FEDERAL COURT OF AUSTRALIA
National Disability Insurance Agency v Davis [2022] FCA 1002
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- AGLC
- National Disability Insurance Agency v Davis [2022] FCA 1002
- Case
- [2022] FCA 1002
- Decision Date
CaseChat Overview and Summary
In the Federal Court of Australia, the National Disability Insurance Agency (NDIA) appealed against a decision of the Administrative Appeals Tribunal (AAT), which had set aside the NDIA's refusal to approve Ms D's access request to become a participant in the National Disability Insurance Scheme (NDIS). The central issue before the court was whether the AAT erred in its interpretation of the National Disability Insurance Scheme Act 2013 (Cth) and the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth), specifically concerning the terms "permanent" and "known, available and appropriate". Additionally, the court had to consider whether the AAT had denied procedural fairness and had taken into account irrelevant considerations in its decision-making process.
The court held that the AAT had indeed erred in its interpretation of the relevant statutory and regulatory provisions. It found that the AAT had misconstrued the term "permanent" by failing to consider the full context of Ms D's impairments and their impact on her functional capacity. Furthermore, the AAT had not adequately considered the concept of affordability when interpreting "known, available and appropriate". The court was also of the view that the AAT had denied procedural fairness by not allowing the NDIA an opportunity for oral submissions, which might have influenced the course of its reasoning. The court concluded that these errors led to a decision that was not legally sound and warranted the setting aside of the AAT's decision.
Consequently, the court allowed the NDIA's appeal, set aside the decision of the AAT, and remitted the matter back to the AAT for redetermination. The court did not order any costs for the appeal, in accordance with Rule 39.32 of the Federal Court Rules 2011. The case underscores the importance of proper statutory interpretation and adherence to procedural fairness in administrative law proceedings.
The court held that the AAT had indeed erred in its interpretation of the relevant statutory and regulatory provisions. It found that the AAT had misconstrued the term "permanent" by failing to consider the full context of Ms D's impairments and their impact on her functional capacity. Furthermore, the AAT had not adequately considered the concept of affordability when interpreting "known, available and appropriate". The court was also of the view that the AAT had denied procedural fairness by not allowing the NDIA an opportunity for oral submissions, which might have influenced the course of its reasoning. The court concluded that these errors led to a decision that was not legally sound and warranted the setting aside of the AAT's decision.
Consequently, the court allowed the NDIA's appeal, set aside the decision of the AAT, and remitted the matter back to the AAT for redetermination. The court did not order any costs for the appeal, in accordance with Rule 39.32 of the Federal Court Rules 2011. The case underscores the importance of proper statutory interpretation and adherence to procedural fairness in administrative law proceedings.
Orders
Orders of the court
1. The appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) be allowed.
2. The decision of the Administrative Appeals Tribunal made on 14 January 2022 be set aside.
3. The matter be remitted to the Tribunal to be determined according to law.
4. There be no order as to the costs of the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
For the reasons set out below, the Agency’s appeal should be upheld on one ground. This ground, a denial of procedural fairness, affected the outcome of the review and therefore the Tribunal’s decision must be set aside.BACKGROUND The background to the appeal is not in dispute, and is set out in the Tribunal’s reasons, from which this summary is largely taken. Ms D made an access request to the Agency under s 18 of the NDIS Act to become a participant in the National Disability Insurance Scheme. Her access request was refused and she was unsuccessful on internal review, leading to her review application to the Tribunal. I have described the scheme of the NDIS Act in previous decisions: see McGarrigle v National Disability Insurance Agency [2017] FCA 308; 252 FCR 121 at [22]–[44], and Mulligan v National Disability Insurance Agency [2015] FCA 544; 233 FCR 201 at [11]-[34]. I adopt those descriptions in these reasons. Relevantly to the appeal, s 21 prescribes three kinds of requirements for access to the NDIS: age requirements, residence requirements and disability requirements. Only the latter set of requirements was in contention before the Tribunal. The disability requirements are set out in s 24 of the NDIS Act:(1) A person meets the disability requirements if:(a) the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or to one or more impairments attributable to a psychiatric condition; and(b) the impairment or impairments are, or are likely to be, permanent; and(c) the impairment or impairments result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the following activities:(i) communication;(ii) social interaction;(iii) learning;(iv) mobility;(v) self-care;(vi) self-management; and(d) the impairment or impairments affect the person’s capacity for social or economic participation; and(e) the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime.(2) For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the variation. It can be seen that the disability requirements are cumulative, and contain a number of separate kinds of requirements that must be met by an NDIS applicant. At [17] of its reasons the Tribunal set out the issues for determination as:(a) whether Ms [D] has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory, or physical impairments;(b) whether Ms [D]’s impairments are, or are likely to be, “permanent”;(c) whether Ms [D]’s impairments result in “substantially reduced functional capacity” to undertake one or more of the six activities prescribed in subsection 24(1)(c) of the NDIS Act;(d) whether Ms [D]’s impairments affect her capacity for social or economic participation; and(e) whether Ms [D] is likely to require support under the NDIS for her lifetime.(Original emphasis.)
Evidence
Evidence Before The Court
At [30] of its reasons, the Tribunal referred to the Operational Guidelines issued by the Agency. It noted in particular the guidelines concerning when a disability is attributable to an impairment, and the following guidance:8.1 What is a disability attributable to impairment?…For the purposes of becoming a participant in the NDIS the focus of 'disability' is on the reduction or loss of an ability to perform an activity which results from an impairment. The term 'impairment' commonly refers to a loss of, or damage to, a physical, sensory or mental function.…For the purpose of determining access, the NDIS Act is not concerned with what caused a person's disability. All people with disabilities who meet the access criteria can be participants, whether the disability came about through birth, disease, injury or accident (see Mulligan and NDIA [2015] FCA 44 at [16]).Whether a prospective participant has a disability attributable to an impairment is a question of fact to be determined on the balance of available evidence, including their diagnosis.If a prospective participant has multiple impairments, the NDIA will consider all impairments together when considering whether the person satisfies this disability requirement. (Original emphasis.) At [32]-[33], the Tribunal explained why it did not consider it helpful or necessary to determine any disputes about the particular diagnosis that should be attached to any conditions suffered by Ms D. It instructed itself that the focus of s 24(1)(a):is to remain on the person’s “impairments” and that is what the Tribunal will do.(Original emphasis.) Those paragraphs are impugned by the Agency and I return to them below. The Tribunal relied on Ms D’s evidence about her chronic pain when moving, leading to a significant lack of mobility. It accepted this evidence, and accepted the evidence of Ms Ferguson in her allied health report tendered to the Tribunal. It also relied on radiological results. It then concluded at [38]:Based on the evidence set out above in paragraph [34] to [37], the Tribunal finds that Ms [D] has an impairment which involves loss of or damage to her physical function, specifically her musculoskeletal and movement-related functions, and that she also has an impairment which involves loss of damage to her sensory function on account of the chronic pain she experiences on a daily basis. The Tribunal then considered Ms D’s evidence about ulcerative colitis, relying on Dr Jakobovits’ description of it as a “chronic disease”. While accepting the evidence demonstrated the condition was “in remission” and her colitis was at the time of the Tribunal hearing “under control”, the Tribunal found (at [42]):Based on the matters set out in the above three paragraphs and putting aside any consideration of severity (which will be addressed when assessing the third criterion under s 24(1)(c) of the NDIS Act), the Tribunal is satisfied that Ms [D] has a further impairment that involves loss of or damage to her physical function, specifically her digestive function, which includes the gastrointestinal tract.
Decision
Reasons for decision
One point emphasised by counsel for the Agency was that there were no oral closing submissions, only written ones. He submitted that the course taken by the Tribunal in its reasoning might not have occurred had there been an opportunity for oral submissions. That submission has force, and I agree with it.THE TRIBUNAL’S DECISION At [30] of its reasons, the Tribunal referred to the Operational Guidelines issued by the Agency. It noted in particular the guidelines concerning when a disability is attributable to an impairment, and the following guidance:8.1 What is a disability attributable to impairment?…For the purposes of becoming a participant in the NDIS the focus of 'disability' is on the reduction or loss of an ability to perform an activity which results from an impairment. The term 'impairment' commonly refers to a loss of, or damage to, a physical, sensory or mental function.…For the purpose of determining access, the NDIS Act is not concerned with what caused a person's disability. All people with disabilities who meet the access criteria can be participants, whether the disability came about through birth, disease, injury or accident (see Mulligan and NDIA [2015] FCA 44 at [16]).Whether a prospective participant has a disability attributable to an impairment is a question of fact to be determined on the balance of available evidence, including their diagnosis.If a prospective participant has multiple impairments, the NDIA will consider all impairments together when considering whether the person satisfies this disability requirement. (Original emphasis.) At [32]-[33], the Tribunal explained why it did not consider it helpful or necessary to determine any disputes about the particular diagnosis that should be attached to any conditions suffered by Ms D. It instructed itself that the focus of s 24(1)(a):is to remain on the person’s “impairments” and that is what the Tribunal will do.(Original emphasis.) Those paragraphs are impugned by the Agency and I return to them below. The Tribunal relied on Ms D’s evidence about her chronic pain when moving, leading to a significant lack of mobility. It accepted this evidence, and accepted the evidence of Ms Ferguson in her allied health report tendered to the Tribunal. It also relied on radiological results. It then concluded at [38]:Based on the evidence set out above in paragraph [34] to [37], the Tribunal finds that Ms [D] has an impairment which involves loss of or damage to her physical function, specifically her musculoskeletal and movement-related functions, and that she also has an impairment which involves loss of damage to her sensory function on account of the chronic pain she experiences on a daily basis. The Tribunal then considered Ms D’s evidence about ulcerative colitis, relying on Dr Jakobovits’ description of it as a “chronic disease”. While accepting the evidence demonstrated the condition was “in remission” and her colitis was at the time of the Tribunal hearing “under control”, the Tribunal found (at [42]):Based on the matters set out in the above three paragraphs and putting aside any consideration of severity (which will be addressed when assessing the third criterion under s 24(1)(c) of the NDIS Act), the Tribunal is satisfied that Ms [D] has a further impairment that involves loss of or damage to her physical function, specifically her digestive function, which includes the gastrointestinal tract.
Ratio Decidendi
Legal Principle Established
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