Our reference: FOI 24/25-0310
GPO Box 700
Canberra ACT 2601
1800 800 110
12 November 2024
ndis.gov.au
Julie Keys
By email: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Julie Keys
Freedom of Information request - Notification of Decision
Thank you for your correspondence of 5 September 2024, seeking access under the
Freedom of Information Act 1982 (FOI Act) to documents held by the National Disability
Insurance Agency (NDIA).
The purpose of this letter is to notify you of my decision on your application.
Scope of your request
You requested access to the following documents:
“…I request a copy of all documents relating to how the NDIA requires the functional
capacity of people with the neurological disability ME/CFS to be demonstrated in order to
demonstrate substantially reduced functional capacity...”
The purpose of this letter is to notify you of my decision on your application.
Request for Extension of time
On 26 September 2024, we wrote to you requesting your agreement to a 30-day extension
of time under section 15AA of the FOI Act. As you did not agree to the extension, the due
date is unchanged.
Expiration of time
A 30-day statutory period for processing your request commenced from 6 September 2024,
in accordance with section 15(5)(b) of the FOI Act. The due date for a decision on access
was 2 October 2024
. I note this time has lapsed and as a result we are deemed to have
refused your request under section 15AC of the FOI Act.
Despite this, I have continued to process your application. I apologise for the delay and
confirm that you retain your right to seek external review of this decision.
Search efforts
Staff from the NDIA’s Service Guidance (SG), Technical Advice and Practice Improvement
(TAPIB) and Service Delivery (SD) branches conducted searches, and no documents
relating to the scope of your request were identified. I have set out the reasons for this
outcome in
Attachment A to this letter.
Decision on access to documents
I have decided to refuse
access to the information you have requested on the basis that the
documents do not exist or cannot be located pursuant to section 24A of the FOI Act.
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I made this decision as an authorised FOI decision maker under section 23(1) of the FOI
Act.
I have provided a detailed statement of the reasons for my decision in Attachment A to this
decision notice.
Rights of review
Your rights to seek a review of my decision, or lodge a complaint, are set out at
Attachment B.
If you have any enquiries about this matter, please contact me by email
at xxx@xxxx.xxx.xx. Yours sincerely
Patrick (PHO293) Senior Freedom of Information Officer
Complaints Management and FOI Branch
General Counsel Division
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Attachment A
Statement of Reasons
FOI Application 24/25-0310
___________________________________________________________________
Refused information
I have refused
access to the information you requested under section 24A of the FOI Act on
the basis that documents containing such information cannot be located or do not exist.
Relevant law
Under the FOI Act, a person has a right to be given access to documents of an agency.
However, the right of access is subject to limitations, including grounds for refusal of access.
Section 24A of the FOI Act states that an agency may refuse a request for access to a
document if all reasonable steps have been taken to find the document and the agency is
satisfied that the document cannot be found or does not exist.
Searches for documents
After reviewing the scope of your FOI application, I identified the need to make enquiries
with the NDIA’s Service Guidance (SG), Technical Advice and Practice Improvement
(TAPIB) and Service Delivery (SD) Branches for documents relevant to the scope of your
request.
I was provided with the same TAPIB research documents that have been previously
released to you under FOI decision notice dated 24 July 2024 relating to FOI matters 23/24-
1127, 1128 and 1134 but no additional or new documents were provided by the TAPIB
branch.
I have not considered these documents relevant to the scope of your request. While their
subject matter relates to ME/CFS they do not outline
‘how the NDIA requires the functional
capacity…to be demonstrated in order to demonstrate substantially reduced functional
capacity’. Two documents were provided by Service Guidance that are publicly available. I do not
consider them relevant to the scope of your request as they are not specific to ME/CFS,
however as they are publicly available, I have provided them to you in the form of links
below.
No documents were located by Service Delivery.
NDIS (Becoming a Participant) Rules 2016
The legislative instrument
National Disability Insurance Scheme (Becoming a Participant)
Rules 2016 provides details under rule 5.8 about -
‘When does an impairment result in
substantially reduced functional capacity to undertake relevant activities’. This rule specifies:
An impairment results in substantially reduced functional capacity of a person to
undertake one or more of the relevant activities—communication, social interaction,
learning, mobility, self-care, self-management (see paragraph 5.1(c))—if its result is
that:
(a) the person is unable to participate effectively or completely in the activity,
or to perform tasks or actions required to undertake or participate
effectively or completely in the activity, without assistive technology,
equipment (other than commonly used items such as glasses) or home
modifications; or
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(b) the person usually requires assistance (including physical assistance,
guidance, supervision or prompting) from other people to participate in the
activity or to perform tasks or actions required to undertake or participate
in the activity; or
(c) the person is unable to participate in the activity or to perform tasks or
actions required to undertake or participate in the activity, even with
assistive technology, equipment, home modifications or assistance from
another person.
This rule was particularly relevant in a recent Administrative Appeals Tribunal (AAT) decision
regarding a participant with ME/CFS accessi
ng the NDIS Garcia Albiol and National
Disability Insurance Agency [2024] AATA 496 (21 March 2024).
Publicly Available Information
As discussed above, I have been advised by Service Guidance that the NDIS website
discusses ‘substantially reduced functional capacity’ in two locations in addition to general
NDIS application information. I have provided the links here:
Do you meet the disability requirements? | NDIS
Does your impairment substantially reduce your functional capacity? | NDIS
Applying to the NDIS | NDIS
Referencing the paragraph titled “Does your impairment substantially reduce your functional
capacity?”, the guidance discusses and gives examples of various functional impacts within
the domains of communication, socialising, learning, mobility and self-care. It further goes on
to state that we get information from participants when they apply to the NDIS, specifically
regarding capacity and where the participant needs more support.
The guidance continues under the heading ‘What type of evidence should you provide?’ that
evidence may be from a doctor or specialist to confirm a permanent impairment, or from an
allied health professional or other medical professional that tells us about the impacts to a
participant’s functional capacity.
Agency delegates will also, on occasion, administer a functional capacity tool such as the
World Health Organisation Disability Assessment Tool (WHODAS), however, this is only
done in certain circumstances and, only if a person is currently accessing the scheme.
In summary, there is no document held by the NDIA that contains specific criteria that a
participant with ME/CFS needs to meet to demonstrate substantially reduced functional
capacity. Functional capacity is assessed on a case-by-case basis, is guided by evidence
provided by a participant, and requires the participant to meet the criteria of NDIS Rule 5.8.
Conclusion
Based on the information I received from the relevant business areas, I consider there are
reasonable grounds to be satisfied that documents containing the information you seek do
not exist. I therefore refuse access to the information under section a 24A of the FOI Act on
the basis that the information cannot be located or does not exist.
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Attachment B
Your review rights
Review by the Office of the Australian Information Commissioner
The FOI Act also gives you the right to apply to the Office of the Australian Information
Commissioner (OAIC) to seek a review of this decision.
If you wish to have the decision reviewed by the OAIC, you may apply for review within 60
days of receiving this letter.
You can apply to the OAIC for review in the following ways:
Online:
www.oaic.gov.au
Post:
GPO Box 5218, Sydney NSW 2001
Email:
xxxxxxxxx@xxxx.xxx.xx
Phone:
1300 363 992 (local call charge)
Complaints to the Office of the Australian Information Commissioner or the
Commonwealth Ombudsman
You may complain to either the Commonwealth Ombudsman or the OAIC about actions the
NDIA took in relation to your request. The Ombudsman will consult with the OAIC before
investigating a complaint about the handling of an FOI request.
You can make a complaint to the OAIC using the contact details identified above, or to the
Ombudsman by:
Phone:
1300 362 072 (local call charge)
Email:
xxxxxxxxx@xxxxxxxxx.xxx.xx
Your complaint should set out the grounds on which you consider the OAIC or the
Ombudsman should investigate the NDIA’s handling of your FOI request.
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