Duong and National Disability Insurance Agency (NDIS)
[2025] ARTA 121
•17 February 2025
Duong and National Disability Insurance Agency (NDIS) [2025] ARTA 121 (17 February 2025)
Applicant:Cuc Duong
Respondent: National Disability Insurance Agency
Tribunal Number: 2023/1784
Tribunal:General Member A Colvin
Place:Brisbane
Date:17 February 2025
Decision:The Tribunal affirms the decision under review.
......................SGD.................................
General Member A Colvin
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – access - whether applicant meets disability requirements – NDIS Act s24(1)(c)
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 (Cth)
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)Cases
Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 60
National Disability Insurance Agency v Foster [2015] FCA 544
Mulligan v National Disability Insurance Agency [2015] FCA 544
National Disability Insurance Agency v Davis [2022] FCA 1002
Madelaine and National Disability Insurance Agency [2020] AATA 4025
Davis and National Disability Insurance Agency [2023] AATA 1437Secondary Materials
NDIS – Applying to the NDIS Guidelines
Statement of Reasons
BACKGROUND
This review is about whether Mrs Cuc Duong should be granted access to the National Disability Insurance Scheme (NDIS). Mrs Duong is 67 years old and resides in Victoria. She was born in Vietnam and moved to Australia in 1986.[1] She seeks access to the NDIS based on impairments arising from mental health conditions.
[1] Case Closure Summary, North Western Mental Health Service, C1, HB, p 273.
Mrs Duong applied to the National Disability Insurance Agency (Agency) to become a participant in the NDIS in November 2022. However, on 6 December 2022, the Agency decided that she did not meet the criteria to become a participant of the NDIS and then confirmed that decision on internal review on 3 March 2023.[2]
[2] T2, T Documents, HB (HB), pp 17–27.
Mrs Duong applied to the Administrative Appeals Tribunal (AAT) on 20 March 2023 seeking review of the Agency’s decision.[3] From 14 October 2024, the AAT became the Administrative Review Tribunal (Tribunal). Applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal, and the Tribunal has authority to continue and finalise any aspect of the review not already completed by the AAT.[4]
[3] T1, T Documents, HB, pp 1–5.
[4] Transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth).
The matter was determined on 15 January 2025 in the absence of the parties. The documents before the Tribunal are contained in a Hearing Bundle, prepared by the Agency’s representative after consultation with Mrs Duong’s advocate.
DETERMINING THE PROCEEDINGS WITHOUT A HEARING
I am satisfied for the purposes of subsection 106(2) of the Administrative Review Tribunal Act 2024 (Cth) (ART Act) that both parties have consented to this proceeding being determined without a hearing and that the issues can be adequately determined in the absence of the parties. I set out below my reasons for finding that Mrs Duong has capacity to consent to this matter being determined without a hearing and that she has done so.
Mrs Duong has a mental illness. She speaks Vietnamese and requires an interpreter in legal proceedings. She has been assisted during her application for review by a lay advocate, Ms Horne-Spalling, NDIS Appeals Officer, Action on Disability within Ethnic Communities Inc (ADEC).
Ms Horne-Spalling has had difficulty engaging Mrs Duong in these proceedings. The Tribunal therefore did not have the benefit of hearing directly from Mrs Duong.
As I have set out later in these Reasons, Mrs Duong has psychosocial and cognitive impairments arising from her mental health condition. However, the material before me does not indicate that Mrs Duong lacks capacity to make decisions about this application. I have particularly had regard to an assessment by Ms Houston, occupational therapist, and the most recent assessment by Mrs Duong’s GP, Dr Ho.
Dr Ho completed part of a NDIS application form on 13 July 2024, assessing Mrs Duong’s functional capacity in a range of activities (Dr Ho’s 2024 assessment). He considered that she had reduced concentration and memory but that her functional capacity in communication and learning (which included understanding information) was normal. [5]
[5] A3, HB, pp 209–219 at 213.
Ms Houston assessed Mrs Duong on 6 February 2024 and provided a report dated 19 March 2024 (Ms Houston’s report).[6] The assessment was conducted in Vietnamese. Ms Houston describes Mrs Duong’s symptoms of mental illness, medication regime, and treatment history, noting that Mrs Duong has only been hospitalised once in relation to her mental health and that was in 2002.[7] Ms Houston also reports that there was no observed cognitive impairment at the time of the assessment in terms of Mrs Duong’s ability to respond to questions and her overall participation in the assessment process.[8] Later in the report, in commenting on Mrs Duong’s communication ability, Ms Houston reported that there was no reduction in Mrs Duong’s capacity for communication; Mrs Duong was able to understand questions and be understood, in Vietnamese, and had clear thought processes.[9] Ms Houston also regarded Mrs Duong as able to make personal decisions independently.[10]
[6] B1, HB, pp 227–260.
[7] B1, HB, p 227 at 231–234.
[8] B1, HB, p 227 at 233.
[9] B1, HB, p 227 at 250–251.
[10] B1, HB, p 227 at 255.
There is nothing to indicate that Mrs Duong’s mental state has changed significantly since those assessments. I am therefore satisfied, in the absence of material indicating otherwise, that Mrs Duong has capacity to provide consent to this matter being determined without a hearing for the purposes of subsection 106(2) of the ART Act.
The assistance that ADEC can provide to Mrs Duong does not extend to representation at a final hearing and Mrs Duong would therefore be unrepresented. Mrs Duong provided two documents in which she asks to have this application determined without a hearing, explaining that she would be unable to represent herself or participate because it would cause her significant stress and anxiety.[11]
[11] A5 and A6, HB, pp 223–224 and 225–226 respectively, at 223.
The Tribunal has not heard directly from Mrs Duong, she is represented by a lay advocate, and the circumstances around interpreting her written consent into English are unclear. Despite these factors, I am sufficiently satisfied, based on Mrs Duong’s written consent and statements made by Mrs Duong’s advocate, that Mrs Duong would not participate in a hearing even though accommodations would be made for her disability. I am also sufficiently satisfied that her advocate has made appropriate attempts to inform Mrs Duong about options regarding a hearing of this application, and that Mrs Duong wishes to have her application determined without a hearing. Proceeding to consider Mrs Duong’s application on its merits in accordance with subsection 106(2) of the ART Act is a preferable course, having regard to the Objectives in section 9 of the ART Act, to dismissing the application for non-attendance.
ISSUES
To become a participant in the NDIS, a person must meet the requirements in section 21 of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act), referred to as the ‘access criteria’. A person meets the access criteria if the person meets three requirements: the age requirements,[12] the residence requirements,[13] and either, the requirements set out in section 24 (the disability requirements) or section 25 of the NDIS Act (the early intervention requirements).
[12] See section 22 of the NDIS Act.
[13] See section 23 of the NDIS Act.
It is not in contention, and I so find, that Mrs Duong meets the age and residence requirements in section 21 of the NDIS Act. The issue in this case is whether Mrs Duong meets the disability requirements or early intervention requirements.[14]
[14] Subsection 21(2) of the NDIS Act provides an alternative way to meet the access criteria but there is no contention or indication that it has any application in the present situation.
THE LEGAL FRAMEWORK
The statutory provisions relevant to this review are contained in the NDIS legislation, including:
·the NDIS Act; and
·the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (Access Rules).
The NDIS Act was amended on 3 October 2024 by the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 (Amending Act). Sections 21, 24 and 25 were amended but the amendments only apply to a person who makes an access request on or after 3 October 2024.[15] Mrs Duong’s application was made prior to that date. Accordingly, where those provisions are discussed below, it is the provisions in force prior to amendment on 3 October 2024.
[15] Items 125 and 126, Part 3 of the Amending Act.
The Agency also issues operational guidelines. The Tribunal is not bound to follow operational guidelines issued by the Agency. However, in the absence of any statutory indication to the contrary, any lawful executive policy enacted to guide the exercise of a statutory power is a relevant factor for the Tribunal to take into account in performing its review task.[16] The relevant guidelines in this review are the NDIS – Applying to the NDIS Guidelines (Access Guidelines).[17]
[16] Re Drake and Minister for Immigration and Ethnic Affairs(No 2) (1979) 2 ALD 634.
[17] D1 HB pp 383–434, as the Access Guidelines were immediately prior to the legislative amendments on 14 October 2024.
The disability requirements
The disability requirements are set out in section 24 of the NDIS Act, as follows:[18]
[18] Section 24 as in force immediately prior to 3 October 2024.
(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.
(3)For the purposes of subsection (1), an impairment or impairments that are episodic or fluctuating may be taken to be permanent, and the person may be taken to be likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the episodic or fluctuating nature of the impairments.
(4)Subsection (3) does not limit subsection (2).
The Access Rules also contain the following relevant provisions:
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).
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.
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.
21.The Access Guidelines also contain relevant passages including guidelines related to whether an impairment is permanent, and the following provisions regarding matters to consider when assessing functional capacity:[19]
[19] D1, HB, p 383 at 390–391
Your permanent impairment needs to substantially reduce your functional capacity or ability to undertake activities in one of the following areas:
· Socialising – 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.
· Learning – how you learn, understand and remember new things, and practise and use new skills.
· Mobility, or moving around – 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.
· Self-care – personal care, hygiene, grooming, eating and drinking, and health. We consider how you get dressed, shower or bathe, eat or go to the toilet.
· Self-management (if older than 6) – 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.
Your impairment substantially reduces your functional capacity if you usually need disability specific supports to participate in or complete the above tasks.
These disability-specific supports include:· a high level of support from other people, such as physical assistance, guidance, supervision or prompting.
· assistive technology, equipment or home modifications that are prescribed by your doctor, allied health professional or other medical professional.
The early intervention requirements
The early intervention requirements are set out in section 25 of the NDIS Act. Those requirements include the requirement that the person have certain impairment/s or is a child who has developmental delay (paragraph 25(1)(a)), that the 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 their disability (paragraph 25(1)(b)) and that the provision of early intervention supports is likely to benefit the person in other specified way/s (paragraph 25 (1)(c)).
SUBMISSIONS
Mrs Duong’s advocate provided a Statement of Facts, Issues and Contentions (Applicant’s SFIC) on 7 October 2024 and the Agency provided the following submissions:
·a Statement of Facts, Issues and Contentions dated 9 August 2024 (Agency’s SFIC);
·a Statement of Facts, Issues and Contentions in Reply dated 2 December 2024 (Agency’s Reply); and
·a submission lodged on 31 October 2024 on the effect of amendments to the National Disability Insurance Scheme Act 2024 (the NDIS Act).[20]
[20] B2, HB, pp 261–263.
In the Applicant’s SFIC it is contended on Mrs Duong’s behalf that she has schizoaffective disorder, anxiety, and depression, resulting in certain impairments.[21] Regarding supports that Mrs Duong will require, the Applicant’s SFIC indicates that she will likely seek supports including support worker assistance (for personal care, cleaning, and home maintenance) as well as psychology, speech therapy and occupational therapy.[22] No submission is made that Mrs Duong has impairments arising from physical conditions, for the purposes of subsection 24(1) of the NDIS Act. Similarly, no submission is made that she meets the early intervention requirements in section 25 of the NDIS Act.
[21] Applicant’s SFIC p 1.
[22] Applicant’s SFIC pp 2–3.
The Agency accepts that Mrs Duong satisfies the requirements in paragraphs 24(1)(a) and (d) of the NDIS Act but not the requirements in paragraphs 24(1)(b), (c) and (e). Its specific contentions on those provisions are set out below where relevant.
THE EVIDENCE
In determining this application, I have had regard to all the material in the Hearing Bundle, and particularly the following documents:
·an Access Request Form completed in 2022 (the 2022 Access Request Form);[23]
·a ‘Statement of Lived Experience and Targeted Questions’ completed in August 2023 (Mrs Duong’s statement);[24]
·a document headed ‘Mrs Duong’s response to Occupational Therapy Report’ dated 4 October 2024 (Applicant’s Response to Ms Houston’s Report);[25]
·an ‘Access Request – Supporting Evidence Form’ completed on 13 July 2017 (2017 Access Request Form);[26]
·DR Ho’s letter dated 14 November 2022 (Dr Ho’s 2022 letter );[27]
·Dr Ho’s letter dated 12 January 2023 (Dr Ho’s 2023 letter);[28]
·Dr Ho’s 2024 assessment;
·Ms Houston’s report; and
·summonsed documents from Northern Area Mental Health Services.[29]
[23] T5, T Documents, HB, pp 36–60.
[24] A2, HB, pp 196–208.
[25] A4, HB, pp 221–222.
[26] T3, T Documents, HB, pp 37–43.
[27] T4, T Documents, HB, p 44.
[28] T6, T Documents, HB, p 61.
[29] C1, HB, pp 273–391.
CONSIDERATION
Mrs Duong resides with her son, and regularly sees her daughter and granddaughter who live nearby. Mrs Duong worked as a hairdresser for one year after she moved to Australia, but now receives disability support pension.[30] She has several physical conditions. Dr Ho refers to her having vertigo, diabetes mellitus type 2, and abnormal liver function[31] while Ms Houston records that Mrs Duong reported knee and back pain relating to her ‘physical conditions.’[32]
[30] Ms Houston’s report, B1 HB, p 227 at 234–5.
[31] The 2017 Access Request Form T5, T Documents, HB pp 36–60 and Dr Ho’s 2022 letter, T4, T Documents, HB p 44
[32]B1, HB, p 227 at 232 at paragraph 26.
Mrs Duong has also had longstanding issues with her mental health. She has had one short admission to a mental health unit, for six nights in 2002.[33] Following her discharge from hospital, she received treatment and care through community mental health services. That continued until 2011, when a psychiatrist referred Mrs Duong for discharge to GP shared-care[34] and then solely to the care of a GP.[35] Mrs Duong remains under the care of her GP, Dr Ho, and takes olanzapine 5 mg nightly.[36] She does not appear to have been receiving treatment or care recently from a psychiatrist, psychologist, or mental health services.
[33] C1, HB, p 264 at 272.
[34] C1, HB, p 264 at 289.
[35] C1, HB, p 264 at 273.
[36] Ms Houston’s report, B1, HB, p 227 at p 233, at paragraph 29 and 30.
As the records below demonstrate, health professionals involved in Mrs Duong’s treatment and care for her mental health have adopted varying diagnoses in describing her mental health condition since 2002. Clinicians have also described varying features during that time, including psychotic symptoms, mood symptoms (including anxiety and depression), and personality traits described as borderline traits or dependent personality traits.
While Mrs Duong was receiving care through community mental health services her illness was referred to as schizophrenia (in March 2009),[37] depression and schizophrenia (in August 2009),[38] depression and borderline traits (in October 2009),[39] borderline personality disorder (in March 2010),[40] major depression with dependent personality (in June 2010),[41] depression with psychotic features (in September 2010),[42] and a psychotic disorder (in March 2011).[43] The final discharge summary from North Western Mental Health, in August 2011, lists Mrs Duong’s diagnoses as a ‘psychotic disorder’ and ‘dependent personality traits’ and states that she was being treated with olanzapine and venlafaxine (Effexor). It also lists other medications tried in the past.[44] The discharge summary notes that Mrs Duong was experiencing no thought disorder but reported occasional disturbances of perception, mainly auditory hallucinations that occurred at night.[45]
[37] C1, HB, p 264 at 373
[38] C1, HB, p 264 at 362.
[39] C1, HB, p 264 at 357.
[40] C1, HB, p 264 at 343.
[41] C1, HB, p 264 at 335.
[42] C1, HB, p 264 at 381.
[43] C1, HB, p 264 at 301.
[44] C1, HB, p 264 at 281.
[45] C1, HB p 264 at 281.
Dr Ho commenced treating Mrs Duong in 2003.[46] In 2017, Dr Ho described Mrs Duong as having a psychotic disorder and dependent personality traits.[47] In November 2022, in Dr Ho’s 2022 letter, he describes Mrs Duong as having schizophrenia, anxiety and depression.[48] In the same month, in the 2022 Access Request Form, Dr Ho said Mrs Duong had schizoaffective disorder. He described her as tending to withdraw in interactions with others, having reduced short-term and long-term memory, having reduced attention span, lacking planning and organisation skills, and requiring prompting in self-care. [49]
[46] Dr Ho’s 2023 letter, T4, T Documents, HB, p 44.
[47] T3, T Documents, HB, p 37 at 39.
[48] T4, T Documents, HB, p 44.
[49] T5, T Documents HB, p 45 at 57.
In January 2023 (in Dr Ho’s 2023 letter), Dr Ho said Mrs Duong had schizophrenia, anxiety, and depression. He described her as experiencing anxiety and hallucinations, having difficulty with new environments and experiences, avoiding crowds, having reduced confidence, having memory loss, requiring prompting with some tasks, and having reduced problem-solving skills. In his most recent assessment, in July 2024, Dr Ho describes Mrs Duong as having social phobia, reduced concentration, and reduced memory.[50]
[50] Dr Ho’s 2024 assessment, A3, HB, p 209 at 213.
In her own statement, Mrs Duong describes herself experiencing a range of issues including issues with memory, concentration, and problem solving. She also describes requiring prompting to undertake various tasks and says her anxiety and fear can be all-consuming.[51]
[51] A2, HB, pp 196–208 at 196–197.
Ms Houston assessed Mrs Duong on 6 February 2024. Ms Houston records Mrs Duong’s self-report of symptoms. These included occasional auditory and visual hallucinations (usually at night and occurring when she has not taken her medication or her stress level was high), stress, ‘nightmares’, forgetfulness, and being unable to concentrate and focus.[52]
[52] B1, HB, p 227 at 232, paragraphs 21 to 27.
Ms Houston also describes Mrs Duong’s general presentation. She noted that Mrs Duong was able to maintain full engagement during the assessment, showed no observable cognitive impairment in terms of responding to questions and participating, had no observed difficulties with speech or thought processing, and demonstrated appropriate speech modulation and expression.[53]
[53] B1, HB, p 227 at 233–4, paragraphs 32 to 39.
The disability requirements
There are five criteria in subsection 24(1) of the NDIS Act. All of these must be satisfied for a person to meet the disability requirements.
Does Mrs Duong meet paragraph 24(1)(a)?
The first requirement in subsection 24(1) is the requirement in paragraph 24(1)(a) that 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.
The term ‘disability’ in the NDIS Act, and section 24, is a descriptive concept for the overall effect of a person’s impairments on that person’s abilities to participate in all aspects of personal and community life. An ‘impairment’ is generally understood as involving the loss of, or damage to, a physical, sensory, or mental function.[54] Section 24 focuses on a person’s impairments, rather than the name of a person’s disability or the diagnosis given to a person.[55] Using the concept of impairment enables an assessment of the severity and permanency of the person’s condition, and of the effects of that condition. [56]
[54] Mulligan v National Disability Insurance Agency [2015] FCA 544 (Mulligan), [51] (Mortimer J).
[55] National Disability Insurance Agency v Davis [2022] FCA 1002 (Davis), [69] (Mortimer J)
[56] Mulligan at [55].
In the Applicant’s SFIC it is not contended that Mrs Duong meets the disability requirements based on impairment/s arising from physical conditions, and I am unable to be satisfied on the available information that Mrs Duong has impairment/s related to her physical conditions.
Mrs Duong sought access to the NDIS based on impairments related to schizoaffective disorder.[57] The Applicant’s SFIC contends that Mrs Duong has schizoaffective disorder, anxiety, and depression resulting in:
·Self-management impairment
·Social and communication impairment
·Learning impairment
·Self-care impairment
·Issues with focus, understanding, comprehension and retaining of information.[58]
[57] Access Request Form, T5 T Documents, HB, p 45 at 53.
[58] Applicant’s SFIC p 1, paragraphs 1 and 2.
This description of Mrs Duong’s impairments primarily lists activities that may have been affected, such as self-care. It does not adequately identify Mrs Duong’s physical, sensory, or mental function/s that have been lost or damaged.
The Agency concedes that the requirements of paragraph 24(1)(a) of the NDIS Act are met. It describes Mrs Duong’s impairments as ‘psychosocial/cognitive impairments’ arising from schizoaffective disorder, anxiety, and depression.[59] That is, it has described her impairments by reference to the broad categories of impairment in paragraph 24(1)(a) of the NDIS Act.
[59] Agency’s SFIC, paragraphs 3 and 9.
Mrs Duong’s impairments related to her mental health condition are not readily identified in the available material. Dr Ho’s comments are brief, Ms Houston did not directly address the issue, and there is no recent report by, for example, a psychiatrist comprehensively describing Mrs Duong’s impaired mental functions. In addition, neither party has addressed whether Mrs Duong’s impairments should be identified more specifically than ‘psychosocial/cognitive’ impairments, and if so, how they should be described.
Records set out earlier from Mrs Duong’s extended period of treatment through community mental health services referred to her having a psychotic illness or psychotic symptoms, and the discharge summary in 2011 recorded occasional disturbances of perception, mainly auditory hallucinations that occurred at night.[60] More recently, Dr Ho refers to Mrs Duong as having a psychotic illness, using diagnoses including ‘psychotic disorder’, ‘schizophrenia’, or ‘schizoaffective disorder’. Mrs Duong also reported to Ms Houston that she occasionally experiences auditory and visual hallucinations. I am satisfied on this evidence that at times Mrs Duong experiences impaired perception.
[60] C1, HB, p 264 at 281.
Dr Ho also describes Mrs Duong as having schizoaffective disorder, or as having schizophrenia as well as anxiety and depression. In Mrs Duong’s own statement, she refers to getting nervous, and experiencing all-consuming anxiety and fear. I am therefore satisfied that Mrs Duong experiences impairment of her mood or emotional function.
Although Ms Houston observed Mrs Duong to have no memory impairment,[61] Dr Ho referred to Mrs Duong having memory issues and Mrs Duong described experiencing forgetfulness. I am satisfied on this evidence that Mrs Duong experiences impaired memory.
[61] B1, HB, p 227 at 252.
Dr Ho described Mrs Duong as having reduced concentration and in her own statement Mrs Duong described issues with concentration. I am therefore satisfied that at times Mrs Duong experiences impaired concentration.
Although Ms Houston observed Mrs Duong to have no cognitive impairment,[62] in 2022 Dr Ho described Mrs Duong as lacking planning and organisation skills and in 2023 he described her as having reduced problem-solving skills. I am satisfied on this evidence that Mrs Duong experiences impaired cognition.
[62] B1, HB, p 227 at 233.
In 2022 and 2023, Dr Ho described Mrs Duong as requiring prompting with some tasks. It is unclear whether that reflects impaired motivation arising from her mental health conditions but I accept for present purposes that it does. Given the view I have taken later in these Reasons regarding paragraphs 24(1)(b) and (c) of the NDIS Act, it is not necessary to determine this issue.
I am therefore satisfied that Mrs Duong has cognitive impairments and impairments to which a psychosocial disability is attributable and that the requirements of paragraph 24(1)(a) of the NDIS Act are met.
Does Mrs Duong meet paragraph 24(1)(b)?
The second requirement in subsection 24(1) of the NDIS Act is the requirement in paragraph 24(1)(b) that a person’s impairment/s are, or are likely to be, permanent.
‘Permanent’ in the context of paragraph 24(1)(b) means ‘enduring’; this reflects the purpose and context of the legislative scheme, as a scheme intended to deliver lifelong support to persons with disability.[63] It is the person’s impairments that must be permanent, rather than the cause of the impairments or the diagnoses that might apply to a medical condition; the focus of paragraph 24(1)(b) is on whether the impairments have an enduring quality so as to fit within the conceptual emphasis of the scheme.[64]
[63] Davis at [85].
[64] Davis at [86].
Impairments that ‘vary in intensity’ may be permanent[65] and impairments that are ‘episodic or fluctuating’ may be taken to be permanent.[66] The Access Rules further provide that an impairment may be permanent notwithstanding that the severity of its impact on functional capacity may fluctuate or there are prospects this may improve.[67]
[65] Subsection 24(2) of the NDIS Act.
[66] Subsection 24(3) of the NDIS Act.
[67] Rule 5.5 Access Rules.
The Access Rules also provide that an impairment is permanent only if there are no treatments that would be likely to remedy the impairment.[68] ‘Remedy’ in this context means something more than ‘just relieve or improve’ and instead means something approaching ‘a removal or cure of the impairment’. That interpretation is consistent with interpreting ‘permanent impairment’ as meaning an impairment which is enduring; the impacts on a person might fluctuate from time to time, but the impairment is not likely to be removed or cured. [69]
[68] Rule 5.4 Access Rules.
[69] Davis at [136].
In determining whether there are no treatments that would be likely to remedy an impairment, consideration is only given to treatments that are, among other things, ‘available’ and ‘appropriate’.[70] In this context, ‘appropriate’ connotes a treatment which has capacity to ‘remedy’ a person’s impairment and is suitable for that particular individual to undergo; ‘the capacity of individuals with an impairment to undergo certain treatments may vary depending on their physical and psychological capabilities, other aspects of their physical and mental health, on their personal circumstances in terms of where they live and who they live with, and who cares for them’.[71]
[70] Rule 5.4 Access Rules.
[71] Davis at [137].
The Agency contends that Mrs Duong’s impairments do not meet the requirements in paragraph 24(1)(b). It accepts that the conditions underlying her impairments are relatively longstanding.[72] In its submissions it also acknowledges that Dr Ho has indicated there are no other evidence-based treatments available. However, the Agency also notes recommendations in August 2018 that Mrs Duong continue engagement with a psychologist and that consideration be given to increasing the dose of venlafaxine if low mood persists and olanzapine if psychotic symptoms emerge; that there is no evidence of ongoing engagement with a psychologist or psychiatrist; that her olanzapine dose has varied; and that she appeared to be on no medication specifically for anxiety or depression.
[72] Agency’ SFIC at paragraph 17.
As set out earlier, the evidence before the Tribunal indicates that Mrs Duong has longstanding issues with her mental health. Her current treatment includes regular contact with her GP, but not with a psychiatrist or psychologist. Her treatment also includes medication (olanzapine). She has been prescribed that medication for an extended period, although the dose has varied (as set out by the Agency).[73] It was commenced and continued while Mrs Duong was under the care of a psychiatrist and records from North Western Mental Health list various medications that were prescribed prior to this. Mrs Duong takes olanzapine voluntarily and has not required readmission to hospital since 2002.
[73] Agency’s SFIC at paragraph 20.
Dr Ho comments in January 2023 that Mrs Duong’s ‘mental health condition’ is permanent, though it varies in intensity and is episodic. He also states that she is on olanzapine to control her symptoms, that olanzapine ‘does not support her to have a normal life,’ that she is occasionally given a ‘double dose’ due to increased symptoms (such as hallucinations and anxiety), and that she has been given adequate doses of different kinds of medication but that her illness has been resistant to interventions.[74]
[74] T6, T Documents, HB, p 61.
Ultimately, I am not satisfied on present material that Mrs Duong’s impairments are, or are likely to be, permanent. This is because the issues that arise under paragraph 24(1)(b) are complex but are addressed only briefly by Dr Ho.
However, I am cognisant that Mrs Duong’s impairment/s may be permanent. The material indicates, for example, that Mrs Duong may have experienced psychotic symptoms over an extended period, despite taking a medication that, it appears, she is willing to take, she is able to tolerate, has been effective in preventing readmission to hospital, and was arrived at some time ago by a psychiatrist after other medications were trialled. It may be in the circumstances that Mrs Duong’s impaired perception is enduring (albeit varying in intensity, fluctuating or episodic) and that there is no treatment that is appropriate for her and likely to remedy her impaired perception. I have therefore proceeded to consider whether paragraph 24(1)(c) is met.
Does Mrs Duong meet paragraph 24(1)(c)?
The third requirement in subsection 24(1) of the NDIS Act is the requirement in paragraph 24(1)(c) that a person’s impairments result in substantially reduced functional capacity to undertake one or more of six activities: communication; social interaction; learning; mobility; self-care; and self-management.
The legislative scheme is based on a ‘functional, practical assessment of what a person can and cannot do’.[75] It makes detailed provision for that assessment, and it is sufficient that a person has substantially reduced functional capacity in relation to one activity in paragraph 24(1)(c). No qualitative judgements are involved in assessing a person’s impairments; the decision-maker does not need be satisfied, for example, that a person’s impairment is ‘serious’, or more serious than another person’s impairment. [76] Decision-makers must exercise a relatively high degree of precision in assessing what a person can or cannot do.[77] Further, each activity in paragraph 24(1)(c) has a different focus and each must be examined individually rather than globally.[78]
[75] Mulligan at [55].
[76] Mulligan at [55] to [56].
[77] Mulligan at [55].
[78] Mulligan at [55] and [60].
There are two paths to satisfying paragraph 24(1)(c). One path is to meet the terms of paragraph 24(1)(c) itself and the other path is to meet Rule 5.8 of the Access Rules.[79]
[79] Davis and National Disability Insurance Agency [2023] AATA 1437 at [79] (DP Donovan).
Rule 5.8 is a deeming provision; it mandatorily includes some people in the category of persons with substantially reduced functional capacity if the requirements in Rule 5.8(a),(b) or (c) are met.[80]
[80] Mulligan at [77].
Rule 5.8(a) deals with circumstances where a 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 or home modifications. In determining whether a person is unable to participate ‘effectively or completely’, the decision-maker must assess the degree to which the person can participate in the relevant activity, such as self-care, rather than tasks or actions to participate completely in an activity.[81]
[81] National Disability Insurance Agency v Foster [2015] FCA 544 (Foster) at [65] to [67].
For each of the activities below I have therefore considered the terms of paragraph 24(1)(c) itself and Rule 5.8 of the Access Rules. In doing so I have had regard to Ms Houston’s assessment together with comments from Mrs Duong’s long-term GP, Dr Ho, and Mrs Duong’s own statements.
Various concerns were raised by Mrs Duong, or on Mrs Duong’s behalf, regarding Ms Houston’s report. It is contended that Mrs Duong lives with ‘real-life functional impacts’ that are not adequately illustrated in Ms Houston’s report.[82] The Applicant’s Response to Ms Houston’s Report also asserts that there are various inaccuracies in Ms Houston’s report and that Mrs Duong’s disability makes it extremely difficult for her to engage with service providers. (The Applicant’s Response to Ms Houston’s Report is expressed as a statement by Mrs Duong but it clearly incorporates the views or submissions of others.)
[82] Applicant’s SFIC at p 2.
Ms Houston is experienced in functional assessment and has provided a detailed report, based on a lengthy assessment conducted in Vietnamese with Mrs Duong in Mrs Duong’s own home. Ms Houston also states that Mrs Duong was forthcoming and able to maintain full engagement in the assessment.[83] Overall, therefore, I am satisfied that Ms Houston’s report provides a reliable assessment of Mrs Duong’s functional capacity to undertake the activities in paragraph 24(1)(c).
[83] B1, HB, pp 227–260 at 233.
There are inconsistencies between Mrs Duong’s statement and Ms Houston’s report. For example, Mrs Huong states that she cannot cook while Ms Houston records that Mrs Duong’s long-term friend described Mrs Duong as a good cook and gave an example of Mrs Duong cooking a complex meal for him a few days earlier.[84] Generally, in circumstances such as this, where there is inconsistency involving matters that Ms Houston has observed or been told during the assessment, I have preferred Ms Houston’s report to Mrs Duong’s statement.
Communication
[84] B1, HB, p 227 at 237.
The Access Guidelines describe ‘communicating’ as:[85]
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.
[85] D1, HB, p 383 at 390.
The functionality included in ‘communication’ in the Access Guidelines is ‘fairly basic’, for example, telling a family member about something that has happened, explaining to a doctor in what part of the body pain is experienced, or asking for help to reach something.[86]
[86] See Madelaine and National Disability Insurance Agency [2020] AATA 4025 (Madelaine) at [79], when considering an earlier similar version of the Access Guidelines.
In the 2022 Access Request Form, Dr Ho states that Mrs Duong ‘is verbal, understand basic simple statements and request. However, due to her anxiety and depression, she tends to withdraw to interact with others’ [sic].[87] In his 2023 letter Dr Ho states that due to her mental health Mrs Duong experiences ‘significant impairments’ in ‘communication (she lacks confidence to communicate with others)’.[88]
[87] T5, T Documents, HB, p 36 at 53.
[88] T6, T Documents, HB, p 61.
However, in his 2024 assessment, Dr Ho assesses Mrs Duong’s functional capacity in the activity of communication as ‘normal’ and lists the only assistance she requires as ‘some help from English interpreter or friends’, [89] that is, assistance with interpreting. Ms Houston is also unequivocal in her report that there is no reduction in Mrs Duong’s functional capacity for communication.[90]
[89] A3, HB p 209 at 213 and 215.
[90] B1, HB, p 227 at 250–251.
I accept that Mrs Duong experiences impairments, including impaired mood or emotional function, but I am not satisfied on this evidence that Rule 5.8 is met or that Mrs Duong’s impairments result in substantially reduced functional capacity within the terms of paragraph 24(1)(c) itself.
Learning
The Access Guidelines describe learning as: [91]
how you learn, understand and remember new things, and practise and use new skills.
[91] D1, HB, p 383 at 390.
In the 2022 Access Request Form, Dr Ho states, in relation to learning, that Mrs Duong has reduced short-term and long-term memory.[92] In his 2023 letter, Dr Ho states that due to her mental health Mrs Duong experiences ‘significant impairments’ in learning (she has long term and short term memory loss)’ [sic].[93]
[92] T5, T Documents, HB, p 36 at 53.
[93] T6, T Documents, HB, p 61.
However, in his 2024 assessment, Dr Ho assesses Mrs Duong’s functional capacity in the activity of learning as ‘normal’ and he does not identify any need for assistance.[94] Ms Houston also concluded that there was no reduction is Mrs Duong’s overall capacity for learning.[95] Ms Houston considered Mrs Duong has the capacity to learn but has become reliant on her long-term friend driving her.[96] Ms Houston thought Mrs Duong would be able to learn a new travel route (although that was based on Ms Houston’s assessment that there was ‘no observed memory impairment’). She also noted that Mrs Duong makes complex meals, walks independently to her daughter’s home, and was able to concentrate and engage in an assessment for 2.5 hours. [97] She considered that if Mrs Duong required any support, it would be in the form of supervision for new tasks due to her needing to become familiar with them first.
[94] A3, HB, p 209 at 213, 215 and 216.
[95] B1, HB, p 227 at 252–254.
[96] B1, HB, p 227 at 241.
[97] B1, HB, p 227 at 252–254.
I accept that Mrs Duong experiences impairments, including impaired memory, but I am not satisfied on this evidence that Rule 5.8 is met or that Mrs Duong’s impairments result in substantially reduced functional capacity to undertake the activity of ‘learning’.
Mobility
The Access Guidelines describe ‘mobility’ or ‘moving around’ as: [98]
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.
[98] D1, HB, p 383 at 390.
The threshold requirements of functionality in mobility, in the Access Guidelines, are relatively modest.[99]
[99] Madelaine at [104]–[105], when considering an earlier similar version of the Access Guidelines.
In her own statement, Mrs Duong says that accessing the community is very difficult and she cannot do it alone. She says she struggles with her memory, is terrified of getting lost, cannot problem-solve, and tends to panic and become disoriented. [100]
[100] A2, HB, at p 196.
In the 2022 Access Request Form, Dr Ho makes no comment in response to a specific question on mobility.[101] In his 2023 letter, Dr Ho states that due to her mental health Mrs Duong experiences ‘significant impairments’ in ‘mobility (she avoids crowds)’.[102]
[101] T5, T Documents, HB p 36 at 52.
[102] T6, T Documents, HB at p 61.
However, in his 2024 assessment, Dr Ho assesses Mrs Duong’s functional capacity in the activity of mobility as ‘normal’ and he does not identify any need for assistance.[103] Ms Houston also reported that Mrs Duong is independent in transfers, can mobilise independently and unaided, indoors and outdoors, and does not have a licence but can travel in a vehicle. Ms Houston noted that Mrs Duong never uses public transport, mostly because she has always been driven. Ms Houston thought Mrs Duong could overcome her unfamiliarity with public transport by travelling with her longtime friend to become more familiar with the route, but her personality traits mean that she prefers others to do things for her. [104]
[103] A3, HB, p 209 at 213 and 214.
[104] B1, HB, p 227 at 241–243.
I accept Ms Houston’s assessment. I am not satisfied that Rule 5.8 is met or that Mrs Duong’s impairments result in substantially reduced functional capacity to undertake the activity of ‘mobility’ and I note that no such contention was made in the Applicant’s SFIC.
Self-care
The Access Guidelines describe self-care as: [105]
personal care, hygiene, grooming, eating and drinking, and health. We consider how you get dressed, shower or bathe, eat or go to the toilet.
[105] D1, HB, at p 390.
Mrs Duong says in her statement that she requires support and prompting to shower and get dressed, and complete morning tasks and that her symptoms make all those tasks extremely difficult to complete. She also says she needs reminding to eat and take medicine, and that she cannot cook or clean.[106]
[106] A2, HB at pp196 and 198.
In the 2022 Access Request Form, Dr Ho states, in relation to self-care, that Mrs Duong ‘can do self-care, but needs encouragement and prompts from others to complete these tasks’.[107] In his 2023 letter, Dr Ho states that due to her mental health Mrs Duong experiences ‘significant impairments’ in ‘self-care (requires prompt from family to do these tasks)’.[108]
[107] T5, T Documents, HB, p 36 at 53.
[108] T6 T Documents, HB at p 61.
However, in his 2024 assessment, despite referring to Mrs Duong as requiring assistance from a home carer and friends, Dr Ho assesses Mrs Duong’s functional capacity in the activity of self-care as ‘normal’.[109] Ms Houston assessed Mrs Duong as independent in self-care and recorded that Mrs Duong reported no difficulties with self-care.[110] She noted, for example, that Mrs Duong had recently cooked a complex meal for others.[111]
[109] A3 HB, p 209 at 213 and 216.
[110] B1, HB, p 227 at 247–248.
[111] B1, HB, p 227 at 237.
I prefer Ms Houston’s assessment and am not satisfied on this evidence that Rule 5.8 is met or that Mrs Duong’s impairments, including any impairment in motivation, result in substantially reduced functional capacity to undertake the activity of ‘self-care’.
Social interaction
The Access Guidelines describe socialising as: [112]
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.
[112] D1, HB, p 383 at 390.
The criteria in the Access Guidelines for assessing functionality in ‘social interaction’ are ‘directed principally at personal skills needed for social interaction, and only marginally about opportunities to exercise those skills’.[113]
[113] Madelaine at [87] in discussing an earlier similar version of the Access Guidelines.
In her own statement, Mrs Duong describes only feeling safe in familiar situations, needing support to ‘branch out’, wanting to attend her son’s group meetings but being unable to afford to go, and to liking church but being unable to attend unless someone takes her.[114]
[114] A2, HB p 196 at 197.
In the 2022 Access Request Form, Dr Ho states, in relation to socialising, that due to her anxiety and depression Mrs Duong ‘tends to withdraw to interact with others’ [sic].[115] In his 2023 letter, he states that due to her mental health Mrs Duong experiences ‘significant impairments’ in ‘social interaction (does not want to engage in social activities due to anxiety and judgement)’.[116] In his 2024 assessment, in assessing Mrs Duong’s functional capacity in the activity of socialising Dr Ho comments simply ‘social phobia’ and he considers she needs assistance from a health care worker and friends.[117]
[115] T5, T Documents, HB at p 53.
[116] T6, T Documents, HB at p 61.
[117] A3, HB, p 209 at 213 and 215.
However, Ms Houston noted that Mrs Duong was able to engage fully in the assessment and respond to questions. She attends a local recreational centre multiple times each week and has done for many years with a long-term friend and would attend her son’s group but for the cost. She also noted that Mrs Duong can interact with others by telephone and walks to her daughter’s house each week. Ms Houston did not identify that any supports or assistance were needed, apart from Mrs Duong’s reliance on her long-term friend to drive her places, and Ms Houston felt that Mrs Duong’s reduced social interaction was related to her limited finances. [118]
[118] B1, HB, p 227 at 245–246
I prefer Ms Houston’s assessment and am not satisfied on the evidence that Rule 5.8 is met or that Mrs Duong’s impairments result in substantially reduced functional capacity to undertake the activity of ‘social interaction’.
Self-management
The Access Guidelines describe ‘self-management (if older than 6)’ as: [119]
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.
[119] D1, HB, p 383 at 390.
In the 2022 Access Request Form, Dr Ho states, in relation to self-management, that Mrs Duong ‘does not have long attention span to focus on tasks. She lacks planning and organisational skills’ [sic].[120] In his 2023 letter Dr Ho states that due to her mental health conditions, Mrs Duong experiences ‘significant impairments’ in ‘self-management (she often made inappropriate lifestyle decisions such as diet, personal hygiene and personal relationships. She lacks problem-solving skills in stressful situations)’.[121] In his 2024 assessment, in assessing Mrs Duong’s functional capacity in the activity of self‑management Dr Ho comments that her concentration and memory are reduced and notes ‘loss of her way to home in sometimes’ [sic] and he thought she required assistance from others when outdoors and socialising.[122]
[120] T5, T Documents, HB, p 53.
[121] T6, T Documents, HB, p 61.
[122] A3, HB, p 209 at 213 and 217.
Ms Houston records that Mrs Duong plans her own day, manages her own finances, and can make personal decisions, and make appointments and independently resolve day‑to‑day issues.
I accept Ms Houston’s assessment and am not satisfied on this evidence that Rule 5.8 is met or that Mrs Duong’s impairments result in substantially reduced functional capacity to undertake the activity of ‘self-management’.
Having found that Mrs Duong’s impairments do not result in substantially reduced functional capacity to undertake one or more of the activities in paragraph 24(1)(c) of the NDIS Act, the disability criteria are not met. It follows therefore that I am not required to consider the remaining criteria in paragraphs 24(1)(d) and 24(1)(e) of the NDIS Act.
The early intervention requirements
No contention is made that the early intervention requirements are met. Mrs Duong has longstanding mental health conditions, and Ms Houston specifically addresses whether any interventions would benefit the applicant in the ways identified in section 25.[123] I am satisfied on that evidence that the requirements in section 25 of the NDIS Act are not met.
[123] B1, HB, p 227 at 257.
As neither the disability requirements nor the early intervention requirements are met, Mrs Duong does not meet the access criteria in section 21 of the NDIS Act.
DECISION
The Tribunal affirms the decision under review.
1.
2. I certify that the preceding 104 (one hundred and one) paragraphs are a true copy of the reasons for the decision herein of General Member A Colvin.
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Associate
17 February 2025
Date(s) of hearing: 15 January 2025
Applicant’s Advocate: Ms Horne-Spalling, Action on Disability within Ethnic Communities Inc.
Solicitor for the Respondent: B Richardson, Sparke Helmore
Counsel for the Respondent: JP Lessing
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