Sutherland and National Disability Insurance Agency

This matter concerned an application for review by Ms Sutherland against a decision of the National Disability Insurance Agency (NDIA) to refuse her access to the National Disability Insurance Scheme (NDIS). Ms Sutherland, aged 67, sought access to the NDIS based on a range of physical and psychosocial impairments, including spinal stenosis, chronic obstructive airways disease, hypothyroidism, ischaemic heart disease, ulcerative colitis, chronic pain, depression, and anxiety. The NDIA had previously determined that Ms Sutherland did not meet the NDIS access criteria, specifically the "disability requirements" under section 24 of the *National Disability Insurance Scheme Act 2013* (Cth) (NDIS Act), which requires an impairment to be permanent or likely to be permanent and result in substantially reduced functional capacity.

The Administrative Appeals Tribunal (AAT) was required to determine whether Ms Sutherland met the "disability requirements" for access to the NDIS under section 24 of the NDIS Act. This involved assessing whether any of her impairments were permanent or likely to be permanent, and whether these impairments resulted in a substantially reduced functional capacity in any of the six prescribed activities. The Tribunal also considered whether Ms Sutherland met the "early intervention" requirements under section 25 of the NDIS Act, although the primary focus of the review was on the disability requirements.

The Tribunal's reasoning focused on the evidence presented regarding Ms Sutherland's various medical conditions. It considered reports from her treating general practitioner, specialist medical reports, and an occupational therapist's functional capacity assessment. The Tribunal found that Ms Sutherland's spinal stenosis, chronic obstructive airways disease, and hypothyroidism were likely to be permanent impairments. Furthermore, the Tribunal was satisfied, based on the evidence, that these impairments, individually or in combination, resulted in a substantially reduced functional capacity across several areas, including mobility, self-care, and communication. The Tribunal noted that while Ms Sutherland had been granted interim access to an aged care package, she described it as "grossly inadequate," indicating a need for support beyond what was currently available.

Consequently, the Tribunal set aside the NDIA's decision and substituted it with a decision that Ms Sutherland meets the access criteria under section 21 of the NDIS Act, specifically the "disability requirements" under sections 22, 23, and 24. As a result, Ms Sutherland was granted access to the NDIS.