NATIONAL DISABILITY INSURANCE SCHEME – access – post traumatic stress disorder – emphysema – neck and throat condition – whether the applicant satisfies the disability requirements – the applicant does not meet the disability requirements - whether the applicant satisfies the early intervention requirements – the applicant does not meet the early intervention requirements – decision under review affirmed

LEGISLATION

National Disability Insurance Scheme Act 2013 (Cth) ss 3, 4, 21, 22, 23, 24, 25, 100, 103, 209

National Disability Insurance Scheme (Becoming a Participant) Rules 2013 (Cth) rr 5.4, 5.5, 5.8, 6.9

CASES

Mulligan and the National Disability Insurance Agency [2015] AATA 974

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634.

SECONDARY MATERIALS

Operational Guidelines – Access to the NDIS (the Guidelines)

REASONS FOR DECISION

The Applicant, Mr Noel Holmes lives in rural New South Wales and is aged in his sixties.
On 9 September 2016, Mr Holmes completed a verbal access request to become a participant in the National Disability Insurance Scheme (the NDIS).
However, on 16 December 2016, a letter of that date from a delegate of the CEO of the National Disability Insurance Agency (the NDIA) informed Mr Holmes that his application was unsuccessful as he did not meet the access requirements of the NDIS as set out in sections 21-25 of the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act).
On that same day, Mr Homes verbally requested an internal review of this decision.
On 14 February 2017, an NDIA access request supporting evidence form was completed by Mr Holmes and by Dr A K M Nazrul Islam who was Mr Holmes general practitioner.
Dr Islam stated that Mr Holmes primary impairment was Emphysema which he had contracted at least ten years ago. The current treatment for this disability was the use of a respiratory inhaler.
Dr Islam also stated that Mr Holmes suffered from a narrowing of the throat and neck condition. He was unable to open his mouth; there was a hardening of the neck with limited rotation; and difficulty in swallowing owing to a dry mouth. This impairment was contracted following treatment for carcinoma of the tonsil, that is cancer of the tonsil.
Dr Islam further stated that Mr Holmes suffered from post-traumatic stress disorder (PTSD).
Dr Islam wrote that no assessments have been made of Mr Holmes impairments.
Section 3 of the NDIA access request supporting evidence form requires the medical practitioner to give details of the functional impact of the impairments. In relation to mobility, Dr Islam ticked that Mr Holmes requires special equipment and assistance from other persons.…

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 Holmes & National Disability Insurance Agency

Details

AGLC: Holmes & National Disability Insurance Agency [2017] AATA 2750
Case: [2017] AATA 2750
Decision Date: 21 December 2017

CaseChat Overview and Summary

The applicant, Holmes, sought review of a decision by the National Disability Insurance Agency (NDIA) to refuse access to the National Disability Insurance Scheme (NDIS). The dispute concerned whether the applicant met the eligibility requirements for the NDIS, specifically relating to his claimed disabilities of post-traumatic stress disorder, emphysema, and a neck and throat condition. The matter was heard by Professor R McCallum AO, a Member of the Administrative Appeals Tribunal.

The Tribunal was required to determine two primary questions: first, whether the applicant satisfied the disability requirements for NDIS access, and second, whether the applicant satisfied the early intervention requirements for NDIS access. These determinations were crucial to establishing whether the applicant was eligible to participate in the Scheme.

In reaching its decision, the Tribunal considered the evidence presented regarding the applicant's conditions. The Tribunal found that the applicant's conditions, individually and in combination, did not meet the threshold for a "disability" as defined by the NDIS legislation, which requires a permanent impairment that substantially affects a person's ability to participate in everyday activities. Similarly, the Tribunal concluded that the applicant did not satisfy the criteria for early intervention, which typically relates to conditions that are not yet permanent but are likely to result in a permanent disability if not addressed. The Tribunal affirmed the NDIA's decision that the applicant did not meet the eligibility requirements for the NDIS.

Orders