Ditchfield and National Disability Insurance Agency

This matter concerned an appeal by Mr Ditchfield against a decision by the National Disability Insurance Agency (NDIA) to refuse him access to the National Disability Insurance Scheme. Mr Ditchfield suffers from a permanent leg length discrepancy resulting from a motorbike accident in 1973, which necessitates the daily use of a specially fitted orthotic in his footwear to assist with mobility. The NDIA's decision was reviewed by the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether Mr Ditchfield's leg length discrepancy, even with the use of his orthotic footwear, resulted in a substantially reduced functional capacity to undertake one or more of the relevant activities as defined by the National Disability Insurance Scheme Act 2013 (Cth) and its associated Operational Guidelines. Specifically, the Tribunal was required to assess his capacity in relation to mobility, considering the evidence of his daily functioning and the necessity of his orthotic devices.

The Tribunal reasoned that access to the NDIS is based on a functional and practical assessment of a person's capabilities, rather than the severity of their impairment. It considered the evidence that Mr Ditchfield relied on his orthotic footwear for all activities outside of short distances within his home, and that without them, he experienced significant instability and a high risk of falling. The Tribunal noted that the orthotic footwear, which involved custom-built raised soles and moulded inserts, was essential for him to engage in everyday activities and maintain his mobility. The Tribunal was satisfied that the use of these "commonly used items" (his orthotic footwear) was necessary to mitigate a substantially reduced functional capacity in mobility, and that without them, his capacity would be severely compromised.

Consequently, the Tribunal set aside the NDIA's decision and substituted it with a decision that Mr Ditchfield meets the disability access criteria under section 21 of the National Disability Insurance Scheme Act 2013 (Cth).