Decision: The decision of the Tribunal at first instance dated 14 August 2025 limited to the approval of funding of the Funky Monkey Bars is stayed until further order pursuant to subsection 32(2) of the Administrative Review Tribunal Act 2024.

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

Guidance and Appeals Panel - stay order - prospects of success - prejudice to a party - what the interests of justice require in the particular circumstances of the case - debts due to the agency

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) (NDIS Supports) Transitional Rules 2024 (Cth)

CEO, National Disability Insurance Agency and Hyde [2025] ARTA 2597

CEO, National Disability Insurance Agency and Roberts [2025] ARTA 2628

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

1. On 24 December 2025, following an interlocutory hearing, I ordered that the decision of the Tribunal at first instance (first instance decision) be stayed until further order, pursuant to subsection 32(2) of the Administrative Review Tribunal Act 2024 (Cth) (Act).

1. After issuing that order it became apparent that there was an obvious error in the text of the order. I intend to correct the order, pursuant to section 114 of the Act, amended to include the following underlined words:
   1. The decision of the Tribunal at first instance dated 14 August 2025 limited to the approval of funding of the Funky Monkey Bars is stayed until further order pursuant to subsection 32(2) of the Administrative Review Tribunal Act 2024.

1. For clarity, the remainder of the first instance decision is not affected.

1. These are the written reasons for that decision.

1. NGVL is a child who was granted access to the National Disability Insurance Scheme (NDIS) in 2021.
2. On 2 December 2025 the decision of the first instance decision was referred to the Guidance and Appeals Panel (GAP) in accordance with subsection 128(1) of the Act on the basis that the decision raises an issue of significance to administrative decision-making.
3. The first instance decision was an independent review of a decision made by the Chief Executive Officer (CEO) of the National Disability Insurance Agency (Agency) on internal review dated 3 May 2022. An issue in dispute at first instance, and at the GAP, is the approval of Orangutan Plus Funky Monkey Frame with additional accessories including monkey bars, jungle rope, flying fox, climbing net, firefighter pole and trapeze and freight (Funky Monkey Bars) for inclusion in NGVL's statement of participant supports in his participant plan.
4. The first instance decision set aside the decision under review and remitted it for reconsideration by the CEO with a direction that the provision of the Funky Monkey bars is a reasonable and necessary support and so should be included in NGVL's statement of participant supports. The decision also specified that all other supports in NGVL's statement of participant supports (excluding one-off assistive technology) are to be replicated on a pro-rata basis, the plan management type is to continue and a review date is to be determined.
5. The CEO's application to refer the first instance decision to the GAP was accompanied by an application pursuant to subsection 127(2) of the Act for a stay of the decision, pending the outcome of the referral application. By the time the stay application was heard the matter had been referred to the GAP and so the CEO amended the application to a stay of the decision under review pursuant to section 32 of the Act.

1. The Tribunal's power to make a stay order is found in section 32 of the Act.
2. Subsection 32(1) provides that, generally, making an application to the Tribunal does not affect the operation of the decision or prevent the taking of action to implement the decision.
3. Subsection 32(2) of the Act permits an exception to this general rule. Upon application by a party to a proceeding the Tribunal may make an order staying the decision or operation or implementation of a decision if the Tribunal considers that it is desirable to do so for the purpose of ensuring the effectiveness of the review.
4. Essentially these provisions mean that the CEO is obliged to implement the first instance decision unless a stay is granted.
5. Before making such a decision, subsection 32(7) states that the Tribunal must not make a stay decision unless the parties have been given a reasonable opportunity to make submissions and the Tribunal has taken into account the interests of any person who may be affected by the review of the decision.

1. The CEO, when lodging the stay application, made the following relevant submissions:

The Agency submits that the GAP Referral Application has good prospects of success and that this weighs positively in favour of making an order to stay the operation or implementation of the decision dated 14 August 2025.

The Agency submits that the effectiveness of the referral application will be adversely affected in the absence of as Stay Order because if the Tribunal's decision remains, the Agency will be obliged to pay for the Funky Monkey and its installation if invoiced by NGVL (through his representative). This would put NGVL in a position to obtain access to a support which is not considered to be an NDIS Support and which is above what is available to other Participants on the Scheme. The Agency is of the view that s 182 of the NDIS Act does not allow the Agency to recover the costs of a support if it is funded and the NDIA succeeds on appeal. As such, this should not be relied upon to refuse a request for a stay of the Tribunal decision while the matter is reviewed by the GAP.

While the Agency submits there would be no significant prejudice to it, the Agency acknowledges that the stay would involve delay in funding the Funky Monkey Bars to NGVL. However any delay weighed up against the other considerations set out above would in favour of a stay being granted.

1. At the interlocutory hearing the CEO submitted that the recent GAP decision of CEO, National Disability Insurance Agency and Hyde [2025] ARTA 2597 (Hyde) is distinguishable on its facts and therefore does not support the contention that there is merit to NGVL's application. Further, the GAP decision of CEO, National Disability Insurance Agency and Roberts [2025] ARTA 2628 (Roberts) indicates that the Funky Monkey Bars do not fall within Schedule 1 to the National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) (NDIS Supports) Transitional Rules 2024 (Transitional Rules).

1. It was submitted that if the support was funded and the appeal successful, there would be no basis on which the CEO could seek a refund of the cost pursuant to subsection 182(1) of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) as the recovery of a sum by raising a debt is only permissible if the person is not 'entitled' to the payment, which is not applicable in this scenario. Therefore, if a stay were not granted, there would be irreversible prejudice to the CEO. It was also submitted that there would be no prejudice to NGVL, who still has the provision of funding for therapeutic supports available under the current plan.

1. The Respondent objected to the stay application in written submissions dated 18 December 2025. It was submitted that the GAP application had no prospects of success, given the decision of Hyde, which is not supportive of the Agency's position and consistent with the first instance decision. Further, it was submitted that funding a support in the vicinity of $3,000 would not amount to irreversible prejudice for the CEO and, in any event, were the CEO to seek recovery NGVL's family could repay the amount, though with difficulty. In contrast, there would be a real and irreversible prejudice to NGVL, who does not have access to the support which is likely to improve his functional capacity. It was submitted that in balancing the considerations the interests of justice weigh in favour of refusing the stay.

1. At the interlocutory hearing the Respondent submitted that the review would not be rendered nugatory should the stay be refused. Further, the stay was not desirable for ensuring the effectiveness of the review. In addition, Roberts is distinguishable, as the equipment in not used in isolation; rather, it is paired with the therapy provided by allied health professionals. It was stressed that the purpose of the CEO's application for review was to seek a wider systemic outcome regarding similar supports in other NDIS cases. Further, the loss of opportunity for NGVL to engage in meaningful therapy results in an irreversible prejudice.

1. Both parties sought to rely on GAP-AAA and GAP-AAB; Child Support Registrar [2024] ARTA 1 which 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), which largely mirrors the provisions subsection 32(2) of the ART Act. It is uncontroversial that the same principles apply when considering a stay application pursuant to this subsection. These principles are succinctly outlined in the decision:
   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.
2. Having considered the submissions presented I am persuaded that a stay limited to the funding of the Funky Monkey Bars ought to be granted.
3. The decision of the plurality in Hyde indicates that the GAP application has prospects of success. However, the decision of Roberts indicates that the Funky Monkey Bars do not fall within Schedule 1 to the Transitional Rules and so is not a reasonable and necessary support for the purposes of subsection 34(1) of the NDIS Act.
4. I acknowledge the real concern that a delay in the provision of the Funky Monkey Bars may have on NGVL's development generally and functional impairments specifically. It is regrettable that this matter has been before this Tribunal for over three years. It is for this reason that the matter has been expedited to hearing. Having said that, I accept that there will likely be a further delay of at least six months before the GAP reaches its decision.
5. If the stay were not granted the Funky Monkey Bars must be funded by the CEO. If the CEO were successful in her application, there would be no legal basis on which the costs associated with the Funky Monkey Bars could be recouped. This would render a successful outcome before the GAP nugatory.
6. Further, NGVL has over $55,000 remaining in his Improved Daily Living funding which can be used flexibly for ongoing therapies to address his functional impairments whilst awaiting the outcome of this application before the GAP. In my view this does not amount to NGVL suffering an irreversible prejudice if the stay were granted.
7. After balancing the prejudice to NGVL and to the Agency and giving due consideration to what the interests of justice require in this particular case, I am satisfied that a stay is desirable for the purposes of ensuring the effectiveness of the review.
8. Accordingly the application is granted, noting the corrigendum pursuant to section 114 of the Act to the order issued on 23 December 2025.

The decision of the Tribunal at first instance dated 14 August 2025 limited to the approval of funding of the Funky Monkey Bars is stayed until further order pursuant to subsection 32(2) of the Act Administrative Review Tribunal Act 2024.