Lockwood and National Disability Insurance Agency (Practice and procedure)

[2024] ARTA 454

Lockwood and National Disability Insurance Agency (Practice and procedure) [2024] ARTA 454 (22 November 2024)

Applicant/s:  Richard Stephen Lockwood

Respondent:  National Disability Insurance Agency

Tribunal Number:                2023/5718

Tribunal:General Member J Papalia

Place:Perth

Date:22 November 2024

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

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General Member J Papalia

Catchwords

PRACTICE AND PROCEDURE – National Disability Insurance Scheme – access decision – death of applicant – 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), s 29

Cases

Paula Susan Chappell as Executor of the Estate of Robert Hastings Hitchcock v Goldspan Investments Pty Ltd [2021] WASCA 205; (2021) 58 WAR 503;

Re Carroll and National Disability Insurance Agency [2022] AATA 2822

Secondary Materials

Statement of Reasons

SUBSTANTIVE APPLICATION

1. The Applicant, the late Mr Richard S Lockwood, sought access to the National Disability Insurance Scheme (NDIS).  Before this Tribunal’s predecessor, the Administrative Appeals Tribunal, he sought review of a decision made by a delegate of the Chief Executive Officer of the Respondent dated 10 July 2023, to decline him access to the NDIS because of concerns about the permanency of the Applicant’s impairments. 

   DEATH OF APPLICANT

2. On 21 June 2024, the Applicant’s Specialist Support Coordinator, Ms Barendregt, wrote to the Tribunal by email advising that the applicant had unfortunately passed away that day.  This email included a copy of Death Certificate issued by the Registrar of Births, Deaths and Marriages for South Australia. 

3. This correspondence was referred to me in Chambers today.  This Tribunal was required to deal with the substantive application pending before the Administrative Appeals Tribunal in a manner that it considers to be efficient and fair.  The delay in considering the above correspondence is, frankly, unsatisfactory.  The Tribunal apologises to the parties for any inconvenience caused by the delay. 

   BASIS FOR DISMISSAL

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

5. Whether a cause of action (including an application for review of an administrative decision) conferred by statute on a person, who dies after the cause of action commences, is transmissible form the deceased person to his or her legal personal representatives depends upon the terms of the statute which conferred the cause of action and any other relevant statute: see Paula Susan Chappell as Executor of the Estate of Robert Hastings Hitchcock v Goldspan Investments Pty Ltd [2021] WASCA 205; (2021) 58 WAR 503 at [79].

6. Section 29 of the National Disability Insurance Scheme Act 2013 (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. 

7. The Tribunal may relevantly dismiss a substantive application for review, pursuant to s 84(4) of the Administrative Review Tribunal Act 2024 (ART Act), if:

   (a)the Tribunal considers that there is 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 administrative decision for the purposes of s 84(2)(b) of the ART Act, who can continue with the substantive application; or

   (b)no application to continue with the substantive application is made within 3 months after the Tribunal becomes aware of the applicant’s death. 

8. In Re Carroll and National Disability Insurance Agency [2022] AATA 2822, Senior Member Buxton of the Administrative Appeals Tribunal considered that the “clear statutory intent” of the NDIS Act was that an applicant’s entitlement to make a request to become a participant in the NDIS ceased upon their death and that their request was not transmissible to their legal personal representatives ([12]). I generally agree with that analysis.

9. Having regard to the nature of the application and the statutory framework, this is not the kind of matter that can survive the death of the Applicant (and impact their estate). In those circumstances, I am satisfied that there is no person of a kind described in s 84(2) of the ART Act who can apply to continue with the substantive application.

   DECISION

10. The Tribunal dismisses the substantive application for review under s 84(4)(a) of the ART Act.

11.     I certify that the preceding ten (10) paragraphs are a true copy of the reasons for the decision herein of General Member J Papalia

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

Associate

Dated: 22 November 2024

Representative for the Applicant:	Self-represented
Solicitor for the Respondent:	NDIA Legal Services