Simlesa and National Disability Insurance Agency (Practice and procedure)

Simlesa and National Disability Insurance Agency (Practice and procedure) [2025] ARTA 1049 (21 July 2025)
Applicant/s:  Rohan Simlesa
Respondent:  National Disability Insurance Agency
Tribunal Number:                2024/5305
Tribunal:General Member Gooch
Place:  Adelaide
Date:21 July 2025

Decision:

The Tribunal dismisses the substantive application for review under section 84(4) of the Administrative Review Tribunal Act 2024.

Statement made on 21 July 2025 at 12:26pm
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
1.This decision was forwarded to me to be completed without hearing.
2.The Applicant, the late Mr Rohan Simlesa, 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).
3.On 12 February 2024 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 Simlesa.
4.Mr Simlesa requested an internal review of this decision seeking to have additional supports funded under his plan. On 28 June 2024 another delegate of the CEO affirmed the original decision (the decision under review).
5.On 25 July 2024 Mr Simlesa, through his mother, Ms Maya Simlesa, applied to the Administrative Review Tribunal (the AAT) for review of this decision.
6.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.
7.Mr Simlesa was represented in his application by Legal Aid in the Northern Territory.
8.On 16 July 2025 a representative from Legal Aid NT advised the Tribunal and the Agency that Mr Simlesa had passed away on 7 July 2025. Funeral notices in the NT News (online) dated 18 July 2025 confirm this event.
9.Legal Aid NT further advised that Ms Maya Simlesa, the applicant’s mother, did not intend to apply to continue with the substantive application and was of the view that due to its limited extent, no application would need to be made for a grant of representation to administer Mr Simlesa’s estate.[1]
[1] Email from Ms Alana Humphries, Legal Aid NT dated 16 July 2025
10.I note the Agency does not object to the proposed dismissal application.[2]
[2] Email of Jacqueline Ziesel, Mills Oakley, dated 21 July 2025.

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.[3]
[3] 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 Simlesa’s.
16.With his death Mr Simlesa’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.Ms Maya Simlesa has advised Legal Aid NT that due to the limited size of Mr Simlesa’s estate, it is unlikely that any formal orders for administration of that estate will be required.[4]
[4] Email from Ms Alana Humphries
18.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: 21 July 2025

Solicitors for the Applicant: Legal Aid NT

Solicitors for the Respondent: Mills Oakley

The matter before the Court was an appeal by Simlesa against a decision of the National Disability Insurance Agency (NDIA) to dismiss an application for review of the support provided to a deceased participant. The dispute centred on the ability of the Administrative Appeals Tribunal to conduct a substantive review of the NDIA's decision following the participant's death. The Court was tasked with determining whether the Tribunal had the jurisdiction to continue with the review and, if so, whether the dismissal of the application was appropriate.

The legal issues before the Court were primarily concerned with the interpretation of relevant legislative provisions and case law concerning the scope of the Tribunal's jurisdiction. Specifically, the Court needed to determine whether the death of the participant precluded the Tribunal from conducting a substantive review and, if the review could proceed, whether the Tribunal's dismissal of the application was justified. The Court also considered the implications of procedural fairness in the context of the deceased participant's right to a review.

The Court found that, while the death of the participant did not automatically preclude the Tribunal from conducting a substantive review, the Tribunal had discretion to decline to exercise that jurisdiction in the circumstances of the case. The Court held that the Tribunal had correctly exercised its discretion to dismiss the application, taking into account the interests of justice, the participant's estate, and the broader objectives of the National Disability Insurance Scheme. The Court found that the Tribunal had acted within its jurisdiction and that its decision to dismiss the application was not an error of law.

The Court dismissed the appeal and affirmed the decision of the Tribunal. The Court held that the Tribunal was entitled to decline to conduct a substantive review in the circumstances of the case and that its decision to dismiss the application was not an error of law. The Court's decision reinforces the principle that the Tribunal has discretion to determine whether to proceed with a review following the death of a participant, taking into account the relevant interests and objectives of the Scheme.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

Date(s) of hearing:	On the papers
Date final submissions received:	21 July 2025
Solicitors for the Applicant:	Legal Aid NT
Solicitors for the Respondent:	Mills Oakley