BBMC and National Disability Insurance Agency

[2018] AATA 386

BBMC and National Disability Insurance Agency [2018] AATA 386 (6 March 2018)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number:           2017/3167

Re:BBMC

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:6 March 2018

Place:Sydney

The decision under review is affirmed.

..................[sgd]......................................................

Dr L Bygrave, Member

CATCHWORDS

NATIONAL DISABILITY INSURANCE SCHEME – access – anxiety disorder – irritable bowel syndrome – sicca syndrome – cluster migraine – whether applicant satisfies the early intervention requirements – whether early intervention support most appropriately funded through the NDIS or through other systems – decision under review affirmed

LEGISLATION

National Disability Insurance Scheme Act 2013 (Cth) ss 3, 4, 21, 22, 23, 24, 25, 100, 103, 209

National Disability Insurance Scheme (Becoming a Participant) Rules 2013 (Cth)

National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)

CASES

Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[1979] AATA 179; (1979) 2 ALD 634.

Young and National Disability Insurance Agency [2014] AATA 401.

SECONDARY MATERIALS

NDIS Operational Guideline – Access to the NDIS

NDIS Operational Guideline – Planning

REASONS FOR DECISION

6 March 2018

INTRODUCTION

1. The applicant is a 33 year-old female. She lodged an access request form to become a participant in the National Disability Insurance Scheme (NDIS) on 17 June 2016. Dr Simone Williamson (general practitioner) completed the form, which listed the applicant’s disabilities as:

   Generalised Anxiety Disorder – Severe

   Severe Irritable Bowel Syndrome

   Sicca Syndrome

   Cluster Migraine

2. On 24 June 2016, a delegate of the Chief Executive Officer (CEO) of the National Disability Insurance Agency (NDIA) determined that the applicant does not meet the access criteria specified in section 24 of the National Disability Insurance Scheme Act 2013 (Cth) (the Act).

3. The applicant requested an internal review of this decision and on 19 April 2017, an internal review officer of the NDIA determined that the applicant does not meet the access requirements set out in sections 24 and 25 of the Act.

4. The applicant lodged an application for review to the NDIS Division of the Administrative Appeals Tribunal (the Tribunal).

5. The matter was heard in Sydney on 14 February 2018. The applicant had legal representation and gave evidence at the hearing by conference telephone.

   LEGISLATION

   The NDIS legislative framework

6. The Parliament of Australia expressly provided objects and principles in the Act to give guidance on the interpretation of the statute. The objects of the Act are set out in section 3 and include:

   ·giving effect to Australia’s obligations under the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006 ([2008] ATS 12);

   ·supporting the independence and social and economic participation of people with disability;

   ·enabling people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports; and

   ·facilitating the development of a nationally consistent approach to the access to, and the planning and funding of, supports for people with disability.

7. Section 3(3)(b) of the Act also notes that, in giving effect to the objects of the Act, regard is to be had to the need to ensure the financial sustainability of the NDIS.

8. Section 4 sets out the general principles guiding actions under the Act. These principles include affirming that people with disability should be supported to exercise choice in the pursuit of their goals, and the planning and delivery of their supports; and acknowledging and respecting the role of families, carers and other significant persons in the lives of people with disability.

9. Under section 209(1) of the Act, the Minister may make rules prescribing matters under the Act. Relevant to this matter are the National Disability Insurance Scheme (Becoming a Participant) Rules 2013 (Cth) and the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth), which form part of the legislation.

10. The CEO of the NDIA has also written Operational Guidelines to assist staff in making decisions and performing other functions under the Act. The Operational Guidelines represent government policy and should be applied by the Tribunal unless there is good reason not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[1979] AATA 179; (1979) 2 ALD 634.

    The access criteria

11. To become a participant in the NDIS, the applicant must satisfy the access criteria. The access criteria relevant to this matter are summarised in section 21(1) of the NDIS Act:

    21 When a person meets the access criteria

    (1)A person meets the access criteria if:

    (a)the CEO is satisfied that the person meets the age requirements (see section 22); and

    (b)the CEO is satisfied that, at the time of considering the request, the person meets the residence requirements (see section 23); and

    (c)the CEO is satisfied that, at the time of considering the request:

    (i)     the person meets the disability requirements (see section 24); or

    (ii)    the person meets the early intervention requirements (see section 25).

12. The NDIA accepts that the applicant meets the age requirements in section 22 of the Act and the residence requirements in section 23 of the Act.

13. The applicant concedes that she does not meet the disability requirements in section 24 of the Act; however, the applicant’s legal representative submits that she meets the early intervention requirements in section 25 of the Act.

14. Section 25 of the Act states:

    25 Early intervention requirements

    (1)A person meets the early intervention requirements if:

    (a)the person:

    (i)     has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent; or

    (ii)    has one or more identified impairments that are attributable to a psychiatric condition and are, or are likely to be, permanent; or

    (iii)    is a child who has developmental delay; and

    (b)the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person’s future needs for supports in relation to disability; and

    (c)the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by:

    (i)     mitigating or alleviating the impact of the person’s impairment upon the functional capacity of the person to undertake communication, social interaction, learning, mobility, self‑care or self‑management; or

    (ii)    preventing the deterioration of such functional capacity; or

    (iii)    improving such functional capacity; or

    (iv)   strengthening the sustainability of informal supports available to the person, including through building the capacity of the person’s carer.

    Note:    In certain circumstances, a person with a degenerative condition could meet the early intervention requirements and therefore become a participant.

    (2)The CEO is taken to be satisfied as mentioned in paragraphs (1)(b) and (c) if one or more of the person’s impairments are prescribed by the National Disability Insurance Scheme rules for the purposes of this subsection.

    (3)Despite subsections (1) and (2), the person does not meet the early intervention requirements if the CEO is satisfied that early intervention support for the person is not most appropriately funded or provided through the National Disability Insurance Scheme, and is more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or through systems of service delivery or support services offered:

    (a)as part of a universal service obligation; or

    (b)in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.

15. The relevant Operational Guidelines are:

    ·chapter 9 of the Operational Guideline – Access to the NDIS (the Access Operational Guideline), titled ‘The Early Intervention Requirements’; and

    ·appendix 1 of the Operational Guideline – Planning (the Planning Operational Guideline), which sets out funding supports for mental health.

    EVIDENCE

16. In considering whether the applicant meets the early intervention requirements, I had regard to evidence from the applicant and her medical practitioners. This evidence is set out below.

    The applicant’s evidence

17. The applicant filed a written statement dated 25 January 2018 and provided further evidence at the Tribunal hearing.

18. The applicant has had mental health impairments since childhood. In her written statement, she recalls experiencing ‘severe separation anxiety, self-hate, depressive symptoms, phobia symptoms and obsessive compulsive disorder symptoms from the age of 9’.[1] She first saw her general practitioner and a school counsellor for mental health problems in 2001, and has visited approximately four psychologists and five psychiatrists since 2007. She told the Tribunal that she has tried many medications for her conditions but these have either made her symptoms worse or caused negative side-effects. She is currently taking 2mg of diazepam in the morning and at night.

    [1] Exhibit A1, paragraph 5.

19. Since January 2016, the applicant has seen Ms A (clinical psychologist) for weekly psychological therapy sessions. The applicant explained that Ms A has utilised cognitive behaviour therapy and acceptance and commitment therapy in these sessions to assist her to understand the symptoms of her anxiety, and develop strategies to identify and achieve goals that enable her to live her life.

20. The applicant told the Tribunal that psychotherapy sessions with Ms A have assisted her to move from her parent’s house into living on her own in a rented apartment; resume driving a car for short distances; play hockey in a supportive team environment; and babysit for a local family for two to three hours on three afternoons each week during the school term.

21. Recently, and in conjunction with sessions with Ms A, the applicant has begun seeing Ms B (psychologist) to ‘focus on things like development of friendships, self-worth and feeling positive emotions’.[2]

    [2] Exhibit A1, paragraph 15.

22. The applicant has had a mental health care plan since 2012. In accordance with a mental health care plan, the applicant receives ten Medicare-subsidised psychological therapy sessions each calendar year. She also accesses a rebate of approximately 28 per cent of the session fee for a further five psychological therapy sessions per year under a chronic diseases management plan. The applicant paid for private health insurance in 2016 to be eligible for psychological therapy rebates but has now reduced her insurance to basic private hospital insurance with an excess and no extras due to the high cost of private health insurance. After utilising the sessions for psychological therapy through her mental health care plan and chronic diseases management plan, the applicant self-funds the payment of weekly psychology sessions for the remainder of each calendar year.

23. The applicant is in receipt of the disability support pension.

    Medical evidence

24. The medical evidence before the Tribunal includes reports by:

    ·Ms C (clinical psychologist) dated 4 March 2014, 27 October 2015 and 25 January 2016;

    ·Ms A (clinical psychologist) dated 27 January 2016, 26 May 2016, 27 February 2017, 21 November 2017 and 17 December 2017; and

    ·Dr D (consultant psychiatrist) dated 21 December 2015, 29 February 2016, 18 April 2016, 18 July 2016, 30 August 2016 and 7 September 2017.

25. These reports confirm the applicant’s long-term mental health impairment.

26. Ms C reported on 27 October 2015 that the applicant:

    has had a number of significant stressors occur in her life that have exacerbated symptoms of anxiety and depression. These include heightened levels of anxiety and distress which are almost always uncontrollable, as well as increased negative ruminating thoughts, sense of hopelessness, low mood, decreased motivation, disturbed appetite, decreased energy, poor concentration, restlessness, anhedonia, social withdrawal, situational avoidance, teariness and suicidal ideation.[3]

    [3] Exhibit T1, page 11.

27. Ms A explained in her report dated 21 November 2017 that she has treated the applicant since January 2016, when the applicant was experiencing extremely severe range anxiety, stress and depressive symptoms. Ms A noted that the applicant attends weekly sessions due to the severity and chronicity of her symptoms.

28. Ms A advised that she uses cognitive behavioural therapy and acceptance and commitment therapy to treat the applicant’s anxiety, depressive symptoms, low self-worth and interpersonal/psychosocial difficulties in order to increase the applicant’s ‘capacity to function more effectively in everyday life and to pursue meaningful life goals’.[4] At the Tribunal hearing, she explained that cognitive behavioural and acceptance and commitment therapies include education, setting goals, practicing strategies and doing homework in order to learn alternative ways to respond to thoughts.

    [4] Exhibit A3, page 3.

29. Ms A opined that the applicant continues to have significant psychological and psychosocial impairment despite substantial psychological and medical intervention. She confirmed to the Tribunal that she found no evidence that the applicant is likely to recover from this impairment.

30. Ms A recommended that the applicant have access to up to 46 individual psychological therapy sessions per year. She stated in her report dated 17 December 2017 that funding on-going psychotherapy sessions is likely to mitigate and alleviate the impact of the applicant’s mental health condition on her functioning, prevent further deterioration in her functioning, and improve her capacity to function in social and interpersonal settings.[5]

    [5] Exhibit A2.

31. Dr D noted in his report dated 7 September 2017 that he has treated the applicant since October 2015 and provided a diagnosis of major depressive disorder and panic disorder with agoraphobia. He stated that the applicant has responded poorly to all medication treatments, but psychotherapy has ‘helped her to manage [her] anxiety better’.[6] He expressed the view that the applicant’s conditions have ‘a tendency to wax and wane’ but her ‘impairments are reasonably permanent’.[7] Dr D confirmed this evidence at the Tribunal hearing.

    [6] Exhibit A4, paragraph 6.

    [7] Exhibit A4, paragraph 7.

    CONSIDERATION

32. Under section 103 of the Act, the Tribunal has jurisdiction to review the internal review decision dated 19 April 2017 as it was made pursuant to section 100(6)(a) of the Act.

    The early intervention requirements

33. The early intervention requirements are set out in section 25 of the Act. Chapter 9 of the Access Operational Guideline explains the purpose of the early intervention requirements as follows:

    Early intervention support is available to both children and adults who meet the early intervention requirements. The intention of early intervention is to alleviate the impact of a person’s impairment upon their functional capacity by providing support at the earliest possible stage. Early intervention support is also intended to benefit a person by reducing their future needs for supports.

34. At the Tribunal hearing, the NDIA conceded the applicant meets sections 25(1) and (2) of the Act. Based on the medical evidence, I also am satisfied that:

    ·the applicant has an identified impairment that is attributable to a psychiatric condition and is, or is likely to be, permanent; and

    ·the provision of supports is likely to benefit the applicant by reducing her future needs for supports in relation to disability; and

    ·the provision of supports is likely to mitigate or alleviate the impact of the applicant’s impairment.

35. I find the applicant meets the requirements of sections 25(1) and (2) of the Act. I now consider whether the applicant meets section 25(3) of the Act.

    Is early intervention support most appropriately funded or provided through the NDIS in accordance with section 25(3)?

36. Section 25(3) operates in circumstances where, even if the applicant meets sections 25(1) and (2) of the Act, the applicant may not meet the requirements of early intervention support because the support is not most appropriately funded or provided through the NDIS and is more appropriately funded or provided through other general systems of service delivery or support services, such as through the health system.

37. The National Disability Insurance Scheme (Supports for Participants) Rules 2013 state the following in relation to mental health:

    Mental health

    7.6The NDIS will be responsible for supports that are not clinical in nature and that focus on a person’s functional ability, including supports that enable a person with a mental illness or psychiatric condition to undertake activities of daily living and participate in the community and social and economic life.

    7.7The NDIS will not be responsible for:

    (a)supports related to mental health that are clinical in nature, including acute, ambulatory and continuing care, rehabilitation/recovery; or

    (b)early intervention supports related to mental health that are clinical in nature, including supports that are clinical in nature and that are for child and adolescent developmental needs; or

    (c)any residential care where the primary purpose is for inpatient treatment or clinical rehabilitation, or where the services model primarily employs clinical staff; or

    (d)supports relating to a co-morbidity with a psychiatric condition where the co-morbidity is clearly the responsibility of another service system (eg treatment for a drug or alcohol issue). [emphasis added]

38. These Rules are reiterated in the Planning Operational Guideline at paragraph 10.8.2. Appendix 1 to the Planning Operational Guideline also states in relation to mental health:

    Supports generally funded by other parties

    Clinical treatment – general practitioner, psychiatry, pharmaceuticals, clinical care in the community, residential services, mental health crisis assessment services, post-acute services, hospital avoidance services and post-acute care services.

39. I accept the applicant’s submission, supported by her treating clinical psychologist, that she requires weekly psychotherapy sessions and these sessions assist her functional ability. I also acknowledge that the applicant only receives financial support for ten psychotherapy sessions per calendar year through her mental health care plan and a partial rebate for an additional five psychotherapy sessions through a chronic diseases management plan. I further understand and am concerned the applicant is assuming substantial financial and personal costs to self-fund the remaining weekly psychotherapy sessions each calendar year on income sourced from irregular part-time work and the disability support pension.

40. However, it does not follow that the NDIS should assume responsibility for the applicant’s psychotherapy support simply because she does not receive adequate treatment and support through the health system. In particular, I refer to the decision in Young and National Disability Insurance Agency in which the Tribunal decided:

    Whether or not funding is available through other general systems is not the test of whether it is most appropriately funded or provided through the NDIS. The fact that the health system does not fund entirely, or even at all, what is essentially clinical treatment, or some other form of support that is more appropriately funded through the health system, does not make it the responsibility of the NDIS.[8]

    [8] [2014] AATA 401 at 41.

1. The National Disability Insurance Scheme (Supports for Participants) Rules 2013 clearly state that the NDIS will not be responsible for supports related to mental health that are clinical in nature, including continuing care. I am satisfied that the psychotherapy support the applicant is seeking to have funded through the NDIS is support that relates to mental health and is clinical in nature. It is also my view that the list of supports at Appendix 1 to the Planning Operational Guideline implies the inclusion of psychotherapy as this comprises ‘clinical care in the community’.

2. Accordingly, I find that the applicant does not satisfy section 25(3) of the Act and does not fulfil the early intervention requirements to enable her to become a participant in the NDIS.

   CONCLUSION

3. As I am satisfied that the applicant does not meet the requirement in section 25(3) of the Act, I find the decision of the internal review officer dated 19 April 2017 is correct.

   DECISION

4. The decision under review is affirmed.

I certify that the preceding 44 (forty-four) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member.

..................[sgd]......................................................

Associate

Dated: 6 March 2018

Date of hearing:	14 February 2018
Solicitors for the Applicant:	Mr B Gerogiannis, Legal Aid New South Wales
Counsel for the Respondent:	Ms K Katavic
Solicitors for the Respondent:	Ms L Hinwood, National Disability Insurance Agency