ADMINISTRATIVE LAW – National Disability Insurance Scheme – Disability requirements – whether respondent had substantially reduced functional capacity to undertake the activity of “self-care” within the meaning of s 24(1)(c) of the National Disability Insurance Scheme Act 2013 (Cth) – whether Administrative Appeals Tribunal correctly construed r 5.8 of the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) to deem the respondent to be unable to participate “effectively or completely” in “self-care”
ADMINISTRATIVE LAW – National Disability Insurance Scheme (NDIS) – Disability requirements – likely requirement for lifetime support under the NDIS 24(1)(e) of the National Disability Insurance Scheme Act 2013 (Cth) – where Administrative Appeals Tribunal found respondent’s current support not comparable to that available under the NDIS – whether proper question was whether likely supports more appropriately funded through systems or services other than the NDIS
National Disability Insurance Agency, Access to the NDIS Operational Guidelines (17 December 2021)
National Disability Insurance Agency, Assistive Technology Guidelines (20 June 2022)
Macquarie Dictionary (8th ed, Macquarie, 2020)
Productivity Commission 2011, Disability Care and Support Report No 54, Canberra)
Revised Explanatory Memorandum to the National Disability Insurance Scheme Bill 2013 (Cth)
Division:
General Division
Registry:
Queensland
National Practice Area:
Administrative and Constitutional Law and Human Rights
Number of paragraphs:
100
Date of last submission/s:
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
National Disability Insurance Agency v Foster [2023] FCAFC 11
Case
[2023] FCAFC 11
Decision Date
CaseChat Overview and Summary
In the case of National Disability Insurance Agency v Foster, the primary issue was whether the Administrative Appeals Tribunal (AAT) correctly interpreted the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (Access Rules) to deem the respondent, Mr Foster, unable to participate "effectively or completely" in "self-care". Mr Foster had applied to become an NDIS participant but his application was refused on the basis that he did not meet the disability requirements or early intervention requirements necessary to access the NDIS. He appealed this decision to the AAT, which found in his favour and set aside the decision of the National Disability Insurance Agency (NDIA). The NDIA then appealed to the Federal Court.
The court was required to determine whether the AAT had correctly interpreted the Access Rules and whether the NDIA's decision was lawful, reasonable, and just. The court found that the AAT had erred in its interpretation of the Access Rules. The AAT had found that Mr Foster could participate effectively or completely in the activity of social interaction without assistive technology or equipment, but not for the activity of self-care. However, the AAT had not considered the full scope of the statutory provisions and had not given sufficient weight to the evidence presented by the NDIA.
The court held that the AAT had erred in its interpretation of the Access Rules by failing to consider the full scope of the statutory provisions and by giving insufficient weight to the evidence presented by the NDIA. The court found that the AAT had not properly considered the meaning of "effectively or completely" in the context of the Access Rules. The court held that the AAT should have considered whether Mr Foster's impairment resulted in a substantially reduced functional capacity to undertake the activity of self-care, taking into account all relevant factors, including the use of assistive technology or equipment.
The appeal was allowed, the decision of the AAT was set aside, and the matter was remitted to the AAT for determination according to law. The court's decision highlights the importance of properly interpreting statutory provisions and of giving proper weight to all relevant evidence when making decisions under the NDIS Act.
Orders
Orders of the court
1. The appeal be allowed.
2. The decision of the Administrative Appeals Tribunal dated 17 December 2021 be set aside.
3. The matter be remitted to the Administrative Appeals Tribunal for determination according to law.
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 that follow, the appeal is allowed.BACKGROUND FACTS In February 2018, Mr Foster, then aged 55, was diagnosed with spinal encephalomyelitis and a resultant neurogenic overactive bladder with poor contractility and mild urinary retention. The parties agreed that this is an “impairment” within the meaning of s 24(1)(a) of the NDIS Act. Mr Foster was also diagnosed with peripheral neuropathy, bipolar affective disorder and asthma. After a failed attempt at stimulator placement in January 2019, Mr Foster commenced receiving Botox injections into his bladder. This treatment placed his bladder into retention, stopping his overactive bladder symptoms. Mr Foster continues to require Botox injections every 6-12 months. He must now perform clean intermittent self-catheterisation approximately six times a day to empty his bladder, as he is unable to void his bladder without the assistance of catheters at all. Mr Foster receives an annual payment from the Australian Government under the Continents Aids Payment Scheme (CAPS) to subsidise the cost of his catheters. The subsidy amounts to approximately 5% of the annual cost of the catheters. With the exception of requiring the use of a catheter to void his bladder, Mr Foster is independent and capable of performing activities of communication, social interaction, learning, mobility, self-care, and self-management, as was agreed by the parties subject to the consequence of r 5.8(a) of the Access Rules.PROCEDURAL HISTORY OF THE MATTER On 27 March 2019, Mr Foster applied to become an NDIS participant. On 14 August 2019, his application was refused by a delegate of the NDIA on the basis that he did not meet the disability requirement nor the earlier intervention requirements necessary to access the NDIS. On 28 October 2019, Mr Foster requested a review of the delegate’s decision. On 24 November 2019, the NDIA affirmed its original decision (reviewable decision). The delegate was not satisfied that:(1)Mr Foster had substantially reduced functional capacity, or psychosocial function, to undertake communication, social interaction, learning, mobility, self-care and/or self-management pursuant to s 24(1)(c) of the NDIS Act;(2)Mr Foster would require lifetime support of the NDIS pursuant to s 24(1)(e) of the NDIS Act;(3)early intervention supports would likely reduce future supports for Mr Foster in relation to his disability pursuant to ss 25(1)(b) of the NDIS Act; (4)the provision of early intervention supports for Mr Foster would benefit him in any of the ways outlined in ss 25(c)(i) – (iv) of the NDIS Act; or (5)the NDIS is the most appropriate support system for Mr Foster and that early intervention supports are more appropriately funded through other systems of service delivery or support services pursuant to sub-s 25(3) of the NDIS Act. On 11 December 2019, Mr Foster applied to the Tribunal to review the NDIA’s reviewable decision pursuant to s 103 of the NDIS Act. On 17 December 2021, the Tribunal set aside the reviewable decision of the NDIA (Tribunal’s decision), finding that Mr Foster met the access criteria under s 21 of the NDIS Act and substituting for the reviewable decision a decision in those terms.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
On 17 December 2021, the Tribunal set aside the reviewable decision of the NDIA (Tribunal’s decision), finding that Mr Foster met the access criteria under s 21 of the NDIS Act and substituting for the reviewable decision a decision in those terms. Before the Tribunal, the parties accepted, and the Tribunal found, that: (a)Mr Foster met the age and residence requirements pursuant to ss 22 and 23 of the NDIS Act (at [63]);(b)Mr Foster had a disability that is attributable to a neurological impairment, namely a neurogenic overactive bladder and inability to void his bladder (impairment), pursuant to s 24(1)(c) of the NDIS Act (at [64]);(c)Mr Foster’s impairment was permanent for the purposes of s 24(1)(c) of the NDIS Act (at [65]); (d)Mr Foster’s impairment affected his capacity for social or economic participation pursuant to s 24(1)(d) of the NDIS Act (at [67]); and(e)Mr Foster did not meet the early intervention requirements under s 25 of the NDIS Act (at [68]). Further, the Tribunal appears to have adopted, at [66], the agreed position that Mr Foster’s impairment did not result in a substantially reduced functional capacity to undertake self-care, omitting the reference to the words “save for whether he is ‘deemed’ to have such a reduction”. The Tribunal acknowledged, however, that the question of whether Mr Foster is deemed to have such reduced capacity was the issue in dispute. The intention of the Agreed Issues at [22] was to apply what Mortimer J held in Mulligan v National Disability Insurance Agency [2015] FCA 544; 233 FCR 201 at [77], namely, the non-satisfaction of r 5.8 of the Access Rules “is not necessarily the end of the exercise in terms of s.24(1)(c)”, and that “[t]he statutory task remains to consider whether a person’s functional capacity is substantially reduced in any of the six specified areas [in s 24(1)(c)]”. In effect, the parties agreed that unless r 5.8 operated to provide for a finding that the “impairment results in substantially reduced functional capacity of a person to undertake” “the activities” of “self-care” then the Tribunal need not consider the matter further. The Tribunal found at [86]-[87] that Mr Foster was able to participate effectively or completely in the activity of social interaction without assistive technology or equipment, but not for the activity of self-care. It also found Mr Foster was likely to require support under the NDIS for his lifetime, and thus Mr Foster met the disability requirements under s 24(1) of the NDIS Act, at [103]. LEGISLATIVE PROVISIONS The NDIS and NDIA are established pursuant to the NDIS Act. The NDIS Act sets out, inter alia, the objects and principles of the operation of the NDIS and the manner in which a person can become a participant of the NDIS. Various supplementary legislative instruments (NDIS Rules) are made under the authority of s 209 of the NDIS Act to provide further detail about the operation of the NDIS Act. The NDIS Rules are to be read in conjunction with the NDIS Act. The NDIS Rules made by the Minister under s 209(1) of the NDIS Act can prescribe matters that are:(a) required or permitted by this Act to be prescribed by the National Disability Insurance Scheme rules; or(b) necessary or convenient to be prescribed in order to carry out or give effect to this Act.