National Disability Insurance Agency v Foster [2023] FCAFC 11

National Disability Insurance Agency v Foster [2023] FCAFC 11

The Tribunal erred in conflating impairment with activity, failing to properly assess whether Mr Foster's impairment resulted in substantially reduced functional capacity to undertake the activity of self-care as a whole. Use of a catheter to urinate addresses the impairment but does not equate to an inability to...

Source-derived case information.

Parties
Applicant: National Disability Insurance Agency; Respondent: Michael Foster
Jurisdiction
Australia
Judgment Date
17 February 2023
Procedural Posture
Appeal / Judgment on Appeal From Administrative Appeals Tribunal
Outcome
Appeal allowed
Legal Topics
National Disability Insurance Scheme, Statutory Interpretation, Disability Requirements, Substantially Reduced Functional Capacity, Assistive Technology
Administrative Law National Disability Insurance Scheme Statutory Interpretation Disability Requirements Substantially Reduced Functional Capacity Assistive Technology

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Parties

National Disability Insurance Agency

Applicant

Michael Foster

Respondent

Procedural Posture

Appeal / Judgment on Appeal From Administrative Appeals Tribunal

Legal Issues

  1. 1 Proper construction of s 24(1) of the National Disability Insurance Scheme Act 2013 (Cth) concerning substantially reduced functional capacity requirements for NDIS access
  2. 2 Interpretation and application of r 5.8 of the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) as to participation in self-care activities
  3. 3 Meaning and scope of 'self-care', 'assistive technology, equipment', and ‘effectively or completely’ within the Rules and Act

Ratio Decidendi

The Tribunal erred in conflating impairment with activity, failing to properly assess whether Mr Foster's impairment resulted in substantially reduced functional capacity to undertake the activity of self-care as a whole. Use of a catheter to urinate addresses the impairment but does not equate to an inability to participate in self-care, and the need for assistive technology for a particular task does not of itself mean self-care cannot be performed 'effectively or completely'. The Tribunal's application of the statutory test for NDIS access, including the question of likely lifetime support, was thus in error.

Court Disposition

Appeal allowed

Orders

  • The appeal be allowed.
  • The decision of the Administrative Appeals Tribunal dated 17 December 2021 be set aside.