Bond and National Disability Insurance Agency (NDIS) - [2025] ARTA 1803

Bond and National Disability Insurance Agency (NDIS) [2025] ARTA 1803 (2 April 2025)
Applicant/s:  Ms Samantha Bond
Respondent:  National Disability Insurance Agency
Tribunal Number:                2022/4108

Tribunal:General Member D Heron
Place:Brisbane
Date:2 April 2025

Decision:The Tribunal sets aside the reviewable decision and determines that Ms Bond meets the early intervention requirements under s 25 of the NDIS Act to become a participant of the National Disability Insurance Scheme.

...............[SGD]..................
General Member D Heron
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – access – substantially reduced functional capacity criteria not met – whether applicant meets disability requirements – NDIS Act s24(1)(c) – whether applicant meets early intervention requirements – decision under review set aside.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Becoming a Participant) Rules 2016
CASES
James v NDIA [2019] AATA 4248
Madelaine and National Disability Insurance Agency [2020] AATA 4025
Mulligan v NDIA [2015] FCA 544
National Disability Insurance Agency v Davis [2022] FCA 1002
National Disability Insurance Agency v Foster [2023] FCAFC 11
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] 24 ALR 577
Rooney and National Disability Insurance Agency [2021] AATA 3523
Van Hout and National Disability Insurance Agency [2023] AATA 2771
SECONDARY MATERIALS
National Disability Insurance Scheme - Operational Guidelines – Becoming a Participant – Access, align="center">Statement of Reasons
BACKGROUND

Ms Samantha Bond (the Applicant) is a 41 year old female who seeks access to the National Disability Insurance Scheme (the NDIS).
Ms Bond has a genetic condition CACNA1A related Familial Hemiplegic Migraine, Type 1 (FHM1) is not currently employed and is in receipt of the disability support pension (DSP).
Ms Bond lives in a NSW suburb with her husband and three children. Her two oldest children are NDIS participants and share the same genetic condition FHM1. Her youngest child was born recently in 2024. Ms Bond is supported informally by her husband who works fulltime.
FHM1 is a form of severe episodic migraine headaches that for Ms Bond also cause neurological symptoms such as right side hemiparesis, right arm numbness, tongue numbness, nausea, vomiting and lower limb numbness. These are unpredictable attacks that once symptoms commence will render Ms Bond unable to stand and mobilise.
On 3 December 2021, Ms Bond made an NDIS access request to become a participant in the NDIS. The Access Request Form stated FHM1 as her primary disability with mild intellectual disability and slipped disc as secondary disabilities. Ms Bond has since clarified that she is only seeking NDIS access on the basis of impairments attributable to her FHM1.
On 9 December 2021, the National Disability Insurance Agency (the Respondent) determined Ms Bond did not meet the access criteria in the National Disability Insurance Scheme Act 2013 (Cth) (the Act).[1]
[1] JTB, T20, Access Not Met letter, dated 9 December 2021, page 159.
An internal reviewer confirmed…

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 Bond and National Disability Insurance Agency (NDIS)

Details

AGLC: Bond and National Disability Insurance Agency (NDIS) [2025] ARTA 1803
Case: [2025] ARTA 1803
Decision Date: 2 April 2025

CaseChat Overview and Summary

The applicant, Ms Bond, sought a review of a decision by the National Disability Insurance Agency (NDIS) to deny her access to early intervention services. The case was heard by the NDIS Tribunal, where Ms Bond contested the NDIS's determination that she did not meet the criteria for early intervention under section 25 of the NDIS Act. The primary issue before the Tribunal was whether Ms Bond’s condition, Familial Hemiplegic Migraine Type 1 (FHM1), met the substantially reduced functional capacity criteria required for early intervention. The Tribunal also had to determine if Ms Bond’s impairments met the disability requirements under section 24(1)(c) of the NDIS Act.

The Tribunal examined Ms Bond’s evidence and that of her Neurological Physiotherapist, Mr Buck. Ms Bond provided a detailed account of her daily struggles, including her inability to function during severe migraine attacks, her reliance on her husband for support, and the impact of her condition on her children and household. Mr Buck testified that Ms Bond’s condition resulted in both a permanent neurological impairment and physical deconditioning, which could be improved with an appropriate intervention program. He recommended an intensive early intervention therapy program of 3-9 months to address Ms Bond’s functional capacity. The Tribunal considered these testimonies and found that Ms Bond’s condition met the criteria for a disability under the NDIS Act, and she qualified for early intervention services due to her substantially reduced functional capacity.

The Tribunal found that the decision to deny Ms Bond early intervention services was incorrect. It set aside the NDIS's reviewable decision and determined that Ms Bond met the criteria for early intervention. The Tribunal recognised the significant impact of Ms Bond’s condition on her daily life and her need for timely intervention to improve her functional capacity and support her family. The Tribunal's decision acknowledged the importance of early intervention for individuals with complex neurological conditions to prevent further deconditioning and to enhance their quality of life.

The Tribunal ordered that the decision denying Ms Bond early intervention services be set aside and that Ms Bond be approved as a participant of the NDIS, eligible for the proposed early intervention therapy program.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Ms Bond gave oral evidence on the first morning of the hearing. Her evidence can be summarised as:·She is a Mum of three children, two oldest children are school age.·Looks after the children, getting them to and from school, grocery shopping, cooking and household duties.·Her husband is the income earner, undertakes both day and night shifts during the week.·She experiences migraines every week and ‘pushes through’ these where possible.·Does take migraine medications, and has strong pain relief she can take as needed, preferring not to as she needs to be responsive to look after the children.·Once a month the migraines take the severe form of the hemiparesis with nausea and vomiting, during these she is rendered unable to function.·When the severe migraines occur, her husband must take time off work to undertake looking after her and the children.·Her speech is affected causing a slurred, slowing speech effect that worsens with the severe attacks.·Her short-term memory is affected, with a fogginess in recalling some words, events and circumstances.·She described her balance and walking as affected, that she trips at least once a week and experiences falls.·Explains she uses her daughters pram as a way of steadying her mobility when needing to be out in the community.·Has been recommended to use a four wheel walker and a single point stick. ·The most severe migraine attacks will put her in hospital approximately 1-3 times a year.·Described an attack in February 2024 where she collapsed at home and the teachers at the children’s school ended up finding her, as she did not arrive to school pickup.·This attack put her in ICU for a week, with the entire hospital stay lasting over 3 weeks.·No other family members or informal supports live close-by or can provide support.Evidence of Daniel Buck, Neurological Physiotherapist Mr Buck is a Neurological Physiotherapist engaged by the Applicant. He gave oral evidence on the afternoon of the first day of the hearing, as summarised below:·Practice area of expertise is in genetic and non-genetic neurological conditions.·The two components of the FHM1 are the fluctuating nature of the hemiparesis migraines and the underlying baseline dysfunction of the cerebral ataxia.·Because of the cerebral ataxia Ms Bond is overall physically deconditioned.·Her neurological impairment caused by her FHM1 is permanent, but her physical deconditioning can be worked on and can be improved.·Recommends strength and reflexes training, adaptive strategies, balance exercises and walking endurance as these could all assist in reversing some of the secondary deconditioning.·Recommends an adaptive exercise program both in-home and in the therapy practice, repeating standardised outcomes measures so that a baseline to compare against can be established.·States a program that is appropriately scaled, intense and task specific involving exercises daily or every second day, will improve Ms Bond’s stamina, functional capacity to walk, stand and transfer both at home and in the community. ·Recommends a specific program tailored to improving Ms Bond’s overall functional capacity, also positively impact on her family, allowing that support to become more sustainable over time.·Early intervention therapy program of 3-9 months in intensity is proposed, scaled for function.

Decision

Reasons for decision

I find also that Ms Bond has a disability attributable to permanent neurological and physical impairments from her FHM1. She meets the age requirements in s 22 of the NDIS Act and the residence requirements in s 23 of the NDIS Act.Decision The Tribunal sets aside the reviewable decision and determines that Ms Bond meets the early intervention requirements under s 25 of the NDIS Act to become a participant of the National Disability Insurance Scheme.Date of hearing: 27 and 28 March 2025Counsel for the Applicant: Ms A Green, of CounselSolicitors for the Applicant: Ms G Kaufman, Legal Aid NSWCounsel for the Respondent: Ms L Beange, of CounselSolicitor for the Respondent: Maddocks Lawyers

Ratio Decidendi

Legal Principle Established

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