Salter and National Disability Insurance Agency

The Administrative Appeals Tribunal (AAT) considered the case of Mrs Salter and the National Disability Insurance Agency (NDIA). Mrs Salter sought access to the National Disability Insurance Scheme (NDIS) due to chronic pain and osteoarthritis, which she contended resulted in a substantially reduced functional capacity. The NDIA had initially determined that while Mrs Salter had a disability, it was not permanent, and therefore she did not meet the NDIS access criteria.

The primary legal issues before the Tribunal were whether Mrs Salter's impairments were permanent, or likely to be permanent, and whether these impairments resulted in a substantially reduced functional capacity in one or more of the specified domains under the *NDIS Act 2013* (Cth). Specifically, the Tribunal had to determine if Mrs Salter's chronic pain and osteoarthritis met the permanence requirement and if her functional capacity in areas such as mobility, self-care, and self-management was substantially reduced. The Tribunal also considered whether her social or economic participation was affected by her disability and if she was likely to require NDIS support for her lifetime.

The Tribunal's reasoning focused on the extensive medical and expert evidence presented. It found that Mrs Salter's osteoarthritis was a degenerative and permanent condition. Crucially, the Tribunal accepted the opinion of a psychiatrist that Mrs Salter's chronic pain, despite ongoing treatment attempts, was entrenched and refractory, with microscopic prospects for significant change, thus meeting the permanence criterion. The Tribunal also found that Mrs Salter had a substantially reduced functional capacity in mobility, noting her limitations in movement, ability to perform household chores, and participation in community activities, even with assistance. This finding of substantially reduced mobility was sufficient to meet the access requirements under section 24(1)(c) of the NDIS Act.

Consequently, the Tribunal set aside the NDIA's decision and remitted the matter for reconsideration with a direction that Mrs Salter met the disability requirements for access to the NDIS. The Tribunal was satisfied that her impairments were permanent and resulted in a substantially reduced functional capacity, particularly in mobility, and also affected her social and economic participation.