The National Disability Insurance Agency (NDIA) argued to reject a 64-year-old Aboriginal man who relied on a “homemade walking stick” to get into the shower from joining the NDIS, saying he could instead get aged care services at an earlier age.
The argument put forward by the agency was rejected as “extraordinary” by administrative appeals tribunal (AAT) member Simon Webb in a judgment published last week.
Webb said the man was eligible for the scheme, granting him access four years after he had first sought support from the NDIS for a range of physical and psychiatric conditions.
The man, known only as JLZT and who lives on the disability support pension, had a history of neglect and sexual abuse as a child and “compounding life traumas as an adult”, according to Webb’s judgment.
He is now 68 years old but was 64 when he first applied for the scheme. Under the NDIS, people over the age of 65 are not eligible to enter the scheme, a rule that some people have been calling on the government to change.
The AAT was reviewing the agency’s decision to deny him support at 64 years old, meaning if the original NDIA decision was found to be incorrect, he was still able to get NDIS support.
Webb outlined what he described as an “extraordinary” claim from the NDIA in his judgment.
Noting that under section 24(e) of the NDIS Act, an applicant must prove they are likely to require support under the scheme for life, Webb said: “In JLZT’s case it was suggested that, as an Aboriginal person, JLZT may be eligible for the provision of support under the commonwealth My Aged Care program prior to pension age, at age 50 or 55, and this would mean the threshold in s24(1)(e) cannot be met.”
“This submission must be rejected,” Webb said. “It proceeds on the rather extraordinary basis that any person who may at some point in their life become eligible for the provision of support under the My Aged Care program is to be excluded from the scheme.
“The same result would apply were a person … potentially eligible at some point in the future for any other program or service that provides supports or assistance for people with disability.”
The case comes amid increasing concern from disability advocates and NDIS participants about the agency’s decision-making, with data showing a 400% increase in NDIS appeals to the AAT.
Labor has also raised concerns about the agency’s spending on legal fees, noting it paid out $17.3m in 2020-21 to firms representing the agency in “external matters”, up from $13.4m the previous year.
An NDIA spokesperson said the agency had initially found the man did not meet the access criteria, including “permanence of impairments and substantial reduction in functional capacity”.
The spokesperson suggested the argument the man was ineligible because he could access aged care was not raised in its written submissions, only at the later hearing.
“At the substantive hearing, the suggestion that the application may be eligible for aged care support was raised in the context of s24.1(e), that is the requirement for lifetime support from the NDIS, which must be satisfied for access to be granted,” he said.
Darren O’Donovan, an administrative law expert at La Trobe University, said the case had serious implications.
He said the NDIA had argued that “if a person can or will rely on another service system in the future, it has the discretion to refuse them from the scheme”.
“Even where a person’s disability is permanent and severe, it argued it had a discretion to say NDIS access was inappropriate as the person may get support somewhere else,” he said.
O’Donovan said the agency should “publicly disavow its approach and review any cases where this interpretation was the sole basis for refusing access”.
Webb also found the agency had “misconstrued” the legislation.
In his judgment, Webb said the man in question had first applied for the scheme in 2017, but was knocked back.
He applied again in 2018 with supporting evidence from his GP but was again rejected.
Subsequent reviews also upheld the rejection decision, culminating in the AAT hearings before Webb in early March.
Webb said the evidence showed that the man had suffered from chronic neck, thoracic and lower back pain, and right knee osteoarthritis.
He also suffered psychiatric conditions including major depressive disorder, post-traumatic stress disorder, chronic psychosis associated with a schizoaffective disorder or schizophrenia, and a paranoid personality disorder.
Webb found the man had reduced capacity in a range of areas including with mobility, practical tasks, communication, learning and social interaction.
He reportedly relied on a “homemade suspended walking stick” as a “substitute grab-rail to facilitate transfers into and out of the shower”, which was over the bath at his home. His mobility issues also made it hard for him to use the toilet.
“JLZT’s use of such aids raises safety concerns, especially as JLZT lives alone and is socially isolated,” Webb said the evidence suggested.
NDIS participants can apply for assistive technology and home modifications once approved for support.
The NDIA spokesperson said the agency was “considering the AAT decision”.
“We are implementing the outcome of the AAT decision – while we consider the decision,” the spokesperson said.
