Burchell and National Disability Insurance Agency

This matter concerned an appeal by Mr Burchell against a decision of the National Disability Insurance Agency (NDIA) regarding funding for thickened fluid and food supplements for his cerebral palsy and dysphagia. The Administrative Appeals Tribunal was required to determine whether these supports were reasonable and necessary under the National Disability Insurance Scheme (NDIS).

The core legal issues before the Tribunal were the interpretation of Rules 7.1 to 7.5 of the NDIS Rules, which delineate the boundaries between NDIS funding and other service systems, particularly health services. Specifically, the Tribunal had to consider whether the supports related to Mr Burchell's ongoing functional impairment and enabled him to undertake activities of daily living, and whether the NDIS was responsible for funding supports that are more appropriately provided by other health services, even if those services were not actually made available.

The Tribunal considered the Explanatory Memorandum and the Productivity Commission's 2011 report, "Disability Care and Support," as extrinsic material to aid in the construction of the NDIS Act and Rules. It noted that the NDIS was intended to complement, not replace, mainstream services, and that NDIS funds should not be used to fill gaps in generic services. The Tribunal reasoned that if a support is health-related, it will not be funded by the NDIS, regardless of whether it is funded or provided by a health authority. The Tribunal found that the applicant's submission that Rule 7.4 covered the case was not applicable as the supports were not delivered or supervised by clinically trained or qualified health practitioners.

The Tribunal set aside the NDIA's decision and remitted the matter for reconsideration.