Clarke and National Disability Insurance Agency

This case concerned an application for access to the National Disability Insurance Scheme (NDIS) by an applicant with osteoarthritis and anxiety. The applicant sought access on the basis of these impairments, arguing they resulted in a substantially reduced functional capacity across several domains. The National Disability Insurance Agency (NDIA) contended that the applicant's impairments were not permanent, and therefore she did not meet the eligibility criteria. 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) or the early intervention requirements under section 25 of the Act.

The Tribunal considered whether the applicant had a disability attributable to one or more physical or psychosocial impairments, and if so, whether these impairments were permanent and resulted in a substantially reduced functional capacity in one or more of the six specified domains: communication, social interaction, learning, mobility, self-care, and self-management. Specifically, the Tribunal examined the permanency of the applicant's osteoarthritis and anxiety, and whether her physical impairments led to a substantially reduced functional capacity in any of the six domains. The Tribunal also considered the applicant's eligibility for early intervention supports, assessing whether such supports were likely to benefit her by reducing future needs or improving function, and whether these supports were more appropriately funded through other service delivery systems.

The Tribunal found that while the applicant had a permanent physical impairment due to osteoarthritis, it did not result in a substantially reduced functional capacity across the six domains as required by section 24(1)(c) of the Act. The Tribunal was not satisfied that her physical impairments prevented her from participating effectively in communication, social interaction, learning, mobility, self-care, or self-management without specific NDIS-funded supports. Furthermore, the Tribunal was not satisfied that the applicant's psychosocial impairment, including anxiety and potential post-traumatic stress disorder, was permanent, as there was insufficient evidence to demonstrate it did not require further treatment or review. Consequently, the applicant did not meet the disability requirements under section 24. The Tribunal also considered the early intervention requirements under section 25, finding that while the applicant had a permanent physical impairment, the evidence did not support the conclusion that early intervention supports would significantly benefit her by reducing future needs or improving function, and that such supports were more appropriately accessed through other systems like My Aged Care.

The Tribunal affirmed the NDIA's decision, concluding that the applicant did not meet the disability requirements under section 24 or the early intervention requirements under section 25 of the Act to access the NDIS.