DTFW and National Disability Insurance Agency

[2023] AATA 2837

DTFW and National Disability Insurance Agency [2023] AATA 2837 (7 September 2023)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number:          2021/5858

Re:DTFW  

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:7 September 2023

Place:Melbourne

The decision under review is affirmed.

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

Dr L Bygrave, Member

CATCHWORDS

NATIONAL DISABILITY INSURANCE SCHEME – access to scheme – whether the Applicant meets the disability requirements – whether the Applicant meets the early intervention requirements – multiple conditions including post-traumatic stress disorder, anxiety and depression/ persistent depressive disorder, acquired brain injury, chronic obstructive pulmonary disease, cardiovascular disease and Scheuermann’s Disease/lumbar spine pain – whether impairments are permanent – whether impairments result in substantially reduced functional capacity – disability criteria not met – early intervention criteria not met – decision under review affirmed

LEGISLATION

National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)

CASES
Madelaine v National Disability Insurance Agency [2020] AATA 4025

National Disability Insurance Agency v Davis [2022] FCA 1002

SECONDARY MATERIALS

Applying to the NDIS (Access Guideline) dated 23 June 2023

REASONS FOR DECISION

Dr L Bygrave, Member

7 September 2023

INTRODUCTION

1. The Applicant, DTFW, is a male aged 52 years who has made an application to become a participant in the National Disability Insurance Scheme (the NDIS). An Access Request – Supporting Evidence Form completed by the Applicant’s general practitioner, Dr ‘A’, on 14 April 2021 listed the Applicant’s impairments as:

   ·‘anxiety & depression’, ‘acquired brain injury – 1992’ and ‘memory impairment, injuries 1992’;

   ·‘COPD [chronic obstructive pulmonary disease] – severe shortness of breath’; and

   ·‘cardiovascular disease – 2007 non-ST segment elevation myocardial infarction’.[1]

   [1] Exhibit T-T10, 37.

2. On 3 May 2021, a delegate of the Chief Executive Officer (CEO) of the National Disability Insurance Agency (the NDIA) determined that the Applicant did not meet the access criteria in sections 21–25 of the National Disability Insurance Scheme Act 2013 (Cth) (the Act). The Applicant subsequently requested an internal review and the NDIA affirmed the decision on 30 July 2021 (the internal review decision).

3. On 16 August 2021, the Applicant lodged an application for review of the internal review decision to the NDIS Division of the Administrative Appeals Tribunal (the Tribunal). The Tribunal has jurisdiction to review the internal review decision under section 103 of the Act.

4. The matter was heard by the Tribunal on 26 July 2023 by videoconference. The Applicant did not have legal representation; he attended the hearing and gave oral evidence with the support of his fiancé, Ms ‘L’.

   RELEVANT LEGISLATION

5. The objects and principles set out in the Act provide guidance on interpreting the statute.

6. The objects of the Act listed in section 3 include giving effect to Australia’s obligations under the Convention on the Rights of Persons with Disabilities and facilitating the development of a nationally consistent approach to the access to supports for people with disability. Paragraph 3(3)(b) of the Act further states that, in giving effect to the objects of the Act, regard is to be had to the need to ensure the financial sustainability of the NDIS.

7. The general principles guiding actions under the Act are contained in section 4 and include affirming that people with disability and their families and carers should have certainty that people with disability will receive the care and support they need over their lifetime.

   The access criteria

8. The access criteria to become a participant in the NDIS are summarised in subsection 21(1) of the Act as follows:

   21 When a person meets the access criteria

   (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).

9. The Applicant satisfies the age requirements in section 22 and the residence requirements in section 23 of the Act. Therefore, the sole issue for consideration in this matter is whether the Applicant satisfies either the disability requirements in section 24 of the Act or the early intervention requirements in section 25 of the Act.

10. Section 24 of the Act states the criteria to meet the disability requirements as follows:

    24 Disability requirements

    (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.

    [emphasis in original]

11. The early intervention requirements are stipulated in section 25 of the Act as follows:

    25 Early intervention requirements

    (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 to which a psychosocial disability is attributable and that 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.

    (1A) For the purposes of subparagraph (1)(a)(i) or (ii), an impairment or impairments that are episodic or fluctuating may be taken to be permanent despite the episodic or fluctuating nature of the impairments.

    (2) The CEO is taken to be satisfied as mentioned in paragraphs (1)(b) and (c) if one or more of the person’s impairments are prescribed by the National Disability Insurance Scheme rules for the purposes of this subsection.

    (3) Despite subsections (1) and (2), the person does not meet the early intervention requirements if the CEO is satisfied that early intervention support for the person is not most appropriately funded or provided through the National Disability Insurance Scheme, and is more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or through systems of service delivery or support services offered:

    (a) as part of a universal service obligation; or

    (b) in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.

    [emphasis in original]

12. Subsection 209(1) of the Act provides for the Minister to make rules prescribing matters: the relevant rules for this matter are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (the Participant Rules), which form part of the legislation.

13. Operational Guidelines, which represent government policy, are written by the CEO of the NDIA: the relevant Operational Guideline is Applying to the NDIS (Access Guideline) dated 23 June 2023.

    EVIDENCE

14. The evidence before the Tribunal comprises:

    ·the oral evidence of the Applicant and Ms ‘L’ at the hearing on 26 July 2023; and

    ·reports from medical practitioners and an occupational therapist who have treated and/or assessed the Applicant.

    Evidence of the Applicant and Ms ‘L’

15. The Applicant lives alone with his dogs in a one-bedroom unit in suburban Melbourne. His only social relationship is with Ms ‘L’, who he has known since childhood, and they have been in a relationship for the past four years.[2] The Applicant has no current relationships with any other family members or friends: he has two children from relationships with former partners but does not see either of them, which is distressing for him. His mother, who he was very close to, passed away in 2019.

    [2] Exhibit A1.

16. The Applicant had a difficult upbringing. His father was an alcoholic, and he attended school to year 9 and then worked in a range of jobs including as a mechanic, a cook and furniture-maker. The Applicant has a history of substance use that includes heavy alcohol use from a young age, and using cannabis, amphetamines and heroin. He has served time in jail and had community corrections orders for assault and associated charges.[3]

    [3] Exhibit T-T4, 23.

17. The Applicant was the victim of a physical assault in 1992 (he was about 22 years old). He told the Tribunal that after this assault, his ‘life stopped’ and he has only ‘existed since then’. He said he suffered short term memory loss, became ‘a recluse’ and could not leave his home. He has not been employed since this assault and has been in receipt of disability support pension from 1997.

18. The Applicant is able to leave his home in the company of Ms ‘L’ to go shopping and attend medical appointments about once a fortnight. He and Ms ‘L’ also travelled to Darwin in 2019 to celebrate his birthday; he said he was able to undertake this trip because he was accompanied by Ms ‘L’ and he temporarily increased his medication.

19. At the hearing, the Applicant provided the following evidence in relation to treatment he has undertaken for his medical conditions.

20. The Applicant said he has engaged with psychologists for treatment of his diagnosed post-traumatic stress disorder (PTSD), anxiety and depression since about 2016. He said that attending appointments in person can be difficult because sometimes he is unable to leave his home due to his anxiety; however, access to counselling has become easier since he has been able to attend appointments by telehealth. He said he currently sees Mr ‘F’, a psychologist, under a ‘GP Mental Health Care Plan’ and intends to continue this treatment. He said that, although some therapy strategies have assisted his social isolation, he is ‘always scared’ and remains unable to leave his unit without Ms ‘L’. He takes medications for his anxiety (Valium and Effexor) and, although he has trialled ‘everything’ in terms of other medications, his view is that his current medications ‘work’.

21. The Applicant said he ceased using illicit substances years ago. He also reduced his alcohol use about 12 months ago and has not consumed any alcohol for ‘months’. He said he is still ‘adjusting to not having alcohol’.

22. The Applicant smokes approximately 15 ‘rollies’/ cigarettes a day. He said that he knows smoking affects his breathing, but he has ‘no intention to stop’ as it provides him ‘stress relief’. He said he has ‘not really’ trialled nicotine replacement therapies. The Applicant uses puffer medication to assist his breathing: however, he has recently started using a new puffer twice daily as he experienced ‘erratic heartbeats’ from his previous puffer.

23. The Applicant said he has experienced long-term back pain. He has had two operations to ‘fuse the pain nerve’ but his pain became ‘worse’ after the second operation. He confirmed that he self-discharged from a three-week pain management residential program in 2014 after three days but said he continues to use strategies of breathing, stretching and walking around his unit. He said he walks slowly – ‘like a cripple’ – but does not use a walking stick.

24. The Applicant said that he is seeking access to the NDIS for a ‘hand up’ and so the ‘future won’t be so hard’. He said he wants supports in place for his mental and physical health as he knows his health will deteriorate. He particularly seeks support with social interaction due to his social isolation and support to reduce the burden on Ms ‘L’ who undertakes many of his household chores.

25. Ms ‘L’, in addition to providing support and reassurance to the Applicant during the hearing, also gave very brief oral evidence to the Tribunal. Ms ‘L’ said she lives separately to the Applicant – she has her ‘own life’ and health issues – but visits him once or twice a week and does household chores including the Applicant’s laundry and changing the bed sheets, cleaning and vacuuming, collecting his medications and making his medical appointments.

    Medical evidence

26. The medical evidence refers to the Applicant having the following conditions:

    ·PTSD, anxiety and depression/ persistent depressive disorder;

    ·acquired brain injury and memory impairment;

    ·COPD, asthma, emphysema and severe shortness of breath;

    ·cardiovascular disease, non-ST segment elevation myocardial infarction; and

    ·Scheuermann’s disease/ lumbar spine pain.[4]

    [4] Exhibits T-T10, 37; EB, 560.

    PTSD, anxiety and depression

27. The following paragraphs set out the medical reports in chronological order that refer to the Applicant’s diagnoses of PTSD, anxiety and depression/ persistent depressive disorder.

28. Dr ‘B’ is a clinical psychologist who provided brief written reports dated 4 April 2016, 1 July 2016 and 17 February 2022.[5] These reports state that Dr ‘B’ treated the Applicant from 1 April 2016 to 15 July 2016 (eight sessions) for ‘management of his anxiety’.[6]

    [5] Exhibits T-T3, 22; T5, 27; and EB, 764.

    [6] Exhibit T-T5, 27.

29. A clinical neuropsychology registrar, Dr ‘C’, provided a comprehensive written report dated 16 May 2016 after the Applicant was referred to him for a neuropsychological assessment by community correctional services. Dr ‘C’ wrote that the purpose of the referral was to assess the Applicant ‘for the presence of an acquired brain injury and to characterise [his] cognitive profile in the context of a past history of substance use and assault’.[7] Dr ‘C reported about and assessed the Applicant’s psychosocial, educational and occupational history, substance use, forensic history, mental health history, medical history, presenting complaints and presentation at the assessment, and the outcomes from psychometric and intelligence testing. Dr ‘C’ provided the following ‘summary and opinion’ about the Applicant:

    A formal neuropsychological assessment revealed mild to moderate difficulties in the areas of verbal learning and memory, fluctuating recognition, mild difficulties with working memory and aspects of executive functioning including divided attention, self-monitoring and idea generation. Premorbid weaknesses in the verbal intellectual and academic domains were also observed. This was on a background of intact attention, information processing speed, nonverbal intellectual abilities, visual memory, and planning abilities. On a self-reported measure of mood, [the Applicant] endorsed items indicating he was experiencing moderate symptoms of anxiety and depression and mild symptoms of stress in the week prior to assessment.

    Based on the current assessment, history and the information available, [the Applicant] presents with several mild to moderate cognitive weaknesses that could reflect residual deficits arising from his history of alcohol and substance use in the past. However, his long history [of] mental health difficulties including depression and anxiety are likely to have clouded the clinical history and may account for aspects of his current performance. The nature of his head injury from an assault in 1992 is unclear although based on reports of the duration of his loss of consciousness, this was suspected to be of a mild severity and unlikely to wholly account for his current difficulties. With sustained treatment of his mental health and continued avoidance of heavy alcohol and substance use [the Applicant] may notice some improvements in his cognitive abilities and everyday functioning. Should a significant change in [the Applicant’s] cognitive difficulties or his functional abilities occur, a review assessment would be indicated.[8]

    [7] Exhibit T-T4, 23.

    [8] Exhibit T-T4, 25.

30. A general practitioner who treated the Applicant ‘on and off for many years’, Dr ‘D’, provided a report dated 14 February 2017.[9] Dr ‘D’ wrote that the Applicant had attended counselling in 2016 with ‘a clinical psychologist’ and ‘made good progress’, which was shown by him having ‘more control over his emotions’ and his behaviour had become ‘less spontaneous and more predictable’.[10] Dr ‘D’ noted the Applicant had been referred for further counselling.

    [9] Exhibit T-T6, 28.

    [10] Exhibit T-T6, 28.

31. Mr ‘E’, a psychologist, wrote a brief report on 7 June 2018 that stated the Applicant had been referred for counselling and he had diagnosed the Applicant with ‘generalised anxiety disorder with depressive symptoms at a severe level’.[11]

    [11] Exhibit T-T7, 29.

32. In addition to completing the Access Request – Supporting Evidence Form for the Applicant to become a participant in the NDIS, Dr ‘A’ also wrote a supporting medical letter dated 14 April 2021 that stated the Applicant is taking Diazepam and Venlafaxine for anxiety but ‘still hasn’t improved’.[12]

    [12] Exhibit T-T11, 42.

33. Mr ‘F’, the Applicant’s current treating psychologist, provided written reports dated 2 June 2021 and 20 March 2023 but did not give oral evidence at the Tribunal hearing. On 20 March 2023, Mr ‘F’ reported that he had seen the Applicant for 23 sessions since 11 May 2021, diagnosed the Applicant with ‘PTSD with depression and anxiety’, and noted the Applicant’s symptoms are ‘characteristic of, and fit the DSM-V diagnosis for post-traumatic stress disorder, with poor prognostic features’.[13] Mr ‘F’ provided an extensive description of the Applicant’s PTSD symptoms that were ascribed to the assault he experienced in 1992.

    [13] Exhibit EB, 36.

34. Mr ‘F’ wrote that he has treated the Applicant using cognitive behaviour therapy, acceptance and commitment therapy, and neuro-psychotherapy, and opined the Applicant:

    would benefit from ongoing (weekly or twice a week) psychotherapy with a registered psychologist, focusing on pain management, cognitive restructuring, CBT and psychoeducation. He would also benefit from Eye Movement Desensitisation and Reprocessing (EMDR) treatment from a qualified/certified clinician in order to help process his trauma and association with pain, the traumatic event(s) and provide support with his daily functioning, parental support and general functioning. A medical clinician with prescriptive privilege would be better suited to recommend pharmacological or psychopharmacological interventions, such as a psychiatrist.[14]

    [14] Exhibit EB, 38-39.

1. Mr ‘F’’s report appears to contain some internal inconsistencies: namely, he stated the Applicant had made ‘positive progress in his psychological state and life in general’ but then noted his psychological ‘conditions have remained stable and in some circumstances qualitatively and quantitively deteriorated’.[15] [emphasis added] Mr ‘F’ further opined that the prognosis of the Applicant’s ‘psychological condition of PTSD with depression and anxiety is poor’, which appears to contradict Mr ‘F’’s recommendations regarding psychotherapy treatments that ‘would benefit’ the Applicant as set out above in paragraph 34.[16]

   [15] Exhibit EB, 38.

   [16] Exhibit EB, 38.

2. At the request of the NDIA, the Applicant was assessed on 8 July 2022 by Dr ‘G’, a clinical neuropsychologist. Dr ‘G’ provided written reports dated 18 November 2022 and 12 April 2023, and also gave oral evidence at the Tribunal hearing.

3. In his report dated 18 November 2022, Dr ‘G’ outlined a review of medical documents, wrote an account of his interview with the Applicant (illness/injury, treatments, reason for wanting NDIA funding, developmental and psychosocial history, substance use history and medical/ psychiatric history), and provided an extensive summary of the Applicant’s psychometric assessments. Dr ‘G’ relevantly reported:

   ·psychometric testing suggested the Applicant is ‘experiencing acute symptoms of anxiety and depression’ that are ‘attributable in large part to his experience of assault in 1992’;

   ·the Applicant’s ‘poor physical health (e.g. respiratory disease), back pain, and problems with mobility limit his functioning and contribute to his anxiety and depression’;

   ·the Applicant’s symptoms of depression are ‘consistent with an active diagnosis of Persistent Depressive Disorder’ and this condition ‘underpins his interpersonal difficulties… and limits his functioning’;

   ·the Applicant’s ‘personality functioning complicates his response to standard treatments and is an important treatment target in the management of his depression, residual symptoms of trauma, and social functioning more generally’;[17] and

   ·emotional dysfunction and somatic/cognitive dysfunction emerged as ‘primary areas of concern’ for the Applicant: his somatic/cognitive dysfunction involved (amongst other symptoms) a ‘general sense of malaise’ and a ‘diffuse pattern of cognitive difficulties’, and he had ‘difficulties with interpersonal functioning’ with his personality style profile ‘characterised by introversion/low positive emotions’.[18]

   [17] Exhibit EB, 23.

   [18] Exhibit EB, 22.

4. Dr ‘G’ opined in relation to the Applicant’s diagnosis of depression and treatment that:

   it is not clear that he has received appropriate or sufficient evidence based treatment for his depression and symptoms of trauma, and the underlying personality vulnerabilities that predispose him to and sustain his depression and symptoms of trauma. In my opinion, a comprehensive review of his psychological and pharmacological treatments (particularly over the last 12 months…) is needed to better inform his prognosis before he can be said to have a permanent condition requiring disability support.[19]

   [19] Exhibit EB, 23-24.

5. At the hearing, Dr ‘G’ further opined in relation to the Applicant’s responses to psychometric testing and his ‘emotional psychiatric symptoms’ that:

   it is reasonable to argue that [the Applicant] is over reporting his physical, or his somatic and cognitive symptoms, and over reporting his memory complaints… I’m not suggesting for a moment that [the Applicant] is deliberately trying to feign [his symptoms]. I genuinely believe, based on a review of all of the test results, that he simply has an artificial sense, an artificial exaggerated sense of his difficulties, that are simply not borne out by objective information.[20]

   [20] Transcript of Proceedings, oral evidence of Dr ‘G’ on 26 July 2023, 9.

6. Dr ‘G’ explained at the hearing that the Applicant has a ‘vulnerable personality structure’ (he described this as a ‘personality structure characterised by introversion and low positive emotions’), which predisposes the Applicant ‘to anxiety, depression and other psychological difficulties’.[21] Critically, Dr ‘G’ noted there was no information in the reports produced by the Applicant’s treating psychologists that refer to the Applicant’s personality structure and ‘no mention of treatment targeting [his] underlying personality structure’, which in his opinion, is ‘really important in order to help [the Applicant] manage the psychological difficulties that he is in fact experiencing’.[22]

   [21] Transcript of Proceedings, oral evidence of Dr ‘G’ on 26 July 2023, 9.

   [22] Transcript of Proceedings, oral evidence of Dr ‘G’ on 26 July 2023, 10.

7. Dr ‘G’ told the Tribunal that the Applicant requires psychological treatment that identifies and understands his underlying personality structure. In view of the Applicant’s complex and long history of psychological difficulties, Dr ‘G considered this treatment should be provided by a senior, experienced clinical psychologist and stated the Applicant is able to access local area health services that:

   ·have community health centres where he can receive free treatment for his depression and psychological trauma (he has access to ‘ten sessions of Medicare funded or subsidised treatment per year with a clinical psychologist’); and

   ·run programs for ‘personality restructuring and personality treatment’.[23]

   [23] Transcript of Proceedings, oral evidence of Dr ‘G’ on 26 July 2023, 16.

8. Dr G also recommended the Applicant’s medications are reassessed and reviewed by a psychiatrist, noting that:

   Valium is not a medication that anybody should be taking in the long-term. It’s a short fix medication to help with acute symptoms. It is in fact detrimental to a person’s mental health to be on it long-term. I’m not a psychiatrist though, so I need to be careful not to overstep my commentary on medications, but I do have concerns that [the Applicant] is using that as a go-to medication for his anxiety. I don’t think that’s appropriate.[24]

   [24] Transcript of Proceedings, oral evidence of Dr ‘G’ on 26 July 2023, 16-17.

   Acquired brain injury

9. There are no contemporaneous reports, such as hospital discharge records or medical imaging scans, before the Tribunal in relation to a head injury the Applicant sustained from a physical assault in 1992. However, the following medical reports refer to the Applicant reporting that he had an acquired brain injury from this assault.   

10. Dr ‘C’ wrote in his report on 16 May 2016 that the Applicant reported being admitted to hospital ‘for treatment of substance related psychosis’ soon after the assault in 1992 because he was ‘using cannabis and amphetamines at the time’.[25] As set out at paragraph 29 above, Dr ‘C’ considered the nature of the Applicant’s head injury from the assault in 1992 was ‘unclear’ and ‘suspected to be of a mild severity and unlikely to wholly account for his current difficulties’.[26]

    [25] Exhibit T-T4, 24.

    [26] Exhibit T-T4, 25.

11. Dr ‘G’ also opined in relation to the Applicant’s acquired (he preferred using the term, ‘traumatic’) brain injury that the lack of documented evidence about the Applicant’s head injury in 1992, such as hospital or other medical records, means it is difficult to determine the impact of the assault on his ‘cognitive functioning today’.[27] Dr ‘G’ further stated that the Applicant:

    performed within normal limits in most areas of his intellectual and cognitive functioning assessed, including his memory (albeit with low normal performances in some areas of his cognition) and he does not require disability support for cognitive impairments associated with a traumatic brain injury (or any other factor). His attention fluctuates and he is very slow to process information, but these weaknesses in his cognition do not impair his day-to-day functioning.[28]

    [27] Exhibit EB, 24.

    [28] Exhibit EB, 24.

12. Dr ‘G’ opined the Applicant’s history of heavy alcohol use and other substance use, his poor medical and psychiatric health, and his medications ‘account for the weaknesses in his cognition detected on this assessment’.[29] Dr ‘G’ provided oral evidence to the Tribunal that psychological and cognitive testing undertaken by the Applicant showed ‘there was no evidence of cognitive decline following [the] head injury he sustained all those years ago’.[30] He further stated that in the absence of hospital records and in view of the cognitive testing, it is ‘purely speculative’ that the Applicant ‘did in fact sustain a traumatic brain injury’.[31]

    [29] Exhibit EB, 24.

    [30] Transcript of Proceedings, oral evidence of Dr ‘G’ on 26 July 2023, page 6.

    [31] Transcript of Proceedings, oral evidence of Dr ‘G’ on 26 July 2023, page 5.

    COPD, asthma and emphysema

13. A Health Summary report dated 9 February 2022 records that the Applicant was diagnosed with chronic obstructive lung disease (also known as COPD) in 2005 and asthma in 2006.[32]

    [32] Exhibit EB, 560-561.

14. Dr ‘H’, a respiratory physician, wrote a report dated 28 June 2021 that stated the Applicant commenced smoking at 11 years old and has accumulated over 50 pack year history. Dr ‘H’ reported the Applicant ‘has been short of breath since his late 20s with a gradual deterioration over the past 15 years’, is ‘quite functionally limited from an emphysema point of view’, his ‘exercise tolerance is quite minimal’, and ‘he can manage to walk around the block’ but ‘spends most of his days on the couch’.[33] Dr ‘H’ stated the Applicant is:

    very precontemplative with regard to smoking cessation and admits to attempting to cut down his cigarette intake, however, states that he will never stop smoking.[34]

    [33] Exhibit EB, 136.

    [34] Exhibit EB, 136.

    Cardiovascular disease

15. The Applicant’s Health Summary report dated 9 February 2022 provides a medical history of ‘non-ST segment elevation myocardial infarction’ in 2007.[35] Dr ‘C’ also recorded the Applicant reported he had ‘two heart attacks at the age of 35 and 36’ years.[36]

    [35] Exhibit EB, 560.

    [36] Exhibit T-T4, 24.

16. Reports by Dr ‘I’, a cardiologist, dated 13 May 2021 and 10 June 2021 stated the Applicant was ‘unable to undertake a stress echocardiogram due to breathlessness’ and concluded his ‘lung function test demonstrated moderate to severe COPD/asthma and respiratory disease’.[37] There was no other reporting regarding the Applicant’s cardiovascular disease.

    [37] Exhibit EB, 134.

17. A coronary angiogram report by Dr ‘J’ on 22 April 2022 set out the Applicant had a history of cardiovascular disease, and made the following conclusions and recommendations:

    CONCLUSIONS

    Normal coronary angiogram. Mild segmental LV systolic dysfunction.

    RECOMMENDATIONS

    Medical therapy – Continue.[38]

    [38] Exhibit EB, 3.

    Lumbar spine pain/ Scheuermann’s disease

18. Dr ‘K’, the manager of a pain management program at a regional hospital, reported on 28 February 2014 that the Applicant was admitted for a three-week residential chronic pain management program but discharged himself after three days.[39]

    [39] Exhibit EB, 505.

19. An MRI of the Applicant’s thoracolumbar spine on 9 October 2020 made the following conclusions:

    1. Scheuermann’s disease … in the lower thoracic spine/thoracolumbar junction but without evidence of disc herniation or nerve root impingement.

    2. L2/3: Small broad based left posterior paracentral disc protrusion slightly indenting the anterior thecal sac. However, there is no evidence of compressive radiculopathy or significant central spinal canal stenosis.

    3. No compressive disc herniation or significant central spinal canal stenosis is observed at any level in the thoracolumbar spine.

    4. Conjoint nerve root on the right side at the lumbosacral junction with no evidence of disc herniation.

    5. Normal spinal cord and conus.[40]

    [40] Exhibit T-T8, 30-31.

20. The Applicant’s Health Summary report dated 9 February 2022 shows current prescribed medications for pain.[41]

    [41] Exhibit EB, 560.

    Evidence – occupational therapist

21. The NDIA referred the Applicant for assessment by occupational therapists, Mr ‘M’ and Ms ‘N’, who both have extensive clinical experience in mental health. The functional capacity assessment took place at the Applicant’s unit on 3 August 2022 with Ms ‘L’ also present.

22. Mr ‘M’ and Ms ‘N’ produced a written report dated 23 August 2022, and Mr ‘M’ also gave oral evidence at the hearing. The report set out the Applicant’s background and diagnoses, and findings from an assessment of the Applicant in relation to his functional capacity to undertake, or psychosocial functioning in undertaking, activities of communication, social interaction, learning, mobility, self-care and self-management. The findings included:  

    Communication

    othe Applicant ‘consistently displayed effective communication skills and strategies throughout the assessment’;

    oto maintain effective communication, the Applicant performs at ‘his optimum level of function when provided with the type of support that ranges from guidance – prompting’; and

    othe level of support required by the Applicant depends ‘on the environment in which communication is being conducted and the people with whom [the Applicant] is interacting, but is unlikely to exceed moderate level’.[42]

    [42] Exhibit EB, 30-31.

    Social interaction

    othe Applicant is ‘extremely socially isolated’;

    oa ‘significant amount of psychological work needs to be completed’ to address the Applicant’s PTSD and associated anxiety in order for him to be able to ‘function optimally in relation to social interaction’; and

    othe assessors opined that ‘in the interim’, a ‘moderate level of support and guidance is required for any meaningful social interaction to occur’ in the Applicant’s life.[43]

    [43] Exhibit EB, 31.

    Learning

    othe Applicant demonstrated during the assessment that ‘he has learned and implemented a number of compensatory strategies to assist with his cognitive impairment’; and

    othe Applicant has ‘commenced psychological therapy on a number of occasions’ (2016, 2017 and 2018) and ‘on each occasion he is reported to have made progress’, which further confirms his capacity to learn.[44]

    [44] Exhibit EB, 32.

    Mobility

    othe Applicant’s ‘physical ailments significantly impact on his ability to mobilise around the home’;

    oan ‘occupational therapist with expertise in physical disability’ should be engaged to ‘offer an opinion on the impact of his physical presentation on both his mobility and self-care’; and

    othe Applicant only leaves his home once a fortnight and with Ms ‘L’ due to the ‘fear and anxiety’ he experiences outside his home.[45]

    Self-care

    othe Applicant ‘reported no issues with being able to manage his self-care activities’ as a result of his psychosocial conditions; and

    oMr ‘M’ and Ms ‘N’ opined that the Applicant’s ‘home environment would quickly deteriorate’ without the support of Ms ‘L’ and this ‘would likely have a negative impact on [his] overall mental health’.[46]

    [45] Exhibit EB, 32-33.

    [46] Exhibit EB, 33.

    Self-management

    othe Applicant demonstrated ‘sufficient cognitive capacity to organise his life on the day of the assessment’ but relies significantly on the support of Ms ‘L’ to ‘ensure that his daily tasks are completed’.[47]

    [47] Exhibit EB, 33.

23. Mr ‘M’ and Ms ‘N’ reported significant concerns about both the Applicant’s ‘lack of prolonged and consistent psychological treatment’, and the carer burden placed on Ms ‘L’ as ‘the sole carer and social support’ for the Applicant.’[48]

    [48] Exhibit EB, 32, 34.

24. The report made the following recommendations in relation to the Applicant:

    -    Undertake a specialist assessment for the presence or absence of PTSD

    -    Undertake subsequent long-term evidence based psychological therapy to address the PTSD (if the DSM-V criteria for diagnosis are met)

    OR

    -    Undertake long term psychological therapy to address the anxiety component of his illness

    -    Be provided with a specialist occupational therapist to undertake a formal assessment of the complex physical diagnoses he has to ensure appropriate equipment of home modifications are provided to maximise his functional capacity

    -    Be provided with regular support worker hours to assist in improving his

    o   social connectedness

    o   access to the community

    o   relationship with his partner and relieve some of the carer burden on her

    o   capacity to put into practice the skills he will learn in therapy.[49]

    [49] Exhibit EB, 35.

25. At the Tribunal hearing, Mr ‘M’ described the Applicant’s interactions at his assessment as ‘prosocial’ and said the Applicant was able to access (that is, recall) relevant information with the assistance of a notebook. Mr ‘M’ noted the Applicant significantly relied on support and assistance from Ms ‘L’, and reiterated his concern about carer burnout for Ms ‘L’.

    CONSIDERATION

26. The sole issue for determination in this matter is whether the Applicant satisfies:

    (a)section 24 of the Act – the disability requirements; or

    (b)section 25 of the Act – the early intervention requirements.

    (A) Does the Applicant satisfy the disability requirements in section 24 of the Act?

27. To satisfy the disability requirements in subsection 24(1) of the Act, the Applicant must meet all the criteria in paragraphs 24(1)(a) to (e). I now consider each of these requirements.

    Paragraph 24(1)(a) – disability attributable to one or more impairments

28. Paragraph 24(1)(a) of the Act requires the Applicant to have a ‘disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments’ or to have ‘one or more impairments to which a psychosocial disability is attributable’.

29. Impairment ‘is generally understood as involving the loss of or damage to a physical, sensory or mental function’.[50] The Access Guideline further states:

    To meet the disability requirements, [the NDIA] must have evidence your disability is caused by at least one of the impairments below

    -    intellectual – such as how you speak and listen, read and write, solve problems, and process and remember information

    -    cognitive – such as how you think, learn new things, use judgment to make decisions, and pay attention

    -    neurological – such as how your body functions

    -    sensory – such as how you see or hear

    -    physical – such as the ability to move parts of your body.

    You may also be eligible for the NDIS if you have a psychosocial disability. This means you have reduced capacity to do daily life activities and tasks due to your mental health.

    [emphasis in original]

    [50] Mulligan v National Disability Insurance Agency (2015) 233 FCR 201 at [51].

30. This means that a person has a disability within the meaning of paragraph 24(1)(a) of the Act where the evidence shows they have an impairment that is the cause of their reduction or loss of ability to perform an activity.

31. I am satisfied the medical evidence as set out at paragraphs 26–42 and 47–54 shows the Applicant has disabilities that are attributable to impairments arising from his:

    ·PTSD, anxiety and depression/ persistent depressive disorder;

    ·COPD, asthma, emphysema and cardiovascular disease; and

    ·Scheuermann’s disease/ lumbar spine pain.

32. I have also had regard to the Applicant’s evidence about the effect of the assault in 1992 and the medical evidence set out at paragraphs 43–46 above. In the absence of any contemporaneous medical reports and given the conclusions in the neuropsychological assessment reports of Dr ‘C’ in 2016 and Dr ‘G’ in 2022 and Dr ‘G’s oral evidence to the Tribunal, I am satisfied there is insufficient medical evidence to find the Applicant has an impairment attributable to an acquired brain injury. In particular, I note and accept the evidence of Dr ‘C’ that the nature of the assault was ‘unclear’ and the evidence of Dr ‘G’ that the Applicant ‘performed within normal limits in most areas’ of his assessed intellectual and cognitive functioning, and there was ‘no evidence of cognitive decline’ following the assault. I place weight on the evidence of Dr ‘G’, which included a detailed review of past medical reports, and comprehensive psychometric testing of the Applicant.

1. I am satisfied the Applicant meets the requirement in paragraph 24(1)(a) of the Act.

   Paragraph 24(1)(b) – whether the impairment is, or likely to be, permanent

2. The Participant Rules provide the following guidance to consider when an impairment is, or is likely to be, permanent:

   5.4 An impairment is, or is likely to be, permanent (see paragraph 5.1(b)) only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.

   5.5 An impairment may be permanent notwithstanding that the severity of its impact on the functional capacity of the person may fluctuate or there are prospects that the severity of the impact of the impairment on the person’s functional capacity, including their psychosocial functioning, may improve.

   5.6 An impairment may require medical treatment and review before a determination can be made about whether the impairment is permanent or likely to be permanent. The impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated (even though the impairment may continue to be treated and reviewed after this has been demonstrated).

   5.7 If an impairment is of a degenerative nature, the impairment is, or is likely to be, permanent if medical or other treatment would not, or would be unlikely to, improve the condition.

   [emphasis added]

3. In the Federal Court decision of National Disability Insurance Agency v Davis, Mortimer J (as she then was) opined that the word ‘“remedy” should be understood to mean something approaching a removal or cure of the impairment’ and ‘the adjective “available” should be understood as directed at what treatments an individual can, in reality, access.’[51]

   [51] [2022] FCA 1002 at [136], [139].

4. For the purposes of paragraph 24(1)(b) of the Act and consistent with my findings at paragraph 65 above, I am satisfied the Applicant’s impairments are:

   ·PTSD, anxiety and depression/ persistent depressive disorder;

   ·COPD, asthma, emphysema and cardiovascular disease; and

   ·Scheuermann’s disease/ lumbar spine pain.

5. I now consider whether these impairments are, or are likely to be, permanent as required by paragraph 24(1)(b) of the Act and rules 5.4 – 5.7 of the Participant Rules.

   Psychosocial disabilities

6. The medical evidence regarding the Applicant’s psychosocial disabilities (PTSD, anxiety, depression/ persistent depressive disorder) show a history of him inconsistently engaging with psychotherapy treatments and improving when he has accessed treatment. I am satisfied the written evidence of Mr ‘F and Dr ‘G’, as well as the oral evidence of Dr ‘G’, recommended further treatments available to the Applicant that he has not yet attempted. For example, Mr ‘F’ recommended the Applicant access ongoing (weekly or twice weekly) psychotherapy sessions, EMDR treatment, and pharmacological review by a psychiatrist. As set out in paragraphs 38–42 above, Dr ‘G’ also opined the Applicant requires appropriate and evidence-based treatment by an experienced, senior clinical psychologist to address ‘his depression and symptoms of trauma, and the underlying personality vulnerabilities that predispose him to and sustain his depression and symptoms of trauma’ and a ‘comprehensive review of his psychological and pharmacological treatments’. Dr ‘G’ stated this treatment is publicly available and free to the Applicant through local area health services.

7. I am satisfied the evidence shows there is known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the Applicant’s impairment arising from his diagnosed PTSD, anxiety and depression/ persistent depressive disorder.

   COPD, asthma, emphysema and cardiovascular disease

8. The evidence of the Applicant and his treating doctors is that he has impairment (in particular, severe shortness of breath) due to diagnosed COPD, asthma, emphysema and cardiovascular disease.  

9. I am satisfied, based on the medical evidence and the oral evidence of the Applicant to the Tribunal, that he has not stopped smoking ‘rollies’/ cigarettes or attempted treatments that would assist him to stop smoking. I note a medical letter by Dr ‘I’ dated 24 May 2021 also opined the Applicant’s diagnosed COPD/ asthma was reversible with bronchodilators, and the Applicant told the Tribunal he has recently started different puffer medication.

10. I find there are evidence-based clinical treatments available to the Applicant – primarily, the cessation of smoking and the consistent use of puffer medication/s – that would be likely to remedy his impairment arising from COPD, asthma, emphysema and cardiovascular disease. On this basis, I cannot be satisfied the Applicant’s conditions of COPD, asthma, emphysema and cardiovascular disease are permanent.

    Scheuermann’s disease/ lumbar spine pain

11. There is no medical evidence before the Tribunal that the Applicant has engaged in all known, available and appropriate evidence-based treatment that would be likely to remedy his lumbar spine pain/ Scheuermann’s disease. I accept the Applicant’s oral evidence that he has had operations to ‘fuse the pain nerve’ in his spine, continues to experience pain and takes pain medication. However, the medical evidence shows the Applicant did not complete a three-week residential pain management program in 2014 and he has not since engaged with any pain management program or clinic. Furthermore, the Applicant has given no evidence of engaging with allied health treatments that would be likely to remedy his lumbar spine pain such as physiotherapy, or seeking review and treatment from an exercise physiologist or a rehabilitation physician.

12. I am satisfied there are known, available and appropriate evidence-based clinical and medical treatments that would be likely to remedy the Applicant’s impairment arising from his diagnosed Scheuermann’s disease and lumbar spine pain.

13. For the reasons set out above, I am not satisfied the Applicant meets the requirement in paragraph 24(1)(b) of the Act.

    Paragraph 24(1)(c) – whether impairments result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, activities

14. Paragraph 24(1)(c) of the Act requires the Applicant to demonstrate that his impairments result in substantially reduced functional capacity to undertake any of the activities listed in subparagraphs (i) to (vi); communication, social interaction, learning, mobility, self-care, and/or self-management.

15. Rule 5.8 of the Participant Rules provides:

    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:

    (a)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 activity, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications; or

    (b)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 activity; or

    (c)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.

16. Prior to considering each of the activities in subparagraphs (i) to (vi) of paragraph 24(1)(c) of the Act, I make the following observation in relation to the evidence about the Applicant’s functional capacity.

17. As set out at paragraphs 68–79 above in relation to paragraph 24(1)(b) of the Act, I find the evidence before the Tribunal shows there are known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the Applicant’s impairments of:

    ·PTSD, anxiety and depression/ persistent depressive disorder;

    ·COPD, asthma and emphysema; and

    ·Scheuermann’s disease/ lumbar spine pain.

18. It follows that, if the Applicant were to access these available treatments, he may increase his functional capacity in all or some activities. In particular, I note Dr ‘G’’s oral evidence in which he opined that the Applicant’s psychosocial disabilities are ‘unresolved’ due to the ‘lack of treatment and targeting of [his] underlying personality structure’.[52] This is also consistent with the evidence of Mr ‘M’ and Ms ‘N’, who outlined significant concerns about the ‘lack of prolonged and consistent psychological treatment’ by the Applicant.

    [52] Transcript of Proceedings, oral evidence of Dr ‘G’ on 26 July 2023, page 12.

19. I now consider the evidence as set out in the occupational therapy report of Mr ‘M’ and Ms ‘N’ regarding the Applicant’s functional capacity for each of the activities at subparagraphs 24(1)(c)(i)–(vi) of the Act.

    Communication

20. The Access Guideline states that communicating is:

    how you speak, write, or use sign language and gestures, to express yourself compared to other people your age. We also look at how well you understand people, and how others understand you.

21. The evidence of Mr ‘M’ and Ms ‘N’ is that the Applicant ‘displayed effective communication skills and strategies’ but performed at his ‘optimum level of function’ when he had support. I note that this was consistent with the Applicant’s communication at the Tribunal hearing; he was able to articulate his views clearly but was assisted by support (guidance and occasional prompting) from Ms ‘L’.

22. In these circumstances, I do not find the Applicant’s impairments result in him having substantially reduced functional capacity to undertake communication as required by rule 5.8 of the Participant Rules.

    Social interaction

23. ‘Socialising’ is described in the Access Guideline as:

    how you make and keep friends, or interact with the community, or how a young child plays with other children. We also look at your behaviour, and how you cope with feelings and emotions in social situations.

24. The evidence set out in the report of Mr ‘M’ and Ms ‘N’, and the Applicant’s oral evidence to the Tribunal, is that he is ‘extremely socially isolated’. His only social relationship is with Ms ‘L’ and he only leaves his unit once a fortnight when accompanied by her.

25. However, I cannot be satisfied the Applicant’s impairments result in a substantially reduced functional capacity to undertake social interaction in circumstances where the Applicant has not engaged in all known, available and evidence-based treatments in relation to his diagnosed PTSD, anxiety and depression/ persistent depressive disorder, and there is evidence that these treatments could assist him to ‘function optimally in relation to social interaction’.

    Learning

26. The Access Guideline describes learning as ‘how you learn, understand and remember new things, and practise and use new skills’.

27. There is no evidence the Applicant’s impairments result in a substantially reduced functional capacity to undertake learning. In particular, both the reports of Dr ‘G’ and Mr ‘M’ and Ms ‘N’ stated there was no evidence the Applicant had difficulties with learning.

    Mobility

28. Mobility is described in the Access Guideline as meaning ‘how easily you move around your home and community, and how you get in and out of bed or a chair. We consider how you get out and about and use your arms or legs.’

29. In the decision of Madelaine and NDIA, the Tribunal stated:

    the threshold requirements to achieve functional capacity in relation to this activity are relatively modest. A person has functional capacity if they can move about their home, get in and out of a bed or a chair, and mobilise in the community. Movement in the home does not need to be achieved by walking; a person might even crawl from room to room. The Concise Oxford Dictionary defines mobile as movable, not fixed, free to move.

    The use of the phrase move around...to undertake ordinary activities of daily living in the [Access] Guideline is significant. It implies some expectation of how far a person needs to be able to move to undertake ordinary daily activities, say, getting to the bathroom to wash or toilet, getting to the kitchen to prepare food, perhaps getting to the front letterbox to collect mail. Implicit in this concept is that the distances involved will be relatively short.[53]

    [emphasis added]

    [53] [2020] AATA 4025 at [104]-[105].

30. The report of Mr ‘M’ and Ms ‘N’ stated that the Applicants physical ailments ‘significantly impact on his ability to mobilise around the home’. The Applicant told the Tribunal he has difficulties moving about his unit and is slow. He uses furniture to balance but does not use any aids, such as a walking stick, to mobilise either inside of outside his home.

31. Consistent with the decision in Madelaine and NDIA, I consider the ‘threshold requirements’ to achieve functional capacity in relation to mobility to be ‘modest’. I find the evidence shows the Applicant can move about his home independently and without aids, and accesses the community with Ms ‘L’.

32. I further note there are some inconsistencies between the Applicant’s reported capacity to undertake activities and his actual capacity to do activities. The Applicant’s reported inability to not mobilise outside his home due to his psychosocial disabilities may also be assisted by him accessing treatment as recommended in the reports by Dr ‘F’, Dr ‘G’ and Mr ‘M’ and Ms ‘N’.

33. Weighing all the evidence, I am not satisfied the Applicant’s impairments result in a substantially reduced functional capacity in relation to mobility as required by rule 5.8 of the Participant Rules.

    Self-care

34. The Access Guideline describes self-care as including ‘personal care, hygiene, grooming, eating and drinking, and health. We consider how you get dressed, shower or bathe, eat or go to the toilet’.

35. The report of Mr ‘M’ and Ms ‘N’ stated the Applicant ‘reported no issues with being able to manage his self-care activities’ as a result of his psychosocial disabilities. I note that the evidence of both the Applicant and Ms ‘L’ at the hearing was that Ms ‘L’ assists the Applicant with household chores once or twice a week. The Applicant also gave oral evidence that he has difficulties reaching his lower body while showering but can undertake self-care, and dress and feed himself.

36. I am satisfied the Applicant’s impairments do not result in a substantially reduced functional capacity to undertake self-care as required by rule 5.8 of the Participant Rules.

    Self-management

37. Self-management is described in the Access Guideline as:

    how you organise your life. We consider how you plan, make decisions, and look after yourself. This might include day-to-day tasks at home, how you solve problems, or manage your money. We consider your mental or cognitive ability to manage your life, not your physical ability to do these tasks.

38. The Applicant provided evidence to the Tribunal that he lives alone but relies on Ms ‘L’ to assist with tasks such as making medical appointments. I note there is no evidence before the Tribunal that the Applicant is unable to complete daily tasks, make decisions or manage his finances, noting the high threshold for ‘substantially reduced functional capacity’ required by rule 5.8 of the Participant Rules.

39. I find insufficient evidence the Applicant’s impairments result in a substantially reduced functional capacity to undertake self-management.

40. Overall, I am satisfied the Applicant’s impairments do not result in him having substantially reduced functional capacity to undertake any of the activities (communication, social interaction, learning, mobility, self-care, and/or self-management) as required by paragraph 24(1)(c) of the Act.

    Paragraph 24(1)(d) – whether the Applicant’s impairments affect his capacity for social or economic participation

41. The Applicant has been in receipt of the disability support pension since 1997 and experiences social isolation due to his psychosocial disabilities. However, similar to my reasoning at paragraph 84 above, the Applicant’s capacity for social and economic participation may increase if he accesses treatment (as recommended by Mr ‘F’, Dr ‘G’ and Mr ‘M’ and Ms ‘N’) for his conditions of PTSD, anxiety and depression/ persistent depressive disorder.

42. In these circumstances, I cannot be satisfied that the Applicant meets the requirement in paragraph 24(1)(d) of the Act.

    Paragraph 24(1)(e) – whether the Applicant is likely to require support under the NDIS for his lifetime

43. The Access Guideline states the following:

    You must be likely to need support under the NDIS for your whole life^.

    NDIS supports are investments that help you build or maintain your functional capacity and independence, and help you work, study or take part in social life.

    Even if your needs go up and down over time, or happen episodically[i], [the NDIA] may still consider it’s likely you’ll need lifetime support under the NDIS.

    [The NDIA] consider your overall situation to answer this question.

    When [the NDIA] decide if you’ll likely need support under the NDIS for your whole life, [the NDIA] consider:

    -    your life circumstances

    -    the nature of your long-term support needs

    -    whether your needs could be best met by the NDIS, or by other government and community services.

44. For the reasons set out in paragraphs 68–79, I am not satisfied the Applicant’s following impairments are permanent:

    ·PTSD, anxiety and depression/ persistent depressive disorder;

    ·COPD, asthma and emphysema; and

    ·Scheuermann’s disease/ lumbar spine pain.

45. I am satisfied it would be inconsistent to make a finding that the Applicant, as a prospective participant, is likely to require support under the NDIS for their lifetime in circumstances where I find there are further treatments that may remedy his impairments.

46. This means that I cannot be satisfied the Applicant will require support under the NDIS for his lifetime. Therefore, he does not meet the requirement of paragraph 24(1)(e) of the Act.

    (B) Does the Applicant satisfy the early intervention requirements in section 25 of the Act?

47. The early intervention requirements are set out in section 25 of the Act. The Access Guideline explains the purpose of the early intervention requirements as follows:

    Early intervention is usually early access to support, to help reduce the functional impacts of your impairment.

    Early intervention can be for both children and adults. You won’t need these supports for your lifetime, so your treating professional or your early childhood partner will tell us how early intervention support could benefit you or your child.

48. I now consider whether the Applicant meets the early intervention requirements.

    Paragraph 25(1)(a) – whether the Applicant has a permanent impairment

49. For the reasons set out in paragraphs 68–79, I am not satisfied the Applicant’s following impairments are permanent:

    ·PTSD, anxiety and depression/ persistent depressive disorder;

    ·COPD, asthma, emphysema and cardiovascular disease; and

    ·Scheuermann’s disease/ lumbar spine pain.

50. It follows that I find the requirement in paragraph 25(1)(a) of the Act is not met.

    Paragraphs 25(1)(b) and (c) – whether the provision of early intervention support will benefit the Applicant by reducing his future needs for supports in relation to disability

51. Paragraphs 25(1)(b) and (c) require the CEO of the NDIA to be ‘satisfied that provision of early intervention supports for the person is likely to benefit the person’ in various ways. Paragraph 25(1)(b) requires a state of satisfaction that the provision of early intervention supports is likely to benefit the person by reducing the person’s future needs for supports in relation to disability. Paragraph 25(1)(c) requires a state of satisfaction that the provision of early intervention supports is likely to benefit the person by mitigating or alleviating the impact of the person’s impairment, preventing the deterioration of functional capacity, improving functional capacity, or strengthening the sustainability of informal supports available to the person.

1. Paragraph 6.9 of the Participant Rules sets out the issues the CEO of the NDIA would consider in relation to whether the provision of early intervention supports is likely to benefit a person under paragraphs 25(1)(b) and (c) of the Act:

   6.9 In deciding whether provision of early intervention supports is likely to benefit the person in the ways mentioned in paragraphs 6.2(b) and (c) above, it is expected that the CEO would consider:

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

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

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

2. There is no medical evidence before the Tribunal to show the potential benefits of early intervention on the impact of the Applicant’s impairments on his functional capacity and reducing his future need for supports.

3. I am not satisfied that early intervention supports will be likely to benefit the Applicant in the ways specified in paragraphs 25(1)(b) and (c) of the Act.

   Subsection 25(3) – whether early intervention support most appropriately funded or provided through the NDIS

4. Subsection 25(3) of the Act operates in circumstances where, even if the Applicant meets subsections 25(1) and (2), he may not meet the requirements of early intervention support because the support is not most appropriately funded or provided through the NDIS and is more appropriately funded or provided through other general systems of service delivery or support services, such as through the health system.

5. I find no evidence before the Tribunal that shows the Applicant requires early intervention support that is most appropriately funded through the NDIS.

6. For these reasons, I find the Applicant does not meet the early intervention requirements in section 25 of the Act.

   CONCLUSION

7. As I find the Applicant does not meet the access criteria in either section 24 or section 25 of the Act, the internal review decision made on 30 July 2021 is affirmed.

   DECISION

8. The decision under review is affirmed.

I certify that the preceding 125 (one hundred and twenty-five) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

.................................[sgd].......................................

Associate

Dated: 7 September 2023

Date of hearing:	26 July 2023
Applicant:	Self-represented
Advocate for the Respondent:	Mr Matthew Pleming and Mr John O’Connell
Solicitors for the Respondent:	HWL Ebsworth Lawyers