Larkings and National Disability Insurance Agency

This case concerned an application for access to the National Disability Insurance Scheme (NDIS) by Ms Larkings, who sought to challenge a decision by the National Disability Insurance Agency (NDIA) that she did not meet the eligibility criteria. Ms Larkings claimed to have several physical impairments, including plantar fasciitis, osteoarthritis, and lower back pain, as well as psychological conditions such as anxiety, depression, obsessive-compulsive disorder, and hoarding disorder. The NDIA had initially accepted that some of her conditions were attributable to a "foot injury" and "anxiety/depression" but did not accept that these impairments were permanent or likely to be permanent, nor that they caused a substantially reduced functional capacity.

The primary legal issues before the Tribunal were whether Ms Larkings' physical and psychological impairments were permanent or likely to be permanent, and whether these impairments resulted in a substantially reduced functional capacity, as required by section 24 of the National Disability Insurance Scheme Act 2013 (Cth). The Tribunal also considered whether Ms Larkings met the early intervention requirements under section 25 of the Act. The NDIA contended that Ms Larkings' conditions were not permanent, did not cause a substantially reduced functional capacity, and that there was insufficient evidence regarding her mental health conditions to satisfy the required level of satisfaction.

The Tribunal's reasoning focused on the permanence of Ms Larkings' impairments. For her physical conditions, the Tribunal found that available and appropriate treatments were likely to remedy her plantar fasciitis, meaning it was not permanent. Similarly, the Tribunal concluded that her osteoarthritis and back pain were not permanent. Regarding her psychological conditions, while acknowledging they were long-standing and impacted her function, the Tribunal found that they were not permanent as there were known, available, and appropriate treatments that could likely remedy or at least stabilise them at a higher functional level. The Tribunal also noted that Ms Larkings had not consistently engaged with recommended treatments, which impacted the assessment of permanence. Consequently, the Tribunal found that Ms Larkings did not meet the disability requirements under section 24. Furthermore, the Tribunal determined that even if her impairments were considered permanent, she would not meet the early intervention requirements under section 25, as the required treatments were for the clinical management of chronic conditions, which are not the responsibility of the NDIS.

The Tribunal affirmed the NDIA's decision on internal review, concluding that Ms Larkings did not meet any of the requirements to access the NDIS.