LJQD and National Disability Insurance Agency

The Administrative Appeals Tribunal (AAT) considered an application by LJQD for review of a decision by the National Disability Insurance Agency (NDIA) to refuse her access to the National Disability Insurance Scheme (NDIS). The NDIA had affirmed its original decision, maintaining that LJQD did not satisfy the mandatory "disability requirements" under section 24(1) of the NDIS Act 2013 (Cth) or the "early intervention requirements" under section 25(1) of the Act. Specifically, the NDIA contended that LJQD failed to meet the criteria relating to the permanence of her impairments, the substantial reduction in her functional capacity, and the likelihood of requiring lifetime support from the scheme.

The central legal issues before the Tribunal were whether LJQD met the disability requirements as outlined in section 24(1) of the NDIS Act, or alternatively, the early intervention requirements under section 25(1) of the Act. These determinations were to be made in accordance with the provisions of the NDIS Act and associated legislative instruments. The Tribunal was required to assess whether LJQD's impairments were permanent or likely to be permanent, whether they resulted in a substantial reduction in her functional capacity across various domains, and whether she was likely to require NDIS support for her lifetime.

In its reasoning, the Tribunal considered evidence from an occupational therapist, Rebecca Thompson, who assessed LJQD's functional capacity. Ms. Thompson's evidence indicated that while LJQD could communicate effectively, interact socially, and learn, her mobility was limited by osteoarthritis, requiring a walking stick for outdoor use and on days of severe pain indoors. Her walking tolerance was estimated at approximately one kilometre, and she sometimes needed to rest when accessing the community. Ms. Thompson also noted that osteoarthritis is a degenerative condition likely to worsen over time. The Tribunal also had regard to the statutory definitions of "permanent" impairments, which include those that vary in intensity or are episodic or fluctuating.

The Tribunal ultimately found that LJQD did not meet the disability requirements under section 24(1) of the NDIS Act. This was primarily because her impairments, while impacting her functional capacity, did not result in a *substantial* reduction in her capacity to undertake the specified activities to the degree required by the legislation. Furthermore, the Tribunal was not satisfied that she was likely to require support from the NDIS for her lifetime, nor that her impairments met the permanence criteria for early intervention. Consequently, the Tribunal affirmed the NDIA's decision to refuse LJQD access to the scheme.