Devine and National Disability Insurance Agency

[2021] AATA 2549

Devine and National Disability Insurance Agency [2021] AATA 2549 (16 July 2021)

Division:National Disability Insurance Scheme Division

File Number(s):      2019/4981

Re:Anntoinette Devine  

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal: Member I Thompson

Date:16 July 2021

Place:Adelaide

The Tribunal affirms the decision under review.

...........................[Sgnd].............................................
 Member I Thompson

Catchwords

NATIONAL DISABILITY INSURANCE SCHEME – access to the scheme – disability requirements – early intervention requirements – consideration of medical history – decision affirmed

Legislation

Administrative Appeals Tribunal Act 1975

National Disability Insurance Scheme Act 2013

National Disability Insurance Scheme (Becoming a Participant) Rules 2016

Cases

Mulligan v NDIA (2015) FCA 544

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

Secondary Materials

Operational Guideline – Access to the NDIS

REASONS FOR DECISION

Member I Thompson

16 July 2021

INTRODUCTION

1. The applicant, Anntoinette Devine, made an access request to the National Disability Insurance Agency (NDIA) to become a participant in the National Disability Insurance Scheme (NDIS). 

2. The NDIA declined the request. Ms Devine sought an internal review of that decision which a delegate of the NDIA subsequently affirmed. The NDIA was not satisfied that Ms Devine met the disability or early intervention requirements regarding her post traumatic stress disorder and depression. Ms Devine applied to the Tribunal for a review of that decision.

3. The hearing in the Tribunal took place on 1 February 2021. Ms Devine attended in person and was self-represented with support from Ms Coates. The NDIA was represented by counsel, Mr D’Assumpcao.

4. Ms Devine is now 66 years old. She gave oral evidence at the hearing. She provided written statements prior to the hearing about aspects of her life experiences. She called four witnesses who also provided written statements beforehand. The NDIA had arranged for Ms Devine to be assessed by a psychiatrist, Dr Alison Moffatt. She wrote a detailed report following the assessment and gave evidence in person.  Ms Devine has a complex medical history and suffers from several conditions which include compromised immune system, hypothyroidism, angina, asthma, type II diabetes, migraines and sinusitis.[1]

   [1] Exhibit A2, Report of Country Health Connect dated 15.08.18

   THE NATIONAL DISABILITY INSURANCE SCHEME (NDIS)

5. In order to qualify as a participant in the NDIS, an applicant must meet the criteria outlined in s 21 of the National Disability Insurance Scheme Act 2013 (the NDIS Act). The NDIA was satisfied that Ms Devine meets the age and residency criteria, which are outlined in ss 22 and 23 of the Act.

6. In this case there is no dispute that Ms Devine meets the age and residence requirements. The age requirements include a provision that a person is aged under 65 when an access request was made. Ms Devine was 63 at the time of her request.

7. The question for the Tribunal is whether Ms Devine meets the disability requirements under s 24, or the early intervention requirements under s 25 of the NDIS Act.

8. Disability requirements – Section 24 of the NDIS Act specifies the criteria which must be met 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 subs (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.

9. All of the criteria in s 24(1) must be met for a person to become a participant in the NDIS. An applicant cannot succeed under s 24 if any one of the requirements is not satisfied.

10. Early intervention requirements – Section 25(1) of the NDIS Act specifies the criteria which must be met as follows:

    (1)   A person meets 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.

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

11. Section 25(3) of the NDIS Act provides that if a person meets the requirements in s 25(1), he or she will 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.

12. The concept of impairment, rather than a definition of disability, is central to the threshold provisions such as s 24. The Federal Court stated in Mulligan v National Disability Insurance Agency [2] at [56]:

    “No decision maker needs to be satisfied a person’s impairment is ‘serious’, or more serious than another people.  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 enough for a person to have substantially reduced functional capacity in relation to one activity.” 

    [2] (2015) FCA 544

13. Under s 209 of the NDIS Act the Minister has made rules about becoming a participant in the scheme. The National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (the NDIS Rules) are relevant to this case. The NDIS Rules form part of the legislation. Under r 5.8 the decision maker must assess the effect of a person’s impairment on the performance of each of the NDIS activities that are set out in s 24(1)(c) of the NDIS Act. If the result is any of the outcomes which are specified in r 5.8(a), (b) or (c) then the deeming effect of r 5.8 will apply.

14. The CEO of the NDIA has made Operational Guidelines for staff in exercising their functions under the NDIS Act. Unless there is good reason not to do so, the Operational Guidelines represent government policy and should be applied by the Tribunal.[3] The Operational Guideline – Access to the NDIS provides information and guidance regarding the disability requirements (s 8) and the early intervention requirements (s 9) and will be referred to later in this decision.[4]

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

    [4] Exhibit R1, T12, Operational Guideline – Access to the NDIS, pp 111-120

    ISSUES

15. In making the initial decision that Ms Devine does not meet the disability requirements for access to the NDIS, the NDIA considered that she does not meet the requirement in s 24 (1)(b) regarding the permanency of impairment.[5] 

    [5] Exhibit R1, T6, p 39

16. The NDIA affirmed that decision on internal review pursuant to s 100 of the NDIS Act. By letter dated 13 August 2019 the NDIA wrote to Ms Devine and advised her that it was satisfied in accordance with s 24(1)(a) that she has a disability attributable to impairments of post-traumatic stress disorder and depression. The NDIA was not satisfied that the criterion in s 24(1)(b) is met regarding permanency of the impairment. In particular, the NDIA was not satisfied that all known, available and appropriate evidence-based treatments had been explored.[6] In the same correspondence the NDIA advised Ms Devine that she does not meet the requirements for early intervention to enable her to access the NDIS.

    [6] Exhibit R1, T2, p 6

17. Before the hearing commenced, the NDIA provided a Statement of Issues Facts and Contentions in which it was submitted that the evidence was not sufficient for the Tribunal to find that Ms Devine’s impairments are permanent. Subsequently, but still prior to the hearing, the Agency changed its position by conceding the issue of permanency in respect of Ms Devine’s post-traumatic stress disorder and depressive disorder.

18. Specifically, however, the NDIA contends that the evidence does not support a finding that Ms Devine has a substantially reduced functional capacity in any of the domains of daily living and therefore she does not meet the requirements of s 24(1)(c) of the NDIS Act. The principal issue in dispute is whether Ms Devine’s permanent impairments have led to a substantial reduction in her functional capacity.

    EVIDENCE

    Ms Devine

19. Ms Devine gave evidence by affirmation at the hearing. In her written statements, which she wrote prior to the hearing, she describes significant aspects of her life from childhood to early adulthood, through to her current circumstances in Port Augusta. The statements contain information about her family, culture and heritage, relationships and friendships. She discusses traumatic events, and her strategies and mechanisms for addressing and coping in the aftermath. She discusses her experiences with medical and health services. She addresses issues that include mental health, disability, self-esteem, daily struggles and strategies for enhancing self-confidence. Ms Devine included comments in a written closing submission about the effects of trauma she has suffered in different ways at different times over much of her lifetime.

20. Ms Lorraine Blair provided a written statement[7] and gave evidence in person. She is presently the full-time carer for Ms Devine. They have been friends and neighbours for 10 years. Ms Devine told the Tribunal that Ms Blair comes to her house every day and helps her with showering, cleaning the house, cooking meals and taking her out.

    [7] Exhibit A1, Support letter from Lorraine Blair dated 03.06.2020

21. Mr Trevor Robertson and his partner are friends of Ms Devine. Mr Robertson provided a written statement[8] and also attended the hearing in person and gave evidence. Ms Devine told the Tribunal that she catches up occasionally with Mr Robertson and his wife for dinner, coffee and chat and enjoys a strong friendship with them.

    [8] Exhibit A1, Support letter from Trevor Robertson

22. Ms Devine has professional qualifications and a background of work in the hospitality industry. However she has received the disability support pension since 1998. She maintains regular contact with a daughter and grandchildren who lives in Adelaide, irregular contact with a son who lives in Adelaide, and little or no contact with a daughter who lives in Port Augusta.

    Medical evidence

23. Dr Ewer is a psychiatrist in private practice to whom Ms Devine was referred on 7 February 2018 for an assessment and report.[9] She was the victim of assaults that occurred in August 2016 and in October 2016. Dr Ewer conducted a mental state examination in relation to the impact of those assaults. The report which he wrote was not related to her NDIS claim. However it provides information which is relevant to the claim.

    [9] Exhibit R1, T3, pp 12 - 25

24. Dr Ewer noted Ms Devine has a past history of depression including an admission to a clinic in 1990 and previous use of antidepressants. At the time of his assessment Dr Ewer considered that Ms Devine suffered from a persistent depressive disorder with associated symptoms of anxiety. She was taking antidepressant medication, escitalopram, which she found helpful and he recommended its continuation together with 6 sessions with a clinical psychologist. Dr Ewer wrote: “the range and amplitude of Ms Devine’s affect were within normal limits. Her affect was appropriately responsive and reactive. She was able to appropriately interact emotionally and to establish rapport. She was mildly to moderately depressed and anxious. Ms Devine’s memory and concentration were slightly impaired. Her intellectual functioning was in keeping with her educational background. Her judgement seemed appropriate. There were no psychotic symptoms such as delusions or perceptual abnormalities.” [10]

    [10] Exhibit R1, T3, p 21

25. Dr Ewer noted that Ms Devine’s depression was unlikely to resolve and she will be left with a significant degree of permanent disability. He considered that the assaults caused her to lose her belief in safety, trust, control and personal efficacy. He considered that she will have impaired memory and concentration, difficulty coping with pressure, interrupted sleeping that will increase lethargy, problems trusting others that will exacerbate isolation. He considered that she will continue to be affected by mild to moderate depression and anxiety. Dr Ewer also considered that she has psychiatric capacity to manage her financial affairs which includes managing accommodation, paying bills, buying food and clothing, managing general banking, balancing income against costs, and decision-making with regard to buying and selling items. 

26. In evidence, Ms Devine said that the problems which Dr Ewer recorded that she had with safety, trust and control are still current. She said that there are times when she does not feel safe because of issues that she does not want to face and she “shuts down” and stays at home, allowing only Ms Blair or one of her daughters into her house.

27. Dr Moffatt is a consultant psychiatrist to whom Ms Devine was referred for psychiatric assessment on 17 December 2019. Dr Moffatt wrote a report which was received in evidence[11] and she attended the hearing in person to give oral evidence. In response to questions by Ms Devine at the hearing Dr Moffatt confirmed that she had read Dr Ewer’s report prior to her meeting with Ms Devine. Dr Moffatt confirmed that she had written her report and formed her opinions based predominantly on the history that Ms Devine provided and her observations during the assessment, with a focus on current functioning. She said that she chose not to revisit during the interview some of the historical information summarised by Dr Ewer concerning Ms Devine’s early life and education. Ms Devine’s current symptoms were recorded in the report.  Ms Devine was taking escitalopram 10 mg daily and still is.

    [11] Exhibit R2, Report of Dr Moffatt dated 20.12.19, pp 1-19

28. Dr Moffatt found that there was no evidence of perceptual abnormalities, or cognitive or neurological deficits. She commented that Mr Devine appeared to have some insight into the nature of her psychological problems. Dr Moffatt’s assessment included the following:

    “… The symptoms described by Ms Devine are consistent with the DSM-5 diagnoses of persistent depressive disorder and post traumatic stress disorder. Ms Devine has a long history of suffering from a depressive illness, and I suspect that this has been maintained in recent years by the presence of multiple medical comorbidities and a lack of continued evidence-based treatment for her depression. Her post traumatic stress symptoms appear to relate mainly to an assault in 2016.”[12]

    [12] Ibid, p 10

29. Dr Moffatt noted that a psychiatric diagnosis is a broadly based diagnostic measure and added a caution, namely that: “a diagnosis is not an automatic contraindication to participating in employment and other life roles. Furthermore, it does not explain the totality of the situation.”[13]

    [13] Ibid

30. Dr Moffatt summarised her opinion in this way: “it often appears that issues from an individual’s early years contribute to their personality style, psychological resilience and persisting psychological difficulties. I note particularly Ms Devine’s reports of intense anger and difficulty controlling this, a history of unstable relationships, affective instability, chronic feelings of emptiness, and indicators of a grandiose sense of self importance.

    Ms Devine has undergone counselling and medication treatment for her conditions. The outcome of these treatments is unclear. In my opinion, trauma-focused CBT may be of some assistance in treating her persisting trauma symptoms. Otherwise, however, the potential benefits of ongoing psychotherapy may be adversely affected by Ms Devine’s apparent personality style and relevant lack of insight into the role she plays in interpersonal difficulties.” [14]

    [14] Ibid

31. Dr Sher is Ms Devine’s general medical practitioner. In a certificate dated 14 September 2018 Dr Sher wrote that Ms Devine suffers from multiple conditions and needs support through the NDIS.[15] The conditions that he listed are post-traumatic stress disorder/depression, diabetes mellitus, immunoglobulin deficiency and a history of breast cancer. In a letter dated 10 June 2020 Dr Sher listed Ms Devine’s current, numerous medications which include escitalopram10 mg daily.[16] He also mentioned that her regular treatment regime includes consultations with a dermatologist, immunologist,  gynaecologist, neurologist, endocrinologist and ears, nose and throat specialist. A dermatologist, Dr Tyson, reported that Ms Devine’s dermatological history is complicated with considerable morbidity.[17]

    [15] Exhibit R1, T7, p 40

    [16] Exhibit A1, Report of Dr Nadir Sher dated 10.06.21

    [17] Exhibit A2, Report of Dr Chris Tyson dated 28.10.19

32. An occupational therapist, Ms Badenoch, provided a report on 15 August 2018 in support of an application for Ms Devine to be prescribed a replacement electric recliner chair. The medical history summarised in the report referred to symptoms which included  generalised body pain, and reduced sensation in feet, legs and fingertips. It was noted that Ms Devine uses a recliner chair for sleeping overnight in order to maintain an upright position due to respiratory conditions. The report noted that Ms Devine has cleaning assistance fortnightly and shopping through Country Health SA.[18]

    [18] Exhibit R1, Report of Tess Badenoch dated 15.08.2018

    Allied Health Evidence

33. Ms Wyatt, a manager with Centacare Catholic Country SA, provided a summary on11 October 2019 of counselling services provided to Ms Devine between December 2016 and June2019.[19] Ms Devine’s physical health issues, were also discussed during the counselling. The report noted that, as a victim of crime, she has struggled to trust people. Through counselling sessions it emerged that Ms Devine: “has experienced significant past trauma and as  a result struggles to self-regulate when feeling overwhelmed  and reacts to what  she considers crisis events with panic. Rather than stepping back and reviewing her options (she) will attempt to contact support services wanting immediate assistance. If this assistance is not available (she) struggles and  can make rash decisions that at  times have impacted her personal safety.”[20] The counselling services ceased only because of changes to Centacare’s funded practice arrangements.

    [19] Exhibit A2, Letter from Ms Wyatt (Centacare) dated 11.10.19

    [20]Ibid

1. Ms Cleary is a social worker who provided support to Ms Devine at Centacare. She provided a written report[21] and gave evidence by telephone. Key points from her report include: –

   Ms Devine: “struggles to self regulate, manage emotions and respond appropriately when feeling overwhelmed or in crisis. This often results in immediate need for assistance from services to overcome the crisis the question. The catalyst for these crises was often related to lack of access to medical treatment, lack of financial stability to maintain her current physical health and lack of support from treating professionals….Her medical issues took precedence many times, resulting in missed appointments or late cancellations. Thus, her physical health did become a significant focus all discussions.”[22]

   [21] Exhibit A1, Support letter from Emily Cleary dated 08.06.20

   [22] Ibid, p 1

2. Ms Cleary also reported that signs and symptoms for depression included :-

   “low mood, lack of concern for personal hygiene, difficulty functioning day to day, difficulty leaving the house and sleeping long hours often still  feeling unrested… a decline in her physical health was noted with discussions continuing to focus on her physical health, particularly her inability to manage her diabetes, immune disorder and ongoing depression due to a lack of access to personal care and support.”[23] 

   [23] Ibid, p 2

3. Ms Cleary gave evidence by telephone. She told the Tribunal that the initial basis for the referral related to past trauma which Ms Devine suffered, which had remained to greater and lesser degrees during the 2 1/2 years of professional support and which, more broadly, related to overall emotional health and well-being. Ms Cleary agreed that Ms Devine’s physical health and medical issues were a continuing and important theme in the therapeutic support. Her sessions with Ms Devine were a combination of face to face, Skype and telephone with a predominance of Skype or telephone from early 2018. In the last 6 months of counselling, appointments were booked on a fortnightly basis and averaged one per month. Some appointments were missed because of Ms Devine’s health problems or her attendances in Adelaide for medical treatment.

4. In her report Ms Cleary noted the complications which Ms Devine experiences as a result of her diabetes, depression and compromised immune system. In evidence, Ms Cleary said that she worked with Ms Devine to provide guidance about the best approach to handling stress, ways of identifying and accessing support networks, working out what was within her capacity to control and drawing upon past experiences to provide a focus on finding solutions and using her strengths to her advantage.

5. Ms Devine told the Tribunal she valued the counselling and support which Ms Cleary provided as it had a positive and calming effect. She did not want that counselling to come to an end. She said she has been on a waiting list for 6 years to see a psychiatrist and she is still waiting.

   CONSIDERATION

6. The Tribunal is satisfied on the evidence that the concessions by the NDIA regarding s 24(1)(a) and (b) of the NDIS Act are correct. The Tribunal finds that Ms Devine has a disability which results from impairments caused by persistent depressive disorder and post-traumatic stress disorder. The Tribunal finds that those impairments are permanent.

7. The next step is to decide whether Ms Devine meets the requirements which are set out in s 24(1)(c), (d) and (e) of the NDIS Act.

   Section 24(1)(c) NDIS Act - Whether the impairments result in substantially reduced functional capacity to undertake one or more of the following activities: communication, social interaction, learning, mobility, self-care, self-management

8. Each of the activities specified in s 24(1)(c) of the NDIS Act and their impact on functional capacity will be examined in relation to Ms Devine’s impairments.

9. The legislation requires:

   “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.”[24]

   [24] Mulligan v National Disability Insurance Agency [2015] FCA 544 at [55]

10. It is enough for a prospective participant to have substantially reduced functional capacity in relation to one activity: “If the outcome or effect is any of the outcomes or effects specified in r 5.8(a), (b) or (c), the deeming effect of r 5.8 operates”.[25]

    [25] Ibid, at [67]

11. In considering when an impairment results in substantially reduced functional capacity to undertake relevant activities, r 5.8 of the Rules provides that: -

    5.8     An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities—communication, social interaction, learning, mobility, self-care, self-management (see paragraph 5.1(c))—if its result is that:

    (d)the person is unable to participate effectively or completely in the activity, or to perform tasks or actions required to undertake or participate effectively or completely in the NDIS Activity, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications; or

    (e) the person usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in the  activity or to perform tasks or actions required to undertake or participate in the NDIS Activity; or

    (f) the person is unable to participate in the activity or to perform tasks or actions required to undertake or participate in the activity, even with assistive technology, equipment, home modifications or assistance from another person. 

12. In s 8.3.1 of the Operational Guidelines the following passage appears in relation to considering when an impairment results in substantially reduced functional capacity:

    “By itself, reliance on commonly used items will not result in a substantially reduced functional capacity to participate effectively or completely in an activity. Commonly used items include glasses, walking sticks, non-slip bathmats, bathroom grab rails, stair rails, age appropriate child safety locks, simple adapted kitchen utensils and dressing aids.

    In considering the role played by assistive technology, home modifications and equipment, the NDIA will consider specific needs arising from the prospective participant's impairment, and whether those needs are met (or need to be met) through the use of specialist disability aids and/or equipment.

    Such items would generally be specifically designed to assist in increasing the functional capacity and participation of people with disability and be formally prescribed by a medical practitioner, specialist clinician or allied health professional such as an occupational therapist, physiotherapist or speech therapist.

    When considering whether a person requires assistance from others to participate or perform tasks associated with an activity, the NDIA will have regard to whether a person's need for assistance is consistent with normal expectations of a person of a similar age. For example, children under the age of 2 will not necessarily have a substantially reduced functional capacity because they need assistance to provide for self-care needs.

    A person will be unable to participate effectively or completely in an activity if they cannot safely complete one or more of the tasks required to participate in an acceptable period. Undertaking a task more slowly or differently to others will not necessarily mean a person cannot participate effectively or completely in an activity.

    When considering whether a fluctuating or episodic impairment results in substantially reduced functional capacity to undertake relevant activities, the NDIA will consider the impact on the person's ability to function in the periods between acute episodes.[26]

    [26] Exhibit R1, T12, Operational Guidelines – Access, pp 113 – 114

13. In her closing written submission, Ms Devine contended that: – “the evidence given by my friends and professionals who know me well should be given more weight than the evidence given by Dr Mofffat. She only saw me for 75 minutes and I was having a good day. This was not enough time to get to know me and the difficulties I face on a day to day basis. She did not see me on the days after I saw her when I crashed.”[27] Dr Moffat, however, appears to acknowledge these fluctuations:

    “In my opinion, the prognosis is guarded. Ms Devine will continue to have periods of greater anxiety and depressive symptoms and other periods of relatively superior functioning. These periods are likely to be in relation to any number of psychosocial stressors or exacerbations of her concurrent medical conditions”[28]

    [27] Applicant’s closing written submission, p 5

    [28] Exhibit R2, Report of Dr Moffatt dated 20.12.19, pp 1-19

    Section 24(1)(c)(i) NDIS Act – Communication

14. The NDIA contended that Ms Devine does not have reduced functional capacity in communication. It was submitted that she is able to communicate effectively.

15. Section 8.3 of the Operational Guideline refers to communication as including: “being understood in spoken, written or sign language, understanding others and expressing needs and wants by gesture, speech or context appropriate to age”.[29]

    [29] Exhibit R1, T12, Operational Guideline – Access, p 113

16. Ms Devine’s evidence was that she enjoys writing. This includes writing down and recording her own reflections. She writes submissions, more in the form of briefing or background notes, for others. She opens and reads her letters. Ms Devine confirmed that she prepared and typed her statement of lived experience, the impact statement and diary notes. She agreed that she does not have difficulty communicating her wants and needs verbally and in writing.

17. Dr Moffatt reported that Ms Devine is able to communicate effectively with others and neither requires nor receives assistance from others to provide support with communication.

18. Ms Devine carried out important voluntary work as an advocate for children under the care of the Minister. The advocacy was associated with her involvement in the church. When the grandparents of the children occasionally go away, she looks after the children, perhaps for 2 or 3 days and nights. She sees this work as a contribution to keeping children within their family unit. Advocacy involves interactions with families, workers and courts. Counselling session were conducted at the church. If the church still existed in its previous setting she would continue to do the advocacy work

19. In evidence, Ms Devine agreed that she was seen as a leader in her church group and a lay preacher. There was pressure on her from the church community to get the church back together after it was disbanded. She emphasised that she saw the need for the church to avoid political involvement but there was pressure for it to be political.

20. A new church grouping has developed with a central location in Murray Bridge. Online activities occur across the community with participants from Port Augusta and suburbs in Adelaide. Ms Devine is the point of call for others in Port Augusta and she agreed that activities involve elements of preaching and counselling, including communication through video messages.

21. In evidence Dr Moffatt reiterated the view she expressed in in her report concerning Ms Devine’s functioning in communication, namely that there is no evidence that she has difficulty communicating her needs and wants. Dr Moffatt considered Ms Devine’s ability and history in preaching and taking advocacy roles support the finding the she is able to communicate. While Ms Devine: “states that she frequently will not follow instructions if she does not agree with them”[30],  Dr Moffatt confirmed that it is not for lack of understanding the nature of those instructions. 

    [30] Exhibit R2, Report of Dr Moffatt dated 20.12.19, p 7

22. In her written, closing statement Ms Devine commented as follows: “I may come across as articulate and that I can write well but there is a big difference between conscious writing and unconscious writing. Sometimes when I write I am unaware that I am doing it. When I have to write something important for myself, I find that I am unable to do so. I am able to express myself and keep myself together when I have to but I will fall to pieces afterwards. I experience a lot of anxiety when I need to express myself. This was shown when I experienced a panic attack while at the Tribunal.”[31]

    [31] Applicant’s closing written submission, p 1

23. In closing, Ms Devine also commented that she no longer advocates for children as she can no longer find the strength: “I’m not up to it anymore. I know they need help and I want to be able to help them, but my body won’t react to overthinking and I don’t want to let them down.”[32]

    [32] Ibid, p 1

24. Having heard Ms Devine give evidence, and accepting Dr Moffat’s conclusion about Ms Devine’s communication patterns, the Tribunal is satisfied that Ms Devine does not have a substantially reduced functional capacity to communicate within the meaning of s 24(1)(c)(i) of the NDIS Act.

    Section 24 (1)(c)(ii) – Social Interaction

25. Ms Devine wrote that:  “… on a good day I am great company. My off days, I will not even entertain the idea of leaving the house and I have more off days then I do great days… My home is my security, the only place I can shut out the world and hide.”[33]

    [33] Exhibit A4

26. Section 8.3 of the Operational Guideline refers to social interaction as including:

    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.[34]

    [34] Exhibit R1, T12, Operational Guideline – Access, p 113

27. Ms Devine submitted in closing that she no longer socialises unless she has a carer present with her and she characterised her presence in church activities as sharing her experience with people to uplift them, rather than a social encounter. In evidence Ms Devine said that she gets on well with her immediate neighbours. Ms Devine confirmed in cross-examination that she has a small group of close friends including the Robertsons, a good friend who lives around the corner, and her carer, Ms Blair. Sometimes her friends visit her at her place. It appears that she values their friendship considerably. Ms Blair said that Ms Devine trusts her. However it takes a great deal for Ms Devine to trust others  and she will physically back away from some people. She is not comfortable in crowds

28. Dr Moffatt reported that Ms Devine is able to interact with others in social situations and does not require additional assistance in that regard. Dr Moffatt wrote in her report as follows:

    “Ms Devine stated that she is active within her community and recently has been involved in a petition to the state government to disband the local council. She stated that she preaches at her church “once in a blue moon” and she acts as a legal advocate for aboriginal children. She said that she is often asked to comment on a particular issue and she will listen to all the other submissions before speaking last. She said that she asks the right questions and “ will not take no for an answer”. She considered that she has been involved in two or three such  situations in the past six months. Despite this, she said that she is uncomfortable near others. Ms Devine has regular contact with neighbours, friends and family, but stated that there is friction between her and her granddaughter since her brother’s death approximately 3 years ago”.[35]

    [35] Exhibit R2, Report of Dr Moffatt dated 20.12.19, p 7

29. Dr Moffatt maintained her view in evidence while also having her attention drawn to Ms Devine’s evidence about having a carer or friend with her when she goes shopping. Ms Devine questioned Dr Moffatt about her conclusion about social interaction. Dr Moffatt agreed that her impression was that Ms Devine enjoys the company of others in relation to activities that she is passionate about, such as activities which involve her church and the local council. She acknowledged that there were days when Ms Devine preferred her own company and did not want to interact with other people.

30. Ms Devine does not go to a shopping centre alone. In closing she also submitted that there is a considerable difference between making a short trip to the service station for cigarettes in contrast to going to a shopping centre with a friend or carer.

31. Mr Robertson and his partner have been friends with Ms Devine for about 5 years. In his written statement Mr Robertson described the difficulty which Ms Devine has in making friends and feeling part of her community. He mentioned that her relationship with some members of her family and some friends are strained. In evidence he said that she can appear to be demanding of other people on occasions. He has formed the impression that she is much more comfortable emotionally when she is at home than when she is away from home. In his statement he referred to her as is: “being prone to panic attacks and feels she is being judged when in company of others.”[36]

    [36] Exhibit A1, Support letter from Trevor Robertson

32. In evidence Mr Robertson told the Tribunal about an incident at a shopping centre when Ms Devine appeared anxious and insisted on not letting Mr Robertson and his partner out of her sight. In his statement he wrote that Ms Devine: “cannot stand up for very long without tiring, due to her medical issues. This makes all aspects of socialising and performing tasks even more problematic for her.”[37]

    [37] Ibid

33. Mr Robertson is not a participant in Ms Devine’s activities within the church. He is aware of her involvement which he noted in the context of the assistance which she gives to other people. He remarked upon her capacity and willingness to assist people in need and to offer support to them.

34. The Tribunal accepts Dr Moffat’s evidence about Ms Devine’s capacity for social interaction. While that capacity may fluctuate from time to time because of her impairments and physical health difficulties, the Tribunal is not satisfied that the impairment attributable to her psychiatric condition has resulted in a substantially reduced functional capacity for social interaction within the meaning of s 24(1)(c)(ii) of the NDIS Act.

    Section 24(1)(c)(iii) – Learning

35. Section 8.3 of the Operational Guideline states that learning “includes understanding and remembering information, learning new things, practising and using new skills.”[38]

    [38] Exhibit R1, T12, Operational Guideline – Access, p 113

36. In evidence Ms Devine said that problems with short-term memory and forgetfulness depend upon the level of fatigue. The problems are aggravated if she has a sleepless night. She related the question of remembering information to the opportunity and need for her to have meaningful and intelligent conversations with others. In her closing submission Ms Devine wrote: “I have my PhD in hospitality and I used to be able to learn new things but am unable to do these things now.”

37. Ms Devine said that she reads a lot. She enjoys reading books about history and science. She is interested in learning about relative theories of life, mythology, spirituality and religion. She reads and she watches programs on TV. She said that she has difficulty learning new skills. However this was in the context of overthinking issues and then not seeing them in terms of either/or, and viewing them, rather, with more subtlety.

38. Dr Moffatt did not conduct psychometric testing while concluding that there was no indication in the interview with Ms Devine of any cognitive impairment or impaired ability to learn, and no assistance is required to support her to learn new things.

39. In her report Dr Moffatt wrote: “Ms Devine stated that her community involvement keeps her focused and helps her brain “work overtime in the other direction”, meaning not focusing on her anxiety. She stated that her concentration and memory depend on her level of focus. She stated that she never has any difficulty concentrating when she is driving or when she feels that she has a purpose in life.”[39]

    [39] Exhibit R2, Report of Dr Moffatt dated 20.12.19, p 7

1. Dr Moffatt was referred to evidence that Ms Devine gave about being an avid reader with interests in literature about history, science and the universe. Dr Moffatt commented that this type of interest supports the notion that Ms Devine has functional capacity in learning. 

2. The Tribunal is not satisfied that there is satisfactory evidence of a reduced functional capacity, substantial or otherwise, in learning as required by s 24(1)(c)(iii) of the NDIS Act.

   Section 24(1)(c)(iv) – Mobility

3. Section 8.3 of the Operational Guideline provides a definition of mobility:

   this means the ability of a person to move around the home (crawling/walking) to undertake ordinary activities of daily living, getting in and out of bed or a chair, leaving the home, moving about in the community and performing other tasks requiring the use of limbs.[40]

   [40] Exhibit R1, T12, Operational Guideline – Access, p 113

4. Ms Devine told the Tribunal about driving. She does not have any restrictions on her driver’s licence. She has a history of driving a vehicle which she describes as a road train. It is a 3-seater truck which tows 3 or 4 “trailers” with capacity for seating 44 passengers. It was used   by her church for taking groups of people away on camps and elsewhere. Once or twice a year she drove the vehicle to drop the group at their destination and sometimes she will return days later to pick them up. With the changes in the church, those trips are not scheduled now. Ms Devine has an interest in and some capability for rally driving, although she has not done any rally driving for 3 or 4 years. Ms Devine said that she has an old vehicle which is currently registered. She drives it only very short distances, such as around the corner to the service station. She said that her carer drives her to medical appointments in Port Augusta.

5. Dr Moffatt’s comments about Ms Devine’s mobility include the following: “Ms Devine stated that she prefers not to use public transport as it makes her claustrophobic. She said, however, that if she can open a window she is okay… She considered that she can go shopping if it is in her own environment, but she finds it quite scary leaving the house at night time. She stated there is frequently a “hullabaloo” in her street and when she calls the police they often do not attend. She stated that she will go over to other houses where there is domestic violence occurring with her “baseball bat swinging”. She stated that she last did this approximately 2 weeks ago. She stated that she has no difficulty driving and in fact drove to Adelaide for the assessment. She was accompanied by her companion.”[41]

   [41] Exhibit R2, Report of Dr Moffatt dated 20.12.19, p 7

6. In evidence, Ms Devine confirmed her occasional forays with the baseball bat, which happens as a last resort when the disruption and noise in the neighbourhood becomes intolerable. It tends to settle down thereafter.

7. Ms Devine told the Tribunal that she drives her car, if she wants to, on local shopping trips. Ms Blair accompanies her on those occasions and also to medical appointments in regional centres which include Crystal Brook and Port Pirie. On her regular trips to Adelaide to attend medical appointments, generally she shares the driving of the car and she is generally accompanied by a friend. She drives occasionally to Whyalla to visit her brother. 

8. In her closing submission Ms Devine acknowledged that her difficulty with mobility is affected by more than just her diabetes. She referred to rheumatoid arthritis in her knee, her excessive weight, and problems with a shoulder.[42]

   [42] Applicant’s closing written submission, p 1

9. The Tribunal finds that Ms Devine’s impairment from a psychiatric condition has not substantially reduced her functional capacity in mobility within the meaning of s 24(1)(c)(iv) of the NDIS Act.

   Section 24(1)(c)(v) – Self Care

10. Section 8.3 of the Operational Guideline refers to self-care as meaning:

    activities related to personal care, hygiene, grooming and feeding oneself, including showering, bathing, dressing, eating, toileting, grooming, caring for own health care needs.[43]

    [43] Exhibit R1, T12, Operational Guideline – Access, 113

11. Ms Devine told the Tribunal that she is obsessive about cleanliness in her house. It can never be clean enough for her standards. She worries about cleanliness and sometimes sits up all night worrying about it and wearing herself out as a consequence. In terms of personal hygiene she avoids taking showers as she does not want to dirty the bathroom, however she will take a shower when she needs to. Sometimes she will cancel an appointment because she does not want to take a shower. She views motivation as being part of the problem. In her words: “it’s more than just being lazy… I can’t get my brain to make me do things.”[44] Ms Devine confirmed that she manages her toileting and hygiene.

    [44] Applicant’s closing written submission, p 2

12. Ms Devine said that she organises and prepares her own meals sometimes. Ms Devine said that she was qualified as a chef. Cooking for herself is often an activity that she cannot be bothered doing. However she loves cooking for her grandchildren. An issue for her is the prohibitive cost of food, such as organic food, which she prefers.

13. In a written statement Ms Devine discussed her attempts since 2018 to improve her health and diet. She canvassed the research which she had undertaken about healthy nutrition. For a while her attempts were successful and she lost a significant amount of weight. Then she “slipped back” into a depressed state and her weight increased again. She appeared stuck in a situation which she described: “it’s criminal because the food I need costs 3 times more than the food you buy in the supermarket. What makes it worse, I can’t even afford the supermarket food.”[45]

    [45] Exhibit A4

14. Dr Moffatt reported that Ms Devine is able to manage her own self-care and neither receives nor requires support. She added: “Ms Devine described a reduction in some aspects of regular self-care, but that she can force herself to perform those activities if required”.[46]

    [46] Exhibit R2, Report of Dr Moffatt dated 20.12.19, p 13

15. Dr Moffatt’s report included the following comment: “Ms Devine reported that she sometimes has trouble remembering to take her night time medications. She often cannot be bothered to have a shower but can force herself if need be. She otherwise maintains cleanness using wet wipes. She told me that she has alarms on her stovetop and that they switch themselves off after a certain period of time. She is able to administer her own insulin, but stated that she is often unmotivated with regards to taking her blood sugar levels”.[47]

    [47] Ibid, p 8

16. In oral evidence Dr Moffatt confirmed the conclusion from her report. She acknowledged that Ms Devine’s lack of motivation could relate to a psychiatric condition. Ms Devine did not have a full-time carer at the time that she was examined by Dr Moffatt. The current involvement of a carer did not persuade Dr Moffatt that there was a functional problem with self-care from a psychiatric perspective.

17. In her role as carer Ms Blair has a daily routine during the week for checking up on Ms Devine and making sure that she is well. Ms Blair visits Ms Devine at her home in the morning and provides assistance, if it is needed, with showering and household chores such as washing and feeding the chickens. She visits Ms Devine in the afternoon. The care which she provides also includes emotional and social support. Ms Blair is available to provide support when and where it is needed. The hours vary according to the nature and level of support that is required. On weekends when Ms Blair has rostered work she makes sure that she visits Ms Devine at some point during the day.

18. Ms Blair wrote about Ms Devine’s episodes of depression and anxiety when: “she has needed help getting up or just will not sleep and day-to-day routines.”[48] Ms Blair spends time with Ms Devine and tries to calm her down in those situations. Ms Blair spoke of Ms Devine having the capacity to manage within her limitations and with a determination to push through and address her anxieties. Ms Devine spends a considerable amount of time on her computer which Ms Blair described as keeping her focused and providing a lifeline for her.

    [48] Exhibit A1, Support letter from Lorraine Blair dated 03.06.2020, p 1

19. Mr Robertson told the Tribunal that he and his partner visit Ms Devine occasionally. Sometimes it might be once a week and at other times once per month. Generally the visits are prearranged. They assist her with some simple household tasks. Mr Robertson also helps with some outdoor activities, notably keeping an eye on chickens that she has in her back yard. In his statement he indicated that she: “seems to forget to eat and shop for groceries… puts off medical appointments mostly because of financial restraints and smokes cigarettes and vapes when she is very stressed, although her health condition suggests she should not. When (she) has a decision to make, she seeks approval of others in her decision and even a hint of disagreement can make her very unsure of her original decision. (She) seems to run out of money days before her next payment is due to arrive. This makes her compromise on basic grocery needs.”[49]

    [49] Exhibit A1, Support letter from Trevor Robertson

20. In weighing up the evidence about self-care, in particular the evidence about Ms Devine’s attention to personal care, hygiene, grooming and feeding, the Tribunal considers that the impact from her mental health impairment has a variable impact on elements of self-care. However the Tribunal is not satisfied that Ms Devine’s impairment attributable to a psychiatric condition has resulted in a substantially reduced functional capacity in self-care within the meaning of s 24(1)(c)(iv) of the NDIS Act.

    Section 24(1)(c)(vi) – Self-management

21. The Operational Guideline refers to self-management as meaning:

    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.[50]

    [50] Exhibit R1, T12, Operational Guideline – Access, p 113

22. Ms Devine told the Tribunal that she has a financial counsellor service which was organised with Uniting Care and she has an arrangement for auto payment of bills.

23. Dr Moffatt reported that Ms Devine does not receive or require assistance with regard to self-management. She commented that Ms Devine has insight into her ability to make appropriate decisions. There is no significant functional impact with self-limiting behaviours and she is able to: “function and make decisions at a high level of complexity.”[51] Ms Devine had reported anxiety about lack of finances, however she did not describe difficulties with understanding her income and expenditure. In evidence to the Tribunal Dr Moffatt maintained her view that Ms Devine does not  have  a psychiatric incapacity in terms of self-management.

    [51] Exhibit R2, Report of Dr Moffatt dated 20.12.19, p 14

24. In closing submissions, Ms Devine submitted that her carer organises her calendar. She submitted that she has difficulty managing her finances which are under the oversight of a financial counsellor.[52]

    [52] Applicant’s closing written submission, p 2

25. Ms Cleary noted in the counselling sessions that Ms Devine’s feelings: “were largely attributed to ill-health and the ongoing concern of financial hardship due to the strain these trips put on her finances. In most instances upon her return from Adelaide, (she) would be isolated at home with minimal support; largely as a result of financial hardship and being physically and emotionally drained from her treatment. This was the topic of many sessions.”[53]

    [53] Exhibit A1, Support letter from Emily Cleary dated 08.06.20, p 1

26. The key consideration in the interpretation of this Operational Guideline is a person’s ‘cognitive capacity’, which relates to making decisions, taking responsibility and solving problems.  The evidence clearly confirms Ms Devine’s cognitive capacity in those domains. Within her other health constraints and to the best of her ability, she is able to plan, manage, consult, engage and understand about the need for planning, organising and taking personal responsibility.

27. The Tribunal is not satisfied that Ms Devine’s impairment attributable to a psychiatric condition has resulted in a significantly reduced functional capacity in self-management as required by s 24(1)(c)(vi) of the NDIS Act.

    Section 24 (1)(c) Summary

28. The Tribunal is not satisfied that Ms Devine’s impairments have resulted in substantial reduction of her functional capacity or her psychosocial functioning in relation to any of the activities which are set out in s 24(1)(c) of the Act. The Tribunal has considered the factors set out in the NDIS Rule 5.8. and is satisfied that Ms Devine does not fall within any of the sub paragraphs demonstrating substantially reduced functional capacity.[54]

    [54] Kilgallin and National Disability Insurance Agency [2017] AATA 186 at [26]

29. Accordingly, the Tribunal concludes that Ms Devine does not meet the requirements under s 24(1)(c) of the Act.

    Section 24(1)(d) – Social or Economic Participation

30. Section 8.4 of the Operational Guideline provides in part that:

    This disability requirement does not require a person's impairment to reduce, substantially reduce or affect to any degree their social or economic participation. Rather, the impairment merely needs to affect the person's social or economic participation.[55]

    [55] Exhibit R1, T12, Operational Guideline – Access, p 114

31. The Tribunal finds that Ms Devine meets the requirements of s 24(1)(d) of the NDIS Act as her mental health impairments affect her capacity for social and economic participation.

    Section 24(1)(e) - the person is likely to require support under the National Disability Insurance Scheme for the person's lifetime

32. In order to become a participant in the NDIS an applicant must meet each of the paragraphs in s 24(1) of the NDIS Act. Ms Devine does not meet the requirements of s 24(1)(c) of the NDIS Act to become a participant in the NDIS. Accordingly it is not necessary for the Tribunal to decide whether she meets the criteria in s 24(1)(e) of the NDIS Act.

    DISABILITY REQUIREMENTS - CONCLUSION

33. Ms Devine meets the age requirements under s 22 and the residence requirements under s 23 of the NDIS Act.

34. Ms Devine meets the requirements under s 24(1)(a), (b), and (d) of the NDIS Act.

35. Ms Devine does not satisfy the requirements under s 24(1)(c) the NDIS Act. She must satisfy all the requirements in s 24(1) in order to meet the disability requirements. Accordingly she does not fulfil the disability access criteria to become a participant in the NDIS.

    EARLY INTERVENTION REQUIREMENTS

36. Section 25 of the NDIS Act sets out the requirements for access to the NDIS under the early intervention criteria. Those provisions have been set out earlier.

37. Section 2.5(b) of the NDIS Rules includes the following passage about the rationale for the early intervention requirements as an alternative to accessing the scheme through the disability requirements: 

    … A person can access the NDIS through the early intervention requirements without having substantially reduced functional capacity. Instead, the early intervention requirements consider 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.

38. As already discussed and determined, Ms Devine has an impairment which is attributable to a psychiatric condition, the impairment is permanent and therefore s 25(1)(a) of the NDIS Act is satisfied.

39. Section 9 of the Operational Guidelines provides guidance about the purpose and potential benefits of early intervention. It states:

    Early intervention support is available to both children and adults who meet the early intervention requirements. The intention of early intervention is to alleviate the impact of a person’s impairment upon their functional capacity by providing support at the earliest possible stage. Early intervention support is also intended to benefit a person by reducing their future needs for supports.[56]

    [56] Exhibit R1, T12 E, Operational Guideline – Access, p 116

40. Provision of support for Ms Devine now and into the future does not come within the concept of early intervention support being provided “at the earliest possible stage.”

41. The Tribunal is not satisfied that the provision of early intervention supports which is contemplated by s 25(1)(b) & (c) of the NDIS Act is applicable to Ms Devine’s conditions.

    DECISION

42. The reviewable decision is affirmed.

109.    I certify that the preceding 108  [one hundred and eight]  paragraphs are a true copy of the reasons for the decision herein of Member Thompson.

..................[Sgnd]..............................

Administrative Assistant Legal

Dated    16 July 2021  

Dates of hearing:  16 & 17 December 2020, 4 February 2021

Applicant’s Representative:  Self-represented

Respondent’s Representative:                   Paul D’Assumpcao