National Disability Insurance Agency v Foster [2023] FCAFC 11

FEDERAL COURT OF AUSTRALIA

National Disability Insurance Agency v Foster [2023] FCAFC 11 Appeal from: Foster v National Disability Insurance Agency [2021] AATA 4738

File number: QUD 9 of 2022

Judgment of: KATZMANN, PERRY AND SARAH C DERRINGTON JJ

Date of judgment: 17 February 2023

Catchwords: ADMINISTRATIVE LAW – National Disability Insurance Scheme – Disability requirements – whether respondent had substantially reduced functional capacity to undertake the activity of "self-care" within the meaning of s 24(1)(c) of the National Disability Insurance Scheme Act 2013 (Cth) – whether Administrative Appeals Tribunal correctly construed r 5.8 of the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) to deem the respondent to be unable to participate "effectively or completely" in "self-care" ADMINISTRATIVE LAW – National Disability Insurance Scheme (NDIS) – Disability requirements – likely requirement for lifetime support under the NDIS 24(1)(e) of the National Disability Insurance Scheme Act 2013 (Cth) – where Administrative Appeals Tribunal found respondent's current support not comparable to that available under the NDIS – whether proper question was whether likely supports more appropriately funded through systems or services other than the NDIS STATUTORY INTERPRETATION – National Disability Insurance Scheme – National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) r 5.8 – construction – "self-care" – "assistive technology, equipment" – "effectively or completely"

Legislation: Acts Interpretation Act 1901 (Cth) s 15AA Administrative Appeals Tribunal Act 1975 (Cth) s 44 National Disability Insurance Scheme Act 2013 (Cth) ss 3, 4, 18, 21, 22, 23, 24, 25, 27, 34, 103, 209 National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) rr 5.8, 7.1