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...

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 d...

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...

Key Points It is sometimes hard to see the difference between an educational support which is most appropriately provided by an education system and a disability support that is most appropriately provided by the NDIS. The difference depends on the needs of the particular applicant for support, what they hope to achieve, and what their level of "educational attainment" is. Applicants seeking funding for supports like literacy or numeracy programs should emphasise the importance those programs have for general life skills, independence and community access (as well as for the classroom). That may assist the NDIA to understand that a support is not just for "educational attainment" and it may make them more willing to fund it. Introduction The previous entry in this blog (available here - opens in new window) discussed the difficulties with defining what supports are the NDIS's responsibility, and what is 'most appropriately funded or provided throug...

Key points To be a reasonable and necessary support, a support must be most appropriately provided via the NDIS.  Whether a support is a health support that should be funded through the health system, or a disability support that should be funded through the NDIS, is a difficult distinction to make. It depends on the facts. The fact that a support is not available through the health system, or the support is limited, does not mean that it will be available through the NDIS. Participants seeking NDIS funding for supports that might look like health supports should emphasise how the support will enable the participant to take part in activities in the community. Introduction Section 34(f) of the NDIS Act [opens in new window] states that in order for a support to be a 'reasonable and necessary support' for the purposes of the NDIS, the NDIA must be satisfied that the support is most appropriately funded or provided through the NDIS, and is not more appropriately fun...