CKJW and National Disability Insurance Agency

Case [2021] AATA 3983

CKJW and National Disability Insurance Agency [2021] AATA 3983 (28 October 2021)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s): 2019/6867

Re:CKJW

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Member W Frost

Date:28 October 2021

Place:Canberra

The Tribunal affirms the decision under review pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975.

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Member W Frost

Catchwords

NATIONAL DISABILITY INSURANCE SCHEME – access to scheme –  post-traumatic stress disorder  –  persistent depressive disorder –  generalised anxiety disorder  –  chronic suicidality – whether impairment results in “substantially reduced functional capacity” to undertake any one or more specified activities – whether Applicant meets early intervention requirements – access criteria under sections 24 and 25 National Disability Insurance Scheme Act 2013 not met – decision affirmed

Legislation

Administrative Appeals Tribunal Act ss 35, 39, 43

National Disability Insurance Scheme Act 2013 ss 3, 18, 20-21, 24-25, 28, 100, 103, 209

National Disability Insurance Scheme (Becoming a Participant) Rules 2016 

Cases

Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Ditchfield and NDIA [2019] AATA 2121

GXYZ and NDIA [2020] AATA 3907

Howard and National Disability Insurance Agency [2019] AATA 2

HPSC and NDIA [2021] AATA 727

James and NDIA [2019] AATA 4248

Madelaine and NDIA [2020] AATA 4025

Mulligan and NDIA [2015] FCA 44

Mulligan and NDIA [2015] AATA 974

Secondary Materials

Access to the NDIS Operational Guideline

REASONS FOR DECISION

Member W Frost

27 October 2021

INTRODUCTION

  1. The Applicant, CKJW, is 55 years old. She had a very distressing early life and has been diagnosed with complex post-traumatic stress disorder (PTSD), persistent depressive disorder, generalised anxiety disorder and chronic suicidality. In December 2018, CKJW applied to become a participant in the National Disability Insurance Scheme (NDIS).[1]

    [1] Exhibit R1, T3, pages 15-22.

  2. In March 2019, a delegate of the Chief Executive Officer (CEO) of the National Disability Insurance Agency (NDIA) determined that CKJW did not meet the access requirements set out in the National Disability Insurance Scheme Act 2013 (NDIS Act).[2]  

    [2] ibid., T4, pages 23-25.

  3. CKJW requested an internal review by the NDIA and, in September 2019, another delegate of the CEO confirmed its decision that CKJW did not satisfy the access criteria in either sections 24 (containing the disability requirements) or 25 (containing the early intervention requirements) of the NDIS Act.[3] Pursuant to section 103 of the NDIS Act, in October 2019, CKJW applied to Administrative Appeals Tribunal (Tribunal) for merits review of the NDIA’s decision made under section 100 of the NDIS Act.[4]

    [3] ibid., T2, pages 7-14.

    [4] ibid. R1, T1, pages 1-6.

  4. In May 2021, the Tribunal held an in-person hearing of CKJW’s application over three days. However, the evidence was not concluded in this time and the hearing was adjourned to resume in June 2021. Unfortunately, this resumption was delayed due to the state of CKJW’s health. The Tribunal hearing ultimately resumed in August 2021…

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Details
AGLC
CKJW and National Disability Insurance Agency [2021] AATA 3983
Case
[2021] AATA 3983
Decision Date

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the application of CKJW for access to the National Disability Insurance Scheme (NDIS). CKJW sought access to the scheme due to impairments including post-traumatic stress disorder, persistent depressive disorder, generalised anxiety disorder, and chronic suicidality. The National Disability Insurance Agency had previously refused access, a decision CKJW sought to have reviewed.

The Tribunal was required to determine whether CKJW's impairments resulted in a "substantially reduced functional capacity" to undertake any one or more of the specified activities listed in the National Disability Insurance Scheme Act 2013, as required by section 24 of the Act. Additionally, the Tribunal considered whether CKJW met the early intervention requirements under section 25 of the Act.

The Tribunal affirmed the decision of the National Disability Insurance Agency. In its reasoning, the Tribunal acknowledged the significant impact of CKJW's impairments and her traumatic history. However, based on the evidence presented, including lay evidence regarding CKJW's capacity for self-care, household tasks, social engagement, and management of appointments and finances, the Tribunal found that the legislative threshold for a "substantially reduced functional capacity" had not been met at that time. The Tribunal noted that while CKJW experienced significant variability in her functional capacity, there were periods where she could manage essential tasks and engage in hobbies, and that support was available from her family and friends.

The Tribunal's decision was to affirm the reviewable decision, meaning CKJW was not granted access to the NDIS. The Tribunal clarified that this decision did not diminish the severity of CKJW's impairments but rather found that the specific legislative criteria for access were not satisfied. The Tribunal also noted that CKJW could reapply for access in the future if her functional capacity became substantially reduced due to her impairments and she continued to meet other eligibility requirements.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In relation to self-care, Ms Hammond said she had no concerns about CKJW’s functional capacity on a ‘pyjama day’. She can still toilet and clean her teeth. She can cook occasionally when motivated and prepare food, the family eats a lot of take away, but CKJW can get breakfast and lunch. Ms Hammond said a lot of people were unmotivated to cook, but CKJW can prepare and heat up food, which is sufficient. CKJW’s mother had ‘high standards’ and when she left the home CKJW did not have to adhere to those standards. CKJW did not mention her reluctance to enter the kitchen and did so at the assessment and was described as being ‘fine’. Ms Hammond said the ‘main thing’ is that CKJW has an ability to access and consume foods, she is independent in this task, although her motivation is variable. Lay evidence CKJW CKJW provided a Statement of Lived Experience in this proceeding dated 10 March 2020, which said in part that:[20][20] Exhibit R2, pages 1-11. I was removed from my birth mother’s care when I was just over a year old and placed with a foster family who later adopted me.…I was sexually abused by a brother from the age of 8 to 15, his twin from age 10 to 16 and my adoptive father from 16 to 18. I was also physically abused (belt, cane) by my adoptive parents and emotionally abused…At one point I tried to report the sexual abuse but was not believed.I had two suicide attempts at 15 and 17. …My eldest daughter is my strongest support. She will come with me to some of my appointments with my psychiatrist, tries to encourage/entice me to leave the house for social events. She reminds me to update my calendar so that everyone at home is able to provide support if needed for individual events. …I have an extremely supportive circle of friends who are understanding of my cancelling commitments, whilst encouraging me to attend social gatherings when possible. Many of them would be willing to meet me for coffee etc if I could bring myself to do so.My husband works fulltime and our bills are set to autopay where possible. When finances need to be re-evaluated my daughter…has sat with me in order to assist me.…My disabilities make my daily life very difficult and I struggle to function and complete everyday household tasks including home duties. My conditions dictate how much I am able to get done on any given day.I tend to avoid entering the kitchen if it’s even the slightest bit messy. This means that the only time I cook is if the kitchen is spotless. I keep snacks in my study and if nobody else cooks I will eat them. My daughters generally take turns cooking the evening meal which I will eat, however if for some reason it’s not cooked I’ll either skip the meal completely or order takeaway. If my daughters are ordering lunch for themselves, I will add to their order but otherwise skip lunch. I don’t generally eat breakfast. My husband does the washing and folding of clothes, though I will put a load of washing on if I feel up to it. If the kitchen is tidy I will empty the dishwasher and very occasionally I will fill the dishwasher. I do no other household chores except for tidying my study when I’m up for it and occasionally the lounge room. These chores are normally done by my eldest daughter.If I do not have to leave the house I tend not to get dressed. I will shower if I’m going out every three days, whichever is sooner. I avoid being undressed as much as possible, so will tend to wipe myself down rather than shower as mentioned. I avoid leaving the house as much as I can at the moment. If I make plans to meet someone then I’ll cancel a lot of the time, however, currently I’ve given up making plans, as I feel that I don’t want to put people out when I’m going to most likely cancel. …If an appointment is not at a regular time I will not remember it unless I have a reminder…I then have to constantly check/confirm the time so as to not miss-time things. Often I use multiple alarms. I have alarms set for all my medications and if I turn them off without taking them will often realise later than I did not take them. …I build Lego as a hobby. I currently still have Lego left from Christmas and my birthday that I haven’t done despite being on holidays. I also write and play in roleplaying games and do photo-shopping. I used to be able to play twice a week and run a game once a week; currently I can manage to make myself attend one game a fortnight regularly and one game a fortnight intermittently. I do manage to play online games with friends, but that is very sporadic. I get up with the intention of building a Lego construction or writing or working on photo-shop, but then find myself just spacing out reading random stuff on my computer.…If I was to divide my time into average days per month it would be 1-2 very bad, 5 bad, 15-20 average, 2-5 good and 1-2 very good. They tend to group up though into clumps. In the last year I’ve had about 3 weeks’ worth of great days, spread into periods of about a week each, during those weeks I managed to plan a group project for university, clean-up the house for Christmas and re-organise my study. I’ve had about 7 weeks of good days where I felt like things were ‘on track’. I’ve had about 4 weeks of very bad and days and about 8 weeks of bad days where I feel as though my greatest accomplishment is surviving. That leaves me with about 30 weeks of the year where I can do stuff but it’s a struggle. It only takes me double the time to achieve a goal that I can do easily on a good or great day, but at least I can actually do it. Examination-in-chief

Decision

Reasons for decision

For the avoidance of doubt, the Tribunal’s decision does not diminish the nature and effect of CKJW’s impairments, but rather is a finding that the legislative criteria have not been met at this time. CKJW may again apply for access to the NDIS in the future if her functional capacity becomes substantially reduced as a result of her impairments and she continues to meet the other required criteria under the NDIS Act.DECISION The Tribunal affirms the decision under review pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975.

Ratio Decidendi

Legal Principle Established

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