Carroll and National Disability Insurance Agency

[2022] AATA 2822

Carroll and National Disability Insurance Agency [2022] AATA 2822 (29 August 2022)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2021/6243

Re:Wonita Carroll

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

Decision

Tribunal:Senior Member K Buxton

Date:29 August 2022

Place:Brisbane

Pursuant to subsection 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal dismisses the application for review filed 3 September 2021.

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

Senior Member K Buxton

Catchwords

PRACTICE AND PROCEDURE – Jurisdiction – National Disability Insurance Scheme – Death of applicant – whether Tribunal has jurisdiction to review decision when applicant is deceased – application dismissed

Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)

Cases
Andreatta and Commissioner of Superannuation (1991) 23 ALD 326
Harvey v Minister for Home Affairs [2020] FCA 1438
Kalejs v Minister for Justice and Customs [2001] FCA 1769
KCFS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 4552
Mavris and Commissioner of Taxation [2018] AATA 4130

V120/00A v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 264

REASONS FOR DECISION

Senior Member K Buxton

29 August 2022

INTRODUCTION

1. The late Ms Wonita Carroll (‘the Applicant’), applied to the Administrative Appeals Tribunal (‘the Tribunal’) on 3 September 2021 for review of a decision made by the National Disability Insurance Agency (‘the Respondent’) which declined her request for access to the National Disability Insurance Scheme (‘the NDIS’). That scheme is administered under the National Disability Insurance Scheme Act 2013 (Cth) (‘the NDIS Act’).

2. The Tribunal has received information from the Respondent that the Applicant passed away on 25 June 2022. The Applicant was informally assisted by Ms Lisa Robinson, a social worker from Gold Coast Allied Health, from whom confirmation of this information was sought, but the registry was not able to make contact with her.

3. No express provision is made in the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’) for the circumstance of the death of an Applicant before a properly constituted review application has been finalised by the Tribunal. The Tribunal sought the views of the Respondent and Ms Robinson in relation to dismissing the application. On 17 August 2022, the Respondent submitted that the application should be dismissed on the basis that there is no longer jurisdiction to review the decision. The Tribunal did not receive a response from Ms Robinson. The Tribunal has no contact details for any of the Applicant’s family members or other representatives, therefore has only considered the views provided by the Respondent. The Tribunal has determined the dismissal application without convening a hearing.

   ISSUE BEFORE THE TRIBUNAL

4. The Tribunal may only review decisions where jurisdiction has been conferred on it by an enactment.[1] As the Applicant has died, the question before the Tribunal is whether the Tribunal still has jurisdiction to continue to consider and determine a review application which, when lodged, was reviewable by the Tribunal.

   [1] AAT Act, s 25.

   RELEVANT LEGISLATION

5. A person dissatisfied with the decision of an officer under the NDIS Act may apply under section 100(6) of the NDIS Act to the Tribunal for review. When the review application was lodged, the Tribunal had jurisdiction to review the decision. However, there is now no party to progress the review application and the real question arises as to whether the application can continue. It is possible for the executor or representative of a deceased Applicant to apply under sections 30(1) and 30(1A) of the AAT Act to continue the review if the requirements of that section are met.

6. Sections 30(1) and (1A) of the AAT Act relevantly state:

   Parties to proceedings before the Tribunal

   1…Subject to paragraph 42A(2)(b), the parties to a proceeding before the Tribunal for a review of a decision are:

   (a)any person who, being entitled to do so, has duly applied to the Tribunal for a review of the decision;

   (b)the person who made the decision;

   (c)if the Attorney-General intervenes in the proceeding under section 30A--the Attorney-General; and

   (d)any other person who has been made a party to the proceeding by the Tribunal on application by the person in accordance with subsection (1A).

   …

   Person whose interests are affected may apply to be a party

   1A Where an application has been made by a person to the Tribunal for a review of a decision, any other person whose interests are affected by the decision may apply, in writing, to the Tribunal to be made a party to the proceeding, and the Tribunal may, in its discretion, by order, make that person a party to the proceeding.

7. To date, no application has been made for a party to be added to this review application. In considering the next appropriate step in this application it is instructive to consider whether, where such an application to be made, the executor or administrator for the Applicant could become a party to the proceedings in accordance with the requirements of the AAT Act and continue with the review application.

   CONSIDERATION

8. In the matter of Andreatta and Commissioner of Superannuation (‘Andreatta’),[2] the Tribunal considered the issue of ongoing jurisdiction to consider a review application following the death of the Applicant, and stated:[3]

   Where the statutory entitlement that is the subject of the proceeding does not devolve upon the death of an applicant, then the death of the applicant will extinguish the availability of that entitlement and, with it, the power of any decision-maker (which by subsection 43(1) of the AAT Act, includes the power of the AAT upon review)...

   Where the statutory entitlement that is the subject of the proceeding does devolve upon the death of an applicant, then the person to whom the statutory entitlement devolves must make application pursuant to ss. 30(1A) AAT Act to be made a party to the proceeding. Unless and until such application is made the Tribunal will have no jurisdiction to review the decision.

   [2] (1991) 23 ALD 326.

   [3] Ibid, [327].

9. The reasoning in Andreatta was approved by the Federal Court in V120/00A v Minister for Immigration and Multicultural and Indigenous Affairs (‘V120/00A’),[4] where in which Kenny J considered the significance of the deceased’s death on the deceased’s entitlement to continue the review of a refusal to grant a protection visa. Her Honour stated:[5]

   53. …Where the statutory entitlement does not devolve upon another…then death extinguishes the entitlement and also the power of a relevant decision-maker with respect to it, including the power of a Tribunal upon review: cf Re Andreatta at 327.

   54. …If, in this case, the deceased had been the sole applicant for review of a decision by the respondent refusing him a protection visa, then, as a matter of statutory construction, his death would have extinguished his review entitlement.

   55. …The decision under review was one refusing the deceased a protection visa, and with his death the decision had no further purpose to serve. Put simply, on his death, the deceased could no longer be affected by the decision he sought to have reviewed, nor any review right he had previously invoked…There will be no valid application for review if the application has lapsed by reason of an applicant’s death.

   [4] [2002] FCA 264.

   [5] Ibid at [53]-[55].

10. I do not consider that the Applicant’s application to review a decision relating to access to the NDIS is in the nature of a decision that would devolve into her estate upon her death. The Applicant’s request for access to the NDIS is not a “right” that would devolve into her estate.

11. These circumstances are analogous to, although not the same as, a review in relation to a decision to refuse approval of a visa, which is personal to the applicant and would be extinguished upon the applicant’s death.[6] In Kalejs v Minister for Justice and Customs (‘Kalejs’),[7] Kenny J ordered the proceeding be struck out because it has abated by reason of the applicant’s death. Her Honour held that the rights invoked ‘were not of a transmissible kind’.[8] The Applicant was, similarly, pursuing a statutory claim that was itself the subject of the proceeding, rather than reviewing a decision that led to consequences outside that statutory claim. Her situation can, therefore, be distinguished from, for example, an assessment of the Commissioner of Taxation that may impact on the value of assets and, in turn, a deceased estate.[9]

    [6] See V120/00A; KCFS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 4552 (13 November 2020).

    [7] [2001] FCA 1769.

    [8] Kalejs, [22].

    [9] See, for example, Mavris and Commissioner of Taxation [2018] AATA 4130 (31 October 2018).

12. The Applicant’s entitlement to make a request to become a participant in the NDIS ceased upon her death.[10] This clear statutory intent that the scheme be available for participants during their life, but not after, is consistent with the subject matter of her review application being personal in nature and ‘not transmissible to his legal representatives’.[11] I am satisfied that the character of the review was personal to the Applicant and, therefore, does not survive her death. It follows that, even if a representative of her estate were to apply to become a party to the review application, that application would not succeed as only the Applicant’s interests were affected by the decision under review, and these interests did not devolve upon her death. I note that no such application has been made to the Tribunal.

    [10] NDIS Act, s 29(1)(a).

    [11] Harvey v Minister for Home Affairs [2020] FCA 1438, [2].

    CONCLUSION

13. For the reasons set out above, I find that the Tribunal does not have jurisdiction to consider and determine the review application. Accordingly, that application is to be dismissed under subsection 42A(4) of the AAT Act as the decision is not reviewable by the Tribunal.

14.     

15.     I certify that the preceding 13 (thirteen) paragraphs are a true copy of the reasons for the decision herein of Member K Buxton

…………[SGD]………………..

Associate

Dated:   29 August 2022

Date of hearing:  On the papers

Applicant:  The late Ms Carroll

Solicitor for the Respondent:             Ms Houlahan, HWL Ebsworth