Allen and National Disability Insurance Agency
[2018] AATA 3851
•15 October 2018
Allen and National Disability Insurance Agency [2018] AATA 3851 (15 October 2018)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2017/7731
Re:Shareema Allen
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Professor R McCallum AO, Member
Date:15 October 2018
Place:Sydney
The reviewable decision is affirmed
.....................[sgd]...................................................
Professor R McCallum AO, Member
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME - access to the scheme - disability requirements - Hypermobile Ehlers-Danlos Syndrome - communication - social interaction - learning - mobility - self-care - self management - whether applicant satisfies the early intervention requirements - whether early intervention support most appropriately funded through the NDIS - decision affirmed
LEGISLATION
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Becoming a Participant) Rules 2013 (Cth)
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)
CASES
BBMC and National Disability Insurance Agency [2018] AATA 386
Kilgallin and National Disability Insurance Agency [2017] AATA 186
Pomeroy and National Disability Insurance Agency [2018] AATA 387
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634.
Young and National Disability Insurance Agency [2014] AATA 401YPRM and National Disability Insurance Agency [2016] AATA 1023
SECONDARY MATERIALS
National Disability Insurance Scheme, Operational Guidelines (Access)
REASONS FOR DECISION
Professor R McCallum AO, Member
15 October 2018
INTRODUCTION
The Applicant, Ms Shareema Allen, lives in Sydney with her husband and three children. In February 2017, Ms Allen was diagnosed by a geneticist as having Hypermobile Ehlers-Danlos Syndrome which is also known as Type III EDS. Throughout this decision, I shall refer to Ms Allen’s Hypermobile Ehlers-Danlos Syndrome as her “HEDS”.
How is Hypermobile Ehlers-Danlos Syndrome defined?
Extracts from a booklet titled “Understanding Hypermobile Ehlers-Danlos Syndrome and Hypermobility Spectrum Disorder” by Claire Smith are before the Tribunal (Redcliff-House Publications, England: 2017).[1] On page 20 of this booklet, HEDS is pithily described as follows:
Hypermobile Ehlers-Danlos syndrome (hEDS) is the newly defined term for the heritable disorder of connective tissue that has, until recently, been known synonymously as ‘Ehlers-Danlos hypermobility type’ and ‘joint hypermobility syndrome.’
…
Hypermobile Ehlers-Danlos syndrome (hEDS) is considered the most prevalent type of inherited genetic disorder of connective tissue in the world although the causational gene(s) are yet to be identified. It is defined by the association of generalised joint hypermobility, joint instability complications, widespread musculoskeletal pain, (minor) skin features and/or pelvic/rectal/uterine dysfunction, and is now widely recognised as being associated with the potential to affect multiple systems of the body including the cardiovascular autonomic system, the gastrointestinal system and mast sell activation. [citations omitted].
[1] Exhibit A10.
In paragraphs 10 to 13 of Ms Allen’s statement dated 20 April 2018,[2] she gives her opinion on how HEDS affects her. Ms Allen writes, in part, as follows:
[2] Exhibit A4.
I have type III of EDS which is the hypermobile form. It affects the collagen in my body. EDS causes hyper-extension of my arms, legs and other joints, which can result in joint dislocations and subluxations. Skin is easily bruised and torn because collagen doesn’t do its job properly in my body. My wounds heal much slower and I scar easily.
EDS has a lot of “comorbid” (co-existing) conditions. In my case, these conditions are:
· Fibromyalgia, which causes muscle pain and tenderness all over my body. This was diagnosed in September 2017 by Dr Belinda Poon after I was complaining of irritated skin especially at night.
· Dysplasia in my esophagus, which causes me to often choke on food due to my esophagus being too soft.
· Temporomandibular Joint Dysfunction, which causes my jaw to click and hurt at the joints, similar to a dislocation.
· Mitral valve prolapse, which means my heart valve does not close properly which causes an irregular heartbeat, palpitations and shortness of breath. A cardiologist said that this could be contributed to by my EDS.
· Supraventricular Tachycardia, which causes a rapid heartbeat and leads to heart palpitations.
· Pre-menstrual dysphoric disorder, which is a very severe form of PMS that affects my mental health. I experience extreme mood swings…
· Postural orthostatic tachycardia syndrome, which is reduced blood volume causing dizzy spells, light-headedness, confusion, irritability, anger, nervousness, loss of focus in vision, tiredness, poor co-ordination and a rapid heartbeat.
A standard dose of local anesthetic does not usually work for me. For example, I was recently bitten by a dog and when I had stiches, the doctor had to give my 5 times the normal dose of local anesthetic.
I have also been diagnosed with the following other conditions:
· Numerous allergies such as asthma (dust mite), codeine, cats, pollen and grass.
· Pelvic girdle pain, which is caused from loose pelvic joints and was particularly bad during my pregnancies.
· Chronic migraines, previously diagnosed by a neurologist.
· De Quervains Tenosynovitis, which is pain and tenderness in the tendon near my thumb and wrist.
Ms Allen applies to become a participant in the NDIS
On 26 April 2017, Ms Allen, together with her General Practitioner, Dr Sharon Gupta, filled in an access request form and applied to become a participant in the National Disability Insurance Scheme (NDIS) which is administered by the National Disability Insurance Agency (NDIA) pursuant to the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act).
Dr Sharon Gupta filled in her portion of the access request form as follows:
Length of time you have known or treated the person making request: > 1 yrs
Primary disability and any secondary disabilities: Ehlers Danlos Syndrome
Current treatment: Physiotherapy- 6 weeks, personal training
Is there any other treatment that is likely to remedy the impairment: No
Mobility and motor skills
Does the person require assistance to be mobile because of their disability? No, does not need assistance
Communication
Does the person require assistance to communicate effectively because of their disability? No does not need assistance.
Social interaction
Does the person require assistance to interact socially because of their disability? No does not need assistance
Learning
Does the person require assistance to learn effectively because of their disability? Yes, needs assistive technology. Yes, needs assistance from other persons. Requires one on one supervision/guidance. Cannot write due to hand pain. Requires computer.
Self-care
Does the person require assistance with self-care because of their disability? No, do not need assistance.
Self-management
Does the person require assistance with self-management because of their disability? Yes, needs assistance from other persons. Hand pain performing daily activities of living e.g. washing dishes. [3]
[3] T documents at 5.
On 17 May 2017, the original decision was made by the NDIA that Ms Allen did not meet the disability requirements or the early intervention requirements under sections 24 and 25 of the NDIS Act.
Ms Allen sought internal review of the original decision and on 3 November 2017 a delegate of the CEO of the NDIA made the reviewable decision which affirmed the original decision.
Ms Allen’s appeal to the AAT
Ms Allen now appeals to the NDIS Division of the Administrative Appeals Tribunal. As the reviewable decision was made pursuant to section 100(6)(a) of the NDIS Act, the Tribunal has jurisdiction to review the reviewable decision pursuant to section 103 of the NDIS Act.
The hearing
Ms Allen attended the hearing in person. She was accompanied by her husband Mr Daine Walker and she was represented by Counsel. The NDIA was also represented by Counsel.
The following witnesses gave oral evidence before the Tribunal:
·Ms Bridie Telford, who is an Occupational Therapist, gave evidence by affirmation. Ms Telford attested to the truth of her Functional Needs Assessment Report dated 19 April 2018 and her Functional Needs Assessment Supplementary Report dated 19 July 2018 which are before the Tribunal.[4]
·Mr Tony Larven, who is a physiotherapist who treated Ms Allen, gave evidence by affirmation before the Tribunal. He attested to the truth of his report dated 19 April 2018 which is before the Tribunal.[5]
·Ms Shareema Allen gave evidence by affirmation before the Tribunal. She attested to the truth of her two written statements dated 20 April 2018 and 26 July 2018.[6]
·Mr Daine Walker gave evidence by affirmation before the Tribunal. He attested to the truth of his written statement dated 26 July 2018.[7]
LEGISLATION AND GUIDELINES
[4] Exhibits A3 and A5.
[5] Exhibit A6.
[6] Exhibits A4 and A1.
[7] Exhibit A2.
The Access Criteria
The access criteria to become a participant in the NDIS are summarised in section 21(1) of the NDIS Act which is as follows:
(1) A person meets the access criteria if:
(a) the CEO is satisfied that the person meets the age requirements (see section 22); and
(b) the CEO is satisfied that, at the time of considering the request, the person meets the residence requirements (see section 23); and
(c) the CEO is satisfied that, at the time of considering the request:
(i) the person meets the disability requirements (see section 24); or
(ii) the person meets the early intervention requirements (see section 25).
The Disability and Early Intervention Requirements
It is common ground that Ms Allen meets both the age and the residency requirements to become a participant in the NDIS. The issue before the Tribunal is whether Ms Allen meets either the disability requirements or the early intervention requirements set out in sections 24 and 25 of the NDIS Act respectively.
Sections 24 and 25 are as follows:
24 Disability requirements
(1) A person meets the disability requirements if:
(a) the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or to one or more impairments attributable to a psychiatric condition; and
(b) the impairment or impairments are, or are likely to be, permanent; and
(c) the impairment or impairments result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the following activities:
(i) communication;
(ii) social interaction;
(iii) learning;
(iv) mobility;
(v) self‑care;
(vi) self‑management; and
(d) the impairment or impairments affect the person’s capacity for social or economic participation; and
(e) the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime.
(2) For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the variation.
25 Early intervention requirements
(1) A person meets the early intervention requirements if:
(a) the person:
(i) has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent; or
(ii) has one or more identified impairments that are attributable to a psychiatric condition and are, or are likely to be, permanent; or
(iii) is a child who has developmental delay; and
(b) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person’s future needs for supports in relation to disability; and
(c) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by:
(i) mitigating or alleviating the impact of the person’s impairment upon the functional capacity of the person to undertake communication, social interaction, learning, mobility, self‑care or self‑management; or
(ii) preventing the deterioration of such functional capacity; or
(iii) improving such functional capacity; or
(iv) strengthening the sustainability of informal supports available to the person, including through building the capacity of the person’s carer.
Note: In certain circumstances, a person with a degenerative condition could meet the early intervention requirements and therefore become a participant.
(2) The CEO is taken to be satisfied as mentioned in paragraphs (1)(b) and (c) if one or more of the person’s impairments are prescribed by the National Disability Insurance Scheme rules for the purposes of this subsection.
(3) Despite subsections (1) and (2), the person does not meet the early intervention requirements if the CEO is satisfied that early intervention support for the person is not most appropriately funded or provided through the National Disability Insurance Scheme, and is more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or through systems of service delivery or support services offered:
(a) as part of a universal service obligation; or
(b) in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
Objects and General Principles
In sections 3 and 4 of the NDIS Act, the Parliament of Australia has set out objects and general principles to aid in the interpretation of the statute. In what follows, I shall have regard to these objects and general principles when interpreting sections 24 and 25 of the NDIS Act. For the purposes of this decision, I shall set out several of the objects and general principles as follows:
3 Objects of Act
(1) The objects of this Act are to:
(a) in conjunction with other laws, give effect to Australia’s obligations under the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006 ([2008] ATS 12); and
(b) provide for the National Disability Insurance Scheme in Australia; and
(c) support the independence and social and economic participation of people with disability; and
(d) provide reasonable and necessary supports, including early intervention supports, for participants in the National Disability Insurance Scheme launch; and
(e) enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports;
…
(3) In giving effect to the objects of the Act, regard is to be had to:
…
(b) the need to ensure the financial sustainability of the National Disability Insurance Scheme; and
(c) the broad context of disability reform provided for in:
(i) the National Disability Strategy 2010‑2020 as endorsed by COAG on 13 February 2011; and
…
(d) the provision of services by other agencies, Departments or organisations and the need for interaction between the provision of mainstream services and the provision of supports under the National Disability Insurance Scheme.
4 General principles guiding actions under this Act
(3) People with disability and their families and carers should have certainty that people with disability will receive the care and support they need over their lifetime.
…
(5) People with disability should be supported to receive reasonable and necessary supports, including early intervention supports.
…
(12) The role of families, carers and other significant persons in the lives of people with disability is to be acknowledged and respected.
…
(17) It is the intention of the Parliament that the Ministerial Council, the Minister, the Board, the CEO, the Commissioner and any other person or body is to perform functions and exercise powers under this Act in accordance with these principles, having regard to:
…
(b) the need to ensure the financial sustainability of the National Disability Insurance Scheme.
Rules and Operational Guidelines
Under section 209 of the NDIS Act, the Minister may make rules relating to matters under the NDIS Act. These rules form part of the legislation.
The relevant rules in this instance are the National Disability Insurance Scheme (Becoming a Participant) Rules 2013 (Cth) which I shall refer to as the “Participant Rules”, and the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) which I shall call the “Supports Rules”.
The CEO of the NDIA has also written operational guidelines to aid decision-makers. The operational guidelines are Government policy and should be applied by the Tribunal unless there are good reasons to depart from them: see Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[1979] AATA 179; (1979) 2 ALD 634.
CONSIDERATION
There are two issues before the Tribunal:
·First, whether Ms Allen can become a participant in the NDIS by meeting the disability requirements set out in section 24 of the NDIS Act; and
·Second, whether Ms Allen can become a participant in the NDIS by meeting the early intervention requirements set out in section 25 of the NDIS Act.
Ms Allen and the disability requirements
Section 24 of the NDIS Act has been set out earlier in this decision.
Section 24(1) will be satisfied if Ms Allen meets the five requirements specified in paragraphs (a) to (e) of this provision. As each paragraph is joined by the conjunction “and”, it is necessary for Ms Allen to meet all of the requirements to become a participant in the NDIS.
The Respondent concedes that Ms Allen meets paragraphs (a), (b) and (d) of section 24(1) of the NDIS Act.
From the evidence before me, I find that Ms Allen has a disability under paragraph (a) as her disability results from her impairments caused by HEDS. I also find that her impairments are permanent under paragraph (b). I further find that Ms Allen complies with paragraph (d) because her impairments affect her capacity for social and economic participation.
Therefore, I am required to further decide whether Ms Allen meets the requirements set out in paragraphs (c) and (e) of section 24 of the NDIS Act. If I find that Ms Allen does not comply with paragraph (c), it will not be necessary for me to consider whether she complies with paragraph (e).
Do Ms Allen’s impairments result in substantially reduced functional capacity to undertake one or more of the following activities: communication; social interaction; learning; mobility; self-care; or self-management within the meaning of section 24(1)(c)?
It is important to appreciate that to comply with section 24(1)(c) of the NDIS Act, Ms Allen must show that her impairments result in substantially reduced functional capacity to undertake any one of the activities specified in subparagraphs (i) to (vi) of section 24(1)(c).
Paragraph 5.8 of the Participant Rules is of assistance. It provides as follows:
5.8 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
(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.
Chapter 8 of the Operational Guidelines (Access) is entitled “The Disability Requirements” and it gives guidance to decision-makers. Paragraph 8.3.1 provides, in part:
The following information provides further guidance in relation to determining when an impairment results in substantially reduced functional capacity:
By itself, reliance on commonly used items will not result in a substantially reduced functional capacity to participate effectively or completely in an activity. Commonly used items include glasses, walking sticks, non-slip bath mats, bathroom grab rails, stair rails, age appropriate child safety locks, simple adapted kitchen utensils and dressing aids.
In considering the role played by assistive technology, home modifications and equipment, the NDIA will consider specific needs arising from the prospective participant's impairment, and whether those needs are met (or need to be met) through the use of specialist disability aids and/or equipment.
Such items would generally be specifically designed to assist in increasing the functional capacity and participation of people with disability and be formally prescribed by a medical practitioner, specialist clinician or allied health professional such as an occupational therapist, physiotherapist or speech therapist.
When considering whether a person requires assistance from others to participate or perform tasks associated with an activity, the NDIA will have regard to whether a person's need for assistance is consistent with normal expectations of a person of a similar age. For example, children under the age of 2 will not necessarily have a substantially reduced functional capacity because they need assistance to provide for self-care needs.
A person will be considered to be unable to participate effectively or completely in an activity if they cannot safely complete one or more of the tasks required to participate in an acceptable period of time. Undertaking a task more slowly or differently to others will not necessarily mean a person cannot participate effectively or completely in an activity.
When considering whether a fluctuating or episodic impairment results in substantially reduced functional capacity to undertake relevant activities, the NDIA will consider the impact on the person's ability to function in the periods between acute episodes.
Communication and Self-Management
It is common ground between the parties that Ms Allen has no difficulties with communication or self-management. That is to say that she does not have reduced functional capacity to undertake communication and self-management pursuant to subparagraphs (i) and (vi) of section 24(1)(c) of the NDIS Act.
From the evidence before me, I find that Ms Allen does not have reduced functional capacity to undertake communication and self-management.
Social Interaction
In relation to social interaction, paragraph 34 of Ms Allen’s statement dated 20 April 2018 is as follows:
Because of my EDS, I find it difficult to go out with friends for activities like a meal or going to the movies. This is because I don’t like to eat out due to the dysplasia in my esophagus that makes me choke on food. I also have issues with driving and fatigue from this. Because of this, it has made me not social and I have lost many friendships.[8]
[8] Exhibit A4 at 5.
In issue 53 of the Jordan Springs Gazette, an article discusses Ms Allen’s role as a community organizer. It reads in part as follows:
Every community needs that one person who works to bring people together, and Jordan Springs has Shareema Allen.
Becoming a community organiser began 2 ½ years ago. “I attended a Jordan Springs Dad's Christmas party, where I met a group of fellow ladies with common interests” said Allen. This was the birth of the Jordan Springs Mums Group.
From there, many events have been organised: BBQs, a trivia day, Christmas and Halloween gatherings in the local park for the whole community and ladies only nights. Allen said that the best part for her is “meeting new people and seeing the community come together and support each other”.[9]
[9] Exhibit R2
In her evidence before the Tribunal, Ms Allen implied that the article exaggerated her role in the community. She said that she does organise dinners for mothers in her area. She said that usually she is too tired to go to the dinners, but has attended on occasions.
Ms Allen said that she is the co-ordinator of a playgroup under Playgroup NSW. Her playgroup is called Messy Play and it takes place each Friday from 10:00am to 12:00pm. Ms Allen attends each Friday with her toddler.
Ms Allen said that she did participate in a babysitting group and babysat on a number of occasions, the last being in February this year. She added that she had more recently babysat her neighbour’s child.
I accept that Ms Allen’s social interaction is largely confined to her family, to other mothers and to the playgroup.
I agree with what the Tribunal said about social interaction in Kilgallin and National Disability Insurance Agency [2017] AATA 186. The Tribunal commented on social interaction at paragraph 19 as follows:
Social interaction as referred to in 24(1)(c)(ii) doesn’t, in our view, mean social interaction with the whole of the community. It means social interaction with elements of the community, sections of the community. Mr Kilgallin gave evidence he tends to socialise with special people like me, and this may well be the case. Nevertheless, interaction on a more-or-less regular basis with people he feels comfortable with amounts, in our view, to social interaction.
Having regard to Ms Allen’s role in the Mother’s Group, her attendance at “Messy Play” and her babysitting, I find that Ms Allen does not have reduced functional capacity to undertake social interaction pursuant to section 24(1)(c)(ii) of the NDIS Act.
Learning
In relation to learning, at paragraphs 37-39 of her statement dated 20 April 2018, Ms Allen wrote as follows:
I have completed a Certificate III and then a Diploma in Early Child Education at TAFE. I was only able to keep up with the coursework because I did everything on the computer (not by hand) and my husband usually typed things up for me too. It also helped that I had a lot of background knowledge in childcare. The things I didn’t know, they gave to us in note form. My teacher knew about my EDS and so she was very accommodating and helpful and gave me these notes.
If this hadn’t of [sic] happened, I worry it would have been hard for me to complete. This is because I have found that symptoms I experience from EDS have made it difficult for me to learn. For example, I find it hard to concentrate and retain information because I experience what I call “brain fog” – I am so fatigued from difficulty from doing everyday tasks.
I also find it hard to write things and do things with my hands due to hand and wrist pain. Usually I would have trouble completing a form that I am filling in.
In her evidence before the Tribunal, Ms Allen said that she had completed the Certificate III in Child Care when she was about 18 years old. Ms Allen worked in the child care industry until about 2013.
Ms Allen said that she completed the Diploma last year. It went for about 18 months with one subject per semester. Ms Allen said that she needs the diploma if in the future she wishes to work from home with children undertaking family day care.
Ms Allen said that she does some of the paperwork as coordinator of “Messy Play” which is under the auspices of Play Group NSW.
Ms Allen also said that she assists her husband who is a coach at the local rugby club by typing out the names of the members of the team.
While Ms Allen has some difficulties in learning, having regard to the evidence which I have just set out, I find that Ms Allen does not have a substantially reduced functional capacity to learn pursuant to section 24(1)(c)(iii) of the NDIS Act.
Mobility
In relation to mobility, Ms Bridie Telford who it will be recalled is an Occupational Therapist, wrote a Functional Needs Assessment Report dated 19 April 2018.[10] Ms Telford wrote that Ms Allen can stand up from sitting on her couch unaided. She can walk around her home “without the use of assistive technology.” She undertook a walk for 800 metres on a flat concrete surface. However, she noted that Ms Allen does have pain and some anxiety when moving around her home and walking.
[10] Exhibit A5.
In her evidence before the Tribunal, Ms Telford said that Ms Allen could not lift a heavy slow-cooker pot. Ms Telford also said that Ms Allen does the family shopping, although she needs to rest. Ms Allen also cooks the meals, however, this takes a great deal of energy.
In her evidence before the Tribunal, Ms Allen said that she does drive an automatic car. She was taken to paragraph 5 of her statement dated 26 July 2018 where her weekly timetable is set out. This includes driving children to and from school, and to various activities like an acting class, hydrotherapy, and speech therapy sessions. Ms Allen does have some pain when driving.
Having regard to the evidence before the Tribunal of Ms Allen’s mobility in the home, her capacity to walk 800 metres, and her ability to drive, I find that Ms Allen does not have a substantially reduced functional capacity with respect to mobility pursuant to section 24(1)(c)(iv) of the NDIS Act.
Self-care
In relation to self-care, Ms Allen does have some difficulties.
In paragraphs 29-33 of her statement dated 20 April 2018, Ms Allen writes as follows:
I have trouble washing my hair which means that my husband Daine or daughter […] has to help me sometimes when the pain becomes too much. This is because putting my hands above my head causes subluxation of my shoulders.
I struggle with brushing my teeth because it makes me gag and throw up, due to dysplasia.
I find it tiring to put on make-up so often do not wear it. Shaving is also tiring for me, so I often wear long pants instead of dresses or shorts.
I am also sensitive to different temperatures. For example, if I go from a hot shower to a cold bathroom, I go dizzy and feel like I am going to black out.
I find remembering to take my medications very hard. I get monthly ion injections and have forgotten to go a few times. I have also previously doubled up on medications, retaking them after already taking them once…
In the Functional Needs Assessment Report dated 19 April 2018, Ms Telford wrote about Ms Allen’s self-care as follows:
Managing Hygiene - Ms Allen generally completes her personal care routing [sic] independently and wishes to maintain her independence in this. Ms Allen has an ensuite bathroom located approximately 1.5 metres from her bed. Ms Allen told me that when she is experiencing pain she will get supports from her husband or daughter to wash her back and her hair. Ms Allen has difficulty complete [sic] above shoulder personal care tasks due to shoulder subluxation and bursitis. Ms Allen showers standing. It is my opinion that she would be safer showering in a seated position; sitting when showering would also have a positive impact upon managing her fatigue. Ms Allen skips up to 2 showers per fortnight due to an exacerbation in pain and fatigue. Ms Allen dresses in her bedroom. She sits on the edge of the bed for dressing to maintain her stability when putting on or taking off clothes
…
Attending appointments and managing medication - Ms Allen will attend medical appointments independently. Ms Allen has difficulty recalling and initiating recommendations made in medical appointments. Ms Allen has developed strategies to assist with her recall which includes writing notes in the appointment.
Managing Medications - Ms Allen is required to take medication morning and night as prescribed by her medical team. Ms Allen told me that [sic] often forgets to take her medication or on occasions will take her medication twice. Ms Allen would benefit from strategies to increase her capacity to be safe and independent with managing her medications as well as a Webster pack.
…
Opinion regarding resources:
Ms Allen has the ability to maintain her independence with personal care activities with access to assistive technology to increase her safety and participation with showering. With access to a shower chair and long handled personal care aids, Ms Allen would have the capacity to shower independently on a daily basis.[11]
[11] Exhibit A5.
In her evidence, Ms Allen said that since they moved house she could not use the plastic chair in her shower as it did not fit. Ms Allen said that she cooks the meals, albeit slowly. Ms Allen can wash herself (but usually requires assistance in washing her hair) and she can dress herself. Ms Allen can do light laundry using a dryer. If she purchased a plastic chair which would fit in her shower, then, according to Ms Telford, showering would become easier.
Having regard to the evidence before the Tribunal concerning her self-care which I have set out above, I find that Ms Allen does not have reduced functional capacity to undertake self-care within the meaning of section 24(1)(c)(v) of the NDIS Act.
Concluding remarks concerning section 24 of the NDIS Act
Ms Allen has shown great pluck and determination to undertake communication, social interaction, learning, mobility, self-care and self-management. Although her HEDS causes her pain and discomfort, Ms Allen undertakes these daily living tasks to assist herself and her family. It is clear to me that Ms Allen does not undertake any of the daily living tasks in a reduced functional capacity.
As Ms Allen does not comply with paragraph (c) of section 24(1) of the NDIS Act, I find that she does not fulfil the access criteria to become a participant in the NDIS.
Therefore, it is not necessary for me to decide whether Ms Allen fulfils the criteria in section 24(1)(e) of the NDIS Act, which is whether she is likely to require support under the NDIS for her lifetime.
Ms Allen and the early intervention requirements
The early intervention requirements are set out in section 25 of the NDIS Act which has been reproduced above.
In YPRM and National Disability Insurance Agency [2016] AATA 1023, the Tribunal in paragraphs 5-6 explained the purpose of the early intervention requirements. The Tribunal said:
The NDIS is conceived as an “insurance-based approach, informed by actuarial analysis, to the provision and funding of supports for people with disability”: s 3(2)(b). Consistent with this approach, the objective of early intervention support is to “lower the costs and impacts associated with the disability for individuals and the wider community over the longer term”.[12]
The early intervention requirements “consider the likely trajectory and impact of a person's impairment over time and the potential benefits of early intervention on the impact of the impairment on the person's functional capacity”.[13] In this respect, the early intervention requirements differ from the disability requirements in s 24(1) which require substantially reduced functional capacity to undertake one or more specified activities.
[12] Productivity Commission Inquiry Report, Disability Care and Support, Report No 54, 31 July 2011, vol 2, p 609.
[13] National Disability Insurance Scheme (Becoming a Participant) Rules 2016 cl 2.5(b).
The NDIA conceded that Ms Allen fulfilled paragraphs (a) and (c) of section 25(1).
From the evidence before me, I find that Ms Allen came within paragraph (a) because her condition of HEDS is permanent.
I further find that Ms Allen complies with paragraph (c). Put simply, the provision of early intervention supports is likely to benefit her by maintaining and strengthening her functionality.
When Counsel for the NDIA was summing up, Counsel said that after hearing the evidence, the NDIA did not concede that Ms Allen complied with paragraph (b) of section 25(1).
Section 25(1)(b) provides as follows:
A person meets the early intervention requirements if:
the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person’s future needs for supports in relation to disability.
Paragraph 6.9 of the Participant Rules provides as follows:
6.9 In deciding whether provision of early intervention supports is likely to benefit the person in the ways mentioned in paragraphs 6.2(b) and (c) above, it is expected that the CEO would consider:
(a) the likely trajectory and impact of the person's impairment over time; and
(b) the potential benefits of early intervention on the impact of the impairment on the person's functional capacity and in reducing their future needs for supports; and
(c) evidence from a range of sources, such as information provided by the person with disability or their family members or carers. The CEO may also in some cases seek expert opinion.
Ms Allen suffers from HEDS which is a permanent condition which was diagnosed by a geneticist. In her evidence, Ms Allen said that her HEDS is worsening.
Ms Allen also said that the pregnancy resulting in her daughter deteriorated her condition.
The evidence before the Tribunal on the applicability of section 25(1)(b) is limited. I am not prepared to hold that Ms Allen does not comply with this paragraph simply upon her evidence that her HEDS is deteriorating.
Therefore, I find that Ms Allen complies with paragraphs (a), (b) and (c) of section 25(1) of the NDIS Act.
The remaining issue before me is whether Ms Allen satisfies section 25(3) of the NDIS Act. I appreciate that this provision has been set out earlier in this decision. However, for ease of reference I repeat section 25(3) which is as follows:
(3) Despite subsections (1) and (2), the person does not meet the early intervention requirements if the CEO is satisfied that early intervention support for the person is not most appropriately funded or provided through the National Disability Insurance Scheme, and is more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or through systems of service delivery or support services offered:
(a) as part of a universal service obligation; or
(b) in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
Put simply, this provision means that even though Ms Allen complies with section 25(1) of the NDIS Act, she will not receive early intervention supports if her impairments are more appropriately funded or provided by the general health system.
The Participant Rules do not give any guidance on the application of section 25(3) of the NDIS Act. However, Schedule 1 of the Supports Rules does give guidance on the operation of section 34(1)(f). This provision is concerned with the reasonable and necessary supports in participants’ plans. Section 34(1)(f) is similar in scope to section 25(3) of the NDIS Act.
Section 34(1)(f) of the NDIS Act provides as follows:
34 Reasonable and necessary supports
(1) For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:
…
(f) the support is most appropriately funded or provided through the National Disability Insurance Scheme, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:
(i) as part of a universal service obligation; or
(ii) in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
One of the issues before the Tribunal in YPRM And National Disability Insurance Agency [2016] AATA 1023, was whether Schedule 1 of the Supports Rules was applicable when interpreting section 25(3) of the NDIS Act. At paragraph 60, the Tribunal said:
The Becoming a Participant Rules are silent on the application of s 25(3). The Support for Participants Rules contain clauses relating to the application of s 34(1)(f). The mother argues that the principles in the Support for Participants Rules do not apply to s 25(3). We do not agree. The policy underlying both provisions appears to be the same: that the NDIS should not fund supports that are more appropriately provided through other general systems of service delivery.
I agree with the approach taken by the Tribunal.
In the circumstances before me, Schedule 1 of the Supports Rules relevantly provides as follows:
Health (excluding mental health)
7.4 The NDIS will be responsible for supports related to a person’s ongoing functional impairment and that enable the person to undertake activities of daily living, including maintenance supports delivered or supervised by clinically trained or qualified health practitioners where these are directly related to a functional impairment and integrally linked to the care and support a person requires to live in the community and participate in education and employment.
7.5 The NDIS will not be responsible for:
(a) the diagnosis and clinical treatment of health conditions, including ongoing or chronic health conditions; or
(b) other activities that aim to improve the health status of Australians, including general practitioner services, medical specialist services, dental care, nursing, allied health services (including acute and post-acute services), preventive health, care in public and private hospitals and pharmaceuticals or other universal entitlements; or
(c) funding time-limited, goal-oriented services and therapies:
(i) where the predominant purpose is treatment directly related to the person’s health status; or
(ii) provided after a recent medical or surgical event, with the aim of improving the person’s functional status, including rehabilitation or post-acute care; or
(d) palliative care.
Paragraph 7.5(c)(i) makes it clear that the NDIS will not support the funding of time-limited, goal-oriented services and therapies where the predominant purpose is treatment directly related to the person’s health status.
In YPRM and National Disability Insurance Agency [2016] AATA 1023, the Tribunal dealt with a somewhat similar case concerning the treatment of a child with type 1 diabetes. At paragraphs 81-83, the Tribunal said:
The Tribunal recognises that the Act, and the extrinsic documents aiding in its interpretation, envisage a broad division of responsibility between the NDIS and (relevantly here) the health system. That division places at the feet of the health system the provision of services and supports that address chronic health conditions, and into the bailiwick of the NDIS services and supports addressing what might be colloquially described as disabilities. Notional examples of such chronic health conditions given in the Productivity Commission report include emphysema, haemophilia and breast cancer; examples of such “disabilities” include blindness, multiple sclerosis and amputated limbs.[14]
The child in the present proceedings suffers from a chronic health condition – type 1 diabetes. We accept that sufferers from chronic health conditions may be able to meet the early intervention requirements of s 25, although the Productivity Commission report suggests they are less likely to do so than a person with what is commonly thought of as a disability.
Having heard the evidence, we take the view that the early intervention support required by the child arises essentially out of the exigencies of her chronic health condition. Many of the early intervention supports described to the Tribunal as being sought by the child amount, in our opinion, to supports relating directly or indirectly to the management of her blood glucose levels during a period of particular vulnerability, namely her extreme youth. As such, they fall within what the Support for Participant Rules describes as “time-limited, goal-oriented services and therapies…where the predominant purpose is treatment directly related to the person’s health status”, that is, as services which should be provided outside the NDIS.
[14] Productivity Commission, Disability Care and Support Report, August 2011, p 752.
The evidence before the Tribunal
The following evidence concerning Ms Allen’s HEDS and its treatment is before the Tribunal.
In her Functional Needs Assessment Report dated 19 April 2018, Ms Telford recommended that input from an Occupational Therapist is required to develop sustainable routines, pacing techniques, and to incorporate assistive technology into her daily life and a limited number of support worker hours e.g. three per week to assist in these activities of daily living.
Ms Allen receives ten Allied Health sessions per year from Medicare and from her Aboriginal health plan.
In her evidence before the Tribunal, Ms Telford said that ten Allied Health sessions each year were insufficient to assist Ms Allen in learning strategies and techniques.
In his report dated 19 April 2018, Mr Tony Larven wrote:
It is my view that this lady [Ms Allen] requires assistance in order to find the type, intensity and duration therapeutic physical activity that she might be able to perform which enables the muscles around all the joints above mentioned can be strengthened in order to provide some support and that may result in an improvement of her symptom behaviour.
It is my view that this would require assessment and development of a program by a physiotherapist with some experience of dealing in patients with hypermobility syndromes. This would require implementation of a program over the first six to eight weeks, perhaps even on a weekly basis. From that point it may require monthly monitoring, progression and troubleshooting over a 12 month period.[15]
[15] Exhibit A6 at 3.
In his evidence before the Tribunal, it is my understanding that Mr Larven intimated that he thought Ms Allen was a participant in the NDIS and that his report was for a twelve month NDIS plan. In these circumstances, I find his written report to be less helpful.
Mr Larven said that in his view ten sessions of Allied Health for physiotherapy each year were insufficient for Ms Allen. Given the fluctuations in HEDS with flare ups etc., Mr Larven said that it was difficult to be specific about Ms Allen’s long-term needs.
In Young and National Disability Insurance Agency [2014] AATA 401, the Tribunal stated at paragraph 41 as follows:
Whether or not funding is available through other general systems is not the test of whether it is most appropriately funded or provided through the NDIS. The fact that the health system does not fund entirely, or even at all, what is essentially clinical treatment, or some other form of support that is more appropriately funded through the health system, does not make it the responsibility of the NDIS. In our view, s 34(1)(f) reflects the statement of the Productivity Commission, which we have referred to above, that the purpose of the NDIS is not to respond to any shortfalls in mainstream services (nor does it purport to impose any obligations on another service system to fund or provide particular supports: cl 7.3 of sch 1).
While this decision dealt with reasonable and necessary supports under section 34(1)(f) of the NDIS Act, I regard it as equally applicable to section 25(3) of the NDIS Act.[16]
[16] See also BBMC and National Disability Insurance Agency [2018] AATA 386 at [40] and Pomeroy and National Disability Insurance Agency [2018] AATA 387 at [60] where the Tribunal agreed with the approach in Young and National Disability Insurance Agency [2014] AATA 401.
The fact that ten Allied Health sessions per year are insufficient for Ms Allen is not relevant to my determination of whether her health needs are more appropriately dealt with by the general health system.
Conclusion as to the applicability of section 25(3)
There is not a great deal of evidence before the Tribunal on the nature, extent, and duration of the occupational therapy and physiotherapy which Ms Allen requires.
From the evidence before me, I am satisfied that Ms Allen’s occupational therapy is more appropriately funded by the general health system. As I comprehend this treatment, it concerns the learning of strategies and techniques to better manage HEDS.
From the evidence before me, I am satisfied that Ms Allen’s physiotherapy is more appropriately funded by the general health system. As I comprehend the treatment, once muscles around the joints have been strengthened, it appears that HEDS can be better managed. Of course, there may be flare ups from time to time, but there is no evidence before me about the nature and duration of such flare ups.
I find that the occupational therapy and physiotherapy treatments are time-limited, goal-oriented therapies where the predominant purpose is treatment directly related to Ms Allen’s health. They are more appropriately funded by the general health system and not by the NDIS.
Therefore, I find that Ms Allen does not fulfil the early intervention requirements criteria under section 25 of the NDIS Act.
DECISION
The reviewable decision is affirmed.
I certify that the preceding 91 (ninety-one) paragraphs are a true copy of the reasons for the decision herein of Professor R McCallum AO, Member
........................[sgd]................................................
Associate
Dated: 15 October 2018
Date(s) of hearing: 2 October 2018 Counsel for the Applicant: Ms A Petrie Solicitors for the Applicant: Legal Aid New South Wales Solicitors for the Respondent: Australian Government Solicitor
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