HVMQ and National Disability Insurance Agency

This matter concerned an appeal by HVMQ against a decision by the National Disability Insurance Agency (NDIA) to refuse her access to the National Disability Insurance Scheme (NDIS). HVMQ sought access based on her VACTERL association, which resulted in neurogenic bladder and bowel, requiring her to be unable to toilet independently. The NDIA had determined that HVMQ did not have a substantially reduced functional capacity and that the supports she required were not most appropriately funded by the NDIS under the early intervention criteria. The Administrative Appeals Tribunal (AAT) was required to determine whether HVMQ met the criteria for access under section 24 of the NDIS Act 2013 (Cth) (disability criteria) or section 25 of the NDIS Act (early intervention criteria).

The Tribunal was required to consider two primary legal issues. Firstly, whether HVMQ possessed a substantially reduced functional capacity in any of the specified domains, including self-care, as a result of her VACTERL association. Secondly, if HVMQ did not meet the disability criteria, whether she satisfied the early intervention criteria, which involved assessing whether the provision of supports was likely to benefit her, reduce her future support needs, and whether such supports were most appropriately funded by the NDIS. The Tribunal also had to consider the interplay between HVMQ's permanent physical impairments and her consequent psychosocial impairment in its assessment.

The Tribunal found that while HVMQ did not meet the criteria for access under the disability provisions due to a lack of substantially reduced functional capacity in the relevant domains, she did meet the early intervention criteria. The Tribunal reasoned that HVMQ's condition, although long-standing, had undergone a significant change in management with the introduction of self-catheterisation and the potential transition to a trans-anal device. Expert evidence indicated that intensive supports, including continence nursing and psychological therapy, were crucial for HVMQ to achieve independence in managing her condition and to prevent future health deterioration, such as kidney damage. The Tribunal concluded that these supports were capacity-building, likely to reduce future support needs, and were not most appropriately funded by other systems, thus falling squarely within the purview of the NDIS.

Consequently, the Tribunal set aside the NDIA's decision and remitted the matter for reconsideration with a direction that HVMQ meets the early intervention requirements for access to the NDIS.