Hula and National Disability Insurance Agency

[2019] AATA 580

Hula and National Disability Insurance Agency [2019] AATA 580 (13 March 2019)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2018/4112

Re:Roman Hula

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Professor R McCallum AO, Member

Date:13 March 2019

Date of written reasons:        29 March 2019

Place:Sydney

The decision under review is set aside and the Tribunal makes the following decision: that Mr Roman Hula is a participant in the National Disability Insurance Scheme because the Tribunal finds that he fulfils all of the criteria set out in section 21(2) of the National Disability Insurance Scheme Act 2013 (Cth).

..............................[sgd]..........................................

Professor R McCallum AO, Member

CATCHWORDS

NATIONAL DISABILITY INSURANCE SCHEME – access to the scheme – disability requirements – bilateral knee osteoarthritis – shoulder pain – cervical spondylosis – whether applicant was receiving supports under a program prescribed by the scheme – decision set aside and substituted

LEGISLATION

National Disability Insurance Scheme Act 2013 (Cth) – s 21

REASONS FOR DECISION

Professor R McCallum AO, Member

29 March 2019

1. I have compiled the reasons for this decision from the transcript of my oral decision.

2. Mr Roman Hula, the applicant, applied to join the National Disability Insurance Scheme which I shall refer to as the “NDIS”, on 14 January 2018. 

3. The National Disability Insurance Agency, which I shall refer to as the “NDIA”, wrote to the applicant on 5 February 2018 stating that on the information available he did not meet the criteria to become a participant in the NDIS. 

4. Mr Hula sought review of this decision, and on 26 May 2018, a delegate of the CEO of the NDIA affirmed the earlier decision, holding that Mr Hula did not meet the access criteria. 

5. Mr Hula has sought review before the National Disability Insurance Scheme Division of the Administrative Appeals Tribunal. 

   THE LAW

6. Section 21 of the National Disability Insurance Scheme Act 2013 (Cth), which I shall call the “NDIS Act”, specifies two gateways for becoming a participant in the NDIS. Section 21(1) sets out what I might loosely call the disability criteria and the early intervention criteria. Section 21(2) has a different purpose. It is designed pursuant to an agreement between the government of New South Wales and the government of the Commonwealth of Australia to aid the transition of New South Wales persons who are receiving aid under a list of programs to transition to the NDIS.

7. Section 21(1) and (2) of the NDIS Act relevantly provide as follows:

   21 When a person meets the access criteria

   (1) A person meets the access criteria if:

   (a) the CEO is satisfied that the person meets the age requirements (see section 22); and

   (b) the CEO is satisfied that, at the time of considering the request, the person meets the residence requirements (see section 23); and

   (c) the CEO is satisfied that, at the time of considering the request:

   (i) the person meets the disability requirements (see section 24); or

   (ii) the person meets the early intervention requirements (see section 25).

   (2) If the CEO is not satisfied as mentioned in subsection (1), the person meets the access criteria if the CEO is satisfied of the following:

   (a) at the time of considering the request, the person satisfies the requirements in relation to residence prescribed as mentioned in subsection 23(3) (whether or not the person also satisfies the requirements mentioned in subsection 23(1));

   (b) the person:

   (i) was receiving supports at the time of considering the request or, if another time is prescribed by the National Disability Insurance Scheme rules for the purposes of this subparagraph, at that other time; and

   (ii) received the supports throughout the period (if any) prescribed by the National Disability Insurance Scheme rules for the purposes of this subparagraph; and

   (iii) received the supports under a program prescribed by the National Disability Insurance Scheme rules for the purposes of this subparagraph;

   (c) if the person becomes a participant, the person would not be entitled to receive the supports referred to in paragraph (b), or equivalent supports.

   THE HEARING

8. At the hearing today, counsel for the respondent has informed the Tribunal that it is the respondent’s view that the applicant fulfils the criteria for access to the NDIS under section 21(2) of the NDIS Act. From the material I have read (and I note paragraph 2.4 of the Respondent’s Statement of Facts, Issues and Contentions), and from discussions before me today, I agree that Mr Hula does meet this criteria and thus, becomes a participant of the NDIS. It is not necessary for me to examine whether or not Mr Hula meets what I shall call the disability or early intervention criteria specified in section 21(1) of the NDIS Act. Accordingly, I make the following decision.

   DECISION

9. The decision under review is set aside and the tribunal makes the following decision: that Mr Roman Hula is a participant in the National Disability Insurance Scheme because the Tribunal finds that he fulfils all of the criteria set out in section 21(2) of the National Disability Insurance Scheme Act 2013 (Cth).

I certify that the preceding 9 (nine) paragraphs are a true copy of the reasons for the decision herein of Professor R McCallum AO, Member

..............................[sgd]..........................................

Associate

Dated: 29 March 2019

Dates of hearing:	13 March 2019
Applicant:	In person
Counsel for the Respondent:	Mr B Kaplan