Colefax and National Disability Insurance Agency

This matter concerned an application for access to the National Disability Insurance Scheme (NDIS) by an applicant with Functional Neurological Disorder (FND) and Somatic Symptom Disorder (SSD), presenting with chronic pain. The applicant sought to overturn a decision by the National Disability Insurance Agency (NDIA) that she did not meet the access criteria. The Administrative Appeals Tribunal (AAT) heard evidence from the applicant and an occupational therapist, and considered submissions from both parties, with the applicant represented by Legal Aid and the NDIA by counsel.

The primary legal issues before the Tribunal were whether the applicant met the disability requirements for NDIS access under section 24 of the *National Disability Insurance Act 2013* (Cth). This involved determining if the applicant had a disability attributable to one or more specified impairments, if those impairments were permanent, and crucially, if they resulted in a substantially reduced functional capacity in key areas such as communication, social interaction, learning, mobility, self-care, or self-management. The Tribunal also considered whether the applicant's impairments affected her capacity for social and economic participation and if she was likely to require lifetime support. If the disability requirements were not met, the Tribunal was to consider the early intervention requirements.

The Tribunal applied the NDIS Operational Guidelines, which represent government policy and are to be followed unless there is good reason not to. The applicant bore the onus of adducing sufficient evidence to satisfy the Tribunal that the access criteria were met. The NDIA accepted that the applicant had a physical disability from FND and a psychosocial disability from SSD, and that these impairments were permanent. The core dispute centred on whether the applicant's impairments resulted in a substantially reduced functional capacity. The Tribunal was satisfied that the applicant met the access criteria under section 21 of the Act.

The Tribunal set aside the NDIA's decision and substituted its own decision that the applicant meets the access criteria under section 21 of the *National Disability Insurance Act 2013* (Cth).