Fowke and National Disability Insurance Agency (Practice and procedure)

[2024] ARTA 444

Fowke and National Disability Insurance Agency (Practice and procedure) [2024] ARTA 444 (30 October 2024)

Applicant/s:  Anthony Fowke

Respondent:  National Disability Insurance Agency

Tribunal Number:                2023/1581

Tribunal:General Member J Papalia  

Place:Perth

Date:30 October 2024

Date of written reasons:     31 October 2024

Decision:The Tribunal dismisses the substantive application for review under s 84(4) of the Administrative Review Tribunal Act 2024. 

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

General Member J Papalia

Catchwords

PRACTICE AND PROCEDURE – National Disability Insurance Scheme – Review of participant supports - Death of the participant – Whether substantive review can continue before the Tribunal – application dismissed

Legislation

Administrative Review Tribunal Act 2024 (Cth), s 84

National Disability Insurance Scheme Act 2013 (Cth), Chapter 3 and Chapter 7.

Cases

Re Jones and National Disability Insurance Agency [2023] AATA 2014 at [5]-[13].

Re Radburn and Minister for Immigration, Citizenship and Multicultural Affairs [2022] AATA 2158 at [9]-[18].

Statement of Reasons

(These reasons were given orally and have been subsequently reduced to writing)

SUBSTANTIVE APPLICATION

1. The Applicant, the late Mr Anthony Fowke, was a participant of the National Disability Insurance Scheme (NDIS). He relevantly sought review before this Tribunal and its predecessor, the Administrative Appeals Tribunal, of a decision made by a delegate of the Chief Executive Officer of the Respondent in relation to his statement of participant supports set out in his plan prepared under Part 2 of Chapter 3 of the National Disability Insurance Scheme Act 2013 (NDIS Act). 

   DEATH OF THE APPLICANT

2. On 9 February 2024, the Applicant’s Specialist Support Coordinator, Ms Weir, who is an NDIS provider based in the Applicant’s home state of Queensland, wrote to the Tribunal and to the legal representatives of the Respondent, by email, advising that the Applicant had unfortunately passed away the week prior. 

3. The Applicant’s death on 2 February 2024 was established at a Directions Hearing held today. 

   BASIS FOR THE DISMISSAL

4. For the following reasons, the Tribunal has decided to dismiss the substantive application for review.   

5. Section 29 of the NDIS Act provides that a person ceases to be a participant in the NDIS when the person dies, and that a person is not entitled to be paid NDIS amounts so far as they relate to supports that are acquired or provided after the person ceases to be a participant.

6. Sub-section 37(3)(c) of the NDIS Act provides that a participant’s plan ceases to be in effect in any case when the participant ceases to be a participant.

7. Section 182(1) of the NDIS Act provides that any payments of an NDIS amount to or in respect of a participant that are not authorised by the Scheme become a debt due to the Respondent. Such debts are then recoverable under Part 1 of Chapter 7 of the NDIS Act or may be written off or waived under Division 4 of that Part.

8. The District Registrar spoke with the Applicant’s wife by telephone on 13 March 2024 regarding the death of her husband and the applicant’s estate. Advice was received to the effect that there was no present intention to apply for probate or letters of administration.  This was confirmed at the Directions Hearing today. 

9. The Respondent also confirmed at the Directions Hearing today that it is unlikely that a debt would be owed by the Applicant’s estate under Part 1 of Chapter 7 of the NDIS Act.

10. The Administrative Appeals Tribunal was previously satisfied that the death of a participant would be fatal to an application of this kind: see Re Jones and National Disability Insurance Agency [2023] AATA 2014 at [5]-[13]; see also the analysis in Re Radburn and Minister for Immigration, Citizenship and Multicultural Affairs [2022] AATA 2158 at [9]-[18]. I generally agree with that analysis.

11. Having regard to the Applicant’s circumstances and the statutory framework, this is not the kind of matter that can survive the death of the Applicant (and impact their estate). 

12. In those circumstances, I am satisfied that there would be no utility in the substantive review proceeding before the Tribunal. There is therefore no authorised person of a kind described in s 84(2)(a) of the ART Act, or a person whose interests that are affected by the Tribunal’s decision for the purposes of s 84(2)(b) of the Act, that could usefully apply to continue the substantive review. This is because any decision to be made by the Tribunal would be futile in circumstances where the Applicant’s plan has ceased to be in effect upon his death. In my view, the appropriate order to be made under s 85(3) of the ART Act would be that the application be dismissed for that reason.

13. In any event, no such application under s 84(2) of the ART Act has been made within 3 months’ notice of the Applicant’s death being provided to the Tribunal. The Tribunal was aware of the Applicant’s death from at least 13 March 2024, when this was confirmed by the District Registrar speaking with the Applicant’s wife. 

    DECISION

14. For the above reasons, the Tribunal has decided to dismiss the substantive application for review under ss 84(4)(a) and/or (b) of the ART Act.

15.     I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for the decision herein of General Member J Papalia

....................[Sgd]......................................

Associate

Dated: 31 October 2024

Date of hearing:	30 October 2024
Representative for the Applicant:	Mrs S Fowke
Solicitor for the Respondent:	Ms D Underwood, Moray & Agnew
Representative of the Respondent	Mr J Morrissy, Assistant Director NDIA