NSGL and National Disability Insurance Agency

This matter concerned an application by NSGL for review of a decision by the National Disability Insurance Agency (NDIA) to refuse her access to the National Disability Insurance Scheme (NDIS). NSGL argued that the NDIA’s decision was incorrect, asserting that her additional needs and their impact on her daily functioning had not been properly considered. She contended that her speech and language difficulties were permanent and severe, significantly impacting her ability to function in all areas of her life. Furthermore, NSGL claimed that all available avenues through the health and school systems had been exhausted, necessitating NDIS intervention to prevent further decline in her capacity and mental well-being. The Administrative Appeals Tribunal (AAT) was tasked with determining whether NSGL met the eligibility requirements for the NDIS.

The Tribunal was required to consider two primary sets of criteria for NDIS access: the disability requirements under section 24 of the NDIS Act, and the early intervention requirements under section 25 of the NDIS Act. Specifically, regarding the disability requirements, the Tribunal had to assess whether NSGL’s impairments were attributable to intellectual, cognitive, neurological, sensory, or physical impairments, or psychosocial disabilities, and whether these impairments resulted in a permanent functional deficit. For the early intervention requirements, the Tribunal needed to determine if NSGL had an impairment that was or was likely to be permanent, and crucially, whether the provision of early intervention supports was likely to benefit her by reducing her future needs for supports in relation to her disability.

The Tribunal's reasoning focused on the functional assessment of NSGL's impairments, drawing on legal principles established in cases such as *Mulligan v National Disability Insurance Agency*. While the NDIA acknowledged that NSGL's developmental language disorder and specific learning disorder met the criteria under section 24(1)(a) and (b) of the NDIS Act, the Tribunal found that she did not satisfy the requirements under section 24(1)(c). This meant NSGL did not meet the disability access criteria. However, the Tribunal found that NSGL did meet the early intervention requirement for an impairment that was or was likely to be permanent, given her developmental language disorder. The Tribunal then considered whether early intervention supports were likely to benefit her by reducing future support needs, referencing expert opinion and research indicating that developmental language disorder often persists into adulthood and viewing it solely as an educational problem is insufficient.

Ultimately, the Tribunal concluded that NSGL did not meet the disability requirements for access to the NDIS because she failed to satisfy all the criteria under section 24(1) of the NDIS Act. Consequently, it was not necessary for the Tribunal to make a determination on whether she met the criteria under section 24(1)(d) and (e). The Tribunal's decision was to set aside the NDIA's decision and substitute a new decision that NSGL did not meet the disability access criteria for becoming a NDIS participant.