AAT Case Management Guide

Access to the NDIS

OFFICIAL For Internal Use Only

Field	Content	Reference Documents
Title	Access to the NDIS
Purpose	This document is part of a suite of guidance documents for case managers to use in formulating their approach to managing individual cases before the Administrative Appeals Tribunal (AAT).
Scope	This Guide outlines the eligibility requirements which all prospective participants seeking access to the Scheme are required to meet. This Guide applies nationally to the conduct of all matters within the AAT Case Management Branch.
Escalation to Hearing Oversight Committee (HOC)	If a matter is within the parameters of this document, the AAT Case Management Branch Manager may approve proceeding to hearing. Where there is substantial risk or the matter is outside the parameters of this document, the matter should be referred to HOC.
Current National Disability Insurance Agency (NDIA) policy on the subject	The AAT process is often seen as stressful and adversarial by prospective participants and our focus should be on resolving issues as practically and quickly as possible. The role of the NDIA is to assist the AAT and the prospective participant in reaching the most appropriate resolution for the prospective participant by agreement.
A person is eligible for access to the Scheme if they meet the criteria in ss 21–25 of the NDIS Act 2013. Within the context of an AAT proceeding, the primary issue before the Tribunal will usually be whether the prospective participant meets either:

• Disability Requirements in section 24 When this is the case, the issues for determination by the AAT are whether:
• o the prospective participant has a disability which is attributable to an impairment; o the impairment is likely to be permanent; o the impairment substantially reduces the prospective participant’s functional capacity; o the impairment affects their ability to work, study or take part in their social life; and | NDIA Dispute Resolution Policy Appendix B to the Legal Services Directions 2017 Operational Guideline – Applying to the NDIS Sections 21–25 of the National Disability Insurance Scheme Act 2013 Rules 5, 6 and 7 of the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 Do you meet the disability requirements?

AAT Case Management Guide

Access to the NDIS

OFFICIAL For Internal Use Only

	o the prospective participant is likely to need the support of the Scheme for their lifetime.
• Early Intervention Requirements in section 25 When this is the case, the issues for determination by the AAT are whether:
	o the prospective participant has an impairment which is likely to be permanent;
o early intervention supports are likely to benefit the prospective participant and reduce their need for future supports; and
o the early intervention needed is most appropriately funded through the NDIS.

| Does your impairment substantially reduce your functional capacity? Does your impairment affect your social, work or study life? Do you need early intervention?

Disability Requirements in section 24

Section 24(1)(a) will be met where there is evidence that a prospective participant has a disability, which can be attributed to one or more impairments. A person has a disability if they have a reduction or loss of an ability to perform an activity, or a reduced capacity to carry out daily life activities and tasks. An impairment can be intellectual, cognitive, neurological, sensory, psychological or physical. It is possible for a person to have a permanent impairment, without necessarily having a disability. Diabetes and epilepsy are common examples. However, diabetes may lead to a disability if there has been an amputation or peripheral neuropathy, and epilepsy may lead to a disability if there is a cognitive deficit or acquired brain injury resulting from frequent or severe seizures. Note: The role of Case Managers and the AAT is to consider whether the evidence confirms an impairment to which a disability can be attributed, even if that impairment is not the claimed diagnosis.

Section 24(1)(b) will be met where there is evidence that the impairment is, or is likely to be, permanent. When considering the likely permanence of an impairment, it is necessary to assess the availability and suitability of evidence-based treatment options.

Section 24 of the National Disability Insurance Scheme Act 2013

Rule 5 of the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 List A: Conditions that are likely to meet the disability requirements List B: Conditions that are likely to result in a permanent impairment

AAT Case Management Guide

Access to the NDIS

OFFICIAL For Internal Use Only

An impairment is only likely to be permanent where there are no other known, available and appropriate treatment options likely to remedy the impairment (rule 5.4) – even if the impact of the impairment may fluctuate, or improve over time (rule 5.5). Further, some impairments require medical treatment and review before a determination can be made as to whether they are likely to be permanent (rule 5.6). Degenerative impairments are also likely to be permanent if treatment options are, or are unlikely to, improve the impairment (rule 5.7).

A mere assertion that an impairment is likely to be permanent is insufficient. Case Managers should seek specific and detailed evidence concerning the suitability and availability of treatment options and, where necessary, seek technical advice from the Technical Advisory Branch (TAB).

Note: Non-compliance with treatment (such as not taking medication) is fairly common among prospective participants with psychosocial impairment. This alone is generally an insufficient basis upon which to conclude that treatment options are inappropriate or unavailable.

Section 24(1)(c) will be met where there is evidence that the impairment substantially reduces functional capacity in one or more of the following activities (each comprising a number of tasks):

• communicating;
• socialising;
• learning;
• mobility;
• self-care; and/or
• self-management. A prospective participant’s functional capacity is substantially reduced if they are unable to participate effectively or completely in the activity – with or without assistive technology, equipment (excluding commonly used items such as glasses), home modifications, or the help of another person. Case Managers should closely consider the following:

AAT Case Management Guide

Access to the NDIS

OFFICIAL For Internal Use Only

• Is a current (within the last 12 months) functional capacity assessment available?
• What does the person need assistance to complete? How often is assistance needed?
• Is the length of time it takes a person to complete an activity unreasonable?
• Is there a substantial reduction in functional capacity in between episodic impairments?
• What does a typical day look like, and what can be achieved with additional support?
• Is the support imperative, or merely beneficial (for example, house cleaning)?
• Is the evidence self-reported, or subject to formal observation and assessment?

Section 24(1)(d) will generally be met, unless there is clear evidence that the prospective participant has full time employment and a broad social network. It is unlikely that a matter before the AAT will turn on the questions raised by section 24(1)(d).

Section 24(1)(e) – which requires that the person is likely to require lifelong support – cannot be met unless sections 24(1)(b) and (c) are also met. Section 24(1)(e) also requires consideration as to whether the support needed is most appropriately funded by the NDIS. Where a prospective participant does not meet the disability requirements in section 24 – and in particular, section 24(1)(e) – consideration should turn to whether that person meets the early intervention requirements in section 25.

Early Assessment Requirements in section 25

Section 25 of the National Disability Insurance Scheme Act 2013 Rule 6 of the National Disability Insurance Scheme (Becoming a Participant) Rules 2016

When considering the likely permanence of an impairment, it is necessary to assess the availability and suitability of evidence-based treatment options.

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AAT Case Management Guide

Access to the NDIS

OFFICIAL For Internal Use Only

An impairment is only likely to be permanent where there are no other known, available and appropriate treatment options likely to remedy the impairment (rule 6.4) – even if the impact of the impairment may fluctuate, or improve over time (rule 6.5). Further, some impairments require medical treatment and review before a determination can be made as to whether they are likely to be permanent (rule 6.6). Degenerative impairments are also likely to be permanent if treatment options are, or are unlikely to, improve the impairment (rule 6.7).

A mere assertion that an impairment is likely to be permanent is insufficient. Case Managers should seek specific and detailed evidence concerning the suitability and availability of treatment options and, where necessary, seek technical advice from the Technical Advisory Branch (TAB).

Note: Non-compliance with treatment (such as not taking medication) is fairly common among prospective participants with psychosocial impairment. This alone is generally an insufficient basis upon which to conclude that treatment options are inappropriate or unavailable.

Section 25(1)(b) will be met where there is evidence that the provision of early intervention supports is likely to reduce the need for future supports.

Section 25(1)(c) will be met where there is evidence that the provision of early intervention supports will benefit the prospective participant by:

• mitigating the impact of their impairment on their functional capacity; or
• improve or prevent the deterioration of their functional capacity; or
• strengthen the sustainability of informal supports available to the person.

Section 25(3) will be met where the early intervention support needed is most appropriately funded or provided the NDIS, and not through any other system of service delivery or support offered:

• as part of a universal service obligation; or

AAT Case Management Guide

Access to the NDIS

OFFICIAL For Internal Use Only

• in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.

To consider a prospective participant’s eligibility to access the Scheme, the NDIA requires recent evidence from a health care professional which confirms a prospective participant’s disability, its impacts on their functional capacity, previous treatments, and outcomes, as well as future treatment options and expected outcomes. A table of the preferred tools when indicating the severity of a participant’s impairment is contained at Annexure A – Severity Indicator: Preferred Tools. It is important that the professional giving evidence is the most appropriate person to provide that evidence, and that they have treated the prospective participant for a significant period of time.

There is not a blanket ‘yes’ or ‘no’ response to the question of whether individuals with chronic health conditions should be permitted access to the Scheme. It is important that each matter is determined on its own merit, based on the available evidence. The response will primarily rely on whether the Scheme is the most appropriate system to fund an individual’s disability support needs.

The availability and suitability of other treatment options is wholly dependent on a prospective participant’s individual circumstances. An impairment is only likely to be permanent where there are no other known, available and appropriate treatment options likely to remedy the impairment (rules 5.4 and 6.4). Relevantly, the Federal Court clarified that a treatment option is:

• known, if it can be identified by an Australian medical practitioner as a potential treatment for a particular impairment; and
• appropriate, if it has the capacity to remedy the impairment, and it would be suitable for a particular prospective participant; and
• available, if it is available and accessible to a particular prospective participant

AAT Case Management Guide

Access to the NDIS

OFFICIAL For Internal Use Only

(accounting for potential personal, financial and geographical limitations).
When considering whether a prospective participant’s functional capacity is substantially reduced, a decision-maker is required to make a ‘functional, practical assessment of what a person can and cannot do’. ‘Undertaking a task… differently to others will not necessarily mean a person cannot participant effectively or completely in an activity’.	[NDIA v Foster][2023] FCAFC 11
Document admin	Quality, Reporting, Strategy and Training
Approved	Branch Manager, AAT Case Management

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AAT Case Management Guide

Access to the NDIS

OFFICIAL For Internal Use Only

Annexure A – Severity Indicator: Preferred Tools

Primary Disability	Severity Indicator (by order of preference)
Acquired Brain Injury	1. Care and Need Scale (CANS) (aged 17 years and over)

2. World Health Organisation Disability Assessment Schedule (WHODAS) 2.0 (aged 17 years and over)
3. PEDI-CAT (16 years and under) | | Autism | 1. Diagnostic and Statistical Manual of Mental Disorders, fifth edition (DSM-V)
4. Vineland Adaptive Behavioural Scale (Vineland-II)
5. World Health Organisation Disability Assessment Schedule (WHODAS) 2.0 (aged 17 years and over)
6. PEDI-CAT (16 years and under) | | Cerebral Palsy | 1. Gross Motor Functional Classification Scale (GMFCS)
7. Manual Ability Classification Scale (MACS)
8. Communication Function Classification System (CFCS) | | Hearing Impairment | 1. Hearing Impairment Responses and Groupings Guide (aged 17 years and over)
9. PEDI-CAT (aged 16 years and under)
10. Hearing Acuity Score | | Intellectual Disability (including Developmental Delay and Down Syndrome) | 1. Diagnostic and Statistical Manual of Mental Disorders, fifth edition (DSM-V)
11. Vineland Adaptive Behavioural Scale (Vineland-II)
12. World Health Organisation Disability Assessment Schedule (WHODAS) 2.0 (aged 17 years and over)
13. PEDI-CAT (16 years and under) | | Multiple Sclerosis | 1. Disease Steps
14. Patient Determined Disease Steps (PDDS)
15. Expanded Disability Status Scale (EDSS) | | Psychosocial Disability | 1. World Health Organisation Disability Assessment Schedule (WHODAS) 2.0 (aged 17 years and over)
16. PEDI-CAT (16 years and under)
17. Health of the Nation Survey (HONOS)
18. Life Skills Profile – 16 Item (LSP-16) | | Spinal Cord Injury | 1. Level of Lesion to indicate where on the spine the injury has occurred – and – American Spinal Injury Association Impairment Scale (ASIA/AIS) to measure the completeness of the injury |

AAT Case Management Guide

Access to the NDIS

OFFICIAL For Internal Use Only

Stroke	Modified Rankin Scale (mRS)
Vision Impairment	Vision Impairment Questionnaire (aged 17 years and older) or PEDI-CAT (aged 16 years and under)
Other	World Health Organisation Disability Assessment Schedule (WHODAS) 2.0 (aged 17 years and over)

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