Re Schwass and National Disability Insurance Agency

This matter concerned an application by Mr Schwass for access to the National Disability Insurance Scheme (NDIS). The National Disability Insurance Agency (NDIA) had refused his application, and Mr Schwass sought a review of this decision. The Administrative Appeals Tribunal (AAT) was required to determine whether Mr Schwass met the access criteria for the NDIS, specifically whether his conditions constituted a "disability" as defined by the *National Disability Insurance Scheme Act 2013* (the Act).

The primary legal issues before the Tribunal were whether morbid obesity constitutes an "impairment" for the purposes of the Act, and whether Mr Schwass's morbid obesity and osteoarthritis were permanent or likely to be permanent. The Act requires that a person have a disability attributable to one or more intellectual, cognitive, neurological, sensory, or physical impairments, or to a psychiatric condition, and that this disability must be permanent or likely to be permanent.

The Tribunal reasoned that the term "impairment" commonly refers to a loss of, or damage to, a physical, sensory, or mental function. Applying this definition, the Tribunal concluded that morbid obesity, in itself, was not an impairment under the Act, although it accepted that osteoarthritis was. Furthermore, the Tribunal found that neither Mr Schwass's morbid obesity nor his osteoarthritis were permanent or likely to be permanent, noting evidence of attempts at weight management and the potential for improvement. Consequently, Mr Schwass did not meet the disability requirements under section 24 of the Act.

As Mr Schwass failed to meet the disability requirements, the Tribunal found it unnecessary to consider whether he met the early intervention requirements under section 25 of the Act. Accordingly, the Tribunal affirmed the NDIA's decision that Mr Schwass did not meet the access criteria for the NDIS.