Blackberry and National Disability Insurance Agency (NDIS)
[2025] ARTA 39
•10 January 2025
Blackberry and National Disability Insurance Agency (NDIS) [2025] ARTA 39 (10 January 2025)
Applicant/s: Chrystal Blackberry
Respondent: National Disability Insurance Agency
Tribunal Number: 2023/1373
Tribunal:General Member A. Williams
Place:Hobart
Date:10 January 2025
Decision:The Tribunal sets aside the decision under review pursuant to section 105 of the Administrative Review Tribunal Act 2024 (Cth) and decides in substitution that the Applicant meets the disability requirements for access to the National Disability Insurance Scheme as set out in section 21 of the National Disability Insurance Scheme Act 2013 (Cth).
..............................[sgd]..........................................
General Member A. Williams
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – access request – Severe Chronic Neutropenia – whether access criteria under s 21 of the National Disability Insurance Scheme Act 2013 (Cth) are met – “disability requirements” under s 24 – Applicant has disability arising from various physical and psychosocial impairments – issues – whether impairments are, or likely to be, permanent – whether impairments have resulted in substantially reduced functional capacity in any one of the six prescribed activities – decision under review set aside and substitutedLegislation
Administrative Review Tribunal Act 2024 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)Cases
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] 24 ALR 577
G v Minister for Immigration and Border Protection [2018] FCA 1229Mulligan v National Disability Insurance Agency [2015] FCA 544
National Disability Insurance Agency v Davis [2022] FCA 1002National Disability Insurance Agency v Foster [2023] FCAFC 11
Secondary Materials
Becoming a Participant - Applying to the NDIS Guidelines (‘the Access Guidelines’).
Statement of Reasons
INTRODUCTION
This application is about whether the Applicant, Ms Chrystal Blackberry, should be granted access as a participant in the National Disability Insurance Scheme (‘NDIS’). Ms Blackberry seeks review of a decision made on 23 December 2022 by a “reviewer” under ss 100(6) of the National Disability Insurance Scheme Act 2013 (Cth) (‘NDIS Act’) (‘Decision under Review’).[1] This decision confirmed an earlier decision by the Respondent, the National Disability Insurance Agency (‘NDIA’), dated 5 December 2022 not to grant access to Ms Blackberry as a participant in the NDIS.
[1] Documents lodged under s 23(b) of the Administrative Review Tribunal Act 2024 (Cth) (‘TD’).
The Administrative Review Tribunal’s (‘Tribunal’) jurisdiction arises under s 12 of the Administrative Review Tribunal Act 2004 (Cth) (‘ART Act’), operating in conjunction with
s 103 of the NDIS Act.
For the reasons set out below, the Decision under Review is set aside as it is satisfied that Ms Blackberry meets the access requirements under s 21 of the NDIS Act.
BACKGROUND
Ms Chrystal Blackberry is a 42-year-old woman who lives in regional Tasmania. Ms Blackberry has the following diagnosed medical conditions:
·Severe Chronic Neutropenia (SCN)
·Chronic Obstructive Pulmonary Disease (COPD) and Emphysema; and
·Fibromyalgia and Chronic Pain Syndrome
SCN is a rare blood disorder characterised by low levels of certain white blood cells, called neutrophils, which play an essential role in fighting bacterial infections.
COPD is a chronic lung disease causing inflammation of the lungs, resulting in restricted airflow in the lungs. Emphysema is also a chronic lung condition caused by the destruction of small air passages called bronchioles.
Fibromyalgia and Chronic Pain Syndrome are medical disorder resulting in generalised musculoskeletal pain.[2]
[2] The medical description of Ms Blackberry’s conditions was helpfully outlined in Ms Trudi Warner’s report (JTB, 167).
Arising out of these various medical conditions, Ms Blackberry reported that she experiences the following symptoms:[3]
·Extreme tiredness and fatigue
·Shortness of breath and a persistent cough
·Extreme weakness in her limbs
·Bone pain, swelling and stiffness in her lower limbs.
·Otherwise, generalised pain throughout her body
·Dizziness lack of coordination and poor balance
·Headaches
[3] Applicants SFIC (JTB 5).
The Respondent has acknowledged that Ms Blackberry’s Fibromyalgia and Chronic Pain Syndrome are permanent conditions in accordance with s 24(1)(b) of the Act.[4]
[4] Respondents SFIC dated 2 August 2024 (JTB 27).
Ms Blackberry lives alone in her own three-bedroom home. Her parents live nearby and regularly provide support for her in the form of assisting with buying and delivering groceries, doing her laundry, replacing bed linen, and driving her to medical and other appointments. She also receives assistance from a privately paid gardener and cleaner.
REQUEST FOR ACCESS TO THE NDIS
In March 2021, Ms Blackberry applied to the NDIA seeking to be granted access to the NDIS.
The Respondent provided its decision on 5 December 2022 after assessing Ms Blackberry’s eligibility to access the scheme. It advised that Ms Blackberry had not met the eligibility criteria to be granted access to the scheme (‘the Initial Decision’).
On 13 December 2022, Ms Blackberry requested the Respondent conduct an internal review of the initial decision.
The Respondent conducted its internal review, and on 23 December 2022 advised that it had confirmed the initial decision to find Ms Blackberry was not eligible to gain access to the scheme. (‘the Reviewable Decision’).
DECISION UNDER REVIEW AND APPLICATION FOR REVIEW TO THIS TRIBUNAL
As noted in paragraph 14 above, the Reviewable Decision is the decision by the Respondent, on 23 December 2022, that Ms Blackberry had not established that she met the eligibility criteria to be granted access to the scheme.
On 8 February 2023, Ms Blackberry applied to the then Administrative Appeals Tribunal (AAT), for the AAT to conduct an independent review of the reviewable decision.
In her application for review, Ms Blackberry noted the following as reasons why she considered the reviewable decision was wrong:
The review officer, dismissed the report from Dr Usira Withnarachchi, stating that with regards to my conditions and all treatment options have been explored, none of them are curative and the conditions Fibromialgia, Chronic neutropenia and Emphysema are permanent.
The officer dismissed the supporting evidence and conclusion from Dr Venter stipulating that all treatment options have been explored and none are curative.
The officer also dismissed the assessment from Dr Suneet Kohli stipulating that the conditions are chronic, have not responded to treatment, pose significant limitation and can only be managed to prevent further deterioration.
We believe that the assessor and allied health professionals providing advice to the assessor do not have the appropriate medical background to challenge the assessment of a blood specialist, a physician and medical professional regarding all treatment options having been explored and the permanency of a condition.
EVIDENCE AND SUBMISSIONS
As part of the review process, the Tribunal was provided by the Respondent with those documents previously submitted as part of the original application process (‘the T Documents’).
During the conduct of the Tribunal’s pre-hearing procedure, both parties filed with the Tribunal Statements of Facts, Issues and Contentions (SFIC).
The most recent of these will be referred to throughout this decision.
LEGISLATIVE FRAMEWORK
Subsection 21(1) of the NDIS Act provides that a person satisfies the access criteria if they meet:
·the “age requirements” under s 22;
and, at the time of considering the access request;
·the “residence requirements” under s 23 of the NDIS Act; and the “disability requirements” under s 24 (as set out in paragraph [34] below) or the “early intervention requirements” under s 25 (as set out in paragraph [24] below).
The disability requirements are contained in s 24 of the NDIS Act and provide 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.
(3) For the purposes of subsection (1), an impairment or impairments that are episodic or fluctuating may be taken to be permanent, and the person may be taken to be likely to require support under the National Disability Insurance Scheme for the person's lifetime, despite the episodic or fluctuating nature of the impairments.
(4) Subsection (3) does not limit subsection (2).
The requirements of s 24 of the NDIS Act are cumulative and all criteria must be met in order for access to be granted to the scheme.
The early intervention requirements are contained in s 25 of the NDIS Act and provide as follows:
(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…
Likewise, the requirements of s 25 of the NDIS Act are cumulative and all criteria must be met.
Section 27 of the NDIS Act provides for the making of rules in relation to the disability requirements and the early intervention requirements. The relevant rules in respect of this review are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (‘the Access Rules’).
Access Rules
With respect to ss 24(1)(b) of the Act, concerning the permanency of an impairment, the Access Rules provide:
5.4 An impairment is, or is likely to be, permanent (see paragraph 5.1(b)) only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.
5.5 An impairment may be permanent notwithstanding that the severity of its impact on the functional capacity of the person may fluctuate or there are prospects that the severity of the impact of the impairment on the person's functional capacity, including their psychosocial functioning, may improve.
5.6 An impairment may require medical treatment and review before a determination can be made about whether the impairment is permanent or likely to be permanent. The impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated (even though the impairment may continue to be treated and reviewed after this has been demonstrated).
5.7 If an impairment is of a degenerative nature, the impairment is, or is likely to be, permanent if medical or other treatment would not, or would be unlikely to, improve the condition.
The Agency also issues Operational Guidelines in relation to the assessment of whether a person meets the disability requirements. The relevant guidelines in this review are the Becoming a Participant - Applying to the NDIS guidelines (‘the Access Guidelines’).
There is no power conferred by the NDIS Act to make Operational Guidelines, and they are issued in an exercise of executive power.[5] The Tribunal is therefore not bound by any policy set out in the Agency’s Operational Guidelines; however, in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) ,[6] the Federal Court held that a Tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation, however they should not be bound by it. Further guidance for the proposition that the Tribunal is not bound by policy is found in G v Minister for Immigration and Border Protection,[7] where Mortimer J (as her Honour then was) held:
Justice or injustice is not found within a policy: It is found by looking at the overall circumstances of an individual’s case, with the principal focus being on the purpose and context of the statutory power, not the executive policy framed to guide it…[8]
[5] Minister for Home Affairs v G [2019] FCAFC 79 [18].
[6] [1979] 24 ALR 577 ,590.
[7] [2018] FCA 1229.
[8] Ibid [171].
Therefore, unless the Access Guidelines are inconsistent with the provisions or objects of the legislation, they should be considered in any determination of whether Ms Blackberry meets the disability requirements or the early intervention requirements.
Whether Ms Blackberry meets the disability requirements or the early intervention requirements, is a question of fact to be determined on the balance of available evidence. The Tribunal is required to undertake a ‘fact-finding task’,[9] with a relatively high degree of precision and be positively satisfied.
[9] National Disability Insurance Agency v Davis [2022] FCA 1002 [42].
The Tribunal notes that in Mulligan v National Disability Insurance Agency,[10], Mortimer J held that the legislation, as it relates to the access criteria, requires “a relatively high degree of precision by decision-makers... in assessing what a person can or cannot do. The assessment to be undertaken is avowedly functional and multi-faceted”.[11] The Full Court of the Federal Court of Australia in National Disability Insurance Agency v Foster,[12]also outlined that the legislation requires a functional, practical assessment of what a person can and cannot do.[13]
[10] Mulligan v National Disability Insurance Agency [2015] FCA 544 (‘Mulligan’) [55].
[11] Ibid.
[12] National Disability Insurance Agency v Foster [2023] FCAFC 11 (‘Foster’).
[13] Ibid [44].
In this case, a functional assessment of Ms Blackberry’s level of function was conducted by an Independent Medical Expert (IME), being Ms Williams, who is an Occupational Therapist who subsequently completed a report on Ms Blackberry’s functional capacities across the six domains outlined in s 34(1)(c).
Ms Blackberry’s position
Ms Blackberry’s most recent statement of position is outlined in her Statement of Facts issues and Contentions (SFIC) dated 24 June 2024.
In summary, Ms Blackberry contends that:
·Her conditions are permanent and all reasonable treatment options have been trialled.
·Her impairments cause her to have substantially reduced functional capacity in all six areas, and particularly in the areas of mobility and self-care.
·Her impairments affect her capacity for social and economic participation.
·She is likely to require support under the NDIS for her lifetime.
With regards to the permanency of Ms Blackberry’s conditions, her representatives referred to the medical reports of her GP, Dr Maria Venter, her respiratory specialist, Dr Colin Chia, her Haematologist, Dr Vithanarachichi, and Clinical Psychologist, Samantha McCarthy in which her treatment history and responses were recorded.
With regard to Ms Blackberry’s functional capacity, it is stated that Ms Blackberry has substantially reduced mobility and is heavily dependent on the support of her parents, assistive technology and physical supports such as walls and furniture in her home.
Similarly, in relation to her capacity for self-care, she is reliant on others for many aspects of self-care and that is noted in the findings of Ms Warner, reflecting the observations made by Dr Venter,[14] and the Occupational Therapist, Ms Whiteman.[15]
[14] JTB 80–86.
[15] JTB 104–111.
In terms of her capacity for social and economic participation, the SFIC submitted that Ms Blackberry is now unable to pursue many of her previous activities, and rarely leaves her home other than brief visits to her parents and attending medical appointments. This is reflected in the observations in Ms Warner’s report,[16]and that of Ms Whiteman.[17]
[16] JTB 177–178.
[17] JTB 104–111.
In relation to Ms Blackberry’s likely need for NDIS support for her lifetime, it is submitted that as her conditions are permanent and she has a substantially reduced functional capacity, this will likely require her to have NDIS support for her life. Additionally, there is no alternative service system that could meet her needs.
Statement of Lived Experience (SOLE)
Ms Blackberry’s statement is dated 8 November 2024.
After providing a brief personal and medical history, prescribed and other medications, Ms Blackberry provided a list of her daily symptoms including:
·Extreme tiredness and fatigue
·Severe bone pain
·Headaches and dizziness
·Shortness of breath and persistent cough
·Lack of coordination and poor balance
·Extreme weakness in her legs
These symptoms significantly affect her capacity to live a normal life, leaving her unable to work, confined to her home, often bedridden, and resorting to crawling about her house if she needs to leave her bed.
The combination of pain and breathing difficulties she experiences daily has reduced her capacity to stand for lengthy periods, or independently walk long distances, and is limited to about a maximum of five minutes of assisted mobility and standing.
She has significantly reduced functional capacity in all six domains but primarily in the domains of mobility and self-care.
In terms of her mobility, she states that:
·Her pain levels are consistently 8/10 and increases to 9/10 at night.
·She spends the majority of the day in bed, only leaving to go to the toilet, or getting something to eat, or attending medical appointments.
·She is unable to walk to the local shops and parks. Due to her conditions, she is very fatigued, and experiences shortness of breath when walking much of a distance. Her legs become very weak, and she experiences severe nerve and bone pain in her lower body.
·While she has a driver’s license, she rarely drives. She struggles to get in and out of the car. She finds it difficult to drive as she is unable to sit up for more than 15 minutes. She worries that her fatigue makes her unsafe on the road.
·She cannot use public transport. Her nearest bus stop is between 500 to 800 metres from her home. She is also at risk of exposure to bacteria when out of her home.
·She largely relies on her parents to drive her either to medical appointments or when she visits them. If her parents are unable to drive her, she will either use community transport or book an uber and will only drive herself as a last resort.
·She is unable to walk unassisted in her home, needing to use supports such as wall and furniture. On a good day, she can move around her home for five minutes before she needs to return to bed. On these days, she may do this three to four times a day.
·On bad days (usually two to three days per week) her pain is so severe that her lower body locks up and she is largely bedridden. She has an electric bed which helps her to get in and out of bed, however she has to throw pillows on the floor and roll in order to get out of bed. At times she needs her parents to help her get out of bed.
·On her very bed days, she finds it too difficult to move, apart from crawling to the toilet.
·She cannot sit upright for more than 15 minutes as her pain levels increases significantly. She therefore spends most of the day in bed.
·While she has a walking stick, she is only able to mobilise for approximately five minutes. She will use the walking stick when getting out of a car to walk into medical appointments, or when visiting her parents.
In terms of her capacity for self-care, she states:
·She cannot perform cooking, cleaning washing or gardening.
·All her meals are pre-prepared by someone else. She will take her food from the fridge or freezer and either heat it in the microwave or eat it cold. Typically, her parents will remove a meal from the freezer in the morning to allow it to defrost.
·Breakfast is an ‘up and go’ meal, lunch is either a fruit cup or soup, and dinner is a frozen meal. Her capacity to access her meals depends on her capacity to mobilise in the kitchen.
·She eats all her meals in bed after heating them in a microwave and have the meal with a cup of tea.
·On the bad days she cannot prepare these meals herself so her parents will bring her meals to her bed. If her parents are not able to provide this assistance, she will skip meals.
·She orders her groceries online, and her parents collect these and put them away in the kitchen cupboards, after disinfecting them first to avoid her acquiring an infection.
·Her parents clean her bathroom, wash her clothes, and wash her dishes every day, and she has a cleaner for an hour each week.
·Her father does the external tasks such as mowing, and she also has a gardener to do this.
·She has considerable difficulty showering and on bad days cannot do this.
There are certain aspects of her home that create difficulties for her. She could benefit from having a seat in the bathroom where she could sit after a shower and get dressed, however her bathroom is too small to accommodate this. In the event she needs a wheelchair, she will need wider doorframes as they are currently too narrow to accommodate a wheelchair.
Her brother (who is a builder) has said that he is intending to build her a new home.
In conclusion, Ms Blackberry noted that her parents are unable to continue to provide support due to their increasing age, poor health and other commitments. Their ability to support her has rapidly diminished over the past two years. Her father has needed to spend time in hospital, and her mother is increasingly unable to do so. She is looking to increase the hours of the hired cleaner to take some of the pressure off them.
Carer Statement from Clinton Blackberry
The Carer Statement was provided by Ms Blackberry’s father, Clinton Blackberry.
Mr Blackberry states that he is aged 68, and that he and his wife are retired.
They live close to Ms Blackberry’s home and provide assistance to her on a daily basis.
In terms of the assistance they provide, Mr Blackberry advised that he and his wife provide the following assistance to her:
·Collecting her groceries and putting them away. Her deliveries are almost daily.
·Driving her to medical and other appointments, and he drops her at the door. This is usually a couple of times each month.
In addition to their assistance, Ms Blackberry receives paid help from a gardener and a house cleaner.
Mr Blackberry has his own health issues, having had two double pulmonary embolisms and a heart attack. He says that he feels, given his age, he cannot continue to provide the level of support she requires.
He states that he considers that daughter’s quality of life would significantly improve if she were to be granted access to the scheme and then receive regular supports.
The Respondent’s position
The Respondent’s position was set out in its most recent SFIC dated 2 August 2024.
Before outlining what the Respondent contended were those elements of s 24(1), namely impairments, permanence, substantially reduced functional capacity, social and economic participation, and requiring lifetime NDIS support disability, that had not been established, it conceded the following criteria had been met:
·Ms Blackberry’s conditions of Neutropenia and related symptoms, Fibromyalgia and Chronic Pain Syndrome, and resulting physical impairments from both conditions, constitute a disability under s 24(1)(a) of the Act.
·The available evidence established that Ms Blackberry’s condition of Neutropenia is permanent under s 24(1)(b) of the Act.
The Respondent submitted that the current evidence established the following:
·Ms Blackberry’s conditions of COPD/Emphysema did not constitute a disability arising out of an intellectual, cognitive, neurological, sensory or physical impairment.
·Ms Blackberry’s conditions of COPD/Emphysema are not permanent or likely to be permanent.
·While Ms Blackberry has a reduced functional capacity, that did not result in her having substantially reduced functional capacity in any of the six domains contained in s 24(1)(c).
·As it had not been established that Ms Blackberry had substantially reduced functional capacity, it could not be found that her impairments affected her capacity for social or economic participation.
·She currently did not have, or would be likely to have, a need for NDIS support for her lifetime. In addition, there were available to Ms Blackberry other disability support programs provided by the government in her state of Tasmania.
The Respondent also provided submissions addressing Ms Blackberry’s eligibility for early intervention under s 25 of the Act, however it is not necessary to record these here, as Ms Blackberry, through her representatives, confirmed they were not seeking such support.
WHAT DOES THE TRIBUNAL NEED TO DECIDE
Taking account of those eligibility criteria that the Respondent has acknowledged Ms Blackberry meets the various matters to be determined by the Tribunal are the following:
·Does Ms Blackberrys medical condition of COPD/Emphysema constitute an impairment within the meaning of s 24(1)(a) of the Act.
·Is Ms Blackberry’s COPD/Emphysema permanent within the meaning of s 24(1)(b) of the Act?
·Does Ms Blackberry have substantially reduced functional capacity in any of the six domains listed in s 24(1)(c) of the Act?
·Do Ms Blackberry’s impairments affect her capacity for social and economic participation?
·Is Ms Blackberry likely to require support under the National Disability Insurance Scheme for her lifetime?
DOCUMENTARY EVIDENCE ABOUT MS BLACKBERRY
Listed below are the T documents provided by the Respondent shortly after Ms Blackberry filed her application with the Tribunal. This schedule includes the reference and page number recorded in the index to the Joint Tender Bundle (JTB) provided by the parties prior to the hearing:
Tab
Document
Date
Page No.
T1
AAT Application for Review of Decision
8 February 2023
51
T1A, T2
Internal Review Decision
23 December 2022
55
T3
Letter, Dr Amit Ganguly (Anaesthetic Provisional Fellow and Persistent Pain Fellow)
22 October 2019
66
T4
NDIS Access Request Supporting Evidence Form, Dr Maria Venter (General Practitioner)
30 March 2021
70
T5
NDIS Request for Information Letter
21 April 2021
77
T6
NDIS Access Request Supporting Evidence Form, Dr Maria Venter (General Practitioner)
18 June 2021
80
T7
Access Not Met Letter
20 July 2021
88
T8
Letter, Samantha McCarthy (Clinical Psychologist)
29 July 2021
92
T9
Letter, Michelle Nicholson (OPALL Team Leader)
11 August 2021
93
T10
Letter, Dr Usira Vithanarachchi (Consultant Haematologist)
18 August 2021
94
T11
Letter, Dr Collin Chia (Respiratory and Sleep Physician)
19 August 2021
95
T12
Letter, Rachel Riley (Occupational Therapist)
23 August 2021
96
T13
Report, Allied Health Waiting List Notification
6 September 2021
97
T14
Letter, Dr Maria Venter (General Practitioner)
21 September 2021
98
T15
Email, Chrystal Blackberry (Applicant)
18 November 2021
100
T16
Care and Needs Scale, Felicia Whiteman (Occupational Therapist)
17 May 2022
103
T17
NDIS Access Request Form, Felicia Whiteman (Occupational Therapist)
17 May 2022
104
T18
Letter, Dr Usira Vithanarachchi (Consultant Haematologist)
6 June 2022
113
T19
Letter, Dr Maria Venter (General Practitioner)
12 August 2022
114
T20
Letter, Dr Suneet Kohli (Consultant Physician)
2 September 2022
115
T21
Letter, Kate Banks (Senior Physiotherapist)
5 September 2022
117
T22
Email, Dominique Vittori (Advocate)
27 October 2022
118
T23
Email, Dominique Vittori (Advocate)
5 December 2022
121
T24
Access Not Met Letter
5 December 2022
124
T25
Letter, Dr Maria Venter (General Practitioner)
5 December 2022
129
T26
Request for a Review of a Decision Form, Dominique Vittori (Advocate)
12 December 2022
130
T27
Extract of Interaction Record - Request for Review of a Reviewable Decision
13 December 2022
135
T28
Report, WHODAS
Undated
136
Also listed below are the documents Ms Blackberry filed with the Tribunal after lodging her application:
Tab
Document
Date
Page No.
C1
Letter Dr Symon McCallum, Pain Physician and Specialist Anesthetist
28 March 2023
138
C2
Letter, Dr Suneet Kohli, Consultant Physician
18 September 2023
141
C3
Carer’s Statement, Clinton Blackberry
26 September 2023
144
C4
Supplementary Letter, Dr Suneet Kohli, Consultant Physician
7 November 2023
148
C5
Letter from Dr Collin Chia, Respiratory and Sleep Physician
11 June 2024
149
C6
Letter from Dr Collin Chia, Respiratory and Sleep Physician
24 September 2024
150
C7
Applicant’s Statement of Lived Experience
8 November 2024
151
Respondent’s Evidence
The Respondent’s evidence consisted of the functional assessment report of Ms Trudi Warner (Occupational Therapist) dated 24 February 2024. Ms Warner conducted the functional assessment in Ms Blackberry’s home on 23 January 2024.
THE HEARING
The hearing of Ms Blackberry’s case took place over two days on 19 and 20 November 2024. Ms Blackberry was represented by Mr Scott Royston, and the Agency was represented by Mr Philip Nolan.
Ms Blackberry gave evidence on her own behalf, and Dr Suneet Kohli (Consultant Physician) also gave evidence on her behalf.
Ms Warner gave evidence on behalf of the Respondent.
Ms Blackberry’s evidence
Ms Blackberry was asked about the frequency and method of attending her medical appointments.
She said the majority of her medical appointments took place via telehealth. She sees her GP about every two weeks and her specialists approximately three times a year. She said that her father would often take her by car to those appointments and occasionally she would drive herself to the appointments, including to see her GP whose practice is about five kilometres away. She said she may drive herself about four times a year. She has no medical restrictions noted on her driving licence.
She said that sometimes she would take community transport or use an uber if the appointment was booked on short notice or made for either early or late in the day.
The only other visit would be to her parents approximately once a month. When she did visit, it would generally be for about two hours and when there she would either sit in a recliner chair or lie on an adjustable bed.
She was asked about how frequently she experienced what she considered ‘bad days.’ She said on average each week she may have two ‘good days’, three ‘bad days’ and two ‘very bad days,’ and these would usually last two perhaps or three days. And on those days, she was largely restricted to bed and unable to get meals from the kitchen or shower herself. On these days she has high levels of pain, severe fatigue and her body locks up.
Responding to questions concerning the assistance her parents provide, Ms Blackberry said that her parents visit pretty much daily, and help with assisting her to get up if she wishes, and with cleaning and clothes washing.
The evening meal that she has is usually a frozen meal which she reheats in the oven. If she has a sudden drop in her white blood cell count, she will often stay asleep. She will generally eat her meals while in bed.
If she needs to go the toilet, she will often need to crawl to get there. At other times to mobilise she will use a one-point walking stick.
Dr Kholi’s evidence
Dr Kholi provided a summary of his qualifications and professional experience. He is currently a GP in general and acute care at the Launceston General Hospital
He has been Ms Blackberry’s treating physician, since 2016, and last saw her late last year.
He has been treating her for severe fatigue and chronic pain after she was diagnosed with Neutropenia. Extensive investigations have been unable to pinpoint the exact cause. She has profound symptomatology and an impaired level of function with fatigue His main role has been assisting her with pain management.
He confirmed that he provided letters in assistance of her NDIS application.
Dr Kholi was referred to his letter dated 7 November 2023,[18] and asked why he considered Ms Blackberry’s impairments were permanent. He said that he based this upon the trajectory of her illness, where her pain and fatigue became ongoing and her responsiveness to interventions. He found that her pain was persistent and over time was worsening, and over a span of five to six years, with interventions not working, and the trend of her escalating need for analgesics, tells him that the condition is permanent.
[18] JTB 148.
He was also asked why he had revised his earlier opinion, where he stated that nearly all treatment modalities have been used and none worked, and his current position that all treatment modalities have been exhausted. He said in response that he was waiting to see the opinion of Dr McCallum, Ms Blackberry’s pain specialist, on the potential use of lignocaine infusions.[19] When Dr McCallum advised in his report advised this would not help, Dr Kholi revised his opinion on treatment options. In his view, lignocaine is used for localised pain and would not have an impact on generalised pain as experienced by Ms Blackberry.
[19] JTP 139.
Dr Kholi was asked about the report from Dr Chia on Ms Blackberry’s lung capacity.[20] He was asked as to the benefits of providing her with supplemental oxygen. He said that this would not fix her lungs or impact her pain levels but can lead to reduced mortality. Her fatigue levels were an ongoing issue even when her oxygen levels were normal, and he did not see this improving her fatigue levels.
[20] Dr Chia’s latter of 24 September 2024, JTB 150.
Dr Kholi was asked what emphysema is. He said it is permanent structural damage to the lung, especially to the distal airways, smoking is usually a major cause, but other things can cause it including inhalation of gasses or dust exposure.
He said emphysema is a structural condition, treatments are used for symptom control but don’t reverse the changes, it can slow the progression of the condition and improve a patient’s quality of life.
Dr Kholi was asked about his understanding of location of Ms Blackberry’s pain? In response he said that her condition, Fibromyalgia, is a central hypersensitivity pain syndrome where normal nervous impulses are perceived by the brain as pain. It is not known what triggers it, but someone with the condition experiences constant pain over their entire body when awake.
In relation to the proposed use of supplemental oxygen, Dr Kholi said that it was used primarily for the management of symptoms however it would not ameliorate the condition entirely and while it could improve a patient’s capacity to walk, this level of function would need to be tested.
I asked Dr Kholi of his assessment of Ms Blackberry’s functional capacity. He responded by saying that there would likely be a time where she will need assistance to care for herself, and while her parents provide help, more formalised support would be useful. She has poor mobility and will likely need a mobility scooter in the future. There was also the likelihood of deconditioning over time caused by needing to lie down for such an extended period, and the impacts of this will need to be seen. He acknowledged that in terms of a functional assessment of Ms Blackberry, he would defer to the opinion of an Occupational Therapist as this is a very specialised area.
Dr Kohli when asked of the prognosis of Ms Blackberry’s conditions, responded that her symptoms have the potential to worsen.
Evidence for the Respondent
Ms Warner’s Evidence
After providing a summary of her qualifications and experience, and confirming her report is correct, Ms Warner answered a series of questions from Mr Nolan and Mr Royston.
Referring to her observations concerning Ms Blackberry’s capacity to lift certain weights, she confirmed she could lift anything up to two kilograms but would need assistance for anything more than that weight.
She agreed that in addition to the impact on COPD and Fibromyalgia on Ms Blackberry’s mobility, her Neutropenia could decrease her capacity to move around her home and in the community.
In this regard, she noted the condition impacts the immune system and this may mean she is less likely to want to access the community and, in her home, during periods of acute infections or when unwell, that would impact her general endurance and ability to navigate around house.
Ms Warner was asked about Ms Blackberry’s capacity for meal preparation. She said that any meal that required some degree of preparation like chopping or putting ingredients together would require more than her functional capacity.
She also agreed that certain forms of cleaning such as spring-cleaning tasks, i.e. routine activities performed quarterly such as windows, moving furniture, sorting, were beyond Ms Blackberry’s capacity. She said that she considered that she could do light cleaning, such as wiping down a bench, where the task was short in duration and not physically demanding.
CONSIDERATION
At the conclusion of the oral evidence Mr Nolan, on behalf of the Respondent, advised the Tribunal of its updated position with respect to s 24 of the Act, namely:
·That it now conceded, under s 24(1)(a), that Ms Blackberry has a disability of her lung function arising out of COPD/Emphysema.
·That it conceded that Ms Blackberry’s Chronic Pain Syndrome was permanent, however still disputed that her COPD/Emphysema was a permanent condition.
·That it maintained its position that Ms Blackberry does not have a substantial reduction in functional capacity, noting Ms Blackberry’s Counsel’s advice that the primary focus would be on her mobility and self-care.
·That it now conceded that her impairments affect her capacity for social or economic participation. That it maintained that the evidence did not establish that Ms Blackberry would be likely to need NDIS support for her lifetime. Counsel however noted that in the event I was to find that she had a substantially reduced functional capacity in any domain, that the Respondent would then concede that she would require lifetime support.
The parties advised the Tribunal that Ms Blackberry was not seeking access to the scheme under the early intervention criteria in s 25.
Section 24: The Disability requirements
As noted earlier, the separate elements of the disability requirements are cumulative; in other words, an applicant must establish that they meet every element to satisfy the disability requirements set out in s 24 of the Act.
I will now make my assessment of each of the elements that remain in dispute between Ms Blackberry and the Respondent.
Section 24(1)(a): Does Ms Blackberry have a disability that is attributable to her physical impairments or to an impairment attributable to a psychosocial disability?
The Tribunal notes that the Respondent has previously conceded that Ms Blackberry has a disability arising from the following conditions:
·Neutropenia.
·Fibromyalgia
·Chronic Pain Syndrome.
·COPD/Emphysema
The Tribunal is also satisfied that the evidence establishes this, so this element is met.
Section 24(1)(b) Are Ms Blackberry’s impairments permanent or likely to be permanent?
The Respondent has conceded that Ms Blackberry’s Neutropenia, Fibromyalgia and Chronic Pain Syndrome are permanent, however still contests that her COPD/Emphysema is permanent. Henceforward, for brevity’s sake I shall refer to this condition as COPD.
Before addressing this element of the s 24(1) criteria, it is important to refer to other material such as the Access Rules, the Access Guidelines, and relevant case law which may assist me in making my assessment.
Subsection 24(2) provides that for the purposes of ss 24(1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the NDIS for the person’s lifetime, despite such variations. Subsection 24(3) also refers to impairments that are episodic or fluctuating. The expression “permanent” is not otherwise defined in the Act.
The meaning of “permanent” in ss 24(1)(b) was considered in detail by Mortimer J (as her Honour then was) in Davis[21]In that case Mortimer J rejected an argument advanced by the respondent that permanent meant “irreversible” or “untreatable” (at [77]). Her Honour instead held (at [85]) that the correct meaning of “permanent” in ss 24(1)(b) is “enduring”, noting that:
This meaning reflects the purpose and context of the legislative scheme, as a scheme intended to deliver lifelong support to persons with disability.[22]
[21] Davis (n 9).
[22] Ibid [85].
Further context to how to assess the permanency of an applicant’s condition is contained in Part 5 of the Access Rules.
Part 5 of the Rules is headed “When does a person meet the disability requirements”. Above r 5.4 to 5.7 is a subheading “When is an impairment permanent or likely to be permanent for the disability requirements?” Rule 5.4 is as follows:
An impairment is, or is likely to be, permanent (see paragraph 5.1(b)) only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.
In Davis, there was significant debate and then lengthy consideration by Mortimer J as how the concept of permanence should be defined, with the learned Judge ultimately determining that the correct meaning of ‘permanent” was ‘enduring” and settled on this interpretation as this meaning took proper account of the purpose and context of the legislative scheme, as a scheme intended to deliver lifelong support to persons with disability.[23]
[23] Ibid.
The important point to note here, is that in order to establish that a condition is permanent, there should be treatment or treatments that are likely to ‘remedy’ that condition. In Davis ‘remedy’ was considered to mean ‘cure or substantially relieve’, as opposed to temporary amelioration of symptoms.[24]
[24] Davis (n 9).
On this point, my view is that the available evidence indicates that Ms Blackberry’s COPD is a permanent condition.
Dr Maria Venter, in her letter of 21 September 2021, states the following:
Further to my previous letter, I attach documentation showing that all pathways of treatment have been explore [sic], none of these are curative, and Chrystal’s conditions of fibromyalgia, chronic neutropenia and emphysema are permanent.[25]
[25] JTB.
The evidence from Ms Kate Banks (Physiotherapist),[26] and Dr Kohli,[27] is that all treatments for this condition have been explored, with Dr Kholi noting:
In my opinion, nearly all treatment modalities have been used to provide symptom relief in Chrystal’s case. Unfortunately, none of the interventions have proved to be of significant benefit or improved her quality of life substantially.[28]
[26] JTB 117.
[27] JTB 148.
[28] Ibid.
Dr Kohli, in his oral testimony, indicated that in the light of the report from Dr McCallum, he had revised his opinion to the effect that he now considered all treatment modalities had been trialled.
Concerning Ms Blackberry’s COPD, he stated that this was a condition characterised by permanent structural damage to certain lung tissues. He said that the suggested supplemental oxygen would treat the symptoms but would not ameliorate the condition.
Counsel for the Respondent submitted that I should not be satisfied, on the available evidence, that Ms Blackberry’s COPD was permanent. In this regard, it referred to the 24 September 2024 report of Dr Collin Chia which recommended the provision of supplemental oxygen.[29] In its submission, it was not possible to make a finding on permanency on Ms Blackberry’s COPD until Dr Chia conducted a further review of her after trialling this treatment. It also stated that I should not place significant weight to Dr Kholi’s opinion on the permanency of her COPD as he was not a respiratory specialist.
[29] JTB 150.
I do not agree. In the absence of Dr Chia providing oral testimony, I believe I can rely on the views expressed by Dr Kholi on this point. I believe that I can rely on his views on the nature of Ms Blackberry’s medical condition and his views on the likely impact of such treatment on her condition.
Having regard to this evidence, I am satisfied that Ms Blackberry’s COPD is permanent and therefore s 24(1)(b) is satisfied in relation to this condition.
Subsection 24(1)(c) Do Ms Blackberry’s impairments result in her having substantially reduced functional capacity?
Before addressing this element of the ss 24(1) criteria, it is important to refer to other material such as the Access Rules, the NDIS Guidelines and relevant case law which may provide assistance in making my assessment.
Rule 5.8 provides that:
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.
General approach
The Access Guidelines provide the following guidance in relation to the question of whether the criterion under s 24(1)(c) of the NDIS Act has been met by an applicant:
Does your impairment substantially reduce your functional capacity?
Your permanent impairment needs to substantially reduce your functional capacity or ability to undertake activities in one of the following areas:
•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.
•Socialising – how you make and keep friends, or interact with the community, or how a young child plays with other children. We also look at your behaviour, and how you cope with feelings and emotions in social situations.
•Learning – how you learn, understand and remember new things, and practise and use new skills.
•Mobility, or moving around – how easily you move around your home and community, and how you get in and out of bed or a chair. We consider how you get out and about and use your arms or legs.
•Self-care – personal care, hygiene, grooming, eating and drinking, and health. We consider how you get dressed, shower or bathe, eat or go to the toilet.
•Self-management (if older than 6) – how you organise your life. We consider how you plan, make decisions, and look after yourself. This might include day-to-day tasks at home, how you solve problems, or manage your money. We consider your mental or cognitive ability to manage your life, not your physical ability to do these tasks.
Your impairment substantially reduces your functional capacity if you usually need disability-specific supports to participate in or complete the above tasks.
These disability-specific supports include:
•a high level of support from other people, such as physical assistance, guidance, supervision or prompting.
•assistive technology, equipment or home modifications that are prescribed by your doctor, allied health professional or other medical professional.
To help us decide if you’re eligible, we need to know your capacity and where you need more help. We get this information from your NDIS application.
If you have more than one permanent impairment we will consider them together, to see if they substantially reduce your functional capacity.
We consider how you’re involved in different areas of life like home, school, work and the community, and how you carry out tasks and actions. We also consider any other factors that may impact your day-to-day life.
Your needs might go up and down each day or each month. Progressive Multiple Sclerosis (MS) can be a good example of this. We consider your ability over time, taking into account your ups and downs.
The Tribunal is not bound by those descriptions provided in the guidance as to the six Prescribed Activities in ss 24(1)(c) of the NDIS Act when assessing the criteria relating to “substantially reduced functional capacity”. However, in general terms, the Tribunal considers that those definitions in the Access Guidelines operate as a good starting point in making that assessment.
As observed by her Honour Justice Mortimer (now Chief Justice Mortimer) in Mulligan,[30] this assessment calls for an examination of evidence given by the person seeking access to the NDIS, as well as medical and clinical evidence. The focus is a practical examination of what the person can and cannot do. Her Honour in Mulligan described the assessment as “avowedly functional, and multi-faceted” and that:
No decision-maker need be satisfied a person’s impairment is “serious”, or more serious than another person’s. No qualitative judgments in that sense are called for.
[30] Mulligan (n 10) [55]–[56]. Her Honour Justice Mortimer is now the Honourable Chief Justice of the Federal Court of Australia.
The Full Court of the Federal Court of Australia in Foster,[31] decided that it was an error to apply the NDIA’s guidelines in a way as to equate a person’s inability to undertake one task forming part of “self-care” (that is, in that case, toileting) and to deem this to be the relevant activity for which functional capacity was required to be assessed.[32] The Full Court in Foster observed at that:
[64]In the context of all the matters* that comprise the concept of self-care, a decision-maker is required to make a functional, practical assessment of what a person can and cannot do.
[65] Rather than using the assessment tool, being the Guidelines, to reach a conclusion as to whether or not Mr Foster had substantially reduced functional capacity to undertake self-care by assessing his functional capacity with respect to the bundle of tasks and actions forming the concept of “self-care”, the Tribunal applied the Guidelines in such a way as to equate Mr Foster’s impairment with the single task of toileting and deemed that to be the relevant activity for which functional capacity was required to be assessed. That was an error.[33]
(*emphasis added)
[31] Foster (n 12).
[32] Ibid [65].
[33] Foster (n 12) [64]–[65].
The judicial authority as outlined in Foster calls for the Tribunal to make an assessment of the person’s capacity to undertake the various tasks and actions comprising each of the Prescribed Activities, taken as a whole.[34] This interpretation in Foster,[35] by the Full Court of the Federal Court of Australia, stands for the proposition that a person does not necessarily have a substantially reduced functional capacity in relation to an activity merely because they have difficulty with one task related to that activity.[36]
[34] Foster (n 12).
[35] National Disability Insurance Agency v Foster [2023] FCAFC 11.
[36] Foster (n 12) [44].
The Full Court of the Federal Court of Australia in Foster addressed the question of what is meant by “effectively and completely” as appearing in r 5.8(a) of the Access Rules. Of note, Justice Derrington observed as follows:
[83] In the overall legislative scheme, the adverb “completely” appears to be redundant, and in any event, unachievable. If “completely” is to be given its ordinary meaning, what is being asked of the rule is an assessment of whether a person’s impairment results in substantially reduced functional capacity to participate “wholly” or “perfectly” in the activities of communication, social interaction, learning, mobility, self-care and self-management – an impossible bar for almost everyone.
…
[88] Within this statutory context, and having regard to the purpose of s 24 as described in the revised Explanatory Memorandum, a person will not necessarily be deemed to have substantially reduced functional capacity simply because one task is unable to be completed without assistive technology. The task remains to assess the degree to which the person can participate in the activity.[37]
[37] Foster (n 12) [83], [88].
As cautioned by the judicial observations in Mulligan, the Tribunal should not confine its consideration of whether a person has met the disability requirement under s 24(1)(c) of the NDIS Act, by considering their circumstances only through the prism of r 5.8 of the Access Rules.[38] Instead, her Honour, Justice Mortimer, made clear that the statutory task before a decision-maker was to consider whether a person’s functional capacity is substantially reduced in any of the six Prescribed Activities.
[38] Mulligan (n 10) [70].
The Respondent asserted in its Statement of Facts Issues and Contentions (SFIC) that Ms Blackberry’s impairments do not result in substantially reduced functional capacity for the purposes of s 24(1)(c) of the Act.[39] The Respondent maintained that assertion in its post hearing written submission.[40]
[39] JTB 32.
[40] ‘Respondent’s Statement of Facts, Issues and Contentions’ 13.
I will address the evidence on Ms Blackberry’s functional capacities under the headings of mobility and self-care, as Ms Blackberry’s counsel confirmed that its focus was on these two domains.
Mobility
Ms Blackberry’s Counsel submitted that I could make a finding of substantially reduced functional capacity in these two domains based upon r 5.8.
By way of a recap, r 5.8 states that an impairment results in a substantial reduction in a person’s functional capacity where it results in either:
(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…
In this regard Mr Royston noted that, in the domain of mobility, Ms Blackberry was reliant on assistive technology, and in the domain of self-care, she was reliant upon her parents which rendered her being 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.
Regarding her need for assistive technology, at present Ms Blackberry uses a walking stick to mobilise, a shower stool, and has an electric bed which she uses to facilitate transfers in and out of her bed. It has been recommended that she will also require other assistive technology including a four-wheel walker, wheelchair and scooter.[41]
[41] Ms Warner’s report: JTB, 184.
I do not consider these items, recommended by Ms Warner, to be commonly used items as they are disability specific and usually indicate that the proposed recipient has a high degree of impairment of mobility.
With regard for Ms Blackberry’ reliance on others for assistance, there is clear evidence that she is currently almost totally reliant upon her parents for many daily tasks including preparing meals, house cleaning, changing her bedding, laundering her clothes, purchasing her groceries, delivering groceries to her house and putting them away, and driving her to medical and other appointments.
She is also reliant upon the service provided by her cleaner and gardener. As she noted in her evidence, given her parent’s age and increasing frailties, she will need to increase the number of hours her cleaner and gardener provide their services.
I further note that Ms Warner advised in her report that she did not observe any self-limiting behaviours on Ms Blackberry’s behalf.[42]
[42] Ibid 185.
Taking heed of the cautionary approach outlined in Mulligan,[43] I do not propose to make a finding that Ms Blackberry has a substantial reduction in functional capacity, solely on the basis that she is reliant on assistive technology and the assistance of others. This is despite there being significant evidence indicating Ms Blackberry’s reliance in the domains of mobility and self-care on both assistive technology, and that provided by her parents, the hired cleaner, and the gardener.
[43] Mulligan (n 10) [55].
As I indicated to the parties’ representatives at the hearing, my preferred approach is to address the issue of functional capacity in a holistic manner. This is in line with the approach recommended in Mulligan,[44] where Mortimer J considered that it required a practical and multifaceted assessment of an applicant’s functional capacity.
[44] Mulligan (n 10) [55].
This approach was also recommended in Foster,[45] which also cautioned decision makers to consider an applicant’s capacity in each domain, on the basis of their capacity to perform the tasks in an activity as a whole, rather than conduct that assessment in a granular fashion, whereby if a person is unable to perform a single task in a suite of activities (i.e. such as mobility or self-care) that then leads to a finding of a substantial reduction across the entire domain.
[45] Foster (n 12).
In this regard, Ms Blackberry has significant mobility limitations both in her home and in the community as follows:
·She has limited tolerance for standing before needing to lie down.
·Ms Warner, in her report, found that the Applicant could potentially lift up to two kilograms but not more than this.
·She has very restricted capacity to sit up for more than about five minutes before her pain significantly increases.
·She is severely limited in her capacity to move around her home, experiencing shortness of breath when going to the kitchen or bathroom, and is limited to getting food or going to the bathroom for showering and toileting. Otherwise, she spends most of the day in bed.
·On a bad day, she is only able to access the bathroom by crawling.
·She requires the assistance of a walking stick, walker and a long-handled reaching tool. She has an electric adjustable bed which she requires to get in and out of bed.
·She is unable to walk to the local shops or park.
·In terms of accessing the community, she is largely reliant on others for transport.
·On longer journeys, such as her last visit to Hobart for medical treatment, she had to lie down rather than sit in the car.
Based upon these observations, Ms Blackberry’s poor mobility impacts a wide variety of such tasks and cannot be said to be limited to a single task amongst many others.
Based on the evidence before me, Ms Blackberry has a significant reduction in her functional capacity across a broad spectrum of activities in the domain of mobility.
Self-Care
Before conducting this assessment, I consider I need to determine what daily activities should come under the rubric of ‘self-care’.
Both parties, at the conclusion of the hearing, made oral submissions concerning how I should approach the concept of self-care.
In Mr Nolan’s submission, common household tasks such as cooking and cleaning only could come within the domain of self-care where there was a negative effect on an applicant’s hygiene. In doing so he cited as authority for this, the report of the Productivity Commission which predates the passing of the Act.
Mortimer J in Davis,[46] made the following relevant observations, concerning the limits on the use of extrinsic material closer to the drafting of a piece of legislation, such as Explanatory Memorandum, citing Gageler J in Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (‘Mondelez’): [47]
The pronouncement of five members of the High Court in 2010 that “it is erroneous to look at extrinsic materials before exhausting the application of the ordinary rules of statutory construction” cannot be understood to have meant more than to stress that statements of legislative intention made in extrinsic materials do not “overcome the need to consider the text of a statute to ascertain its meaning”. The “modern approach to statutory interpretation”, which was well‑established before the pronouncement and which has continued in practice afterwards, “(a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses ‘context’ in its widest sense to include such things as the existing state of the law and the mischief which … one may discern the statute was intended to remedy.”
Applying the modern approach to statutory interpretation, consideration of context, including consideration of legislative history and extrinsic materials, “has utility if, and in so far as, it assists in fixing the meaning of the statutory text”. The quality and extent of the assistance extrinsic materials provide in fixing the meaning of statutory text is not uniform. The quality and extent of the assistance varies in practice in ways unable to be fully appreciated without regard to the provenance and conditions of creation of the extrinsic materials.
Explanatory memoranda for all Government Bills other than appropriation and supply Bills introduced into the Commonwealth Parliament have long been required by the practice of the Senate and the standing orders of the House of Representatives. The Department of the Prime Minister and Cabinet has long published a Legislation Handbook for the guidance of officers of the Executive Government the current edition of which describes an explanatory memorandum for a Government Bill as “a companion document to a bill, to assist members of the Parliament, officials and the public to understand the objectives and detailed operation of the clauses of the bill”. Typically, an explanatory memorandum for a Government Bill is written by officers of the Department whose Minister has portfolio responsibility for the Bill and who have given drafting instructions for the Bill to the Office of Parliamentary Counsel, the principal function of which is “the drafting of proposed laws for introduction into either House of Parliament.”Explanatory memoranda for Government Bills introduced into the Commonwealth Parliament are written against the background of the Parliament’s commitment to the governance of the enacted statutory text accentuated in the constrained language used by the Parliament in s 15AB of the Acts Interpretation Act to acknowledge how consideration of an explanatory memorandum or other extrinsic material might be “capable of assisting in the ascertainment of the meaning” of a provision of an Act. Section 15AB acknowledges that consideration of an explanatory memorandum might assist “to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act”. Or consideration of the explanatory memorandum might assist “to determine the meaning of the provision” if it “is ambiguous or obscure” or if “the ordinary meaning conveyed by the text of the provision ... is manifestly absurd or is unreasonable”.
[46] National Disability Insurance Agency v Davis [2022] FCA 1002, quoting Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2020] HCA 29; 381 ALR 601 [66]–-[69].
[47] Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2020] HCA 29; 381 ALR 601 (‘Mondelez’) [66] –-[69].
In framing this argument on how s 24(1)(c)(v) should be interpreted, Mr Nolan placed reliance on what, I took to refer to, the 2011 report of the Productivity Commission on Disability, which in part recommended the establishment of the NDIS.
As such, it should be considered extrinsic material and, in line with Mondelez, caution should be exercised in the interpretation of such material.[48]
[48] Mondelez (n 48) [66].
Mr Royston for his part, directly addressed the reference to hygiene in Mr Nolan’s submission by pointing out the importance of Ms Blackberry’s home being kept scrupulously clean as she was highly susceptible to infection arising out of her Neutropenia. This was the subject of various pieces of evidence, including Ms Blackberry’s own testimony.
He also referred me to the general approach taken by other Members of the Tribunal, who in large part will include such tasks as cooking, cleaning and other related domestic tasks as falling within the domain of self-care.
This to me seems the appropriate domain to include the category of tasks, as the only other possible candidate is generally restricted to what could best be termed as an applicant’s capacity to manage their personal affairs, and whose focus appears to me to be on an Applicant’s cognitive capacity.
In my view, the approach recommended to me by Mr Nolan is unduly restrictive. This is because it effectively quarantines a whole category of everyday tasks which do not fall within any of the six domains outlined in ss 24(1)(c). Further, my general approach in such matters is in line with other Tribunal Members, in that I will consider an applicant’s capacity to conduct such tasks as an overall assessment of functional capacity under ss 24(1)(c)(v).
I also note in passing that most Occupational Therapists will, as part of their assessment, address an applicant’s level of function in a range of day-to-day domestic tasks.
In any event. I am also satisfied that the weight of the evidence before me indicates that, due to her Neutropenia, Ms Blackberry is at significant risk of infection which clearly places these tasks within the domain of self-care, if I were to accept Mr Nolan’s submission (which, as I have indicated above, I do not).
Having addressed this contention, I now turn to Ms Blackberry’s level of function in the domain of self-care.
Based on the evidence before me, Ms Blackberry has a significant reduction in her functional capacity in the self-care domain, as follows:
·She is totally reliant on others for the preparation of meals and is limited to heating those meals in a microwave before consuming them in bed.
·She is almost totally reliant on others for the cleaning of her home and yard maintenance. While she may be able to perform some light cleaning, such as wiping down a bench or other surface, this capacity is highly limited.
·She is totally reliant on her parents to wash her clothes and bedlinen, and to strip and then make her bed.
·While she has some capacity to drive her motor vehicle, this would only be when all other alternatives, such as being driven by her father or using an uber or community transport, are unavailable.
·She is totally reliant on her parents for grocery and other shopping, and having those groceries then sanitised and put away.
·While she can shower herself on better days, she has significant difficulty in so doing, and on bad days is unable to shower.
Based upon these observations, the Tribunal is also satisfied that particularly in the activities of shopping, seeking medical treatment, household maintenance and domestic tasks including cooking, cleaning, and gardening, that Ms Blackberry requires a high level of assistance currently primarily provided by her elderly parents. The Tribunal finds that the Applicant usually requires assistance in the domain of self-care, because of her inability to complete key domestic tasks, meal preparation, seeking medical treatment, and undertaking shopping or household maintenance without physical assistance.
I also note, based upon Ms Blackberry’s father’s Carer Statement, that both he and his wife are finding it increasingly difficult, due to their age and poor health, to maintain this high level of daily care. While Ms Blackberry indicated in her evidence that she is intending to increase the hours of her professional cleaner, it appears to me both unlikely and uneconomic to have that cleaner replicate the current high level of care provided by her parents.
It follows therefore that the Tribunal should find that the Applicant’s impairments of Neutropenia, Fibromyalgia, Chronic Pain and COPD have resulted in a substantially reduced functional capacity within the meaning of ss 24(1)(c)(iv) and (v) of the Act.
Subsection 24(1)(d) Do Ms Blackberry’s impairments affect her capacity for social or economic participation?
This point has been conceded by the Respondent in its closing submissions. Once again, I independently consider that the weight of the evidence establishes that her capacity in both domains is substantially reduced, due to her impairments.
The Tribunal finds that the Applicant meets the requirements of ss 24(1)(d) of the Act.
Subsection 24(1)(e) Is Ms Blackberry likely to require NDIS support for her lifetime?
I have already made a finding that Ms Blackberry’s conditions namely, Neutropenia, Fibromyalgia, Chronic Pain Syndrome, and COPD are permanent.
On the face of it, it should follow that as Ms Blackberry’s conditions are permanent, she will have these conditions for the remainder of her life. On this basis, it is open for me to find that she will require lifetime NDIS support, subject to determining that such support needs are more appropriately met by other systems of support.
The Respondent addressed this issue in its SFIC, where it noted that the Access Rules do not expressly address the question of lifetime support.[49]
[49] JTB, 33.
The Respondent cited Foster, where ss 24(1)(e) was considered:
The focus of s 24(1)(e) is whether a prospective applicant is likely to require support under the NDIS or whether those support needs are most appropriately met by other systems…
…The answer to that question depends on whether the support is required in respect of substantially reduced functional capacity to participate in an activity, as assessed in accordance with s 24(1)(c).[50]
[50] National Disability Insurance Agency v Foster [2023] FCAFC 11 93]; JTB 33.
In this regard, two other support systems have been identified as potential candidates. These are Home and Community Care (Tasmania) (HACC) and TasEquip.
The Respondent has conceded that TasEquip is not an alternative, as a potential recipient needs to be a recipient of social security benefits, which Ms Blackberry is not.
In terms of the eligibility criteria for HACC these are:
The Tasmanian Home and Community Care (Tas HACC) program funds community services for Tasmanians under 65 years of age or under 50 for first nation peoples, and their carers to live independently at home if their capacity for independent living is at risk due to:
a health event or
living with an ongoing health condition people that need ongoing support and;
do not meet the eligibility for the NDIS.
I Have already determined that Ms Blackberry has established that she is eligible for the NDIS, as the evidence before me establishes that she meets the ss 24(1)(b) criteria. In addition, I have made a finding that Ms Blackberry has a substantially reduced functional capacity in the domains of mobility and self-care. Based upon the evidence of Ms Warner, the Applicant currently uses and will require assistive technology for each of these domains. In this regard, Ms Warner recommended the following pieces of equipment:
·Four-wheel walker
·Scooter
·Wheelchair
·Shower Stool
I make the following observations with respect to the HACC program; a copy of its manual being provided to the Tribunal by the Applicant. As was noted by Ms Blackberry’s legal representative in the Reply to the Respondent’s SFIC, HACC does not provide equipment or assistive technology.[51]
[51] JTB 49.
On page 7 of the HACC manual, under the heading ‘what services are outside of the scope of the Tasmanian HACC’, it is stated that health aids or appliances are excluded except where these items are not normally available through other government programs.[52]
[52] JTB 216.
In line with the approach set out in Foster,[53] as the HACC cannot meet Ms Blackberry’s support needs as they relate to assistive technology, I therefore consider that the NDIS is the most appropriate system to provide this and other supports.
[53] Foster (n 12).
The Tribunal is therefore satisfied that the evidence indicates that the Applicant is likely to require support her lifetime under the NDIS.
The Tribunal finds that the Applicant meets the requirements of ss 24(1)(e) of the Act.
CONCLUSION
It is not disputed that the Applicant’s meets the requirements of s 22 and 23 of the Act.
For the reasons given above, the Tribunal is satisfied that the Applicant meets the disability requirements set out in s 24 of the Act.
Accordingly, the Tribunal finds that the Applicant meets the access criteria set out in s 21 of the Act.
DECISION
The decision under review is set aside and, in substitution, the Tribunal decides that the Applicant meets the access criteria under s 21 of the National Disability Insurance Scheme Act 2013 (Cth).
I certify that the preceding 177
(one hundred and seventy-nine)
paragraphs are a true copy of the
reasons for the decision herein
of General Member A. Williams….........................[sgd]............................................
Associate
Dated: 10 January 2025
Date(s) of hearing:
19 and 20 November 2024
Counsel for the Applicant:
Mr Royston, of Derwent and Tamar Chambers
Counsel for the Respondent:
Mr Nolan, of Darrow Chambers
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