Pascu and National Disability Insurance Agency (NDIS)
[2025] ARTA 32
•20 January 2025
Pascu and National Disability Insurance Agency (NDIS) [2025] ARTA 32 (20 January 2025)
Applicant/s: Robert Pascu
Respondent: National Disability Insurance Agency
Tribunal Number: 2023/9664
Tribunal:Senior Member S Webb
Place:Canberra
Date:20 January 2025
Decision:Application dismissed.
…………….[SGD]…………………
Senior Member S. Webb
NATIONAL DISABILITY INSURANCE SCHEME – approval of supports for a participant – death of participant – effect of the death – deceased person no longer a participant – no entitlement to payment of NDIS amounts for supports acquired or provided after the death
PRACTICE AND PROCEDURE – application for review of decision to approve participant supports – death of participant in the course of Tribunal proceedings – persons who may apply to continue with the application – discretion to dismiss – statutory entitlement not transmissible – meaning of person whose interests are affected by the decision – 3 month period for application to continue – no application made – appropriate to exercise discretion – application dismissed
Legislation
Administrative Review Tribunal Act 2024, ss 12, 22, 84
National Disability Insurance Scheme Act 2013, ss 9, 28, 29, 33, 37, 46, 46A, 47A, 48, 103
Cases
Australian Conservation Foundation v The Commonwealth [1980] HCA 53
Gaudron and National Disability Insurance Agency [2021] AATA 615
V120/00A v Minister for Immigration and Multicultural Affairs [2002] FCA 264
Statement of Reasons
In this unfortunate case, Robert Pascu died before his application for review was completed. In these circumstances, it remains to decide what should be done with the application.
Facts
Mr Pascu was a participant in the National Disability Insurance Scheme (Scheme). Under the Scheme, the National Disability Insurance Agency CEO (NDIA) approved a Statement of Participant Supports (SoPS) for Mr Pascu which was confirmed on internal review. It was in respect of this decision, that Mr Pascu lodged an application for review by the Tribunal (substantive application). By his application, Mr Pascu was seeking approval of funding for additional supports the NDIA decided were not reasonable and necessary.
In the course of the proceedings, the Public Trustee and Guardian (PTG) was appointed guardian for Mr Pascu with the following powers:
(a) to give any consent required for the protected person to receive services under the National Disability Insurance Scheme;
(b) to bring or continue legal proceedings for or in the name of the protected person;[1]
[1] Order of the ACT Civil and Administrative Tribunal, 24 May 2024.
Thereafter, PTG instructed Legal Aid in the Tribunal proceedings.
On 30 July 2024, the NDIA notified Mr Pascu an unscheduled plan review had been conducted under s 48 of the NDIS Act and the plan reassessment date and approved funding for supports had been extended to 18 July 2025. The NDIA informed the Tribunal the SoPS “was automatically varied on 18 July 2024 under s 47A”. For present purposes it is not necessary to determine if there was a plan review under s 48 or a variation made under s 47A. By operation of s 103(2) of the National Disability Insurance Scheme Act 2013 (NDIS Act), the substantive application is taken to include the variation or the SoPS in the new plan.
On 31 July 2024, Legal Aid informed the Tribunal Mr Pascu was seeking the following additional supports:
- Supported Independent Living (SIL): 4 hours of 2:1 support, 9.5 hours of 1:1 support and 10.5 hours of inactive overnight 1:1 support per day
- 20 hours of Social and Community Participation per week at the 1:1 ratio
- $76,388 per year for the rental of the Ook Snow Bariatric power adjustable bed and curocell A4 CX20 Plus hybrid pressure mattress (based on quote of $5.876 for 4 weeks as per quote from Alpha Life Care)
- Alternatively, funding for the purchase of the Ook Snow Bariatric power adjustable bed and curocell A4 CX20 Plus hybrid pressure mattress with a pump (quote to be provided)
- 73 hours of occupational therapy per year
- 39 hours of dietetic support per year (weekly for the first 6 months then transitioning to fortnightly)
- 52 hours of psychology per year
- 200 hours of level 2 support coordination (36 hours of level 3 support coordination per year to be maintained)
- Additional funding for continence consumables (further details to be provided)
- Oxygen concentrator (quote to be provided)
- Bariatric tilt in space commode with pressure relieving (quote to be provided)
- Bariatric hoist (portable vs ceiling mounted) and hoist slings (quote to be provided)
- Custom power mobility device with supportive seating and pressure relieving cushion (quote to be provided)
- Assistance with the cost of the preparation and delivery of meals (number of meals to be confirmed)
On 26 September 2024, Tina Pascu, Mr Pascu’s mother, informed the Tribunal and Legal Aid advice of Mr Pascu’s death.
Subsequently, PTG informed Legal Aid :
When Mr Pascu passed, this ended our orders and I am unable to advise any further as our authority has now ended.
In these circumstances, the NDIA lodged an application for dismissal of the application.
The Tribunal sought further information in respect of any outstanding matters from Mr Pascu’s parents, Legal Aid, PTG and the NDIA.
On 20 December 2024, PTG informed the Tribunal when Mr Pascue died PTG’s authority under the guardianship order came to an end.
On 15 January 2025, Legal Aid informed the Tribunal they hold no further instructions to act for Mr Pascu in the proceedings. Legal Aid stated they are not aware of any outstanding issue other than, as of 10 October 2024, Ms Toni Cooper of Consulting Autism and Positive Support was liaising with the Respondent in respect of final payment of outstanding invoices for behavioural support services provided to Mr Pascu.
Legislation and issues
The matter is to be decided under s 84 of the Administrative Review Tribunal Act 2024 (ART Act) in reference to relevant provisions of the NDIS Act.
The application for review was lodged with the Administrative Appeals Tribunal (AAT) under the Administrative Appeals Tribunal Act 1975 (AAT Act). The AAT Act was repealed and, as of 14 October 2024, the AAT has been replaced by the Administrative Review Tribunal (Tribunal). Under the transitional provisions set out in Schedule 16 of the Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024, from 14 October 2024, the Tribunal has jurisdiction to conduct the review under the ART Act.
Section 84 of the ART Act is in the following terms:
(1) This section applies in relation to a proceeding in the Tribunal in relation to an application (the substantive application) for review of a decision if:
(a) the applicant:
(i) dies; or
(ii) becomes bankrupt; or
(iii) is wound up or otherwise ceases to exist; or
(iv) becomes subject to any form of liquidation or administration (however described); and
(b) the Tribunal considers that the applicant cannot continue with the substantive application because of the event mentioned in paragraph (a).
(2) The following persons may apply to the Tribunal to continue with the substantive application:
(a) a legal personal representative, executor, administrator, liquidator or trustee of the applicant for the substantive application;
(b) a person whose interests are affected by the decision.
(3) If a person applies to continue with the substantive application, the Tribunal may, on request or on its own initiative, give such orders as appear to the Tribunal to be appropriate in the circumstances.
(4) The Tribunal may dismiss the substantive application if:
(a) the Tribunal considers that there is no person mentioned in subsection (2) 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 event mentioned in paragraph (1)(a).
As can be seen, where an applicant dies, the Tribunal’s power to dismiss the application turns on there being no person within the ambit of s 84(2) who ‘can continue with the substantive application’ or no application under s 84(2) within 3 months of the Tribunal being notified of the death.
This language encapsulates two important conceptions.
Firstly, the word ‘can’ in this context refers to a person with the power or standing to continue with the substantive application. The qualifying characteristics of such a person are set out in s 84(2). In addition to persons with legal authority who may apply under s 84(2)(a), the qualifying characteristics are expanded to include a person who interests are affected by the decision in s 84(2)(b). Affectation of interests in this context is not something which turns solely on perception or belief, however strongly held.[2] More is required to establish sufficient affectation of a legitimate interest within the scope and purpose of the ART Act. A person who meets this threshold could apply under s 22 of the ART Act to be joined as a party.
[2] Australian Conservation Foundation v The Commonwealth [1980] HCA 53 per Mason CJ, [5].
Secondly and relatedly, the words ‘continue with’ in s 84(4)(a) and (b) refer to the ‘substantive application’, namely the application for review of a reviewable decision as defined in s 12 of the ART Act. This turns on there being something to continue with under the relevant legislation following the death. Where the statutory entitlement which is the subject of the application for review devolves to another person, there may be something to ‘continue with’ in the review. Additionally, where or a person has interests which are affected by the statutory entitlement prior to the death, the interests might be sufficient to continue with.
These considerations raise the following factual questions, determination of which requires relevant probative material:
(a)has an event of a kind specified in s 84(1)(a) occurred, and if so
(b)does the Tribunal consider the applicant cannot consequently continue with the substantive application; and if so
(c)is there a person within the terms of s 84(2)(a) or (b) who may apply to continue with the substantive application; and
(d)has that person or any other person within the terms of s 84(2)(a) or (b) lodged an application to continue with the substantive application within 3 months of notification of the death?
If these questions are positively answered, the Tribunal has discretion to give orders which are appropriate in the circumstances. A negative answer enlivens the dismissal power conferred by s 84(4).
Consideration
Following notification of Mr Pascu’s passing on 26 September 2024, the Tribunal is satisfied he is not able to continue with the application. The Tribunal accepts the information provided by Mr Pascu’s mother which is confirmed by the public obituary notice published in the Canberra Times newspaper on 2 October 2024.
The Tribunal has not been notified of any person within the terms of s 84(2)(a) who is able to continue with the application. Legal Aid holds no such instructions and PTG has no authority under guardianship orders in respect of Mr Pascu.
The Tribunal has not been informed of any person whose interests are affected, other than Mr Pascu’s parents and, perhaps, Ms Cooper of Consulting Autism and Positive Support.
No application to continue with the substantive application has been received.
The question of devolution of Mr Pascu’s statutory entitlement under the NDIS Act turns on depends on the language of the statute under which the entitlement arises[3].
[3] V120/00A v Minister for Immigration and Multicultural Affairs [2002] FCA 264, [53].
The statutory entitlement to funding for supports under the NDIS Act is determined in a Statement of Participant Supports under s 33(2), which is instrumental in the coming into effect of a participant’s plan under s 37. These matters are essentially preconditioned by the person being a participant in the NDIS under s 28.
By operation of s 29 a person ceases to be a participant in the NDIS when they die:
(1) A person ceases to be a participant in the National Disability Insurance Scheme when:
(a) the person dies; or
….
(2) A person is not entitled to be paid NDIS amounts so far as the amounts relate to supports that are acquired or provided after the person ceases to be a participant.
(3) The National Disability Insurance Scheme rules may specify circumstances in which specified supports are taken for the purposes of subsection (2) to be, or not to be, acquired or provided after the person ceases to be a participant.
Mr Pascu ceased to be a participant in the NDIS on 26 September 2024 and, by operation of s 37(3), Mr Pascu’s plan ceased to have effect.
Under s 46A an ‘NDIS amount’ is absolutely inalienable. The term ‘NDIS amount’ is defined in s 9:
NDIS amount means an amount paid under the National Disability Insurance Scheme in respect of supports (other than general supports) funded under a participant’s plan
Under s 46(1), a person who receives an NDIS amount, the participant or a person on behalf of the participant, may spend the NDIS amount on ‘NDIS supports’ as defined in s 10, or in accordance with the participant’s plan. Contravention of this requirement may lead to a debt being raised against the person (see Note 4 to s 32E for example) or to variation of the participant’s plan.
Consequently, while Mr Pascu’s statutory entitlement to funding approved for supports in the context of the plan which had effect as of 26 September 2024 may not devolve to another person on the event of his death, management of such funding, including receipt and payment of funds, is transmissible to another person by prior determination under s 33(2) of the NDIS Act.
It does not follow, as the NDIA asserts, that there can be no other interested person who could continue with the substantive application. On this point, with respect, I decline to follow the Tribunal in Gaudron and National Disability Insurance Agency.[4] Even though no ‘rights’ to statutory entitlement under the NDIS Act devolve upon the death of a participant, it does not follow that the interests of a person affected by the substantive decision are extinguished by the death. The interests of a person who received NDIS amounts on behalf of a participant prior to their death may well be affected by a substantive decision in respect of the approval of reasonable and necessary supports or NDIS supports for the participant in the particular case. In the context of a participant’s plan, it is readily conceivable that binding commitments might be entered into for the provision or acquisition of supports for the participant prior to the death and, where the supports are the subject of the substantive application, a recoverable cost or debt might rise or fall if the application is successful. A person who can establish such an interest may well be taken to be a person whose interests are affected by the substantive decision for the purposes of s 84(2)(b) of the ART Act.
[4] [2021] AATA 615, [12].
On the information given to the Tribunal, Ms Cooper is the only person identified who provided supports to Mr Pascu prior to his death with invoices outstanding as of 10 October 2024. As I understand it, under the SoPS approved as of 18 July 2024, the behavioural supports provided were approved and the funding was NDIA-managed. Recovery of payment is a matter between Ms Cooper and the NDIA, not the Tribunal.
Presently, no application has been made by any person to continue with the application. More than 3 months have elapsed from the date on which the Tribunal was given notice of Mr Pascu’s death.
It follows the discretion to dismiss the application is enlivened.
Having regard to these considerations and in the particular circumstances, I am satisfied it is appropriate to exercise the discretion and to dismiss the substantive application under s 84(4)(b) of the ART Act.
I certify that the preceding 37 (thirty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member S Webb.
.....................[SGD]...............................................
Associate
Dated: 20 January 2025
Date final submissions received:
13 January 2025
Solicitors for Applicant:
Eimear Silk, Legal Aid ACT
Solicitors for Respondent:
Taylor Young, Mills Oakley
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