What makes an impairment permanent
Observations drawn from published tribunal and court reasons. Not legal advice. Every file turns on its own facts.
The term
Section 24(1)(b) of the NDIS Act requires that a person's impairments "are, or are likely to be, permanent."
Almost everyone reads that as a question about duration, and almost everyone is wrong. It is the most consequential misreading in the scheme, and it is why the refusal that says not likely to be permanent lands as an insult on people who have been unwell for fifteen years.
The question it actually asks
Two things have to be separated.
First, what is being assessed. In National Disability Insurance Agency v Davis [2022] FCA 1002, Mortimer J held at [130] that "permanent impairment" means an impairment of an enduring nature, and that the question is directed at the impairments the person experiences, expressly not at the cause of those impairments or the specific diagnoses made about a medical condition.
So a contested diagnosis does not decide permanence, and a firm one does not establish it.
Second, how permanence is defeated. The permanence rule in the NDIS (Becoming a Participant) Rules 2016 provides that an impairment is not permanent if there are known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy it.
That is the mechanism. Permanence is not established by how long you have suffered. It is defeated by the existence of treatment you have not had.
What the decisions settled
"Remedy" means close to cure, not improvement
This is the most useful holding available to anyone with a pain condition, and it is routinely overlooked.
In Davis, Mortimer J held at [136] that "remedy" should be understood to mean something approaching a removal or cure of the impairment, more than merely relieving or improving it. The reasoning was that rule 5.5 already recognises an impairment may be permanent notwithstanding that the severity of its impact fluctuates or that there are prospects for improvement.
Read that against how pain treatment actually works. Almost nothing in contemporary pain care removes or cures the impairment. Exercise, psychological therapy, medication, procedures: these are management strategies that reduce impact. On Davis, treatment of that kind does not defeat permanence, because it does not remedy anything in the relevant sense.
That distinction is worth arguing explicitly, because files are frequently refused on the basis that some further therapy "might help", which, on the authority, is not the test.
"Available" means available to you
Davis also settled what the three qualifiers mean, at [137] to [139]:
- Known: a treatment Australian medical practitioners can identify as suitable for that particular impairment.
- Appropriate: a treatment capable of remedying the impairment and suitable for that individual to undergo.
- Available: "what treatments an individual can, in reality, access."
On availability, Mortimer J held that whether a person can afford a treatment forms part of the factual circumstances a decision-maker may need to examine. The Court gave remoteness as a further example. Availability is assessed individually, against the person's actual financial position and location.
One nuance worth knowing, because it is often reported loosely. Although the Court decided the substantive questions in Ms Davis's favour, it also found the NDIA had been denied procedural fairness on the affordability issue, and remitted the matter to the Tribunal for redetermination. Davis is authority on the meaning of the words. It was not a final win on the facts.
Fibromyalgia is an impairment. That is not the difficulty.
McFarlane and National Disability Insurance Agency [2018] AATA 4727 is the case to know if pain is your primary issue.
The Tribunal accepted that fibromyalgia is an impairment consistent with the statutory definition, and that it constituted a disability under the Act. The application still failed, on two limbs.
On permanence, the Tribunal noted gaps in the treatment history and was not satisfied the impairments were permanent within s 24(1)(b).
Then, separately, on lifetime support. At [88] to [89] the Tribunal member said:
Professor Cameron's evidence clearly stated that fibromyalgia and chronic pain syndrome are medical conditions that are most appropriately treated through the health system. In the absence of any evidence to the contrary, I accept Professor Cameron's evidence.
This means that I cannot find that Mr McFarlane will require assistance under the NDIS for his lifetime. Therefore, he does not meet the requirement of paragraph 24(1)(e) of the NDIS Act.
Three things follow from that passage. The health-system point can defeat an application independently of permanence. Expert evidence went unanswered: "in the absence of any evidence to the contrary" is the Tribunal telling you exactly where the case was lost. And gaps in the treatment history and the health-system argument tend to arrive together, because both are answered by the same thing: a complete record of what has been tried.
What this means for what has to be on a file
An unexplored treatment keeps the question open. Nobody can say what an untried option would have achieved. A decision-maker holding an open question is not permitted to close it by assuming the answer, which is why gaps in a treatment history are fatal in a way that gaps elsewhere are not.
The remedy threshold should be argued, not conceded. If a refusal rests on treatment that would improve or relieve rather than remove or cure, that engages Davis [136] directly. It is a legal argument about the standard, not a clinical argument about whether the treatment is any good.
Affordability and access are evidence, not excuses. After Davis, a treatment you cannot realistically reach is capable of being found not "available" to you. That means income, distance, waiting lists and what Medicare actually funds are matters to document rather than apologise for.
The health-system argument needs answering directly. McFarlane fell partly because expert evidence on that point went uncontradicted. A file that establishes only that pain exists has not engaged with it.
One thing in motion
The permanence test is currently subject to a legislative proposal that would change it materially, including by requiring that all appropriate treatment be tried, and by defining appropriate treatment as treatment that can reliably be expected to materially improve, reverse or alleviate the impact of an impairment.
If enacted in that form, that wording would sit well below the Davis threshold of removal or cure, and would substantially narrow the argument set out above. It would also affect the availability protection.
This entry reflects the position as at the date shown. It will be revised when the outcome is known.
Where this leaves your file
If your treatment history has categories that were never explored, that is the finding this entry describes, and it is the most common reason a pain file fails on permanence. What is missing can usually be identified and addressed.
If your treatment history is genuinely complete but the record cannot show it, the problem is reconstruction rather than treatment, and it is a different piece of work with a different cost.
If your file was refused on the basis that some further therapy might help, it is worth having the reasoning examined against the standard the cases actually apply.
An Evidence Audit identifies which of these applies to you, in writing, with the reasoning set out. If you would rather work out whether that fits your situation by talking it through first, the introductory call is free.
Observations drawn from published Tribunal and Court reasons, current as at the compilations cited. Nothing here is legal advice, and nothing here predicts an outcome. Every file turns on its own facts.