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Introduction

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The purpose of this blog is to provide short reviews and commentaries about cases concerning the National Disability Insurance Scheme (NDIS). This blog will try to clearly summarise them , so that they become a useful source of information to people that may need to interact with the NDIS. The NDIS is one of the most essential forms of support to people with disability in Australia. There are almost 200,000 Australians [opens on new page] receiving support through the NDIS, and the continuing rollout will result in this number growing rapidly. People with disability, their families and carers face a number of competing demands on their time and resources. On top of this the NDIS can be confusing and bureaucratic. The National Disability Insurance Agency (NDIA) has to give due consideration to the need to ensure the financial stability of the NDIS - National Disability Insurance Scheme Act 2013 (Cth) s 3(3)(b) [opens on new page] . That may mean that a person does not get all o...
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Permanence - NDIA v Davis [2022] FCA 1002

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Key Points In NDIA v Davis [2022] FCA 1002 [opens in new window], the Federal Court has interpreted the NDIS Rules in a way that requires the NDIA and the Tribunal to take into account, among other things, a participant’s financial circumstances in determining whether a treatment is ‘available’. This is part of the NDIS Rules that deal with ‘permanence’. Facts Ms Davis suffers from a number of conditions, including spondylarthrosis, degenerative impingement of both shoulders, bilateral knee osteoarthritis, ulcerative colitis, obstructive sleep apnoea and morbid obesity. She applied to become a participant in the NDIA. The NDIA declined her application, finding that she did not meet the disability requirements under s 24 of the NDIS Act [opens in new window]. Ms Davis sought review of this decision in the Tribunal. On 14 January 2022, the Tribunal decided to set aside the NDIA’s decision and find that Ms Davis should be admitted as a participant: [2022] AATA 40 [opens in new...
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Risks of not engaging in the Tribunal process; Permanence - TMVJ and NDIA [2022] AATA 2053

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Key points In TMVJ and NDIA [2022] AATA 2053 [opens in new window] the Tribunal decided that a person did not meet the access criteria for the NDIS. That person had declined to attend appointments for examination by specialists that the NDIA had arranged, and had failed to attend referrals to specialists that his own GP had recommended. The Tribunal's decision highlights the risks associated with that course of conduct, in particular the risks that the Tribunal concludes that there is insufficient evidence to demonstrate that a person meets the access criteria for the NDIS.  This case also provides useful consideration of the concept of permanence in determining whether someone meets the disability criteria for the NDIS. Facts The Applicant sought review of a decision of the NDIA that he did not meet the access criteria for the NDIS. In his application for access to the NDIA, he stated that he had myalgic encephalomyelitis (otherwise known as Chronic Fatigue Syndrome) and Mul...
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Jurisdiction to review subsequent decisions - Rogers and NDIA [2022] AATA 2809

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Note: This decision concerns a decision made prior to 1 July 2022. The NDIS Act has been amended, and those amendments took effect on 1 July 2022. If you are concerned about a decision made after  1 July 2022, then this decision of the Tribunal may not apply to you. Key Points In Rogers and NDIA [2022] AATA 2809 [opens in new window], the Tribunal considered jurisdictional issues that arise when new NDIS plans come into effect while the original plan is being reviewed.  These jurisdictional issues have been resolved by changes to the NDIS Act that apply after 1 July 2022. However, if the relevant decision predates 1 July 2022, then the old version of the law will apply. This case might help understanding of the jurisdictional issues under the old version of the law. Facts The Applicant is a participant in the NDIS. His Statement of Participant Supports ( SoPS ) provided Specialist Disability Accommodation ( SDA ), but the Applicant wanted a different form of accommodation sup...
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Need help with a Tribunal matter? Start here.

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 Getting help with a matter in the AAT I have received a number of inquiries from people who have either started proceedings in the Tribunal concerning a dispute with the NDIS, or who are about to start proceedings. This can be a stressful and challenging process, particularly if a person doesn't have legal advice or assistance. However, there are a number of possible avenues for legal assistance or advocacy. I set some of these out below: Legal Aid Legal aid is available for Tribunal disputes. Each state has its own Legal Aid system, and that means that there are different criteria that have to be met in order to obtain Legal Aid.  The Department of Social Services has prepared guidelines [opens in new window] for each of the Legal Aid agencies to follow in deciding whether to grant legal aid funding for an NDIS dispute. In summary: An applicant has to lodge an application with the AAT before  applying for legal aid. Funding applications are not subject to means testing...
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Power of Tribunal to compel applicant to attend medical assessment - Atkinson and NDIA [2021] AATA 3540

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Key points In Atkinson and NDIA  [2021] AATA 3540 [opens in new window], the Tribunal refused the NDIA's application to have an applicant attend appointments with an OT and psychiatrist selected by the NDIA. The case includes a useful summary of how the Tribunal decides whether to exercise its discretion to make such an order. Facts Mr Atkinson brought proceedings in the Tribunal seeking a review of the NDIA's decision that he did not meet the access criteria for the NDIS.  In the course of these proceedings, the NDIA requested Mr Atkinson to attend appointments with a psychiatrist and an in-home assessment by an occupational therapist. Both experts were selected by the NDIA. Mr Atkinson refused. He stated that he was extremely exhausted from the Tribunal process, and that he will suffer deterioration of his health if he is required to undergo the further examinations. Mr Atkinson offered to have his OT and psychiatrist answer further questions from the NDIA if required. The ...
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Assistance Animals - Requirements for psychiatric assistance dogs - Hollis and NDIA [2021] AATA 2888

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Key points In Hollis and NDIA  [2021] AATA 2888 [opens in new window] the Tribunal analyses requirements in order to obtain NDIS funding for the registration and upkeep of a dog who the applicant claimed had been trained to by a psychiatric assistance dog.  The Tribunal's decision states that at a minimum, among other things, a psychiatric assistance dog will have to be trained to standards set by Assistance Dogs International. That requirement could have the effect of severely limiting access to funding for psychiatric assistance dogs in Australia, given the limited number of Australian organisations providing psychiatric assistance dogs that appear to meet this standard. Facts Mr Hollis has a number of psychiatric conditions, including complex PTSD, dyslexia, anxiety and chronic grief. He sought funding for various supports, including funding for registration and upkeep of his toy poodle, Pluto, who Mr Hollis stated was trained to provide him with emotional support and psyc...
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Home modifications - Elevator vs Stairclimber - Loadsman and NDIA [2021] AATA 1990

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Key Points In Loadsman and NDIA   [2021] AATA 1990 [opens in new window], the Tribunal refused to include funding for installation of a home elevator in a participant's plan, instead providing funding for a stairclimber. The case is a useful example of how the Tribunal (and the NDIA) approach the question of home modifications. It is apparent that if there is a suitable cheaper alternative that can be reused, then this will likely be funded instead of permanent home improvements. Facts Ms Loadsman is a participant in the NDIA who suffers from motor neurone disease ( MND ). She lives with her family in a two-storey home. Ms Loadsman sought funding from the NDIA for the installation of an elevator in order to allow her to access the upper storey of her home. Ms Loadsman gave evidence that she was unable to climb the stairs because her legs did not function properly. She had previously been using an ankle foot orthosis and a walker to navigate her house, but had recently begun using ...
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