Foster and National Disability Insurance Agency

This matter concerned an application for review of a decision by the National Disability Insurance Agency (NDIA) regarding the applicant's eligibility for the National Disability Insurance Scheme (NDIS). The applicant, who had developed a neurogenic overactive bladder following encephalomyelitis, sought funding for catheters as essential support. The NDIA had affirmed its original decision, finding the applicant did not meet the criteria for substantially reduced functional capacity or the likelihood of requiring lifetime support.

The core legal issues before the Tribunal were whether the applicant's impairments resulted in an inability to participate effectively or completely in self-care or social interaction without assistive technology, pursuant to rule 5.8(a) of the NDIS Access Rules, and whether the applicant was likely to require NDIS support for his lifetime, as per section 24(1)(e) of the NDIS Act. The applicant argued that the requirement for clean intermittent self-catheterisation, necessitated by the Botox treatment for his bladder overactivity, was essential for his ability to manage his bladder in a predictable and socially acceptable manner, thereby enabling participation in social interaction and self-care. The NDIA contended that the catheter was equipment used to rectify an impairment or assist general functioning, rather than being specifically directed to the NDIS-eligible functions.

The Tribunal considered the applicant's medical history, including the development of neurogenic overactive bladder following encephalomyelitis and the subsequent treatment with intravesical Botox, which, while resolving incontinence, led to complete urinary retention requiring self-catheterisation. The Tribunal noted that save for the need to catheterise, the applicant was independent in all other aspects of self-care and social interaction. The Tribunal accepted the applicant's submission that the catheter provided an alternative method for voiding his bladder, and that it was necessary for symptomatic management of the retention caused by the Botox treatment. The Tribunal found that the need to catheterise impacted the applicant's capacity for social and economic participation, requiring access to suitable amenities.

The Tribunal set aside the NDIA's decision and substituted a new decision. It found that the applicant's impairments substantially reduced his functional capacity to undertake self-care and social interaction without the use of catheters. Furthermore, the Tribunal was satisfied that the applicant was likely to require NDIS support for his lifetime. Consequently, the applicant was deemed a participant in the NDIS.