Clarke and National Disability Insurance Agency - [2023] AATA 3494

Clarke and National Disability Insurance Agency [2023] AATA 3494 (27 October 2023)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2021/8808
Re:Jamie Clarke
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Member I Thompson
Date:27 October 2023
Place:Adelaide

The decision is set aside and, in substation for such decision, there is a decision that Mr Clarke meets the access criteria under s24 of the NDIS Act.
................................[Sngd]..............................
Member I Thompson
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – access to the scheme – disability requirements – impairments from polymorphic light eruption and autism spectrum disorder – permanency- whether there is substantial reduction in functional capacity - available treatments - decision set aside
Legislation
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Becoming a Participant) Rules 2016
Cases
Clarke v Secretary, Department of Social Services [2022] AATA 2521
HSPC v National Disability Insurance Agency [2021] AATA 727
Madelaine v National Disability Insurance Agency [2020] AATA 4025
Mulligan v National Disability IInsurance Agency (2(2015) FCA 544
National Disability Insurance Agency v Davis [2022] FCA 1002
National Disability Insurance Agency v Foster [2023] FCAFC 11
Secondary Materials
Agency’s Operational Guideline – Access to the NDIS
REASONS FOR DECISION
Member I Thompson
27 October 2023
1.The applicant, Jamie Clarke, made an access request to the National Disability Insurance Agency (the Agency) to become a participant in the National Disability Insurance Scheme (NDIS).
2.In Mr Clarke’s request for access to the NDIS his impairments were recorded as polymorphic light eruption (PMLE), autism spectrum disorder (ASD) and Meckel’s diverticulum.[1]
[1] Exhibit 1. T5, 32.
3.After the Agency declined the request [2] , Mr Clarke sought an internal review of the decision which was subsequently affirmed by a delegate of the Agency on 17 November 2021.[3] It was noted that Mr Clarke met the age and residency criteria set out in sections 22 and 23 of the National Disability Insurance Scheme Act 2013 (NDIS Act), however it was decided that he did not meet the disability or early intervention requirements in sections 24 and 25 of the NDIS Act.
[2] Exhibit 1, T13, 47.
[3] Exhibit1, T1A, 9.
4.Mr Clarke applied to the Tribunal for review of that decision. In his written application Mr Clarke claimed that the Agency’s decision about access was wrong and it was made “without proper examination of medical records by the NDIS losing highly relevant records and including a decade old job capacity assessment in their place.”.[4]
[4] Exhibit 1, T1, 4.
5.Mr Clarke is 30 years old. He resides in suburban Adelaide and provides support to his young daughter.
ISSUE
6.The issue for the Tribunal to determine is whether Mr Clarke meets the requirements for access to the NDIS. In order to qualify as a participant in the NDIS, an applicant must meet the criteria outlined in s 21 of the NDIS Act.
7.Specifically the Tribunal must determine whether Mr Clarke meets the disability requirements under s 24 of the…

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 Clarke and National Disability Insurance Agency

Details

AGLC: Clarke and National Disability Insurance Agency [2023] AATA 3494
Case: [2023] AATA 3494
Decision Date: 27 October 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the dispute between Mr. Clarke and the National Disability Insurance Agency concerning Mr. Clarke's eligibility for the National Disability Insurance Scheme. Mr. Clarke sought access to the scheme based on impairments arising from polymorphic light eruption and autism spectrum disorder.

The Tribunal was required to determine whether Mr. Clarke's impairments met the disability requirements for access to the scheme, specifically whether these impairments resulted in a substantial reduction in his functional capacity and whether they were permanent or likely to be permanent. The Tribunal also had to consider the availability and effectiveness of treatments for his conditions.

In its reasoning, the Tribunal applied the principles outlined in the *National Disability Insurance Scheme Act 2013* (Cth) and relevant case law concerning the assessment of disability and functional capacity. The Tribunal found that while Mr. Clarke had impairments, the evidence did not sufficiently demonstrate a substantial reduction in his functional capacity that was permanent or likely to be permanent, particularly in light of available treatments. Consequently, the Tribunal set aside the original decision.

Orders