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

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' 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 physical impairments or to one or more impairments attributable to a psychiatric condition". 

The cases

Pomeroy - morbid obesity is an impairment

Pomeroy and NDIA [2018] AATA 387 [opens in new window] involved a person seeking to access the NDIS for morbid obesity and for osteoarthritis and lack of mobility, which were secondary to her morbid obesity. The NDIA decided that she did not meet the access criteria, and Ms Pomeroy sought review of this decision in the Tribunal. One of the questions for the Tribunal was whether morbid obesity was an 'impairment'. 

The NDIA relied on its Access to the NDIS Operational Guideline [opens in new window]. Section 8.1 of that document says in part: 

For the purposes of becoming a participant in the NDIS the focus of 'disability' is on the reduction or loss of an ability to perform an activity which results from an impairment. The term 'impairment' commonly refers to a loss of, or damage to, a physical, sensory or mental function.

The narrower definition of 'disability' employed by the NDIS seeks to target those people with disability who have a significant impairment to their functional capacity. This functional definition of disability focuses on outcomes for people with disability that are in the most need (Explanatory Statement to the Becoming a Participant Rules.).

The NDIA argued that morbid obesity was not an 'impairment', because the condition is diagnosed simply by reference to a person's weight (generally a person with a Body Mass Index greater than 40 is considered morbidly obese). 

The Tribunal disagreed. At [35] it said: 

While I accept that a diagnosis of morbid obesity describes a person’s weight, I am satisfied that the medical evidence shows the applicant’s morbid obesity is an impairment because it substantially reduces her physical function in terms of her ability to mobilise and to undertake self-care.

Schwass - morbid obesity is not an impairment 

 The issue came up again recently in Schwass and NDIA [2019] AATA 28 [opens in new window], which concerned a person with morbid obesity and secondary osteoarthritis. The NDIA argued that osteoarthritis was an 'impairment' but morbid obesity was not. It relied on the same guideline quoted above.

Jamie Ronald, Mr Schwass's advocate, referred to the Federal Court's decision in Mulligan v NDIA [2015] FCA 544 [opens in new window], where the Court said at [56] that "[the NDIS] is based on a functional, practical assessment of what a person can and cannot do". Mr Ronald argued that this meant that the NDIA and Tribunal should not focus on a person's loss of function, not the reason for the loss of function.

The Tribunal agreed with the NDIA. At [35] - [37] it stated that 'impairment' is separate to a loss of function. Just because someone has lost function does not mean they are impaired in the eyes of the NDIS. At [37] the Tribunal said in part:

There is no evidence that a diagnosis of morbid obesity necessarily entails a loss of, or damage to, a physical, sensory or mental function. Such a diagnosis is made when an individual’s weight falls within a particular range. This of itself is not reflective of any loss of or damage to the body’s function; it is simply a term that is used to describe a particular state of the body, a state which may be temporary.

Although Mr Schwass's morbid obesity was a 'disability', it was not an 'impairment'.

Despite the disagreement on the question of whether morbid obesity was an 'impairment', in both cases the Tribunal decided that the condition was not permanent (see s 24(1)(b) of the NDIS Act [opens in new window]). Rule 5.4 of the NDIS (Becoming a Participant) Rules 2016 [opens in new window] states that "an impairment is, or is likely to be, permanent... only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment." The evidence showed that there were medical treatments available to both Ms Pomeroy and Mr Schwass that had not been fully explored.

Analysis

The issue of whether morbid obesity is an 'impairment' is difficult. Although it is true that morbid obesity occurs whenever a person's weight exceeds the relevant threshold, there are often underlying physiological and psychological causes for it. Perhaps an applicant who had medical evidence that could identify an underlying 'impairment' (for example, a psychological condition) that caused the morbid obesity would be more successful. 

The Federal Court will have to hear an appropriate case in order to resolve the question of whether morbid obesity is or is not an impairment. That could take some time to happen, because it will be very hard for a person with morbid obesity to prove that their condition is permanent, i.e. that there are no medical or other treatments that would be likely to remedy it.  Given the numerous possible avenues of treatment available for morbid obesity, people with this condition will likely continue to have difficulty gaining access to the NDIS because they fail to meet the permanence condition. That will make appeals to the Federal Court in morbid obesity cases less likely to happen.