Bowden and National Disability Insurance Agency

This matter concerned an application for review of a decision by the National Disability Insurance Agency (NDIA) to refuse access to the National Disability Insurance Scheme (NDIS). The applicant sought access based on impairments of fatigue, depression, and anxiety. The NDIA had not accepted that these impairments were permanent, a key criterion for NDIS access.

The Administrative Appeals Tribunal (AAT) was required to determine whether the applicant met the disability requirements under section 24 of the National Disability Insurance Scheme Act 2013 (Cth), specifically whether she had a disability attributable to one or more relevant impairments, and crucially, whether those impairments were permanent or likely to be permanent. The Tribunal also needed to consider, if the disability requirements were not met, whether the applicant satisfied the early intervention requirements under section 25 of the Act.

The Tribunal applied the NDIS Operational Guidelines and relevant case law, including *Davis*, which clarified that "permanent" refers to the impairment itself, not necessarily the underlying medical condition. The Tribunal found that while the applicant had longstanding issues with fatigue, depression, and anxiety, the evidence did not satisfy the permanency requirement. Specifically, regarding fatigue, the Tribunal noted that investigations into potential causes such as sleep apnoea and sleep hygiene had not been fully undertaken or treated, meaning the impairment was not yet demonstrably permanent. Similarly, for depression and anxiety, the Tribunal found that further psychiatric review and optimisation of medication were indicated, and until these steps were taken, the permanency of these impairments could not be established. Consequently, the Tribunal concluded that the applicant did not meet the disability requirements under section 24 of the Act.

As the applicant failed to meet the disability requirements, the Tribunal then considered the early intervention requirements under section 25 of the Act. The Tribunal found that the applicant did not meet these requirements either, as they also hinged on the permanency of impairments. Therefore, the Tribunal affirmed the NDIA's decision to refuse access to the NDIS.