Pomeroy and National Disability Insurance Agency

Ms Pomeroy, the applicant, sought review of a decision by the National Disability Insurance Agency (NDIA) to refuse her mother access to the National Disability Insurance Scheme (NDIS). The applicant sought access for her mother to fund home modifications and support for dietary and physiotherapy services. The Administrative Appeals Tribunal (AAT) considered whether the applicant's mother met the NDIS access criteria.

The primary legal issues before the Tribunal were whether the applicant's mother met the disability requirements under section 24(1) of the National Disability Insurance Scheme Act 2013 (Cth). This involved determining whether she had a disability, whether her impairments were permanent, whether these impairments resulted in a substantially reduced functional capacity in key activities, and whether her impairments affected her capacity for social or economic participation, and if she was likely to require NDIS support for her lifetime. The Tribunal also considered the alternative access criteria.

The Tribunal had regard to medical evidence and the applicant's oral evidence. The NDIA conceded that chronic osteoarthritis was a disability under the Act but argued that morbid obesity was not an impairment. However, the Tribunal found that the medical evidence demonstrated that the applicant's morbid obesity, in conjunction with her osteoarthritis, substantially reduced her physical function, particularly in her ability to mobilise and undertake self-care. The Tribunal was satisfied that these conditions constituted a disability within the meaning of the Act. The Tribunal also considered the criteria for permanency of impairment, noting that an impairment is permanent if there are no known, available, and appropriate evidence-based treatments likely to remedy it.

Ultimately, the Tribunal found that the applicant did not meet either the primary or alternative access criteria for the NDIS. Consequently, the Tribunal affirmed the NDIA's internal review decision.