A Federal Court NDIS decision exposed the vulnerabilities of NDIS decision making- including what is determined accessible mainstream supports. Highlighting and exposing the need for ndis to reconsider what it determined was ‘accessible’ mainstream supports for participants. Once again we have courts highlighting the need for a bridge between policy, legislation and its actual applicability and implementation in the real world. Perhaps this further highlights the need for ndis decision making delegates to have had exposure to the true reality of living with a disability.
The National Disability Insurance Agency (NDIA) appealed a landmark decision by the Administrative Appeals Tribunal (AAT), which had overturned its refusal to grant Ms. Karen Davis access to the National Disability Insurance Scheme (NDIS) (Davis and National Disability Insurance Agency [2022] AATA 40).
The Tribunal found that Ms. Davis experienced multiple, debilitating impairments, including musculoskeletal issues (degenerative impingement of both shoulders and bilateral knee osteoarthritis), digestive function (colitis), sensory function (chronic pain), and cardiovascular function (obstructive sleep apnoea). These conditions severely impacted her day-to-day life.
The NDIA, however, argued that Ms. Davis’s impairments were not permanent, as there were “known, available, and appropriate” treatments that might alleviate her conditions. These treatments, such as bariatric surgery, psychological counseling, and dietary interventions, were cited by the NDIA as possible remedies.
In its ruling, the Tribunal highlighted the central issue of Ms. Davis’s access to necessary treatments. Despite the theoretical availability of these treatments, the Tribunal found that financial constraints and the lack of affordable, appropriate care made them effectively inaccessible to Ms. Davis.
This decision not only underscored the financial barriers faced by many people with disabilities but also called attention to the gap between theoretical accessibility and real-world limitations.
Justice Mortimer of the Federal Court, who has previously adjudicated several high-profile NDIS cases, considered the legal framework under which the NDIA had denied Ms. Davis access to the NDIS. The Court examined the meaning of “known, appropriate, and available” treatments, clarifying key distinctions:
The Court made an important shift by acknowledging that affordability is an integral aspect of “availability.” This shift marks a significant departure from the NDIA’s prior, narrower interpretation of accessibility, recognizing that treatments theoretically available may, in practice, be out of reach for many due to socio-economic constraints.
The Court also clarified the meaning of ‘permanent’ impairment and ‘remedy’, emphasising that an impairment need not be “cured” but must be enduring enough to require continuous support. A remedy, therefore, is not a quick fix but a substantial improvement.
While the Court ruled in Ms. Davis’s favor on substantive grounds, it determined that the NDIA had not been afforded procedural fairness in the original Tribunal decision. The Tribunal had not sufficiently considered the financial barriers in the case, and the Court therefore remitted the matter back to NDIS for redetermination.
The Court’s judgment holds far-reaching implications for NDIS policy, particularly concerning how access to the scheme is determined. The ruling signals a critical shift toward a more holistic assessment of an individual’s circumstances, factoring in financial barriers, geographic limitations, and access to appropriate healthcare services.
However, this approach introduces significant risks. While intended to consider the lived realities of people with disabilities, it may inadvertently introduce means testing into the NDIS, a departure from its original model as a universal support system.
This case highlights the growing tensions between the NDIS and mainstream services, especially in the context of underfunded healthcare systems. The Productivity Commission’s 2011 report, which laid the foundation for the NDIS, emphasised that the scheme should not serve as a substitute for mainstream services. However, the Court’s decision reveals how gaps in mainstream healthcare—particularly around affordability—are forcing the NDIS to bear the burden of systemic shortcomings.
For participants, this ruling is concerning. It sets a dangerous precedent: access to NDIS supports could hinge on treatments that are theoretically available but practically inaccessible due to financial, geographic, or systemic barriers. This introduces a bureaucratic loophole where participants may be denied support despite being unable to access the very treatments deemed available to them.
Such an outcome undermines the foundational principles of the NDIS: choice, control, and access to the supports needed to live an independent life. The judgment also raises questions about the NDIA’s responsibility to consider systemic inequalities and the real-world challenges faced by individuals when making decisions about access.
While the Court’s decision provides legal clarity on key terms in the NDIS Act, it exposes a critical flaw in the scheme’s operational framework: a gap between policy and practice. Something those who have dealt with the system know only too well. The ruling underscores the need for urgent reform to ensure that participants are not left vulnerable to procedural loopholes, financial inaccessibility, and the inadequacies of mainstream services.
This case also illustrates the broader tensions between legal interpretations, NDIS policy, and the lived realities of participants, carers, and families, highlighting the challenges of implementing these policies in the real world. It reinforces the need for continuous evaluation and adaptation of the NDIS to create a truly inclusive and equitable system that is practical and accessible for all Australians with disabilities.
