Patten and National Disability Insurance Agency (Practice and procedure)
[2025] ARTA 1207
•4 August 2025
Patten and National Disability Insurance Agency (Practice and procedure) [2025] ARTA 1207 (4 August 2025)
Applicant/s: Michael Patten
Respondent: National Disability Insurance Agency
Tribunal Number: 2023/5838
Tribunal:General Member Gooch
Place: Adelaide
Date:4 August 2025
Decision:
The Tribunal dismisses the substantive application for review under section 84(4) of the Administrative Review Tribunal Act 2024.
Statement made on 04 August 2025 at 2:55pm
……………………………………..
General Member S Gooch
Catchwords
PRACTICE AND PROCEDURE – National Disability Insurance Scheme – Review of participant supports – death of a participant – whether substantive review can continue before the Tribunal – application dismissed
Legislation
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) Schedule 16, item 24.
Administrative Review Tribunal Act 2024 (Cth) s84
National Disability Insurance Scheme Act 2013 (Cth), s29
Cases
V120/00A v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 264
Reasons for Decision
This decision was forwarded to me to be completed without hearing.
The Applicant, the late Mr Michael Patten, was a participant of the National Disability Insurance Scheme (the Scheme). The Scheme is administered under the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act).
On 22 June 2023 a delegate of the Chief Executive Officer (CEO) of the National Disability Insurance Agency (the Agency) made a decision to fund certain reasonable and necessary supports for Mr Patten.
Mr Patten requested an internal review of this decision seeking to have additional supports funded under his plan. On 1 August 2023 another delegate of the CEO affirmed the original decision (the decision under review).
On 9 August 2023 Mr Patten applied to the Administrative Review Tribunal (the AAT) for review of this decision.
From 14 October 2024 the AAT became the Administrative Review Tribunal (‘the Tribunal’). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be applications for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
Mr Patten was represented in his application by Sydney West Support Services.
On 16 July 2025 a representative from Moray & Agnew Lawyers advised the Tribunal and Sydney West Support Services that Mr Patten had passed away on 30 June 2025. This information was confirmed by Mr Patten’s representative, Dr Hesham Alkhallayleh.
Moray & Agnew Lawyers further advised that Dr Alkhallayleh agreed that the proceedings be finalised on the basis that that the application is dismissed.[1]
[1] Email from Mr Brendan O’Brien, Moray & Agnew Lawyers dated 16 July 2025
10.The Agency does not object to the proposed dismissal application.
The legislative framework
11.Section 29 of the NDIS Act provides that a person ceases to be a participant in the Scheme on their death and may not be paid any amounts for supports after they cease to be a participant.
12.Section 46A of the NDIS Act provides that an NDIS amount, being an amount paid in respect of provision of supports under a participant’s plan, is absolutely inalienable.
13.In the Federal Court decision of V120/00A v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 264 Kenny J (when considering the impact of the applicant’s death on the right to continue a review of a refusal to grant a protection visa) held that when, as here, a statutory entitlement does not pass to another on the applicant’s death, then death extinguishes that entitlement.[2]
[2] At [53]
14.Section 84 of the Administrative Review Tribunal Act 2024 makes provision for the death of an applicant prior to completion of the Tribunal’s review. The net result of section 84 is that in a proceeding before the Tribunal for review of a decision (the substantive application), where the relevant applicant dies and there is no-one else who may apply to continue the matter, the Tribunal may dismiss the application.
CONSIDERATION
15.The decision under review in this matter was a decision in relation to a plan of future supports for Mr Patten.
16.With his death Mr Patten’s participation in the Scheme is now ended, along with any entitlement to NDIS amounts. There is no other person to whom these supports could pass.
17.Having regard to section 84(2) I am satisfied that there are no persons who may apply to the Tribunal to continue with the substantive application.
DECISION
The Tribunal dismisses the substantive application for review under s84(4) Administrative Review Tribunal Act 2024.
| Date(s) of hearing: | On the papers |
| Date final submissions received: | 4 August 2025 |
| Solicitors for the Applicant: | Sydney West Support Services |
| Solicitors for the Respondent: | Moray & Agnew Lawyers |
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