NDIS - Cases and Commentary

Key points In WRMF and NDIA [opens in new window] the Tribunal has decided that a person with multiple sclerosis was entitled to receive NDIS funding for the services of a sex therapist to enable her to achieve sexual release. The person's condition means that she is unable to find a sexual partner and unable to otherwise achieve sexual release.  The Tribunal expressly avoided deciding the issue of whether it was reasonable and appropriate for the NDIS to fund the services of a sex worker (as distinct from a sex therapist) for a person with disability.  The person's particular circumstances were discussed in a confidential annexure to the judgment which is not available to the public. The Tribunal's public judgment also stressed that her circumstances were unique and unusual. These factors mean that this decision has little value as a precedent, but it still raises interesting issues that the NDIA will likely have to confront in the future. Facts The applicant is...

Note The Tribunal handed down decisions in FRCT and NDIA [opens in new window] and  WKZQ and NDIA [opens in new window]. These cases concern NDIS funding for Applied Behaviour Analysis ( ABA ) for Autism Spectrum Disorder ( ASD ). The two decisions relate to twin boys - the Tribunal decided to issue separate decisions to reflect the difference in the circumstances of each boy, but they are considered jointly in these blog posts.  Given the size and importance of these decisions, they are covered in two blog posts. The first blog post sets out the facts and the evidence considered by the Tribunal. The second blog post sets out the Tribunal's analysis and consideration of s 34 of the NDIA Act, as well as my analysis of the cases. Facts FRCT and WKZQ are twin boys with autism spectrum disorder ( ASD ). Each became a participant in the NDIS. Each boy's second plan provided for a budget of $23,756.20 for "early childhood intervention supports to work together withi...

Note The Tribunal handed down decisions in  FRCT and NDIA  [opens in new window] and  WKZQ and NDIA  [opens in new window]. These cases concern NDIS funding for Applied Behaviour Analysis ( ABA ) for Autism Spectrum Disorder ( ASD ). The two decisions relate to twin boys - the Tribunal decided to issue separate decisions to reflect the difference in the circumstances of each boy, but they are considered jointly in these blog posts.  Given the size and importance of these decisions, they are covered in two blog posts. The first blog post [opens in new window] sets out the facts and the evidence considered by the Tribunal. The second blog post sets out the Tribunal's analysis and consideration of s 34 of the NDIA Act, as well as my analysis of the cases. The Tribunal's analysis At [99] the Tribunal noted that there were two alternative models of support for FRCT and WKZQ. The applicants wanted funding for intensive ABA therapy and speech therapy, wh...

Key points  In Burchell and NDIA [2019] AATA 1256 [opens in new window] the Tribunal chose not to follow previous Tribunal decisions on the issue of whether a support which would be appropriately provided by the health system, but which is in fact not provided, was a reasonable support for the purposes of the NDIS. The Tribunal decided that it was not the case that the NDIS would never provide a health-related support which the health authorities did not fund. This case has important consequences for how the NDIS fits in with mainstream health services. Facts Colin Burchell is a 34 year old who has profound physical and mental disabilities, including dysphagia (difficulty swallowing). Previously his disability support was provided by the NSW Department of Ageing, Disability and Home Care. The NSW funding ceased in 2018 (presumably as part of the transition to the NDIS).  Colin's dysphagia means that it is very difficult for him to eat and drink. Colin requires...

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...