Davis and National Disability Insurance Agency

Case [2023] AATA 1437

Davis and National Disability Insurance Agency [2023] AATA 1437 (30 May 2023)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2021/2935

Re:Davis

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Senior Member O'Donovan

Date:30 May 2023

Place:Canberra

The decision under review is affirmed

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

Senior Member O’Donovan

CATCHWORDS

NATIONAL DISABILITY INSURANCE SCHEME – whether the applicant qualifies to become a participant in the scheme – whether the applicant meets the disability requirement – whether the applicant meets the early intervention requirement – decision affirmed

LEGISLATION

National Disability Insurance Act, s 21, 24, 27, 209

National Disability Insurance Scheme (Becoming a Participant) Rules 2016, Rule 5.8

CASES

Mulligan v National Disability Insurance Agency [2015] FCA 544

Mulligan and National Disability Insurance Agency [2015] AATA 974
Ditchfield and National Disability Insurance Agency [2019] AATA 2121
Madelaine and National Disability Insurance Agency [2020] AATA 4025
Re Costello and Department of Transport (1979) 2 ALD 934
Saitta Pty Ltd v Commonwealth (2000) 106 FCR 554
Re Tomago Aluminium Co Pty Ltd & Collector of Customs (1988) 17 ALD 583

National Disability Insurance Agency v Foster [2023] FCAFC 11

SECONDARY MATERIALS

American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (American Psychiatric Association Publishing, 5th ed, Text Revision, 2022)

REASONS FOR DECISION

Senior Member O'Donovan

30 May 2023

  1. The applicant is seeking to become a participant in the National Disability Insurance Scheme (NDIS). She suffers from a number of conditions:

    (a)Functional neurological disorder (FND);

    (b)Fibromyalgia;

    (c)Depression and anxiety;

    (d)Hearing loss.

  2. In order to qualify to become a participant in the NDIS, it is necessary to meet a number of criteria – the age requirements, the residence requirements and either, the disability requirement or the early intervention requirement.[1]

  3. The respondent concedes that the applicant meets the age and residence requirements criteria for qualification but contends that the applicant does not meet the disability requirement or the early intervention requirement. The applicant at the hearing did not press any claim that she met the early intervention requirement but, given that there is evidence on that issue, I will deal with it at the end of these reasons for the sake of completeness. The primary focus of submissions was however on the applicant’s satisfaction of the disability requirement.

  4. The disability requirements are specified in section 24 of the National Disability Insurance Act 2013 (the NDIS Act).

  5. Section 24 provides as follows:

    (1)A person meets the disability requirements if:

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

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

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

    (i)     communication;

    (ii)    social interaction;

    (iii)   learning;

    (iv)   mobility;

    (v)    self-care;

    (vi)   self-management;…

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Details
AGLC
Davis and National Disability Insurance Agency [2023] AATA 1437
Case
[2023] AATA 1437
Decision Date

CaseChat Overview and Summary

This matter concerned an application by the applicant to become a participant in the National Disability Insurance Scheme. The applicant sought to challenge the respondent's decision that she did not meet the eligibility requirements for the scheme. The hearing was conducted by O'Donovan SM.

The primary legal issues before the court were whether the applicant met the disability requirement for participation in the scheme, and whether she met the early intervention requirement. In determining the disability requirement, the court was required to consider whether the applicant's impairments, either collectively or separately, resulted in substantially reduced functional capacity in specified activities or psychosocial functioning, or whether she met the statutory threshold through the application of deeming provisions within the Rules.

The court considered evidence including reports from an occupational therapist and a neurologist, as well as the applicant's own testimony and hospital records. The respondent conceded that the applicant suffered from permanent impairments including Functional Neurological Disorder (FND), fibromyalgia, and hearing loss, and that any identified reduced function could be attributed to these permanent conditions. The court found that the applicant's most significant condition was FND, which first manifested in 2010. After considering the evidence, the court was not satisfied that the provision of early intervention supports was likely to benefit the applicant by reducing her future needs for supports.

Consequently, the decision under review was affirmed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

I have structured my reasons as follows. First, I identify the impairments which I am satisfied the applicant suffers from and which the respondent concedes should be treated as permanent. Second, I consider whether those impairments either collectively or separately have resulted in the applicant having substantially reduced functional capacity to undertake specified activities or substantially reduced psychosocial functioning in undertaking the specified activities – i.e., whether the applicant meets the statutory threshold without the assistance of the deeming provisions in the Rules. Third, I consider whether the applicant comes within the Rules which deem her to have met the statutory threshold. Finally, I consider whether the applicant meets the early intervention requirements.Evidence The evidence tendered during the hearing consisted of the T-Documents, Supplementary T Documents and one exhibit marked A1 which is a report from Dr Bruce Whitmill dated 12 July 2021. After the hearing, the respondent filed a subset of the summonsed material which had been referred to by one of the witnesses during her evidence. It consisted of records prepared while the applicant was in hospital in 2019 and 2021. I have marked it as Exhibit R1. The applicant gave evidence at the hearing and was cross examined. Two experts gave oral evidence in addition to the reports which they had provided. One was Jenny Greenfield, an occupational therapist. The other was Dr Anna Schutz, a consultant neurologist.The applicant’s permanent impairments The respondent accepts in its Statement of Facts, Issues and Contentions that the applicant suffers from FND, fibromyalgia and hearing loss. It accepts that all of these conditions are permanent. The respondent also accepts that the applicant suffers from anxiety and depression. It does not accept that the applicant’s anxiety and depression are permanent. However, the position taken by the respondent is that nothing turns on that. The respondent accepts that because it is very difficult to separate out the functional impact of each of the applicant’s conditions, for present purposes the Tribunal can proceed on the basis that if reduced function is identified, the respondent would not quibble with the conclusion that it was the product of one of the applicant’s impairments which are permanent. The most significant condition from which the applicant suffers is FND. This condition first manifested in 2010. She was at home and began to feel unwell and then slumped in her chair. She was rushed to hospital in an ambulance and was initially thought to have had a stroke which affected her right side. In her evidence, the applicant’s memory is that as a result of this episode, she was in hospital and a rehabilitation facility for a total of three months. Contemporaneous records suggest that the applicant’s memory on this was poor and that in fact she was in hospital and undergoing rehabilitation for only 3 weeks.[2][2] T2 p 30.

Decision

Reasons for decision

In the circumstances I am not satisfied that the provision of early intervention supports is likely to benefit the applicant by reducing the applicant’s future needs for supports. Conclusion The decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

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