Atkinson and National Disability Insurance Agency
[2021] AATA 3540
•1 October 2021
Atkinson and National Disability Insurance Agency [2021] AATA 3540 (1 October 2021)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2020/4725
Re:Thomas Atkinson
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
INTERLOCUTORY DECISION
Tribunal:Deputy President F Meagher
Date:1 October 2021
Place:Brisbane
The Tribunal refuses the application of the Respondent that the Tribunal make a direction compelling the Applicant to participate in assessments by Dr Naveed and Ms Stephenson.
............................[SGD].......................
Deputy President F Meagher
Catchwords
PRACTICE AND PROCEDURE – National Disability Insurance Scheme Act 2013 (Cth) – application for review of decision refusing the Applicant access to the National Disability Insurance Scheme – interlocutory application for direction that the Applicant participate in assessments by an occupational therapist and a psychiatrist – process of balancing risk to Applicant with benefit of obtaining further evidence – procedural fairness – application refused.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) ss 2A, 33
National Disability Insurance Scheme Act 2013 (Cth) ss 26, 36
Cases
Australian Postal Corporation v Hayes (1989) 23 FCR 320; 87 ALR 283; 18 ALD 135
BKQQ and National Disability Insurance Agency [2021] AATA 732
Liddle and National Disability Insurance Agency [2018] AATA 507
MDCT and National Disability Insurance Agency [2020] AATA 6036Secondary Materials
‘Access to the NDIS Operational Guidelines’, National Disability Insurance Agency (Web Page, 6 July 2021) < cl 10.2
REASONS FOR INTERLOCUTORY DECISION
Deputy President F Meagher
Mr Thomas Atkinson (the Applicant) is seeking access to become a participant of the National Disability Insurance Scheme (NDIS). The Applicant applied to the Tribunal on 28 July 2020 seeking review of a decision made by the National Disability Insurance Agency (the Respondent) that he did not meet the criteria to access the NDIS pursuant to the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act).
During the course of the review, the Respondent requested that the Applicant undergo and participate in an assessment with a psychiatrist and an in-home functional capacity assessment with an occupational therapist. The Applicant indicated that he did not consent to being accessed by practitioners of the Respondent’s choosing. The Respondent then submitted that this was an appropriate case for the Tribunal to make a direction that the Applicant be compelled to participate in an assessment by a psychiatrist and an occupational therapist.
The material before the Tribunal with respect to the application for a direction that the Tribunal compel the Applicant to undertake assessments with a psychiatrist and an occupational therapist relevantly include:
(a)Submissions from the Respondent in respect of compellability dated 18 June 2021 (Respondent’s Submissions).
(b)Submissions from the Applicant comprising an email dated 28 June 2021 summarising his position and attaching a 15 page document entitled ‘Thomas Atkinson’s Submissions regarding Respondent’s request to compel applicant to undergo new assessments’ (Applicant’s Submissions filed on 28 June 2021) referencing evidence already before the Tribunal including reports of Ms Neagle, Dr Kan and Dr Andel, summonsed material from Drs Andel and Kan and attaching an affidavit of the Applicant sworn on 28 June 2021 (Affidavit of the Applicant sworn on 28 June 2021). The Applicant’s submission responded to the Respondent’s submissions dated 18 June 2021.
(c)Further email from the Applicant dated 27 July 2021 attaching submissions regarding the impartiality and independence of the psychiatrist and occupational therapist proposed by the Respondent to undertake an assessment of the Applicant (Applicant’s Submissions filed on 27 July 2021).
On 1 July 2021, the Tribunal conducted a telephone directions hearing with respect to the issue of compellability and both parties made oral submissions in addition to their written submissions.
The Respondent’s written submissions are that the evidence provided by the Applicant and before the Tribunal relies on self-reports[1] and that the evidence is “inadequate for the Tribunal to address the statutory question before it”.[2] The further submissions go largely to the issue of the Tribunal’s power to make the direction sought, and without addressing the reasons as to why the Applicant’s evidence is inadequate, cites a number of authorities where the desirability of the Tribunal conducting its own enquiries are set out. The Respondent also submitted that there “would be no real prejudice or risk of any potential harm to the Applicant (cf. Liddle and National Disability Insurance Agency [2018] AATA 507)” and in refusing to make the directions sought, the Respondent would be denied procedural fairness[3] and not be given a “reasonable opportunity to present its case”.[4] It was also submitted by the Respondent that the fact that there are already reports available to the Tribunal does not mean that additional reports lack utility.[5]
[1] Respondent’s Submissions, [4].
[2] Ibid, [7].
[3] Ibid, [18].
[4] Ibid, [20].
[5] Ibid, [22].
In oral submissions the Respondent reiterated the position it adopted in its written submissions and pressed that there would be no genuine risk of harm to the Applicant in undertaking the assessments[6] acknowledging that the Applicant may be tired and stressed but that that does not amount to a risk of harm.[7] The Respondent also pointed to the absence of any medical evidence from the Applicant going to the question of whether he was likely to suffer harm as a result of the assessments.[8] In oral submissions there was also some discussion of the Applicant’s submissions regarding the impact of stress upon him which will be further traversed below.
[6] Transcript, page 3, line 19.
[7] Ibid, page 3, lines 34 – 40.
[8] Ibid, page 3, lines 31 – 33.
The Respondent in its submissions considered the Tribunal’s duties in respect to making inquiries,[9] and acknowledged that there no general duty to undertake its own inquiries.[10] It also cited a number of cases[11] as authority for the proposition that the Tribunal has the power to make directions such as those sought in this matter. The Respondent seeks to distinguish Liddle and National Disability Insurance Agency [2018] AATA 5071 (Liddle) on the basis that it was a matter where a further assessment presented a real risk to the Applicant, which it says is not the case here.[12] It relies on MDCT and National Disability Insurance Agency [2020] AATA 6036 (MDCT) as authority for the proposition that the Respondent is entitled to test the evidence provided by the Applicant[13] and that the Respondent is not obliged to identify all of the possible deficiencies in an Applicant’s evidence to justify the need for further evidence – rather the request simply needs to be reasonable in the circumstances.[14] Finally the Respondent, relying on Australian Postal Corporation v Hayes (1989) 23 FCR 320; 87 ALR 283; 18 ALD 135 (Hayes), submits that it is entitled to the assessments based on the principles of natural justice noting that: [15]
At the heart of the requirements of natural justice is the principle that a party must be given a reasonable opportunity to present the case. The opportunity of presenting a case includes the opportunity to adduce one’s own evidence and the opportunity to test the opponent’s evidence.
[9] Respondent’s Submissions, [13] – [15], citing Minster for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; Prasad v Minister form Immigration and Ethnic Affairs (1985) 6 FCR 155, 563.
[10] Ibid, [13].
[11] PKVC and Minister for Home Affairs [2018] AATA 4045; MDCT and National Disability Insurance Agency [2020] AATA 6036.
[12] Respondent’s Submissions, [18].
[13] Ibid, [17].
[14] Ibid, [19], citing MDCT, [20].
[15] Ibid, [20].
The Applicant’s written submissions refer to the background of the application as he saw it including what he perceived to be contradictory and unsatisfactory conduct of the Respondent prior to and during the Tribunal process.[16] Whilst the Tribunal acknowledges that the Applicant may have those concerns they are not matters before it for the purpose of determining this application.
[16] Applicant’s Submissions filed on 28 June 2021, “Background”, [1] – [8]; “Respondent’s Submissions 5 6 and 7”, [1] – [6], [8] and [9]; “Respondent Submission 8”, [1] and [3]; “Respondent’s Submissions 9, 10 & 11”, [3]; “The Obligation to ensure expediency of the appeal:”, [3] and [4].
The Applicant’s written submissions go on to address his concerns regarding the impartiality of the Respondent’s proposed witnesses and the process for retaining them.[17] Those concerns are reiterated and expended upon in the additional written submission received from the Applicant on 27 July 2021.[18] He also submits that the reports provided by Drs Andel and Dr Kann are independent of him and the NDIA. He states that those doctors are not his advocates, and “provide care and management of” him “through a bulk billing system” over which he has no control.[19] To the extent that the Respondent submits that its proposed witnesses can be briefed to provide evidence in accordance with the Tribunal’s Guidelines on Persons Giving Expert and Opinion Evidence the Applicant submits that the witnesses from whom he has already sought and received reports can similarly be briefed “prior to providing any further evidence the Tribunal may seek”.[20]
[17]Applicant’s Submissions filed on 28 June 2021, “Background”, [4] – [5]; “Respondent submissions 21 and 22”, [5].
[18] Applicant’s Submissions filed on 27 July 2021.
[19] Applicant’s Submissions filed on 28 June 2021, “Respondent submissions 21 and 22”, [5].
[20] Ibid, “Respondent submissions 21 and 22”, [4].
The Applicant then turns to the Respondent’s submissions specifically and makes a number of submissions regarding the assessments already undertaken including as to the validity of the WHO Disability Assessment Schedule 2.0 (WHODAS 2.0) as an assessment instrument,[21] the interrelationship between self-reporting, the use of the WHODAS 2.0 and the accurate diagnosis, inter alia, of anxiety, depression, PTSD and ADHD[22], the approach taken by Ms Neagle, her expertise and the substance of her report,[23] the quality of evidence already provided by the Applicant’s treating practitioners,[24] the competence and expertise of the Applicant’s witnesses,[25] nor their credibility,[26] and the fact that the Respondent has not questioned the qualifications of the Applicant’s witnesses.[27] He also states that his psychiatrist and occupational therapist should not have to give “extensive reasoning” for their conclusions or explain their methods.[28]
[21] Ibid, “Background”, [3]; “Respondent Submission 4”, [1].
[22] Ibid “Respondent Submission 4”, [4].
[23] Ibid, “Respondent Submission 4”, [5].
[24] Ibid, “Respondent Submissions 5 6 and 7”, [6] and [7].
[25] Ibid, “Respondent submissions 12, 13 and 14”, [2] and [5].
[26] Ibid “Respondent submissions 12, 13 and 14”, [5].
[27] Ibid, “Respondent submissions 12, 13 and 14”, [5].
[28] Ibid, “Respondent submissions 12, 13 and 14”, [1].
The Applicant also submits that the Respondent’s suggestion that its proposed witnesses having undertaken assessments of the Applicant will provide more robust opinions based on a better understanding of the history than those provided by the Applicant’s doctor and psychiatrist who have “seen” him “for years is utterly laughable”.[29] He further submits that the Tribunal should not accept that the Respondent’s assessors are superior to the current assessors when no reason for believing so has been advanced by the Respondent.[30]
[29] Ibis, “Respondent submissions 21 and 22”, [3].
[30] Applicant’s Submissions filed on 28 June 2021, “Respondent submissions 21 and 22”, [3].
The matters referred to in paragraphs 9, 10 and 11 above are all matters which the Applicant is properly entitled to raise at hearing when making submissions as to the weight to be given to the evidence of each witness. They do not however go to the question of whether the Tribunal ought direct that the Applicant undertake assessments by experts of the Respondent’s choosing.
The Applicant’s submissions in relation to the issue of compellability relevantly include the following:
(a)that clause 10.2 of the ‘Access to the NDIS Operational Guideline’ (Access Guideline)[31] (referrable to section 26 of the NDIS Act) limits the circumstances in which the CEO will request further information or require a participant to undergo an assessment, and provide that that is only expected to arise in limited circumstances.[32]
[31] ‘Access to the NDIS Operational Guidelines’, National Disability Insurance Agency (Web Page, 1 October 2021) < Applicant’s Submissions filed on 28 June 2021, “Background”, [2].
(b)That, pursuant to paragraph 33(1)(b) of the Administrative Appeals Tribunal Act 1975 (AAT Act) the Tribunal is obliged to reduce formality and technicality in the conduct of its proceedings, and be expedient[33] and that such requirements are as important as any other considerations[34] and that the Respondent in requesting assessment by Dr Naveed and Ms Stephenson is relying on technicalities not ordinarily relied upon other than in exceptional circumstances, which in this case the Respondent has failed to identify.[35]
[33] Ibid, “Respondent Submissions 9, 10 & 11”, [2].
[34] Ibid, “Respondent Submission 4”, [6]; “Respondent Submissions 5 6 and 7”, [6]; “Respondent Submissions 9, 10 & 11”, [4].
[35] Ibid, “Respondent Submission 4”, [6]; “Respondent Submissions 5 6 and 7”, [6].
(c)That “it is incumbent upon the Respondent to specify why it would be reasonable and necessary … to force” him “to undergo these assessments and [that] they are required to adhere to the [Access Guideline]”[36] [sic] and that in this case, in that regard, it advances nothing other than vague contentions that Ms Neagle’s report does not provide reasons for her conclusions and that the evidence before the Tribunal is inadequate to address the issues before it.[37] Further with respect to that point the Applicant submits that the Respondent has not indicated the ways in which the further evidence sought by the Respondent will assist the Tribunal[38] nor has it addressed the adequacy of the evidence currently before the Tribunal,[39] and that to the extent that further evidence may be needed, additional questions could be addressed to the “current pool of appropriately qualified and relevant professional witnesses”.[40]
[36] Applicant’s Submissions filed on 28 June 2021, “Respondent Submissions 5 6 and 7”, [8].
[37] Ibid “Respondent Submissions 5 6 and 7”, [8].
[38] Ibid, “Respondent Submissions 5 6 and 7”, [8].
[39] Ibid, “Respondent Submissions 5 6 and 7”, [9].
[40] Ibid, “Respondent Submissions 5 6 and 7”, [9]; “The Obligation to ensure expediency of the appeal:”, [4]; “Respondent submissions 12, 13 and 14”, [4].
(d)The Respondent has not identified reasons why this is a case where the Applicant should be compelled to undergo assessments.[41]
[41] Ibid, “Respondent Submissions 9, 10 & 11”, [1].
(e)A suggestion that the “broad powers” of the Tribunal, its ability to inform itself as it sees fit, and that it is not limited by the rules of evidence (as they apply in litigation) is at odds with the suggestion that refusing to direct the Applicant to undertake assessments considered necessary by the Respondent would amount to a denial of procedural fairness to the Respondent.[42]
[42] Ibid, “Respondent Submissions 9, 10 & 11”, [2].
(f)That assessments have only been granted in circumstances where there is “clear utility in the requested assessments”.[43]
[43] Ibid, “Respondent Submissions 9, 10 & 11”, [4].
(g)That expediency in the proceedings is “just as important as anything else in the act”[44] [sic] and that although the Tribunal had noted that the matter needed to be “moved along” to be made ready for hearing,[45] the summonsing process had unnecessarily delayed the proceedings and that the Tribunal should balance what the Applicant describes as “a technical question of ‘natural justice’” with the need for expediency, in circumstances where the need for the additional assessments is not made out and the Tribunal would not be “impeded” in carrying out its functions under section 33(1)(b) of the AAT Act.[46]
[44] Ibid, “The Obligation to ensure expediency of the appeal:”, [1].
[45] Ibid, “The Obligation to ensure expediency of the appeal:”, [2].
[46] Applicant’s Submissions filed on 28 June 2021, “The Obligation to ensure expediency of the appeal:”, [3] and [4].
(h)That the Respondent had wished to force him to undergo a new assessment already at the conference stage, but chose to wait until now because it is convenient to wait until the publication of another decision of the Tribunal, namely MDCT.[47] The Applicant goes on to state:[48]
[47] Ibid, “The Obligation to ensure expediency of the appeal:”, [4].
[48] Ibid, “The Obligation to ensure expediency of the appeal:”, [4].
The respondent said the intention of the summons was to get information regarding [the Applicant’s] psychosocial impairments speaking specifically to permanence (while the written submission [the Applicant] hadn’t seen requested the entire file), and that it would be less intrusive than forcing [the Applicant] to undergo new assessments, and that whether or not they request the additional assessments would depend on what is found in the summonsed documents, and then (unsurprisingly) the respondent made that request to compel before having even received Dr Kann’s summons material. The respondent could have made that request many weeks ago.
(i)That, pursuant to paragraph 33(2A)(b) [sic] of the AAT Act the Tribunal has the power to limit the number of witnesses who may be called to give evidence.[49]
[49] Ibid, “The Obligation to ensure expediency of the appeal:”, [5].
(j)In the context of a reference, by the Respondent, to the authority for the proposition that in a review of the Respondent’s internal review decision there is no onus of proof,[50] the Applicant again pressed that “appropriate assessments already exist”, that there are no grounds for seeking additional reports, which should only occur in exceptional circumstances where there are no professional witnesses.[51] He went onto make further submissions regarding the relevance of Bushell v Repatriation Commission (1992) 175 CLR 408[52] and the onus of proof.[53] It seems that the Applicant’s ultimate position with respect to the issue of “onus of proof” is that: [54]
[50] Ibid, “Respondent submissions 12, 13 and 14”, [1], referencing Respondent’s Submissions, [12].
[51] Ibid, “Respondent submissions 12, 13 and 14”, [1].
[52] Ibid, “Respondent submissions 12, 13 and 14”, [1].
[53] Ibid, “Respondent submissions 12, 13 and 14”, [1].
[54] Ibid, “Respondent submissions 12, 13 and 14”, [3].
…the tribunal has no duty to grant the respondent’s [sic] request. The tribunal has no duty to undertake any inquiries in addition to the information provided by an applicant, with the exception of circumstances where it has made no obvious inquiries into specific critical facts…
(k)That:[55]
There are countless past AAT rulings that have reached completion by using information/evidence and testimony provided by the applicant’s treating practitioners, the applicant themselves, and the applicant’s carer, partner, or guardian/s as it is not obligated to give opportunity to the respondent to force an applicant to undergo the assessment with assessors chosen and briefed by the respondent.
(l)No additional assessments should be directed unless there is an obvious question of fact which cannot be answered by the already available witnesses.[56]
(m)That, given the emphasis placed on whether additional assessments will cause harm to the Applicant, the Tribunal should inform itself as to whether such assessments would cause the Applicant harm, and in the absence of evidence of potential harm being presented should “make reasonable enquiries of first in cases dealing with disabled people because disabled people who either have access to, or are applying for access to the NDIS, are more likely to suffer some form of harm from the requested assessments than a person who is not disabled, which automatically infers some risk”.[57] Flowing from that the Tribunal should ask the Applicant or his or her guardian if they consider that the assessments would pose a risk of harm and if they do, provide an opportunity for the Applicant to produce evidence of the risk of harm.[58]
(n)That when a party seeks a direction from the Tribunal it should justify its request by evidence and argument based on statute and guidelines, rather than referring to a “lack of utility” which is contrary to many of the cases referred to by the Applicant.[59]
(o)That the Respondent’s submissions, based on the argument that the Applicant should be expected to demonstrate the lack of utility in additional assessments and if he is unable to do so, the request should be granted, “lacks any sense of justice or fairness”.[60] Further the Respondent should be required to provide a convincing case for the additional assessments, and if it cannot no further assessments should be directed.[61] It is not enough that directing additional assessments “may result in relevant information being produced”, particularly when balanced against the need for expediency.[62]
(p)That there is a distinction to be drawn between “natural justice” which as an argument can be somewhat accepted because it is vague enough to be applied to this unusual request, and “procedural fairness” which is not denied by refusing the Respondent’s request. Using an assessor chosen and briefed by the Respondent is an unusual procedure and not one prescribed by the NDIS Act, the NDIS Rules or the AAT Act or any of the relevant guidelines. Specifically, the Applicant submitted that “[P]rocedural fairness has a) different meaning and weight as it applies to the Tribunal’s [sic] procedural obligations.”[63]
[55] Applicant’s Submissions filed on 28 June 2021, “Respondent submissions 12, 13 and 14”, [2].
[56] Ibid, “Respondent submissions 12, 13 and 14”, [3].
[57] Ibid, “Respondent submission 18”.
[58] Ibid, “Respondent submission 18”.
[59] Ibid, “Respondent submissions 21 and 22”, [1].
[60] Applicant’s Submissions filed on 28 June 2021, “Respondent submissions 21 and 22”, [2].
[61] Ibid, “Respondent submissions 21 and 22”, [3]
[62] Ibid, “Respondent submissions 21 and 22”, [3].
[63] Ibid, “Respondent submissions 21 and 22”, [5].
In addition to his written submissions the Applicant filed an affidavit dated 28 June 2021 referring to the risk of harm (from stress, anxiety and depression) and utility he considered attached to being asked to undertake additional assessments beyond those which are already before the Tribunal. He went on to depose to the impact that stress has upon him, and his particular vulnerabilities with respect to stress due to panhypopituitarism. With respect to stress the Applicant gave an example of the impact stress can have upon him referencing his response to taking an exam in remedial massage, which, he said, resulted in him being hospitalised. In his affidavit the Applicant stated that he found the assessment already made of him by Ms Neagle, Occupational Therapist, to be extremely tiring and stressful.
Further, the Applicant explained that he did not consider that a psychiatrist undertaking a single assessment of him would be able to “come to an understanding of his complex mixture of conditions as well as his long psychological history”.[64] He said that he had found previous medico-legal psychological assessments extremely stressful especially when he did not know the practitioners.
[64] Ibid, “Risk of harm due to Anxiety and depression:”.
The Applicant also set out the extensive efforts he considered he had undertaken over a lengthy period of time to respond to the requirements of the Respondent with respect to obtaining evidence, including providing evidence as requested from his treating doctors and obtaining a functional capacity assessment from an occupational therapist. He stated that the process had “brought him to near breaking point already”.[65]
[65] Applicant’s Submissions filed on 28 June 2021, “Finishing statement:”.
As referred to above there were also oral submissions made by the Respondent as to the Applicant’s hospitalisation referred to in his affidavit.[66] The Respondent’s submission referred to documents summonsed from Dr Kann and encompassed that the hospitalisation was as an adverse reaction to the flu virus, rather than from stress.[67]
[66] Transcript, page 3, lines 21 – 36.
[67] Ibid.
The Applicant clarified his position with respect to the hospitalisation and the interrelationship between him being susceptible to flu and stress - noting that the point he was making was that his reaction to stress makes him more generally susceptible to other medical conditions.[68] Specifically, the Applicant stated:[69]
The addition of having the flu was enough to push me over the edge, like, when you get a viral infection, any kind of viral infection that adds to the stress. Your body needs to respond to that stress by releasing cortisone. Other stressors add on top of that was the reason I ended up in hospital. I’ve had the flu many times before and I’ve not ended up in hospital with just the flu but when I have the additional stress of something such as study which was happening on that day, I can end up in hospital because of that.
So yes, I did have the flu in addition to all of that stress and I was making a point of the fact that my body doesn’t deal with stress well and all it takes is having something like a flue [sic] and not even – I didn’t have the symptoms yet at that point and it was enough to cause me end up in hospital and nearly die. So, I mean the – it seems like the contention is that it wasn’t caused by stress when actually that’s exactly what the case is.
[68] Ibid, page 5, lines 3 – 17.
[69] Ibid.
The Applicant also made submissions regarding authorities either referred to by the Respondent of which he considered relevant.
In that regard the Applicant submitted that, as the question of harm to the Applicant was the preeminent consideration for the Tribunal in Liddle, that approach should be adopted in this matter, and that he had “provided evidence of potential harm to the same standard that was accepted in [Liddle].”[70] He also drew the Tribunal’s attention to the approach taken in Ray and National Disability Insurance Agency [2020] AATA 3452 (Ray) where the evidence of the applicant’s treating occupational therapist was preferred, due to her familiarity with the applicant, over the evidence of an occupational therapist who had seen the applicant on one occasion.[71]
[70] Applicant’s Submissions filed on 28 June 2021, “Respondent submissions 18”.
[71] Ibid, “Respondent Submission 8”, [2]; “Respondent submissions 21 and 22”, [4].
The Applicant also sought to distinguish the case of Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252 (Harris) on the basis that, in that case, the applicant had undergone no relevant assessments or treatments.[72] He submitted that PKVC and Minister for Homes Affairs [2018] AATA 4045 (PKVC) was also distinguishable on the basis that the only objection to assessment in that case was regarding whether appropriate interpreting services could be made available and when that issue was resolved, any objection to an assessment fell away.[73]
[72] Ibid “Respondent submissions 15 and 16”.
[73] Ibid, “Respondent submissions 15 and 16”.
The Applicant made detailed submissions regarding MDCT, distinguishing it on the basis that in his case he has provided evidence of harm and that the Respondent has failed to identify what information they seek to gain from undertaking their own assessments, nor have they justified the utility of such assessments. Further, the Applicant submitted that in this case, he has provided relevant reports from an occupational therapist and psychiatrist. The Applicant also submitted that it should not be incumbent upon him to justify why further assessments are not necessary, rather the Respondent should be required to prove why the assessments are to be of utility and relevance, and that the Tribunal should not assist the Respondent in making out its arguments in that regard. The Applicant also submitted that the ability of the Respondent to fund assessments in contrast to the difficulty for many Applicants to fund such assessments should be considered in making this determination. He submitted that the argument that assessors proposed by the Respondent are “impartial” and “independent” is incompatible with the argument that the Respondent should be entitled to make its case using its own witnesses.[74]
[74] Applicant’s Submissions filed on 28 June 2021, “Respondent submission 17”.
The Applicant also made some unclear submissions that seemed to suggest that as MDCT had contrasted the legislative framework governing evidence gathering in matters to do with reasonable and necessary supports in a participant’s plan with the framework applicable to matters concerning access to the NDIS, and that MDCT was a case concerning reasonably and necessary supports, that the rules referred to in MDCT did not to apply to his matter for access to the NDISS.[75] The Tribunal considers that, to the extent that the Applicant is referring to the Access Guideline, it contains policy relevant to the consideration in this matter, as it is a matter concerning access to the NDIS. Finally, with respect to MDCT the Applicant submits that the primary considerations in determining whether additional evidence is required are whether to acquire such additional evidence is likely to cause harm and whether the evidence already in existence is adequate.[76]
[75] Ibid “Respondent submission 17”.
[76] Ibid, “Respondent submission 17”.
The Applicant also relies on the case of BKQQ and National Disability Insurance Agency [2021] AATA 732 (BKQQ) as support for his arguments and in particular submits that the same considerations as were relied upon in that case should apply to him – namely that any perceived benefit of additional assessments will not outweigh the risks, that there is substantial evidence already available to the Tribunal and that the Respondent had not made clear the relevance or utility of further assessments.[77]
[77] Ibid, “Respondent submissions 19 and 20”, [2].
Consideration
The Tribunal considers that it is well established that it has the power to make the direction sought.[78]
[78] MDCT, [8] – [12], adopting PKVC and Commissioner of Taxation v Cancer and Bowel Research Association [2013] FCAFC 140; (2013) 305 ALR 534.
The question before the Tribunal is whether it should exercise the discretion to do so. In that regard the Tribunal respectfully agrees with the statement of Deputy President Constance in Liddle, as cited with approval in MDCT, namely that: [79]
In considering these reasons it should be clearly understood that the outcomes of applications such as the present depend on the particular facts and circumstances of the cases in which they arise. I do not intend to suggest, and should not be taken as suggesting, that the Tribunal will never direct an applicant to undergo a second occupational assessment.
[79] Liddle, [7].
The Tribunal therefore proposes to consider the particular facts and circumstances of this case.
Section 26 of the NDIS Act deals with the powers of the CEO to request (as opposed to require) assessments of prospective participants seeking access to the NDIS and the consequences if the information sought is not received, namely that the access request is taken to have been withdrawn. By contrast, section 36 of the NDIS Act provides that the CEO may request, but again, not require, a participant to undergo assessments and provide reports for the purposes of preparing and approving a participants plan, but does not stipulate any consequences for failing to provide information.
In relation to additional information sought under section 26 of the NDIS Act, the Access Guideline include that “[t]he NDIA will only request further information or request a prospective participant undergo an assessment or examination and provide a copy of the report to the NDIA where it is reasonably necessary to determine whether the prospective participant meets the access criteria.”[80] The Access Guideline goes on to set out the “limited circumstances” in which the need for an assessment or examination might be likely to arise. They include where the information is exhausted, where there is inconsistent information, where medical information is outdated, or a specific matter needs to be resolved.[81]
[80] ‘Access to the NDIS Operational Guidelines’, National Disability Insurance Agency (Web Page, 1 October 2021) < cl. 10.2.
[81] ‘Access to the NDIS Operational Guidelines’, National Disability Insurance Agency (Web Page, 1 October 2021) < cl. 10.2.
The Access Guideline is policy, and as such, should be applied unless there are cogent reasons to the contrary, noting that it refers to the position when the request for access is before the NDIA, and the matter is now before the Tribunal.[82]
[82] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 645.
None of the circumstances set out in the Access Guideline giving rise to a need for an assessment or examination exist here – there is a report from an occupational therapist from June 2020 and several letters from the Applicant’s psychiatrist, including one as recently as November 2020. Further, to the extent that additional evidence is required, the Applicant has indicated his willingness for there to be questions directed to his occupational therapist and psychiatrist.[83]
[83] Applicant’s Submissions filed on 28 June 2021, “Respondent Submissions 5 6 and 7”, [9].
The Respondent’s main argument for the Applicant to undergo further assessments is that without that opportunity it will be denied procedural fairness and the ability to put its own case and test the case of the Applicant. The Respondent cites a number of well accepted authorities for the general propositions it advances. No arguments in favour of obtaining the assessments were expressed beyond that, other than that the Applicant’s reports are based on self-reports and a general submission that the evidence is “inadequate for the Tribunal to address the statutory purpose before it”.[84] To the extent that the Respondent submits, based on MDCT, that it is entitled to test the evidence of the Applicant[85] and that the Respondent is not obliged to identify all of the possible deficiencies in an Applicant’s evidence to justify the need for further evidence – rather the request needs to be reasonable in the circumstances –[86] the Tribunal considers that the Respondent has in this case provided insufficient information to ascertain whether the request is reasonable or not.
[84] Respondent’s Submissions, [7].
[85] Ibid, [17].
[86] Ibid, [19], citing MDCT.
Finally, the Respondent, relying on Hayes, states that it is entitled to be given a reasonable opportunity to present its case and that presenting its case includes the right to adduce one’s own evidence and be provided with the opportunity to test the Applicant’s case. The Tribunal agrees that the aforementioned are hallmarks of natural justice and procedural fairness. However, it also considers, in this case that there is no denial of natural justice or procedural fairness to the Respondent given the Applicant has provided reports as initially requested by the Respondent, it is able to address questions to the Applicant’s witnesses both before any hearing and under cross examination at hearing and is able to have its own experts undertake a review of the reports already furnished by the Applicant. The Tribunal might have taken a different view had the Respondent been reasonably able to identify the relevance and utility of further assessments in assisting the Tribunal.
To the extent that his failure to obtain further evidence has an impact on the outcome of this matter, the Tribunal notes, that at the directions hearing the Applicant indicated that he was aware of the risks referred to in BKQQ, should he not participate in obtaining additional evidence which might assist the Tribunal.[87]
[87] Transcript, page 6, line 22.
With respect to harm to the Applicant, the Respondent submitted that there was no real chance of him suffering harm, including that there was no medical evidence going to the issue of harm. The Applicant put a lengthy affidavit before the Tribunal explaining the harm he considers he will suffer if he were to undertake a further assessment.[88] In particular the Applicant states: [89]
The application has taken 3 years to get to where it is now. I am so extremely tired and worn out already by this application and appeal process so far that my social life is nearly non-existent, I haven’t had time or energy to engage in hobbies, I have been frequently exhausted even after having done nothing for days, my anxiety has been so high that I’ve ended up in hospital with concern of heart problems, and on multiple occasions after dealing with AAT appeal matters I have had episodes of acute adrenal fatigue which very nearly resulted in hospitalisation, and if I were not home during these episodes where I could access appropriate medication I could have died.
[88] Applicant’s Affidavit dated 28 June 2021.
[89] Ibid, “Risk of harm due to panhypopituitarism”.
Whilst there is no medical evidence supporting the Applicant’s position, the Tribunal places weight upon his evidence, provided, as it was by way of sworn affidavit.
Relevantly, the Applicant also made a number of other submissions including as to the Tribunal’s obligations pursuant to section 2A of the AAT Act. That section refers to the obligations of the Tribunal to pursue the objective of providing a mechanism of review that is accessible, fair, just, economical, informal and quick, proportionate to the importance and complexity of the matter and promotes public trust and confidence in the decision making of the Tribunal.[90] He urges that expediency is “just as important as anything else in the [AAT Act]”.[91] In terms of the history of the mater the Tribunal observes that the Applicant was invited to undertake at least a further occupational therapist assessment at a much earlier stage in the process, namely the first case conference, as he acknowledges in his submissions, and rather than press the matter at that stage the Respondent chose to issue summonses. Taking into consideration the objects as set out in the AAT Act the Tribunal considers that it is timely and proportionate that any further evidence gathering by the Respondent occur by way of questions to the Applicant’s occupational therapist and psychiatrist and it is of course not precluded from obtaining its own expert opinions in the context of the documents already before the Tribunal, but that can all take place while the rest of the pre-hearing processes take place.
[90] AAT Act, s 2A(a) – (d).
[91] Applicant’s Submissions filed on 28 June 2021, “The Obligation to ensure expediency of the appeal:”, [1].
In all the circumstances this is not a case in which the Tribunal considers the discretion should be exercised. There is evidence before the Tribunal, in respect of which the Applicant is content for the Respondent to ask questions of the witnesses who have provided it. The Applicant swears to a significant risk of harm. The Respondent can point to nothing specific to satisfy the Tribunal of the relevance or utility of the further assessments other than its right to procedural fairness, which in the context of this case the Tribunal considers is afforded by access to the Applicants witnesses, the summonsed material and the ability to obtain its own expert’s views as to the evidence already before the Tribunal. As to the ability for additional witnesses to provide evidence in accordance with the Tribunal’s Guide to Giving Expert Evidence, the Applicant has observed that it may be provided to his witnesses and they can give their evidence accordingly. The Tribunal agrees with that observation.
INTERLOCUTORY DECISION
For the reasons outlined above, the Tribunal refuses the application of the Respondent that the Tribunal make a direction compelling the Applicant to participate in assessments by Dr Naveed and Ms Stephenson.
I certify that the preceding 39
(thirty-nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President F Meagher………………[SGD]..…………..
Associate
Dated: 1 October 2021
Dates of Hearing: 1 July 2021
Date final submissions received:
Applicant:
27 July 2021
Self-represented
Solicitor for the Respondent: Mr C Bilboe, National Disability Insurance Agency
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