Decision: The decision of the Tribunal at first instance dated 31 March 2025 is stayed pursuant to s 33(2) of the Administrative Review Tribunal Act 2024 (Cth) until further order.

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GUIDANCE AND APPEALS PANEL - National Disability Insurance Scheme - approval of a Statement of Participant Supports for inclusion in a Participant Plan - review of first instance decision of Tribunal - issue of significance to administrative decision making - whether supports in dispute are "NDIS Supports" that are capable of being approved for inclusion in a Statement of Participant Supports - whether first instance decision should be stayed pending the outcome of the GAP review - exercise of discretion - relevant considerations - GAP applicant's prospects of success - whether the GAP applicant would suffer irreversible prejudice if a stay were not granted - whether the GAP respondent would suffer prejudice if a stay were granted - stay granted

Administrative Review Tribunal Act 2025 (Cth): ss 9, 32, 107, 127

National Disability Insurance Scheme Act 2013 (Cth): ss 10, 33, 34, 35

National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) (NDIS Supports) Transitional Rules 2024 (Cth); s 4, Schedule 2

GAP-AAA and GAP-AAB; Child Support Registrar (Guidance and Appeals Panel) 2024 ARTA 1

1. On 23 June 2025, the Administrative Review Tribunal (ART), constituted by the Guidance and Appeals Panel (GAP), granted the CEO of the National Disability Insurance Agency's (the CEO) application to refer a first instance decision of the Tribunal in this case published on 31 March 2025 for a further, or 'second', review by the GAP. That decision arose from an independent review of a decision of the CEO made on 28 September 2023 to approve a Statement of Participant Supports (SoPS) for the respondent to the GAP proceeding (the participant) for inclusion in her NDIS Participant Plan.

1. As the delegate of the President who considered the referral application, I was satisfied that the case should be referred for second review because the Tribunal's first instance decision raised an issue of significance to administrative decision-making. That issue concerns the interpretation and application of the National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (Cth) (the NDIS Supports Transitional Rules).

1. The NDIS Supports Transitional Rules are made pursuant to s 35 of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act). They prescribe by reference to s 10 of the NDIS Act, in short summary, those supports that are, and those that are not, NDIS supports for the purposes of paragraph 34(1)(f) of the NDIS Act. If a support is not a NDIS Support by operation of these Rules, it cannot be included in a SoPS approved by the CEO under s 33(2) of the NDIS Act.

1. The supports in issue in this case are described by the first instance Tribunal in its decision as follows:

Control 4 system supply and installation, cabling; and > > Supply and installation front access gate and fence panel to accommodate Control4 system and electronic strike. > > (the supports in dispute)

1. The supports in dispute are, in short, a voice activated home security system. I have been unable to find precise evidence of their cost but note that in her submissions the participant states that the cost is "under $15,000.00". These supports were considered in a context in which the participant has severe and deteriorating loss of vision.

1. Schedule 2 of the NDIS Supports Transitional Rules prescribes those supports that generally are not NDIS Supports. They include as Item 1 "[d]ay-today living costs - accommodation and household", "the following", "(c) standard home security and maintenance costs, fencing, gates, and building repairs".

1. The word "standard" may invoke the meaning of "standard item" as that term is defined in section 4 of the NDIS Supports Transitional Rules, which provides:

Standard item for a participant or prospective participant means an item that is not modified or adapted to address the functional impairments of the participant or prospective participant.

2. In its disposition of the case at first instance the Tribunal set aside the decision under review and remitted it for reconsideration by the CEO with a direction that the supports in dispute were to be approved for inclusion in the Applicant's SoPS.

1. The CEO's application to refer the first instance decision to the GAP was accompanied by an application pursuant to s 127(2) of the ART Act for a stay of the decision pending the outcome of the referral application. For reasons that are unclear to me that application was not dealt with prior to my decision to refer the case to GAP for a second review.

1. Now that the case is before the GAP for second review the CEO amends her stay application to apply for a stay of the decision under review as set-aside and required to be varied by the first instance Tribunal pending the outcome of the GAP review.

1. The Tribunal's power to make such an order is found in s 32(2) of the ART Act. Section 32 provides, in ss 32(1) the "general rule", which is that 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.

1. However, that general rule is subject to an exception, which is found in ss 32(2). It provides that a party to a proceeding for review of a reviewable decision may apply to the Tribunal for 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". Such an order operates subject to any conditions specified in the order: ss 32(3). Such an order has effect until the decision of the on the application comes into operation: ss 32(4).

1. The practical upshot of these provisions is that unless a stay is granted the CEO will be obliged to implement the Tribunal's first instance decision by varying the participant's SoPS to include funding for the supports in dispute.

1. The decision of the Tribunal at first instance requires close study. As I have stated it involved the review of a decision to approve a SoPS for inclusion in the participant's Participant Plan dated 28 September 2023. It is that decision which was set aside.

1. However, the decision to approve the contents of that SoPS was only controversial in the review to the extent that it did not include the supports in dispute. The remittal of the decision was limited to a direction that the decision be reconsidered such that the supports in dispute are included in the SoPS.

1. Ordinarily, the Tribunal would direct that the reconsideration of the decision occurs within a specified timeframe. However, the Tribunal did not so specify in this case. By operation of s 107(1) of the ART Act the decision therefore came into operation on the date it was given to the parties. In this case, although the decision is dated 31 March 2025, it appears it was not issued to the parties by Registry until 11 April 2025. By operation of s 107(1) it would thus appear that the CEO was required to reconsider her decision and vary it as directed by the Tribunal simultaneously with receiving the remittal of it on 11 April 2025.

1. In the stay submissions filed on her behalf, it is made plain that the CEO does not ask the Tribunal to stay the approval of the participant's SoPS per se. To do so would result in the suspension of funding for non-controversial supports. Rather the CEO only seeks to suspend the operation of the Tribunal's order of 31 March 2025 which requires her to reconsider and vary the SoPS to include the supports in dispute.

1. The parties have been provided with the opportunity to file written submissions in relation to the CEO's stay application. The CEO relies upon submissions filed on 9 May 2025 in relation to her original stay application based on s 127, and further submissions filed on 7 July 2025 in relation to her amended stay application under s 32(2) of the ART Act. The participant relies on written submissions filed on 14 July 2025.

1. I heard the stay application at an Interlocutory Hearing conducted by video on 15 July 2025. The CEO was represented at that hearing by counsel. The participant appeared with a support person, self-represented. Both parties were provided with the opportunity to speak to their written submissions and respond to the other party's submissions. I reserved my decision at the end of the hearing.

1. In GAP-AAA and GAP-AAB; Child Support Registrar (Guidance and Appeals Panel) [2024] ARTA 1, the President of the Tribunal set out the relevant principles to be applied in consideration of a stay application with respect to s 127(1) of the ART Act. This stay application is made under s 33(2), but no difference in principle pertains to its consideration under that section. These principles are contained in the following passages of 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.

1. In summary, the CEO submits that the Tribunal ought to exercise the discretion conferred by s 32(2) to grant her stay application, limited to the Tribunal's order of 31 March 2025 for the following reasons:

(a) the stay sought is narrow in scope and does not affect the funding of other supports already included in the participant's SoPS,

(b) in this second review she (the CEO) has good prospects of success in establishing that the supports in dispute are not NDIS Supports as defined and therefore cannot be approved for inclusion in the participant's SoPS,

(c) failure to grant the stay would have an adverse effect on the second review because despite that review being on foot, by operation of the general rule contained in s 32(1) of the ART Act she would be obliged to fund the supports in dispute,

(d) additionally, if the supports in dispute were required to be funded, and she (the CEO) is ultimately successful establishing that the supports in dispute are not NDIS Supports, she would not be able to recover the costs expended by the Agency on these supports from the participant,

(e) there is no irreversible prejudice to the participant that would arise from the stay being granted.

1. The participant opposes the stay application. In summary, she submits:

(a) the supports in dispute are essential for her independence, daily functioning and safety and that any further delay in their funding will have a serious impact on her quality of life, including by placing her safety and autonomy at risk. In this respect, she highlights the length of time her case has already been before the Tribunal (since 4 October 2023),

(b) by reference to her analysis of the NDIS Supports Transitional Rules, the Tribunal's decision at first instance is correct, and that accordingly, the CEO's second review application has poor prospects of success. In connection with this submission, she highlights the policy emphasis in the NDIS Act on participant choice and control in relation to the selection of their supports,

(c) the CEO will not suffer any significant prejudice if the stay is not granted. That is because the cost of the supports in dispute is less than $15,000.00. While she (the participant) accepts she could not repay this amount in the event that the CEO's second review application is successful, she submits that this 'loss' to the NDIA is insignificant in governmental terms. In connection with this submission, the participant contends that the CEO has already spent many times the value of these supports on legal fees in this case,

(d) additionally, she submits that if the CEO is successful in the second review in establishing that the supports in dispute are not NDIS Supports, that legal outcome will still have value in terms of the broader administration of the NDIS notwithstanding that such support has been funded in her case,

(e) she is self-represented and that, consequently, she is at a serious disadvantage in circumstances where the CEO is represented by solicitors and counsel.

1. I have carefully considered the submissions of the parties and have determined, on balance of the relevant considerations, that a stay limited to the operation of the Tribunal's decision of 31 March 2025, and not the decision of the CEO to approve the SoPS dated 28 September 2023, ought to be granted.

1. I acknowledge the participant's submissions regarding the impact of the delay in the funding of these supports on her personal well-being. To the extent that proper consideration of case on second review permits, the Tribunal can address the participant's concerns about delay by expediting the second review. The directions I have made for the conduct of this second review to hearing do this as far as practicable.

1. However, ultimately, this second review raises an issue of significance to administrative decision-making, which is whether supports in the nature of the supports in dispute are NDIS Supports that are capable of being approved for inclusion in a SoPS. In my view it is important that this issue is resolved before the CEO is required to fund these supports. In this respect, I accept the CEO's submission that she has a good prima facie case having regard to s 10 of the NDIS Act and the NDIS Supports Transitional Rules that the supports in dispute are not NDIS Supports. This consideration weighs in favour of a stay being granted.

1. In my respectful opinion, it cannot reasonably be said that the cost of these supports, being approximately $15,000.00, is not significant, in the sense that it is a public benefit being paid in respect of the participant. The fact that the NDIS is a multibillion-dollar governmental program, and that the CEO may have spent substantial funds on legal fees in this case, do not alter that fact. If the CEO is successful in this second review, the participant will have obtained this substantial benefit contrary to the applicable law. That consideration is to be given significant weight in my opinion, having regard to this Tribunal's objective which, among other things, is to promote public trust and confidence in the Tribunal.[1] The fact that the CEO may ultimately obtain a systemic policy outcome despite being required to fund the supports in dispute for the participant in this case does not lead me to any different conclusion.

1. The participant accepts that she would be unable to afford to repay the costs of the supports in dispute, were they to be installed, and the CEO is successful in this second review. The CEO has submitted an analysis of the debt recovery provisions in the NDIS Act, centring on s 182, and contends that these provisions would not enable her to reclaim this funding from the participant. It is not necessary for me to determine the question of the CEO's power to recover this funding as a debt. I accept that there is an unlikelihood practically, if not also legally, that she would be able to do so. In this respect, I am satisfied that the CEO would potentially suffer irreversible prejudice if a stay were not granted. That consideration weighs in favour of the stay being granted.

1. As I have already stated, I accept that further delay in the funding of these supports is disappointing, inconvenient and distressing for the participant. However, that prejudice is not such as to be irreversible. If the supports in dispute are approved for inclusion in the participant's SoPS as an outcome of this second review, there will have been a delay in their funding only. Those supports will remain capable of being funded in the participant's SoPS. As I have said above, the Tribunal will do what it can to expedite the second review to hearing to limit as far as possible further delay in the underlying issue being determined. These considerations taken together do not weigh against a stay being granted.

1. Weighing these considerations in the balance, I am satisfied that a stay is desirable for the purposes of securing the effectiveness of this second review.

1. Finally, I acknowledge the participant's concerns about her relative party disadvantage in participating in this second review. That is not a matter over which the Tribunal has any real control. Whether she qualifies for, or is otherwise able to obtain, legal or non-legal advocacy assistance with her case turns on matters that are external to the Tribunal. However, I note that in association with the stay hearing I obtained the participant's permission for her referral by Registry to legal aid and legal profession pro bono schemes in her State.

I certify that the preceding paragraphs 1 to 30 are a true copy of the written reasons for the interlocutory decision of Senior Member French

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Counsel for Applicant: Arron Hartnett, Higgins Chambers

Solicitor for Applicant: Brendan O'Brien, Moray and Agnew