BMMG and National Disability Insurance Agency

This matter concerned an application for review by BMMG (the applicant) of a decision by the National Disability Insurance Agency (the respondent) to refuse access to the National Disability Insurance Scheme (NDIS). The applicant did not appear at the hearing, and the respondent was represented by Mr. Crethary. The Tribunal, constituted by Senior Member K Buxton, was required to determine whether the applicant met the NDIS access criteria.

The central legal issues before the Tribunal were whether the applicant satisfied the disability requirement under section 24(1) of the NDIS Act, specifically concerning the permanence of their impairment, and whether the early intervention requirements under section 25(1) of the Act were met. The Tribunal considered the cumulative nature of these criteria, meaning all requirements within either section 24(1) or section 25(1) must be satisfied for an individual to become a participant in the NDIS.

The Tribunal's reasoning focused on the evidence before it, noting that the applicant had elected to proceed without relying on evidence not available to the original decision-maker or reviewer. The Tribunal referred to the Access Rules, which provide guidance on determining the permanence of an impairment. Rule 5.4 states an impairment is permanent only if there are no known, available, and appropriate evidence-based treatments likely to remedy it. The Tribunal also considered the principle that difficulty accessing treatment, including affordability, does not automatically render a treatment unavailable, although affordability is a relevant factual consideration. Ultimately, the Tribunal found that the applicant had not met the access criteria under either section 24 or section 25 of the NDIS Act.

Consequently, the Tribunal affirmed the respondent's decision under review pursuant to paragraph 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).