Decision and
Reasons for Decision
Lewis and National Disability Insurance Agency (Practice and
procedure) [2025] ARTA 391 (16 April 2025)
ADMINISTRATIVE REVIEW TRIBUNAL )
) No: 2025/2016
)
Re: Maree Lewis
Applicant
And: National Disability Insurance Agency
Respondent
Tribunal: Senior Member J Collins
Place: Brisbane
Date: 16 April 2025
DECISION
The application for a stay is granted on the following conditions:
(a) The stay shall lapse upon the decision of the Tribunal on the application for review.
(b) The applicant’s Statement of Participant Supports during the period of
the stay shall replicate the applicant’s SOPS in place for the period from 22
May 2024 until 21 May 2025.
................[SGD].................
Senior Member J Collins
© Commonwealth of Australia 2024
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME
PRACTICE AND PROCEDURE – STAY APPLICATION – revocation of access to
NDIS – whether a condition regarding plan management can be included – refused
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
Cases
Hidayettin Yolbir v Administrative Appeals Tribunal and Secretary, Department of
Social Security [1994] FCA 910
Re Alexander and Migration Agents Registration Board [1995] 40 ALD 99
Stephan-Miller v National Disability Insurance Agency [2025] ARTA 45
STATEMENT OF REASONS
BACKGROUND
1. Ms Lewis, a 51 year-old woman, is a participant of the National Disability Insurance
Scheme (‘the scheme’). The scheme is administered under the National Disability
Insurance Scheme Act 2013 (Cth) (‘NDIS Act’) by the National Disability Insurance
Agency (‘the Agency’).
2. On 22 May 2024, the Agency approved a Plan which included a statement of
participant supports (SOPS) for Ms Lewis. Ms Lewis’ SOPS included a mixture of both
‘Agency managed’ supports and ‘Plan managed’ supports for the following 12 month
period.
3. On 18 October 2024, however the Agency wrote to Ms Lewis advising that her
eligibility to the scheme was to be reassessed.
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4. On 3 December 2024, the Agency then wrote to Ms Lewis advising that the outcome
of her eligibility reassessment was a decision by the Agency that she no longer met
the National Disability Insurance Scheme (‘NDIS’) requirements (‘the reviewable
decision’). This correspondence further advised that from 31 December 2024 she
would no longer be a participant in the scheme and have a NDIS plan.
5. Subsection 32(2) of the Administrative Review Tribunal Act 2025 (‘the ART Act’)
provides that a party may request that the Tribunal make an order staying or otherwise
affecting the implementation of the decision to which the proceeding relates.
6. On 7 March 2025, pursuant to section 32(2) of the ART Act, Ms Lewis applied to the
Tribunal requesting a ‘Stay Order’ of the reviewable decision which was to revoke Ms
Lewis’ access to the scheme.
7. The Agency does not oppose the Stay Order of the reviewable decision.
8. The point of contention between the parties is the management of Ms Lewis’ SOPS for
the duration of the Stay Order.
9. At the interlocutory hearing, Ms Lewis was represented by Mr Bilboe of Intrepidus Law.
The Agency was represented by Mr Henry of Maddocks Lawyers.
ISSUE
10. The issue is whether a ‘Stay Order’ in respect of a decision to revoke Ms Lewis’
access to the scheme can include a ‘condition’ for the duration of the stay which varies
the SOPS that were in place at the time of revocation of Ms Lewis’ access to the
scheme.
MS LEWIS’ REQUEST
11. Ms Lewis seeks as a condition of the Stay Order that the ‘Agency Managed’ supports
on her SOPS be varied to be ‘Plan managed’ supports.
THE AGENCY’S CONTENTION
12. The Agency contends the Tribunal’s powers are confined to a stay of the decision to
revoke access to the scheme and do not extend to matters concerning plan
management of the supports in Ms Lewis’ SOPS.
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CONSIDERATION
13. Sections 32 of the ART Act provides that when an application is made to the Tribunal
for the review of a ‘reviewable decision’, the reviewable decision continues to operate
unless the Tribunal orders otherwise. Section 32 of the ART provides as follows:
Reviewable decision continues to operate unless Tribunal orders otherwise
General rule
(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.
……………………………………………………………………..’
14. Section 12(1) of the ART Act sets out a ‘reviewable decision’ as follows:
12 Reviewable decisions
(1) A decision is a reviewable decision if an Act or a legislative instrument provides for
an application to be made to the Tribunal for review of the decision.
Note: To find out whether a decision is a reviewable decision, start by looking at the
Act or legislative instrument under which the decision is made.
15. Section 99 of the NDIS Act sets out the types of decisions under the NDIS Act that are
‘reviewable decisions’.
16. Item 3 of section 99(1) of the NDIS Act identifies that a reviewable decision includes ‘a
decision that a person does not meet the access criteria’ under s30(1) of the NDIS Act.
17. Section 30 of the NDIS Act provides as follows:
30 Revocation of participant status
(1) The CEO may revoke a person’s status as a participant in the National
Disability Insurance Scheme if:
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(a) the CEO is satisfied that the person does not meet the residence
requirements (see section 23); or
(b) the CEO is satisfied that the person does not meet at least one of the
following:
(i) the disability requirements (see section 24);
(ii) the early intervention requirements (see section 25).
18. Item 4 of section 99 of the NDIS Act, states as another reviewable decision, ‘a
decision to approve the statement of participant supports in a participants plan’ under
s33(2) or section 32D(2) of the NDIS Act.
19. Section 32D(2) of the NDIS Act provides as follows:
Matters that must be included in a participant's plan
…………………………………………………………………………………………
Statement of participant supports
(2) A participant's plan must include a statement (the statement of participant
supports ), prepared with the participant and approved by the CEO, that specifies:
(a) the participant's reasonable and necessary budget in accordance with
sections 32E to 32K; and
(b) the general supports (if any) that will be provided to, or in relation to,
the participant; and
(c) having regard to the needs assessment report for the plan, whichever
of the following applies:
(i) that the participant meets the disability requirements;
(ii) that the participant meets the early intervention requirements;
(iii) that the participant meets both the disability requirements and
the early intervention requirements; and
(d) the plan's maximum period of effect, starting on the day the plan is
approved; and
(e) any circumstances in which the Agency must reassess the plan under
Division 4; and
(f) the management of the funding for supports under the plan (see also
Division 3); and
(g) the management of other aspects of the plan.
20. Subsection 33(2) of the NDIS Act provides as follows:
Matters that must be included in a participant's plan
………………………………………………………………………………
Statement of participant supports
(2) A participant's plan must include a statement (the statement of participant
supports ), prepared with the participant and approved by the CEO, that specifies:
(a) the general supports (if any) that will be provided to, or in relation to,
the participant; and
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(b) the reasonable and necessary supports (if any) that will be funded under
the National Disability Insurance Scheme; and
(c) the date by which, or the circumstances in which, the Agency must reassess
the plan under Division 4; and
(d) the management of the funding for supports under the plan (see also Division 3);
and
(e) the management of other aspects of the plan.
……………………………………………
21. The task under section 30(1) of the NDIS Act relates to a decision of whether to
revoke a participant’s status. It involves a reassessment of the access criteria under
s21(1) of the NDIS Act. This includes reconsideration and reassessment of the
"residence requirements” under s23, the “disability requirements” under s24 or the
“early intervention requirements” under s25 of the NDIS Act.
22. The task under section 30(1) of the NDIS Act does not include or extend to the plan
management of a participant’s SOPS.
23. The task required under subsections 32D(2) and 33(2) of the NDIS Act relates to
facilitating the preparation of a participant's plan which includes a SOPS that will be
included in the plan.
24. The task required under subsections 32D(2) and 33(2) of the NDIS Act also includes
how the funding of supports will be managed. Relevantly subsection 42 (2) of the
NDIS Act provides as follows;
(2) For the purposes of the statement of participant supports in
a participant's plan, in specifying the management of the funding
for supports under the plan as mentioned in paragraph 32D(2)(f) or 33(2)(d),
the plan must specify that such funding is to be managed wholly, or to a specified
extent, by:
(a) the participant; or
(b) a registered plan management provider; or
(c) the Agency; or
(d) the plan nominee.
25. The Agency refers the Tribunal to the decision of the Full Federal Court in Hidayettin
Yolbir v Administrative Appeals Tribunal and Secretary, Department of Social Security
(‘Yolbir’).1 In Yolbir, the Full Court considered the operation and jurisdiction of section
41 of the Administrative Appeals Tribunal Act (‘AAT Act’). Section 41 of the AAT Act
corresponds to the similar power which is now provided under section 32 of the ART
Act.
26. For completeness section 41 of the AAT Act provides as follows:
1 [1994] FCA 910; (1994) 48 FCR 246
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Operation and implementation of a decision that is subject to review
(1) Subject to this section, the making of an application to the Tribunal for a review
of a decision does not affect the operation of the decision or prevent the taking of
action to implement the decision.
(2) The Tribunal may, on request being made by a party to a proceeding before the
Tribunal (in this section referred to as the relevant proceeding), if the Tribunal is of
the opinion that it is desirable to do so after taking into account the interests of any
persons who may be affected by the review, make such order or orders staying or
otherwise affecting the operation or implementation of the decision to which the
relevant proceeding relates or a part of that decision as the Tribunal considers
appropriate for the purpose of securing the effectiveness of the hearing and
determination of the application for review.
…………………………………………………………...
(3) Where an order is in force under subsection (2) (including an order that has
previously been varied on one or more occasions under this subsection), the
Tribunal may, on request being made by a party to the relevant proceeding, make
an order varying or revoking the first-mentioned order.
…
(6) An order in force under subsection (2) (including an order that has previously
been varied on one or more occasions under subsection (3)):
(a) is subject to such conditions as are specified in the order; and
(b) has effect until:
(i) where a period for the operation of the order is specified in the order—the
expiration of that period or, if the application for review is decided by the Tribunal
before the expiration of that period, the decision of the Tribunal on the application
for review comes into operation; or
(ii) if no period is so specified—the decision of the Tribunal on the application for
review comes into operation.
Relevant provisions under the National Disability Insurance Scheme Act 2013
(Cth)
27. In Yolbir, the Full Court made the following commentary:
‘It seems to us that the terms of subs.(1) of s.41 confirm that subs.(2) must have
the broad meaning attributed to it in these decisions. Plainly, subs.(1) refers to the
operative decision upon which action may be taken to implement it. It is that
decision which subs.(2) then permits the tribunal to stay. Furthermore, subsection
(2) speaks of "the decision to which the relevant proceeding relates", which may
be stayed "for the purpose of securing the effectiveness of the hearing and
determination of the application for review." A stay of a non-operative decision
would plainly have nothing to do with securing the effectiveness of the hearing or
the Tribunal's determination.’(‘Tribunal emphasis’)
and
The s.41 power of "staying or otherwise affecting the operation or implementation
of the decision" empowered the making of a stay decision expressed either as a
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suspension of the operative decision or in the positive terms used by Bowen CJ in
Director-General of Social Services v Chaney (unreported, 4 June 1980), ……
28. The Agency also refers to Re Alexander and Migration Agents Registration Board2 and
the following commentary in respect of the operation and implementation of decision
under section 41 of the AAT Act;
[Section 41(2)] is not positive in its effects but merely negative. The content of the
power is limited by its legislative intendment. It is intended to preserve the situation
obtaining prior to the reviewable decision. It is not intended to change the situation
entirely and put the applicant in a different position from what he would have been
in prior to the reviewable decision.
29. The Agency contends as follows:
that the ‘width’ of the Tribunal’s power to ‘stay’ the reviewable decision is confined
to the ‘operative decision’ itself;
the operative decision in this instance is the decision to revoke Ms Lewis’
participant status;
Section 32(2) of the ART does not provide a power to the Tribunal to ‘reach back’
further than the operative decision and in doing so make orders in relation to the
management of Ms Lewis supports;
‘that s 32(2) of the ART Act empowers the Tribunal to stay the operation and
implementation of the revocation decision made in respect of the Applicant, but it
cannot be a condition of the stay order that funds be plan managed. Full plan
management of the Applicant’s plan does not represent the status quo prior to the
making of the revocation decision and would put the Applicant in a different
position.’
Effectively, that the Tribunal does not have the power to change Ms Lewis’ SOPS
as a condition of a stay order.
30. Ms Lewis contends that:
the SOPS in place at the time her participant status was revoked provided that her
supports for assistance with daily living and social and community participation
were to be Agency managed;
Agency managed supports must be provided through a registered NDIS provider;
Ms Lewis however wishes to access these supports through a non-registered
provider.
The Tribunal has the power to include and impose conditions in respect of the stay
order by virtue of section 32(3) of the ART Act. Such a condition could include a
variation to the management for funding on her SOPS.
To enable Ms Lewis to receive supports through a non-registered provider, her
SOPS must be varied to provide that these supports are to be Plan managed.
2 [1995] 40 ALD 99
PAGE 8 OF 10
Simply put, the imposition of a condition that Ms Lewis’ supports be ‘plan
managed’ will ensure that she will continue to have access to supports through a
non-registered NDIS provider.
31. Both parties refer to the decision of Member Bubutievski in Stephan-Miller v National
Disability Insurance Agency (‘Stephan-Miller’)3 which I have considered. In Stephan-
Miller, the Tribunal’s granting of a stay order did not include a variation in the
applicant’s SOPS to allow her to expend funds on support not included in the
applicant’s SOPS at the time of revocation of access to the scheme. Relevantly
Member Bubutievski stated:
I am of the view that the stay should only be granted for a period of six months, to
allow the finalisation of the substantive application. This will help to focus the
minds of both parties on continued engagement towards resolution. I am also of
the view that the Applicant must be bound by a condition to only expend plan funds
for the purpose they were intended to be used in accordance with section 46 of the
NDIS Act. To be clear, this means that the Applicant will be able to expend core
funds on support worker hours; and capacity building funds on exercise physiology
during the period of the stay. She will not be able to use NDIS funds for
physiotherapy, counselling or massage therapy as these have never been
approved supports. If the Applicant is in any doubt about this, she should liaise
with the Respondent to be sure that she does not make any errors, or she can
agree to have her plan Agency managed during the period of the stay. (Tribunal
emphasis)
32. I agree with the reasoning of Member Bubutievski and accept the Agency’s
submission.
33. I am satisfied that the Tribunal’s jurisdiction in the granting of a Stay Order does not
include the imposition of a condition ‘outside’ of the reviewable decision. This would
include the imposition of a condition that prescribes how the funding of supports will be
managed. The purpose of a Stay Order is to suspend and preserve the status quo for
an applicant pending determination of the reviewable decision by the Tribunal. It is not
to place the applicant in a better, worse or different position as compared to the
position of the applicant at the time of the revocation of their participant status.
34. Matters concerning an Applicant’s SOPS, including how funded supports will be
managed are the subject of an application for review made properly under item 4 of
section 99 of the NDIS Act and section 103 of the NDIS Act. Such an application
3 [2025] ARTA 43
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cannot be made in the absence of a determination as to Ms Lewis’ eligibility to access
the scheme.
DECISION
35. The application for a Stay Order is granted on the following conditions:
The stay shall lapse upon the decision of the Tribunal on the application for
review.
The applicant’s Statement of Participant Supports during the period of the stay
shall replicate the applicant’s SOPS in place for the period from 22 May 2024
until 21 May 2025.
I certify that the preceding 35 (thirty
five) paragraphs are a true copy of
the reasons for the decision herein
of Senior Member J Collins.
….............[SGD]...............
Associate
16 April 2025
Dates of hearing: 14 April 2025
Solicitors for the Applicant : Mr Bilboe, Intrepidus Lawyers
Solicitors for the Respondent: Mr Henry, Maddocks Lawyers
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