Permanence of condition and kidney transplants - GXYZ and NDIA [2020] AATA 3907

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Summary

  • In GXYZ and NDIA [2020] AATA 3907 [opens in new window] the AAT found that a kidney transplant did not constitute a treatment that was likely to remedy nephropathy, in circumstances where the nephropathy was likely to recur after transplant. 
  • The balance of the case considers the access requirement of a substantial reduced functional capacity to undertake one of the activities listed in s 24 of the NDIS Act [opens in new window], which the Tribunal found GXYZ did not meet.

Facts

GXYZ is a 46 year-old who suffers from a number of conditions, including type-2 diabetes, depression and anxiety, and IgA nephropathy, which is a condition that affects the kidneys. He applied for the NDIS, but the NDIA determined that he did not meet the access criteria in s 21 of the NDIS Act [opens in new window]. He sought review of the NDIA's decision in the AAT.

At the tribunal hearing, GXYZ put forward evidence from a number of treating doctors, including Dr E, who stated that GXYZ was on the waitlist for a kidney transplant, and that he was likely to wait for between 2 and 4 years for the transplant. Dr E gave evidence that IgA nephropathy almost always recurs in the transplant kidney. 

GXYZ also put forward medical evidence concerning his diabetes and mental health conditions.

In relation to the IgA nephropathy, the NDIA argued that once the transplant took place, GXYZ would not suffer the effects of the impairment caused by the nephropathy, and therefore the condition was not permanent for the purposes of s 24(1)(b) of the NDIS Act [opens in new window]. 

Decision

The Tribunal member observed that in order to access the NDIS, a person has to met each of the access criteria in s 21 of the NDIS Act. The Tribunal accepted that each of GXYZ's conditions were a 'disability' for the purposes of s 24(1)(a) of the NDIS Act [opens in new window], because they were impairments to his mental and physical function.

The Tribunal found that the evidence indicated that the nephropathy would likely return after the transplant took place. Although there was a significant degree of uncertainty about the extent to which GXYZ would benefit from a kidney transplant, the Tribunal found that the condition was permanent, notwithstanding that the impairment may vary in intensity and the severity of its impact on the functional capacity of GXYZ may fluctuate: see [92] of the decision.

The Tribunal also found that GXYZ's major depressive disorder and generalised anxiety disorder were also permanent conditions.

The Tribunal next considered whether the impairments resulted in substantially reduced functional capacity to undertake communication, social interaction, learning, mobility, self-care or self management. The Tribunal observed that although he claimed to be unable to participate fully in daily activities that normal people do, his evidence about his capacity "lacked consistency": see [104] of the decision.

In particular, the Tribunal found that GXYZ worked part time, volunteered for 1-2 hours per week, attended wellness centres prior to the COVID-19 outbreak, and completed a university degree in humanities (on a slightly reduced course load), despite his impairments. He could also engage in self-care activities, such as cooking (although they left him fatigued). The Tribunal found that his ability to do these things was inconsistent with a significant functional incapacity to undertake activities in any of the domains in s 24(1)(c) of the NDIS Act [opens in new window]. Therefore, GXYZ did not meet the criterion in s 24(1)(c) of the NDIS Act, and thus did not meet the access criteria in s 21 of the Act. The Tribunal affirmed the NDIA's decision.

Analysis

It is interesting to see that the Tribunal took a nuanced approach to the question of whether the potential for a kidney transplant meant that GXYZ's nephropathy was a permanent condition. The Tribunal was persuaded by the fact that the underlying condition would remain after a kidney transplant, and any improvement that he would receive after the transplant could be construed as a fluctuation in the severity in the impact of the impairment, which did not affect its permanence. Although each case depends on its facts, this suggests that the availability of a transplant might not necessarily result in a remedy for the impairment for the purposes of the NDIA Act. 

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