NDIS - Cases and Commentary

Key points The 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. Facts Ms Pavilupillai contracted polio as an infant and as a result suffers from very severe muscle weakness in

Note 14 November 2022:   The decision in Schwass v NDIA has likely been affected by the Federal Court's reasoning in NDIA v Davis  [2022] FCA 202 - please treat the decision in Schwass  carefully. The below blog article considers the law as it was understood in 2019. Key points There 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. Introduction The Tribunal has two different views on the question of whether morbid obesity is capable of being an 'impairment