Yang and National Disability Insurance Agency

This matter concerned an application for access to the National Disability Insurance Scheme (NDIS) by Mr Yang, who sought to challenge the decision of the National Disability Insurance Agency to refuse his application. The primary dispute before the Administrative Appeals Tribunal was whether Mr Yang had permanent impairments as required for access to the scheme.

The legal issues before the Tribunal were whether Mr Yang met the requirements for access to the NDIS, specifically whether he had a disability as defined by the NDIS Act, and crucially, whether any such impairment was permanent or likely to be permanent. The Tribunal was required to consider the evidence presented by Mr Yang and the relevant NDIS Rules concerning the permanency of impairments.

The Tribunal considered the provisions of section 24 of the NDIS Act and the NDIS Rules regarding permanency. Rule 5.4 states that an impairment is permanent only if there are no known available and appropriate evidence-based treatments likely to remedy it. Rule 5.5 clarifies that an impairment can be permanent even if its impact fluctuates or improves. The Tribunal was satisfied by the medical evidence that Mr Yang had a disability attributable to a psychiatric condition. However, in assessing permanency, the Tribunal noted that Mr Yang's presentation to a mental health service in late 2018, which largely accorded with his evidence, indicated that by the end of 2019 he was feeling better and healthier, with his feelings of insecurity having resolved. Furthermore, a mental health care plan from October 2020 diagnosed mild anxiety/depression with goals focused on learning strategies for optimal daily functioning, meditation, and relaxation techniques, suggesting that the condition was amenable to treatment and improvement.

Consequently, the Tribunal affirmed the reviewable decision to refuse Mr Yang’s application for access to the NDIS, finding that he had not met the requirement of having a permanent impairment.