the participant.

(a) the time at which the disability requirements or the early intervention requirements need to be met is the time the CEO decides to approve the statement of participant supports; and

(b) a participant's disability support needs arising from an impairment in relation to which the participant meets the disability requirements or the early intervention requirements may be affected by a variety of factors, including environmental factors or the impact of another impairment in relation to which the participant does not meet either of those requirements.

1. All of the requirements in section 34(1) must be met. Further, section 34(2) provides that NDIS Rules may provide methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding whether or not he or she is satisfied as mentioned in any of the above requirements set out paragraphs (1)(aa) to (f) of section 34(1). Further, section 35(1) states that the NDIS Rules may make provision in connection with the funding or provision of reasonable and necessary supports or general supports. NDIS rules relating to supports have been made - they are the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (the Support Rules).
2. Some other provisions of the NDIS Act were cited in submissions, and it is useful to set them out here.
3. Section 37 of the NDIS Act provides:

(1) A participant's plan comes into effect when the CEO has:

(a) received the participant's statement of goals and aspirations from the participant; and

(b) approved the statement of participant supports.

Note: Division 4 deals with varying and replacing plans.

(3) A participant's plan ceases to be in effect at the earliest of the following times:

(a) when the plan is replaced by another plan (see subsection (4));

(b) if the plan is a new framework plan - immediately after the end of the maximum period of effect specified in the plan under paragraph 32D(2)(d);

(c) in any case - when the participant ceases to be a participant.

Note: A new framework plan may be varied to change the period mentioned in paragraph (b) (see paragraph 47A(1AA)(d)).

(4) For the purposes of paragraph (3)(a), if a plan (the replacement plan) comes into effect for a participant while another plan is in effect, the other plan is replaced by the replacement plan.

1. Section 182 of the NDIS Act deals with debts due to the Agency, and subsection (1) of that section provides:

(a) a payment is made to a person that is, or purports to be, a payment of an NDIS amount to or in respect of a participant; and

(b) the person is not entitled for any reason to the payment of the NDIS amount;

the amount of the payment is a debt due to the Agency by the person and the debt is taken to arise when the person receives the payment.

1. As provided by section 32(7)(a) of the ART Act, the Tribunal must not make an order staying or otherwise affecting the operation or implementation of a reviewable decision unless it has first given the parties to the proceeding for review of the decision a reasonable opportunity to make submissions to the Tribunal about the making of the order, and secondly, taking into account the interests of any person who may be affected by the review of the decision.
2. These obligations were met through affording the parties to the review proceeding the opportunity to appear at the interlocutory hearing and to make submissions about the requested stay order, and to file any further materials relevant to the matter.

1. The submissions made on behalf of Ms Hobbs focused on the significant reductions in the supports funded in her current SoPS, compared to those funded in her former SoPS. The Agency helpfully provided a summary of the current and former SoPs in Ms Hobbs' plans, as Annexures to its written submissions.[12] That summary reflected the following appreciable reductions and changes to the supports approved in Ms Hobbs' current SoOPS:
   • A reduction from two hours per day to five hours per week for assistance with self-care activities. Assistance for personal domestic activities increase remained unchanged at four hours per week.
   • Assistance with social, economic and community participation activities remained unchanged at 15 hours per week.
   • Changes to the funding for capacity building supports, to be provided by allied health professionals, for improved daily living skills, with a reduction from 70 funded hours to 24 hours, and the removal of 150 hours of funded support for psychosocial recovery coaching.
   • The addition of funding for recurring transport costs.
2. The essence of the Applicant's position and submissions was that Ms Hobbs' NDIS funding has been 'slashed,' and that the amount of funding provided in her current SoPS is not enough to provide her with needed supports for the likely duration of the substantive review proceeding before the Tribunal. Consequently, she will be adversely impacted by the reduction in her supports over this period.
3. Ms Hobbs sought, as per the stay application already noted, that the decision to 'cut' her plan be stayed and that her plan 'revert to original funding'; that is, the funding of supports for her as per those in her former SoPS, until such time as her substantive review application is concluded.

1. The Agency opposed the requested stay. As a preliminary matter, the Agency submitted that Ms Hobbs was in effect not requesting a stay of the reviewable decision made by the Agency, which was to approve Ms Hobbs' current SoPS, but was requesting that the supports in her former SoPS be reinstated/included in her new SoPS, without the Tribunal having undertaken the usual review process. As such, the Agency submitted that Ms Hobbs was seeking significantly higher levels of funding without providing details of the supports requested, or updated evidence substantiating additional requirements for supports. Further, that in making the reviewable decision the CEO's delegate identified a lack of clarity regarding the specific supports being sought, and considered that the request to increase the overall support did not represent value for money and was not reasonable and necessary.[13]
2. The Agency also submitted that the practical effect of a stay of the reviewable decision would stop the implementation of that decision, which provided Ms Hobbs with access to the supports in her current SoPS. That is, granting the requested stay of the reviewable decision would leave Ms Hobbs without any supports, until such time as another SoPS was developed and approved.[14]
3. Additionally, the Agency addressed a number of considerations ordinarily taken into account by the Tribunal in deciding whether to make a stay order,[15] including the Applicant's prospects of success (in her substantive review application); the consequences for the Applicant of a refusal of a stay; the public interest; the consequences for the Agency in carrying out its functions depending on whether a stay is granted or not; and whether the Applicant's substantive review application would be rendered nugatory if a stay were not granted.
4. More specifically, the Agency submitted that having regard to section 32(2) of the ART Act, the Tribunal needed to consider whether a stay is desirable for the purpose of ensuring the effectiveness of the [substantive] review, which was tied to securing the processes of the hearing and the review, and that the discretion in deciding to order a stay was not directed solely to relief of hardship on the part of an Applicant.[16] Further, it was submitted that granting the order sought (to reinstate the former SoPS/plan for the duration of the substantive review proceeding) was wholly beyond the scope of the power in section 32(2) of the Act, and that the usual rule should apply; namely, that the making of a review application to the Tribunal for a review of a reviewable decision does not affect the operation of that decision or prevent the taking of action to implement the decision.[17]
5. Turning to the other specific considerations noted above, the Agency submitted:

1. The Agency submitted that the primary issue before the Tribunal in the substantive review was whether the supports in dispute in the review (or the quantum of those supports to be funded) were reasonable and necessary, under section 34 of the NDIS Act. It was noted that Ms Hobbs had submitted an updated functional capacity assessment, which may assist in determining these matters.[18]
2. As such, the Agency conceded that Ms Hobbs has reasonable prospects of success in her substantive review application, although it maintained that a stay order was not necessary to secure the effectiveness of the hearing of that application.[19]

1. The Agency submitted that Ms Hobbs' former plan (that commenced on 25 January 2023) ceased to be in effect upon the creation of her new plan on 5 September 2024; this is so by operation of section 37(3) of the NDIS Act. Further, that in accordance with the Tribunal's decision in Dunn and National Disability Insurance Agency [2022] AATA 4061, the former plan was no longer extant and the Tribunal had no power to revive it:

Further, as the Tribunal stipulated in Dunn, the Tribunal can only review a decision made by a reviewer under s 100(6) of the NDIS Act. A decision by a reviewer under s 100(6) can only confirm, vary, or set aside and substitute a reviewable decision. A reviewable decision under subsection 99(2)[20] is materially limited to 'a decision to approve the statement of participant supports in a participant's plan'. The Tribunal can only review the Agency's decision so far as it relates to the statement of participant supports, not the issue or existence of the plan (see s 103 of the NDIS Act).

Therefore, the Agency considers that refusing the stay would mean the Applicants continue to have access to the supports in their current plans. The grant of a 'stay' of the Internal Review Decision would in effect stop the implementation of a decision which confirmed the Applicants' access to supports currently in their statement of participant supports.[21]

1. The Agency submitted that while it is for the Tribunal to identify and consider the relevant interests, that process is affected by both that nature of the reviewable decision and the statutory scheme within which it was made.[22]
2. Specifically, the Agency contended that there is a public interest in ensuring that the Tribunal's review process is followed, including providing the opportunity for the parties to obtain and file further evidence before the Tribunal makes its decision to affirm, vary or set aside the reviewable decision.[23]

1. Here, the Agency submitted that if the requested order was made, resulting in the provision of increased supports to Ms Hobbs, this would result in her owing a debt to the Agency should she ultimately be unsuccessful in her substantive review application, by operation of section 182(1) of the NDIS Act.[24]

Whether the review application would be rendered nugatory

1. The Agency noted the significant amount of funding remaining available to Ms Hobbs under her current SoPS, submitting that Ms Hobbs' substantive review application would not be rendered nugatory should the requested stay be refused as she continues to have access to funding under her current plan while the review is in progress.[25]

1. As noted above, in its submissions the Agency addressed a number of factors typically considered by the Tribunal in deciding stay applications.
2. In the recent decision of GAP-AAA and GAP-BBB; Child Support Registrar [2024] ARTA 1_,_ Kyrou J, the President of the Tribunal, set out a number of principles relevant to the consideration of a stay application pursuant to section 127(1) of the ART Act. While that section deals with stay orders in respect of Tribunal decisions where a referral application to the Tribunal's Guidance and Appeals Panel has been made, it is in similar terms to section 32. These principles reflect the considerations identified in Re Scott and Australian Securities and Investments Commission [2009] AATA 798 (Scott) as noted above and were explained by the President as follows:
   1. 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.
   2. 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.
   3. 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.
   4. 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.[26]
3. Having considered the submissions of the parties, the Tribunal is not persuaded that the relevant considerations as identified above by the President and in the decision of Scott support a conclusion that the making of the stay order sought here by Ms Hobbs is desirable for the purpose of ensuring the effectiveness of this review.
4. The Tribunal acknowledges the Agency's concession that Ms Hobbs must be considered to have reasonable prospects of success in her substantive review application, which is a consideration weighing in her favour in the present application.
5. The outcome sought by Ms Hobbs is essentially that she receives supports funded at the levels of her previous plan, pending the final determination of her review. The Agency, through its making of the reviewable decision, does not consider those levels of supports to be reasonable and necessary, and has contended in those circumstances that there is a clear public interest in the Tribunal's usual review process being followed, including providing the opportunity for the parties to obtain and file further evidence before the Tribunal makes a final determination about the reviewable decision. The opportunity for the parties to make further detailed submissions about the supports in issue and/or the reasonable and necessary levels of those supports, in the context of the testing of further evidence at a hearing, can be added to those circumstances.
6. As such, the Tribunal accepts that there is a clear public interest in the Tribunal's usual review process unfolding, to provide both procedural fairness to the parties and to facilitate the Tribunal making the correct or preferable decision. This is a factor weighing against the making of the order sought.
7. Additionally, if an order of the type sought was made, the Agency would be compelled to provide additional funding over the course of the review, which on the basis of the analysis in the Agency's written submissions, would be a significant value. Should Ms Hobbs ultimately be unsuccessful in her substantive review application, she will have received significant benefits to which she was not legally entitled. In the recent Tribunal decision of Hyde and CEO, National Disability Insurance Agency (Guidance and Appeals Panel) [2025] ARTA 1242, this factor was given significant weight, having regard to the Tribunal's objectives which, among other things, include promoting public trust and confidence in the Tribunal.[27]
8. The Agency has submitted that in these circumstances Ms Hobbs would also owe a debt to the Agency. The information before the Tribunal about Ms Hobbs' circumstances suggests that practically the recovery of any debt may be unlikely; if so, prejudice to the Agency would be caused and the value of any decision by the Tribunal that was in favour of the Agency will be reduced.
9. These considerations weigh against the making of the order sought.
10. Turning to the consequences for Ms Hobbs of making or not making the order sought, the Tribunal accepts that Ms Hobbs will have access to fewer supports in her current SoPS, and is likely to be prejudiced by this, as was submitted. This is a factor to be considered, although, as noted, the power in section 32(2) of the ART Act is not directed to relief of hardship alone. In this context, Ms Hobbs will still have access to a similar range of supports to those funded in her former SoPS, although to the reduced levels previously noted.
11. The impacts for Ms Hobbs can be lessened by the substantive review proceeding expeditiously to a final determination. There is of course the possibility that the review may resolve through the parties reaching agreement as further evidence is gathered and as the review proceeds through the Tribunal's dispute resolution processes.
12. Further, the Agency's submission about the consequences for Ms Hobbs of the making of a stay order raises for consideration the nature of the reviewable decision before the Tribunal. As noted, Ms Hobbs has sought that the Tribunal review the Agency's decision of 23 January 2025, insofar as it relates to the confirmation of the approval made on 5 September 2024 of the current SoPS in Ms Hobbs' plan.
13. Under section 12 of the ART Act a decision is one that is reviewable by the Tribunal if an Act or legislative instrument provides for an application to be made to the Tribunal for review of the decision.
14. The NDIS Act, in a table contained in section 99(1), provides for the decisions made under that Act that are reviewable decisions, being decisions that can be reviewed through an internal review, which in turn can confirm, vary or set aside the reviewable decision and substitute a new decision, as provided for in section 100(6) of that Act.
15. Section 103 of the NDIS Act enlivens this Tribunal's jurisdiction, in that it provides that applications may be made to the Tribunal for review of an internal review decision made under section 100(6).
16. The table in section 99(1) of the NDIS Act specifies a number of decisions relating to access to the NDIS and participants' plans as being 'reviewable decisions'. These include, in Item 4, that 'a decision to approve the statement of participant supports in a participant's plan', made under either subsection 32D(2) or 33(2) of the NDIS Act,[28] is a reviewable decision.
17. As the decision to approve the SoPs in Ms Hobbs' plan is the reviewable decision that is before the Tribunal in Ms Hobbs' substantive review, a decision under section 32(2) of the ART Act to stay the operation or implementation of that decision would stay the approval and implementation of her current SoPS per se, and_:_

To do so would result in the suspension of funding for non-controversial supports.[29]

1. Such an outcome is obviously contrary to what Ms Hobbs seeks happen, through the making of this application.
2. In the context of Ms Hobbs seeking that the stay order sought here would, if made, restore the funding levels and supports in her former SoPS, as contained in her former NDIS plan commencing on 25 January 2023,[30] the Tribunal does not have the power to revive that plan. This is so as by operation of section 37(3) of the NDIS Act, that plan has ceased to be in effect due to its replacement by the current plan for Ms Hobbs.[31]

1. For these reasons, the Tribunal is not persuaded that it is desirable to make the order sought for the purposes of ensuring the effectiveness of the review hearing.
2. The application to stay the operation of the decision under review, pending the hearing and final decision of this matter is refused.

[1] T-Documents, Document T1, Application for Review of Decision, undated (received on 22 April 2025).

[2] T-Documents, Document T2, Internal Review Decision, 23 January 2025.

[3] T-Documents, Document T10, NDIS Plan 5 September 2024 - 5 September 2025.

[4] T-Documents, Document T9, NDIS Plan 25 January 2023 - 24 January 2025.

[5] T-Documents, Document T1C, Application for Stay Order, 15 February 2025.

[6] Ms Dunstan is the authorised representative of Mr Dunstan and Ms Hobbs for their review applications and their NDIS nominee.

[8] It would appear this resulted from an internal NDIS process that inadvertently separated the two reviews initiated by Mr Dunstan and Ms Hobbs.

[9] Respondent's Submissions on Stay Application, 28 May 2025 (the Agency's written submissions), at [4].

[11] Explanatory Memorandum to the Administrative Review Tribunal Bill, [339]. The Tribunal here also notes the Revised Explanatory Memorandum to the Administrative Review Tribunal Bill at [362], to the same effect.

[12] Annexures C and D to the Agency's written submissions.

[13] Agency's written submissions, [24] - [25], and [32] and [34], and oral submissions at the hearing.

[15] Agency's written submissions, [23], citing Re Scott and Australian Securities and Investments Commission [2009] AATA 798; 51 AAR 114.

[16] Agency's written submissions, [26]-[30] citing Allan Bailey and Comcare Australia [1995] AATA 148 at [15] and Clement and Comcare [2006] AATA 705, as applied by the Tribunal in Blackwell and Comcare (Compensation) [2017] AATA 1118 at [10] and Clavero and Australian Postal Corporation (Compensation) [2020] AATA 4167 at [21]. Re Scott and Australian Securities and Investments Commission [2009] AATA 798

[17] Agency's written submission, [31], citing section 32(1) of the ART Act.

[18] T-Documents, Document T7, Functional Capacity Assessment Report (Deepti Sharma), dated 18 February 2025.

[20] This should be a reference to section 99(1) of the NDIS Act.

[22] Ibid, [42], citing Australian Securities and Investments Commission v Administrative Appeals Tribunal [2009] FCAFC 185; (2009) 181 FCR 130 at 143 per Downes and Jagot JJ.

[23] Agency's written submission, [43].

[26] GAP-AAA and GAP-BBB; Child Support Registrar [2024] ARTA 1, [12] - [15].

[27] Hyde and CEO, National Disability Insurance Agency (Guidance and Appeals Panel) [2025] ARTA 1242, at [26], noting section 9 of the Administrative Review Tribunal Act 2024.

[28] Section 33(2) is the relevant provision here, as Mr Hobbs' SoPS was prepared in accordance with the 'old planning framework', rather than the 'new planning framework' which section 32(D) and other provisions created, following the commencement of the National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) Act 2024.

[29] Hyde and CEO, National Disability Insurance Agency (Guidance and Appeals Panel) [2025] ARTA 1242, [17], and Dunn and National Disability Insurance Scheme [2022] AATA 4061 (Dunn), [17]-[18].

[30] T-Documents, Document T9, NDIS Plan 25 January 2023 - 24 January 2025.