Daniels and National Disability Insurance Agency

[2023] AATA 3854

Daniels and National Disability Insurance Agency [2023] AATA 3854 (24 November 2023)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2022/3438

Re:Tracey Daniels

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Member P Hunter

Date:  24 November 2023

Place:Sydney

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

...........................[SGD]............................................

Member P Hunter

CATCHWORDS

NATIONAL DISABILITY INSURANCE SCHEME – access criteria – impairments resulting from
Scheuermann’s disease, degenerative disc disease, radiculopathy, osteoarthritis, Chronic Obstructive Pulmonary Disease, anxiety, Post Traumatic Stress Disorder and depression- Whether impairments from Scheuermann’s disease, radiculopathy, osteoarthritis and Chronic Obstructive Pulmonary Disease are permanent – whether the early intervention requirements are met – decision affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

National Disability Insurance Scheme Act 2013 (Cth)

National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)

CASES

Military Rehabilitation and Compensation Commission v Katterns [2017] FCA 641

Mulligan v National Disability Insurance Agency [2015] FCA 544

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

(1979) 2 ALD 634

SECONDARY MATERIALS

National Disability Insurance Agency, Our Guidelines – Becoming a participant – Applying to the NDIS, (Web Page) < FOR DECISION

1. Ms Tracey Daniels (‘the Applicant’), aged 60, seeks a review of a decision by the National Disability Insurance Agency (‘the Respondent’) which affirmed an earlier decision to refuse her request for access to the National Disability Insurance Scheme (‘the NDIS’) under provisions of the National Disability Insurance Scheme Act 2013 (Cth) (‘the Act’).

2. The Applicant is the divorced mother of five sons and 10 grandchildren. At the time of application to the Tribunal she was living in a rented home in Lemon Tree Passage, NSW. This tenancy was terminated in circumstances disputed by the Applicant and since June 2023, she has resided in a studio flat at the rear of a property at Cardiff NSW rented by her youngest son. She last worked in a part-time capacity in 2021 as a disability support worker.  

3. In September 2021, the applicant made a request to become a participant in the NDIS claiming that her impairments caused by chronic lower bank and neck pain secondary to Scheuermann’s disease, anxiety and depression impacted upon her functional capacity in the domains of mobility and self-care.[1]

   [1]  T7, Access Request Form, Christopher Murcott (General Practitioner) dated 29 September 2023, pp 38-44.

4. On 11 October 2021, a delegate of the Chief Executive Officer (‘CEO’) of the Respondent determined that the Applicant did not meet the access criteria in sections 24 and 25 of the Act. The Applicant subsequently requested an internal review and the internal review confirmed the decision on 22 April 2022 (‘the internal review decision’). The internal reviewer found that the applicant had a disability attributable to the conditions of back pain resulting from Scheuermann’s disease of the spine, radiculopathy, hip pain resulting from osteoarthritis and COPD, but they were not satisfied that section 24(1)(a) of the Act was met for the Applicant’s conditions of anxiety/PTSD and depression. Further, the internal reviewer was not satisfied that there were no further available treatment options that may relieve the Applicant’s impairment arising from the conditions which were accepted to attribute a disability, and therefore the impairment could not be considered as, or likely to be, permanent.

5. On 27 April 2022, the applicant applied to the Administrative Appeals Tribunal (‘the Tribunal’) for a review of the internal review decision.

6. On 26 September 2023, the matter proceeded to a hearing via MS Teams video before the Tribunal.

LEGISLATION

The access criteria

1. To become a participant in the NDIS, the Applicant must satisfy the access criteria set out in subsection 21(1) of the Act, which provides as follows:

   (1)A person meets the access criteria if:

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

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

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

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

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

2. There is no dispute the Applicant satisfies the age and the residence requirements. The Tribunal must decide whether the Applicant satisfies the access criteria in section 24 (the disability requirements) or section 25 (the early intervention requirements).

3. Section 24 of the Act states:

   (1)A person meets the disability requirements if:

   (a)    the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable; and

   (b)    the impairment or impairments are, or are likely to be, permanent; and

   (c)    the impairment or impairments result in substantially reduced functional capacity to undertake one or more of the following activities:

   (i)     communication;

   (ii)     social interaction;

   (iii)    learning;

   (iv)    mobility;

   (v)    self care;

   (vi)    self management; and

   (d)     the impairment or impairments affect the person’s capacity for social   or economic participation; and

   (e)     the person is likely to require support under the National Disability                Insurance Scheme for the person’s lifetime.

   (2)For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the variation.

4. If the Applicant does not meet the disability requirements, the Tribunal will then consider whether she meets the early intervention requirements set out in section 25 of the Act which relevantly states as follows:

   1A person meets the early intervention requirementsif:

   (a)the person:

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

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

   (iii)   is a child who has developmentaldelay; and

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

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

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

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

   (iii)   improving such functional capacity; or

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

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

5. The Minister may, under subsection 209(1) of the Act, make rules prescribing matters. The rules relevant to this matter are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (‘the Access Rules’), which form part of the legislation.

6. The NDIS Operational Guidelines also assist in making decisions in accordance with the Act. Operational Guidelines represent government policy and should be applied by the Tribunal unless there is good reason not to do so.[2] The relevant Operational Guideline is Our Guidelines – Becoming a participant – Applying to the NDIS (Operational Guideline).[3]

   [2] Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[1979] AATA 179; (1979) 2 ALD 634; (1979) 2 ALD 60.

   [3] National Disability Insurance Agency, Our Guidelines – Becoming a participant – Applying to the NDIS, (1 August 2022) (Web Page) <>

   In Mulligan[4] Mortimer J held that the legislation pertaining to the access criteria requires “a relatively high degree of precision by decision-makers… in assessing what a person can or cannot do. The assessment to be undertaken is avowedly functional and multifaceted.”[5] Mortimer J also explained that the legislation requires that it is based on a functional, practical assessment of what a person can and cannot do.[6]

   [4] Mulligan v National Disability Insurance Agency [2015] FCA 544 (‘Mulligan’).

   [5] Ibid, [55].

   [6] Ibid, [56].

   ISSUES

7. The Tribunal will first consider whether it was satisfied that the Applicant has a disability that is attributable to one or more intellectual, cognitive, sensory or physical impairments, as required by section 24(1)(a) of the Act. The Applicant’s NDIS Application Form and statement of lived experience indicate she seeks to rely on the pain and limitations associated with her Scheuermann’s disease and degenerative spinal changes and hip caused by osteoarthritis, COPD, generalised anxiety disorder, depression, gastro oesophageal reflux disorder (GORD) to meet the access criteria.[7]

   [7] T14, Applicant’s Statement of Lived Experience, pp 70-74; T-Docs, T7, Access Request Form, Christopher Murcott (General Practitioner) dated 29 September 2023, pp 38-44.

8. If the Tribunal accepts that the Applicant meets section 24(1)(a) of the Act, it will then consider whether any of her impairments are permanent such that section 24(1)(b) of the Act is met. The Respondent has not conceded that any of the impairments experienced by the applicant are permanent.[8]

   [8] Respondent’s Statement of Facts, Issues and Contentions, dated 25 April 2023 (‘RSFIC’), paras 27 -34.

9. If the Tribunal finds sections 24(1)(a) and (b) are met, it will then consider whether the Applicant’s impairments result in substantially reduced functional capacity to undertake any of the following activities: communication, social interaction, learning, mobility, self-care or self-management. The Respondent also contends the Applicant has not demonstrated a substantially reduced functional capacity in any of the specified domains in subsection 24(1)(c)(i) and therefore does not meet section 24(1)(c) of the Act.[9]

   [9] RSFIC, paras 35-38.

10. If the Tribunal is not satisfied the Applicant meets the disability requirements, it will consider whether she meets the early intervention requirements. The Respondent contends that the Applicant does not satisfy the early intervention requirements because the evidence does not demonstrate that the Applicant’s impairments are permanent or that early intervention supports would have a significant impact on her impairments, and there is no indication in the evidence as to what benefits the Applicant may experience from receiving such supports.[10]

    CONSIDERATION OF CLAIMS AND EVIDENCE

    [10] RSFIC, paras 43-44.

    Evidence before the Tribunal

11. The evidence before the Tribunal is as follows:

    ·The ‘T-Documents’ provided to the Tribunal by the Respondent after the application for review was made.

    ·The Joint Tender Bundle (JTB) filed on 8 September 2023, consisting of 467 pages. The bundle includes a range of evidence including expert reports, other medical reports and records, the Respondent’s Statement of Facts Issues and Contentions and summonsed medical records, discussed in detail below.

    ·Evidence arising at hearing on 26 September 2023.

    ·The Respondent’s written closing submission dated 10 October 2023.

    ·Applicant’s response to tender bundle dated 11 October 2023.

    ·Applicants’ chronology document “My News 2” received 11 October 2023.

    ·Further response of the applicant dated 11 October 2023.

    ·Applicant’s written closing submission dated 13 October 2023.

    ·Email from the Applicant dated 14 October 2023.

    Does the Applicant have a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments?

12. The Respondent accepts that the Applicant satisfies this requirement in relation to impairments arising from chronic back pain due to Scheuermann’s disease, radiculopathy and osteoarthritis, generalised anxiety disorder, depression and Chronic Obstructive Pulmonary Disease (COPD).  

13. The Respondent does not accept the requirement is satisfied in relation to PTSD.

14. The Tribunal has also considered whether the Applicant has a disability that is attributable to an impairment or impairments. The impairment or impairments attributable to disability need to be identified with some precision, because the threshold questions on permanency (section 24(1)(b)) and substantially reduced functional capacity (section 24(1)(c)) operate not on the concept of conditions, but on the concept of “impairment”,[11] which is generally understood as involving the loss of, or damage to, a physical, sensory or mental function.[12] Pain is not an “impairment” in itself,[13] but pain might be such that it limits particular bodily functions and therefore constitutes an “impairment”.[14]

    [11] Mulligan (n 8) at [51].

    [12] Ibid.

    [13] Military Rehabilitation and Compensation Commission v Katterns [2017] FCA 641 at [47].

    [14] Ibid at [48].

15. In the Access Request form[15] Dr Christopher Murcott, listed the impairments of chronic low back pain and neck pain, neck pain, hand pain, depression and anxiety.

    [15] T7, Access Request Form, Dr Christopher Murcott (General Practitioner) dated 29 September 2023 pp 38-44.

16. In a letter dated 5 January 2022[16], Dr Murcott listed Applicant’s ongoing medical conditions as back pain secondary to Scheuermann’s disease of the spine, cervical spine pain with radiculopathy, GORD, hip joint pain/osteoarthritis, COPD, Generalised Anxiety Disorder, Reactive depression.

    [16] T9, letter from Dr Christopher Murcott, (General Practitioner) dated 5 January 2022 pp 50-51.

17. Then in a subsequent letter dated 14 April 2022[17] (T13) Dr Murcott listed the diagnoses of back pain secondary to Scheuermann’s disease of the spine, cervical spine pain with radiculopathy, GORD, hip joint pain/Osteoarthritis, Generalised Anxiety Disorder and reactive depression.

    [17] T13, letter from Dr Christopher Murcott (General Practitioner) dated 14 April 2022, pp 68-69.

18. In the Access Request Form, Dr Murcott records that the Applicant has a primary impairment arising from chronic low back pain and neck pain since 2011.[18] In his view the Applicant requires assistance with mobility and home cleaning and maintenance. He further confirmed that her conditions are lifelong and likely to have some ongoing functional impairment. Then in his subsequent letter dated 5 January 2022, Dr Murcott records that the Applicant’s Scheuermann’s disease affects her lumbar spine and that back pain impacts upon her mobility severely. [19]

    [18] T7, Access Request Form, Dr Christopher Murcott (General Practitioner) dated 29 September 2023 pp 38-44.

    [19] T9, Dr Christopher Murcott, letter to NDIA dated 5 January 2022, pp 50-51

19. In the Access Request Form, Dr Murcott records that the Applicant has ongoing depression and anxiety. In respect of the domains of social interaction and self-management Dr Murcott indicates that the Applicant does not require assistance however records that due to chronic anxiety the Applicant lacks self-confidence and experiences and social withdrawal.[20] In his letter of 5 January 2022, Dr Murcott records that the Applicant has an established diagnosis of depression and anxiety/PTSD.[21]

    [20] T7, Access Request Form, Dr Christopher Murcott (General Practitioner) dated 29 September 2023, 38-44.

    [21] T9, Dr Christopher Murcott, letter to NDIA dated 5 January 2022, 50-51.

20. Dr Murcott records that the Applicant has COPD with chronic dyspnoea on exertion and frequent infective exacerbations.[22]

    [22] T9, Dr Christopher Murcott, letter to NDIA dated 5 January 2022, 50-51.

21. The Applicant in her statement of lived experiences claims that her Scheuermann’s disease and osteoarthritis affect her ability to mobilise in that she experiences stiffness and pain with movement. She has difficulty sitting, standing and sleeping and cannot maintain any position for long. The Applicant claims to also have difficulties lifting and everyday tasks take her longer. Her COPD leaves her exhausted and out of breath when active. Due to her depression, she does not leave the house, lacks motivation and does not feel safe. [23]

    [23] T14, Applicant’s statement of lived experience dated 19 April 2022, 71-74.

22. Vanessa Orton, occupational therapist, assessed that the Applicant’s conditions impacted across functional domains and that she had a substantially reduced capacity to perform in several domains.[24]

    [24] T11, Vanessa Orton Occupational Therapy Functional Assessment Report dated 17 January 2022, 53-57.

23. The Applicant reported to the independent occupational therapist, Mr Stretton, in February 2022, that she has difficulties with various daily activities due to the symptoms caused by her medical condition. He observed and accepted that the Applicant has some difficulty with activities. He also observed that the Applicant attempted all tasks requested without hesitation, she was a good historian and was candid and appeared genuine in her responses to questions when asked.[25]

    [25] JTB24, Mr Gary Stretton, Functional Capacity Assessment Report dated 1 March 2023, pp 137-172.

24. On the basis of the evidence set out above, the Tribunal is satisfied that that the Applicant has disability relating to a physical impairment due to her back, hip and neck pain and radiculopathy secondary to Scheuermann’s disease of the spine, neck, hip and back pain due to osteoarthritis, and COPD. It is also satisfied that the Applicant has an impairment to which a psychosocial disability is attributable to arising from her depression and anxiety.

25. Therefore, in relation to the above conditions section 24(1)(a) of the Act is met.

26. Due to the absence of supporting evidence the Tribunal is not satisfied that the requirement is met in relation to the Applicant’s GORD. There is also no evidence that the Applicant’s diagnosis of PTDS reported by Dr Murcott[26] has been made by an appropriately qualified practitioner on the basis of a clinical assessment. In respect of the Applicant’s claim of impairment in her left hand arising from an injury sustained in a dog attack in 2017[27] it is noted that the Applicant provided photographs which confirm she was hospitalised for treatment to her hand.[28] She also spoke about this condition at the hearing, and in her submissions. However, other than the photographs there is no medical evidence before the Tribunal as to the nature of the condition, the treatment received or the functional impairment arising from it such that the Tribunal is able to make a finding as to an impairment and that section 24(1)(a) of the Act is met.

    [26] T9, Dr Christopher Murcott, letter to NDIA dated 5 January 2022, 50-51.

    [27] JTB18, Applicant’s letter of 3 August 2023, pp 81-86; JTB19, Applicant’s Statement of Facts, Issues and Contentions 6 August 2023, pp 87-92; Applicant’s document “My News 2” received 14 October 2023.

    [28] JTB17, Applicant’s photographs, pp 70-79.

Is the Applicant’s impairment permanent or likely to be permanent?

1. In respect of her physical impairment arising from her back the Applicant submitted that her skeletal bone condition associated with her Scheuermann’s disease is proven to be permanent and set.[29] She claims that her spinal bones are not of normal standards, and will not change only worsen or deteriorate, and she feels that she meets the criteria.[30]

   [29] JTB14, Applicant’s submission dated 26 April 2023, pp 46-47.

   [30] JTB18, Applicant’s submissions 3 August 2023, pp 81-86.

2. The Respondent contends that the physical impairments which arise from the Applicant’s Scheuermann’s disease, osteoarthritis, radiculopathy, generalised anxiety disorder, depression and COPD are not permanent for the purposes of section 24(1)(b).

3. The Tribunal acknowledges that the Applicant’s physical issues have been longstanding, especially those in her thoraco-lumbar spine. With respect to the Applicant’s chronic back pain and neck pain as a consequence of her Scheuermann’s disease, radiculopathy and osteoarthritis, it is accepted, and the Respondent has acknowledged, that the Applicant has in the past received treatment including physiotherapy, chiropractic treatment, CT guided steroid injections in the neck and thoraco-lumbar spine, and opioid medications, including Fentanyl patches. However, the Tribunal has its reservations as to whether the evidence demonstrates that the physical and psychosocial impairments of the Applicant are, or are likely to be, permanent for the purposes of access to the NDIS for the reasons discussed below.

4. The Applicant has stated in submissions that her back issues and the pain associated are her priority.[31] In his letter of 15 August 2022,[32] Dr Murcott comments on the Applicant’s chronic pain in her neck and also in her thoraco-lumbar spine. He claims that some of her pain stems from her Scheuermann’s disease and reports that the Applicant has had an extensive course of investigation and treatment. He sets out that the Applicant was referred a local pain specialist, Dr Ebrahimi for pain management, who after a detailed assessment of her spinal pain, performed a course of CT guided steroid injections spread over several months which had been completed in full.  In the same letter Dr Murcott also reports that following her injections the Applicant was still complaining of ongoing neck and lower back pain, she was using Fentanyl patches long term, with meloxicam 15mg daily during exacerbations plus paracetamol. He states that the Applicant’s condition is not amenable to surgery, that it was unrealistic to expect further improvement and that her pain should be accepted as stable and permanent.

   [31] JTB14, Applicant’s submission dated 26 April 2023, pp 14-15.

   [32] JTB4, Dr Christopher Murcott, letter to NDIA dated 15 August 2023, pp. 11-12.

5. A review of all the evidence demonstrates that the comments of Dr Murcott are inaccurate. The Applicant provided evidence in her submissions of 15 November 2022,[33] and also at hearing that she did not complete the course of treatment with Dr Ebrahimi. Following her fall from a ladder in September 2021 this treatment course was increased to a recommendation of nine injections. It is the evidence of the Applicant that she completed up to five. In her submission of 15 November 2022, she claimed that this got her neck seen to. [34] The Applicant was questioned at the hearing about her correspondence to Dr Murcott on 14 October 2021, in which she writes positively regarding the impact of the injections.  claiming that she felt that she had finally gotten relief for the tension in her neck.[35] Particularly, the Applicant wrote:

   Since May, when I started my treatment, I’ve had three injections in my neck.  The pain I have felt in my bottom the last four years disappeared after having the injections in C2.  It stopped the connect to my bottom, but still left my neck/shoulder with pain and pulling on my hip.  On Monday, I had an injection in the C5, which has relieved the tension in my neck and shoulders/arm and feel I have finally got relief four years to the date I went on worker’s compensation for this issue.  My neck is still strained and feel it is the muscles now that need to heal from the constant pressure it has been faced with in this four plus years of work stress.  I still have four injections to go, which are in the lumber/tail area.

   When questioned at the hearing the Applicant did not dispute this assessment of the treatment. She also indicated in her evidence that she intended at the time to complete the full course of treatment once the pain had ceased from her injuries after fall from the ladder in September 2021. In post hearing submissions, the Applicant claimed that she was refusing remaining injections because she had no faith in the medical profession, and she referred to ongoing injections destroying her mental health.[36] The Tribunal has had regard to the evidence of the Applicant that in 2021 the Applicant was also recovering from the removal of a foster child from her care by the NSW Department of Communities and Justice, an event which she links to her attendance at this course of treatment which caused her considerable disruption.[37] It is also noted that the Applicant was also travelling back and forth to Sydney at the time to visit her father who was hospitalised with terminal cancer. On the material, due to a series of events which interrupted her treatment, the Applicant did not complete the course of treatment which she initially found to be beneficial and relieved her pain. She now does not trust that this treatment can be completed safely. Unfortunately, there is no medical evidence before the Tribunal to reflect this. It is a treatment known and available to the applicant, appropriate for her impairment and evidence based as likely, and also demonstrated on the Applicant’s evidence, to have been in the past, effective.

   [33] JTB7, Applicant’s submission dated 15 November 2022, pp 19-20.

   [34] JTB7, Applicant’s submission dated 15 November 2022, pp 19-20.

   [35] JTB28, Lemon Tree Medical Centre, summonsed material, p 367.

   [36] Applicant’s written closing submission dated 13 October 2023.

   [37] Hearing Transcript, p 44 and 10.

6. It is acknowledged that Dr Murcott has commented that surgery is not appropriate for the Applicant’s condition.[38] The Applicant gave evidence that Dr Robert Kuru, orthopaedic surgeon, told her that there was only an eight per cent chance of surgery doing anything.[39] While the Respondent has questioned whether the Applicant underwent specialist review with Dr Kuru, the clinical notes contained in the material summonsed from Lemon Tree Passage Medical Centre do indicate that the Applicant consulted with Dr Kuru through the John Hunter Hospital over ten years ago, in 2012, in relation to lower back pain.[40] There is no report or other supporting document which sets out Dr Kuru’s assessment, or any recommendations for treatment or management of her condition at that time. There is no evidence that Dr Kuru was consulted at that time in relation to issues arising in relation to her degenerative disc disease in her cervical spine and thoracic spine or her consequent radiculopathy or her hip pain.

   [38] T13, Dr Christopher Murcott, letter dated 14 April 2022, pp 68-69.

   [39] Hearing Transcript, p 17, para 10.

   [40] JTB28, Lemon Tree Medical Centre, summonsed material, pp 319-320.

7. The Applicant attributes her onset of neck pain and consequential radiculopathy to the conditions of her employment with Lifestyle Solutions. In 2018 there is evidence that the Applicant was pursuing a workers compensation claim for this condition. She underwent a series of physiotherapy and chiropractic treatment. Also in 2018, the Applicant was reviewed by Dr James Bodel, orthopaedic surgeon, in relation to her neck as part of her workers compensation claim. The undated extract of the report of Dr Bodel,[41] as produced in the summonsed material of Lemon Tree Passage Medical Centre is incomplete and of little assistance to the Tribunal it does not assess impairment or contain recommendations as to treatment.

   [41] JTB28, Lemon Tree Medical Centre, summonsed material, pp 327-330.

8. The Applicant also confirmed at hearing, she has not undergone a specialist assessment or treatment for her back since her fall in September 2021, following which CT scans document transverse compression fractures at L1 and L2,[42] and after which the Applicant complained of a nerve root entrapment at L4.[43] While the Applicant has had some specialist consultation, it has been piecemeal. On reviewing the evidence it appears that the review of the Applicant’s cervical and spinal condition including her Scheuermann’s disease and degenerative disc condition/osteoarthritis by a specialist is incomplete. The management of her condition is not thoroughly explored at the specialist level such that the Tribunal can be satisfied that the Applicant has received treatment which is appropriate for the whole of her conditions and her impairments.

   [42] JTB28, Lemon Tree Medical Centre, summonsed material (Dr Mark Cooper, CT Lumbar spine, 2 September 2021) pp 441-442.

   [43] Hearing transcript, p 12, para 5 and p 29, para 40.

9. Additionally, Dr Murcott, reports that the Applicant was managing her pain using Fentanyl patches long term. The Respondent has highlighted, and the Tribunal takes note, in the evidence of concerns expressed by several medical professionals consulted by the Applicant regarding her reliance of opioids to manage her condition. In June 2018, Dr Rory Copeland, suggested the weaning/ceasing of opioid analgesia given its depressogenic natures and lack of robust evidence for non-cancer pain.[44] Although the Applicant was referred to the Hunter Integrated Pain Service (HIPS) in July 2018, she attended only an Understanding Pain Seminar and following this elected not to attend any further appointments.[45] HIPS reports of the limited benefit and potential harm of ongoing passive strategies including long term opioid medication. Dr Ebrahimi reports to Dr Murcott on 18 February 2021 an intention to wean the Applicant off opiates.[46] From the evidence of the Applicant at hearing there appears to have been a reluctance of Dr Murcott to raise and address these issues with her.

   [44] JTB28, Lemon Tree Medical Centre, summonsed material (Letter by Dr Subhra Bhattacharyya to Dr Christopher Murcott dated 26 May 2011) p 381.

   [45] JTB28, Lemon Tree Medical Centre, summonsed material (Letter from Dr Andrew Powell, Hunter Pain Management Service dated 2 October 2018) p 322.

   [46] T5, Dr Houman Ebrahimi, Report dated 23 February 2021, p 36.

10. Further, from correspondence submitted by the Applicant and the evidence at hearing, due to a dispute over her prescription of her Fentanyl patches, there has been a breakdown in the Applicant’s relationship with Lemon Tree Passage Medical Centre while Dr Murcott was on leave.[47] Further, the Applicant has experience difficulty accessing a doctor at either Tanilba Bay or close to her current residence in Cardiff who will provide her with a similar prescription. At the hearing the Applicant gave evidence that she was waiting on a response from “Southern Star Drug and Alcohol” in relation to undertaking a detox from long-term opioid use, but also expressed that she could not detox off pain killers.[48] In post hearing submissions, the Applicant claimed to have detoxed off Fentanyl and had a visit from the Acute Care Team. It appears the referral process for the Applicant in terms of appropriate treatment is continuing. Consequently, the evidence as to appropriate treatment for the Applicant’s pain management is incomplete.

    [47] EB8, Letter Lemon Tree Medical Practice to the Applicant dated 5 April 2023, p 21.

    [48] Hearing transcript, p 44 para 25.

11. Since 2017, the Applicant, according to the chronology she has provided, has been managing a number of difficult and traumatic life events including employment issues, death of family members, health issues, the removal of a foster child from her care, the loss of her animals and most recently her loss of housing. In the context of these events, she found it difficult to look after her own health and not had the time to explore other forms of treatment. Although the Applicant claims post-hearing to have ceased her use of Fentanyl, the issue of whether she has appropriately detoxed off opioids remains. On the evidence, the Applicant has a fixed mindset about what she needs to manage her pain. She provided evidence indicating that she was firmly of the view, contrary to the evidence of several medical specialists that she has consulted, that the most effective way to manage the impairment her pain causes is by opioid analgesia. It remains that she has not had effective engagement with a pain specialist program. A treatment that her treating professionals report as appropriate for her and her impairments.

12. Rule 5.4 of the Access Rules outlines that an impairment is only permanent, or likely to be permanent if there are ‘no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.’ In this case, there are a number of known, available and appropriate evidence-based treatments that are likely to remedy. While the Tribunal acknowledges that the Applicant’s conditions are longstanding and clearly impact on her function, it is not satisfied that the Applicant’s mobility impairment to her back pain, her hand or her hips as a consequence of her Scheuermann’s disease, degenerative disc disease, osteoarthritis and radiculopathy are permanent because of the lack of evidence of specialist review and management, the absence of appropriate engagement with a recommended integrated pain management program and the yet to be addressed issue of the Applicant’s reliance on opioid medication. There is no evidence before the Tribunal that these treatment options are unlikely to remedy the Applicant’s pain, functional limitation and her impairments. While such treatments may not be curative, there remains the probability that the Applicant could be stabilised at a higher functional level, such that the impact on the Applicants’ function would not be as great as it is now.

13. With respect to her COPD, Dr Murcott chronic dyspnoea on exertion, and frequent infective exacerbations which are treated with inhalers and repeated courses of oral antibiotics.[49] The Applicant told the Tribunal at hearing that she had obtained a chest scan around 3 January 2023,[50] however confirmed that she did not have any medical evidence to provide in relation to the result of the scan. She did not have a report. In her submission[51] the Applicant claims that her COPD causes stress to her shoulders and also a tight chest. At hearing the Applicant said that when she gets worked up her breathing will impact upon her, her chest will become tight and that is when she starts to get angry.[52] She told the Tribunal at hearing that Dr Murcott told her when she consulted him after the scans in January 2023, that there was not much difference in the condition. She said that she had a puffer if she needed it.[53] It remains that there is no evidence that the Applicant has received specialist input for example from a pulmonologist or respiratory specialist into the treatment and management of the condition, in order to satisfy the Tribunal that she has explored and completed recommended treatment options. Having considered the material before it, there is insufficient evidence for the Tribunal to find the Applicant has a permanent impairment resulting from this condition.

    [49] T9, Dr Christopher Murcott, letter to NDIA dated 5 January 2022, pp 50-51.

    [50] Hearing transcript, p 35, paras 15 and 35.

    [51] JTB14, Applicants submission dated 26 April 2023, pp 47-48.

    [52] Hearing transcript, p 35 and 15.

    [53] Hearing transcript, p 34, 20 and 45.

14. With respect to the Applicant’s psychosocial disability arising from her depression and anxiety, Dr Murcott reports that the Applicant was referred for psychotherapy in 2010 and 2017.[54] He refers to an assessment by psychologist Matthew Stanton at Life Matters and by the Hunter Integrated Pain Service in 2018. According to Dr Murcott, the Applicant’s treatment of Effexor was long term and likely to continue indefinitely.

    [54] JTB4, Dr Christopher Murcott, letter to NDIA dated 15 August 2022, pp 11 – 12.

15. In the assessment of the Tribunal there is limited evidence of the Applicant’s treatment for her depression and anxiety. The Tribunal takes note of a letter to Dr Murcott from Dr Subhra Bhattecharyya, psychiatrist, dated 26 May 2011[55] suggesting a review of the Applicant’s medication from Lexapro and Seroquel to a combination of Seroquel and Mirtazapine. Following this, Tribunal cannot ascertain from the evidence how the Applicant came to be prescribed Effexor. There is no evidence of counselling received by the Applicant from Mathew Stanton referenced by Dr Murcott. In July 2018 the Applicant was seen by Dr Rory Copeland, psychiatric registrar, following a referral to the community mental health service. At that time Dr Copeland set out several recommendations to Dr Murcott and Dr Vitantonio Bracco (General Practitioner). These included that the Applicant wean and cease her current medication, that she commences treatment with an SSRI, further that she receives psychological treatment as well as a referral to HIPS  and weaning/ceasing opioid analgesia and a referral to Partners in Recovery if ongoing social support would be of benefit.[56]

    [55] JTB28, Lemon Tree Medical Centre, summonsed material (Letter by Dr Subhra Bhattacharyya to Dr Christopher Murcott dated 26 May 2011) p 381.

    [56] EB28 Lemon Tree Medical Centre, summonsed material (Letter of Dr Rory Copeland, Psychiatric Registrar, to Dr Vitantonio Bracco/Dr Christopher Murcott dated 15 June 2018), pp 309-311.

16. The Applicant was questioned about this at hearing, and her evidence was that she did not trial another form of anti-depressant, and when she had spoken to Dr Murcott he told her to just keep things going as they were.[57] The Applicant also confirmed that she had not consulted a psychiatrist, a clinical psychologist or a psychiatrist after July 2018, although she said that she had rung Lifeline and Blue Motto and talked to people.[58]

    [57] Hearing Transcript, p 32, para 15.

    [58] As above, para 45.

17. Dr Murcott did proceed with a referral to HIPS and the evidence is, as set out above, that the Applicant did not continue with any further appointments other than an initial Understanding Pain Seminar. However, they also wrote to Dr Murcott on 30 August 2018 and again on 2 October 2018 noting the Applicant’s self-reported levels of depression, anxiety and catastrophic thinking, and recommending referral to psychosocial/psychiatric services[59] and that there may be a role for a clinical psychologist.[60]

    [59] EB28 Lemon Tree Medical Centre, summonsed material (Letter from Sarah Campbell, Clinical Psychologist, Hunter Integrated Pain Service, 30 August 2018), p 321.

    [60] EB28 Lemon Tree Medical Centre, summonsed material (Letter from Dr Andrew Powell, Hunter Pain Management Service dated 2 October 2018), p 322.

18. While the Applicant submits post-hearing that she has ceased the used of Fentanyl, there is no evidence she has addressed the concerns of her treating professionals of long-term opioid use.

19. Once again, the Tribunal cannot find that these impairments are permanent for the purpose of section 24 of the Act having regard to Rule 5.4 of the Access Rules. On the evidence the Applicant is yet to undergo/not undergone recommended pharmacology, psychosocial/psychological or psychiatric review, management or treatment. It follows that there are known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the Applicant’s functional capacity and her impairments to which her psychosocial disability is attributable to.

1. As such, it follows that the Applicant does not meet the threshold under section 24(1)(b) of the Act.

2. Having made the finding that the Applicant’s does not meet the disability requirement it is not necessary for the Tribunal to make definitive findings as to whether the Applicant has a substantial functional impairment under section 24(1)(c) as the requirements for access under the Act are cumulative.

Does the Applicant meet the early intervention requirements?

1. As the Tribunal has found that the Applicant does not meet the disability requirement it has considered whether she meets the early intervention requirements.

2. Under subsections 25(1)(a)(i)(ii) of the Act a person meets the early intervention requirements if their identified intellectual, cognitive, neurological, sensory, physical impairments or psychosocial disability are or are likely to be permanent.

3. The findings of the Tribunal as set out above are that the Applicant’s impairments are not demonstrated to meet the criteria of permanence under the Act. It follows that the Applicant does not meet the early intervention requirements.

4. In any event, the Applicant has claimed that no intervention is appropriate as her condition of Scheuermann’s is genetic and longstanding. She claims to have undertaken appropriate early intervention by trying to manage her condition through appropriate exercise while able.[61] Further on the material before the Tribunal The evidence further is not consistent that the provision of early intervention supports are likely to by mitigating or alleviating the impact of her impairment upon her functional capacity to undertake the activities set out in section 24(1)(c) of the Act; or by preventing the deterioration of such functional capacity; or by improving such functional capacity; or by strengthening the sustainability of informal supports available to her.

   [61] T18 Applicant’s submissions dated 3 August 2023 and hearing transcript p 11 para 25.

5. The Tribunal is not satisfied the Applicant meets the early intervention requirements to enable her to become a participant of the NDIS under section 25 of the Act.

   CONCLUSION

6. The Tribunal finds that the Applicant does not meet the disability requirements in section 24 of the Act, nor the early intervention requirements in section 25 of the Act, to access the NDIS. Therefore, the Respondent’s internal review decision is correct.

   DECISION

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

I certify that the preceding 61 (sixty-one) paragraphs are a true copy of the reasons for the decision herein of Member P Hunter

................................[SGD]........................................

Associate

Dated: 24 November 2023

Date of hearing:	26 September 2023
Applicant	Self-represented
Solicitor for the Respondent	Ms C Campbell, HWL Ebsworth Lawyers