Nicholson and National Disability Insurance Agency (NDIS) - [2025] ARTA 710

Nicholson and National Disability Insurance Agency (NDIS) [2025] ARTA 710 (6 June 2025)
Applicant/s:  Glenn Nicholson
Respondent:  National Disability Insurance Agency
Tribunal Number:                2023/7675

Tribunal:Deputy President K Dordevic
Place:Perth
Date:6 June 2025

Decision:The decision under review is affirmed.

........................[SGD]..........................................
Deputy President K Dordevic
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – access to scheme - reviewable decision of Chief Executive Officer – becoming a participant – ankle arthropathy – degenerative – anxiety – depression – age and residence requirements met – permanence – substantially reduced functional capacity – weight attributable to medical evidence – disability and early intervention requirements not met - decision under review affirmed
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)
Cases
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
National Disability Insurance Agency v Foster [2023] FCAFC 11
Mulligan v National Disability Insurance Agency [2015] FCA 544
National Disability Insurance Agency v Davis [2022] FCA 1002
Secondary Materials
National Disability Insurance Agency, Our Guidelines – Applying to the NDIS
Statement of Reasons

This issue requiring determination by this Tribunal is whether Mr Nicholson (the Applicant) may become a participant in the National Disability Insurance Scheme (the NDIS or the scheme).
The Applicant sought access to the scheme on 28 June 2023 for impairments arising from physical and psychosocial conditions.
On 19 July 2023 a delegate of the Chief Executive Officer (the CEO) of the National Disability Insurance Agency (the NDIA) determined that the Applicant did not meet the access criteria.[1] The Applicant lodged a timely review to that decision, which was confirmed on 4 October 2023 by a different delegate of the CEO.
[1] T6, folios 34 to 38.
On 12 October 2023 the Applicant made an application to the NDIS Division of the Administrative Appeals Tribunal (the AAT) for an independent review of the decision. From 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). This decision and statement of reasons is made by the Tribunal.[2]
[2] Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.
On 10 December 2024 the Tribunal set the matter down for a hearing on 21, 27 and 28 February 2025.
On 4 February 2025 the Applicant wrote to the Tribunal requesting an adjournment. His request was refused on 6 February 2025. The Applicant reiterated his request to have the matter adjourned on 18 February 2025, providing evidence of a knee arthroscopy scheduled to take place…

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.

Continue reading Nicholson and National Disability Insurance Agency (NDIS)

Details

AGLC: Nicholson and National Disability Insurance Agency (NDIS) [2025] ARTA 710
Case: [2025] ARTA 710
Decision Date: 6 June 2025

CaseChat Overview and Summary

Nicholson sought to challenge a decision by the National Disability Insurance Agency (NDIS) that denied him access to the scheme. Nicholson argued that his degenerative ankle arthropathy and associated anxiety and depression qualified him for participation in the NDIS. The matter was determined in the Federal Court of Australia. The central legal issue was whether Nicholson satisfied the statutory criteria for access to the NDIS, specifically the disability requirements outlined in section 24 of the NDIS Act. This included whether his condition was permanent and substantially reduced his functional capacity. The Court also needed to consider if Nicholson's disability met the early intervention requirements under section 25 of the Act.

The Court considered medical evidence provided by an orthopaedic surgeon and a general practitioner. The evidence indicated that Nicholson had a lifelong degenerative condition of his right ankle, which had resulted in reduced mobility and required physiotherapy and orthotics. However, the Court found that Nicholson's conditions did not meet the statutory definition of a disability under section 24 of the NDIS Act. The Court gave weight to the medical evidence that Nicholson did not require assistance in several specified domains, including mobility, communication, social interaction, learning, self-care, or self-management. While Nicholson's mobility was impacted by his condition, the Court concluded that it was not substantially reduced to the extent required by the legislation. Moreover, the Court found that Nicholson's anxiety and depression, while lifelong, did not meet the early intervention requirements. Therefore, the Court affirmed the decision of the NDIS to deny Nicholson access to the scheme.

In summary, the Court found that Nicholson did not meet the statutory criteria for access to the NDIS. The Court upheld the NDIS's decision, affirming that Nicholson was ineligible for participation in the scheme. The Court's decision hinged on the interpretation of the statutory requirements for disability and early intervention, and the evidence presented regarding Nicholson's functional capacity and need for assistance.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Applicant does not meet the disability requirements set down in section 24 of the Act, nor does he meet the early intervention requirements in section 25 of the Act. Therefore, the decision under review is correct. DECISION The decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

This approach was endorsed by the Full Court in Foster.[8]CONSIDERATION[8] National Disability Insurance Agency v Foster [2023] FCAFC 11 (Foster) at [64].Age and residency requirements I find that the Applicant was under 65 years of age when he requested access to the scheme. I am also satisfied that the Applicant resides in Australia and is an Australian citizen. Paragraphs 21(1)(a) and (b) of the Act are satisfied. I next considered whether the Applicant meets the disability requirements to gain access to the scheme as set down in section 24 of the Act.Disability requirementsThe medical evidence before the Tribunal On 22 May 2023 Mr Andrej Nikoloski, orthopaedic surgeon, wrote to the Applicant’s general practitioner advising that there was a diagnosis of right tibialis posterior tendon dysfunction, secondary to trauma. The Applicant sustained tendon laceration at 8 years of age which was surgically repaired, however he subsequently sustained a further right foot injury. The Applicant described a history of pain for 50 years and that this was his first orthopaedic review, which coincided with his application to the scheme. He tried of course a physiotherapy and corticosteroid injections which provided no relief. On examination the Applicant’s ankle range of movement was restricted he has a stiff hind foot and his foot progression angle is externally rotated. He has reduced sensation across his foot in a non-dermatomal distribution. He has moderate hind foot valgus at 20 degrees. Potential surgical options including fusion and total ankle replacement were discussed, however in the first instance it was decided to trial non-operative management. The plan following the review was to provide custom orthotics and footwear, physiotherapy and strengthening, with a review in six months.[9][9] JTB, T4. Dr Gino Caravella, general practitioner, completed the health professional section of the Applicant’s access application, advising that the Applicant’s degenerative right ankle arthropathy was lifelong and required physiotherapy and an orthopaedic assessment. Dr Caravella also reported that the Applicant suffers from anxiety and depression, that this condition too was lifelong and he was prescribed antidepressants. He also suffered from hypertension and reflux. Dr Caravella was of the view that the Applicant would benefit from early intervention supports and noted the referral for an orthopaedic review of the ankle osteoarthritis. Dr Caravella when on to note that the Applicant did not require assistance in the domains of mobility, communication, social interaction, learning, self-care or self-management. [10] [10] JTB, T13 and T13A. The health professional declaration was amended on 28 June 2023, whereby Dr Caravella noted that the Applicant did require special equipment and assistance from others in the mobility domain, noting that right foot pain causes the Applicant difficulties walking any distances greater than a few metres and affects his driving and ability to shop.[11] Dr Caravella stated that the Applicant’s mobility would be improved by orthotics and physiotherapy.[11] JTB, T13B.