NDIS - Cases and Commentary

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 w...

Key points In NDIA v WRMF [2020] FCAFC 79 [opens in new window] the Full Court of the Federal Court of Australia has rejected the NDIA's blanket position that sexual services cannot be funded under the NDIS. This allows individuals who because of their disability are unable to achieve sexual release to seek funding for sexual services through the NDIS.  Those sexual services could be provided by a person described as a sex therapist or a sex worker. However, it is more likely that funding for those supports will be approved by the NDIS or Tribunal if they are provided by a person that has experience or formal or informal training in providing sexual services to people with disability. It is important to remember that each case turns on its facts, and the facts of this case are particularly unusual. Facts The facts, as well as a description of the proceedings before the Tribunal, can be found here [opens in new window]. Appeal In a unanimous decision, the Full Co...

Key points In XXWC and NDIA [2020] AATA 923 [opens in new window] the Tribunal considered two different types of early intensive behavioural intervention ( EIBI ) for autism spectrum disorder ( ASD ). These are Applied Behaviour Analysis ( ABA ), which is a field of behaviour intervention that uses the science of learning and behaviour, and the Early Start Denver Model ( ESDM ), which is a multidisciplinary form of EIBI that adopts some principles from ABA, but which is different to it. The Tribunal found that both ABA and ESDM are supported in the literature and may be a reasonable and necessary support for a child with ASD, depending on the child's circumstances. In the circumstances of XXWC, it found that ESDM was the reasonable and necessary support, because XXWC had benefited from ESDM over the previous year. Facts XXWC is a three year old boy who was diagnosed with ASD when he was 18 months old. His first NDIS plan provided for $39,196.62 for the provision of early c...

Key Points In Complete Nursing and Home Care Pty Ltd and NDIA  [2020] AATA 360 [opens in new window] the Tribunal determined that it does not have jurisdiction to review the NDIA's decision to refuse to pay invoices from an NDIS service provider that exceeded the amount of funding in a participant's plan.  The decision shows the problem inherent to the NDIS of service providers either having to cease services abruptly when the funding runs out, or otherwise absorb the loss. Neither of these situations is ideal. Facts CNHC is a registered NDIS provider who provided services to children referred to as XY and BC. CNHC apparently received assurances from XY's father that it would be paid, and between August and October 2017 it incurred $4,363.44 of services that it was not paid for. In relation to BC, CNHC was asked by BC's mother to continue providing services after the funding in BC's plan ran out. CNHC's experience was that it would be reimbur...

Key points In NNXF and NDIA  [2019] AATA 5552 [opens in new window] the Tribunal decided in a 2-1 split that if an internal review of a plan is not completed by the NDIA "as soon as reasonably practicable", then an applicant can commence proceedings for review by the Tribunal without having to wait for the NDIA to finish its internal review. This is some good news for NDIS participants and their supporters frustrated by long wait times for internal reviews, but given the importance of this issue an appeal of this decision is reasonably likely. Participants who are currently waiting for internal reviews to be completed who feel that the review has taken longer than reasonably practicable should consider applying to the Tribunal to seek review of their plan.  However, the question of whether "as soon as reasonably practicable" has elapsed is highly fact-dependent. It may also depend on the NDIA and its resources. Background The applicant has Down syndro...

Key Points In McKenzie and NDIA [2019] AATA 3275  [opens in new window] the Tribunal determined that replacement of a home air conditioning system was a reasonable and necessary support for a person whose multiple sclerosis ( MS ) worsened in high temperatures or when the temperature changed. This is a useful decision because it emphasises that social and economic participation for the purposes of s 34 of the NDIS Act can still take place even in one's own home.  The decision also emphasises that whether something represents day-to-day spending that the NDIS will not cover, or a disability support that the NDIS will cover depends on the nature of the disability and its effects on the person. What is a discretionary item for a person without a disability may not be a discretionary item for a person with disability. Facts Mr McKenzie lives in far north Queensland. He has MS. The symptoms of his conditions worsen when his core body temperature rises and when h...

Key Points The decision of BGBZ and NDIA [2019] AATA 3505  [opens in new window] involves an application by a mother, who had divorced her husband, to become the sole person with parental responsibility for her child under the NDIA Act. If there are multiple people with parental responsibilities for a child who is a participant in the NDIA, the NDIA has the power to direct that one of those people has sole parental responsibility under the NDIS Act. This would give that person solely the ability to make decisions about e.g. the plan or services obtained by the child under the NDIS. The power to make such a direction is discretionary; the NDIA is not required to make such a direction. A decision to make, or not make, such a direction is reviewable by the Tribunal. In reviewing the decision the Tribunal is bound by the factors set out in the  National Disability Insurance Scheme (Children) Rules 2013  ( Children Rules ) [opens in new window]. Background The app...