Duncan and National Disability Insurance Agency

Duncan and National Disability Insurance Agency [2024] AATA 121 (6 February 2024)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number: 2021/1007
Re:Ms Gail Duncan
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Senior Member P J Clauson AM
Date:6 February 2024
Place:Brisbane

Pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) the Tribunal affirms the decision under review not to grant the applicant access to the National Disability Insurance Scheme because the Tribunal is not satisfied that she meets either the “disability requirements” under section 24 or the “early intervention requirements” under section 25 of the National Disability Insurance Scheme Act 2013 (Cth).
....................................[SGD]....................................
Senior Member P J Clauson AM
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – request for access – major depressive disorder – fibromyalgia/chronic pain syndrome – hypertension/chronic migraine – permanency criteria not met – functional capacity criteria not met – early intervention criteria not met – whether supports are most appropriately funded through the NDIS – decision under review affirmed.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act2013 (Cth)
National Disability Insurance Scheme (Becoming a Participant) Rules 2016
Cases
James and NDIA [2019] AATA 4248
National Disability Insurance Agency v Davis [2022] FCA 1002
National Disability Insurance Scheme v Foster [2023] FCAFC 11
Secondary Materials
National Disability Insurance Scheme - Operational Guidelines - Access
REASONS FOR DECISION
Senior Member P J Clauson AM
6 February 2024
INTRODUCTION

Ms Duncan is 53 years old. In July 2020 she made an application (the Access Request) to the National Disability Insurance Agency (the Agency) to become a participant in the National Disability Insurance Scheme (the Scheme).[1]
[1] Respondent’s Statement of Facts, Issues and Contentions at [4].
In October 2020 a delegate of the CEO of the Agency decided not to grant Ms Duncan access because she failed to meet the access criteria.[2] Ms Duncan subsequently applied for an internal review of that decision.[3]
[2] T Documents, T23.
[3] T Documents, T24.
On 22 January 2021 the delegate, pursuant to section 100(6) of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act), notified Ms Duncan that they affirmed their earlier decision to refuse access (the decision under review).[4]
[4] T Documents, T2.
On 18 February 2021 Ms Duncan applied to the Administrative Appeals Tribunal seeking a review of this decision.[5]
[5] T Documents, T1.
BACKGROUND OF THE APPLICANT
In 2002 Ms Duncan married a Syrian non-resident man who was attempting to obtain a resident visa. They had a child in 2003 in hope of resolving her husband’s immigration issues. She was concerned that if her husband was sent back to Syria he would face jail time and compulsory military service.
In 2005 she suffered a miscarriage at eight weeks and again in 2006 at 17 weeks[6] citing the stress and burnout of “fighting” the Immigration Department on her husband’s behalf as the cause.[7]
[6] Supplementary T Documents, ST13: Report of Dr Joseph Kluver dated 18 February 2022.
[7] T Documents, T3: Report of Dr Vladen Llubisavljedic dated 11 July 2006.
In 2006 she was diagnosed with Major Depressive Disorder as a condition in partial remission with secondary issues around weight gain, insomnia and fatigue. In 2007 her husband was diagnosed with Ewing sarcoma.
In 2008 Ms Duncan was diagnosed with Fibromyalgia syndrome complicating a depressive illness with reference made to the stress of her husband’s chemotherapy.[8] In 2015 she was diagnosed with Idiopathic Intracranial Hypertension and Chronic Migraine.
[8] T Documents, T6: Report of Dr Martin Devereaux dated 24 April 2008.
Ms Duncan worked as a primary school teacher for around ten years until 2017 when she could no longer cope with the “extreme fatigue” from her physical and mental disabilities and failed to re-engage even on a part-time basis. She refers to falling asleep while standing up and writing on the blackboard, no longer being able to multi-task and having difficulty planning and making decisions.[9]
[9] Transcript of Proceedings.
Ms Duncan separated from her husband in 2019 but remained living together with their son due to her financial constraints. She calls it a “tricky situation” and not a sustainable solution.[10]
[10] Transcript of Proceedings
She qualified for the Disability Support Pension (DSP) from February 2020. She receives some domestic assistance from the Queensland Community Support Scheme on a fortnightly basis.
ISSUES BEFORE THE TRIBUNAL
The Agency’s position
To be approved for access to the Scheme, an applicant must satisfy the CEO that they meet the criteria at section 21 of the Act, namely:
·the age requirement (section 22); and
·the residence requirement (section 23); and
·the disability requirement (section 24); or
·the early intervention requirement (section 25).
The Agency accepts that Ms Duncan meets:
·Section 22
·Section 23
·Section 24(a); and
·Section 24(d).
The Agency accepts that Ms Duncan has a disability attributable to the following impairments (the accepted impairments):[11]
·Fibromyalgia;
·Migraines;
·Chronic Pain Syndrome; and
·Major depressive disorder.
[11]Joint Hearing Bundle, ST11: Email by applicant confirming conditions, pages 232-233; T Documents, T1A: Internal review decision.
The Agency does not accept the accepted impairments are permanent because they do not consider that Ms Duncan has:
·completed all treatment options recommended to her by treating medical professionals; and
·demonstrated full engagement with all recommended treatments.
The Agency submits that a significant aspect of Ms Duncan’s impairments are attributable to the comorbidity of obesity and lack of physical strength such that she may be able to reduce her degree of impairment by increasing her exercise.[12]
[12] Respondent’s Statement of Facts, Issues and Contentions at [27].
On the evidence available, the Agency considers that Ms Duncan does not experience any substantially reduced functional capacity in any of the domains listed at section 24(1)(c).
The Agency agrees that the accepted impairments effect Ms Duncan’s capacity for economic participation as apparent in her leaving her work in 2017.
The Agency does not accept Ms Duncan is likely to require NDIS support for her lifetime because:
·She already receives 1.5 hours of support work assistance each week from the Queensland Community Support Services (QCSS) for her support needs;
·It is unclear exactly supports Ms Duncan would require for her lifetime.
·Supports recommended by her treating practitioners including exercise physiology, physiotherapy or psychology services can be accessed through Medicare with a referral from her general practitioner.[13]
[13] Respondent’s Statement of Facts, Issues and Contentions at [46].
Lastly, that Ms Duncan will not benefit from early intervention supports because:
·She is recommended supports to maintain her current level of function and manage symptoms rather than alleviate the impact of her impairments on her functional capacity; and
·Early intervention supports will not reduce her future support needs.
Ms Duncan’s position
Ms Duncan’s position is that she has a disability attributable to the impairments of:
·Fibromyalgia;
·Migraines/Idiopathic Intracranial Hypertension;
·Chronic Pain Syndrome; and
·Major Depressive Disorder.
Ms Duncan considers that her impairments are permanent and that she has exhausted every treatment recommended and available to her, stating that: [14]
·For Fibromyalgia, she was treated by Dr Carey for approximately two years and stopped after she believed she was fully treated and wouldn’t be able to achieve anymore;
·For Migraines, apart from slight tweaking of medications all treatments have been explored and exhausted;
·For Chronic Pain, this has not improved with weight loss although did seem to be helped by some medications to a point of “the best we could”; and
·For Major Depressive Disorder, she has been treated by a kinesiologist for a number of years and now attends regular psychology sessions to address her depression and still experiences frequent and extended periods of exaggerated depression.
[14] ST20: Statement by Applicant regarding migraines and idiopathic intracranial hypertension; ST12: Statement of the Applicant dated September 2021.
Ms Duncan addressed her instances of non-compliance with treatments such as medication and exercise at the hearing and in her statements. She states she has not taken medication where it will make her nauseous or aggravate her other physical symptoms, and not undertaken physical exercise when too fatigued and if she feels she may become injured.
Ms Duncan does not dispute that she is overweight and that she has been recommended to lose weight to address her impairments by several of her treating practitioners.
Notwithstanding, she maintains that:[15]
·Since 2007 she has made many attempts to lose weight with some success but a lot of difficulty;
·Her weight has “always” been an issue and even when she does lose weight it is regained when her fatigue and pain worsen;
·When she has lost some weight she still struggles with pain, fatigue and sleep difficulties;
·She is limited in options to lose weight that are suitable for her and that she can financially access;
·She is limited in her energy for healthy meal preparation and is therefore left to rely on more convenient options such as ordering a takeaway meal or eating a packet of biscuits; and
·She has exhausted all treatments to lose weight to any major degree.
[15] Supplementary T Documents, ST18: Applicant’s Statement of Lived Experience.
She maintains that her impairments substantially reduce her functional capacity for communication, social interaction, learning, mobility, self-care and self-management and that she will require NDIS support for her lifetime.
Further, that she will benefit from early intervention supports to maintain her function and prevent deterioration of her condition.
The criteria to be decided by the Tribunal are set out in the relevant legislative framework below.
RELEVANT LEGISLATIVE FRAMEWORK
Section 24: The Disability Requirements
Section 24(1)(a): A person meets the disability requirements if:
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.
Section 24(1)(b): the impairments are, or are likely to be, permanant
“Permanency” of an impairment is discussed in Rules 5.4 and 5.6 of the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (the Access Rules) and paragraph 8.2 of the NDIS Operational Guidelines - Access (the Access Guidelines).
Rules 5.4 to 5.6 state:
When is an impairment permanent or likely to be permanent for the disability requirements?
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).
Paragraph 8.2 of the Access Guidelines states:
“…where there is a possibility of medical treatment to treat the prospective participant’s condition, and the treatment has some prospect of success, the NDIA should not conclude the impairment is permanent but should wait until the outcome of the treatment is known.”
Section 24(1)(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
The Agency refers to rule 5.8 of the Access Rules as follows:
When does an impairment result in substantially reduced functional capacity to undertake relevant activities?
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.
Section 24(1)(e): the person is likely to require support under the National Disability Insurance Scheme for the person's lifetime
The Agency refers to section 8.5 of the Access Guidelines which relevantly state:
The purpose of this requirement seems to be to distinguish that subset of people with serious and permanent disabilities who are intended to be the beneficiaries of funded supports…
When considering this criterion, the NDIA does not need to be satisfied that the support/s required for the person's lifetime meet the reasonable and necessary criteria. The reasonable and necessary criteria are relevant to whether funding is provided, not whether a person meets the disability requirements.
Section 25(1)(a): 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
The Agency refers to their submissions on permanency at paragraph [15] above.
Section 25(1)(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
Relevant is Rule 6.9 of the NDIS which states as follows:
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) [reducing future need for support] and (c) [improving capacity] 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.
Paragraph 9.3 of the Guidelines provides:
“When considering if a person is likely to benefit from early intervention supports, the NDIA may consider factors such as the time elapsed since the onset or diagnosis of the disability and whether there has been a recent, or impending, significant change in the person's impairment or disability”.
Section 25(1)(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.
….
(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.
The Agency refers to their submissions that Ms Duncan is unlikely to benefit from early intervention supports at paragraph [15] above.
THE EVIDENCE BEFORE THE TRIBUNAL
The Tribunal is provided with the following submissions:
·Records of the Agency with information relevant to their decision not to grant access;
·Over 30 medical reports from medical practitioners who have examined and/or treated the Ms Duncan; and
·Statements by Ms Duncan regarding her conditions and lived experience.
A substantive hearing was heard over 14 and 15 August 2023. The Tribunal summarises what is considered to be relevant evidence below.
Evidence of Dr Vladen Ljubisavlevic
In June 2006 Ms Duncan was referred to Dr Vladen Ljubisavlevic, Consultant Psychiatrist, for psychiatric assessment. Dr Ljubisavlevic prepared a subsequent report dated 11 July 2006.[16]
[16] T Documents, T3: Report of Dr Vladen Ljubisavlevic dated 11 July 2006.
Ms Duncan reported issues around feeling overwhelmed, feeling tired and having an increased appetite in 2005. When she fell pregnant these symptoms improved but worsened following her miscarriage in February of 2006.
Ms Duncan reported having non-specific back pain, fatigue and concentration/memory difficulties, although these symptoms were improving since April 2006 and she was now “getting on top on things”.
Dr Ljubisavlevic considered Ms Duncan had a primary diagnosis of Major Depressive Disorder in partial remission. He bases his diagnosis on the presence of pervasively depressed mood, diminished interest, weight gain, insomnia, fatigue and diminished ability to think and concentrate. Her condition alone, he stated, was enough to prevent her from working full-time hours.
He describes her main stressor as her husband and his residency status. He identified an additional issue around her reluctance to take anti-depressant medication which, in his opinion, would help stabilise her mood. Both these factors, he reckoned, were complicating her diagnosis and capacity to work.
Evidence of Ms Mardonna Abella

Ms Madonna Abella, Psychologist, saw Ms Duncan in 2007 for treatment. She reports Ms Duncan presented with moderate symptoms of depression and anxiety with a predominant complaint of somnolence.
Ms Abella states that Ms Duncan had progressed in controlling her work stress but remained burdened by relationship issues in her home life. She recommended further sessions to assist Ms Duncan in coping with the stress of her husband’s cancer diagnosis and in the long-term significantly restore her occupational functioning.
Evidence of Dr Martin Devereaux
Dr Devereaux, Consultant Physician in Rheumatic Diseases, treated Ms Duncan during 2008. In his report of April that year he states that Ms Duncan had started taking one day a week unpaid leave at work and had discussed with him the option of claiming two years Superannuation Disability with Fibromyalgia.[17]
[17] T Documents, T6: Report of Dr Martin Devereaux dated 24 April 2008.
He notes that she had just had two years with Major Depressive Disorder, and that he explained the two diagnoses “are not mutually exclusive and are so closely related that fibromyalgia would not be another discrete diagnosis for another Superannuation claim”.
He reports that Ms Duncan was tender in classic fibromyalgia areas, had full range of pain-free spinal movement and was overweight at 94.7kg. He diagnosed her with Fibromyalgia complicating a depressive illness.
He recommended Ms Duncan engage in Tai Chi, water aerobics and weight reduction in addition to her medication to address her diagnoses. In a follow-up appointment of July 2008, he reports Ms Duncan had gained weight to 96.3 kg and states "I have reinforced the need for weight reduction and a fitness exercise program".[18]
[18] T Documents, T7: Report of Dr Martin Devereaux dated 24 July 2008.
Evidence of Dr Peter Landsberg
Ms Duncan was referred to Dr Peter Landsberg, Rheumatologist, in 2010. Dr Landsberg described Ms Duncan as a “big lady” with a “wide variety of issues” and referred her for further investigations. He accepts that, based on his assessment, Ms Duncan has Fibromyalgia.[19]
[19] T Documents, T8: Report of Dr Peter Landsberg dated 9 August 2010.
Evidence of Ms Lauren McGucken
Ms Lauren McGucken, Dietician, treated Ms Duncan as part of a multi-disciplinary team at the Health and Diabetes Centre in 2013. She weighed Ms Duncan as 103.6 kg stating that she had previously lost 10 kilos with Jenny Craig before. She stated Ms Duncan was “very much an emotional eater” who required education around weight management. [20]
[20] Supplementary T Documents, ST1: Report by Dr David Carey, Endocrinologist dated 19 August 2013.
She referred Ms Duncan to an Exercise Physiologist for nutrition management, noting she had not seen one before, and recommended the following goals:
(a)weight loss;
(b)improve calorie awareness; and
(c)improve dietary habits.
Evidence of Mr Steve Nichols
Mr Steve Nichols, Exercise Physiologist, saw Ms Duncan in November 2013. In his report he states she has a moderate level of fitness and is currently doing Aqua Zumba two days per week for an hour.
He refers to Ms Duncan’s poor sleep quality as increasing her levels of pain and recommends the following goals:
(a)improve posture;
(b)weight loss; and
(c)increase fitness.
Evidence of Dr David Carey
Dr David Carey, Endocrinologist, saw Ms Duncan over approximately two years at a Health and Diabetes Centre. In March 2014 he observed that Ms Duncan had lost 1.3 kilos.[21]
[21] Supplementary T Documents, ST4: Report of Dr David Carey dated 26 March 2014.
Dr Carey states Ms Duncan has ongoing pain which is “not fully managed”. He reported she was “rather inconsistent” with use of Byetta, her weight loss medication, recommending she take it consistently as this would prevent the associated nausea.[22]
[22] Supplementary T Documents, ST2: Exercise report by Steven Nichols, Exercise Physiologist dated 6 November 2013.
Evidence of Dr Helen Brown
Dr Helen Brown, Neurologist, diagnosed Ms Duncan with benign intracranial hypertension in 2015. In 2016 she saw Ms Duncan for her fatigue and stated that, overall, her troublesome headaches and blurred vision had resolved.
She reported that Ms Duncan had no significant changes in her weight since April 2015. Ms Duncan reported to her that she had lost some weight but then regained it over the Christmas period when she stopped taking her diabetes medication and her exercise program closed.[23]
[23] T Documents, T13: Report of Dr Helen Brown dated 22 February 2016.
Evidence of Dr Nabeel Sheikh
Dr Nabeel Sheikh, Neurologist, saw Ms Duncan in 2018 for her Migraines/Idiopathic intracranial hypertension (IIH). In his report of August 2018 he states his impression of Ms Duncan is that:[24]
·her headaches are very much consistent with migraines;
·there is possible coexisting issue of functional overlay; and
·her IIH symptoms are a probably a lot better than they have been in the past.
[24] T Documents, T16: Report of Dr Nabeel Sheikh dated 30 August 2018.
In February 2019 Dr Sheikh reports Ms Duncan’s migraine headache is markedly better with a medication adjustment although that she had not maintained her headache diary and her tiredness continues.[25] In March 2019 Dr Sheikh notes Ms Duncan’s headaches were a bit worse after a lesser medication dosage and considered that another medication was causing her tiredness.
[25] T Documents, T16: Report of Dr Nabeel Sheikh dated 4 February 2019.
In his report of 14 May 2020 Dr Sheikh stated:
“her headaches are not particularly well controlled at this stage but it is a multifactorial aggravation. Once again explained to her the lack of clinical evidence to support her application for total permanent disability based on the headaches themselves.”
In his report of 16 July 2020 Dr Sheikh reported that Ms Duncan had raised further concerns regarding her headaches and he notes that she has a number of atypical issues, in that she experienced a very transient and rapid change in symptoms with significant and remarkable resolution “rather spontaneously” without any changes in her weight or medication doses.
Dr Sheikh considers that Ms Duncan has a functional neurological disorder with multiple headache descriptions that indicate a “significant intermixed functional element”.
Evidence of Dr Raveen Naras
Dr Raveen Naras, Specialist Physician and General Surgeon, specialises in fibromyalgia and saw Ms Duncan in late 2019. In his respective report he states Ms Duncan experienced generalised aches and pains that she attributed to fibromyalgia and that he observed she had a few tender points. He concludes that there was insufficient evidence to diagnose her with Fibromyalgia syndrome.[26]
[26] T Documents, T19E: Report of Dr Naras dated 30 October 2019.
In his report of August 2020 Dr Naras reviewed Ms Duncan and stated that her main complaint was that of severe fatigue and forgetfulness.[27] He made no changes to her medication and advised her to engage in an exercise program and lose weight.
[27] T Documents, T20: Report of Dr Naras dated 26 August 2020.
Evidence of Dr James Soo
Dr James Soo, General Practitioner, provides reports of his treatment of Ms Duncan and referrals for her further treatments and investigations since 2010. In 2020 he completed Ms Duncan’s application form to support her Access Request.[28]
[28] T Documents, T23; Supplementary T Documents, ST9, page 228.
In the Access Request form Dr Soo states that Ms Duncan has primary impairments of:
·Chronic Fatigue Syndrome
·Chronic Pain Syndrome
·Issues with concentration, memory, planning and decision making.
He states Ms Duncan has had these impairments since 2017 and that she has been under the care of numerous physicians including two Neurologists and a General Physician, and that despite numerous treatments her symptoms and reduced function have persisted. He submits her impairments are likely to lifelong.
Dr Soo states Ms Duncan has secondary impairments of:
·Fibromyalgia
·Depression
·Sleep Apnoea
·Chronic Migraine
·Intracranial Hypertension.
He states she has had these for several years, and that she has tried numerous treatments through a number of specialists with no resolution of symptoms. He submits that her secondary impairments are likely to be lifelong.
In October 2020 Dr Soo, at the request of the Agency, filled out another access request form to provide additional information regarding Ms Duncan’s depression/fibromyalgia.[29] In this form he states that Ms Duncan has primary impairments of:
·Fibromyalgia;
·Chronic Depression;
And that she has had these conditions since 2005.
[29] T Documents, T21: Access request form completed by Dr James Soo dated 7 October 2020.
In both the August and October access request forms, Dr Soo states that Ms Duncan needs assistance from other persons for:
·Learning
oongoing issues with memory, concentration and decision making;
owill benefit from assistance and supervision;
·Self management
owill benefit from assistance with housework e.g. vacuuming, cleaning, meal preparation and organisation.
Dr Soo also wrote letter to the Agency to provide further clarification of Ms Duncan’s conditions.[30] In this letter he listed her medical conditions as follows:
(i)Fibromyalgia/Chronic pain syndrome;
(ii)Chronic depression;
(iii)Chronic migraines and IIH; and
(iv)Weight – Obesity BMI 33.3.
[30] Supplementary T Documents, ST9: Report of Dr James Soo dated 5 October 2021.
He considers that these are all chronic, lifelong conditions.
Dr Soo states he had not referred Ms Duncan to a Persistent Pain Unit for her Chronic pain and she was under the care or Dr Naras who specialised in Fibromyalgia/Chronic pain. In regards to treatment for Ms Duncan’s Weight – Obesity, Dr Soo says weight loss surgery may be considered in the future although has not been explored at this stage because:
·The cost to Ms Duncan is prohibitive; and
·Ms Duncan has concerns about the risks associated with bariatric surgery.
Dr Soo referred Ms Duncan to Dr Romana Bowd for treatment of her depression and “multiple other co-morbidities”.[31]
[31] Supplementary T Documents, ST8: Report of Dr James Soo dated 20 October 2020.
Evidence of Dr Romana Bowd
Dr Romana Bowd, Psychologist, has treated Ms Duncan for her “issues relating to depression” since April 2021.[32] She states Ms Duncan’s presenting problem is Major Depressive Disorder.[33]
Dr Bowd reported Ms Duncan experiences difficulty managing moods and resultant procrastination of tasks within the home environment. She treats Ms Duncan in collaboration with Dr Soo for holistic treatment.
[32] Supplementary T Documents, ST14: Report of Dr Romana Bowd dated 3 March 2022.
[33] Supplementary T Documents, ST8: Report of Dr Romana Bowd dated 18 August 2020.
Evidence of Dr Joseph Kluver
Dr Joseph Kluver, Pain Medicine Physician, assessed Ms Duncan in February 2022 to further investigate her pain condition. He produced a subsequent report for the purpose of this application.[34]
[34] Supplementary T Documents, ST13: Report of Dr Joseph Kluver dated 4 February 2022.
Dr Kluver states that Ms Duncan describes two separate pain syndromes; one, a widespread pain with multiple tender areas all over body consistent with nociceptive pain; and the other, a persistent headache.
He considers Ms Duncan has general myofascial tenderness consistent with fibromyalgia syndrome with the absence of any other stigmata of chronic disease. He states that Ms Duncan has a good understanding of her diagnoses but is “not currently cure-focussed”.
He recommends an activity program to increase her activity tolerance and improve her fatigue; however, it is less likely to improve her pain.
Regardless of further treatment options, it is his view that Ms Duncan’s symptoms are likely to persist and her level of pain is unlikely to change. Further, that she is likely to have some varying degree of persisting fatigue.
Evidence of Dr Nicholas Burke
Dr Nicholas Burke, Occupational Physician and Certified Independent Medical Examiner assessed Ms Duncan in April 2022 and produced a subsequent report.[35]
[35] Supplementary T Documents, ST15: Report of Dr Nicholas Burke dated 21 April 2022.
Dr Burke reports that Ms Duncan described her principal issue as her headaches, with secondary issues of fatigue and pain. He agreed with Dr Sheikh that there is a significant functional component to Ms Duncan’s overall presentation
Dr Burke does not consider any further treatments, supports or interventions that are likely to benefit Ms Duncan or improve her functional capacity. He believes that she does not require support assistance beyond what she receives under the QCSS and that she will not require lifelong support for any of her impairments.
Evidence of Ms Leanne Loch
Ms Leanne Loch, Occupational Health Physiotherapist, assessed Ms Duncan in October 2023 and prepared a subsequent functional capacity report dated 28 October 2022.[36]
[36] Supplementary T Documents, ST16: Report of Ms Leanne Loch dated 28 October 2022.
Ms Loch considers Ms Duncan independent in all areas of functional capacity:
(a)Mobility – Independent, may benefit from wheelie stick/walking stick.
(b)Self-care – Independent, slow. Only need for support currently relates to garden maintenance and domestic cleaning. It is important that while Ms Duncan continues doing all self-care while she can. Having a carer complete these tasks for her will further increase her disability.
(c)Social interaction – May benefit from referral to social worker to explore community groups for social interaction and support.
(d)Learning - Neuropsychological assessment is recommended if further information is required about Ms Duncan’s cognition and learning skills.
(e)Self-management – Independent, no assistance required.
Based on her observations Ms Loch states that Ms Duncan reports a self-perception of function lower than what she can demonstrate. She states “Ms Duncan’s perceived function was lower than her actual function”.
Ms Loch considers that Ms Duncan does not demonstrate “exaggerated pain behaviour” which describes when movements are limited and attempted to be modified due to pain. Therefore, she says, Ms Duncan was consistently limiting her movements and did not engage in exercise to the degree where she may be struggling to cope.
Ms Loch considers it is often in the case of persons with chronic pain conditions that they do not consciously self-limit unnecessarily and do so out of fear-avoidance. Further, that Ms Duncan puts up mental barriers to movement due to her underlying anxiety and depression.
For example, Ms Duncan reported a five-minute concentration tolerance but presented no observed limitation in following instructions and answering questions over the 2.75 hours of interview and assessment.
Also, that Ms Duncan assessed her own walking capacity at a maximum of ten minutes, and reported that she walked her dog for 20 minutes each day. Ms Duncan later was reported to speak of her lower back pain that comes on with sustained walking after 30 minutes.
Ms Loch states that the fatigue and chronic pain of fibromyalgia affect motivation for physical activity resulting in increased sedentary behaviour and in turn, reduced function and poorer mobility. Therefore, pain management education is “critical” to improving self-limiting behaviour.
Ms Loch describes fibromyalgia as “a complex condition with both physical and psychological and social overlay” and that it is very common that there be secondary contributions from mood and sleep.
Ms Loch considers some recommendations for Ms Duncan to:
(a)increase her function;
(b)increase her ability to cope with her experience of pain; and
(c)improve the self-management and self-efficacy of her functional capacity.
Ms Loch identifies other treatments Ms Duncan has not yet engaged in including consultation with an exercise physiologist and pharmacological management, both which are accessible through a GP in the public health care system.
Notwithstanding, Ms Loch confirms that there are “multiple ways of achieving the same goal” and treatment with a physiotherapist is a reasonable alternative to her recommendation for an exercise physiologist.[37]
[37] Transcript of Proceedings.
She recommends that Ms Duncan engage with a pain specialist to explore further treatment options, which she has previously been referred to and did not attend. She considers that Ms Duncan would benefit from a multi-disciplinary program to re-establish regular walking and increase her mobility.
She states that while Ms Duncan’s symptoms are unlikely to be significantly changed with treatment her function can be maintained and somewhat improved. Therapy to support and maintain physical activity and self-management is essential and represents optimal treatment.
Evidence of Ms Gail Duncan
Ms Duncan considers that her disability has changed over time due to her worsening fibromyalgia symptoms, and that her impairments have compounded since she was diagnosed with Major Depressive Disorder.[38]
[38] Supplementary T Documents, ST18: Applicant’s Statement of Lived Experience; Transcript of Proceedings.
Ms Duncan reports that due to her low energy levels she is unable to:
·complete basic activities of living including domestic chores;
·shower everyday and attend to her self-care needs;
·access the community access and socialise;
·prepare healthy meals; and
·drive more than 30 minutes to visit her mother who lives two hours away.
Her life goals are to be able to stabilise her mood, increase her social engagement and not have to reply on her ex-husband and son for daily help.[39]
[39] Supplementary T Documents, ST18: Applicant’s Statement of Lived Experience.
Ms Duncan provided a statement dated October 2022 titled “Further information to add following the Functional Capacity Assessment” contending the accuracy of the report made by Ms Leanne Loch.[40]
[40] Joint Hearing Bundle, Section 3, Document 3.4: Statement of the Applicant, page 311.
She states that she was assessed on a very good day, not baseline day, and considers that she does not perceive her function lower than her actual function. Rather, she is referring to the post-exercise fatigue that comes on if she pushes past a physical limit.
Ms Duncan considers that fatigue is her “major issue” and that she is always looking for ways to reduce pain while not exacerbating fatigue. She says some days she is unable to get out of bed due to extreme pain and/or fatigue and that could be caused by any of her disabilities.
She believes that walking, more than anything, affects her access to the community, and that she avoids stairs at all costs due to hip/knee pain. She states that her memory is a constant source of difficulty and multi-tasking is a huge issue although she does not know what causes it.
In May 2023 Ms Duncan wrote a letter titled “Current rehabilitation and treatment” identifying an increased pain in her shoulders, back, hips, knees and feet that requires further physiotherapy appointments each week.
She considers that she does not need to see an exercise physiologist when she is already regularly seeing a physiotherapist for similar treatment. She does not believe that there is any treatment that can improve her functionality because she will still have issues with energy levels, pain and fatigue.
CONSIDERATION
Section 24: Disability Requirements
24(1)(a): Disability attributable to physical and psychosocial impairments
The evidence establishes that Ms Duncan has a disability attributable to the accepted impairments of Fibromyalgia, Migraines, Chronic Pain Syndrome and Major depressive disorder.

It may be sufficient for Ms Duncan to have a single impairment that meets all access criteria and the Tribunal will consider a single impairment with a particular criterion only where it is satisfied, on the evidence available, that it can be sufficiently distinguished from the other impairments.
The Tribunal accepts the evidence of Dr Soo and Ms Bowd that Ms Duncan’s primary issue is Major Depressive Disorder and that her other impairments are related co-morbidities. The Tribunal refers to the evidence of Ms Duncan that her impairments have compounded over the time since 2005 when she experienced significant life stressors and was subsequently diagnosed with Major Depressive Disorder.
The evidence establishes Ms Duncan’s symptomology is complex and there is substantial overlap in her symptoms and recommended treatments for her overall improvement. In these circumstances the Tribunal is satisfied Ms Duncan’s disability is appropriately considered as a single, multi-factorial impairment.
Section 24(a)(b): Permanancy
The Tribunal is satisfied that Ms Duncan’s disability for which she seeks access to the Scheme is attributable to the accepted impairments, and that those impairments have crystalised in fulsomeness in or around 2017.
The Tribunal must be further satisfied that:
there are no known, available and evidence-based treatments likely to remedy Ms Duncan’s impairments; and
no require further medical treatment or review is required for their permanency or likely permanency to be demonstrated.
“Available treatment” contemplates “treatment available to a particular individual” including their financial capacity to access a treatment.[41]
[41] See National Disability Insurance Agency v Davis [2022] FCA 1002 at [138].
“Remedy” should be understood to mean something approaching a “removal” or “cure” of an impairment.[42]
[42] Ibid, at [136].
“Permanency” should be understood to mean that the impairments that Ms Duncan experiences have an enduring nature and require supports provided and/or funded under the Scheme on an ongoing basis.[43]
[43] Ibid, at [130].
The Tribunal considers that Ms Duncan has been recommended a multi-disciplinary approach to treatment with a pain management clinic, exercise physiologist, dietician and psychologist.
The Tribunal accepts the evidence of Dr Carey and Dr Sheikh that these recommendations are available to Ms Duncan through the public health care system and that are appropriate and evidence-based to treat her impairments.
The Agency submits there are further multi-disciplinary approaches which have not yet been attempted in their full capacity. The Agency refers to the recommendations of Ms Loch which include:
·Pain-management program
·Pharmacological options
·Combination of psychological and physical treatment
Ms Loch makes her recommendations with a view to improving Ms Duncan’s functional capacity and fatigue. She states that she does not expect Ms Duncan to make significant functional gains beyond her current capacity although she does not consider her current capacity to be substantially reduced.
In her opinion, Ms Duncan is unlikely to experience any improvement in her pain with or without treatment and therefore requires a “pain-management” approach.
The Tribunal considers that Ms Duncan has previously engaged a multi-disciplinary team at Dr Carey’s Health and Diabetes Centre for two years in a private capacity and refers to exhausting both financial means and any further potential progress as her reason for disengagement.
Further, that Ms Duncan currently engages a psychologist and physiotherapist for ongoing treatment and is compliant with an extensive list of medications. [44]
[44] Joint Hearing Bundle, Section 3, Document 3.3: Account Statement from Bounce Physio dated 9 May 2023; Document 3.4: Statement of the Applicant.
The Agency refers to the evidence of Dr Naras and Dr Devereaux that Ms Duncan may experience improvement in her symptoms with weight-loss. Specifically, that weight loss represents a further medical treatment and review that is required for the permanency of her impairments to be demonstrated.
The Tribunal accepts the evidence of Ms Duncan that she is not currently eligible for bariatric surgery in the public health system and the cost is prohibitively expensive to her DSP. It is therefore not considered an “available” treatment.
The Tribunal considers that Ms Duncan’s obesity is a co-morbidity not independent of her impairments. Ms Duncan states her weight fluctuates with her depression, pain and fatigue. The evidence establishes that her weight is a symptom of her impairments.
The evidence of Dr Soo, Dr Burke, Dr Kluver and Ms Loch establishes that Ms Duncan is unlikely to experience any significant improvement in her symptoms, irrespective of treatment.
The Tribunal is satisfied that Ms Duncan’s impairments are permanent.
Section 24(1)(c): Substantially reduced functional capacity
The Tribunal considers Ms Duncan’s evidence describing her lived experience in each of the criteria listed at section 24(1)(c)(i) to (vi) (the functional domains) and her respective limitations due to fatigue, pain and headaches.
Independent assessments of Ms Duncan state that she independently performs in all the functional domains with some support needed for garden maintenance and domestic cleaning. Further, that she will benefit from retaining her independence and may improve her functional capacity with ongoing treatment.
In his Access Request form, Dr Soo states that Ms Duncan would benefit from assistance and supervision in the domain of learning although he does not describe the assistance that he considers that she needs. In the absence of corroborating evidence, the Tribunal does not consider that Ms Duncan requires assistance or supervision with the activity of learning.
In respect to the assistance Ms Duncan requires with household and gardening tasks, the Tribunal refers to National Disability Insurance Scheme v Foster at [65]:[45]
[65] “Rather than using the assessment tool, being the Guidelines, to reach a conclusion as to whether or not Mr Foster had substantially reduced functional capacity to undertake self-care by assessing his functional capacity with respect to the bundle of tasks and actions forming the concept of “self-care”, the Tribunal applied the Guidelines in such a way as to equate Mr Foster’s impairment with the single task of toileting and deemed that to be the relevant activity for which functional capacity was required to be assessed. That was an error.”
[45] [2023] FCAFC 11 (Foster).
Ms Duncan states that her energy levels limit the number of tasks including housework that she can complete each day. The Tribunal accepts that Ms Duncan experiences some reduced capacity in undertaking communication, mobility, self-care, social interaction, learning and self-management.
The evidence of Ms Duncan and Ms Loch establishes that Ms Duncan regularly performs a significant number of other self-management tasks including driving herself to medical appointments, doing laundry, buying groceries, doing her banking and self-administration.
The Tribunal does not accept that the assistance with housework and gardening that Ms Duncan usually receives from QCSS or her husband demonstrates a substantially reduced functional capacity across the “bundle of tasks” that comprise the full domain of self-management.
There is insufficient evidence for the Tribunal to find that Ms Duncan experiences a substantially reduced functional capacity in any one of the functional domains of communication, mobility, self-care, social interaction, learning and self-management.
The Tribunal is not satisfied that Ms Duncan meets the substantially reduced functional capacity criteria.
Section 24(1)(e): Is NDIS support required for Ms Duncan’s lifetime
The Agency submits that it is unclear what supports Ms Duncan is likely to require for her lifetime because Ms Duncan already receives 1.5 hours of support work assistance each week from the QCSS.
Further, that the various supports recommended by her treating practitioners including exercise physiology, physiotherapy and psychology services can be accessed through Medicare with a referral from her general practitioner.[46]
[46] Respondent’s Statement of Facts, Issues and Contentions at [46].
Ms Loch states that Ms Duncan is likely to require lifelong support for domestic chores and episodic physiotherapy and psychology to maintain her function, and that both are available through the public health system.
The Tribunal refers to the matter of Foster as follows:
“The focus of s24(1)(e) is on whether a prospective participant is likely to require support under the NDIS, or whether those support needs are most appropriately met by other systems.”
Ms Duncan states that she needs supports for her impairments as follows:[47]
“I need support with cleaning, making my bed and washing linen. I receive fortnightly help from QCSS – Life Without Barriers to clean the parts of the house I use and the bed and they hang out the bedding from the washing machine. I am unable to vacuum or mop or clean my bathroom at all. I cannot scrub anything like the shower wall nor use a dustpan and brush. I am unable to change my bed sheets…
I need support to organise my medications as I take 16 tablets a day, insulin and Movicol daily as well as other medications as needed. I have my pharmacy pack my medications in a medipack to make it easier for me to face taking and remember to take…
I need support to wash dishes. My ex-husband will wash the dishes but the dishes will pile up for days before he does them…
I need support with washing clothes. I can manage to put a load into the washing machine bit by bit. Then I have to hang it out I find that very difficult as putting my arms above my head is tiring when I’m already tired or in pain.”
[47] Supplementary T Documents, ST18: Applicant’s Statement of Lived Experience.
The Tribunal considers that Ms Duncan seeks support worker assistance for:
·Household tasks such as laundry and cleaning;
·Gardening maintenance;
·Grocery shopping;
·Showering and washing her hair;
·Organising her medications; and
·Preparing meals.
The evidence establishes that Ms Duncan’s pharmacy already assists with pre-packing her medications and that she is able to manage taking these everyday independently.
The Tribunal accepts that Ms Duncan has a support worker under the QCSS to assist with laundry, changing her bed sheets, vacuuming, mopping, cleaning her bathroom and yard maintenance.
The Tribunal considers that Ms Duncan receives her current physiotherapy and psychology sessions through the public health system by referral from Dr Soo. Further, that assistance with grocery shopping and meal preparation are both available through the QCSS.[48]
[48] See - Queensland Community Support Scheme, last updated 3 October 2023.
The Tribunal is not satisfied that Ms Duncan requires support provided and/or funded under the National Disability Insurance Scheme for her lifetime.
The Early Intervention Criteria
Section 25(1)(a): Are the resulting impairments considered “permanent”
The Tribunal refers to paragraphs [112]-[115] above and finds this is satisfied.
Section 25(1)(b): Are early intervention supports likely to reduce Ms Duncan’s future support needs
The Agency considers that the treatments recommended to Ms Duncan by her treating professionals and independent assessors are not “early intervention” but rather “support to maintain her functioning”.[49]
[49] Respondent’s Statement of Facts, Issues and Contentions at [53].
The Agency refers to James and NDIA [2019] AATA 4248 at [49]:
“The objective of early intervention support is expressed to be to ‘lower the costs and impacts’ associated with the disability for individuals and the wider community over the longer term. Accordingly, the early intervention requirements look at 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.”
In considering whether Ms Duncan may benefit from early intervention supports, Dr Burke states that:
“I do not believe that any further interventions are likely to benefit her and reduce her possible requirement for support.”
In response to the same question, Ms Loch states that:[50]
“a multidisciplinary pain management program may increase self-efficacy, coping and function however this would be a late rather than early intervention and effectiveness therefore less promising.”
[50] Supplementary T Documents, ST16: Report of Ms Leanne Loch dated 28 October 2022.
Ms Duncan considers this statement in her submission “Further information to add following the Functional Capacity Assessment” of October 2022 and responds as follows: [51]
“Whilst I may not be suitable for early intervention, this does show that the interventions available to me are not very promising.”
[51] Joint Hearing Bundle, Section 3, Document 3.4: Statement of the Applicant.
The Tribunal accepts the submissions of Ms Loch and Dr Burke that the provision of early intervention supports is not likely to reduce Ms Duncan’s future support needs.
The Tribunal further accepts that Ms Duncan does not consider that there is any treatment that can improve her functionality because she will still have issues with energy levels, pain and fatigue.
Section 25(1)(b) is not satisfied.
Pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) the Tribunal affirms the decision under review not to grant the applicant access to the National Disability Insurance Scheme because the Tribunal is not satisfied that she meets either the “disability requirements” under section 24 or the “early intervention requirements” under section 25 of the National Disability Insurance Scheme Act 2013 (Cth).
I certify that the preceding 159 (one hundred and fifty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member P J Clauson AM
……………………[SGD]..…………………..
6 February 2024
Associate

[2024] AATA 121

6 February 2024

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Appeal