Patterson and National Disability Insurance Agency

This matter concerned an application for access to the National Disability Insurance Scheme (NDIS) by the Applicant, Mr Patterson, against a decision by the National Disability Insurance Agency (NDIA) to refuse access. The dispute centred on whether the Applicant met the disability or early intervention requirements under the NDIS Act 2013 (Cth). The Administrative Appeals Tribunal (AAT) was required to determine if the Applicant had a disability as defined by the Act and, crucially, whether his impairments were permanent or likely to be permanent.

The Tribunal considered whether the Applicant possessed a disability attributable to physical impairments, noting the Respondent accepted he had such impairments arising from multifactorial shortness of breath, dyspnoea, peripheral neuropathy, and severe obesity, which caused reduced functioning. The central legal issue was whether these impairments were permanent or likely to be permanent, as required by section 24(1)(b) of the Act. This involved assessing whether there were known, available, and appropriate evidence-based treatments that could remedy the impairments, as per Access Rule 5.4. The Tribunal also considered whether the Applicant met the early intervention requirements under section 25 of the Act, which also hinged on the permanency of his impairments.

The Tribunal reasoned that while the Applicant had a physical impairment causing reduced functioning, the evidence did not establish that his impairments were permanent or likely to be permanent. It found that bariatric surgery was a known, available, and appropriate evidence-based treatment that would likely remedy the Applicant's physical impairments, particularly those stemming from his obesity. Although the Applicant had faced barriers to accessing publicly funded bariatric surgery and expressed concerns about private costs and surgical risks, the Tribunal concluded that the evidence did not demonstrate that such treatment was unavailable or inappropriate for him. Consequently, the Tribunal found that the Applicant did not meet the permanency requirement for either the disability or early intervention criteria.

The Tribunal affirmed the NDIA's decision, finding that the Applicant did not meet the disability requirements under section 24 or the early intervention requirements under section 25 of the NDIS Act 2013 (Cth). Therefore, the Applicant was not eligible to access the NDIS.