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Introduction

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 of the help t…

Hearing loss and substantially reduced functional capacity - Evans and NDIA [2019] AATA 754

Key pointsInEvans and NDIA [2019] AATA 754 [opens in new window] the Tribunal decided that the NDIA's Operational Guidance, which referred to the NDIA generally being satisfied that a person has a substantially reduced functional capacity if they have a hearing loss of greater than or equal to 65 decibels, could not be used as a 'threshold' to prevent a person whose hearing loss was less than 65 decibels from accessing the NDIS.In considering the criteria for access to the NDIS, the relevant question is always whether a specific person has an impairment that results in substantially reduced functional capacity to do one of the things in s 24 of the Act [opens in new window].BackgroundMs Evans has experienced hearing loss for a number of years. She applied to be a participant in the NDIS. The NDIA decided that she did not meet the access criteria in s 24 of the Act [opens in new window]. An issue was whether Ms Evans had an impairment that resulted in substantially reduced…

Further clarification about pathways for review of decisions involving Statements of Participant Support (SoPS) - LQTF and NDIA

Key PointsThe Tribunal's decision in LQTF and NDIA [opens in new window] provides a useful breakdown of the different ways in which a review of a SoPS can happen. The Tribunal makes clear that a person can seek review of a decision of the NDIA to not conduct an unscheduled review of a plan, and then apply to the Tribunal if the NDIA affirms the decision to not review. However, in such a case the Tribunal can only decide whether or not the plan should be reviewed; it cannot decide anything about the substance of the plan.It is much more straightforward for applicants to seek internal review of a decision to approve a SoPS made pursuant to s 33 of the Act [opens in new window] than to seek an unscheduled review pursuant to s 48 of the Act [opens in new window], because it avoids the hurdle of the NDIA deciding whether or not to review the plan. Applicants should be clear about the fact that they are seeking internal review of a s 33 decision, rather than a s 48 unscheduled review. T…

The NDIA's obligation to seek further information from applicants - FSQQ and NDIA

Key pointsThe Tribunal has confirmed that a 'beneficial approach' should be taken to interpreting the NDIS Act.The Tribunal has emphasised that if the NDIA thinks that the information provided to it by an applicant about their disability is insufficient, then the NDIA is under an obligation to seek further information from the applicant. FactsThe applicant had a number of health conditions. Her GP filled in an Access Request - Supporting Evidence Form that listed a number of these conditions and gave it to the NDIA. The form did not specifically mention that the applicant had depression, however the GP included a medical report that said in part that the applicant's health was complicated by depression and that she would need effective antidepressant therapy.
The NDIA decided that she did not meet the access criteria for the NDIS. The applicant sought internal review of this decision and the NDIA affirmed its decision. The applicant sought review of this decision in the Trib…

"The NDIA is taking too long on an internal review. What can I do?" - Not much unfortunately.

Key PointsThere is a problem with the NDIA taking a long time to internally review its decisions, especially decisions concerning statements of participant supports. This is despite the law requiring the NDIA to complete internal reviews 'as soon as reasonably practicable'.A recent decision of the Tribunal has the effect that a person cannot bring a review application to the Tribunal until the NDIA makes its decision on internal review.A person who is unhappy with how long an internal review is taking can complain to the NDIA, complain to the Commonwealth Ombudsman or seek a writ of mandamus from the Federal Court of Australia. None of these options are ideal.Internal review of NDIA decisionsSome decisions made by the NDIA pursuant to the NDIS Act are 'reviewable decisions'. The full table of reviewable decisions is found in s 99 of the Act [opens in new window] and they include decisions about whether a person meets the access criteria for the NDIS, decisions whether …

Social and economic participation in heels - Pavilupillai v NDIA

Key pointsThe Convention on the Rights of Persons with Disabilities (CRPD) [opens in new window] sets out a number of broad rights and principles that countries (including Australia) have agreed to promote, protect and ensure the enjoyment of by people with disability. One of the objects in s 3 of the NDIS Act [opens in new window] is to give effect to Australia's obligations under the CRPD.However, the CRPD is not an independent source of rights for Australians. What matters is the terms of Australia's laws, including the NDIS Act. A person's rights in relation to the NDIS are determined by reference to the NDIS Act, not the CRPD. 'Social and economic participation' is about pursuing goals and maximising independence and community participation. It is not directly about a person's wishes and desire to enjoy a particular lifestyle. FactsMs Pavilupillai contracted polio as an infant and as a result suffers from very severe muscle weakness in her legs, arms, trunk…

Morbid obesity - is it an 'impairment' for the NDIS?

Key pointsThere is a conflict between two Tribunal decisions about whether morbid obesity is an 'impairment' for the NDIS - 'impairment' is one of the access criteria for the NDIS.The conflict between the two decisions would have to be resolved by the Federal Court in an appropriate case.Even if a person with morbid obesity could prove it was an 'impairment', it will likely be difficult for them to prove that it was a 'permanent' impairment, because this would require them to show that there is no medical or other treatment available for it. IntroductionThe Tribunal has two different views on the question of whether morbid obesity is capable of being an 'impairment' for the purposes of the NDIS. This is an important issue, because in order to meet the disability requirements in s 24(a) of the NDIS Act [opens in new window] a person must have "a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or p…

'Most appropriately funded or provided through the NDIS' - the difference between education provision and disability provision

Key PointsIt is sometimes hard to see the difference between an educational support which is most appropriately provided by an education system and a disability support that is most appropriately provided by the NDIS. The difference depends on the needs of the particular applicant for support, what they hope to achieve, and what their level of "educational attainment" is.Applicants seeking funding for supports like literacy or numeracy programs should emphasise the importance those programs have for general life skills, independence and community access (as well as for the classroom). That may assist the NDIA to understand that a support is not just for "educational attainment" and it may make them more willing to fund it.IntroductionThe previous entry in this blog (available here - opens in new window) discussed the difficulties with defining what supports are the NDIS's responsibility, and what is 'most appropriately funded or provided through the NDIS…