NDIS - Cases and Commentary

Key points In Steley and NDIA  [2021] AATA 2539 [opens in new window] the Tribunal has made clear that a person seeking an internal review of a decision by the NDIA only needs to request an internal review. The person does not need to identify a particular aspect of the decision that is wrong, or identify specific supports that were not included in the original plan, which the person considers should be.  However, providing detail, relevant information and submissions to the NDIA will allow it to better conduct an internal review, and make it more likely that the person will receive a better decision upon review. Facts Mr Steley has a prosthetic eye. The NDIA issued a statement of participant supports, and Mr Steley sought internal review of this. Mr Steley sought additional supports relating to his prosthetic eye and certain physiotherapy or exercise physiology sessions. The internal reviewer did not consider these additional supports. (There was a factual dispute between th...

Key points The Commonwealth Government is introducing independent assessments for applicants to the NDIS and participants in the NDIS. The independent assessments will assess a person's functional capacity. The proposed independent assessment scheme could be problematic for people with disability, because independent assessors will be expected to make decisions about functional capacity despite having a very limited period of time to assess the individual, and having little background about the individual.  Although the decisions of independent assessors will not be directly reviewable in the Tribunal, there is still scope for the Tribunal to prefer the evidence of a person's treating practitioner over the independent assessor's evidence, if that is the appropriate conclusion. Overall, there are better ways of addressing the problems identified by the discussion paper. Background The Commonwealth Government has announced that by mid-2021 it will introduce a requirement for ...

Summary In Madelaine and NDIA  [2020] AATA 4025 [opens in new window], the Tribunal considered whether a person had substantially reduced functional capacity in one of the activities set out in s 24(1)(c) of the NDIS Act. The Tribunal's provides a good overview of how it approaches this question. However, the decision makes some concerning statements about the mobility aspect of functional capacity. The decision emphasises how low the threshold is for a person to have functional capacity in this area, making it extremely difficult for NDIS applications to be made on the basis of substantially reduced functional capacity in this area. Facts Teena Madelaine has a range of conditions, including rheumatoid arthritis and chronic regional pain syndrome. She applied in 2017 to join the NDIS. In 2019 her application was rejected. Ms Madelaine sought review of this decision in the Tribunal. The question for the Tribunal was whether any of Ms Madelaine's impairments resulted in substant...

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...