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

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Key points

  • The 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.

Facts

The 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 Tribunal. The NDIA argued that the Tribunal did not have jurisdiction to decide whether her depression meant that she met the access criteria for the NDIS. It is not clear from the decision why this was, but presumably it was because she did not specifically mention her depression in the Access Request Supporting Evidence Form. The NDIA argued that applicants for access were not allowed to make "an open ended claim for access" and require the NDIA to investigate for itself whether the applicant had any disabilities.

The Tribunal's decision [opens in new window] emphasises that the NDIS Act is beneficial legislation. What this means it that the Act should be read in a way that is 'fair, large and liberal' rather than 'narrow and technical' (to quote the High Court's decision in IW v City of Perth [1997] HCA 30) [opens in new window]. The Tribunal referred to a "broad, generous and practical interpretation" (see [30]), which likely means the same thing.

The Tribunal referred to s 26(1) of the NDIS Act [opens in new window] and noted that the NDIA has the power to request information from applicants for support. Also, s 15(2) of the Act [opens in new window] requires the NDIA to "use its best endeavours to provide timely and accurate information to people with disability and other people in order to assist them in making informed decisions about matters relevant to the National Disability Insurance Scheme". This led the Tribunal to conclude that the fact that the Access Request Supporting Evidence Form did not specifically mention depression did not prevent the NDIA from considering it; it was clear from the attached medical report that the applicant had depression.

Additionally the Tribunal added this important point in the last paragraph of its decision: 
If the decision-maker had any doubt as to the conditions being relied upon by the Applicant, it was incumbent on the Chief Executive Officer to seek further information from the Applicant to assist her in making her claim for access to the Scheme.
It seems as if the Tribunal is suggesting that the NDIA may have a "duty to inquire". This is a phrase that is used in administrative law; what it means is that in making a decision a decision maker must make the inquiries that no reasonable administrative decision-maker would fail to make. This duty to inquire only arises in relatively limited circumstances. We will have to see further decisions from the Tribunal and the Federal Court about the extent to which the NDIA has such a duty.

 The practical takeaway for people seeking access to the NDIS is this: Try to be as clear and comprehensive as possible in the information that you provide the NDIA about the relevant disability. But if you need to seek review of the NDIA's decision in the Tribunal, it is worthwhile reminding the Tribunal of the beneficial approach it should take to the NDIS Act. Also, this case will also be useful if there is a dispute about whether sufficient information was provided to the NDIA about a disability. If the NDIA is worried that insufficient information was provided, it should advise the applicant and seek that further information from him or her.

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