Bolt and National Disability Insurance Agency - [2023] AATA 4047

Bolt and National Disability Insurance Agency [2023] AATA 4047 (5 December 2023)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2022/9007
Re:Jodie Bolt
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION

Tribunal:The Honourable Pru Goward AO, Senior Member
Date:5 December 2023
Place:Sydney

The Tribunal affirms the decision under review made by the delegate dated 5 October 2022, pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth)

...........................[SGD]............................................

The Honourable Pru Goward AO, Senior Member

CATCHWORDS

NATIONAL DISABILITY INSURANCE SCHEME – access criteria – disability requirements – permanency – substantially reduced functional capacity - mobility - self-care - social interaction – early intervention requirements – decision under review affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme (NDIS) Act 2013

National Disability Insurance Scheme (Becoming a Participant) Rules 2016

SECONDARY MATERIALS

National Disability Insurance Agency, Our Guidelines – Becoming a participant – Applying to the NDIS, (Web Page) < FOR DECISION

The Honourable Pru Goward AO, Senior Member

5 December 2023

INTRODUCTION

The Applicant, Ms Jodie Bolt, is a 52-year-old woman who applied to become a participant in the National Disability Insurance Scheme (the Scheme) on the basis of her psoriatic arthritis, full thickness tear of right (shoulder) bicep, dissemination of lumbar vertebrae with disc bulge and nerve impingement, depression and anxiety and chronic pain.
On 7 February 2022, the Respondent made a decision to refuse the Applicant access to the Scheme.
On 16 September 2022, the Applicant requested an internal review of the reviewable decision and on 5 October 2022, a delegate of the CEO of the Respondent confirmed the original decision of 7 February to refuse the Applicant access. The internal review decision found that neither the s 24 disability, nor the early intervention requirements of s 25 were met.
On 27 October 2022, the Applicant sought review of the internal review decision pursuant to s 103 of the National Disability Insurance Scheme Act 2013 (the Act).

RELEVANT SECTIONS OF LEGISLATION

The relevant sections of the Act relied upon include; s 100 (6); s 103; s 21 (1) (c) (i) or (ii); s 25 and s 24, in particular s 24 (1) (b), (c) and (e). For completion, S 24 is reproduced here in full:

(1) A person meets the disability requirements if:

(a) the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable; and
(b) the impairment or impairments are, or are likely to be, permanent; and

(c) the impairment or impairments result in substantially reduced functional capacity to undertake one or more of the following activities:
(i) communication;
(ii) social interaction;
(iii) learning;
(iv) mobility;
(v) self‑care;
(vi) self‑management; and

(d) the impairment or impairments affect the person’s capacity for social or economic participation; and
(e) the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bolt and National Disability Insurance Agency

Details

AGLC: Bolt and National Disability Insurance Agency [2023] AATA 4047
Case: [2023] AATA 4047
Decision Date: 5 December 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the application of Mr. Bolt (the applicant) for review of a decision made by the National Disability Insurance Agency (the Agency) to refuse his access to the National Disability Insurance Scheme (NDIS). The dispute centred on whether Mr. Bolt met the eligibility criteria for the NDIS, specifically concerning the nature and permanency of his disability.

The Tribunal was required to determine whether Mr. Bolt's impairments met the disability requirements for access to the NDIS. This involved assessing whether his functional capacity was substantially reduced in key areas such as mobility, self-care, and social interaction, and whether these impairments were likely to be permanent. The Tribunal also considered whether Mr. Bolt met the early intervention requirements for access.

In reaching its decision, the Tribunal carefully examined the evidence presented regarding Mr. Bolt's medical conditions and their impact on his daily life. The Senior Member applied the principles established under the *National Disability Insurance Scheme Act 2013* (Cth) and relevant NDIS operational guidelines. The assessment focused on the degree of functional limitation and the prognosis for improvement. The Tribunal found that while Mr. Bolt experienced some functional limitations, the evidence did not establish that these limitations were permanent or that his functional capacity was substantially reduced to the extent required for NDIS access.

The Tribunal affirmed the decision of the National Disability Insurance Agency to refuse access to the NDIS.

Orders