Key Points In NDIA v Davis [2022] FCA 1002 [opens in new window], the Federal Court has interpreted the NDIS Rules in a way that requires the NDIA and the Tribunal to take into account, among other things, a participant’s financial circumstances in determining whether a treatment is ‘available’. This is part of the NDIS Rules that deal with ‘permanence’. Facts Ms Davis suffers from a number of conditions, including spondylarthrosis, degenerative impingement of both shoulders, bilateral knee osteoarthritis, ulcerative colitis, obstructive sleep apnoea and morbid obesity. She applied to become ..read more

Key points In TMVJ and NDIA [2022] AATA 2053 [opens in new window] the Tribunal decided that a person did not meet the access criteria for the NDIS. That person had declined to attend appointments for examination by specialists that the NDIA had arranged, and had failed to attend referrals to specialists that his own GP had recommended. The Tribunal's decision highlights the risks associated with that course of conduct, in particular the risks that the Tribunal concludes that there is insufficient evidence to demonstrate that a person meets the access criteria for the NDIS.  This c ..read more

 Getting help with a matter in the AAT I have received a number of inquiries from people who have either started proceedings in the Tribunal concerning a dispute with the NDIS, or who are about to start proceedings. This can be a stressful and challenging process, particularly if a person doesn't have legal advice or assistance. However, there are a number of possible avenues for legal assistance or advocacy. I set some of these out below: Legal Aid Legal aid is available for Tribunal disputes. Each state has its own Legal Aid system, and that means that there are different criteria that ..read more

Key points In Atkinson and NDIA [2021] AATA 3540 [opens in new window], the Tribunal refused the NDIA's application to have an applicant attend appointments with an OT and psychiatrist selected by the NDIA. The case includes a useful summary of how the Tribunal decides whether to exercise its discretion to make such an order. Facts Mr Atkinson brought proceedings in the Tribunal seeking a review of the NDIA's decision that he did not meet the access criteria for the NDIS.  In the course of these proceedings, the NDIA requested Mr Atkinson to attend appointments with a psychiatrist a ..read more

Key points In Hollis and NDIA [2021] AATA 2888 [opens in new window] the Tribunal analyses requirements in order to obtain NDIS funding for the registration and upkeep of a dog who the applicant claimed had been trained to by a psychiatric assistance dog.  The Tribunal's decision states that at a minimum, among other things, a psychiatric assistance dog will have to be trained to standards set by Assistance Dogs International. That requirement could have the effect of severely limiting access to funding for psychiatric assistance dogs in Australia, given the limited number of Austr ..read more

Key Points In Loadsman and NDIA [2021] AATA 1990 [opens in new window], the Tribunal refused to include funding for installation of a home elevator in a participant's plan, instead providing funding for a stairclimber. The case is a useful example of how the Tribunal (and the NDIA) approach the question of home modifications. It is apparent that if there is a suitable cheaper alternative that can be reused, then this will likely be funded instead of permanent home improvements. Facts Ms Loadsman is a participant in the NDIA who suffers from motor neurone disease (MND). She lives with ..read more

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 ..read more

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 substant ..read more

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, depr ..read more

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 h ..read more