NDIS: Substantially reduced functional capacity & financial sustainability

Kilgallin and National Disability Insurance Agency (General) [2017] AATA 186 required the AAT to review a decision of the NDIA that Mr Kilgalliin (K) did not qualify to become a participant in the NDIS. K had been diagnosed by a psychiatrist as being affected by obsessive compulsive disorder; major depressive disorder; autistic spectrum disorder; and mixed personality disorder with cluster A and C type personalities (at [3]).

In issue was whether K met the section 24(1) disability requirements of the National Disability Insurance Scheme Act. It was accepted that K had a disability (subsection 1a) which was likely to be permanent (subsection 1b) affecting his capacity for social or economic participation (subsection 1d). Remaining for determination was the subsection 1c requirement:

…the impairment or impairments result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the following activities: communication, social interaction, learning, mobility, self-care, self-management.

There was a particular focus on the extent to which Mr Kilgallin’s impairments resulted in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, in particular, social interaction: (at [8]).

Having reviewed the evidence, the Tribunal was not persuaded that K had a substantially reduced functional capacity.

The Tribunal commented on a submission from the NDIA as to the potential impact on the financial sustainability of the NDIS had K been found to qualify, (impliedly on the lack of clear evidence in that regard) saying at [28]:

The Tribunal heard submissions from the respondent with respect to the financial sustainability of the NDIS and the potential financial impact to the scheme of permitting applicants with conditions similar in nature to that of Mr Kilgallin to become participants. The Tribunal accepts, pursuant to other sections of the Act, that it has an overarching responsibility to ensure its decision does not significantly erode the overall financial viability of the NDIS. However in the absence of any specific information about what a decision to include a person such as Mr Kilgallin in the scheme might mean for the financial sustainability of the scheme, the Tribunal is unable to form an opinion as to exactly what impact a decision of that kind would have on its financial sustainability. The Tribunal therefore notes the obligation, but does not consider it to be a factor favouring or disfavouring the Applicant on this occasion.




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