NDIS: Morbid obesity not an access criteria impairment

Schwass and National Disability Insurance Agency [2019] AATA 28 concerned an application for review of a plan, by a person suffering from morbid obesity and osteoarthritis. The NDIA had determined that he was ineligible and ultimately the Tribunal upheld that decision.

At [37] the Tribunal held:

There is no evidence that a diagnosis of morbid obesity necessarily entails a loss of, or damage to, a physical, sensory or mental function. Such a diagnosis is made when an individual’s weight falls within a particular range. This of itself is not reflective of any loss of or damage to the body’s function; it is simply a term that is used to describe a particular state of the body, a state which may be temporary. Morbid obesity could itself be a symptom of an impairment, but there is no evidence in Mr Schwass’s case that his obesity is caused by some other condition which might be described as an impairment. The obesity results in a disability within paragraph (a), but is not itself an impairment, nor is it caused by an impairment.

The permanence of obesity was also discussed, with the Tribunal  noting that the applicant had not fully explored an obesity clinic program or bariatric surgery.