Whittaker and National Disability Insurance Agency

The Administrative Appeals Tribunal considered the case of Whittaker and the National Disability Insurance Agency. The dispute concerned whether a settlement sum received by the applicant from a personal injury claim constituted "compensation" for the purposes of the National Disability Insurance Scheme (NDIS) Act 2013 (Cth). The applicant argued that the sum was a "compromise sum" and not "compensation" as defined by the Act, particularly as the court order sanctioning the settlement did not use the term "compensation."

The Tribunal was required to determine if the applicant's settlement payment fell within the definition of "compensation" under section 11 of the NDIS Act. This definition includes payments made in respect of compensation or damages for personal injury, in settlement of a claim, where the claim is wholly or partly in respect of the cost of supports that may be provided to a participant. The Tribunal also had to consider whether the decision to apply a reduction to the applicant's funded supports on account of this settlement amount was correct or preferable.

The Tribunal rejected the applicant's submission, finding it uncontroversial that a compromise arises from a claim. In this instance, the claim was for damages due to personal injuries sustained in an accident, and the settlement sum was therefore in the nature of compensation for those injuries. The Tribunal noted that the settlement order, while referring to a "settlement sum," was consistent with the NDIS Act's Compensation Operational Guidelines, which anticipate claims from individuals who later become NDIS participants. Crucially, the applicant acknowledged that the claim was for damages for personal injury, at least partly in respect of NDIS-type supports. As the applicant received a payment in respect of his damages claim, and a number of the claimed heads of damage were in the nature of supports that may be provided under the NDIS, the payment fell within the definition of "compensation" under section 11(1) of the NDIS Act. The Tribunal therefore found that the decision to apply a reduction to the funded supports was correct.