Gaudron and National Disability Insurance Agency
[2021] AATA 615
•24 March 2021
Gaudron and National Disability Insurance Agency [2021] AATA 615 (24 March 2021)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2018/7722
Re:Paul Gaudron
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Member Buxton
Date:24 March 2021
Place:Brisbane
Pursuant to subsection 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal dismisses the application for review filed 31 December 2018.
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Member 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), s 25, 30, 42 and 42B
National Disability Insurance Scheme Act 2013 (Cth), s 100Cases
Andreatta and Commissioner for Superannuation [1991] AATA 532
Harvey v Minister for Home Affairs [2020] FCA 1438
Kalejs v Minister for Justice and Customs (2001) 111 FCR 442
KCFS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 4552
Mavris and Commissioner of Taxation [2018] AATA 4130V120/00A v Minister for Immigration and Multicultural Affairs [2002] FCA 264
REASONS FOR DECISION
Member Buxton
24 March 2021
INTRODUCTION
The respondent, the late Mr Paul Gaudron, became a participant of the National Disability Insurance Scheme (the NDIS) in 2018. That scheme is administered under the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act). On 31 December 2018, Mr Gaudron applied to the Administrative Appeals Tribunal for review of a decision made by the respondent in relation to the reasonable and necessary supports included in his participant’s plan under the NDIS.
The Tribunal has received information from an advocate for Mr Gaudron, Ms Wildauer, that he passed away on 26 July 2020. Mr Gaudron had been assisted in his review application by Ms Wildauer, an advocate with the organisation “People with Disability Australia”. However, following the death of Mr Gaudron, Ms Wildauer informed the Tribunal that she had no ongoing contact with Mr Gaudron’s family and was unable to further assist in relation to the review application.
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 submissions from the Respondent as to the appropriate next step in the application. On 8 February 2020 the Respondent provided written submissions in support of an application to dismiss Mr Gaudron’s review application, under subsection 42B(1) of the AAT Act, as the application no longer had prospects of succeeding. The Tribunal has no contact details for the Applicant’s family or representative and has therefore considered only the submissions made by the Respondent. The Tribunal has determined the Respondent’s dismissal application without convening a hearing.
RELEVANT LEGISLATION
The Tribunal may only review decisions in relation to which jurisdiction has been conferred on it by enactment.[1] As Mr Gaudron 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] Administrative Appeals Tribunal Act 1975 (Cth), s 25.
A person dissatisfied with the decision of an officer under the NDIS Act may apply, under section 100(6) of that Act, to the Administrative Appeals 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.
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.
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, were such an application to be made, the executor or administrator for Mr Gaudron could become a party to the proceedings in accordance with the requirements of the AAT Act and continue with the review application.
CONSIDERATION
In the matter of Andreatta and Commissioner for Superannuation (Andreatta),[2] the Tribunal considered the issue of ongoing jurisdiction to consider a review application following the death of the applicant, and stated:
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.[3]
[2] (1991) 23 ALD 326.
[3] Ibid at 327.
The reasoning in Andreatta was approved by the Federal Court in V120/00A v Minister for Immigration and Multicultural and Indigenous Affairs[4] (V120/00A), 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]
[4] [2002] FCA 264.
[5] Ibid at [53]-[55].
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.
I do not consider that Mr Gaudron’s application to review a decision relating to the contents of his NDIS participants plan is in the nature of a decision that would devolve to his estate upon his death. Mr Gaudron sought to have included in his participants plan funding ‘for provision of funding for clothing and attendances at conferences’[6]. His requests that those items be funded under the NDIS, as reasonable and necessary supports in his participant’s plan, are personal to Mr Gaudron, arising from the disabilities that qualified him for access to the scheme in the first place, and are not “rights” that would devolve to his estate.
[6] Respondent’s Submissions (8 February 2021).
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.[7] In Kalejs v Minister for Justice and Customs[8] (Kalejs) Kenny J ordered the proceeding be struck out because it had abated by reason of the applicant’s death. Her Honour held that the rights invoked ‘were not of a transmissible kind.’[9] Mr Gaudron was, similarly, pursuing a statutory claim that was itself the subject of the proceeding, rather that reviewing a decision that lead to consequences outside that statutory claim. His situation can, therefore, be distinguished from, for example, an assessment of the Commissioner of Taxation that may impact the value of assets and, in turn, a deceased estate.[10]
[7] See V120/00A v Minister for Immigration and Multicultural Affairs [2002] FCA 264; KCFS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 4552 (13 November 2020).
[8] [2001] FCA 1769.
[9] Kalejs at [22].
[10] See, for example, Mavris and Commissioner of Taxation [2018] AATA 4130 (31 October 2018).
Mr Gaudron ceased to be a participant in the NDIS upon his death.[11] This clear statutory intent that the scheme be available for participants during their life, but not after, is consistent with the subject matter of his review application being personal in nature and ‘not transmissible to his legal representatives’.[12] I am satisfied that the character of the review was personal to Mr Gaudron and, therefore, does not survive his death. It follows that, even if a representative of his estate were to apply to become a party to the review application, that application would not succeed as only Mr Gaudron’s interests were affected by the decision under review, and these interest did not devolve upon his death. I note that no such application has been made to the Tribunal.
[11] National Disability Insurance Scheme Act 2013 (Cth), s 29(1)(a).
[12] Harvey v Minister for Home Affairs [2020] FCA 1438, [2].
As a result, the review application is abated for want of jurisdiction. I note the submission of the Respondent that it is appropriate to dismiss this application under subsection 42B(1) of the AAT Act. However, as the Tribunal no longer has jurisdiction to consider and determine this review application it is proper that the application be dismissed under subsection 42A(4) of the AAT Act on that basis.
CONCLUSION
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.
I certify that the preceding 14 (fourteen) paragraphs are a true copy of the reasons for the decision herein of Member K Buxton
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Associate
Dated: 24 March 2021
Final Submissions Received:
8 February 2021
Representative for the Respondent: Ms M King, National Disability Insurance Agency
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