Evans and National Disability Insurance Agency (NDIS) - [2025] ARTA 725

Evans and National Disability Insurance Agency (NDIS) [2025] ARTA 725 (11 June 2025)
Applicant/s:  Ms Karen Evans
Respondent:  National Disability Insurance Agency
Tribunal Number:                2024/1642

Tribunal:General Member D Heron
Place:Brisbane
Date:11 June 2025
Decision:The Tribunal affirms the decision under review pursuant to paragraph 105(a) of the Administrative Review Tribunal Act 2024 (Cth).

...............[SGD]..................
General Member D Heron
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – access – substantially reduced functional capacity criteria not met – whether applicant meets disability requirements – NDIS Act s24(1)(c) – decision under review affirmed.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Becoming a Participant) Rules 2016
CASES
Davis and National Disability Insurance Agency (2023) AATA 1437
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] 24 ALR 577
Rooney and National Disability Insurance Agency [2021] AATA 3523
SECONDARY MATERIALS
National Disability Insurance Scheme - Operational Guidelines – Becoming a Participant – Access < align="center">Statement of Reasons
BACKGROUND

Ms Evans (the Applicant) is a 50 year old woman seeking access to the National Disability Insurance Scheme (the NDIS) on the basis of impairments from her diagnoses of porphyria variegata, pelvic floor instability, depression and anxiety.[1]
[1] JTB, A1, 5.
Ms Evans works part-time and is in receipt of the disability support pension (DSP).
On 18 August 2023, Ms Evans lodged a request to become a participant in the NDIS. The Access Request Form stated porphyria as her primary disability.[2]
[2] JTB, T6, 77.
On 11 December 2023, the National Disability Insurance Agency (the Respondent) determined Ms Evans did not meet the access criteria in the National Disability Insurance Scheme Act 2013 (Cth) (the Act) as the Agency was not satisfied her impairments were permanent nor resulted in substantially reduced functional capacity.
An internal reviewer confirmed this decision on 13 March 2024. On 20 March 2024 Ms Evans applied to the Administrative Appeals Tribunal (AAT) for a review of this internal review decision.[3]
[3] JTB, T1, 20-29.
The hearing was set down for 5 and 6 June 2025. On 28 May 2025, Ms Evans emailed the Respondent requesting a hearing on the papers. The Respondent consented to the request.
The Tribunal was notified by the parties on 30 May 2025 regarding the request for hearing on the papers under ss106(1) and (2) of the Administrative Review Tribunal Act 2024 (Cth). I have since considered the materials and evidence in this matter, separate to the views of both parties. It is important that I consider whether the Applicant and Respondent have had adequate opportunity to consider and respond to the materials filed. I have turned my mind to this question, and I am satisfied that on the totality of evidence that the issues for determination can be adequately addressed and determined in the absence of parties appearing in a hearing.
In my determination of this…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Evans and National Disability Insurance Agency (NDIS)

Details

AGLC: Evans and National Disability Insurance Agency (NDIS) [2025] ARTA 725
Case: [2025] ARTA 725
Decision Date: 11 June 2025

CaseChat Overview and Summary

In the case of Evans and the National Disability Insurance Agency, the applicant, Ms Evans, appealed a decision to deny her access to the National Disability Insurance Scheme (NDIS) on the grounds that her impairments did not meet the required criteria. Ms Evans has been diagnosed with porphyria variegata, pelvic floor instability, depression, and anxiety. The dispute centred on whether her impairments were permanent and whether they resulted in substantially reduced functional capacity, which are prerequisites for eligibility under the NDIS Act.

The court had to determine two primary legal issues: first, whether Ms Evans’ impairments are, or are likely to be, permanent, and second, whether these impairments result in substantially reduced functional capacity. The definition of "permanent" under the Act includes impairments that vary in intensity but do not require further medical treatment or review to demonstrate permanency. The court considered evidence including Ms Evans' medical history, treatment plans, and the availability of treatments for her conditions.

Upon reviewing the evidence, the court found that Ms Evans’ impairments were not permanent. For her porphyria variegata, there was evidence suggesting further assessment was needed, and a new treatment option had been approved. For her pelvic floor instability, there was evidence of effective treatment with a stimulator implant. Regarding her depression and anxiety, the court found that while stable, regular assessment and review were necessary, indicating ongoing treatment availability. Consequently, the court concluded that Ms Evans did not meet the substantially reduced functional capacity criteria.

The decision of the NDIS to deny access was affirmed by the court. The court held that since Ms Evans’ impairments were not permanent and did not result in substantially reduced functional capacity, she did not qualify for NDIS support.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The issues for determination before me are:·Whether Ms Evans’ impairments are, or are likely to be, permanent[4]; and·Whether Ms Evans’ impairments result in substantially reduced functional capacity.[5] EVIDENCE[4] Section 24(1)(b) of the NDIS Act.[5] Section 24(1)(c) of the NDIS Act. Evidence about Ms Evans Ms Evans has impairments arising from the following diagnoses:a)porphyria variegatab)pelvic floor instabilityc)depression and anxiety Ms Evans currently lives with a housemate in a rented home. She works part-time 2 days a week, in an indoor role, usually during the morning hours. Her parents drop over meals when she is having a flare up and is too unwell to undertake her daily living activities. Medical consultation for her symptomology with her general practitioner began in 2002. However, her clinical diagnosis of porphyria was not officially established until 2009 after undertaking multiple biopsies and reviews. Ms Evans has experienced anxiety, depression and panic attacks since her initial consults. She has been treated pharmalogically since 2005 for these conditions and her general practitioner lists her conditions as stable. She has attended the Prince Alfred Hospital porphyria clinic and undertakes a highly compliant porphyria lifestyle involving dietary adjustments, sun protection, sleep regimes and avoidance of known triggers where possible. Ms Evans is highly sensitive to temperature, with warm weather being an extreme trigger causing vomiting, diarrhoea, extreme exhaustion and functional incapacitation. She wears SPF clothing and sunglasses both indoors and outdoors to limit her sun exposure. Ms Evans provided a written Statement of Lived Experience[6] where she details that:I owned a home and had double tinted windows and garage for my car- so I wasn’t getting in car with hot interior. Also ducted aircon in the home so that I had the whole home to explore and not just a bedroom with portable aircon and trapped in 1 room. I had to sell as I couldn’t afford repayments and strata fees. Rentals with aircon are so expensive and I have in the past paid for aircon to be installed in rental twice. I wear my sunglasses inside which are also expensive in prescription. The last rental I had to use portable aircon and have at my bed and its loud and disturbs my sleep. I also use a cooling electric bed that has a motor and fans, not ceiling fan. SO to have aircon and ceiling fan would be so much better for quality of sleep. That rental included electricity or I cant afford to run 24-7 like I need. The roof leaked & I have to vacate that day-CURRENTLY- Im staying with friends without aircon.My electric cooling bed died, so I use ice packs in the bed and fan- taking medication for nausea as Im heating up at night even though its winter- that’s how my body temp regulates- badly- Iv applied for over 30 rentals- with friends- as alone I cant afford the rent-. I need a home, with aircon and fans and garage. I need help to pay electric and the rent or il feel sick like I do till attack hits. Social- Im stuck inside & miss all events from Oct till May. I cant escape the heat Unless I had camper to travel with aircon, bed, toilet, I could park at peoples events, interact and retreat to camper and regulate and repeat- Dreamy. I get sad and angry and depressed, missing weddings and work social events, people don’t get it- at night- its still over 20degrees and lights have UV so it affects me the same. Hard to maintain friendships, but I have few great friends. People get sick of asking and even if I say il go, I could end up sick that week, then I cant go, If I need id end up in attack and bed ridden for days.[7][6] JTB, C1, 212-213.[7] JTB, C1, 212.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

He also enclosed various photographs of Ms Evans’ skin lesions that had healed and notes the treatment plan for her ongoing management is:·Continuation of her meat free diet·Undertaking three yearly colonoscopy reviews·Continue nerve stimulation through the Royal Prince Alfred Hospital clinic·Continue with her highly compliant porphyria lifestyle management.[14]CONSIDERATION[14] JTB, C2, 215.Impairment The Respondent accepts in its Statements of Facts, Issues and Contentions that Ms Evans meets the disability criteria under paragraph 24(1)(a) of the Act on the basis of her impairments attributable to her porphyria variegata and pelvic floor instability. The Respondent further accepts the Applicant has impairments arising from her depression and anxiety.[15][15] JTB, A1, 7. Having considered the evidence, Ms Evans has been treated pharmacologically for her depression and anxiety since 2005. Her treater Dr Kertesz notes her condition as being currently stable. In her Statement of Lived Experience she outlines:When I am well, 5 mins and need to rest. Cant walk up hills, leg muscles cant cope. But when I am in attack mode- Bed ridden for days…I don’t use walker. But I use a cane after getting out of bed for balance, after falling several times and fracturing toes and dislocated toes.[16][16] JTB, C1, 212. On the evidence before me, I am satisfied that Ms Evans has physical and sensory impairments attributable to porphyria variegata and pelvic floor instability along with psychosocial impairments flowing from her depression and anxiety, such that s24(1)(a) of the Act has been met. Permanency To meet the disability requirements under paragraph 24(1)(b) of the Act the impairment or impairments are required to be permanent. Fluctuations in intensity or impairments that are variable can still be considered permanent as subsection 24(2) of the Act provides that impairments that vary in intensity may be permanent, and the person may be considered likely to require support under the NDIS for the person’s lifetime, despite this variation. Rule 5.4 of the Access Rules states if there is no known, available and appropriate evidence-based clinical, medical or other treatments that are likely to remedy the impairment it is considered permanent under the legislation. The definitions of ‘known, available and appropriate evidence-based clinical, medical or other treatments likely to remedy’ have been clarified in National Disability Insurance Agency v Davis [2022] FCA 1002. Rule 5.6 states that an impairment may require medical treatment and review before a determination can be made about whether the impairment is permanent or likely to be permanent. The impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated (even though the impairment may continue to be treated and reviewed after this has been demonstrated). The Respondent in its Statement of Facts, Issues and Contentions states[17]:[17] JTB, A1, 7-8.The evidence before the Tribunal is insufficient to satisfy it that any of the Applicant’s impairments are “permanent”:a. Porphyria variegata: A letter from Bay Medical Group (December 2024) stated that the Applicant “needs up to date re-testing for porphyria”, because of “significant advances in porphyria bio-evaluation”. It was indicated that, in 2024, a better and more accurate diagnosis could be achieved more easily, and at less expense: the Applicant’s “porphyria requires further assessment for clarity of diagnosis”, and “every effort needs to be made to consolidate the diagnosis of porphyria for continued management”. In circumstances where the Applicant’s treating Doctors have indicated a need for further diagnosis, and that this is relevant to continued management of the Applicant, the Tribunal cannot be satisfied that there are no known, available and appropriate treatments. , Additionally, there is evidence before the Tribunal that the Therapeutic Goods Administration approved, in 2020, Scenesse, a controlled release implant for porphyria (see report of Mateusz Miszczuk, P10). The evidence does not suggest that the Applicant has taken up this option.b. Pelvic Floor Instability: Recent evidence of Dr Wegman (August 2024) indicates that the Applicant is seeing a colorectal surgeon, Professor Byrnes, “and has an implant stimulator which is controlling the pelvic floor and actually significantly helping the incontinence issues”, and that the Applicant “has had good results from the pelvic floor stimulator”. A letter from the Bay Medical Group (December 2024) also refers to the Applicant having a trial of a nerve stimulator, which was, in August 2024, replaced with a permanent implant. Accordingly, the evidence suggests that there are appropriate treatments available to the Applicant.c. Depression and Anxiety: A letter from Bay Medical Group (December 2024) indicates that the Applicant has been treated with medications and “has been stable” over the years. Reference is made to the Applicant being “treated in general practice”. It is also stated that her psychological status “is stable” but she needs regular assessment and review. Accordingly, the evidence suggests that there are appropriate treatments available to the Applicant.