DQKZ and National Disability Insurance Agency

Case [2024] AATA 2276

DQKZ and National Disability Insurance Agency [2024] AATA 2276 (5 July 2024)

Division:National Disability Insurance Agency Division 

File Number(s):       2021/4331

Re: DQKZ

APPLICANT

Chief Executive Officer, National Disability Insurance AgencyAnd  

RESPONDENT

DECISION

Tribunal:Member P French 

Date:5 July 2024

Place:Sydney

The decision under review that the Applicant does not meet the disability or early intervention requirements for access to the National Disability Insurance Scheme is affirmed pursuant to s 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).

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Member P French 

Catchwords  

NATIONAL DISABILITY INSURANCE SCHEME – National Disability Insurance Agency – reviewable decision of Chief Executive Officer – becoming a participant – access request – whether applicant meets the access criteria – whether applicant meets the disability requirements – whether applicant has a disability attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or has one or more impairments to which a psychosocial disability is attributable – whether impairments are, or are likely to be, permanent – whether impairment or impairments result in substantially reduced functional capacity – whether applicant meets the early intervention requirements – whether impairments are, or are likely to be, permanent – whether early intervention supports would likely have a significant impact on the course of impairment – whether any beneficial supports are appropriately provided by the NDIS – disability and early intervention requirements not met – reviewable decision affirmed

Legislation

Acts Interpretation Act 1901 (Cth), s 15AB

Administrative Appeals Tribunal Act 1975 (Cth), s 25, 43
National Disability Insurance Scheme Act 2013 (Cth), s 18, 19, 20, 21, 24, 25, 209
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth), Parts 2, 5, 6, 7; r 8.4

Cases

Beezley v Repatriation Commission (2015) FCAFC 165; [2015] 150 ALD 11

DQKZ and National Disability Insurance Agency (No.1) [2024] AATA 2271
HPSC and National Disability Insurance Agency [2021] AATA 727
Mulligan v National Disability Insurance Agency (2015) 233 FCR 201
Mulligan and National Disability Insurance Agency (2015) AATA 974
National Disability Insurance Agency v Davis [2022] FCA 1002
National Disability Insurance Agency v Foster (2023) FCAFC 11; (2003) FCR 201
Newell and the National Disability Insurance Agency [2023] AATA 4140
Shi v Migration Agents Regulation Authority (2008) 248 ALR 390
Sutherland and National Disability Insurance Agency [2024] AATA 411

Timofticiuc and National Disability Insurance Agency (2021) AATA 3015

Secondary Materials

Australian Institute of Health and Welfare (2003), ICF Australian User Guide, Version 1.0, Disability Series, (AIHW Cat. No DIS33, Canberra.

Constitution of the World Health Organisation [1948] ATS 7.
National Disability Insurance Scheme – Operational Guidelines – Access
World Health Organisation, (2011), International Classification of Functioning, Disability and Health, Geneva.
World Health Organisation, (2013), How to use the ICF: A practical manual for using the International Classification of Functioning, Disability and Health (ICF): Exposure Draft for Comment, Geneva.

World Health Organisation, (2002), Towards a Common Language for Disability, Functioning and Health, ICF, Geneva (WHO/EIP/GPE/CAS/0.1.3).

REASONS FOR DECISION

Member P French

4 July 2024

Introduction

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DQKZ and National Disability Insurance Agency [2024] AATA 2276
Case
[2024] AATA 2276
Decision Date

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered an application by DQKZ (the applicant) for review of a decision by the National Disability Insurance Agency (NDIA) to refuse his request to become a participant in the National Disability Insurance Scheme (NDIS). The applicant sought access to the NDIS, and the NDIA had determined that he did not meet the eligibility criteria. The applicant contended that the Tribunal’s procedural directions had deprived him of a procedurally fair opportunity to present additional evidence.

The primary legal issues before the Tribunal were whether the applicant met the disability requirements and the early intervention requirements for access to the NDIS. Specifically, the Tribunal had to determine if the applicant had a disability attributable to one or more specified impairments, or a psychosocial disability attributable to such impairments, and if these impairments were, or were likely to be, permanent and resulted in a substantially reduced functional capacity. For early intervention, the Tribunal considered if the impairments were, or were likely to be, permanent and if early intervention supports would likely have a significant impact on the course of the impairment, and whether beneficial supports were appropriately provided by the NDIS.

Member P French, in his reasons, affirmed the NDIA’s decision. The Tribunal found that the applicant did not meet the disability requirements for NDIS access, as his impairments were not considered permanent and did not result in a substantially reduced functional capacity. Furthermore, the Tribunal was not satisfied that the applicant met the early intervention requirements, concluding that the impairments were not likely to be permanent to the extent required for early intervention supports to have a significant impact. Consequently, the Tribunal affirmed the NDIA’s decision that the applicant was not eligible to be a participant in the NDIS.

Orders

Orders of the court

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Background

Background to the litigation

The Applicant also made various statements to the effect that the Tribunal’s procedural directions deprived him of a procedurally fair opportunity to present additional evidence in support of his access request. I have dealt with that complaint at some length in my reasons in relation to the recusal application, and rely on what I said there, without repeating it here.[37][37] DQKZ (No.1) at [73] – [82], [89] – [90] and [109] – [110].Background facts The Applicant is a man, now 35 years of age. On the date his NDIS Access Request was made he was 32 years and 3 months old.[38] He is an Australian Citizen and was so on the date his NDIS Access Request was made.[39][38] T Documents, Tab T18, page 80. In his Access Request, the Applicant provided consent to the Agency to verify his birthdate with Centrelink (T Documents, T18, page 83) which it did (T Documents, T20, page 108).[39] T Documents, T18, page 80. In his Access Request, the Applicant provided consent to the Agency to verify his residency status with Centrelink (T Documents, T18, page 83), which it did (T Documents, T20, page 108). Since April 2022, the Applicant has lived alone in a two-bedroom, two-level, townhouse that he rents on a subsidised basis from a social housing provider (the Applicant’s home).[40] The Applicant’s home is in a rural town in Victoria that is approximately 90kms from Melbourne.[41] He has a driver’s license[42] and owns a motor vehicle.[43] He maintains regular contact with his mother.[44] He is estranged from his father from whom he suffered abuse as a child.[45] He has an adult brother and sister from whom he is also estranged.[46][40] Elliott Mate, Occupational Therapy Functional Capacity Assessment report, 17 October 2013, Tab R27 of Agency Bundle (the Mate report) at pages 197 and 199.[41] Transcript, Day 2, page 13, line 3.[42] Transcript, Day 2, page 11, line 31.[43] Agency Bundle, Tab R6, page 109.[44] Transcript, Day 1, page 22 and lines 24 – 38.[45] Agency Bundle, Tab R31, page 255.[46] Agency Bundle, Tab R6. This proceeding arises from the Applicant’s second Access Request to the NDIS.[47] His first application appears to have been made on 3 July 2018.[48][47] This appears from the Applicant’s Personal and Carer Impact Statement (Applicant’s PCIS) at page 69, and from communications with the Agency in relation to his present application, which are in the Agency Bundle at Tab 7, p 117.[48] That is the date stated by the Applicant in his Application for Review: Agency Bundle, Tab R4, page 51; although a Supporting Evidence Form completed by Dr Waheed Ahmed which is in the T Documents, T5, at pages 43 – 49 is dated 21 July 2018. When he made this Access Request for the NDIS, the Applicant lived with his mother, brother, and sister in another Victorian rural town (residence at the time of application).[49] His sister moved out shortly after his application was made. His mother and brother still live at that location, which is approximately 70km by car from the Applicant’s current home. [49] T Documents, Tab T18, page 80; Agency Bundle, Applicant’s PCIS, pages 67 – 113.

Evidence

Evidence Before The Court

I then proceeded to conduct the substantive review.Evidence and hearing I have considered the following material in reaching my determination:Applicant(i)Applicant’s Statement of Facts, Issues and Contentions (SFIC) dated 6 May 2024 (Exhibit 1),(ii)Applicant’s bundle of evidence (various dates), (Exhibit 3),Agency(i)Agency’s Statement of Facts, Issues and Contentions dated 19 April 2024 (Exhibit 2),(ii)Agency Tender Bundle filed 7 May 2024 (Exhibit 4). This included:- at Tab R6, the Applicant’s “Personal and Carer Impact Statement” (PCIS), undated, but submitted with his NDIS Access Request Form in April 2021,- at Tab R20, a report prepared at the Applicant’s request by Ms Bulmer, Occupational Therapist, dated 10 February 2021, and submitted with his NDIS Access Request Form in April 2021, and- at Tab R27 an Occupational Therapy Functional Capacity Assessment Report prepared by Elliott Mate, Occupational Therapist, Axiom Health Pty Ltd, dated 17 October 2023 (the Agency’s independent expert report), (iii)“T Documents” required to be filed by the Agency by ss 37 and 38AA of the AAT Act (various dates) (Exhibit 5). The Agency’s Tender Bundle included several documents generated at various times by the Applicant’s treating professionals which had been obtained under summonses issued on the application of the Agency in June 2022. The issue of those summonses, and the Agency’s access to the documents that were produced in response to them, became the subject of belated controversy between the parties from February 2024 up to the date of the hearing. The details of this controversy are set out in my decision in relation to the Applicant’s recusal application and need not be repeated here. However, it is appropriate to record here that in pre-hearing communications with the Tribunal and the Agency, the Applicant indicated an intention of object to the admission into evidence of the material obtained by the Agency under summons and to the Agency’s independent expert report.[3] That intention is also recorded in the Applicant’s Statement of Facts, Issues and Contentions filed on 6 May 2024.[4][3] This correspondence is set out in my reasons in the recusal application (DQKZ No.1) at paragraphs 29 - 45.[4] Applicant’s Statement of Facts, Issues and Contentions (Exhibit 1) (Applicant’s SFIC) at [50] – [52]. Notwithstanding that, as things stood at the end of the hearing, the Applicant did not press any objection to the admission into evidence of any document contained in the Agency Bundle or the T Documents.[5] He specifically withdrew any objection to the Agency’s tender of Mr Mate’s expert report, and further, submitted it ought to be before the Tribunal in unredacted form.[6] He also contended that all of the material that had been produced to the Tribunal in response to the summonses that had been issued to his treating professionals in June 2022 at the request of the Agency should be in evidence.[7] I indicated that this material would be considered to the extent that it was included in the T Documents, the Agency Bundle, or was otherwise specifically identified by the parties in submissions as being relevant to an issue to be determined.[8][5] Transcript of Proceedings, Day 2, 9 May 2024 (Transcript, Day 2), page 28, line 9 -14.[6] Transcript, Day 2, page 17, lines 47 – 38; page 28, line 15.[7] Transcript, Day 2, page 28, lines 9 – 33.[8] Transcript, Day 2, page 28, line 40; page 29, lines 4 - 7.

Decision

Reasons for decision

For the foregoing reasons, I cannot be satisfied that the Applicant meets the early intervention requirements for the NDIS.Conclusion For the foregoing reasons I am not satisfied that the Applicant, on his current presentation, is a person for whom the NDIS is intended. He does not meet either disability or early intervention requirements for access to the scheme. The delegate of the CEO reached the same conclusion in her decision following internal review. I therefore affirm that decision as correct.

Ratio Decidendi

Legal Principle Established

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