Sheldon and National Disability Insurance Agency

This matter concerned an application by Mr Sheldon for review of a decision by the National Disability Insurance Agency (NDIA) to refuse his access to the National Disability Insurance Scheme (NDIS). The dispute centred on whether Mr Sheldon met the disability requirements stipulated in section 24 of the NDIS Act 2013 (Cth) to be eligible for the scheme. The Administrative Appeals Tribunal considered the objects and principles of the Act, along with expert medical evidence and Mr Sheldon's own testimony regarding his impairments and potential treatments.

The Tribunal was required to determine whether Mr Sheldon's impairments constituted a "disability" as defined by the NDIS Act, and crucially, whether these impairments were "permanent" or likely to be permanent. The Act's access criteria, particularly section 24(1)(b) and associated Rules, stipulated that an impairment is permanent only if there are no known, available, and appropriate evidence-based treatments that would likely remedy it. The Tribunal also had to consider whether further medical treatment or review was necessary to establish the permanency of the impairment.

The Tribunal reasoned that while Mr Sheldon's spinal condition was accepted as an impairment that reduced his functional capacity in terms of mobilisation and self-care, it was not satisfied that this impairment was permanent. This conclusion was based on the fact that Mr Sheldon had not undertaken any recent medical reviews concerning alternative treatments, and had previously been advised by a spinal surgeon in 2011 that surgery might be beneficial but carried significant risks, which he was unwilling to undertake. The Tribunal noted that the permanency of an impairment requires that no available treatments would likely remedy it, and that further medical review might be necessary to establish this. Given Mr Sheldon's reluctance to explore further treatment options and the potential for improvement, the Tribunal found that the criterion of permanency had not been met.

Consequently, the Tribunal affirmed the NDIA's decision to refuse Mr Sheldon access to the NDIS, finding that he did not meet the necessary access criteria under sections 21-25 of the Act.