Sutherland and National Disability Insurance Agency [2024] AATA 411 | Case summary

Administrative Appeals Tribunal of Australia|2024-02-23

For the reasons set out above, the Tribunal is satisfied that Ms Sutherland meets the "disability requirements" under s 24 of the NDIS Act. It is not necessary for the Tribunal to proceed to a consideration of whether she meets the "early intervention requirements" under s 25 of the NDIS Act.
The Tribunal sets aside the Decision Under Review and in substitution, decides that Ms Sutherland meets the access criteria under s 21 of the NDIS Act, specifically, ss 22, 23 and 24 of the NDIS Act, and is to be granted access to the NDIS.

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Ms Heidi Lachs, Regional Disability Advocacy Service (RDAS)

[1] The NDIA lodged a set of documents with the Tribunal, pursuant to its obligations under s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) (T-Documents). Refer T-Documents, T2.

[3] Joint Hearing Tender Bundle ('JHTB'), 170.

[4] By "Interim", Ms Sutherland said she was referring to interim, while she is awaiting an outcome in this application for review.

[11] At the hearing, Ms Sutherland said that at first, they had provided her with a large scooter when she was living in Werribee but then she switched it over to a scooter which "more affordable and could be managed in the back of the car".

[15] T-Documents, T11. "SLE" refers to Statement of Lived Experience.

[33] Refer NDIA's SFIC, [8] - [10].

[34] National Disability Insurance Agency, NDIS Operational Guidelines: Applying to the NDIS (Guidelines, 1 February 2024)

[36] Access Guidelines updated on 26 June 2023, pp. 6-7.

[38] The Tribunal notes that in National Disability Insurance Agency v Davis [2022] FCA 1002 at [64] - [75] that Mortimer CJ raised a question about the validity of Rules 5.4 and 5.6 being exclusionary in effect. No submission was made by either party in this application as to the validity of these two rules.

[39] NDIA's Closing Submissions, [4] - [7].

[42] [2015] FCA 544; (2015) 233 FCR 201, [55]-[56]. Her Honour Justice Mortimer is now the Honourable Chief Justice the Federal Court of Australia.

Disability Insurance Scheme Act 2013

Appeals Tribunal Act 1975

Disability Insurance Scheme (Becoming a Participant) Rules 2016

Beezley v Repatriation Commission [2015] FCAFC 165; (2015) 150 ALD 11

Mulligan v National Disability Insurance Agency [2015] FCA 544; (2015) 233 FCR 201

National Disability Insurance Agency v Davis [2022] FCA 1002

National Disability Insurance Agency v Foster [2023] FCAFC 11

In any case before a merits review tribunal (or a first instance decision-maker), a decision can only be made on the basis of relevant and probative material. The material must be probative of the matters for which the statute provides: see Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; 44 FLR 41 per Deane J. If an applicant does not provide evidence and information sufficient to meet the statutory requirements, an applicant is unlikely to have the statutory power exercised in her or his favour. And unless and until a decision-maker is satisfied, or persuaded, that the requirements are met, then no occasion to exercise the power in favour of an applicant arises. In that sense, as a practical matter, it is not incorrect to say that a person "must satisfy" the requirements in the statute. To say that is not to impose an onus of proof on an applicant, but rather to recognise the operation of the legislative scheme under which the person seeks a benefit or interest: see generally, McDonald v Director-General of Social Security [1984] FCA 59; 1 FCR 354 at 356-357 and 358 (per Woodward J), 366 (per Northrop J) and 369 (per Jenkinson J); Ward v Western Australia [1996] FCA 1452; 69 FCR 208 at 215-218; and Evans v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] FCAFC 81; 289 ALR 237 at [18] and the cases there cited.

Section 24(1)(e) of the NDIS Act requires the Tribunal to be satisfied that Ms Sutherland is likely to require support under the NDIS for her lifetime. The Access Rules do not expand upon how the Tribunal is to interpret this phrase in s 24(1)(e), except to note that Rule 5.1 provides: "In relation to the above, an impairment that varies in intensity (for example because the impairment is of a chronic episodic nature) may be permanent, and the person is likely to require support under the NDIS for the person's lifetime, despite the variation."
The NDIA contends that the Tribunal cannot be satisfied that Ms Sutherland meets this criterion in circumstances where her impairments do not result in substantially reduced functional capacity. The NDIA relies on a decision of another member of this Tribunal in Evans and National Disability Insurance Agency [2019] AATA 754, [38]-[42]. The Tribunal is not bound by other decisions of the AAT. The Tribunal considers the correct approach is to consider and apply each of the criterion under s 24(1) of the NDIS Act based on the wording of each criterion and not to conflate one criterion with another unless prompted to do so by the wording of the criterion, or any applicable rules in the Access Rules.
Section 24(1)(e) of the NDIS Act requires the Tribunal to decide whether Ms Sutherland is likely to require support under the NDIS for her lifetime. The Access Guidelines issued by the NDIA provide the following guidance (underlining emphasis added):

Sutherland and National Disability Insurance Agency [2024] AATA 411 (23 February 2024)

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