Mifsud and National Disability Insurance Agency

The Administrative Appeals Tribunal (AAT) considered an application for review by Ms. Mifsud against a decision by the National Disability Insurance Agency (NDIA) to refuse her access to the National Disability Insurance Scheme (NDIS). The applicant sought access to the NDIS based on impairments including fibromyalgia, osteoarthritis, lumbar disc prolapse, and chronic pain, arguing these conditions substantially reduced her functional capacity and were likely to be permanent, requiring ongoing NDIS support. The NDIA contended that the applicant did not meet the access criteria under sections 24(1)(b), (c), and (e), or section 25 of the National Disability Insurance Scheme Act 2013 (Cth).

The Tribunal was required to determine whether the applicant's impairments were permanent or likely to be permanent, whether these impairments resulted in a substantially reduced functional capacity, and whether she was likely to require NDIS support for her lifetime. Additionally, the Tribunal considered whether the applicant met the early intervention requirements under section 25 of the Act. The Tribunal was guided by the NDIS Operational Guidelines, which represent government policy and are to be applied unless there is good reason not to do so, and relevant case law, including *National Disability Insurance Agency v Davis*, which interpreted "permanent" as "enduring."

The Tribunal found that the applicant's impairments were not permanent or likely to be permanent, as further medical treatment and review might be required to demonstrate permanency. While acknowledging the applicant experienced chronic pain and some functional limitations, the Tribunal gave greater weight to the evidence of Mr. Glen Dwyer, an Occupational Therapist, who concluded that the applicant was largely independent in key areas such as communication, social interaction, learning, and self-management, and that her mobility and self-care difficulties did not amount to a substantially reduced functional capacity as defined by the Act. Consequently, the Tribunal was not satisfied that the applicant met the criteria for lifetime NDIS support or early intervention.

The Tribunal affirmed the NDIA's decision, finding that the applicant did not meet the requirements of sections 24(1)(b), (c), and (e), nor the early intervention requirements under section 25 of the Act.