Kavanagh and National Disability Insurance Agency (NDIS) - [2025] ARTA 1800

Kavanagh and National Disability Insurance Agency (NDIS) [2025] ARTA 1800 (13 May 2025)
Applicant/s:  Ms Kerry Kavanagh
Respondent:  National Disability Insurance Agency
Tribunal Number:                2023/2795
Tribunal:General Member Gooch
Place:  Adelaide
Date:13 May 2025

Decision:

The Tribunal affirms the decision under review pursuant to subsection 105(a) of the Administrative Review Act 2024.

Statement made on 13 May 2025 at 3:21pm
General Member Gooch
Catchwords
National Disability Insurance Scheme – reviewable decision of Chief Executive Officer – becoming a participant – access request – whether applicant meets the access criteria – whether applicant meets the disability requirement – whether applicant has impairments which are, or likely to be permanent – whether impairment or impairments result in substantially reduced functional capacity – requirements not satisfied – reviewable decision affirmed
Legislation
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) Schedule 16, item 24.
National Disability Insurance Scheme Act 2013 (Cth), ss 3, 4, 18, 20, 21, 22, 23, 24, 25, 27, 209
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 Items 14, 126 and 138 of Schedule 1
National Disability Insurance Scheme (Becoming a Participant) Rules 2013 (Cth); rr 5.1, 5.4, 5.8, 6.8, 6.9
National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 Schedules 1 and 2
Cases
Drake and Minister for Immigration and Ethnic Affairs (No. 2) 1979 2 ALD 634
Foster and National Disability Insurance Agency [2025] ARTA
Garcia Albiol and National Disability Insurance Agency [2024] AATA 496
Madelaine and National Disability Insurance Agency [2020] AATA 4025
Mulligan and National Disability Insurance Agency [2015] FCA 544
National Disability Insurance Agency v Davis [2022] FCA 1002
National Disability Insurance Agency v Foster (2023) 295 FCR 521
Rooney and National Disability Insurance Agency [2021] AATA 3523
Secondary Materials
Disability Care and Support – Productivity Commission Inquiry Report Overview and Recommendations No. 54 31 July 2011
National Disability Insurance Agency Guidelines, Applying to the NDIS – Pre-Legislation Changes, 14 October 2024
National Disability Insurance Agency Assistive Technology (equipment, technology and devices) 20 December 2023
Reasons for Decision
1.Ms Kerry Kavanagh requested the Tribunal review a decision by the National Disability Insurance Agency (‘the Agency’) to reject her application to join the National Disability Insurance Scheme. (‘the Scheme’).
2.Ms Kavanagh is a 63-year-old woman, living in her own home in Werribee.
3.Ms Kavanagh sought access to the NDIS on the basis of impairments arising from depression, osteoarthritis, lumbar spine injury, cervical spine injury, bilateral Achilles tendinopathies and osteoporosis.[1]
[1] Statement of Facts, Issues and Contentions dated 7 March 2025 (SFIC) – Exhibit 2 at [1]
4.It appears that access applications had been made at an earlier stage, but the decision relevant to this application involved an original decision made on 11 December 2022 which refused Ms Kavanagh’s access request.
5.On 27 February 2023 Ms Kavanagh requested an internal review of this decision.
6.On 30 March 2023 the original…

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 Kavanagh and National Disability Insurance Agency (NDIS)

Details

AGLC: Kavanagh and National Disability Insurance Agency (NDIS) [2025] ARTA 1800
Case: [2025] ARTA 1800
Decision Date: 13 May 2025

CaseChat Overview and Summary

The case of Kavanagh and the National Disability Insurance Agency (NDIS) involved an applicant seeking to become a participant in the NDIS. The dispute centred around the applicant's eligibility, specifically whether they satisfied the access criteria, including the disability requirement. This requirement mandates that the applicant have impairments which are, or are likely to be permanent, and which result in substantially reduced functional capacity. The matter was heard in the Administrative Appeals Tribunal of Australia.

The primary legal issues for the Tribunal to decide were whether the applicant met the specified criteria under the National Disability Insurance Scheme Act. The Tribunal needed to assess the evidence presented regarding the permanence and severity of the applicant's impairments, and whether these impairments led to substantially reduced functional capacity. The Tribunal's role was to review the decision of the Chief Executive Officer, who had previously determined that the applicant did not meet the access criteria.

After reviewing the evidence and submissions from both parties, the Tribunal found that the requirements for access to the NDIS had not been met. The Tribunal concluded that the applicant's impairments were not of a permanent nature, nor did they result in substantially reduced functional capacity. Consequently, the Tribunal affirmed the decision of the Chief Executive Officer. The Tribunal's reasoning was based on the statutory criteria and the evidence provided, which did not sufficiently demonstrate that the applicant met the necessary conditions for NDIS participation.

In light of the Tribunal's findings, the application for access to the NDIS was dismissed. The Tribunal's decision was that the reviewable decision of the Chief Executive Officer, which denied the applicant's access to the scheme, was correctly made and should be affirmed. This outcome was based on the applicant not meeting the specified access criteria under the NDIS legislation.

Orders