1. The Respondent objected to the stay application in written submissions dated 7 November 2025 and provided further submissions dated 9 December 2025. The Tribunal had the benefit of written submissions provided on the Applicant's behalf dated 11 December 2025.
2. An interlocutory hearing was convened on 15 December 2025. The Respondent was represented at that hearing by Ms Campbell of Counsel. The Applicant was represented by her daughter and plan nominee, Ms Caitlin Lalor.
3. For the reasons that follow the application to stay the operation of the reviewable decision is refused.

1. The Administrative Review Tribunal Act 2024 (ART Act) establishes this Tribunal and permits people to apply for independent merits review of reviewable decisions.[1]
2. Pending final determination, the Tribunal has the power to make a stay order. This power is found in subsection 32(2) of the ART Act.
3. Subsection 32(1) of the ART Act provides that making an application to the Tribunal generally does not affect the operation of the decision or the taking of action to implement the decision.
4. Subsection 32(2) of the ART Act provides 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.
5. Before making such a decision, subsection 32(7) of the ART Act 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.
6. Subsection 32(1) of the National Disability Insurance Scheme Act 2013 (NDIS Act) states that a participant of the NDIS must have a plan facilitated by the CEO.
7. Section 33 of the NDIS Act dictates the matters that must be included in a participant's plan. Subsection 33(2) states that a participant's plan must include a statement of participant supports.
8. The CEO, at a person's request or on her own initiative, can vary a participant's plan pursuant to section 47A of the NDIS Act.
9. Further, the CEO may also, either at a person's request or on her own initiative, reassess a participant's plan pursuant to section 48 of the NDIS Act. The outcome of the reassessment can be to vary a participant's plan pursuant to subsection 47A(1) or prepare a new plan and approve a statement of participant supports in the new plan pursuant to paragraph 48(7)(b).
10. Section 37 of the NDIS Act states that a new plan comes into effect when the CEO has received the participant's statement of goals and aspirations and has approved the statement of participant supports. Paragraph 37(3)(a) states that a previous plan ceases to have effect when the plan is replaced by another plan. Subsection 37(4) states that for the purposes of paragraph 37(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.
11. A person who is directly affected by a decision made by the CEO may request a review of the decision. Section 99 of the NDIS Act sets down the decisions that are reviewable. Reviewable decisions under the NDIS Act include a decision to approve a statement of participant supports in a participant's plan, by operation of subsection 99(1) Item 4.
12. Subsection 100(6) of the NDIS Act sets out the CEO's obligation to undertake an internal review of a reviewable decision. It states that a reviewer of a decision may confirm, vary or set aside the reviewable decision.
13. Subsection 103(1) of the NDIS Act states that an application can be made to this Tribunal for review of decisions that are made under subsection 100(6) of the Act.

1. The Applicant's submissions can be summarised as follows.
2. A reassessment was sought as the Applicant's living arrangements were no longer safe. The plan manager report indicates that about $2,300,000 remains unspent in the previous plan. The funds were not utilised as the family had difficulty in securing disability support workers, and those shifts that were covered were provided by sub-standard carers. Since the reduction in her current plan the Applicant has had a significant reduction in her health and wellbeing, particularly in accessing allied health professionals. Whilst the written submissions seek a stay of the current plan, with the exception of the Specialist Disability Accommodation (SDA) funding, it was submitted at the interlocutory hearing that this would not be pursued if it prevented the reviving of the superseded plan.
3. It is submitted that the Agency's submissions in respect to subsection 37(3) of the NDIS Act is incorrect. There remain unspent funds in the superseded plan that can be accessed. Further, Hobbs and National Disability Insurance Agency[2] and Dunstan and National Disability Insurance Agency[3] can be distinguished_._
4. The Respondent submits that granting the stay application would circumvent the review process. A new plan came into effect on 2 July 2025 by operation of section 48 of the NDIS Act. This plan was subsequently varied on 1 August 2025, pursuant to section 47A of the NDIS Act.
5. Section 37(3) of the NDIS Act dictates that the previous plan ceased; legally it is no longer available to be revived. A granting of the stay will result in the Applicant having no supports at all, as there is no plan in place if the current plan is stayed. This is unsatisfactory for the Applicant. The authorities support such a finding, including the decisions of Hobbs, Dunstan, Dunn v National Disability Insurance Agency[4] and my decision of Salathiel and CEO, National Disability Insurance Agency.[5]
6. Further, the Applicant is seeking to craft interim arrangements, being the continuation of the SDA funding and the funding for the previous plan. The Tribunal can only do that at the review stage, not at this stage of the proceedings.

1. I am satisfied that the parties have been given a reasonable opportunity to make submissions. I have also considered the interests of any person who may be affected by the review of the decision.
2. In the matter of GAP-AAA and GAP-AAB; Child Support Registrar[6] 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 of 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.
3. Kyrou J stated that a precondition to the exercise of the discretion to grant a stay will be evidence that the effectiveness of the review that will ultimately be conducted would be adversely affected if the party seeking the stay would suffer "irreversible prejudice" if the stay was not granted.[7] This must be balanced against any prejudice to the party opposing the stay.[8] These considerations must then be balanced and a conclusion reached as to what the interests of justice require in the case.[9] In considering this application I adopt these principles.
4. The purpose of a stay is to maintain the status quo until such time the matter can be heard and determined. Its purpose is not to resolve the substantive issues in dispute.
5. Subsection 32(1) of the ART Act provides that a reviewable decision is to be implemented, even though an application is before the Tribunal. I understand that this reflects the public interest in the Tribunal's usual review process to unfold, including the opportunity for parties to adduce further evidence and being given the opportunity to test evidence at hearing. This public interest weighs in favour of refusing the stay application.
6. I am not persuaded that a granting of the stay would ensure the effectiveness of the review before this Tribunal or that in not granting the stay the application would be rendered nugatory. Certainly, no compelling arguments were presented to persuade me otherwise. These considerations also weigh in favour of refusing the stay application.
7. The uncontradicted evidence from the Agency was that only $115,837.25 of the total funding of $700,359.33 was spent as at 27 November 2025. I am satisfied that there is sufficient funding (both provided and unspent) in that statement of participant supports that would allow the Applicant's needs to be adequately met until such time that this application is determined. This weighs in favour of refusing the stay application.
8. I am satisfied that the Applicant's case has reasonable prospects of success. This weighs in favour of granting the application.
9. The Respondent raised that a granting of a stay may give rise to a debt being raised were the CEO successful on review by the Tribunal. I am not persuaded that this is correct. My analysis of the debt recovery provisions of the NDIS Act indicates that the CEO would not be permitted to recover any expenditure in compliance with the revived plan from a participant. In such cases a stay is not dissimilar to an injunction, whereby the participant would be entitled to the payment of supports made in compliance of the revived plan. It follows, that there is no apparent prejudice to the Applicant in this respect.
10. In the matter of Mr Alex Anderson, by his Plan Nominee and CEO, National Disability Insurance Agency[10] I accepted the reasoning of Deputy President Mischin in Dunn that expressed the view that the Tribunal does not have the power to 'revive' a replaced plan by virtue of subsection 37(3). In Anderson I expressed the view that the effect of a stay order would result in the Applicant having no supports at all as the superseded plan has ceased to have effect by operation of subsection 37(3) of the NDIS Act and so could not be 'revived'.
11. With the benefit of more detailed submissions and further reflection I have reached a different view than I expressed in Anderson. I no longer hold the view that a replaced plan cannot be revived.
12. My reasoning is as follows.
13. The reviewable decision in this case is the statement of participant supports in the current plan, by operation of Item 4 in section 99 of the NDIS Act. A statement of participant supports must specify the general supports, the reasonable and necessary supports, the date by which the plan must be reassessed, the management of the funding for support(s) and other aspects of the plan, including funding amounts and periods, among other requirements.
14. Whilst a plan may be replaced by operation of subsections 37(3) and (4) of the NDIS Act, there is nothing in the NDIS Act that prohibits the replaced plan from being 'revived' in circumstances where the statement of participant supports in the replacement plan are stayed. The effect of the stay would be to suspend the replacement plan because the approval of statement of participant supports, made pursuant to subsection 37(1) of the NDIS Act, cannot take effect while the stay is in force. Therefore, the plan that subsisted prior to the replacement plan in issue continues in effect to the extent of its unexpired terms.
15. In reaching this conclusion I have taken into account the decisions of Dunstan, Hobbs, ZDMW and Chief Executive Officer, National Disability Insurance Agency[11] and HGCF and National Disability Insurance Agency (unpublished).
16. Of course, whether there is utility in staying the replacement plan is another question that requires reconsideration. This will depend on whether the reassessment date of the replaced plan has expired and whether there remain sufficient funds available within the statement of participant supports to support an applicant whilst the proceedings are on foot.
17. This case is illustrative of how granting a stay may have some utility. It is agreed by the parties that there remains $1,984,714.86 in available funding in the superseded plan. However, the replaced plan expired on 13 November 2025. Therefore, whilst there were ample funds (in fact, just short of three times the funding available in the current statement of participant supports) as the superseded plan has expired, there is no utility in granting the stay. In fact, granting the stay would result in irreversible prejudice to the Applicant as she would be left without any supports at all.
18. I have determined that it is not desirable to issue an order staying, or otherwise affecting the operation, or implementation of the decision under review pursuant to subsection 32(2) of the ART Act, as to do so would result in irreversible prejudice to the Applicant.
19. I note for completeness that the stay order sought by the Applicant, that is staying the decision in respect of the funded supports, with the exception of the provision of specialist disability accommodation, and reviving the superseded plan is beyond the scope of the Tribunal's powers under subsection 32(2) of the ART Act. Granting a stay in those terms is more than just the restoration of the status quo; it is the desired outcome sought by the Applicant upon determination of the application for review.
20. The application to stay the operation of the reviewable decision pursuant to subsection 32(2) of the Administrative Review Tribunal Act 2024 is refused.

[1] As set down in section 12 of the ART Act.

[4] [2022] AATA 4061.

[10] (Practice and procedure) [2025] ARTA 1551 at [33].

[11] (Practice and procedure) [2025] ARTA 2293.