NDIA vs Davis

By Chris Coombes DSC

22 November 2022 Over the past year, the spotlight has been on planning: cuts, independent assessments, and the rise in Administrative Appeals Tribunal (AAT) matters. Backstage, access to the Scheme has quietly been widened for a whole new cohort of people. Knowing who can access the Scheme matters. In the dry desert of virtually no support for NDIS-ineligible disabled people, the stakes around access to the NDIS feel particularly high. For providers, changes to who can access the NDIS might inform how they operate in the market. Those invested in the sustainability and reach of this world-class Scheme will also be paying attention. This big – yet barely publicised – change to NDIS access came this year from a Federal Court decision known as NDIA v D. In late August, the Federal Court clarified the meaning of two words –“available” and “remedy” – as they relate to accessing the NDIS. So much more than a battle over the meanings of words, this decision widens the threshold of people eligible for the Scheme. Some disabled people who were previously unable to enter the NDIS are now able to do so. Let me explain how.

Establishing that a disability is permanent

Before we look at the impact of the decision, it’s necessary to understand how disability permanence is established for the purposes of NDIS access. One eligibility criterion laid out in the NDIS Act is that an applicant has impartments which “are, or likely to be, permanent”. When considering whether a condition is permanent, Rule 5.4 in the NDIA’s Becoming a Participant Rules requires the NDIA to confirm that “there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment” (emphasis added).

Does the treatment need to be a cure?

What the flip does “remedy” actually mean in NDIS-ese? And why does this matter to anybody who doesn’t work for the Oxford English Dictionary? What the NDIA thought “remedy” meant In the past, the NDIA’s Operational Guidelines defined the word “remedy” to mean that a treatment would likely “relieve” someone’s impairment. After more dictionary checks than a game of Scrabble with grandma, the Federal Court took a different view. What “remedy” actually means The Federal Court decided that in this context, “remedy” actually means “something approaching removal or cure of the impairment”. Why is this big? Showing the NDIA that a recommended treatment will not cure or remove the impairment(s) is a much lower bar, compared to showing that a recommended treatment will not relieve the impairment(s). Previously, the NDIA access team may have skimmed someone’s access request to see any if there were any unex-

plored treatments that might simply improve or relieve the impairments. But their actual task, according to the Federal Court, is to see whether these treatments would nearly cure or remove the impairment. This clearing up of “remedy” opens the doors to NDIS eligibility much wider.

Is the treatment really available if [insert barrier here]?

The Federal Court also heard much debate about the meaning of the word “available”. Once again, what it found has vast ramifications for people seeking access. What the NDIA thought "available” meant The second way this decision widened the doors to NDIS eligibility was in clarifying the word “available”. Previously, “available” treatment was interpreted to mean that there was a treatment which a person could theoretically access. What “available” really means The Federal Court clarified that “available treatment” means “what treatments an individual can, in reality, access”. There are many reasons why someone can’t really access a treatment. The Federal Court offered examples of people who might not be able to access a treatment because of their mental health, geographic location, or proximity to treatment. In this particular case, the person told the Court and the NDIA that they could not afford the treatment. Let’s zoom in on what this means for people trying to access the NDIS. One cohort the decision is likely to benefit is people with psychosocial disabilities. The Court gave a hypothetical example of someone with agoraphobia, which makes it psychologically impossible, or at best extremely difficult, to leave home. If this person wanted to access the NDIS, the NDIA now needs to consider what treatments are, in reality, available to them in their specific circumstances. One could think of any number of other reasons why a person would be unable to access a treatment that would likely remedy their impairment. A person might be in prison or a closed setting that prevents them from leaving to obtain recommended treatment. A psychiatrist might have full waitlists. There are often psychological or physical barriers to taking medication. Or there may not be a local multidisciplinary pain clinic, even though attending one was recommended in a report. These examples, like those offered by the Federal Court, need to be assessed on a case -by-case basis. Each person in this situation wanting to test access should seek legal advice from legal aid or an advocate (see links below). And the NDIA may still ask for loads of evidence to establish that a treatment is in fact unavailable. But because the court has invited participants to describe their treatment reality, the doors to support are now much more open.

Is this a means test?

In clarifying “available”, the decision raised some questions about the Scheme’s design. Since the NDIS is universal (meaning access is not based on a person’s income or wealth), the NDIA argued that the reinterpretation of “available” treatment to consider someone’s ability to afford treatment impacts the universality of the Scheme by effectively adding a means test in certain cases. The judge pointed out that this problem existed before NDIA v D even if the NDIA were usng a broader interpretation of the word “available”.