NDIS Eligibility Criteria

Many of the cases dealt with by the Administrative Review Tribunal (ART) (formerly AAT) are reviews of decisions made by the National Disability Insurance Agency (NDIA).  Often those decisions relate to whether a person meets the NDIS eligibility criteria to become a participant of the scheme.  In order to secure NDIS funding, you will have to prove that:

1. you are younger than 65 years of age; and
2. you are an Australian citizen or permanent resident and that you live in Australia; and
3. you have at least one cognitive, intellectual, neurological, sensory, physical or psychosocial disability; and
4. your disability is caused by a permanent loss or significant change to your body’s function, structure or intellect (impairment”); and
5. your impairment substantially reduces your ability to communicate, socialise, learn, be mobile, undertake self-care or self-management, and
6. your impairment substantially affects your social, work or study life; or
7. early intervention supports will help reduce the likelihood of you suffering a permanent impairment; and
8. the early intervention supports would be most appropriately funded by NDIS (as opposed to another service)

The NDIS will only assess your impairment as permanent if there are ‘no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment’.   If you do not agree with the decision, you can ask for an internal review.  If you still do not agree with the NDIA decision, you can appeal to the ART.  Many applicants choose to represent themselves.  History tells us that the AAT rarely overturns the NDIA’s original decision:

• In the case of Soliman and National Disability Insurance Agency [2020] AATA 4478, the AAT upheld the original NDIA decision that whilst Mr Soliman’s lumbar spine, cervical spine and shoulder conditions, together with his depressive disorder, were degenerative disabilities for the purposes of the Act, they were not permanent because conservative measures such as exercise and walking, and physiotherapy, had been recommended in accordance with scientific literature but had not been undertaken by Mr Soliman.
• In the case of Howard and National Disability Insurance Agency [2019] AATA 2, the AAT upheld the original NDIA decision that Mr Howard’s PTDS, Anxiety Disorder and Major Depressive Disorder did not meet the criteria because there was no psychiatric opinion before the Tribunal to confirm Mr Howard had no other treatment options available to him.
• In the case of McFarlane and National Disability Insurance Agency [2018] AATA 4727, the AAT upheld the original NDIA decision that Mr McFarlane’s fibromyalgia did not satisfy the eligibility requirements because there may be treatments to remedy his conditions.

In order to successfully overturn an original decision denying access to NDIS, you will need to have undertaken the recommendations of your treatment providers wherever possible and provide evidence that those steps have not remedied your impairment.