Duncan and National Disability Insurance Agency

This matter concerned an application for review by Ms Duncan of a decision made by the National Disability Insurance Agency (NDIA) to refuse her access to the National Disability Insurance Scheme (NDIS). Ms Duncan sought access to the NDIS on the basis of several diagnosed impairments, including major depressive disorder, fibromyalgia, chronic pain syndrome, hypertension, and chronic migraine. The NDIA had determined that Ms Duncan did not meet the criteria for access under the NDIS Act 2013 (Cth).

The Administrative Appeals Tribunal (AAT) was required to determine whether Ms Duncan met the eligibility requirements for the NDIS. Specifically, the Tribunal had to consider whether her impairments were permanent, whether her functional capacity was significantly impaired, and whether the supports she required were most appropriately funded through the NDIS, as opposed to other available services. The NDIA accepted that Ms Duncan met the age, residence, and certain disability requirements, but contested that her impairments met the permanency and functional capacity criteria, or the early intervention criteria.

The Tribunal found that Ms Duncan's impairments, which had compounded since 2005, were best considered as a single, multi-factorial impairment. While acknowledging the chronicity of her conditions, the Tribunal was not satisfied that her impairments met the permanency criteria as defined by the NDIS Act. This was because the Tribunal accepted evidence that available and evidence-based treatments, including a multidisciplinary approach involving a pain management clinic, exercise physiologist, dietician, and psychologist, were recommended and accessible to Ms Duncan through the public health system. The Tribunal concluded that these treatments were likely to remedy, or at least significantly improve, her impairments, and therefore, the requirement for permanency, meaning the enduring nature of impairments requiring ongoing NDIS funding, was not met.

Consequently, the Tribunal affirmed the NDIA's decision to refuse Ms Duncan access to the NDIS. The Tribunal was not satisfied that Ms Duncan's impairments were permanent in nature, nor that the supports she required were most appropriately funded through the NDIS, given the availability of other treatment options.