Cooper and National Disability Insurance Agency

This matter concerned an application by the Applicant for access to the National Disability Insurance Scheme (NDIS). The Applicant sought to challenge a decision by the National Disability Insurance Agency (NDIA) to refuse her access. The core of the dispute revolved around whether the Applicant met the disability requirements under section 24 or the early intervention requirements under section 25 of the *National Disability Insurance Scheme Act 2013* (Cth). The Tribunal was required to determine if the Applicant's various health conditions, including obesity, sleep apnoea, vertigo, dizziness, ovarian cysts, endometriosis, a past diagnosis of Burkitt’s Lymphoma, and lumbar back pain, constituted impairments that resulted in a substantially reduced functional capacity.

The legal issues before the Tribunal were whether the Applicant's impairments were permanent, and critically, whether these impairments resulted in a substantially reduced functional capacity to undertake one or more of the activities listed in section 24(1)(c) of the Act. The Tribunal also considered whether the Applicant met the early intervention requirements under section 25, specifically whether early intervention supports were likely to benefit her by reducing her future need for supports or providing benefit in specified aspects. The Tribunal's reasoning focused on the nature of impairments as defined by the legislation, which involves the loss of or damage to a physical, sensory, or mental function, rather than merely a reduction in capacity.

The Tribunal accepted that the Applicant had a disability attributable to impairments arising from her psychiatric conditions, namely bipolar disorder, PTSD, depression, and anxiety. However, the Tribunal found insufficient evidence to support impairments arising from sleep apnoea, ovarian cysts, endometriosis, or the past Burkitt’s Lymphoma. While obesity was accepted as a disability, it was not found to be an impairment or caused by an impairment, as the evidence did not demonstrate a loss or damage to a physical, sensory, or mental function. Furthermore, the Tribunal was not satisfied that the Applicant's psychiatric impairments resulted in a substantially reduced functional capacity to undertake the activities specified in section 24(1)(c), nor that she met the early intervention requirements under section 25.

Consequently, the Tribunal affirmed the NDIA's decision to refuse the Applicant access to the Scheme. The Tribunal concluded that generalised prognostications about improved functional capacity were not a substitute for specialist evidence addressing the specific criteria for early intervention.