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Federal Court Decision to Expand NDIS Eligibility

2 minutes

20 December 2022

Although the NDIA has assisted many people with disability to access the support they need through NDIS funding, there are some Australians who have not been eligible to access the scheme in the past. However, following the Federal Court’s decision known as NDIA v D. in late August, the eligibility requirements are widening allowing some people with disability access to the NDIS who have previously been excluded.

A major eligibility requirement of the NDIS is that a persons’ disability is or is likely to be permanent. In fact, Rule 5.4 in the NDIA’s Becoming a Participant Rules requires the NDIA to confirm that “there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.”

In a recent DSC article by the same title, the DSC broke down the difference between the NDIA definition of the word ‘remedy’ vs. the Federal Court definition.

“In the past, the NDIA’s Operational Guidelines defined the word ‘remedy’ to mean that a treatment would likely ‘relieve’ someone’s impairment.

The Federal Court decided that in this context, ‘remedy’ actually means ‘something approaching removal or cure of the impairment’.” DSC

This clarification means that according to the Federal Court, the role of the NDIA is to determine whether these treatments will nearly cure or remove the impairment. Which essentially means there could be more flexibility with this eligibility requirements moving forward.

Even though this ruling has flown under the radar, it is important to acknowledge its significance and the significance of a Federal Court decision such as this.

The Federal Court sets a precedent that the AAT and the NDIA should follow. This ruling has the potential to open doors for people with disability who have previously been excluded from the scheme. However, only time will tell what impact this ruling will have on the eligibility of people with disability trying to access the scheme.

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