NDIS - Cases and Commentary

Key points In Evans 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]. Background Ms 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 subst...

Key Points The 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 uns...