Baranowski and National Disability Insurance Agency

Baranowski and National Disability Insurance Agency [2023] AATA 1701 (19 June 2023)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2021/5562
Re:Ms Lucinda Baranowski
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Member T Bubutievski
Date:19 June 2023
Place:Sydney

The Tribunal sets aside the decision under review and remits the matter for reconsideration, with a direction that Ms Baranowski meets the disability requirements for access to the National Disability Insurance Scheme as set out in section 24 of the National Disability Insurance Scheme Act 2013 (Cth).
...................................[SGD].....................................
Member T Bubutievski
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – access – complex post traumatic stress disorder – borderline personality disorder – depression and anxiety – permanence conceded – substantially reduced functional capacity – episodic or fluctuating impairment – decision remitted
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
CASES
HPSC and National Disability Insurance Agency [2021] AATA 727
Kilgallin and National Disability Insurance Agency [2017] AATA 186
Madelaine and National Disability Insurance Agency [2020] AATA727
Mulligan v National Disability Insurance Agency (2015) 233 FCR 201
SECONDARY MATERIALS
Australian Government Department of Health and Aged Care, Commonwealth psychosocial support programs for people with severe mental illness, (Web Page) < Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2022 (Cth)
National Disability Insurance Scheme (Becoming a Participant) Rules 2016
National Disability Insurance Agency, Our Guidelines: Applying to the NDIS, (Web Page), < align="left">National Disability Insurance Agency, Our Guidelines: How we make decisions, (Web Page) < align="left">Revised Explanatory Memorandum, National Disability Insurance Scheme Amendment (Participant Guarantee and Other Measures) Bill 2022 (Cth)
REASONS FOR DECISION
Member T Bubutievski
19 June 2023

This application is about whether Ms Lucinda Baranowski (Ms Baranowski) should be granted access to the National Disability Insurance Scheme (the NDIS). Ms Baranowski applied for access to the NDIS on the basis of complex post traumatic stress disorder (complex PTSD), borderline personality disorder, depression and anxiety.
Following her application to become a participant, the National Disability Insurance Agency (NDIA or the Agency) decided, on 23 March 2021, that Ms Baranowski was ineligible to access the NDIS as she did not meet the disability requirements; specifically, that she did not have a substantial functional impairment. The Agency also decided that Ms Baranowski did not meet the early intervention requirements for access to the NDIS. Ms Baranowski sought internal review of this decision by the Agency and on 13 July 2021 an Agency decision maker affirmed the decision. It is this reviewable decision of the Agency which is the subject of Ms Baranowski’s application to this Tribunal, on 13 August 2021, for external merits review under section 103 of the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act).
It is not disputed that Ms Baranowski has complex PTSD, borderline personality disorder, depression and anxiety and that these are psychosocial disabilities. It is also not disputed that the impairments that Ms Baranowski experiences as a result of her psychosocial disabilities are permanent.
Ms Baranowski contends that she meets the access criteria under section 21 of the NDIS Act.
To gain access to the NDIS, under section 21 of the NDIS Act, Ms Baranowski is required to meet:
·the “age” access criteria (section 21(1)(a));
·the “residence” access criteria (section 21(1)(b)); and
·either the “disability” access criteria (section 21(1)(c)(i)) or the “early intervention” access criteria (section 21(1)(c)(ii)).
The Agency accepts that Ms Baranowski meets both the “age” and “residence” access criteria but contends that she does not meet the “disability” or “early intervention” access criteria.
The parties to this proceeding consented to the matter being determined without a hearing. Ms Baranowski’s representative requested that it be noted that she consented to a decision being made on the papers on the basis that Ms Baranowski would not cope with the requirements of proceeding to hearing due to her psychosocial impairments. The Tribunal is satisfied that the issues for determination in this matter can be adequately determined in the absence of the parties. The Tribunal confirmed the consent of the parties in a directions hearing on 26 April 2023 and proceeded to determine the matter in the absence of a hearing under s 34J of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act).
LEGISLATIVE FRAMEWORK
Before proceeding further, it is necessary to note that amendments to sections 24 and 25 of the NDIS Act came into effect on 1 July 2022. The Tribunal had not completed its review of Ms Baranowski’s application by the time the amendments commenced. Both the original decision which the Agency made regarding Ms Baranowski’s access request, and the Agency’s internal review decision, were made prior to those amendments.
At the time that the Agency made its internal review decision, a person met the disability requirements under section 24(1)(a) if:
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...
The amendments removed the reference to “impairments attributable to a psychiatric condition” and replaced them with the phrase ”one or more impairments to which a psychosocial disability is attributable”. From 1 July 2022, a person meets the disability requirements under section 24(1)(a) if:
the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable...
The transitional provisions at Schedule 2, Item 54 of the National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Act 2022 (Cth) provide that:
(1)The amendments of sections 24 and 25 of the National Disability Insurance Scheme Act 2013 made by this Schedule apply in relation to the following:
(a)   an access request made on or after the commencement of this item;
(b)   an access request that was pending immediately before that commencement;
(c)   a revocation under section 30 of that Act made on or after that commencement.
As the decision under review relates to the determination of an access request made under section 18 of the Act, it follows that the phrase “an access request that [is] pending immediately before” the commencement covers a decision under review, as in this review, that “has not been finalised prior to the commencement”. The Revised Explanatory Memorandum[1] provides, in relation to Schedule 3, Item 56, that the amendment would apply “if a decision on their request under section 18 of the Act has not been finalised prior to the commencement”. The Tribunal must therefore determine this matter under the law as amended.
[1] Revised Explanatory Memorandum, National Disability Insurance Scheme Amendment (Participant Guarantee and Other Measures) Bill 2022 (Cth).
Section 24 of the NDIS Act sets out the disability criteria as follows:
(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 the person has one or more impairments to which a psychosocial disability is attributable; 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 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.
The early intervention access criteria are set out in section 25 of the NDIS Act:
(1)A person meets the early intervention requirementsif:
(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 to which a psychosocial disability is attributable and that are, or are likely to be, permanent; or
(iii)   is a child who has developmentaldelay; 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.
(1A)For the purposes of subparagraph (1)(a)(i) or (ii), an impairment or impairments that are episodic or fluctuating may be taken to be permanent despite the episodic or fluctuating nature of the impairments.
(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.
Section 27 of the NDIS Act provides that NDIS Rules may prescribe the circumstances in which, or criteria to be applied in assessing whether, one or more impairments result in substantially reduced functional capacity for the purposes of section 24(1)(c). Those rules are presently in the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (the Rules). The Tribunal is bound to apply the legislation as enacted, including the Rules.
Specifically, Rule 5.8 of the Rules elaborates upon when an impairment is taken to have resulted in a ‘substantially reduced functional capacity’ to undertake any one or more of the relevant activities in relation to subsection 24(1)(c) of the NDIS Act and provides as follows:
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.
The objects of the Act are set out in section 3 of the NDIS Act. These include giving effect to international treaty obligations; supporting the independence and social and economic participation of people with a disability; and providing reasonable and necessary supports for participants. Section 4 sets out general principles guiding actions under the Act. These include that people with disability have the same right as other members of society to realise their potential and should be supported to participate in and contribute to social and economic life. They should also have certainty that they will receive the care and support that they need over their lifetime. The Tribunal has considered the objects and general principles of the Act in making its decision.
The NDIA has issued Operational Guidelines including in relation to the access criteria under the Act (Operational Guidelines). The Operational Guidelines are published on the NDIA website.[2] The way they are written has changed significantly over time to make them more user friendly for potential applicants to and participants in the NDIS, but the important parts of the content have not been greatly altered. The Tribunal also had regard to the Operational Guidelines in coming to its decision.
[2] National Disability Insurance Agency, Our Guidelines: How we make decisions, (Web Page) <
The Respondent lodged a bundle of documents pursuant to its obligations under section 37 of the AAT Act on 10 September 2021 (T Documents), comprising 221 pages. This included documents provided to the Agency by Ms Baranowski in support of her application. It also lodged an independent expert report from Mr Glen Dwyer, Occupational Therapist, dated 13 January 2023, comprising 34 pages; the letter of instruction to Mr Dwyer, dated 17 August 2022 and comprising 14 pages; a set of targeted questions for Ms Baranowski’s treating psychiatrist dated 15 June 2022, comprising 4 pages; a set of targeted questions for Ms Baranowski’s general practitioner dated 7 February 2023, comprising 3 pages; a set of targeted questions for Mr Dwyer dated 7 February 2023, comprising 3 pages; a one page set of further targeted questions for Ms Baranowski’s treating psychiatrist dated 7 February 2023; a supplementary report from Mr Dwyer dated 20 February 2023, comprising 6 pages; and a Statement of Facts, Issues and Contentions (SFIC) dated 24 May 2023, comprising 12 pages.
Ms Baranowski lodged a Statement of Lived Experience dated 8 December 2021, comprising 6 pages; a one page letter from Ms Marnie Donovan, Social Worker, St John of God Hospital, dated 3 February 2022; a bundle of medical reports lodged on 2 March 2022, comprising 53 pages; an undated response to the targeted questions for the psychiatrist completed by Dr Brent Thomas and lodged on 16 February 2023, comprising two pages; and a response to the targeted questions for Ms Baranowski’s general practitioner from Dr Helen Williams, dated 22 February 2023, comprising 2 pages.
ISSUES BEFORE THE TRIBUNAL
It was common ground between the parties that Ms Baranowski met the age requirements in section 22 and the residence requirements in section 23 of the NDIS Act at the time that she applied for access to the NDIS. The issues for determination are whether Ms Baranowski meets the disability requirements for access to the scheme, and if not, whether she meets the early intervention requirements.
In considering the disability requirements, the Agency decided that Ms Baranowski met the criteria in section 24(1)(a) of the Act, as having a disability attributable to complex PTSD, borderline personality disorder, depression and anxiety. It also decided that Ms Baranowski’s impairments are, or are likely to be, permanent (section 24(1)(b)).[3]
[3] T Documents, T2, p 21.
The Agency did not accept that Ms Baranowski’s impairments result in a substantially reduced functional capacity.[4] It was of the view that Ms Baranowski’s impairment is fluctuating or episodic, which requires an examination of Ms Baranowski’s ability to perform activities in the periods between exacerbations. The internal reviewer was of the opinion that the evidence does not establish that Ms Baranowski requires the assistance of another person, specialist technology or equipment between periods of exacerbation. Hence, the internal reviewer concluded that the criteria in section 24(1)(c) were not met.[5] While the Agency accepted that the challenges being experienced by Ms Baranowski are unique and she would currently benefit from support, it decided that the requirements of section 24(1)(e) – that Ms Baranowski would require the support of the scheme for her lifetime – were also not met. It also decided that section 25 – the early intervention requirements – were not met.[6]
[4] Ibid, pp 22-24.
[5] Ibid, pp 13-14.
[6] Ibid, pp 25-26.
The Respondent states that there is no evidence to establish that the provision of early intervention supports are likely to benefit Ms Baranowski by reducing her need for future support, and that early intervention supports are not most appropriately funded by the NDIS. The Respondent is of the view that any early intervention support that Ms Baranowski may require would be clinical mental health supports, which are not the responsibility of the NDIS.[7]
[7] T2, pp 25-26.
Ms Baranowski contended that her disability is permanent and causes her to have a substantially reduced functional capacity in a number of domains including communication, self-care, social interaction, learning and self-management. In her Statement of Lived Experience she states in part:[8]
I have trouble communicating and expressing my needs. I have trouble communicating to my health care professionals [of] things that have happened to me in the past. It is too hard for me to find the right words.
…I do have trouble learning and remembering new things. I have always been like this. I am also very forgetful and need people around me to help guide me through what I need to do day to day. This is very hard with 4 children. I use the assistance of other people to help guide me.
I don’t have any friends that I see regularly, but I do have friends. My family is my friends, they help me and try to keep me company a bit. My husband is mostly the only person I talk to aside from my children.
One outlet I have is social media. I rely on this a lot in all the days I cannot get out of bed. I don’t shower regularly or brush my hair. My husband makes sure I have clean clothes set out most days and tries to get me out of bed.
…I am a member of our local RFS but after the big fires in 2019 I can no longer participate from trauma seen during that time.
I don’t do any cooking or cleaning and home anymore. I never do any gardening. It is sad for me. We get a hamper each week from the Sydney Region Aboriginal Corporation.
I don’t normally plan my days – I usually stay in bed if I can. I have a bank account for my own small savings but I’ve never paid a bill. My husband does all our finances. I try my best to manage my own medications but I am very forgetful and sometimes make mistakes. I don’t really make decisions that will affect my life except going into St John of God for treatment.
…I have verbal tics which makes me nervous to meet new people or engage with people – clicking of the tongue and shrugging shoulders…are the main ones.
[8] Statement of Lived Experience, 8 December 2021, lodged on 27 January 2022.

In his carer impact statement, dated 4 June 2021, Ms Baranowski’s husband, Mr Stephen Baranowski, states in part:[9]
Over the last year, Lucinda has spent 4 months in hospital gaining treatment she needs to try and function a normal life. During this time, I have maintained a full-time job along with all day-to-day roles associated in providing our 4 children a safe and stable upbringing. Performing all duties associated with this, like preparing meals, school lunches, washing, cleaning the house, and organising their day-to-day life’s. In the past year when Lucinda has been home, I have maintained all these roles as Lucinda is incapable of perform these roles with the mental health issues she faces. I also care for Lucinda when she is at home.
When Lucinda is at home, she struggles to get out of bed some days due to her illness and cannot perform tasks that we all take for granted like make the kids lunches or preparing a meal or washing the clothes and picking up after the children. Lucinda was a positive, outgoing person who would always volunteer within the community. Currently Lucinda suffers so much from Anxiety and depression that she struggles to converse with people and meet with people. I find it extremely hard to comprehend the struggles she faces daily.
My full-time role includes a couple of nights away each month. During the night away I need to engage with parents or friends to stay with Lucinda to help her with the children and the household needs. Lucinda does not function without support.
[9] T17, pp 101-102.
The question the Tribunal must answer is whether Ms Baranowski’s impairments result in substantially reduced functional capacity to undertake one or more of the activities listed in section 24(1)(c) of the Act. The case law has established several important principles about how to undertake that assessment. In Mulligan v National Disability Insurance Agency (Mulligan)[10], it was found that what is being assessed is what Ms Baranowski can and cannot do, not what she actually does. It is sufficient for an Applicant to have substantially reduced functional capacity in relation to just one activity.[11] The relevant test is not how much better Ms Baranowski’s life would be if she had access to NDIS supports, although such access would be likely to improve her quality of life.[12] Her functional capacity should not be characterised only by what she is able to do on a bad day, but by what she can do overall, taking account of both the bad days and the days that are better.[13]
[10] Mulligan v National Disability Insurance Agency (2015) 233 FCR 201 [56].
[11] Ibid.
[12] Madelaine v National Disability Insurance Agency [2020] AATA 4025, [72]-[73].
[13] Ibid, [76].
For the reasons set out below, the Tribunal is satisfied that the evidence does establish that Ms Baranowski’s impairments result in a substantially reduced functional capacity in at least one of the relevant domains. This means that the requirements of section 24 of the NDIS Act for access to the NDIS are met and the Tribunal does not need to consider the early intervention requirements under section 25 of the NDIS Act.
The Legal Test
For the Tribunal to be satisfied that Ms Baranowski meets the disability requirements for access to the NDIS, the Tribunal must be able to find that Ms Baranowski has substantially impaired function in at least one of the six domains as set out in section 24 of the Act. The test is not that she might have a substantial functional impairment or that she is likely to have such an impairment. The test is that she does have such an impairment and that impairment is caused by her disability. The Tribunal must reach a level of positive satisfaction that the requirements of the NDIS Act are established (as set out in Mulligan). To reach a level of positive satisfaction the Tribunal must be satisfied that the evidence supports a finding that Ms Baranowski has a substantial functional impairment.
Medical Evidence
In an Evidence of Psychosocial Disability Form dated 24 February 2022,[14] Ms Baranowski’s GP, Dr Helen Williams, states that she considers Ms Baranowski’s disability to be permanent. She says it can only be managed, not cured. Dr Williams says that Ms Baranowski has “BPD, Complex PTSD, Major Depressive Disorder [and] Anxiety Disorder”[15]. She says that this causes Ms Baranowski to have a “global impairment of memory/perception, reality at times, thoughts and emotions…”[16]. She says that Ms Baranowski is socially anxious and avoids social contact, and that she has acute panic attacks and social phobia. She says that Ms Baranowski has a decreased ability to focus, concentrate and plan, and that complex daily tasks or problem solving are “impossible” and Ms Baranowski is easily overwhelmed. She advises that Ms Baranowski neglects her personal care, hygiene and grooming when her anxiety levels are high, and she often remains in bed. When Ms Baranowski’s anxiety is high, Dr Williams describes her communication as “hard” and “poor”, with difficulty maintaining eye contact. She says that Ms Baranowski also has a decreased ability to remember, focus, create new memories or learn new skills. She notes that Ms Baranowski is able to walk around while having panic attacks or when she is suicidal.
[14] Bundle of medical reports lodged on 2 March 2022, Part 1, pp 2-6.
[15] Ibid, p 2.
[16] Ibid, p 3
Dr Williams advises that Ms Baranowski is on a comprehensive daily medication regime, including diazepam, lamotrigine, Largactil, Ritalin, venlafaxine, Endone and zopiclone.[17] She also takes painkillers as needed and has vitamin B12 injections.
[17] Bundle of medical reports lodged on 2 March 2022, Part 1, p 7.
The medical documents attached to this form include several discharge summaries from St John of God Hospital, Richmond (St John of God). These show that Ms Baranowski had inpatient stays of between 25 and 45 days in June and July 2020; November and December 2020; February and March 2021; and May and June 2021.[18] A mental health assessment of 6 June 2020[19] from Nepean Hospital says that Ms Baranowski had been brought in by ambulance. Ms Baranowski had been aggressive and needed to be sedated. This document notes that she was also seen at the same facility in November 2019 after a suicide attempt.
[18] Bundle of medical reports lodged on 2 March 2022, Part 1, pp 11, 14, 19, 22 and Part 2, p 8.
[19] Bundle of medical reports lodged on 2 March 2022, Part 2, p 13.
Dr Williams also advises that Ms Baranowski has had numerous hospital admissions for treatment, more recently at St John of God for prolonged inpatient therapy, transcranial magnetic stimulation (TMS), medication management, psychological support and anxiety programs.[20] She is under the regular care of clinical psychologist Ms Michelle Gibbons, and psychiatrist Dr Katia Foresti-Zubaran. Dr Williams states that Ms Baranowski is fully compliant with her therapy and is reviewed by her fortnightly. She says that Ms Baranowski is “generally crippled by her social anxiety and finds herself isolated and withdrawn with frequent negative thoughts and in the past self harm”.[21] Dr Williams advises that multiple attempts have been made both in and out of hospital to maximise Ms Baranowski’s psychological health and function. She states that Ms Baranowski’s borderline personality disorder, complex PTSD and ADHD are permanent and will not resolve with therapies, and her major depression and severe anxiety disorder have not responded well to an inpatient anxiety program or series of TMS. She opines that the only options left are further changes to medication or electroconvulsive therapy, and decisions about this need to be made by Ms Baranowski’s psychiatrist. Dr Williams states “these diseases affect her whole life on a daily basis. She struggles to leave the house and is generally isolated at home.”[22]
[20] Letter from Dr Helen Williams, dated 22 February 2023, lodged on 23 February 2023.
[21] Ibid.
[22] Ibid.
Dr Foresti-Zubaran completed an Evidence of Psychosocial Disability Form dated 27 November 2020.[23] She says that Ms Baranowski has an impairment of function due to an active, ongoing mental health disorder.[24] Her symptoms include poor concentration, low and depressed mood, severe anxiety, poor sleep due to PTSD, irritability, and emotional dysregulation.[25] She noted that Ms Baranowski moderately withdraws from social contact and at that time was poorly groomed.[26] She states that Ms Baranowski has poor functioning in most areas of life and poor self-care due to severe depression.[27] Dr Foresti-Zubaran states that she believes that Ms Baranowski “would strongly benefit from help whilst she is receiving treatment for her mental health condition”.[28]
[23] T3, pp 27-35.
[24] Ibid, p 28.
[25] Ibid.
[26] Ibid, p 32.
[27] Ibid, p 34.
[28] Ibid, p 35.
Dr Foresti-Zubaran has completed a second Evidence of Psychosocial Disability Form dated 10 March 2021.[29] She states that Ms Baranowski has a severe impairment of function due to ongoing, treatment resistant mental illness. Her symptoms include those listed above, plus panic attacks and self-harming episodes.[30] Dr Foresti-Zubaran’s opinion is that Ms Baranowski has significant impairments in the areas of social interaction and self-management; moderate impairments in communication and learning; minor impairment of self-care unless she is having an ongoing severe depressive episode; and no impairment of mobility.[31] Dr Foresti-Zubaran states that Ms Baranowski’s mental illness has affected most aspects of her life and she would benefit from NDIS support.[32]
[29] T10, pp 69-77.
[30] Ibid, p 70.
[31] Ibid, p 76.
[32] Ibid, p 77.
An Evidence of Psychosocial Disability Form was also completed by Dr Gopi on 13 March 2021.[33] This says that Ms Baranowski has borderline personality disorder and complex PTSD and her presentation is consistent with this. Dr Gopi says that there are no known, available and appropriate evidence-based clinical, medical or other treatments that are likely to remedy the impairments, and that the impairments are permanent.[34] The Tribunal notes that Section B of this form was completed on 10 March 2021 by Ms Marnie Donovan, a social worker, not Dr Gopi. Section B says that Ms Baranowski has extreme difficulty initiating and responding to conversation; withdraws totally or near totally from social contact; shows moderate warmth to others; is poorly groomed and has poor cleanliness of clothes; extremely neglects her physical health; is rarely violent; makes and keeps up friendships with considerable difficulty; has an extreme problem maintaining an adequate diet; is moderately unreliable in managing her medication although is usually willing to take medication and cooperate with health services; has moderate problems living with others; occasionally behaves irresponsibly; and is only capable of sheltered work.[35]
[33] T9, pp 59-68.
[34] Ibid, p 64.
[35] T9, pp 65-66.
Dr Brent Thomas, psychiatrist, who has treated Ms Baranowski at St John of God, has answered the targeted questions for Ms Baranowski’s psychiatrist.[36] He was asked if he considered that medications, electroconvulsive therapy, group and individual therapy, TMS, art therapy and dialectical behaviour therapy are likely to remedy Ms Baranowski’s impairments. His response was “Yes, all of the above”.[37] He gives a list of prescribed medications and advises that they all assist with Ms Baranowski’s stabilisation. In response to a question about any additional treatments that may assist Ms Baranowski, such as eye movement desensitisation therapy or other pharmacological interventions, Dr Thomas gives an opinion that they would not alleviate Ms Baranowski’s impairments.
[36] Response to targeted questions, Dr Brent Thomas, undated, lodged on 16 February 2023, pp 1-2.
[37] Ibid, p 1.
Allied Health Evidence
Ms Taylah Jamieson, from STRIDE Mental Health, has written a letter of support for Ms Baranowski’s application to become a participant of the NDIS, dated 18 December 2020.[38] This letter states that she has been working with Ms Baranowski as part of the National Psychosocial Support Program (the Program) since 1 September 2020. The Tribunal notes that the Program is a Commonwealth funded program which provides support to people with mental illness who need short-term help to function day-to-day. It helps people to connect with clinical care and other services; build capacity in managing day-to-day activities; strengthen social skills, friendships and relationships with family; and increase educational and vocational skills.[39] The Program is only available to people who are not participants of the NDIS or another state or territory funded service.
[38] T6, pp 48-49.
[39] Australian Government Department of Health and Aged Care, Commonwealth psychosocial support programs for people with severe mental illness, (Web Page) <>
Ms Jamieson states that it has become evident to her that Ms Baranowski requires a higher level of support due to the functional limitations she experiences as a result of her diagnosed psychosocial disabilities. She states that Ms Baranowski has reported that she has trouble accessing the community due to the informal nature of her supports and would benefit from NDIS funded support workers for community access. She says that Ms Baranowski’s anxiety and tics affect her ability to self-advocate and she would benefit from speech therapy, occupational therapy, psychology and support work. She states that Ms Baranowski avoids social situations due to recurrent dissociative episodes where she cannot remember what has occurred. Ms Jamieson says that Ms Baranowski has reported neglecting her self-care and hygiene during bouts of depression when she is bedridden. Ms Jamieson is of the opinion that Ms Baranowski would benefit from occupational therapy and support worker assistance to establish routines and skills for daily living, capacity building for cooking and cleaning and prompting to complete hygiene tasks.
Ms Jamieson says that Ms Baranowski “struggles significantly in the domain of self-management and relies heavily on informal support from her husband”.[40] She is easily overwhelmed and experiences panic and anxiety maintaining her own schedule and exercising the skills of daily living. Ms Jamieson is of the opinion that Ms Baranowski would be an appropriate candidate for the NIDS.
[40] T16, p 49.
A further letter from Ms Jamieson, dated 15 March 2021, repeats the above.[41]
[41] T13, pp 89-90.
Two different social workers have completed Access Request forms for Ms Baranowski. On 17 December 2020, Ms Harveen Khuman completed a form.[42] Ms Khuman says that Ms Baranowski needs assistance from another person with communication and social interaction, learning and self-management, but not self-care or mobility. On 15 March 2021, Ms Marnie Donovan stated that Ms Baranowski needs assistance in all domains.[43]
[42] T4.
[43] T12, pp 86-87.
A letter from Ms Donovan, dated 3 June 2021, states that none of the treatments Ms Baranowski has tried have been successful, which proves that her impairment is persistent, long term and “results in substantially reduced capacity for social and economic participation”.[44] She says that Ms Baranowski has identified that having appointments twice weekly with STRIDE Mental Health kept her well and kept her socially engaged and motivated to get out of bed and get dressed. Ms Donovan states that Ms Baranowski’s mental health conditions and the medication she takes for them impact on her ability to function across all domains and Ms Baranowski relies on her husband to care for her, explain things to her, manage her appointments and manage her finances. Her husband also needs to prompt her to shower and eat and she reports only showering every few days. Ms Donovan notes that Ms Baranowski required prompting to shower during her hospital admission.
[44] T16, p 97.
A further letter from Ms Donovan, dated 3 February 2022, confirms that at that time Ms Baranowski was an inpatient at St John of God due to a deterioration in her mental health and that Ms Donovan was looking at supports available to her upon her discharge.[45]
[45] Letter from Ms Marnie Donovan dated 3 February 2022, lodged on 10 February 2022.
A number of self-assessments apparently completed by Ms Baranowski appear in the T Documents.[46] These are undated and do not represent any independent or clinical evaluation. The Tribunal concludes that they demonstrate that Ms Baranowski was subjectively experiencing symptoms at the time that they were completed, but that they do not add to the Tribunal’s understanding. The other evidence establishes that Ms Baranowski experiences regular symptoms of varying intensity.
[46] T18-T21.
Independent Occupational Therapy Assessment – Mr Glen Dwyer
It is usual in such cases for a person’s level of functional impairment to be independently assessed. Ms Baranowski was independently assessed by an occupational therapist, Mr Glen Dwyer on 15 December 2022. Mr Dwyer has provided an initial report dated 13 January 2023 and a supplementary report dated 20 February 2023. The conclusion Mr Dwyer came to was that “…consequent to the effects of her medical conditions, Ms Baranowski experiences ongoing functional limitations that impact, to varying degrees, her ability to carry out various activities of daily living.”[47] Mr Dwyer notes that Ms Baranowski experiences severe psychiatric symptoms two or three days per week and that on those days her level of function is significantly reduced.[48] Mr Dwyer recommends that Ms Baranowski have the assistance of a mental health worker, occupational therapist, support worker and a cleaner. He recommends that Ms Baranowski have assistance in the domains of social interaction, learning, mobility, self-care and self-management, and that this should be assessed once she has completed a planned inpatient admission to St John of God in January 2023.[49] Mr Dwyer states that “…given the severity of her symptoms, Ms Baranowski’s current treatment continues to involve hospital-based care as part of the NSW health system. She is currently in a cycle of periods spent at home interspersed with periods of inpatient psychiatric treatment…”[50] and that she may benefit from assistance when she is not in hospital.[51]
[47] Report from Mr Glen Dwyer, occupational therapist, dated 13 January 2023, p 4.
[48] Ibid, p 15.
[49] Ibid, p 5.
[50] Ibid, p 6.
[51] Ibid, p 4.
Mr Dwyer says that his opinion is that:[52]
…whilst Ms Baranowski’s symptoms remain acute as per her present circumstances, the efficacy of implementing extensive community-based therapy and support worker assistance at the current time is questionable. However, in the event she can cease her requirement for care under the NSW health system, her suitability for a range of community-based therapy and support worker services should be reassessed
…it is unclear whether her primary care in the future will continue to be primarily through the NSW health system or whether a transition to community-based rehabilitation services will be a realistic management for her.
[52] Ibid, p 7.
According to Mr Dwyer, Ms Baranowski has difficulties undertaking tasks which involve:[53]
·Motivation or drive
·Consistently maintaining an even demeanour when around other people
·Being in public places or crowded/noisy environments
·Cognitive endurance, particularly in relation to memory, concentration and attention
·Attending to complex or concurrent tasks
·Persisting with or staying engaged with activity (due to low mood)
[53] Ibid, p 8.
In his supplementary report of 20 February 2023 Mr Dwyer provides more context around the variability of Ms Baranowski’s symptoms:[54]
…days in which her symptoms have become so overwhelming that she has difficulty facing any task, even one that may be perceived as simple, such as getting up and getting dressed. On these days her basic sense of not wanting to soil herself means she takes herself to the toilet, however she achieves little else on these days.
I understand this information is a little jarring against function on other days of the week (where she can participate in tasks such as driving and working part-time), however I consider the severe impact her psychiatric symptoms have on her on regular occasions (reported as 2-3 days per week) is consistent with the available medical evidence, noting she was due to go back into St John of God for inpatient acute psychiatric care not long after my previous assessment.
[54] Supplementary Report of Mr Glen Dwyer, occupational therapist, 20 February 2023, p 2.

He also clarifies that his opinion is that:[55]
…all recommendations in my previous report would best be implemented once Ms Baranowski has ceased her requirement for acute inpatient psychiatric care through the NSW health system.
…(primarily on the basis that implementation whilst symptoms are acute would likely fail and not achieve the desired outcome). Ideally, all acute care should be completed and further medical advice provided and analysed in order to confirm the appropriate community-based support for Ms Baranowski.
[55] Ibid.
Mr Dwyer states that on the days that Ms Baranowski is unable to get out of bed, effectively all domains are “severely impaired by way of neglect”.[56]
[56] Ibid.
CONSIDERATION
The first matter in dispute is whether Ms Baranowski has a substantially reduced functional capacity in any of the domains. The Agency’s Operational Guidelines say that an impairment substantially reduces a person’s functional capacity if they usually need disability-specific supports to participate in or complete tasks in the relevant functional domains. This includes a high level of support from other people, such as physical assistance, guidance, supervision or prompting; or assistive technology, equipment or home modifications.[57]
[57] National Disability Insurance Agency, Our Guidelines: Applying to the NDIS, (Web Page) <>
It is common ground that Ms Baranowski does need guidance, supervision and prompting from another person on the days that she is experiencing more severe symptoms. The Agency’s position is that overall, taking account of both the good and bad days, Ms Baranowski does not have a substantially reduced functional capacity in any domain.
The evidence before the Tribunal indicates that Ms Baranowski experiences severe psychiatric symptoms two to three days per week. She also becomes acutely unwell and requires lengthy hospital inpatient stays. When she is unwell in hospital, it is the responsibility of the health system to care for her and support her mental health. When she is not in hospital that responsibility is taken by her general practitioner, psychiatrist, psychologist, mental health support services such as STRIDE, and her family, in particular her husband and parents. Ms Donovan notes that Ms Baranowski has identified that having appointments twice weekly with STRIDE Mental Health assisted Ms Baranowski. The Program parameters under which this support is provided to Ms Baranowski indicate that it is available on a short-term basis only. This is unfortunate for Ms Baranowski, as it appears that she would benefit from ongoing support. The Tribunal needs to consider, not whether Ms Baranowski would benefit from ongoing support, but whether she requires such support.
The Tribunal considered Ms Baranowski’s impairments in each of the functional domains.
Communication
Ms Baranowski indicated that she has trouble expressing herself verbally and finding the right words. Dr Williams says that communication is poor when Ms Baranowski’s anxiety levels are high. Ms Baranowski’s usual treating psychiatrist, Dr Foresti-Zubaran, states that Ms Baranowski has a moderate impairment in communication. The allied health evidence indicates that Ms Baranowski experiences a variable level of impairment depending upon her anxiety levels. The Operational Guidelines set out what communication is for the purpose of the Act:[58]
• Communicating – how you speak, write, or use sign language and gestures, to express yourself compared to other people your age. We also look at how well you understand people, and how others understand you.
[58] National Disability Insurance Agency, Our Guidelines: Applying to the NDIS, (Web Page) <>
If a person is able to do all these things it is unlikely that they have a substantial functional impairment in communication.[59] The Tribunal is satisfied that Ms Baranowski’s disability does cause her to experience tics when speaking. It accepts that it may also cause her some difficulties expressing herself and understanding others, because of her anxiety and level of subjective distress. The Tribunal concluded that Ms Baranowski does have an impairment in communication. This impairment varies according to the nature and circumstances of the communication and how well Ms Baranowski is on any given day. Some days, her communication may be very poor. On other days, she may be able to demonstrate normal, or almost normal skills. Overall, the Tribunal agrees with the evidence of Dr Foresti-Zubaran, her regular treating psychiatrist, that Ms Baranowski has a moderate impairment in communication.
[59] HPSC and National Disability Insurance Agency [2021] AATA 727, [50].
The Tribunal cannot conclude that Ms Baranowski has a substantial functional impairment in the domain of communication. The requirements of section 24(1)(c)(i) of the Act are not satisfied.
Social interaction
Ms Baranowski contends that her social interaction is substantially impaired. Her evidence is that although she has friends, she does not see them regularly and has difficulty motivating herself to leave her bed or leave her home. The Operational Guidelines focus on whether or not a person has the skills to engage in social interaction and how they behave when they do so, rather than any opportunity for social interaction which may be present in their lives or any barriers which may make accessing social interaction more difficult for the person.[60]
[60] National Disability Insurance Agency, Our Guidelines: Applying to the NDIS, (Web Page) <>
Mr Dwyer says that Ms Baranowski is able to make and keep friends, but her capacity to interact with the community independently is significantly impaired due to her anxiety. He states that she is unable to travel beyond the immediate local area due to her severe anxiety.[61] At a minimum, she requires her children to travel in the car with her for any instances of driving outside the immediate local area.[62] As soon as she moves out of the immediate local area, her anxiety associated with dealing with less familiar surroundings and people becomes intrusive.[63] Ms Baranowski also has rare dissociative episodes where she has no awareness of her actions or surroundings.[64] He notes that Ms Baranowski reported that she has extreme difficulty managing her symptoms when in the presence of strangers, where her anxiety is particularly debilitating for her.[65] His recommendation is that Ms Baranowski does require assistance with social interaction. He recommends the assistance of an experienced mental health worker and occupational therapy focusing on living skills.[66]
[61] Report from Mr Glen Dwyer, occupational therapist, dated 13 January 2023, p 16.
[62] Ibid.
[63] Ibid.
[64] Ibid.
[65] Ibid.
[66] Report from Mr Glen Dwyer, occupational therapist, dated 13 January 2023, p 5.
Dr Foresti-Zubaran states that Ms Baranowski has a severe impairment in the domain of social interaction. Dr Williams states that Ms Baranowski is generally crippled by social anxiety and finds herself isolated and withdrawn. Ms Donovan states that Ms Baranowski withdraws totally or almost totally from social interaction. Ms Jamieson advises that Ms Baranowski avoids social contact due to dissociative episodes. Ms Khuman says that Ms Baranowski needs assistance from another person with social interaction.
The test set out in Mulligan requires that the Tribunal must be positively satisfied that the requirements of the Act are established in relation to a disability before access to the scheme can be granted. There is no doubt that Ms Baranowski is severely impaired in the domain of social interaction on the days that she is unwell. The Tribunal is satisfied that the evidence before it also establishes that Ms Baranowski is severely impaired in this domain even on the days that she is well. She is generally so affected by social anxiety that her treating doctor describes her as “crippled” by it. Mr Dwyer reports that even on the days that Ms Baranowski is well enough to travel in her local area, her anxiety associated with dealing with less familiar surroundings and people becomes intrusive as soon as she leaves that area. Ms Baranowski also has rare dissociative episodes and extreme difficulty managing her symptoms when in the presence of strangers and has concluded that Ms Baranowski has difficulty consistently maintaining an even demeanour when around other people.[67] While these difficulties are more intense on the days that she is experiencing severe psychological symptoms they appear to be present all the time, and especially if Ms Baranowski needs to travel to an unfamiliar place or interact with unfamiliar people. This can cause panic attacks, dissociation and a complete inability to function.
[67] Ibid, p 8.
In Kilgallin and National Disability Insurance Agency[68], the Tribunal was faced with the circumstances of an Applicant who had significantly reduced their social interactions as a result of their disability. In that case, the Tribunal found that the Applicant may well have reduced psychosocial functioning in undertaking such activities, but the skills required for social interaction were not significantly affected. This is not Ms Baranowski’s situation – her skills in social interactions and her psychosocial functioning are severely affected by her impairments. Her psychosocial functioning is further reduced by engaging in any form of unfamiliar social interaction due to the anxiety it produces. This does not occur only on the days when Ms Baranowski is overtly psychologically unwell, but generally. Her treating doctor says that Ms Baranowski is generally crippled by social anxiety and is isolated and withdrawn. This is not limited to the two or three days per week that she experiences severe symptoms, or when she is hospitalised. It is generally the case. Mr Dwyer states that Ms Baranowski’s anxiety and tendency to become overwhelmed significantly impacts her capacity for social interaction, and while she functions reasonably well with known people in the immediate area, if she is outside that area her anxiety is debilitating.
[68] [2017] AATA 186.
Ms Baranowski usually requires the assistance of another person to participate in the activity of social interaction. While she feels relatively comfortable in her small local area, any interaction outside this area causes her extreme distress. She limits her symptoms by limiting herself to her comfortable environments, but her overall impairment due to her psychosocial disabilities is significant. The Respondent is of the view that Ms Baranowski’s ability to interact socially within her area of comfort indicates that she does not have a significant functional impairment in social interaction. The Tribunal disagrees. This would only be true if Ms Baranowski’s life was limited to familiar individuals and environments, and that limitation was not related to her impairment. In fact, she limits herself to these environments wherever possible precisely because of her significant functional impairment. The way that Ms Baranowski functions is to excise most of society from her own experience. The Tribunal is satisfied that Ms Baranowski has a substantially reduced functional capacity to undertake the activity of social interaction outlined in section 24(1)(c)(ii).
As the Tribunal has found that Ms Baranowski has a substantially reduced functional capacity to undertake the activity of social interaction, it does not need to proceed to consider her function in the other domains. A substantially reduced functional capacity in any one of the domains is sufficient to meet the requirements of section 24(1)(c) of the NDIS Act.
Nonetheless, the Tribunal notes that the evidence before it also establishes that Ms Baranowski likely has a substantial functional impairment in the domain of self-management. Dr Foresti-Zubaran states that Ms Baranowski has a severe impairment in the domain of self-management. Dr Williams states that Ms Baranowski has a decreased ability to focus, concentrate and plan, that complex daily tasks or problem solving are impossible and that Ms Baranowski is easily overwhelmed. She describes Ms Baranowski as having a global impairment of memory and perception. This appears to be the case both when she is severely unwell and generally. Ms Jamieson says that Ms Baranowski struggles significantly in the domain of self-management and relies heavily on informal support from her husband. She states that Ms Baranowski is easily overwhelmed and experiences panic and anxiety maintaining her own schedule and exercising the skills of daily living. Ms Donovan states that Ms Baranowski’s mental health conditions and the medication she takes for them impact on her ability to function across all domains and Ms Baranowski relies on her husband to care for her, explain things to her, manage her appointments and manage her finances. Ms Khuman says that Ms Baranowski needs assistance from another person with self-management. Mr Dwyer notes that Ms Baranowski has difficult with complex decision making and multi-tasking, but that her performance in this domain would likely be variable. He says that she manages many activities and appointments using the notes function on her phone, but that she varies from being independent to being totally dependent on her husband for such tasks.
SUMMARY – SECTION 24(1)(C) NDIS ACT
The Tribunal has considered the factors set out in Rule 5.8 of the Rules and is satisfied that Ms Baranowski does demonstrate a substantially reduced functional capacity in at least one of the relevant domains. Ms Baranowski’s circumstances indicate that she has an inability to participate effectively or completely in relevant activities of social interaction without requiring the assistance of at least one person. The Tribunal finds that Ms Baranowski has a significant functional impairment. She therefore meets the requirements of section 24(1)(c) of the NDIS Act.
SOCIAL OR ECONOMIC PARTICIPATION – SECTION 24(1)(D) NDIS ACT
Ms Baranowski’s impairment stemming from her psychosocial disabilities severely affects her social participation. The Operational Guideline provides, in part, that this criterion is satisfied if a person’s social or work life is affected in some way by their disability:[69]
[69] National Disability Insurance Agency, Our Guidelines: Does your impairment affect your social, work or study life? (Web Page) < look at your ability to do things like:
·find and keep a job, or start your own business
·study
·spend and save money
·play sport
·go to the movies
·volunteer
·travel.
It doesn’t matter how much your ability to work, study or socialise is affected by your impairment. It only needs to affect your social or work life in some way for you to meet the criteria.
The Tribunal finds that Ms Baranowski meets the requirements of section 24(1)(d) of the NDIS Act, as her permanent impairments affect her capacity for social and economic participation. This finding is not disputed by the Respondent.
SUPPORT UNDER THE NDIS FOR THE PERSON’S LIFETIME – SECTION 24(1)(E) NDIS ACT
In order to become a participant in the NDIS, an Applicant must meet each of the paragraphs in section 24(1) of the NDIS Act. Ms Baranowski has a permanent impairment which fluctuates over time. Her functional capacity changes from day to day. Depending upon how well she is functioning she will require variable levels of support. At times that she is hospitalised she will require little other than support co-ordination. When she is at home, she will require more support. Her support needs may vary considerably, but they are likely to continue for her lifetime. As Ms Baranowski does meet the requirements of section 24(1)(c) of the NDIS Act to become a participant in the NDIS and has a permanent condition, the Tribunal is satisfied that she also meets the criteria in s 24(1)(e) of the NDIS Act.
As the Tribunal has found that Ms Baranowski meets the disability requirements for entry as a participant in the NDIS, it did not proceed to consider the early intervention requirements.
DECISION
The Tribunal sets aside the decision under review and remits the matter for reconsideration, with a direction that Ms Baranowski meets the disability requirements for access to the National Disability Insurance Scheme as set out in section 24 of the National Disability Insurance Scheme Act 2013 (Cth).

I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for the decision herein of Member T Bubutievski

...................................[SGD].....................................
Associate
Dated: 19 June 2023

Date(s) of hearing: On the papers

Date final submissions received: 29 May 2023

Solicitor for the Applicant: Ms C Alogdellis, Sydney Regional Aboriginal Corporations

Solicitor for the Respondent: Ms T Weir, HWL Ebsworth Lawyers

[2023] AATA 1701

19 June 2023

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Appeal

Date(s) of hearing:	On the papers
Date final submissions received:	29 May 2023
Solicitor for the Applicant:	Ms C Alogdellis, Sydney Regional Aboriginal Corporations
Solicitor for the Respondent:	Ms T Weir, HWL Ebsworth Lawyers