Kelly and National Disability Insurance Agency

This matter concerned an application by Ms Kelly for access to the National Disability Insurance Scheme (NDIS). The dispute centred on whether Ms Kelly met the NDIS access criteria, specifically concerning the permanence of her impairments. The Administrative Appeals Tribunal (AAT) was tasked with determining this issue.

The primary legal issue before the Tribunal was whether Ms Kelly's impairments, arising from a spinal condition and chronic pain, were permanent or likely to be permanent, as required by section 24(1)(b) of the National Disability Insurance Scheme Act 2013 (Cth). The Tribunal also considered the nature of impairment within the context of the NDIS legislation, distinguishing it from a medical diagnosis and focusing on reduced functional capacity.

The Tribunal reasoned that while Ms Kelly experienced significant pain and functional limitations, the evidence did not establish that her impairments were likely to be permanent. The Tribunal noted that surgical intervention, specifically micro discectomies, had been discussed as a potential treatment to alleviate sciatic pain and pins and needles, although it was not expected to resolve her back pain. The fact that St Vincent's Hospital had rejected her as a candidate for surgery, and her own reservations about surgical outcomes, were considered. The Tribunal emphasised that disability under the NDIS is a function of impairment assessed by reference to reduced functional capacity, and that medical evidence plays a role in assessing a person's condition, particularly when treatment options are relevant. However, the Tribunal concluded that the evidence did not adequately demonstrate the permanence of her impairments.

Accordingly, the Tribunal affirmed the decision under review, finding that Ms Kelly did not meet the access criteria for the NDIS.