The Tribunal’s Decision

The National Disability Insurance Agency (NDIA) appealed a decision of the Administrative Appeals Tribunal (the Tribunal) which set aside its decision to refuse Ms Karen Davis access to the NDIS (Davis and National Disability Insurance Agency [2022] AATA 40).

The Tribunal found that Ms Davis had impairments relating to her musculoskeletal and movement functions (degenerative impingement of both shoulders and bilateral knee osteoarthritis), digestive function (colitis), sensory function (chronic pain) and cardiovascular function (obstructive sleep apnoea).

The NDIA contended that Ms Davis’ impairments were not permanent, for the purposes of s 24(1)(b) of the National Disability Insurance Scheme Act 2013 (NDIS Act), because there were known, available and appropriate treatments that would be likely to remedy the impairment (r 5.4 of the Rules). Specifically, the NDIA relied on evidence which suggested Ms Davis’ impairments would improve if she lost weight by undergoing bariatric surgery or engaging in treatments or interventions such as psychological counselling or a diet recommended by a dietician.

Of relevance to the subsequent appeal, the Tribunal found (emphasis added):

[117] [Given her current state, Ms Davis] requires closely supervised, intensive and sustained dietary control and exercise programs, consistent with the recommendations by Ms Ferguson. Based on these matters, the Tribunal considers that the maximum number of funded sessions available to her under the Medicare scheme, is insufficient to conclude that Ms Davis has available to her, given her strained financial circumstances, the level of allied health and other health services required by her … Ms Davis gave unchallenged evidence about her limited financial means. Her income is limited to the [Disability Support Pension] and has been for a long time… The Tribunal infers from these facts that it is likely that Ms Davis was, and still is, unable to afford to have access to a closely supervised, intensive and sustained dietary control and exercise programs.

[118] The Tribunal considers that closely supervised, intensive and sustained dietary control and exercise programs are both appropriate treatments for Ms Davis’s impairments involving her physical and sensory impairments. However, the Tribunal isnot satisfied that those treatments are “available” to Ms Davis, on account of her financial position. The Tribunal is satisfied that Ms Davis would not be able to afford such programs, if they were delivered at an intensity required to maintain Ms Davis’s safety, and to stand any real prospect of achieving significant weight loss by her.

The Court’s Judgment

The NDIA’s appeal was heard by Justice Mortimer, who decided McGarrigle and National Disability Insurance Agency [2017] FCA 308 and Mulligan and National Disability Insurance Agency [2015] FCA 544 and was a member of the Full Court in National Disability Insurance Agency v WRMF [2020] FCAFC 79.

The Federal Court considered the meaning of ‘known, appropriate and available’ treatment in r 5.4 and explained at [137] – [139]:

• ‘known’ connotes a treatment which can be identified by Australian medical practitioners as a suitable treatment for the person’s particular impairment.
• ‘appropriate’ connotes a treatment which has a capacity to ‘remedy’ the impairment and is suitable for the particular individual concerned to undergo.
• ‘available’ should be understood as meaning available to a particular individual.

With respect to whether treatment is ‘available,’ Justice Mortimer said:

[139] … in my opinion, the adjective ‘available’ should be understood as directed at what treatments an individual can, in reality, access. Whether a person can afford a treatment will form part of the factual circumstances a decision-maker may need to examine in deciding if a treatment is one that an individual can in reality access.

The Court noted that affordability may not be the only relevant consideration in determining whether an individual can access treatment and gave the example of individuals in remote communities. In other words, ‘availability’ of treatments should be assessed on an individual basis, taking into account the person’s living situation, location and financial situation. The Court described this as a common sense approach consistent with that established in Dragojlovic v Director-General of Social Security [1984] FCA 6, which concerned the term ‘permanent impairment’ in the Social Services Act 1947.

The Court also clarified the meaning of ‘permanent’ and ‘remedy’ for the purpose of access to the NDIS:

[130] … The phrase ‘permanent impairment’ in s 24(1)(b) means an impairment which is of an enduring nature. In other words, the question for the decision-maker is whether the impairment(s) experienced by an individual (rather than the cause of the impairments or the specific diagnoses made about a medical condition) has or have an enduring quality so as to require supports funded and/or provided under the NDIS Act on an ongoing basis.

[136] … In this context, ‘remedy’ should be understood to mean more than just relieve or improve. That is because r 5.5 recognises that an impairment may be permanent notwithstanding the severity of its impact on a person may fluctuate, or there are prospects for improvement. These changes in the impacts of an impairment may occur because of, amongst other matters, treatment. Therefore, in r 5.4 the word ‘remedy’ should be understood to mean something approaching a removal or cure of the impairment…

While the Court found in favour of Ms Davis on the substantive grounds raised on appeal, Justice Mortimer agreed that the NDIA had not been afforded procedural fairness by the Tribunal. Specifically, the Tribunal’s decision turned on the affordability of treatment for Ms Davis, an issue which the parties had not been provided a reasonable opportunity to address. As such, the Court set aside the Tribunal’s decision and remitted the matter to the Tribunal for redetermination in accordance with law.

The Court’s judgment clarifies the approach to determining whether there are ‘known, available and appropriate’ treatments for the purpose of determining if a person’s impairments are, or are likely to be, permanent. Arguably, the Court’s interpretation represents a divergence from the NDIA’s position and the Productivity Commission’s report of 2011 which underpinned the NDIS. The Productivity Commission report made it clear that the NDIS was not to respond to shortfalls in mainstream services by providing its own substitute services as to do so would weaken the incentives of governments to properly fund mainstream services. This view has been adopted in the Administrative Appeals Tribunal (see Young and National Disability Insurance Agency [2014] AATA 401 at [41]). The Court’s approach may also indirectly introduce a means test into the scheme, which was clearly not intended by the legislature.

Justice Mortimer also questioned the validity of rules 5.4 and 5.6, noting that they act in an exclusionary manner, whereas the rule making power in s 27(a) of the NDIS Act authorises rules to be made which set out circumstances where an impairment will be permanent, rather than when it will not be [73].

For now, and subject to any further clarification from the courts, determining whether there are ‘available’ treatments will involve consideration of whether the treatments are realistically available to the individual, having regard to a range of factors, including the affordability of that treatment. This may include considering whether the required treatment is available or subsidised through Medicare or other mainstream services, and whether the person’s needs extend beyond what is available through those streams.

Further information / assistance regarding the issues raised in this article is available from the authors, Christine Houston, Partner, Jordan Sacco, Senior Associate, Moesha Warner, Lawyer or your usual contact at Moray & Agnew.