Jones and National Disability Insurance Agency

[2023] AATA 2014

Jones and National Disability Insurance Agency [2023] AATA 2014 (12 July 2023)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2022/8498

Re:Lynette Jones

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Senior Member K Buxton

Date:12 July 2023

Place:Brisbane

Pursuant to section 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal dismisses the application for review filed 25 October 2022.

.....................[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), s 30, s 42

National Disability Insurance Scheme Act 2013 (Cth),

Cases

Andreatta and Commissioner for Superannuation (1991) 23 ALD 326

Carroll and National Disability Insurance Agency [2022] AATA 2822

Harvey v Minister for Home Affairs [2020] FCA 1438
Kalejs v Minister for Justice and Customs [2001] FCA 1769
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

12 July 2023

INTRODUCTION

1. The Applicant, the late Ms Lynette Jones, was a participant of the National Disability Insurance Scheme (the NDIS). That scheme is administered under the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act). On 25 October 2022, Ms Jones 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 her participant’s plan under the NDIS.

2. On 27 March 2023 the Tribunal was informed by from Mr Neill, who had been assisting Ms Jones and her family with the review application, that she had recently passed away. Mr Neill informed the Tribunal that he had been attempting to contact Ms Jones’ husband and next of kin but had been unsuccessful in receiving a response.

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. On 11 April 2023, the Respondent provided written submissions in support of an application to dismiss Ms Jones review application, under subsection 42A(4) of the AAT Act. The Respondent submitted that the Tribunal no longer had jurisdiction to review the application. The Tribunal also sought to make contact with the Applicant’s family or representative so that they could make written submissions if they wished to, but no further information was provided. The Tribunal has therefore considered only the submissions made by the Respondent. The Tribunal has determined the Respondent’s dismissal application without convening a hearing.

4. The Tribunal may only review decisions in relation to which jurisdiction has been conferred on it by enactment.[1] As Ms Jones has died, the question before the Tribunal is whether the Tribunal continues to have jurisdiction to consider and determine a review application which, when lodged, was reviewable by the Tribunal.

   [1] Administrative Appeals Tribunal Act 1975 (Cth), s 25.

5. 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.

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

   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. The Respondent has respectfully submitted that the Tribunal’s jurisdiction in relation to the reviewable decision ceased when Ms Jones passed away. No submissions have been made on behalf of Ms Jones in relation to appropriate next steps and 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 Ms Jones 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 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.

9. 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.

10. I do not consider that Ms Jones’ application to review a decision relating to the contents of her NDIS participants plan is in the nature of a decision that would devolve to her estate upon her death. Ms Jones sought to have included in her participants plan funding for various additional supports not included in her plan at that time. The requests that those items be funded under the NDIS, as reasonable and necessary supports in her participant’s plan, were personal to Ms Jones, arising from the disabilities that qualified her for access to the scheme in the first place, and are not “rights” that would devolve to her estate.

11. I arrived at a similar conclusion in Carroll and National Disability Insurance Agency [2022] AATA 2822[6], where the Applicant has sought review of a decision relating to access to the NDIS. These circumstances are analogous to, although not the same as, that case. They are also analogous to a review in relation to a decision to refuse approval of a visa, which has been determined by the Federal Court as personal to the applicant and which 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]  Ms Jones was, similarly, pursuing a statutory claim that was itself the subject of the proceeding, rather that 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 the value of assets and, in turn, a deceased estate.[10]

    [6] See also Gaudron and National Disability Insurance Agency [2021] AATA 615 at [10] – [12].

    [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).

12. Ms Jones ceased to be a participant in the NDIS upon her 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 [her] legal representatives’.[12] I am satisfied that the character of the review was personal to Ms Jones and, therefore, does not survive her death. Further, the consequence of Ms Jones having already ceased to be a participant in the NDIS means that any remittal to the Respondent or substituted decision by the Tribunal would be of no effect. 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 Ms Jones’s interests were affected by the decision under review, and these interests did not devolve upon her death.

    [11] National Disability Insurance Scheme Act 2013 (Cth), s 29(1)(a).

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

13. As a result, the review application is abated for want of jurisdiction. 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

14. 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.

15.     I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for the decision herein of Senior Member K Buxton

………………[SGD]……………..

Associate

Dated: 12 July 2023