HPSC and National Disability Insurance Agency

This matter concerned an application for review of a decision by the National Disability Insurance Agency (NDIA) to refuse access to the National Disability Insurance Scheme (NDIS). The applicant, who suffered from primary anxiety and secondary conditions including Carnitine Palmitoyltransferase Deficiency Type II and Cyclic Vomiting Syndrome, sought to challenge the NDIA's determination that she did not meet the Scheme's access criteria. The Administrative Appeals Tribunal (AAT) was tasked with reviewing this decision.

The central legal issue before the Tribunal was whether the applicant's impairments resulted in a "substantially reduced functional capacity" to undertake any one or more of the activities specified in section 24(1)(c) of the *National Disability Insurance Scheme Act 2013* (Cth), excluding learning. This required the Tribunal to assess the applicant's functional capacity, considering what she could and could not do, and determining if her capacity was substantially reduced in relation to at least one specified activity. The Tribunal also had to consider the impact of fluctuating or episodic impairments on overall functional capacity, particularly in the periods between acute episodes, in accordance with relevant guidelines.

The Tribunal reasoned that for an episodic impairment to result in a substantially reduced functional capacity, the impact on the person's ability to function must be considered not only during acute episodes but also in the periods between them. Applying this principle, the Tribunal found that while the applicant experienced periods of significant incapacity, her day-to-day functioning, including her ability to maintain employment, study, engage in social activities, and manage personal affairs, indicated a level of functionality that did not meet the threshold for a substantially reduced functional capacity. The Tribunal noted that eligibility for the NDIS is determined by applying the statutory tests to an individual's circumstances, rather than by comparison with other individuals.

Consequently, the Tribunal affirmed the NDIA's decision of 28 August 2019, made under section 20 of the Act, that the applicant did not meet the access criteria to be a participant in the NDIS. The Tribunal concluded that the applicant's level of impairment did not reach the thresholds provided for in section 24(1)(c) of the Act.