Smith and National Disability Insurance Agency

This case involved an application for access to the National Disability Insurance Scheme (NDIS) by the Applicant, Mr. Smith, against the National Disability Insurance Agency (NDIA). The central dispute concerned whether Mr. Smith met the NDIS access criteria, specifically whether he had a disability attributable to one or more impairments that resulted in a permanent and substantial reduction in his functional capacity, and whether his impairments affected his capacity for social or economic participation, and if he was likely to require NDIS support for his lifetime. The matter was heard by Senior Member D Connolly of the Administrative Appeals Tribunal.

The legal issues before the Tribunal were to determine if the Applicant met the disability requirements under section 24 of the National Disability Insurance Act 2013 (Cth). This involved assessing whether the Applicant had a disability attributable to specified impairments, whether these impairments were permanent, whether they resulted in a substantially reduced functional capacity in key domains (communication, social interaction, learning, mobility, self-care, and self-management), whether these impairments affected his capacity for social or economic participation, and finally, whether he was likely to require NDIS support for his lifetime. The Tribunal also considered the relevant NDIS Operational Guidelines and case law, including the principles established in *Mulligan* and *Foster*.

The Tribunal considered extensive evidence, including reports from various medical and allied health professionals, as well as the Applicant's oral evidence. While the NDIA conceded that section 24(1)(a) was satisfied in respect of impairments associated with epilepsy and disequilibrium disorder, it contested the permanency and functional impact of other conditions. The Tribunal found that the Applicant's impairments, particularly his psychosocial disability, physical impairments related to back pain and disequilibrium/vertigo, and cognitive impairments, were permanent. Crucially, the Tribunal determined that the Applicant had a substantially reduced functional capacity in the domains of social interaction and self-care. The Tribunal applied the principles from *Foster* to assess the Applicant's functional capacity holistically across the defined domains.

The Tribunal set aside the NDIA's decision and substituted a new decision. It found that the Applicant met the disability requirements under section 24 of the National Disability Insurance Act 2013 (Cth), and therefore met the access criteria under section 21 of the Act. Consequently, the Applicant was deemed eligible to be a participant in the NDIS.