CKJW and National Disability Insurance Agency

[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.

...........[Sgd]..............

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 using the videoconferencing facility Microsoft Teams, due to the COVID-19 pandemic. Despite these issues, the Tribunal is satisfied that the parties had a reasonable opportunity to present their respective cases and to make submissions in this proceeding, in accordance with section 39 of the Administrative Appeals Tribunal Act 1975 (AAT Act). The Tribunal has considered all of the evidence and submissions in this proceeding in reaching its decision and preparing these reasons. Additionally, due to the cause and effect of CKJW’s impairments, the Tribunal made an order under section 35 of the AAT Act prohibiting the publication of her name and any other information tending to reveal CKJW’s identity.

   ISSUES

5. The Tribunal must decide whether CKJW meets the ‘access criteria’, set out in section 21 of the NDIS Act, to become a participant in the NDIS. There was no dispute that CKJW meets the age and residence requirements, pursuant to sections 22 and 23 of the NDIS Act, which form part of the access criteria under subsection 21(1)(a) and (b) of the NDIS Act.

6. Therefore, to satisfy the final element of the access criteria at subsection 21(1)(c) of the NDIS Act, the Tribunal must determine whether CKJW meets the ‘disability requirements’ in section 24 or the ‘early intervention requirements’ in section 25 of the NDIS Act. This requires consideration of whether:

   (a)CKJW has a disability that is attributable to an impairment pursuant to subsection 24(1)(a) of the NDIS Act;

   (b)CKJW’s impairments are, or are likely to be, permanent in accordance with subsection 24(1)(b) of the NDIS Act;

   (c)the impairments result in substantially reduced functional capacity to undertake relevant activities under subsection 24(1)(c) of the NDIS Act;

   (d)CKJW’s impairments affect her capacity for social or economic participation pursuant to subsection 24(1)(d) of the NDIS Act;

   (e)CKJW is likely to require support under the NDIS for her lifetime under subsection 24(1)(e) of the NDIS Act; and

   (f)alternatively to the disability requirements in section 24, CKJW meets the early intervention requirements in section 25 of the NDIS Act.

   LEGISLATION & POLICY

7. The objects of the NDIS Act, set out in section 3, include to:

   (a) in conjunction with other laws, give 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); and

   (b) provide for the National Disability Insurance Scheme in Australia; and

   (c) support the independence and social and economic participation of people with disability; and

   (d) provide reasonable and necessary supports, including early intervention supports, for participants in the National Disability Insurance Scheme launch; and

   (e) enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports; and

   (f) facilitate the development of a nationally consistent approach to the access to, and the planning and funding of, supports for people with disability;

   (g) promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the community; and

   (ga) protect and prevent people with disability from experiencing harm arising from poor quality or unsafe supports or services provided under the National Disability Insurance Scheme; and

   (h) raise community awareness of the issues that affect the social and economic participation of people with disability, and facilitate greater community inclusion of people with disability…

8. Subsection3(3) provides that, in giving effect to the objects of the NDIS Act, regard is to be had to the need to ensure the financial sustainability of the NDIS and to the provision of services by other agencies, Departments or organisations and the need for interaction between the provision of mainstream services and the provision of supports under the NDIS.

9. Under section 18 of the NDIS Act, a person may make an access request to the NDIA to become a participant in the NDIS. If a prospective participant makes an access request, under section 20 of the NDIS Act, the CEO (or here, the Tribunal) must decide whether or not that person meets the ‘access criteria’ to become a participant in the NDIS. Pursuant to subsection 28(1) of the NDIS Act, a person will be granted access to the NDIS on the day it is decided under section 20 that the person meets the access criteria.

10. Subsection 21(1) of the NDIS Act provides that 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).

11. The ‘disability requirements’ in section 24 of the NDIS Act are 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 to one or more impairments attributable to a psychiatric condition; 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, or psychosocial functioning in undertaking, 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.

12. Alternatively to accessing the NDIS pursuant to the disability requirements under section 24 of the NDIS Act, section 25 sets out the ‘early intervention requirements’ for access to the NDIS, relevantly as follows:

    (1) A personmeets 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.

    (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.

13. Pursuant to subsection 209(1) of the NDIS Act, the Minister may by legislative instrument make rules regarding the NDIS. The rules relevant to this application are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Rules).

14. Additionally, an ‘Access to the NDIS Operational Guideline’(Access Guideline) written by the CEO of the NDIA provides guidance when determining whether a person with a disability meets the access criteria to become a participant of the NDIS. The Access Guideline represents government policy and, to the extent it is consistent with the relevant legislation, should be applied by the Tribunal unless there is good reason not to do so.[5]

    EVIDENCE

    Expert evidence

    [5] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.

    Dr Alexander Lim – Psychiatrist

15. On 20 February 2019, Dr Lim provided a letter in support of CJKW’s application to access the NDIS, which relevantly stated that:[6]

    [6] Exhibit R1, pages 181-182.

    [CKJW] suffers with the following conditions;

    Complex PTSD, chronic
    Persistent Depressive Disorder, chronic
    Generalised Anxiety Disorder, with panic attacks, chronic
    Recurrent Suicidality with persistent ideation, chronic

    All of these conditions are in the chronic phase, and as such are likely to be lifelong.

    …

    Due to the persistent nature of [CKJW]'s condition and peaks in intensity when she relapses in symptoms, [CKJW]'s ability to have independent living is heavily impacted. She often is unable to do the housework, including cooking, cleaning, and assisting other family members with their needs. Even when [CKJW] feels well enough to perform these chores and home duties, it is quite tiring for her.

    …

    Due to [CKJW]'s illnesses, she is often isolated and unable to catch up with friends. Even when she is motivated to do so, her illness can obstruct her ability to do so.

16. On 1 October 2020, Dr Lim provided a letter to CJKW’s solicitors, in the following relevant terms:[7]

    [CKJW] suffers with Complex PTSD due to events in her childhood. In addition, she suffers with chronic suicidality, low mood, anxiety, and has periods of poor self care.

    …

    [CKJW]’s treatment with Ketamine has enabled improvement of her suicidality, albeit for short periods of time. 

    [7] Exhibit R2, Tab 17.

17. On 19 October 2020, Dr Lim provided a further letter to CJKW’s solicitors, which relevantly stated that the Ketamine treatment ‘will not substantively change’ CKJW’s PTSD or its prognosis.[8] It will ‘hopefully’ improve some symptoms, including suicidality, but ‘the prognosis of a cure is zero’.

    [8] Exhibit R1, pages 85-86.

    Examination-in-chief

18. Dr Lim gave evidence in-person at the hearing of this proceeding in May 2021. He confirmed that CKJW’s conditions are chronic and ‘lifelong’, however he is hopeful there may be an ability for ‘more mood stability’. Dr Lim said the frequency of CKJW’s symptoms can change, but not their intensity. Dr Lim told the Tribunal that all of CKJW’s symptoms impair her ability to do most housework. She needs assistance with a broad variety of tasks, such as cooking, cleaning and laundry. When she is unwell, CKJW ‘can’t do’ these tasks psychologically.

19. Dr Lim described CKJW having a fluctuation in her ‘mood state’. He said CKJW can have downcast eyes, low demeanour, negative thoughts, such as blame and guilt, she walks slowly and has concerns regarding her husband’s health. Dr Lim worries that CKJW ‘might attempt’ to end her life. He said CKJW has not been hospitalised in the last year. CKJW is connected to ‘various social groups’, but when she is ‘unwell’ or suicidal CKJW will move away from these activities. When CKJW is well, Dr Lim said she will attend roleplaying groups. He said CKJW will skip these meetings typically when she is suicidal. In this circumstance, she will hoard her medications. Dr Lim said that CKJW’s knowledge that she can self-harm ‘to the point of lethality’ is a ‘comfort factor’ for her and she will not proceed, but without this she ‘feels stuck’ and ‘unable to enjoy life’.

20. Dr Lim told the Tribunal that there was ‘fairly robust evidence’ about the usefulness of Ketamine for mental health conditions, such as PTSD and suicidality. It is used for CKJW because ‘everything else’ has failed; other medications have not promoted a different state of function and she has persistent low mood. CKJW had six Ketamine treatments over six weeks via weekly infusions. It takes four to six months for positive effects to present. Dr Lim said identifying improvement was ‘tricky’ in relation to CKJW, but a ‘nice indicator’ was that she had not been hospitalised ‘for a while’. The ‘triggers’ in CKJW’s life were distressing childhood events leading to psychological injury and impacted development. The trauma attached to CKJW’s development led to her complex PTSD. The Ketamine will not cure or remedy CKJW’s conditions to remove her high state of dysfunction. It reduces her symptoms for a small amount of time, but it is unclear how long. Dr Lim told the Tribunal Ketamine has the ability to reduce the suicidality component and he hoped it would also improve CKJW’s functioning. Dr Lim also said that the success of treatment was complicated by CKJW’s physical health conditions, such as her heart problems.

21. Counsel asked Dr Lim whether he thought CKJW would struggle more if one daughter, CHKS, was not present. He said it was a ‘double edged sword’, but suspected so; it is a ‘comfort’ for CKJW to have her daughter around. 

22. In relation to self-care, Dr Lim told the Tribunal that CKJW was not able to perform at a ‘consistent level’ or maintain function. He could not recall discussions about cooking, but had the impression meals were ‘fast and easy’. He was ‘not surprised’ that CKJW would only cook on Christmas Day. Dr Lim said CKJW’s functioning could change within the same day due to the effect of her trauma, he anticipated it would fluctuate during the day and her mood ‘dips’ at night.

23. Dr Lim was asked about self-management and he said CKJW takes her medications, she can get from the house to appointments and consistently attended them. Dr Lim could not recall when CKJW did not attend appointments. However, Dr Lim agreed with the proposition that CKJW had a substantially reduced functional capacity in the activities of self-care and self-management. 

    Cross-examination

24. Dr Lim confirmed that he had been treating CKJW for between five and six years, but was unclear whether her quality of life had improved. CKJW takes the medication he prescribes. In May last year, CKJW decided to pursue Ketamine treatment. Dr Lim said he had received less reporting of CKJW stockpiling medication for self-harm, but was uncertain whether the ‘intensity’ of her suicidality had changed. Counsel asked Dr Lim whether CKJW was more functional since having Ketamine infusions. He said she had not returned to her previous university studies, but also had physical issues and ‘multiple other matters’ that impacted her. Dr Lim said all the ‘features’ of CKJW’s mental health are ongoing, but her ‘coping ability’ had positively changed in the last 12 months.

25. Dr Lim agreed that CKJW had no physical or cognitive impairments preventing her from cooking. He said she occasionally cooked and these were ‘simple meals’. Dr Lim also said if CKJW was not functioning, on a ‘very bad day’, it would be ‘difficult’ for her to make a basic breakfast. Dr Lim later agreed that CKJW has ‘some’ self-care ability, but assistance with housework would be ‘helpful’; she was trying to do it, but ‘struggling’. Dr Lim said he expected CKJW and her husband could manage their finances and that she would be able to do online grocery shopping. He also said he did not know CKJW’s morning routine and her ability to do things in the morning.  Dr Lim said when CKJW is well enough she can do chores, although she tires. When she has a relapse of her symptoms CKJW is unable to do domestic tasks. Dr Lim agreed that CKJW can do housework when not in a relapsed state.

26. Dr Lim again confirmed that he would ‘not really’ be surprised that CKJW cooks once each year and that this would not completely changed his view, but was ‘out of step’ with her recent account of daily life. Dr Lim also said he would be surprised if CKJW only showered weekly. He said the occupational therapist report prepared by Ms Hammond regarding CKJW’s ability to prepare meals was more in keeping with the picture he had over the years he had seen CKJW. He agreed that CKJW tiring of cleaning was due to both physical and emotional reasons and that previously her ‘resources’ were dedicated to university rather than housework. This was ‘possibly’ due to CKJW’s prioritisation. Undertaking housework depends upon whether CKJW has had a relapse or was on an ‘even keel’.   

    Re-examination

1. Counsel for CKJW asked Dr Lim what happens to the rest of CKJW’s life when she is focused on university. He said CKJW is focused on doing well and this is ‘all encompassing’, therefore her ability to attend to her family ‘might not be there’, but he did not know about cooking, cleaning and other household tasks. Dr Lim said this characteristic was ‘absolutely’ a feature of CKJW’s conditions and consistent with other patients who have a drive to perform and not let people down; it is tied to CKJW’s self-worth and self-esteem. Dr Lim was unsure whether CKJW managed household finances, but said he expected she would be able to undertake the ‘basic function’ of paying bills. Dr Lim said when CKJW is hospitalised her self-care ‘tends to go down’.  

   Ms Ellen McKenzie – Psychologist

2. On 24 June 2019, Ms McKenzie provided a report regarding CKJW, which relevantly stated as follows:[9]

   [9] Exhibit R1, pages 188-189.

   [CKJW] has engaged well in therapy so far primarily for support around: PTSD, Depression and Suicidal Ideation. [CKJW] has commenced Eye Movement Desensitization and Reprocessing (EMDR) Therapy for her historical trauma. Given the complex nature of the trauma that [CKJW] has experienced and slight improvement so far, it is reasonable to state that [CKJW]’s condition is permeant [sic] and ongoing. [CKJW] experiences significant impairment in functioning in the following areas:

   ·     Recurrent intrusive thoughts related to past traumas;

   ·     Avoidance of many places, people and situations outside of the home;

   ·     Inability to work;

   ·     Limited capacity to engage in activities for pleasure however does enjoy some social activities within a small, known group;

   ·     Highly dissociative for most of the day which impacts on mood and overall functioning including [CKJW]’s capacity to engage in any meaningful activities;

   ·     Inability to cope with life stressors without considering suicide as a means to cope; and,

   ·     Subsequent periods of hospitalisation to cope during periods of high stress;

   ·     Self-harm to manage difficult emotions;

   ·     Overall significantly impaired quality of life due to mental health and restricted functioning.

   [CKJW] endured extensive earlier life traumas which it is reasonable to state would have impacted on her emotional, social and neurological development.

   Examination-in-chief

3. Ms McKenzie gave evidence at the hearing by telephone in May this year. She told the Tribunal that she had a particular interest in, and client group consisting of those that had experienced, childhood trauma, the bulk of whom were adults. Ms McKenzie told the Tribunal she has been seeing CKJW for a couple of years. This is currently fortnightly due to CKJW’s financial constraints, physical health issues and because they are not undertaking intensive therapy at the moment. Since Ms McKenzie’s 2019 report, CKJW has attended 22 sessions, with 8 so far in 2021.

4. Counsel for CKJW asked Ms McKenzie about EMDR therapy. The Tribunal was told that there is a strong evidence base for its use as a treatment of trauma based conditions; it seeks to move traumatic memories in the brain by processing them and moving them on so a person is not symptomatic. CKJW has had approximately 30 EMDR sessions. CKJW will ‘connect’ to a traumatic memory or negative thought and use eye movements, with Ms McKenzie’s fingers in front of her face. This may lead to less hyper-vigilance and ‘bodily things’ that are triggering and less emotional distress. However, Ms McKenzie said it would not change the course of CKJW’s ‘development’. It could treat ‘aspects’ of her conditions. Intensive, but not continuous, EMDR would ‘improve’ her mental health, but CKJW would also require ongoing psychological support such as Cognitive Behavioural Therapy (CBT) to ‘remain engaged in the world and achieve goals’.  

5. Ms McKenzie was asked how CKJW would function without ongoing treatment. She said it was not the right time to deliver intensive therapy. CKJW was ‘unsettled’ by her NDIS appeal process, including this proceeding, and her own health issues and those of her husband. She was having more CBT to maintain her current level of functioning. This was not as intense as EMDR, which is the preferred treatment method.

6. Ms McKenzie was also asked about her statement that CKJW’s condition was permanent. She said this was based on ‘the age of onset which the traumatic events started’, the extent of the trauma being ‘severe and complex’ and not an isolated incident; it was long-standing ‘psychological and sexual abuse’. Ms McKenzie said ‘treatment interventions’ are useful in reducing ‘some symptomatology’ and improving functioning. However, she did not consider CKJW will be ever able to operate as a healthy normal individual because ‘too much occurred at too young an age unfortunately’. Ms McKenzie told the Tribunal CKJW will periodically have improvements in her functioning, depending on her mental health. She has had less dissociation, improved mood and a significant reduction in thoughts of self-harm and suicidality. This is still dependent on stressors, but there has been improvement.

7. Counsel asked Ms McKenzie whether EMDR would ‘remedy’ CKJW’s impairments. She told the Tribunal it would be overstating the effectiveness of EMDR to say that they will improve. It may enhance CKJW’s capacity to cope with moods and manage her symptoms, but it is not a ‘cure all’ for each impairment. This was due to the extensive developmental trauma suffered by CKJW. In this regard, Ms McKenzie said a regular review to establish whether CKJW’s impairments are permanent was not necessary because, while EMDR is ‘highly effective’ in some areas, it will not erase the neurological and psychological impacts that occurred at such a young age for CKJW. 

8. Counsel took Ms McKenzie to the report prepared in this proceeding by Ms Deborah Hammond, Occupational Therapist, and specifically the reference to CKJW’s anxiety when asked to demonstrate vacuuming. Ms McKenzie noted that CKJW reports ‘difficulty’ in maintaining ‘specific tasks’, due to trauma related to her adoptive parents. Ms McKenzie said CKJW’s mother had ‘high expectations’ about the state of their house and her father was ‘abusive’ towards CKJW in relation to household duties. This impacts on CKJW’s ability to undertake activities. Ms McKenzie was taken to a passage from Ms Hammond’s report which stated that CKJW ‘has the physical and cognitive capacity to perform domestic activities’, but ‘does not prioritise’ them in her daily life.[10] Ms McKenzie described this as CKJW having an ‘active avoidance’ of these tasks because they were psychologically ‘triggering’. Ms McKenzie said that in her clinical observations, CKJW was ‘highly dissociative’ because of her trauma and ‘loses time during the day’ which therefore makes it difficult to complete tasks. To this end, Ms McKenzie agreed that goals were ‘a good thing’, but because of CKJW’s dissociation she finds it ‘difficult’. Ms McKenzie confirmed that she had not conducted a functional assessment, but told the Tribunal that CKJW’s mental functioning fluctuates especially when she is in a dissociative state.

   [10] Exhibit R1, page 125.

9. Counsel for CKJW asked Ms McKenzie whether EMDR or other treatments would remedy or provide a ‘full cure’. She replied, ‘no’, however said EMDR could ‘possibly’ provide a ‘substantial relief’ from CKJW’s impairments, but it was ‘not a guarantee’. Ms McKenzie said CKJW had been responsive to EMDR provided ‘so far’, she did not know of her future response, but opined that it ‘would improve’ her overall quality of life and wellbeing. Counsel asked Ms McKenzie whether CKJW’s condition had substantially improved. Ms McKenzie said she had ‘observed improvement’, but would not say it was substantial, including because the provision of EMDR therapy had been ‘sporadic’. In this regard, Ms McKenzie said she did not think CKJW was in a ‘different position’ prior to commencing therapy with her.       

   Cross-examination

10. By way of cross-examination, Counsel for the NDIA referred to Ms McKenzie’s comment that CKJW had not substantially improved and asked whether anything would be different in the future. Ms McKenzie told the Tribunal that she likes to provide regular EMDR interventions while knowing that some clients will require lifelong psychological support. Counsel took Ms McKenzie to the statement in her report that funding from the NDIA for psychological services would be used ‘to support her recovery’. Ms McKenzie said the intended outcome of intensive EMDR was to allow ‘some form of recovery’ so as to ‘re-characterise events in her life’, but that CKJW will still require interventions because of her early trauma. This was described as a ‘strength-based approach’ that was ‘working towards wellness’.

11. Counsel put to Ms McKenzie the proposition that with regular treatment CKJW’s symptoms could be brought under control to allow her to function in society. Ms McKenzie said this would not occur and CKJW was unable to operate in society. CKJW’s improvement would be a reduction in her symptoms. It was further put to Ms McKenzie that people with CKJW’s conditions, PTSD, depression, generalised anxiety disorder and suicidal ideation, were able to function in society with the appropriate or required psychological support. Ms McKenzie said she was ‘unsure’ about persistent and chronic suicidal ideation and it ‘depends on the symptoms’. Counsel put to Ms McKenzie that if appropriately treated, CKJW could return to normal, albeit being burdened with her conditions. Ms McKenzie said that PTSD ‘doesn’t differentiate’ between incest or rape of a child and a single car accident suffered by an adult. She said that based on the severity of CKJW’s trauma it was ‘not her trajectory’ to function within the community.

12. Ms McKenzie told the Tribunal that EMDR therapy involved moving traumatic memories so that they were ‘more normal’. However, it did not involve talking through the memory, it was ‘more experiential’. Counsel asked whether Ms McKenzie expected CKJW to recover and for her day-to-day experience to improve if intensive EMDR was successful and there were improvements in her general wellbeing. Ms McKenzie said that it ‘could enhance’ CKJW’s ability to function. However, Ms McKenzie said an improvement in CKJW’s ability to undertake activities of daily living was not the ‘primary focus’, which was on CKJW’s emotional and psychological wellbeing, although she ‘may be able to function better’. Ms McKenzie further confirmed that if CKJW’s emotional wellbeing was enhanced then it may improve her functionality. She agreed that, if a person was psychologically healthy, they generally had a better quality of life. Furthermore, Ms McKenzie told the Tribunal that, based on her clinical observations of CKJW, she could comment on CKJW’s ability to function in some aspects of daily living, but again noted she had not conducted a functional assessment of CKJW. Ms McKenzie said that CKJW’s physical concerns have ‘amplified things psychologically’ and had impacted on the ability to conduct intensive clinical intervention.

13. Ms McKenzie told the Tribunal that, in theory, EMDR could capture the distressing thoughts CKJW had regarding housework; it was focused on individual ‘intrusive thoughts’ and there was ‘a lot to process’. She said that there could ‘potentially’ be a reduction in CKJW’s symptoms, but that she would ‘not necessarily’ be able to engage with housework. There were said to be ‘multiple things’ that impacted on CKJW’s ability in this function, including her memories from childhood, dissociative state leading to an inability to complete a task and her developmental trauma. In this regard, Ms McKenzie said that CKJW can ‘regress’ to almost a childlike state and be unable to perform a task. Ms McKenzie said she could not comment on whether CKJW could participate in household duties if there was an immediate incentive.

14. Ms McKenzie told the Tribunal that CKJW is articulate, intelligent, has a good level of humour, is sensitive and cares for others, she is thoughtful and insightful, although this last trait is ‘not strong’. Ms McKenzie said that the level of CKJW’s communication skills was ‘situationally based’, her ability to socially interact and learn was ‘dependent’ on her mental health and her ability to self-care and self-manage can ‘fluctuate’.

    Re-examination

15. By way of re-examination, Ms McKenzie told the Tribunal that she was unaware how often CKJW fluctuates. When CKJW is not functioning well she falls into self harm, suicidal ideation and experiments with medication; she has a ‘heavy reliance’ on family and others.

    Ms Kelly Katavic – Occupational Therapist

16. Ms Katavic provided a report in this proceeding dated 8 June 2020, following an assessment of CKJW in her home on 28 May 2020, which relevantly stated that:[11]

    [CKJW] would be socially isolated if it was not for her family with whom she lives. [CKJW] avoids accessing the local community, does not engage in paid or volunteer work and reports that friends only come to visit her for dinner on very rare occasions. [CKJW] is heavily reliant upon her daughter [CKHS] to take her into shopping malls and into the wider community as she finds it overwhelming.

    …

    [CKJW] is able to dress, shower and toilet independently with adaptive equipment to make it easier and safer. She can feed herself and move around the home to get a drink and a snack. However, she is unable to reliably make her own meals and keep the house in a clean state when it comes to hygiene. Elements of self care were certainly lacking…

    …

    [CKJW] has a history of making decisions which are not in her best interests such as self harm and self injurious behaviour in her attempts of suicide. [CKJW] has access to a psychologist at the moment which is recommended to continue. [CKJW] can physically call and make an appointment however finding the motivation to do so when in her lower moods and then remembering to attend if she is having a ‘bad day’ cannot be relied upon. 

    [11] Exhibit R2, Tab 3, pages 27-39.

    Examination-in-chief

17. Ms Katavic gave evidence at the hearing of this proceeding in May this year and outlined to the Tribunal her mental health experience as an occupational therapist. She approached the assessment of CKJW with an expectation that her mental health conditions were likely a significant factor in how well she completed activities of daily living. Ms Katavic did not ask CKJW to demonstrate vacuuming because she had read Ms Hammond’s occupational therapist report and understood CKJW was able to physically and cognitively complete this task. Ms Katavic said she approached her assessment from a mental health perspective and CKJW had reported that certain activities were related to her PTSD. She acknowledged that CKJW could perform tasks, but that it would place strain on her to do so; Ms Katavic saw no benefit from an ethical perspective in undertaking a separate functional assessment for her report.

18. Counsel for CKJW took Ms Katavic to her report regarding CKJW’s functional tolerances. She told the Tribunal that reference to CKJW being ‘independent’ meant that she did not require any assistive technology and reference to CKJW participating ‘effectively’ in an activity indicated CKJW did require assistive technology to perform that task. Ms Katavic reported that CKJW was unable to participate in meal preparation, but had reported being able to get a drink and snack; she was not making lunch or breakfast. CKJW had gone into the kitchen during the assessment and shown Ms Katavic around the home.

19. Ms Katavic reported that CKJW could participate effectively in grocery shopping, but becomes anxious and fears encountering family members related to her childhood trauma. In relation to cleaning, Ms Katavic said CKJW has avoidance behaviour associated with her PTSD. Her daughter completed most of the cleaning and her husband has a cleaner for his home office. Ms Katavic said that CKJW has tactile avoidance and sensitivity behaviour. The house was said to not be very clean and below standard. Ms Katavic said she had not commented in her report on this aspect because cleaning was a shared responsibility within CKJW’s household and it would therefore be unfair to judge her functioning based on the household. In this regard, Ms Katavic said if CKJW found it difficult to clean due to her impairments then she would expect the living standards to not be well maintained, but there were others living in the house and everyone has their own standards of cleanliness.

20. Ms Katavic reported that CKJW required assistance to do the laundry, said to usually be received from her husband and daughter. CKJW had told Ms Katavic that she could undertake these tasks so she did not ask for a demonstration. As documented in her report, Ms Katavic’s observation of CKJW’s functional ability was that she was reliant on her eldest daughter. Ms Katavic said that if CKJW’s daughter had moved out, as had recently occurred, she expected that CKJW would find it difficult to ‘do tasks independently’.

21. Ms Katavic told the Tribunal that she administered a sensory profile questionnaire to assess whether there were other factors to consider in relation to her functional assessment of CKJW. The results indicated that CKJW ‘notices sensory input at a much higher rate than similar aged peers’ and ‘avoids certain sensory input’.[12] Examples included CKJW avoiding noisy or crowded places or situations where unexpected things may occur and avoiding activities where her hands may get dirty or wearing gloves in those situations. Ms Katavic reported that ‘it is possible that [CKJW] is avoiding certain daily activities such as cleaning or meal preparation due to tactile sensitivity and visual sensitivity making the task feel overwhelming’.[13]    

    [12] Exhibit R2, Tab 3, page 33.

    [13] ibid.

22. Ms Katavic was asked about the ‘Life Skills’ Profile’ tool administered on CKJW, which demonstrated that she has a ‘greater degree of disability’ in self-care.[14] This finding was due in part to CKJW being given the highest possible score for neglecting her health as a result of her suicidal ideation. Furthermore, a World Health Organisation Disability Assessment Schedule (WHODAS) self-questionnaire, based on CKJW’s level of functioning over the previous 30 days, scored her as having a ‘moderate disability in relation to function’, with particular areas of difficulty including ‘Work Activities, Household activities and Participation is [sic] society’.[15] Ms Katavic said CKJW had ‘very restricted’ access to the community’ and only when her daughter could assist or when outside of Canberra. A ‘Depression, Anxiety and Stress Scale’ self-questionnaire recorded that CKJW’s ‘cognitive functioning is likely to be normal’, although she had severe depression, anxiety and stress.[16] Ms Katavic confirmed this was not a clinical diagnosis, but a self-report from CKJW.

    [14] ibid., page 34.

    [15] ibid., page 35.

    [16] ibid., page 36.

23. In relation to self-care and self-management, Ms Katavic said that CKJW’s issues with laundry, cleaning and meal preparation were related to her PTSD. CKJW’s daughter was said to be ‘predominantly’ undertaking cleaning, laundry, assisting with community access, meal preparation and emotional support to help manage CKJW’s mental health.

24. Ms Katavic said it appeared Ms Hammond had not accounted for CKJW’s mental health conditions in her report. Ms Katavic confirmed that she had conducted tests, but did not observe functional activities performed by CKJW. She assumed CKJW would ‘find it difficult’ to access the community alone due to her mental health.

    Cross-examination

25. Under cross-examination from the NDIA’s Counsel, Ms Katavic told the Tribunal that CKJW’s self-report of ‘severe’ difficulty remembering to do things in the WHODAS questionnaire did not ‘altogether surprise’ her, but CKJW had ‘no cognitive impairment’, so it ‘did surprise in that regard’. Ms Katavic said CKJW reported completing her groceries online and communicated with family and friends using technology. Ms Katavic said CKJW scored positively in relation to her ability to work because she had no cognitive impediment, although some accommodations would be required.

1. Counsel referred Ms Katavic to CKJW’s reporting regarding self-care in the WHODAS questionnaire, which was that she had no difficulty washing her whole body or getting dressed and had mild difficulty with eating. Ms Katavic said CKJW’s answer regarding eating could have included meal preparation, but agreed she was only mildly affected.

2. Furthermore, in relation to social interaction, CKJW had reported mild difficulty maintaining a friendship. Ms Katavic told the Tribunal that CKJW maintains her friendships through online means and by telephone. Ms Katavic was not informed about CKJW’s roleplaying activities and agreed this would impact her assessment and would indicate someone who is able to socialise. CKJW had also not reported having a large social group of around 20 to 30 friends. Ms Katavic acknowledged that CKJW’s socialising was not mentioned in her report. She also agreed that CKJW’s self report in the WHODAS questionnaire of having severe difficulty making friends was ‘another anomaly’ and ‘inconsistent’ with CKJW’s actual level of social interaction. Ms Katavic agreed that she did not interrogate the correctness of CKJW’s responses in preparing her report and recommendations and had accepted what she was told by CKJW.

3. Ms Katavic also agreed that someone with no mental health condition may have a higher level of sensitivity to sensory inputs and that it may be inherent in a person. In this regard, Ms Katavic said it stood alone and was completely unrelated to physical and mental health conditions. She also said this issue was ‘possibly contributing’ to CKJW’s difficulty with housework.

4. Ms Katavic was asked if CKJW did any cooking. She said CKJW reported that it was not a priority; this demonstrated ‘avoidant behaviour’. CKJW limited her involvement in this activity to getting snacks and drinks. Ms Katavic said CKJW was ‘capable’ cognitively and physically, but was dissociative as a result of her PTSD. She agreed that CKJW could prepare meals if there was a reason to do it and that she could cook if the kitchen was clean. Additionally, Ms Katavic said CKJW had told her that she could have a ‘burst of energy’ and do the laundry, but picking up the washing depended on how she felt on the day.

5. Ms Katavic told the Tribunal CKJW has ‘moderate’ difficulties with grooming, but was well groomed on the day of her assessment. Ms Katavic said CKJW has ‘physical limitations’ in toileting and showering. She can order groceries online. She can dress, clean in certain contexts and can do laundry depending on her mental health. Ms Katavic was referred to CKJW’s Statement of Lived Experience, in which she said that she will ‘put a load of washing on if I feel up to it’, and asked whether CKJW did her share of the laundry.[17] Ms Katavic said that from CKJW’s self-report, on good days she can, but finds it difficult on bad days. Ms Katavic did not enquire about the extent of CKJW’s good and bad days; this was based on CKJW’s self-reporting.    

   [17] Exhibit R2, Tab 1, page 6.

6. Ms Katavic told the Tribunal that CKJW’s involvement in roleplaying, her 20 to 30 friends and interactions with family put CKJW’s capacity for social interaction in a ‘different light’. She said that her recommendation regarding a support worker assisting with social interaction would change based on what she now understood about CKJW’s social participation.

   Re-examination

7. In re-examination, Ms Katavic was referred to CKJW’s self-reported severe difficulty making new friends in the WHODAS questionnaire and that CKJW will cancel two out of three appointments. She said this seemed to accord with what CKJW had told her about her social activity and limiting face-to-face contact. Ms Katavic was also asked whether CKJW understood the question regarding eating, with which she reported having a mild difficulty. Ms Katavic said that intervention during the WHODAS self-report questionnaire is only to occur if the person requests help and a higher score in this activity would not have changed CKJW’s overall result of having a reported moderate difficulty with self-care.      

   Ms Deborah Hammond – Occupational Therapist

8. Ms Hammond provided a report in this proceeding dated 1 May 2020,[18] following an assessment at CKJW’s home on 13 March 2020, in which she relevantly observed CKJW demonstrating her functional capacity to complete laundry tasks, such as loading the washing machine. CKJW changes the bed linen most weeks with her husband. She may cook weekly; her husband and daughter also cook and the family ‘regularly’ eat takeaway food.

   [18] Exhibit R2, Tab 11, pages 107-129.

9. Ms Hammond reported that CKJW can engage in social conversation, can use the telephone and social media to communicate with friends and family. CKJW participates in group assignments at university and plays roleplaying games on a fortnightly basis, either online or face-to-face amongst other hobbies, such as building complex Lego models. However, CKJW withdraws from in-person contact when unwell, although Ms Hammond considered that CKJW did not require assistance with social situations.

10. Ms Hammond further reported that CKJW was independent in her self-care, did not require assistance and was able to shower, dress, toilet and tend to personal hygiene tasks without assistance. When not attending university, CKJW may remain in her pyjamas all day and estimated she may have ‘pyjama days’ twice weekly. Ms Hammond reported that CKJW was able to make independent decisions and demonstrated complex abstract thinking and reasoning in relation to the decision to pursue Ketamine treatment. She reported that CKJW is active in health decisions, she is able to make and attend her own appointments and uses a wall and phone calendar with alerts for appointments. CKJW was able to discuss her mental health concerns, treatment strategies and goals. Ms Hammond reported that CKJW has no physical or cognitive impairment affecting her ability to prepare food or domestic duties, but does not engage in housework regularly; domestic activities are not prioritised in her daily life. However, CKJW demonstrated that she could unpack the dishwasher, wipe down the kitchen bench, pull up the bed covers and load the washing machine. At the assessment, CKJW acknowledged that she had no physical or cognitive difficulties in performing these tasks and since commencing Ketamine treatment is more motivated to complete domestic activities. In relation to domestic activities, Ms Hammond opined that CKJW ‘has the functional and cognitive capacity to do so if motivated’ and acknowledged that her ‘variable mental health affects her motivation’.[19]

    [19] Exhibit R2, Tab 11, page 125.

    Examination-in-chief

11. In May this year, Ms Hammond gave evidence at the hearing of this proceeding by MS Teams and adhered to the content of her report of May 2020. Her opinion had not changed after reading Ms Katavic’s report.

    Cross-examination

12. Ms Hammond confirmed that she had experience assessing people with mental health conditions over her 40 years in practice as an occupational therapist. She told the Tribunal that all functional assessments have a mental health component, especially in relation to people with complex medical needs. Ms Hammond said her two and a half hour assessment of CKJW was a ‘typical’ time length to inform herself of CKJW’s functional capacity. She further told the Tribunal that the point of her assessment was for CKJW to demonstrate functional tasks and that CKJW had told her she was physically able to do them, but she also asked CKJW to demonstrate her functional capacity rather than ‘take her word for it’. Ms Hammond was asked whether it was necessary to conduct a functional assessment. She said her assessment was based on her observations of CKJW’s function, not based on a history of her self-reporting regarding function. Ms Hammond also took account of what CKJW told her, but the majority of the assessment was seeing CKJW perform tasks in her home environment. Ms Hammond confirmed that she asked CKJW to perform vacuuming, but this was not demonstrated and CKJW took a moment to compose herself. Ms Hammond said this accorded with CKJW’s mental health condition, but she was surprised at how upset she became. CKJW told her that she did not do this task in daily life and did not want to perform it during the assessment. Ms Hammond said CKJW was anxious and understood that her mother maintained high household expectations.

13. Ms Hammond told the Tribunal she did not administer any particular tests or questionnaires regarding CKJW’s impairments. She observed CKJW’s functioning as requested in her letter of instruction. Ms Hammond said self-reports can be ‘biased’, unreliable in relation to a person’s functioning and used in a clinical, rather than medico-legal, setting. She said if a person has mental health conditions, the assessment question remains the same: how do they function in their home environment? Ms Hammond asked CKJW about her ‘typical’ day, not good or bad days. She said it was reasonable that all able adults contribute to the household and a mental health condition does not mean a person should not perform activities or avoid them; it was good for mental health and recovery. Counsel asked Ms Hammond whether she agreed that CKJW was mentally unable to perform activities, notwithstanding her physical ability to do so. Ms Hammond said it was the goal of activities of daily living to perform them and that when CKJW is in hospital she is required to clean her room. She said CKJW’s motivation was not taken into account in her assessment; she has the functional and cognitive capacity, but the fact that CKJW does not do it or not much is not a functional impairment. Ms Hammond acknowledged that CKJW’s motivation can vary, but said the goal of treatment was to engage people in domestic activities.

14. Ms Hammond confirmed that she was not saying that CKJW’s mental impairments do not matter, but that she assessed CKJW performing functional activities requiring mental and physical activity. She observed CKJW planning and organising during a task and her university work and online shopping were further examples of this ability. Ms Hammond told the Tribunal that CKJW was able to have a ‘very sophisticated discussion’ regarding the evidence of the then potential Ketamine infusions and expressed a ‘very high level’ of knowledge about the research and explained it in her own words. Ms Hammond assessed CKJW as ‘highly articulate and intelligent’.

15. Ms Hammond told the Tribunal that she considered online activities were a form of social interaction, she had a ‘lot of conversation’ with CKJW about this and ‘some would say’ it was a ‘highly sociable’ activity. CKJW reported her fortnightly roleplaying activity; Ms Hammond was unsure why she often cancelled, but this did not change her opinion that CKJW has capacity to engage in social interaction. Ms Hammond said CKJW has more good days than bad days, and that everyone has days when they are more sociable than not and CKJW can socially interact.

16. 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

17. 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

18. CKJW gave evidence to the Tribunal at the hearing in-person and by MS Teams over three days in May and August this year due to the availability of other witnesses and her own health. CKJW told the Tribunal that she saw both Dr Lim and Ms McKenzie fortnightly, but the latter had previously been seen on a weekly basis. Dr Lim manages her medication which includes an anti-depressant, anti-anxiety, heart medications, one to prevent nightmares and another is a blood thinner. CKJW also has Ketamine infusions every three weeks. With Ms McKenzie, CKJW does EMDR and psychotherapy. She also tracks her moods and levels of depression and suicidality.

19. CKJW said on a ‘good day’, she would get up when the alarm goes off, shower, breakfast and shop or study, have lunch, meet a friend for coffee, have dinner at home and go to bed. CKJW said she had three good days last year. This was also because of her heart condition, which led to increased fatigue and impacted her mental health. CKJW took her medication at 8 o’clock in the morning and at night, plus others when required.

20. On an ‘average day’, CKJW would get up at around 10am, have an ‘Up and Go’ for breakfast, determine whether she had showered the day before and, if not, do that before looking at her timetable and what else she was required to do. She said there were between one and two average days each week. CJKW would take her medication at around 10am and combine her evening and night-time medication together at approximately 10pm. 

21. On a ‘bad day’, CKJW told the Tribunal, she would get up at around 11am, not shower, wander into her study or watch television, snack and take her pills, have a nap in the afternoon and watch television for the rest of the day. CJKW said that on these days her medication is not appropriately spaced.

22. CKJW lives with her husband, who was said to have a number of health issues, and one of her daughters, who has generalised anxiety disorder. Another daughter, CHKS, moved out in September 2020 and this impacted CKJW in several ways; this daughter is better at reading CKJW’s moods than her husband and another daughter presently living at home. She would ‘interfere’ earlier to seek to distract CKJW, she would organise things for her, make appointments, undertake the majority of the housework and was a ‘stabilising influence’. The Tribunal was told that no one was now doing what CHKS did. For example, the family now gets takeaway meals for dinner at least three time each week, because of CKJW’s youngest daughters’ issues. While this daughter cooks for the rest of the time, if she is ‘not up to it, it doesn’t happen’. CKJW ‘doesn’t really’ assist, but they discuss cooking times. CKJW feels guilty if she does not do something. She last cooked on Christmas Day and on the same day the previous year.

23. CKJW said she cannot walk into her kitchen because it is ‘so overwhelming’ because the kitchen was ‘so messy’; even when it is not, she will forget what she is there for and have a ‘brain freeze’. CKJW does not prepare lunch. She studies in other parts of the house. CKJW has a health care plan through her GP and she needs to call to make appointments, but she has not made these calls because she forgets or it was not the right time. Her daughter, CKHS, would have made these calls and appointments; she prompted CKJW to ensure she remained on track and engaged.

1. CKJW was asked about the upkeep of her home. She told the Tribunal that, due to her husband’s complex medical issues, he has an ACT Government-funded cleaner attend one hour each week to clean his study. If CKJW is ‘feeling really good’ and expecting visitors, she will clean up the public areas of the home. If she is ‘not up to it’, CKJW will cancel the visit. The private areas of the home were said to be ‘slowly deteriorating’. CKJW’s daughter will vacuum fortnightly and CKJW will remove rubbish. CKJW was asked whether she would participate if she received assistance. She said she would leave the house because she felt ‘so guilty’ about the state of the house. When her daughters were little, CKJW’s mother reported her to the authorities and this was ‘mortifying’. A cleaner helped her reorganise the home so it could be maintained. CKJW said she avoids thinking about household tasks; it was said to be ‘overwhelming’. When vacuuming, CKJW would experience a ‘flashback’ of her mother saying she was ‘not good enough’. This does not always occur, she is unsure why it does and wants to fix it but does not know how.

2. CKJW told the Tribunal she had experienced ‘years and years’ of being told she was not good enough. Her adoptive parents told her she was adopted by them to save her from being a ‘sinner’; everything was aimed at ‘cleansing that sin’ from as early as CKJW can remember.

3. CKJW said the EMDR was ‘great’ for working on a single incident, such as her shame and the sexual abuse she suffered. It helped CKJW experience less triggers for self-harm and she said the Ketamine infusions reduce her suicidality; it helps with self-harm in relation to medication and cutting.

4. CKJW said she has a large social group of around twenty to thirty people, but does not often see them. She will cancel scheduled social events if she does not feel ‘up to it’; she gets ‘quite anxious’. CKJW attends two regular fortnightly events. She is the convener of one, but it often gets cancelled or she does not attend. CKJW tries to attend an annual convention and has a separate room to which she can repair when feeling overstimulated. CKJW previously saw friends ‘at least three to four times per week’, but this was subject to her mental state. The last time she attended an outside event was three months ago. She attended online social events with the same group of people and on an ‘average day’ was better at this form of interaction than in-person. She is unable to go online on a ‘bad day’. When her eldest daughter was home, up until late last year, CKJW would schedule a catch up with friends and cancel half of them. Now, she was ‘not really scheduling’ any social engagements. CKJW said she may have scheduled two or three and attended one. She told the Tribunal that she can go to the South Coast of New South Wales and ‘be fine by myself’, but going to the shops in Canberra raised an ‘unrealistic fear’ that she will run into her father and brothers. CKJW said her adoptive father is now dead and the chances of encountering her brothers was ‘quite low’, but this fear prevented her from ‘doing stuff’.

5. CKJW told the Tribunal that she played Lego, which helped her mindfulness and combated dissociation. It helped her breathing and was therapeutic. However, CKJW said it involves getting out the pieces and clearing a space, which was ‘too much effort’, even though it was ‘good for me’.     

6. Counsel asked CKJW about the day Ms Hammond undertook her assessment. CKJW told the Tribunal she was nervous, but was in an ‘average to good space’ at the time. CKJW took sleeping pills beforehand. She did ‘a lot’ of cleaning up with her daughter because she is concerned at people’s judgment and her own, which pushes her to clean. CKJW could not say how much of the cleaning she undertook. CKJW said Ms Hammond’s comments regarding the state of the house made her feel judged, despite her effort. She had a ‘panic attack’ when asked to vacuum, excused herself from the room and asked to do another task, which was emptying the dishwasher. CKJW said she can physically vacuum, but ‘not mentally’. She could not recall whether she told Ms Hammond why she could not vacuum or of the panic attack.

7. CKJW outlined why she applied for the NDIS. She felt incredible guilt that she was not doing what she should as a mother and that her daughter was doing ‘so much’. Finding another form of support ‘would free things up a lot’. CKJW told the Tribunal she would like assistance with the groceries and housework. She said a ‘large part’ of her says she does not need the support and that others are more worthy. She feels ‘like a drain’, which can lead to suicidal thoughts that it would be easier for everyone, her family and society, if she was not here.

8. CKJW said she was last employed five years ago and wants to complete her university studies before returning to the workforce. She feels she will get more meaningful employment and have better engagement after completing her studies. She said she was ‘probably not’ able to work because her mental health would get in the way and she would need time off. She may seek short term contract work, but not full-time permanent employment. When CKJW is well, she told the Tribunal she seems to get a ‘spurt’, but she cannot plan and engage with employment. CKJW told the Tribunal that as she gets older, ‘things get worse not better’. She does not understand why. CKJW takes her medications and goes to therapy. She described a ‘brick wall’ that she was not ‘beating down’.

   Cross-examination

9. By way of cross-examination, CKJW told the Tribunal that she has been engaged to write storylines for games and role playing. She said she absolutely loves this and is ‘apparently’ good at it. When she is not ‘good’, CKJW said her mind is cluttered, she is less capable and it is ‘impossible to do’.     

10. CKJW was asked about any physical complaints. She told the Tribunal she had a pacemaker inserted in October 2020. She also has type two diabetes for which she takes one tablet, twice daily. The scripts are at CKJW’s chemist and they manage it for her. She takes the medication with food, but this was said to be erratic and dependent on her eating habits. Usually she takes two each day, but there are days when she only takes one. CKJW will fill the script when it runs out. She manages this condition in conjunction with her GP. CKJW also had a hysterectomy in March this year. There was a period of convalescence, she recovered quickly physically, although the mental recovery was said to be ‘slower’. In this regard, the Tribunal was told that stressors tend to affect CKJW and she decompensates quickly. This could relate to university exams, her family’s health issues, or little things like a car accident. Counsel for the NDIA asked CKJW whether her physical conditions made it difficult to maintain university and overlapped with mental health conditions. She said her heart conditions were ‘not in play’ during the first semester she withdrew, but she was unsure about the second semester last year around the time her pacemaker was installed.

11. CKJW told the Tribunal she had seen Dr Lim regularly for five to six years. She described these consultations as being like meeting up with a friend for a chat, but considered he was gauging her mood; for a ‘very long time’ she has wanted a ‘magic wand’, the ‘cure’, to have ‘all this stuff disappear’. Her medication had been stable for some time with anti-anxiety drugs and the last time these were altered was when she began Ketamine early last year. When CKJW has had ‘well periods’ she has slowly gone off her medications. Counsel for the NDIA asked whether it was working and CKJW said she does not have to take lithium.  

12. She described being ‘good to average’ for two years and having ‘dark times’ for one year when she was unaware of the circumstances surrounding her adoption. Receiving her adoption elucidated her circumstances. At eighteen months of age she was taken from her birth mother and at eight she began being sexually abused by her adoptive family. As a result, CKJW decompensated ‘badly’ and was hospitalised with overdoses ‘twice weekly’.

13. Dr Lim had first mentioned the possible use of Ketamine. CKJW told the Tribunal that Dr Lim had not said there would be a future without Ketamine. Dr Lim gave CKJW a lot of literature regarding Ketamine before it was administered and she provided informed consent. She read this material and was, at that time, ‘willing to try anything’. She had already read the literature and it was not unfamiliar. CKJW’s daughter, CHKS, also read this material and they discussed it. Dr Lim had said CKJW had three choices, being Electro Convulsive Therapy, magnetics or Ketamine. They discussed the statistics and agreed Ketamine was the best choice. CKJW said she has a standing fortnightly appointment with Dr Lim that she can cancel if she is ‘okay’. She has only dropped one appointment this year and said she had a number of stressors, including this Tribunal proceeding, her medical issues and surgery.  

14. CKJW now lives with her husband and one daughter. Her husband works from home and feeds himself. CKJW’s daughter is studying at university full-time. She has variable income and pays no board, but the ‘intention’ is that she helps around the house. She is meant to cook five days a week, but this varies depending on her mood.

15. CKJW and her husband change the bed sheets together. CKJW used to put the washing on and her husband would hang it out, but this changed when her eldest daughter moved out last year. CKJW does not do the washing at the moment, and said she does not know why she could not put on washing. She finds that she ‘completely’ loses track of time; she gets up in the morning intending to do something and then the day is over. She was asked about the calendar function on her phone and agreed she could enter tasks. However, CKJW said if she scheduled household chores she would ‘hit snooze’ and the length of this depended on how she felt. CKJW agreed that she could do the chores on a ‘very good day’, but had no good days lately. CKJW told the Tribunal she could physically attend to the washing, but not emotionally. She said that even when her eldest daughter was at home the washing was not being done all the time; CKJW was ‘overwhelmed’. The change in her emotional state was not having someone to ‘ground me’. CKJW however agreed that previously her eldest daughter was at university and working and her husband and youngest daughter were at home.

16. CKJW said that she cooks on Christmas Day because she likes ‘producing’ for her family and it is a ‘happy time’. She has worked on this ‘extensively’ in therapy and had ‘taken it back’ from her childhood. The day is ‘scripted’ for CKJW in a way that the rest of her life is not. She has worked in therapy on being able to clean a portion of the house, but also on ‘keeping me alive’ and not self-harming. CKJW said there is ‘no particular person’ responsible for cleaning the kitchen and she rarely uses it. The impediments to cooking on a regular basis were said to be not knowing where to start and her negative self-talk in regarding tasks. She also dissociates.

17. Counsel asked CKJW about her participation in certain activities. She sometimes unpacked and loaded the dishwasher, she can turn the oven on, she can sometimes pick up a pot or pan, she can drive her car, she changes the bed sheets with her husband, but may not remember to do so, she can pick up things around the house. She told the Tribunal she can do ‘just about anything around the house’ when she is ‘up to it’. CKJW said she wished she could do these things, but because of her mental health she ‘sometimes can’t’ and is embarrassed by the situation. CKJW said she could cook if it was a good day and the kitchen was clean. CKJW told the Tribunal there was no control over what her husband’s cleaner cleaned. They have asked about the kitchen and laundry, but the cleaner said they were employed to do the study. They had taken it up with the agency but she was unsure of the outcome. CKJW agreed that if the cleaner did the kitchen and other important areas of the house, it would allow her to undertake certain tasks.

18. Counsel asked CKJW about the support she receives from Dr Lim. She told the Tribunal that they do not generally discuss coping strategies. It was more of a ‘chat’ and he was like a good GP and not ‘authoritarian’, but she is aware that Dr Lim is guiding the conversation in certain directions. Hospital is discussed as a way forward together with medication. She follows the prescribed doses for her medication. CKJW said sometimes she might not understand an answer provided by Dr Lim but she accepts this because she trusts him and is ‘not capable of anything else’. They discuss how much CKJW dissociates, but nothing ‘gritty’. Counsel asked whether they discuss tasks such as cooking and cleaning. CKJW said they discuss the stress related to her family, her suicidality and self-harm.

19. She agreed that she did not need assistance with mobility. She copes with the assistance of others with social interaction. She finds she needs assistance with low mood. CKJW told the Tribunal that she did not discuss self-care with Dr Lim. If he did ask, it was not in a direct manner. Counsel put to CKJW the proposition that there was an inconsistency between Dr Lim’s report and her access report regarding self-care. CKJW said it was probably her memory failing.

20. CKJW was excused from giving evidence at the end of day two of the hearing in May this year due to issues with her recently inserted pacemaker.  At the resumed hearing in August, CKJW continued her evidence by MS Teams due to the COVID-19 pandemic. Counsel for the NDIA asked CKJW about Dr Lim’s report regarding her occasionally doing activities. She said cooking at Christmas was due to being prepared over a long period of time. It was put to CKJW that she cooks more regularly than only at Christmas. CKJW said, ‘at moment, no I don’t’ and it was a ‘very variable thing’. She may go months without cooking and then she does ‘for a couple of weeks’, but the ‘only thing’ CKJW regularly does is cooking on Christmas Day, because ‘it’s not cooking, it’s part of Christmas’. She agreed there was no ‘physical impediment’ to her cooking. The ‘emotional impediment’ was related to her childhood and waking at around 9am on a Saturday and being made to vacuum the family’s four bedroom house. CKJW’s brothers would ‘harass me’ and ‘if they punched me’ and she was found crying she would get into trouble. During her childhood, when the housework was finished, she set the table for lunch, which she also prepared. If CKJW had not finished by a certain time, then she would ‘get the feather duster around the legs’. After lunch, she was required to clear the table. She swept the floor by hand with a dustpan and broom. CKJW also dusted the house and would hear her brothers coming to try to hit her. CKJW’s mother would test the level of her cleaning by using a white glove on surfaces. CKJW told the Tribunal there were ‘years of memories’ she was trying to overcome in relation to ‘chores’. For example, the sound of a vacuum cleaner has her ‘on edge’. CKJW told the Tribunal there were ‘20 years of memories’, in addition to the further five years she was in contact with her family and they would come over and complain about the standard of cleanliness. CKJW agreed that she no longer lived with any of those family members and that her therapy was dealing with abuse matters.

21. CKJW said  she sometimes did housework when raising her children and sometimes she had assistance. She ‘sometimes’ does them now when ‘up to it’. CKJW said she found these tasks ‘very emotionally exhausting’, but again can ‘sometimes do them’. Counsel put to CKJW that it was incorrect that she only cooks at Christmas. CKJW said she can ‘only reliably cook at Christmas’, and other times were ‘variable’; she does not know how she ‘will be going’. CKJW further said that she can ‘sometimes’ cope with doing any household tasks and ‘sometimes can’t’. This was not because she regularly attempted to do them. CKJW said some days she got up and ‘can’t do more than sit at computer or at Lego’. On other days, she can clean and cook. She could not describe what does and does not enable her to do these tasks on particular days. When sitting at the computer, CKJW said she was  browsing the internet ‘basically dissociating’ and ‘hours later’ would be unable to say what she had been doing. She plays Lego ‘generally’ when feeling ‘a bit better’. She sorts and builds models and this is used as a ‘grounding and mindfulness area’.

22. CKJW was asked about the differences between her evidence and that of Dr Lim regarding showering and cooking. CKJW told the Tribunal that she does not like to tell people ‘how bad I am’. She agreed that she sees Dr Lim for psychiatric help, regarding Ketamine infusions and had built a rapport with him. Counsel asked whether Dr Lim’s understanding of her psychological progress was able to be informed by understanding her daily activities and how they change over time. CKJW told the Tribunal she had not previously viewed it in this light and did not want him and Ms McKenzie to ‘think less’ of her. She confirmed that their reports should be relied upon as an indication of her capacity.

23. CKJW told the Tribunal that she was seeking support to ‘get out of the house’ and attend a fortnightly social activity. She would also like weekly household support, including organising and allowing her to ‘keep things on track’ with scheduling. CKJW would also like additional support, such as psychosocial. Counsel asked CKJW whether she would still go out with her daughter. She said she was more likely to cancel on her daughter or a friend, rather than a stranger because this would become an obligation. Counsel put to CKJW that she can go to coffee with other groups or individuals, but chooses not to do so. She said they understand if she cancels and there is definitely a difference. If she calls a friend and arranges to meet for coffee she will send a text message saying she was ‘not feeling great’ and cancel; they understand. However, if she did this with an unknown person or support worker, it is in the same category as her medical appointments and part of her therapy. Counsel put to CKJW that there was no reason she could not follow through with other individuals. She said, ‘I don’t’.

24. Counsel for the NDIA referred to Ms Hammond’s statement in her report regarding CKJW’s motivation to undertake certain tasks and put to her that there is nothing about any of her conditions that prohibit her from vacuuming, cooking, cleaning, or whatever she is obliged to do. CKJW said ‘Yes, there is’. Counsel asked CKJW whether she prioritised university, Lego and computer work over and above her obligations to undertake her share of housework. She replied, ‘No’. CKJW disagreed that she was able to perform each of these tasks if they were prioritised. She was surprised when it was put to her that Dr Lim was of this opinion. Counsel referred to the NDIS Access Request form completed by Dr Lim in December 2018,[21] in which he stated that CKJW did not need assistance with the activities of mobility and communication. CKJW agreed. She also agreed that she needs guidance to undertake social interaction and that she does not require assistance to perform self-care tasks. CKJW said she ‘would like’ assistance to have coffee with someone.

    [21] Exhibit R2, T3A, pages 163-169. 

25. Counsel referred CKJW to the section of her daughter’s witness statement regarding CKJW’s heart conditions[22] and asked how frequently she was ‘exhausted’. CKJW said this was two to three times per week and agreed it limited her ability to undertake work around the house. CKJW further said that she had not been ‘talking about that condition’, but was answering questions based on her mental health.

    [22] Exhibit R2, T10, page 104.

    Re-examination

1. The following observations of Justice Mortimer in Mulligan v National Disability Insurance Agency [2015] FCA 544 (Mulligan) are instructive in setting out what is required in assessing what a person can and cannot do given their impairment or impairments and whether they meet the disability requirements for access to the NDIS:[26]

   Although an impairment may, in general terms (and, for example, in the terms of Art 1 of the Convention on the Rights of Persons with Disabilities…) be responsible for or related to a disability, the threshold in s 24 revolves around the severity and permanency of the effects of the impairments experienced by a person, so as to justify the provision of the “reasonable and necessary supports” to which participants may be entitled…

   …

   Using the concept of impairment enables assessment of the severity and permanency of a person’s condition, and of the effects of that condition through not only the evidence of an applicant, but also medical and clinical evidence. The legislative scheme contemplates a relatively high degree of precision by decision-makers (see, for example, the six activities in s 24(1)(c)) in assessing what a person can or cannot do. The assessment to be undertaken is avowedly functional, and multi-faceted.

   That being the case, no arbitrary limits are placed on access to the NDIS. No decisionmaker 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. Rather, the legislative scheme is based on a functional, practical assessment of what a person can and cannot do. Critically, the scheme makes detailed provision for that assessment, and it is sufficient for a person to have substantially reduced functional capacity in relation to one activity. That, in my opinion, recognises the spectrum of impairments which can be experienced by persons with disabilities, and accommodates different abilities within one person in terms of her or his daily activities. That is why a detailed functional assessment is so important.

   [26] Mulligan at [52]; and [55]-56.

2. In Ditchfield and NDIA [2019] AATA 2121 (Ditchfield), it was stated that, in accordance with Mulligan, the Tribunal should not confine its consideration of whether a prospective participant of the NDIS has met the disability requirement under subsection 24(1)(c) of the NDIS Act by considering their circumstances only through the prism of paragraph 5.8 of the Rules. In this regard, Justice Mortimer in Mulligan observed that:[27]

   the Tribunal appears to have approached the concept of “substantially reduced functional capacity” in s 24(1)(c) as if it is exhaustively defined by r 5.8. That is not necessarily the case. As a deeming provision, r 5.8 has the effect of mandatorily including some people in the category of persons with substantially reduced functional capacity if the criteria in r 5.8(a), (b) or (c) are met. In that sense, a decision-maker must turn his or her mind to whether an applicant falls within the deeming effect of r 5.8. That is not necessarily the end of the exercise in terms of s 24(1)(c). The statutory task remains to consider whether a person’s functional capacity is substantially reduced in any of the six specified areas.

   [27] Mulligan at [77].

3. As set out above in these reasons, paragraph 8.3.1 of the Access Guideline provides that an impairment results in substantially reduced functional capacity when the person ‘is unable to participate effectively or completely in the activity or perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items) or home modifications’. The Tribunal in Ditchfield discussed the meanings of ‘effectively or completely’ in paragraph 5.8 of the Rules and noted that they should be given their ordinary and natural meaning.[28] The Tribunal continued as follows:[29]

   The Macquarie Dictionary Online defines “effective” as meaning “serving to effect the purpose; producing the intended or expected result” and “complete” as “having all its parts or elements; whole; entire; full”.

   [28] ibid., at [138].

   [29] ibid., at [139].

   Social interaction

4. Based on the available evidence, the Tribunal is not satisfied that CKJW’s impairments result in substantially reduced functional capacity to undertake the activity of social interaction pursuant to subsection 24(1)(c)(ii) of the NDIS Act. As set out in these reasons, the Access Guideline states that social interaction includes ‘making and keeping friends (or playing with other children), interacting with the community, behaving within limits accepted by others, coping with feelings and emotions in a social context’.

5. In HPSC and NDIA [2021] AATA 727 (HSPC), the Tribunal relevantly observed at [65] and [68] that:

   Given that social interaction is, by its nature, often intermittent, it is unhelpful to consider how often episodes of acute incapacity prevent her from undertaking such interaction. Rather, the pertinent question is whether she is able to make and keep friends, interact with the community and cope with feelings and emotions while doing so. It appears that the totality of the evidence does suggest a general capacity to maintain friends and to interact with the community…The evidence tends to the conclusion that her conditions sometimes require her to absent herself from real-time or online engagement with her friends, but it does not suggest that she is unable to maintain those friendships on that account.

   …

   [in] the words of Mortimer J in Mulligan at [56]: the legislative scheme is based on a functional, practical assessment of what a person can and cannot do. Quite evidently, the Applicant can make and maintain friendships and can cope with emotions in that context. Doing so may represent a personal struggle, and may be accompanied by anxiety or self-doubt, but this does not detract from the reality that she is able to reach that goal.

6. In this proceeding, the evidence also establishes that CKJW is able to make and keep friends and interact with the community. CKJW told the Tribunal she has a large social circle of between 20 and 30 friends, which demonstrates an ability to maintain friendships. She engages in roleplaying activities with an established community, including writing storylines, coordinating regular games and attending an annual convention. CKJW also engages and plays games with friends online. She attends her various medical appointments with regularity and also socialises with her daughter’s friends when out with CHKS. CKJW travels to the South Coast of New South Wales where she visits another daughter. Around Christmas, CKJW will have visitors to her house. Ms McKenzie, CKJW’s psychologist, told the Tribunal that CKJW’s level of social interaction was subject to her mental state. When informed about the range of activities CKJW is involved in with friends and family, Ms Katavic, the occupational therapist, conceded that CKJW was not socially isolated. In the WHODAS form completed by CKJW, she reported ‘mild’ difficulty with social interaction. Ms Katavic agreed that CKJW’s self-report in the WHODAS questionnaire of having severe difficulty making friends was ‘another anomaly’ and ‘inconsistent’ with CKJW’s actual level of social interaction. She reported that CKJW communicates with family and friends online and by telephone. While Dr Lim’s evidence was that CKJW was ‘often’ isolated and unable to catch up with friends, he was also aware she is connected to various social groups.

7. In short, the evidence is that CKJW is socially engaged, she participates in the community and has a relatively large circle of friends in a variety of settings. While the Tribunal accepts the evidence that CKJW cancels social engagements on account of her impairments, sometimes reasonably frequently, the Tribunal is not satisfied that this demonstrates a substantially reduced functional capacity to undertake social interaction. The totality of the evidence does not support such a contention. Following the Tribunal in HSPC, while engaging in social activities may occasionally or often represent a personal struggle for CKJW, and may be accompanied by anxiety or other symptoms due to her impairments, this does not detract from the fact that she is able to reach this goal.  

8. For completeness, the Tribunal notes that there was no evidence suggesting that CKJW cannot cope with her feelings and emotions in a social context, although her anxiety can be heightened on these occasions and CHKS said her mother is often exhausted or in a dissociative state after such engagements. To this end, while CKJW does occasionally require assistance to participate in the activity of social interaction, especially from CHKS, and due to a variety of factors, the evidence establishes that she does not ‘usually’ need assistance from other people to participate in this activity as required under clause 5.8(b) of the Rules. For the foregoing reasons, based on all the evidence, the Tribunal is not satisfied that CKJW’s impairments result in a substantially reduced functional capacity to undertake the activity of social interaction pursuant to subsection 24(1)(c)(ii) of the NDIS Act.

   Self-care

9. Based on the available evidence, the Tribunal is not satisfied that CKJW’s impairments result in substantially reduced functional capacity to undertake the activity of self-care pursuant to subsection 24(1)(c)(v) of the NDIS Act. While the evidence indicates that CKJW has some reduced functional capacity in undertaking the activity of self-care, the Tribunal finds for the following reasons that this reduction is not substantial.

10. The Access Guideline states that self-care involves activities related to personal care, hygiene, grooming and feeding oneself, including showering, bathing, dressing, eating, toileting, and caring for health care needs. As the Tribunal said in Madelaine and NDIA [2020] AATA 4025 (at [121]), having a substantially reduced functional capacity to care for oneself ‘imports the idea that there are significant gaps in one’s capacity to maintain personal health, safety and well-being’. The weight of evidence before the Tribunal was that CKJW can independently perform all of the self-care activities listed in the Access Guideline. She can look after her personal care, hygiene and grooming, she can feed herself, shower with the assistance of a seat, bathe, dress, eat, toilet with the assistance of an aid, and care for her own complex health care needs. In this way, the Tribunal is satisfied that there are no significant gaps in CKJW’s capacity to undertake the activity of self-care.

11. CKJW’s written evidence was that she has between 15 and 20 ‘average’ days each month, in addition to 2 to 5 ‘good’ days and 1 to 2 ‘very good’ days. Conversely, CKJW also said she had 5 ‘bad’ days each month and 1 to 2 ‘very bad’ days. Her daughter, CHKS, told the Tribunal this was more like 20 to 25 ‘average’ days. In her witness statement, CKJW said that on an average day she will determine whether she showered the previous day and do so if she had not. She will get a coffee, take her medication and eat. This also occurs on a ‘good day’. Ms Hammond reported that CKJW can make a hot drink and this was supported by Ms Katavic’s evidence. The weight of evidence did not support the contention from CHKS that CKJW cannot make herself a coffee or hot drink and this proposition is not accepted by the Tribunal. In addition, CHKS told the Tribunal that her mother showers on average once each week. Again, this is unsupported by the weight of evidence, including CKJW’s own witness statement about what she can do on 15 to 20 ‘average’ days each month. Nevertheless, the Tribunal is satisfied that CKJW has the capacity to shower, even if this is not a daily occurrence and she does not have a substantial incapacity to do so, noting that CKJW uses a shower chair or stool for this task. Ms McKenzie told the Tribunal CKJW’s self-care can ‘fluctuate’ and she actively avoids certain tasks. While this can be accepted on the evidence, Ms Katavic agreed with Ms Hammond’s assessment that CKJW can dress, shower and toilet independently with adaptive equipment, but that some tasks were not prioritised. Ms Katavic also said CKJW can feed herself and get a drink and snack, although there are ‘elements’ of self-care that are ‘lacking’. To this end, the WHODAS questionnaire CKJW completed recorded her having a moderate difficulty with self-care.  

12. The Tribunal is satisfied that CKJW can eat and feed herself. Despite having motivational issues with cooking, which CKJW said was not a priority, she maintains a supply of snacks for herself and can make a bowl of cereal. Dr Lim also told the Tribunal that he understood CKJW can make ‘simple meals’ and agreed that CKJW’s evidence that the only regular cooking she does is on Christmas Day was inconsistent with his understanding of the amount of cooking she does. CKJW told the Tribunal that she avoids the kitchen if it is messy and that she will only cook when it is spotless. To this end, CKJW can perform the task of cooking, but has a psychological impediment to doing so on a regular basis. She has negative self-talk about the task, does not know where to start and can dissociate. However, CKJW can order takeaway food if no one else in the household prepares dinner. Ms Hammond identified that CKJW has the functional and cognitive capacity to do so and can access and consume foods. In addition, the Tribunal in HSPC relevantly found (at [84]) that shortcomings with respect to eating do not, of themselves, demonstrate a substantially reduced functional capacity to care for oneself.

13. It is also noteworthy that Ms Hammond recorded what CKJW said she could do around the house, but she was also asked to demonstrate certain tasks to identify her capacity. CKJW told the Tribunal she can do ‘just about anything’ around the house when she is ‘up to it’, but ‘sometimes’ cannot undertake chores around the house. She agreed under cross-examination that she could load and unload the dishwasher, pick up a pot and pan and drive her car. CKJW’s written evidence was that she will unload the dishwasher when the kitchen is clean and very occasionally fills it. Moreover, in the Access Request form completed by Dr Lim, he relevantly recorded that CKJW required no assistance in performing the activity of self-care, although he told the Tribunal she had ‘periods’ of poor self-care and was unable to perform at a consistent level or maintain function. However, Dr Lim further told the Tribunal that he expected CKJW did some housework and they discussed its benefits during their sessions. Ms McKenzie told the Tribunal that CKJW is highly dissociative and actively avoids housework; it is not prioritised in her daily life. Despite this, Ms Hammond reported that CKJW was independent in her self-care; she ‘showers, dresses, toilets and tends to personal hygiene tasks without assistance’. This summation accords with the weight of evidence in this proceeding. When there is an incentive to do so, CKJW can also clean and cook. CKJW can undertake basic housework and the only domestic cleaning task CKJW did not undertake for Ms Hammond was vacuuming, given the associated trauma related to her childhood, previously canvassed in these reasons. On the whole, an inability to perform this chore does not amount to a substantial reduction in functional capacity to undertake the activity of self-care.

14. Additionally, pursuant to the Access Guideline, CKJW’s functional capacity is to be considered ‘in the periods between acute episodes’. Taking a ‘holistic’ view about CKJW’s life circumstances, as enunciated in HPSC at [37],  having regard to the nature, frequency and intensity of any acute episodes or ‘flare ups’ and the situation in the periods between those episodes, the evidence was that CKJW does have periods of great difficulty with self-care, however it did not establish that CKJW has a substantially reduced functional capacity in relation to the activity of self-care.

15. On the evidence before the Tribunal, while CKJW occasionally requires assistance for some self-care tasks, she does not ‘usually’ require assistance, she can perform all activities of self-care independently and there are no significant gaps in her capacity to do so. For these reasons, based on the evidence set out above in relation to self-care, the Tribunal is not satisfied that CKJW ‘usually’ requires the assistance of another person to participate in self-care activities or to perform tasks or actions required to undertake or participate in the self-care activity pursuant to paragraph 5.8(b) of the Rules. That is, the evidence before the Tribunal was that CKJW can perform all of the self-care activities listed in the Access Guideline, including personal care, hygiene, grooming and feeding herself, showering, bathing, dressing and toileting. She also cares for her own health care needs by regularly attending a range of medical appointments and taking her medication, although CKJW occasionally requires assistance and reminding about these tasks. Having regard to all the activities of self-care, while CKJW has some reduced functional capacity, this is not substantial as required to satisfy subsection 24(1)(c)(v) of the NDIS Act.

    Self-management

16. The Access Guideline states that self-management means ‘the cognitive capacity to organise one’s life, to plan and make decisions, and to take responsibility for oneself, including completing daily tasks, making decisions, problem solving and managing finances’. Based on the evidence, the Tribunal is not satisfied that CKJW’s impairments result in substantially reduced functional capacity to undertake the activity of self-management pursuant to subsection 24(1)(c)(vi) of the NDIS Act.

17. The weight of evidence before the Tribunal was that CKJW has the cognitive capacity to organise her life. The evidence establishes that CKJW has good cognitive capacity. Neither Ms Katavic nor Ms Hammond considered CKJW had any cognitive deficiency and she presented to the Tribunal as articulate and intelligent. In this regard, CKJW demonstrated deep and critical thinking in relation to whether to trial Ketamine infusions for her impairments. She is active in her mental health care and uses both wall and mobile phone calendars to structure her day and provide prompts for appointments and other tasks. CKJW makes and attends regular appointments with her health providers. In this regard, Dr Lim told the Tribunal that CKJW takes her medication, gets to and from her appointments and consistently attends them. She attended university until recently, composes storylines for her regular roleplaying activities and attended a related annual convention. There was minimal evidence about CKJW’s management of finances. Although CHKS described her step-father as a spendthrift, the couple have an automated bill-paying system and CKJW purchases the household groceries online. CKJW and her husband have a family home and raised children over many years, although the pursuit of some medical treatment has been somewhat curtailed due to their expense.    

18. In HSPC, the Tribunal observed (at [42]) that:

    I accept that much of what she is able to achieve is a struggle and that such activities come at the cost of later fatigue and lethargy, but it does seem that she is able to do a substantial number of things which a person her age would typically do. Moreover, the level of involvement in activities outside the home suggests that periods of activities exceed in length the periods in which her conditions render her incapacitated. If, as Guideline 8.3 instructs, I focus on her ability to function in between acute episodes, the result is that it is appropriate to find that she is able to achieve, typically, a relative high degree of functionality.

19. The same observations may be made in relation to CKJW. In short, the evidence in this proceeding demonstrated that, despite significant challenges due to her impairments, CKJW is a high functioning person. As with the other activities in dispute, while the Tribunal is satisfied that CKJW does have some reduced functional capacity in the activity of self-management, this does not rise to the requisite substantially reduced functional capacity under subsection 24(1)(c) of the NDIS Act. The Tribunal accepts that CKJW does have some difficulty with self-management, predominantly influenced by her impairments, but also affected by other factors. To this end, Ms McKenzie said CKJW’s self-management can fluctuate. However, the weight of evidence, was that CKJW has the cognitive capacity to organise her life, to plan and make decisions and take responsibility for herself. Accordingly, the Tribunal finds that CKJW does not have a substantially reduced functional capacity to undertake the activity of self-management due to her impairments, as required by subsection 24(1)(c)(vi) of the NDIS Act.

1. In conclusion, the Tribunal is not satisfied the evidence before it supports a finding that CKJW’s impairments result in substantially reduced functional capacity to undertake the relevant activities of social interaction, self-care or self-management as required to satisfy subsection 24(1)(c) of the NDIS Act.

   Is CKJW likely to require support under the NDIS for her lifetime?

2. The Rules do not expressly address consideration of whether a person is likely to require support under the NDIS for their lifetime, however the Access Guideline states the following regarding the lifetime NDIS support criterion:

   8.5 When is a person likely to require support under the NDIS for their lifetime?

   The NDIA must also be satisfied that the prospective participant is likely to require support under the NDIS for the rest of their lifetime (section 24(1)(e)).

   If an impairment varies in intensity (for example, because the impairment is of a chronic episodic nature) the person may still be assessed as likely to require support under the NDIS for the person's lifetime, despite the variation (section 24(2)).

   The NDIA is required to consider a prospective participant’s overall circumstances and conclude that the person will require support under the NDIS for their lifetime. The purpose of this requirement seems to be to distinguish that subset of people with serious and permanent disabilities who are intended to be the beneficiaries of funded supports (Mulligan and NDIA [2015] AATA 974 at [153]).

   For example, if a person's support needs arise from a health condition and are most appropriately provided through another service system (i.e. the health system) then the person will not require support under the NDIS for their lifetime. Rather, the person will require support under the health system.

   When considering this criterion, the NDIA does not need to be satisfied that the support/s required for the person's lifetime meet the reasonable and necessary criteria. The reasonable and necessary criteria are relevant to whether funding is provided, not whether a person meets the disability requirements (see Mulligan and NDIA [2014] AATA 374 at [53] and Mulligan and NDIA [2015] AATA 974 at [146]–[150]). [emphasis in original]

3. As set out above in this decision, the Tribunal has found that CKJW’s impairments do not result in her having substantially reduced functional capacity to undertake one or more of the activities under subsection 24(1)(c) of the NDIS Act. As a result of those findings and the conjunctive nature of subsection 24(1) of the NDIS Act, requiring satisfaction of all criteria,[30] it follows, and the Tribunal is satisfied, that CKJW is not likely to require support under the NDIS for her lifetime pursuant to subsection 24(1)(e) of the NDIS Act.

   [30] Howard and National Disability Insurance Agency [2019] AATA 2 at [25].

4. In this regard, as the Tribunal observed in GXYZ and NDIA [2020] AATA 3907 at [121]-[122]:

   Reading the policy guidance set out in chapter 8.5 of the Access Operational Guidelines, I consider that it would be inconsistent for the Tribunal to make a finding that a prospective participant is likely to require support under the NDIS for their lifetime in circumstances where the evidence shows they do not have a substantially reduced functional capacity to undertake activities in the domains of communication, social interaction, learning, mobility, self-care or self-management.

   As I find the applicant’s impairments do not result in substantially reduced functional capacity to undertake activities, I am satisfied he will not require assistance under the NDIS for his lifetime. Therefore, the applicant does not meet the requirement of paragraph 24(1)(e) of the NDIS Act.

   The early intervention requirements

5. The early intervention requirements contained in section 25 of the NDIS Act are set out above in these reasons. The Rules provide the following guidance regarding early intervention for a prospective participant in the NDIS:

   Deciding whether provision of early intervention supports is likely to benefit the person

   6.8 Where paragraph 6.2(a) applies to a person, the main way in which the CEO can determine whether the provision of early intervention supports is likely to benefit the person in the ways set out in paragraphs 6.2(b) [reducing future need for support] and (c) [improving capacity] above is to consider evidence going to those matters, as indicated in paragraph 6.9 below. However, young children who have an impairment resulting in developmental delay (see paragraph 6.10) or resulting from a particular condition (see paragraph 6.11) will not need to provide further evidence of the matters in paragraphs 6.2(b) and (c).

   Where evidence is required

   6.9 In deciding whether provision of early intervention supports is likely to benefit the person in the ways mentioned in paragraphs 6.2(b) [reducing future need for support] and (c) [improving capacity] above, it is expected that the CEO would consider:

   (a) the likely trajectory and impact of the person's impairment over time; and:

   (b) the potential benefits of early intervention on the impact of the impairment on the person's functional capacity and in reducing their future needs for supports; and

   (c) evidence from a range of sources, such as information provided by the person with disability or their family members or carers. The CEO may also in some cases seek expert opinion. [emphasis in original]

6. The Access Guideline provides guidance on assessing the criteria regarding reducing future need for support and improving capacity, as follows:

   9.3 Determining whether early intervention supports are likely to benefit the person

   The NDIA must be satisfied that the provision of early intervention supports (except for children with developmental delay) is likely to benefit the prospective participant by:

   ·reducing the person's future needs for supports in relation to disability (section 25(1)(b)); and

   ·achieving one or more of the following four outcomes:

   i. mitigating or alleviating the impact of the person's impairment upon the functional capacity of the person to undertake one or more activities (section 25(1)(c)(i)); or

   ii. preventing the deterioration of such functional capacity (section 25(1)(c)(ii));

   iii. improving such functional capacity (section 25(1)(c)(iii); or

   iv. strengthening the sustainability of informal supports available to the person, including through building the capacity of the person's carer (section 25(1)(c)(iv)).

   When considering whether the provision of early intervention supports is likely to benefit the person, the NDIA should consider:

   ·the likely trajectory and impact of the person's impairment over time (rule 6.9(a) of the Becoming a Participant Rules); and

   ·the potential benefits of early intervention on the impact of the impairment on the person's functional capacity and in reducing their future needs for supports (rule 6.9(b) of the Becoming a Participant Rules); and

   ·evidence from a range of sources, such as information provided by the prospective participant or their family members or carers. The NDIA may also in some cases seek expert opinion (rule 6.9(c) of the Becoming a Participant Rules).

   When considering if a person is likely to benefit from early intervention supports, the NDIA may consider factors such as the time elapsed since the onset or diagnosis of the disability and whether there has been a recent, or impending, significant change in the person's impairment or disability. [emphasis in original]

7. In James and NDIA [2019] AATA 4248, the Tribunal said that:[31]

   The objective of early intervention support is expressed to be to ‘lower the costs and impacts’ associated with the disability for individuals and the wider community over the longer term. Accordingly the early intervention requirements look at the likely trajectory and impact of a person’s impairment over time and the potential benefits of early intervention on the impact of the impairment on the person’s functional capacity.

   [31] James at [55].

8. On the evidence, and noting the negligible submissions from CKJW on this issue despite the Tribunal’s invitation to do so, it is not satisfied that CKJW has made out a case for access to the NDIS under the early intervention requirements of section 25 of the NDIS Act. More specifically, the Tribunal was left uncertain as to what early intervention supports would likely benefit CKJW by reducing her future needs for supports in relation to her disability, pursuant to subsection 25(1)(b) of the NDIS Act. Additionally, there was no satisfactory evidence that the provision of early intervention supports is likely to benefit CKJW by mitigating or alleviating the impact of her impairments on functional capacity, prevent deterioration of such functional capacity, improve her functional capacity or strengthen the sustainability of informal supports, including that presently provided by her daughter CHKS. As previously noted in these reasons, CKJW’s impairments had their origin in her childhood. They are lifelong chronic impairments. It cannot therefore be said that the impairments are in their early trajectory. Accordingly, the Tribunal is not satisfied that CKJW meets the early intervention requirements in section 25 of the NDIS Act and her application for such access to the NDIS is unsuccessful.

   CONCLUSION

9. The Tribunal’s decision does not discount the significant nature of CKJW’s impairments. The Tribunal acknowledges the deeply traumatic circumstances that gave rise to these impairments and their lifelong impact on CKJW and her family. Despite CKJW’s significant impairments, on the totality of the evidence, the Tribunal has found that they do not result in her having a substantially reduced functional capacity to undertake the prescribed activities under subsection 24(1)(c) of the NDIS Act. It has also found that CKJW does not meet the early intervention requirements in section 25 of the NDIS Act. Accordingly, CKJW does not at this time meet the access criteria under section 21 of the NDIS Act to become a participant in the NDIS.

10. 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

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

I certify that the preceding 153 (one hundred and fifty-three) paragraphs are a true copy of the reasons for the decision herein of Member W Frost.

..............[Sgd]................

Associate

Dated: 27 October 2021

Date(s) of hearing: 

19-21 May and 23-24 August 2021

Date final submissions received:

Counsel for Applicant:

3 December 2020

Ms Anca Costin

Solicitor for Applicant:

Counsel for Respondent:

Mr Paul Smith, Legal Aid ACT

Mr Matthew Gollan

Solicitor for Respondent:

Mr Christopher Bilboe, National Disability Insurance Agency