Dyson and National Disability Insurance Agency
[2022] AATA 3252
•11 October 2022
Dyson and National Disability Insurance Agency [2022] AATA 3252 (11 October 2022)
Division:GENERAL DIVISION
File Number(s): 2019/6305
Re:Nina Dyson
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
Decision
Tribunal:Member I Thompson
Date:11 October 2022
Place:Adelaide
The decision under review, made by the Agency on 30 September 2019, is affirmed.
..........[Sgnd]....................................................
Member I Thompson
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – access to the scheme – disability requirements – early intervention requirements – consideration of medical history – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975
National Disability Insurance Scheme Act 2013
National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Act 2022
National Disability Insurance Scheme (Becoming a Participant) Rules 2016Cases
Mulligan v NDIA (2015) FCA 544
Madelaine & National Disability Insurance Agency [2020] AATA 4025
Allen & National Disability Insurance Agency [2018] AATA 3851
Jourifan & National Disability Insurance Agency [2020) AATA 1883
MHZQ & National Disability Insurance Agency [2019] AATA 810
Holmes & National Disability Insurance Agency [2017] AATA 2750
Kilgallin & National Disability Insurance Agency [2017] AATA 186
Nika & National Disability Insurance Agency (2021) AATA 2127REASONS FOR DECISION
Member I Thompson
11 October 2022
INTRODUCTION
The applicant, Ms Nina Dyson, made an access request to the National Disability Insurance Agency (the Agency) to become a participant in the National Disability Insurance Scheme (NDIS).
The Agency declined the request. Ms Dyson sought an internal review of that decision, which was subsequently affirmed, and confirmed to Ms Dyson by letter from the Agency dated 30 September 2019 (the reviewable decision).[1] On internal review a delegate of the Agency was not satisfied that Ms Dyson met the disability or early intervention requirements. In applying to the Tribunal for a review, Ms Dyson wrote: “I believe that the decision is wrong and very unfair considering the health issues that I have.”[2]
[1] Exhibit B, T2 – NDIA letter 30 September 2019
[2] Exhibit B, T1
Ms Dyson wrote in her pre-hearing statement[3] that she has a back condition which is a long-term impairment as a result of an accident at work in 1994, together with depression, which was first diagnosed in 2000 and is a direct result of the chronic back pain. The Agency accepted that Ms Dyson has a disability attributable to impairments resulting from a cervical disc prolapse, cervical disc herniation and spinal stenosis, although not from depression. The Agency considered that evidence about her impairments did not meet the necessary criteria about permanency.[4]
[3] Exhibit C
[4] Exhibit B, T2 – NDIA letter 30 September 2019
The hearing in the Tribunal took place by video. Ms Dyson was self-represented, with support from her advocate, Ms Coates. The Agency was represented by counsel, Mr d’Assumpcao.
Ms Dyson is now 62 years old. She provided written statements prior to the hearing and gave oral evidence by video at the hearing.
To qualify as a participant in the NDIS, an applicant must meet the criteria outlined in s 21 of the National Disability Insurance Scheme Act 2013 (the NDIS Act). The Agency was satisfied that Ms Dyson meets the age and residency criteria, which are outlined in ss 22 and 23 of the NDIS Act. The age requirements include a provision that a person is aged under 65 when an access request was made.
THE HEARING
At the audio-visual hearing in the Tribunal, Ms Dyson gave evidence from her home. The Tribunal received in evidence a quantity of documents which included medical reports, radiology reports, allied health reports and correspondence dating back to 1995.[5]
[5] Flinders Medical Centre radiology report 20 March 1995, Exhibit D
Ms Dyson’s pre-hearing statements comprised a statement of lived experience, dated 5 May 2020,[6] and a hearing statement, dated 16 December 2021.[7] She called two witnesses. They were her general medical practitioner, Dr Kosmas, and a psychologist, Mr Cummins. The Agency had arranged for Ms Dyson to be assessed by a psychiatrist, Dr Schirripa, and by an occupational therapist, Ms de Vries. They wrote reports following the assessments and gave evidence by video.
[6] Exhibit A7
[7] Exhibit C
The bulk of the hearing took place over two days, on 3 and 4 February 2022. By the end of the second day, all oral evidence had been received and counsel for the Agency had completed closing submissions. The hearing was adjourned to enable Ms Dyson to make closing submissions by video, which she did on 11 February 2022. Subsequently, at her request, she provided further oral submissions in closing, by video on 12 May 2022.
ISSUES
The issue for the Tribunal to determine is whether Ms Dyson meets the disability requirements for access to the NDIS. In this case, there is no dispute that Ms Dyson meets the age and residence requirements. The question is whether she meets the disability requirements under s 24 of the NDIS Act, or the early intervention requirements under s 25 of the NDIS Act.
THE NATIONAL DISABILITY INSURANCE SCHEME (NDIS)
The NDIS provides coordination, strategic and referral services or activities, funding to persons or entities to assist the participation of people with disability in economic and social life, and funding by individual plans for reasonable and necessary supports for participants in the NDIS.[8]
[8] NDIS Act s 8
It is important to note the comments of the Federal Court (per Mortimer J) in Mulligan v NDIA, at [34]:
It is clear from the legislative scheme that the decision whether a person is or is not a participant is the threshold decision under the scheme, and the decision which enables access to most benefits and funding available under the NDIS. However, what benefits and supports are provided, and how they are funded is subject to a separate decision-making process.[9]
[9] (2015) FCA 544, at [34] per Mortimer J.
Under s 209 of the NDIS Act, the Minister has made rules about becoming a participant in the scheme. The National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (the NDIS Rules) are relevant to this case. The NDIS Rules form part of the legislation.
The CEO of the NDIA has made an Operational Guideline for staff in exercising their functions under the NDIS Act. The Operational Guideline – Access to the NDIS provides information and guidance regarding the disability requirements (s 8) and the early intervention requirements (s 9), and will be referred to later in this decision
CONTENTIONS
Ms Dyson relied on her conditions of chronic back pain and depression for the purposes of her application to access the NDIS. Although she did not rely on other conditions, there is an intermingling of some of her various health conditions which have an impact on her daily life.
In her pre-hearing statement[10] Ms Dyson wrote that she should be granted access to the scheme because of impairments arising out of chronic back pain and major depression. She submitted that her back condition is a long-term problem involving a double fusion in her spine which has resulted in her suffering severe, debilitating pain daily. She wrote: “My back is bolted out of alignment. Carbon spacers in between discs and have had a bone graft from my hip. When they did the double fusion they also ruptured two discs in my neck.” She wrote that several treatments have been tried for her back condition, and nothing has worked despite surgery, long-term rehabilitation physiotherapy, hydrotherapy, gym programs, rhizolysis and multiple spinal blocks She was injured in two motor vehicle incidents, in 2013 and 2016, and suffered damage to her neck. She submitted that her depression is a long-term condition which has been treated with therapy, and with medication which had terrible side effects. She wrote that her depression is reactive to her debilitating chronic back pain, and since the back pain is not going away, nor will the depression. In her closing submissions Ms Dyson agreed with Dr Schirripa’s opinion that she has reactive depression and anxiety. She said it was the same conclusion which the psychologist, Mr Cummins, had drawn.
[10] Exhibit C
In its Statement of Facts, Issues and Contentions prior to the hearing, the Agency did not dispute that Ms Dyson suffers from chronic back pain. The Agency’s principal contention was that Ms Dyson does not meet any of the six criteria in s 24(1)(c) of the NDIS Act regarding a substantial reduction in functional capacity.
CONSIDERATION
DISABILITY – S 24(1)(a) NDIS Act
The concept of impairment, rather than a definition of disability, is central to the threshold provisions such as s 24. In Mulligan, the Federal Court (Mortimer J) pointed out that while the NDIS Act refers frequently both to “disability”, without defining it, and to “impairment”, without defining it,[11] “the undefined statutory phrase ‘people with a disability’ is not to be construed as limited to people who meet the access criteria in Ch3 of the Act. The access criteria have a number of components and thresholds”.[12] The Court pointed out in Mulligan, at [56]:
No decision-maker need be satisfied a person’s impairment is “serious”, or more serious than another person’s. No qualitative judgments in that sense are called for. Rather, the legislative scheme is based on a functional, practical assessment of what a person can and cannot do.
[11] As above, at [16]
[12] As above, at [18]
In this case there is no dispute that Ms Dyson meets the age and residence requirements. Generally, the age requirements are met if the person was under the age of 65 when an access request was made. The question is whether she meets the disability requirements under s 24, or the early intervention requirements under s 25, of the NDIS Act.
Before proceeding further, it is necessary to note that amendments to ss 24 and 25 of the NDIS Act came into effect on 1 July 2022. The Tribunal had not completed its review of Ms Dyson’s application by the time the amendments commenced. Both the original decision which the Agency made regarding Ms Dyson’s access request, and the Agency’s internal review decision, were made prior to those amendments. The Tribunal’s decision is made subsequent to those amendments.
At the time when the Agency made its internal review decision, a person met the disability requirements under s 24(1)(a) if:
the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or to one or more impairments attributable to a psychiatric condition.
The amendments removed the reference to impairments attributable to a psychiatric condition and replaced them with the phrase “one or more impairments to which a psychosocial disability is attributable”. From 1 July 2022, the person meets the disability requirements under s 24(1)(a) 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.
The transitional provisions at schedule 2, item 54 of the National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Act 2022 provide that:
(1)The amendments of sections 24 and 25 of the National Disability Insurance Scheme Act 2013 made by this Schedule apply in relation to the following:
(a) an access request made on or after the commencement of this item;
(b) an access request that was pending immediately before that commencement;
(c) a revocation under section 30 of that Act made on or after that commencement.
As the decision under review relates to the determination of an access request under s 18 of the NDIS Act, it follows that the term “an access request that [is] pending immediately before” the commencement covers a decision under review, as in this review, that “has not been finalised prior to the commencement”. The Revised Explanatory Memorandum[13] provides, in relation to schedule 3, item 56 (which relates to the amendment to s 18, and is drafted similarly to schedule 2, item 54), that the amendment would apply “if a decision on their request under section 18 of the Act has not been finalised prior to the commencement”.
[13] 2019-2020-2021-2022, The Parliament of The Commonwealth of Australia – Senate: National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021 – Revised Explanatory Memorandum
The Agency resolved on internal review that Ms Dyson met the criteria in s 24(1)(a) of the NDIS Act, as having a disability attributable to a physical impairment in her back, which was specified as cervical disc prolapse, cervical disc herniation and spinal stenosis. However, the Agency was not satisfied that Ms Dyson’s depression resulted in an impairment for the purposes of s 24(1)(a)[14] and did not consider it further in the review.
[14] Exhibit B, T2 p 8
The next part of the Agency’s internal review was directed to the permanence of the physical impairment, in particular, whether that impairment is or is likely to be permanent. The reviewer was not satisfied on the available evidence that Ms Dyson had accessed all available and appropriate treatments, as there was a review pending, as well as potential treatment from an orthopaedic clinic. Hence, the internal reviewer concluded that s 24(1)(b) of the NDIS Act was not met. In addition, the review concluded that the criteria in s 24(1)(c) and (e) and s 25 were not met.[15]
[15] As above
Dr Kosmas has been Ms Dyson’s general medical practitioner since 1998. He completed the health professionals section of Ms Dyson’s NDIS access request – supporting evidence form[16] and provided written reports which were admitted into evidence. In the access request form, he wrote that Ms Dyson’s primary impairment from 1998 is chronic back pain – cervical disc prolapse, cervical disc herniation and lumbar fusion insitu, and spinal stenosis.
[16] Exhibit B, T11
On consideration of the evidence, the Tribunal is satisfied that Ms Dyson has a disability that meets the requirement of s 24(1)(a) of the NDIS Act in relation to a physical impairment from her back condition, noting in particular the evidence of Dr Kosmas about her chronic back pain.
In addition to a physical impairment, consideration must be given to whether Ms Dyson has an impairment or impairments to which a psychosocial disability is attributable. Dr Schirripa told the Tribunal that he has practised for 21 years, of which the past 15 years has been in private practice as a psychiatrist. His professional experience includes psychiatric assessment and treatment for people who suffer with anxiety disorders. He has treated patients who suffer from chronic pain with mood disorders and major depressive conditions. Dr Schirripa wrote in his report that Ms Dyson does not suffer from a chronic major depressive disorder, bipolar disorder or a primary anxiety disorder. He diagnosed Ms Dyson as having an intermittent adjustment disorder with depressed mood, which is often considered to be a situational or reactive form of depression.
The Tribunal is satisfied that Ms Dyson meets the requirement of s 24(1)(a), in its amended form, in relation to an impairment, namely intermittent adjustment disorder with depressed mood, and on that issue the Tribunal accepts the evidence of Dr Schirripa. Equally, the Tribunal considers that Ms Dyson would have met the pre-amendment criterion for a person with a disability who has an impairment attributable to a psychiatric condition.
The next question is whether the impairments are, or are likely to be permanent, as required by s 24(1)(b) of the NDIS Act.
PERMANENCE – S 24(1)(b) NDIS Act
In Mulligan,[17] the Federal Court referred to requirements of the assessment under s 24(1) of the NDIS Act in this way, at [55]:
Using the concept of impairment enables assessment of the severity and permanency of a person’s condition and of the effects of that condition through not only the evidence of an applicant but also medical and clinical evidence.
[17] Mulligan v National Disability Insurance Agency [2015] FCA 544
Prior to 1 July 2022, s 24(2) of the NDIS Act provided for the permanency of impairments that vary in intensity, as follows:
(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.
Following the amendments to s 24, the provisions in s 24(2) remain in place. New provisions in ss 24(3) and (4) deal with episodic or fluctuating impairments. They state:
(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).
In relation to permanence, NDIS Rule 5.4 provides that an impairment is permanent or is likely to be permanent only if there are no known, available, evidence-based clinical, medical or other treatments that would be likely to remedy the impairment. NDIS Rule 5.7 refers to impairments of a degenerative nature – they are or are likely to be permanent if medical or other treatment would not, or would be unlikely to, improve the condition.
In its Statement of Facts, Issues and Contentions prior to the hearing, counsel for the Agency indicated that the Agency will take a neutral stance on the issue of permanence. The submission suggested that the evidence about permanence of Ms Dyson’s impairments was “scant and finely balanced” and comprised mainly correspondence from her treating medical practitioner. That stance was maintained at the hearing. The essence of the Agency’s submission was directed to the criteria in s 24(1)(c) of the NDIS Act regarding reduction in Ms Dyson’s functional capacity, and since she did not meet any of those criteria the question about permanence of her impairments did not require determination. In in that way, counsel for the Agency sought to bypass a determinative position on the issue of permanence. However, the Tribunal will address it, first by assessing the evidence about Ms Dyson’s back condition and, second, by assessing the evidence about her psychiatric condition.
Physical impairments
In her hearing statement, Ms Dyson described her long-term back problems following the accident at work in 1994. She wrote:[18]
I have had a double fusion in my spine and, as a result, suffer from severe debilitating pain on a daily basis. My back is bolted out of alignment. Carbon spacers in between discs and have had a bone graft from my hip. When they did the double fusion they also ruptured two discs in my neck… In 2013 and 2016 I was rear ended and my neck was damaged in that too… I have tried several treatments for my back condition and nothing has worked. I have had surgery and long-term rehab. I’ve seen several physios and tried physio and hydrotherapy programs. I’ve tried gym programs but these kept making my pain worse. I have tried rhizolysis – where they burned the nerves in my spine for pain management and have had injections into my facet joints. I’ve also had multiple spinal blocks.
[18] Exhibit C
In evidence, Ms Dyson said that maintaining her mobility is a priority and a necessity. She was on Workcover for about 12 years, followed later by a disability support pension, which she has accessed since that time. She has a disability parking permit. She was injured in two motor vehicle accidents, the first in 2013 and the second in 2016. On each occasion she was stationary, and a car drove into the rear of her vehicle. The motor vehicle accidents caused injury to her neck.
In her oral closing submissions,[19] Ms Dyson addressed the question of permanency. She submitted that the impairments are permanent. She has had to contend with them for 28 years. The problems that she has endured through back pain have not subsided. She can still feel the movement of bone on the screw, and the screw is loose. The back pain is chronic and disabling. Another fusion is not an option. She spoke of being always in pain. She pointed out the extent of the spinal damage at each level. The prescribed medications do not provide the healing that she requires. She referred to the long-term problems that she has had with her shoulder, knees and left thumb. She referred to her asthma, arthritis, fibromyalgia, eczema, diabetes and chronic severe pain. She spoke about her problems with muscles, joints, nerve pain, weakness, peripheral neuropathy and problems with her hands and feet. She highlighted that, in addition to the medical treatment, she has undergone physiotherapy, exercise physiology, hydrotherapy, Pilates, acupuncture, prolotherapy, meditation, reiki and yoga. She tried treatments, therapy and everything that was feasible and available to try to restore her health to manageable levels. She said that her aim is to stay out of a wheelchair for as long as possible and that is her reason for seeking help now.
[19] 12 May 2022
In evidence, Dr Kosmas confirmed that he has referred Ms Dyson to allied health professionals as part of a multifaceted approach to managing her pain. This included referrals for regular sessions of physiotherapy. It also included recommendations and support for non-pharmaceutical interventions, which have predominantly included exercise and yoga.
Included in a bundle[20] of reports which Ms Dyson provided were documents dating back to 1997, inclusive of specialist medical reports, medical imaging reports and correspondence relating to a workers compensation claim. These documents provide important context to the history which Ms Dyson described in her evidence about her multi-faceted, persistent pain. A report by Dr Hall, Adelaide Spine Clinic, on 18 May 2006,[21] provided a summary of her presentation at that time, when Ms Dyson was experiencing pain in the neck and shoulders, intrascapular region, lower back, knees and feet, with abnormal sensation in both upper limbs and both lower limbs. Dr Hall reported the results of scans of the back, which indicated anterior and posterior fusion at L5/S1, a locked pseudarthrosis at L4/5 where the facet joints had not united, moderate degenerative changes at L3/4, and degenerative changes in the cervical spine, together with an old compression fracture at T6. At that time, Dr Hall noted that Ms Dyson would not agree to further surgery, and he
commented that no further surgery is indicated anyway; he wrote:
… it is not thought that further surgical intervention has any role to play. Moreover, the mere existence of a non-union does not necessarily correlate with reproduction of symptoms and the non-union does not indicate that there is an instability in the region. There is no significant loosening around the implants and so, from a structural point of view, the segment is stable.
[20] Exhibit D
[21] Exhibit D
A report by an orthopaedic surgeon, Dr Fry, on 19 August 2014, was written after the first of the two motor vehicle accidents in which Ms Dyson was injured. The report described symptoms in her back, neck and knees. No specific treatment was recommended at that time, although further investigation by her spinal surgeon was thought to be worthwhile.[22]
[22] Exhibit D
While giving evidence at the hearing, Dr Kosmas was asked by Ms Dyson about a referral to a pain specialist. She said that she has been on a waiting list for six years. Dr Kosmas explained that this unfortunate situation had come about because of bureaucratic rearrangements associated with the construction of the new Royal Adelaide Hospital, which resulted in some patients on a waiting list being transferred to other hospitals or services, with additional, extensive delays in those waiting lists. Unfortunately, Ms Dyson is one of those patients who suffers as a result of those delays.
A recent medical imaging report[23] by Dr Saha summarised Ms Dyson’s clinical details as: “60 year old with increasingly disabling pain affecting neck, right shoulder, lumbar spine. Previous surgery including lumbar fusion.” The report set out the findings indicating changes in the cervical spine at each level from C2/3 through to C7/T1, and the lumbar spine from L1/2 through to L5/S1, together with mild degenerative change in the (AC) acromioclavicular joint in the right shoulder, mild lumbar scoliosis in the lumbosacral spine, noting previous discectomy and fusion surgery.
[23] Exhibit D, 23 November 2020
In a letter which he wrote on 1 September 2020,[24] Dr Kosmas commented as follows on the question of permanency: “… there is no known, available and appropriate evidence based treatment that is likely to cure or substantially relieve Ms Dyson’s chronic low back pain. This is a permanent condition.” Dr Kosmas added that he has not recommended further medical treatment or review for her chronic low back pain. He concluded:
… there is no medical or other treatment that will prevent or slow down the course of Ms Dyson’s decline and the treatment is based on minimising pain and disability as much as possible and providing emotional support.[25]
[24] Exhibit D
[25] Exhibit D
The Tribunal accepts the evidence of Dr Kosmas concerning the permanence of the impairment. His evidence and opinion about permanence stands against a background of some two-and-a-half decades during which Ms Dyson sustained injuries and received medical and allied health treatment for problems with her back. In applying NDIS Rule 5.4, the Tribunal is satisfied that Ms Dyson’s physical impairment of chronic back pain is permanent. The Tribunal finds that the criterion in s 24(1)(b) of the NDIS Act is met in regard to physical impairment caused by Ms Dyson’s back condition.
Depression
In her hearing statement, Ms Dyson wrote about mental health issues:[26]
My depression is a long-term condition, first diagnosed in 2000. I haven’t had much luck with therapy. I’ve tried lots of medications in the past but none have worked because I’m stuck in a situation I can’t change. A lot of the medications I’ve tried have had terrible side effects. The side effects weren’t worth the fact that it wasn’t fixing anything. My depression is a direct result of my chronic pain injury and the situation I am forced to live with. Since my back pain is not going to go away, neither is my depression.
[26] Exhibit C
In evidence, Ms Dyson said she has weaned herself off antidepressant medication which she had been using for many years. However, for the last 10 years approximately she has not used antidepressants as they do not help her dealing with the actual problems of “pain and poverty”, and they have adverse side effects. She described difficulties with anxiety and with sleeping. At night she sleeps only 3 to 5 hours.
Dr Schirripa is a consultant psychiatrist to whom Ms Dyson was referred by the Agency’s solicitors for an assessment, which took place on 23 September 2021, followed by a report dated 6 October 2021.[27] The report included a list of the material, which was provided to Dr Schirripa. That material included correspondence dated 2 May 2021, by a psychologist, Mr Cummins, and letters from Ms Dyson’s general medical practitioner, Dr Kosmas.
[27] Exhibit R2
Dr Schirripa considered that Ms Dyson has a diagnosis of an intermittent adjustment disorder with depressed mood, which can be considered as situational or reactive as a depressive condition. Dr Schirripa did not consider that Ms Dyson suffers from a chronic major depressive disorder, bipolar disorder or a primary anxiety disorder. He reported that she told him about consulting with a psychologist this year (2021) and she was finding that the consultations were helpful. She had tried multiple anti-depressants and none of them were effective.
In his summary and assessment about Ms Dyson’s mental health, Dr Schirripa reported:
Ms Dyson indicated that over the past three decades she has generally been treated very poorly by government agencies and by the medical system. She said she lives with intractable severe chronic pain which was caused by a work-related injury in 1993 (which affected her spine). She said that she has tried every conceivable method to alleviate her pain but she is still left with significant pain symptoms and associated disability. She said she is also facing significant financial hardship due to her long-term inability to work due to her pain.
From a psychiatric viewpoint, she described symptoms that do not appear consistent with the presence of a chronic, severe psychiatric disorder. She said that she has had “reactive depression and reactive anxiety” and intermittent suicidal ideation, which no doubt has been present at various times over the past 30 years in the context of various stressors including her physical injuries. At times this has likely reduced her motivation and energy levels and led to variable degrees of disengagement. At other times, she appears to be more stable in her moods, and has enjoyed, for example, going out dancing and listening to live bands.[28]
[28] Exhibit R2
Ms Dyson agreed with Dr Schirripa’s opinion that she has an adjustment disorder with depressed mood. He described it in his report as often being regarded as a “situational or a reactive depressive condition.”
A report by Dr Hall, Adelaide Spine Clinic, on 18 May 2006, provided some indication of the duration of the mental health issues which Ms Dyson has addressed in association with the physical pain. Dr Hall wrote at that time, sixteen years ago, that Ms Dyson:[29]
… continues on medication including OxyContin tablets of 80mg, taking up to 9 tablets per day in addition to Oxynorm up to 80 mg per day in divided doses. She takes a blood pressure tablet in addition to Deptran and Lexapro (these are for depression). She is under the care of Dr Gauvin, psychiatrist for her depression. I understand she is under the care of Dr Ian Buttefield with regard to pain management and he is presumably prescribing the narcotic medication.
[29] Exhibit D
In the course of treatment for slightly more than twenty years, Dr Kosmas has provided regular reviews and counselling for Ms Dyson’s depression. He told the Tribunal that he has provided focused psychological support services and support counselling for her chronic depression on a fortnightly or monthly basis throughout. Mental health plans have been completed for her and they have included referral to a psychologist at Fleurieu Psychology, and more recently to Mr Cummins in April 2021. The support through counselling seems to coincide with the fortnightly or monthly health reviews which are necessary for review and prescription of Ms Dyson’s pain medication. In evidence, Dr Kosmas confirmed that Ms Dyson is using considerably less medication than she was, for example, five years ago, and she has now reduced it to minimal levels.
In the NDIS access request – supporting evidence form – Dr Kosmas wrote that Ms Dyson has had depression since 2000 and that the impairment is likely to be lifelong, with treatment including regular review, which he provided to Ms Dyson for counselling and support. In that document, which is dated 8 July 2019, Dr Kosmas also wrote that Ms Dyson: “has depression but self manages with support of GP, doesn’t engage with psychology at this time”.[30]
[30] Exhibit B, T11
Mr Cummins wrote a report on 2 May 2021,[31] in which he commented that he had: “only recently begun treatment for Ms Dyson but was immediately concerned regarding her situation and prognosis.” In evidence, Ms Dyson said that she has consulted Mr Cummins on slightly more than 20 occasions, comprising two lots of 10 sessions through the Medicare scheme. She said that she has found his support very helpful.
[31] Exhibit A2
Dr Schirripa told the Tribunal that he could not find any mention of a diagnosis in Mr Cummins’ report, and hence it lacked utility from a psychological perspective.
The evidence is not clear about the recent treatment which Mr Cummins had apparently commenced. However, he commented in strong terms that “professionals must not infantilise people with such injuries, and be mindful that it can be very regressive to insult them by offering childish solutions and treatments repeatedly. This is the state at which she currently exists.”[32] While there is a lack of clarity about his criticisms, it appears that they are not directed towards Ms Dyson’s general medical practitioner, Dr Kosmas, whom Mr Cummins acknowledged has provided “excellent input and support”.
[32] Exhibit A2
The Tribunal accepts Dr Schirripa’s evidence that Ms Dyson has a psychiatric diagnosis of intermittent adjustment disorder with depressed mood. The Tribunal accepts Ms Dyson’s contention that the depressive condition is associated with physical pain. The Tribunal is satisfied that Ms Dyson received treatment intermittently in the past two decades which has included psychology services, counselling and medication. In his written report Dr Schirripa considered that “further psychological therapy would be indicated to assist her in better managing her mood changes and to assist with pain management techniques.” He reported that Ms Dyson had told him that there was some benefit from the psychological therapy, apparently through the sessions with Mr Cummins. Dr Schirripa considers that psychological therapy can have benefits in treating an adjustment disorder and, in particular, psychological techniques have a significant role to play.
The Tribunal is satisfied that Ms Dyson has an impairment, namely intermittent adjustment disorder with depressed mood, that is permanent for the purposes of NDIS Rule 5.4 in that there are no clinical, medical or other treatments that would be likely to remedy the impairment. NDIS rule 5.5 allows for permanency of impairment notwithstanding that the severity of the impact on a person’s functional capacity may fluctuate with the potential for improvements. Ms Dyson tried numerous treatments over many years, and she reached a point where she has ceased medication in favour of counselling, support and various techniques of self-help. Her mental health impairment varies in intensity and has been episodic or fluctuating over many years.
The Tribunal finds that the criterion in s 24(1)(b) of the NDIS Act is met in regard to intermittent adjustment disorder with depressed mood, Equally, the Tribunal is satisfied that this impairment would have met the criterion for permanency as an impairment attributable to a psychiatric condition under s 24(1)(a) prior to the amendment and which applied at the time of the Agency’s original decision and its internal review decision.
The next step is to decide whether Ms Dyson meets the requirements which are set out in subsections 24(1)(c), (d) and (e) of the NDIS Act.
FUNCTIONAL CAPACITY – Section 24(1)(c) NDIS Act
Section 24(1)(c) of the NDIS Act requires an analysis of whether the impairments result in substantially reduced functional capacity to undertake one or more of the activities specified in the subsection. Those activities are communication, social interaction, learning, mobility, self-care and self-management.
Each of the activities specified in s 24(1)(c) of the NDIS Act and their impact on functional capacity will be examined in relation to Ms Dyson’s impairments.
An amendment to s 24(1)(c) came into effect on 1 July 2022. Prior to the amendment, and therefore at the time when the Agency made its original decision and its internal review decision, the provisions of s 24(1)(c) commenced:
(c)the impairment or impairments result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the following activities…
Following the amendment on 1 July 2022, s 24(1)(c) states:
(c)the impairment or impairments result in substantially reduced functional capacity to undertake one or more of the following activities…
The activities are, as stated above, communication, social interaction, learning, mobility, self-care and self-management. The amendment removes the words “or psychosocial functioning in undertaking”.
The legislation requires:
… a relatively high degree of precision by decision-makers (see, for example, the six activities in s 24(1)(c)) in assessing what a person can or cannot do. The assessment to be undertaken is avowedly functional and multi-faceted.[33]
[33] Mulligan v National Disability Insurance Agency [2015] FCA 544, at [55]
In Nika & National Disability Insurance Agency,[34] the Tribunal (Deputy President Meagher, now President Meagher) referred to s 24(1)(c), noting that:
… the test is not whether the applicant could do more with respect to a particular activity. The test is whether the applicant has substantially reduced functional capacity to undertake the activity.[35]
[34] (2021) AATA 2127
[35] At [230]
Under NDIS Rule 5.8, the decision-maker must assess the effect of a person’s impairment on the performance of each of the activities that are set out in s 24(1)(c). If the result is any of the outcomes which are specified in r 5.8(a), (b) or (c), then the deeming effect of r 5.8 will apply, namely that the impairment results in substantially reduced functional capacity to undertake one or more of the relevant activities. These Rules require consideration of a person’s capacity to participate in the activity without assistive technology, equipment other than commonly used items or home modifications; whether the person usually requires assistance from someone else to undertake the activity; or whether the person is unable to participate in the activity even with assistive technology, equipment, home modifications or assistance from another person.
The Tribunal has regard to s 8.3.1 of the Operational Guideline,[36] and in particular, the following passages about an impairment resulting in substantially reduced functional capacity:
[36] Exhibit B, T18
By itself, reliance on commonly used items will not result in a substantially reduced functional capacity to participate effectively or completely in an activity. Commonly used items include glasses, walking sticks, non-slip bathmats, bathroom grab rails, stair rails, age appropriate child safety locks, simple adapted kitchen utensils and dressing aids.
In considering the role played by assistive technology, home modifications and equipment, the NDIA will consider specific needs arising from the prospective participant's impairment, and whether those needs are met (or need to be met) through the use of specialist disability aids and/or equipment.
Such items would generally be specifically designed to assist in increasing the functional capacity and participation of people with disability and be formally prescribed by a medical practitioner, specialist clinician or allied health professional such as an occupational therapist, physiotherapist or speech therapist.
When considering whether a person requires assistance from others to participate or perform tasks associated with an activity, the NDIA will have regard to whether a person's need for assistance is consistent with normal expectations of a person of a similar age…
A person will be unable to participate effectively or completely in an activity if they cannot safely complete one or more of the tasks required to participate in an acceptable period. Undertaking a task more slowly or differently to others will not necessarily mean a person cannot participate effectively or completely in an activity.[37]
[37] Exhibit B, T18, Operational Guideline – Access, pp 105–106
Allied health evidence
The Agency arranged for an independent assessment of Ms Dyson to be undertaken by an occupational therapist, Ms De Vries. She attended Ms Dyson’s home on 21 October 2020, and she wrote a report on 30 October 2020 about that assessment and her findings. The report [38] was admitted into evidence at the hearing and Ms De Vries gave evidence about it by video. Before the assessment, she was provided with various background reports and material, which were listed in her report and in which she acknowledged that Ms Dyson’s primary illness or injury was described to her as chronic lower back pain, disc prolapse, cervical disc herniation and spinal stenosis, and depression. She noted background information about Ms Dyson, which included the onset of lower back symptoms following a workplace injury in 1994, when she ruptured two discs in her lumbar spine, a fusion of those ruptured discs four years later, rupturing of discs in the cervical region of the spine during surgery, a compression fracture at T6 while having physiotherapy treatment, a diagnosis of T6 syndrome and nerve irritation following a suspected heart attack, nerve damage and generalised weakness in arms and legs, occasional sciatica with increased symptoms in her right leg, aggravation of pre-existing injuries to the lower back and neck in two rear end motor vehicle accidents, bursitis in both shoulders, arthritis in knees, shoulders and thumb joint, global osteoarthritis with symptoms in all joints across her body, chronic fatigue and fibromyalgia, weight gain and type II diabetes, depression and anxiety from the initial injury, post-traumatic stress disorder relating to chronic pain and her experiences on WorkCover, asthma, eczema, and underactive thyroid and a large bunion on the medial side of her right foot.
[38] Exhibit R1
Ms Dyson explained to Ms De Vries, as recorded in the report, that because of her injuries she has not been pain free in over 27 years, due to lower back pain (4/10 on a numeric pain scale at the beginning of the day, increasing to 8/10 with activity), cervical spine (pain scale 4/10, increasing to 8/10), bilateral shoulder pain (pain scale: dominant right arm 6/10 and left arm 4/10), arthritis and swelling in the left thumb joint (average pain score 4/10, increasing with any activity), radiating pain and numbness intermittently in both arms, nerve pain from the T6 compression fracture causing severe pain around the heart and gallbladder, with sporadic attacks requiring ambulance assistance, and depression arising out her deterioration in lifestyle and loss of occupational roles. Good days are becoming less regular and there are no days where she is pain free.
In her report,[39] Ms De Vries provided her assessment of Ms Dyson’s range of movement in the cervical spine, lumbar spine, right shoulder and left shoulder as follows. Ms Dyson disagreed with Ms De Vries’ reported observations. Ms Dyson told the Tribunal that Ms De Vries’ assessment of her functional ability was wrong. She said that the percentages which Ms De Vries recorded were “100% inaccurate”. In relation to the cervical spine, she said that she cannot turn her head; she has to turn from her hips. She said it was impossible, following a double fusion, to have the range of function in the lumbar spine which Ms De Vries recorded. Ms Dyson disagreed with the observed range of movement which Ms De Vries recorded for the right shoulder and left shoulder, suggesting that Ms De Vries pulled those percentages “out of a hat”. Ms Dyson said that she could not lift her right arm to shoulder height, with her left arm being a little better as she can lift it to slightly above shoulder height.
[39] Exhibit R1
Ms De Vries’ observation of the range of movement of Ms Dyson’s shoulders related to each arm going straight up, each arm movement side to side, and each arm moving inwards and outwards. Ms De Vries was confident about her estimate of the percentages with the range of movements. Her notes included a comment that Ms Dyson had taken pain medication that morning. Ms De Vries acknowledged that the medication might have provided greater ease and capacity with the requested movements. Ms De Vries recorded percentages in the observed range of movement. The right shoulder was assessed at 60% of normal range and the left shoulder at 70% of normal range. A 60% rating – which was the lowest rating for Ms Dyson’s shoulder movements assessed by Ms De Vries – means movement of the arm to slightly above shoulder level.
In her oral evidence, Ms De Vries explained that her assessment of the range of movement was by observation of movements which she requested Ms Dyson to make. In relation to the cervical spine, Ms De Vries observed Ms Dyson looking down to the floor, looking up to the ceiling and looking over each shoulder. With the lumbar spine, the observations were of Ms Dyson bending forward, bending backwards and bending side to side. The bending involved movement of the hips. Bending forward, Ms Dyson was able to get her hands close to the floor. In her notes, Ms De Vries recorded that Ms Dyson’s fingers touched the floor. Ms De Vries described the range of motion as fantastic. She explained in her evidence that her description of the range of motion as fantastic took into account the background of significant injuries which Ms Dyson has sustained.
Ms Dyson disagreed with aspects of the report by Ms De Vries. She mentioned her disagreement to Mr Cummins, and in his report[40] he wrote:
Ms Dyson pointed out a number of salient errors in the 0T report. Most importantly she states the Range of Movement is incorrect. Ms Dyson has no effective range of movement of the lumbar spine, not the full functional range as the report states. Her cervical region also is not 50 – 75% as stated, instead being perhaps 25%; at all events the more critical factor is that no movement is possible without severe pain. Ms Dyson stated the movement observed by the OT was all in fact from her hips – not from the lumbar or cervical region.
[40] Exhibit A2
Mr Cummins then acknowledged that he had: “not formally assessed this.” He added: “it is not in my purview to do so.” However, he still felt confident to write: “I can confirm my observations consistent with Ms Dyson’s account.” That comment seems rather abstruse and in evidence, Mr Cummins was obliged to acknowledge that although he knew aspects of Ms Dyson’s medical history, the type of assessment which an occupational therapist conducts is not within his field of expertise.
In evidence, Ms Dyson said that Ms De Vries was at her house for only 30 to 40 minutes. Ms Dyson said that she was not seated for that time, as she got up from her chair on at least 3 or 4 occasions to feed the birds. She said that Ms De Vries lied in the report on several occasions and that she gave a misleading impression in a photograph of Ms Dyson at the bottom of the stairs; the impression apparently being that she could navigate them without support. She asserted that Ms De Vries does not have the capacity to do a functional assessment.
Ms Dyson was referred to Ms De Vries’ comments about current functional tolerances. She disagreed with the comment in the report about her ability to sit for extended periods. She said that she told Ms De Vries that sitting gives her huge levels of pain. She said that she can stand for longer than she can sit, although she cannot stand still in one spot. She emphasised that everything that she does increases her level of pain, and standing affects her knee quite a bit.
Ms Dyson also asserted that some of the comments that she made to Ms De Vries were inaccurately recorded. Ms Dyson asserted that Ms De Vries had changed things around, not included some comments which Ms Dyson made about her problems and misrepresented others. Counsel for the respondent questioned Ms Dyson about some of Ms De Vries’ assessments; for example, a passage in the report regarding sleeping and waking up. Ms De Vries wrote that: “high levels of pain have a detrimental effect on Ms Dyson’s sleep hygiene. She reports to sleep a maximum of 3 – 4 hours and then wakes up stiff and sore.”[41] Ms Dyson thought that was a fair description. However, she disagreed strongly with the next passage: “when waking up, she may go on her phone, read or turn on the television. If she cannot return to sleep, Ms Dyson explained that she recently got up and started painting her ensuite.” The explanations which Ms Dyson gave in evidence about alleged errors in Ms De Vries’ report were evasive, unconvincing and unhelpful. She said she had not switched on the old box TV in 15 years; then she said she watched DVDs on TV; then she said she kept the TV for her grandchildren. She was asked about painting the ensuite in the middle of the night and she said she didn’t know. Then she said she didn’t remember. Then she said she didn’t paint the whole ensuite; she might have painted only one square metre. Ultimately, Ms Dyson acknowledged that she painted some of the edges of the ensuite with a brush and the wider surfaces with a roller, while somebody else was engaged to finish the painting. She was unnecessarily defensive and evasive once more in giving this evidence. She commented that Counsel’s questions were not relevant and petty. She dismissed as a waste of time his questions about her typing the statement of lived experience. [42] Her responses gave the Tribunal little confidence that her criticisms of Ms De Vries were soundly based or reliable. Similarly, the Tribunal is satisfied that Ms Dyson’s criticism of and disagreements with Ms De Vries about the recording of her range of movements are without foundation.
[41] Page 105
[42] Exhibit A7
Ms Dyson provided the Tribunal with a report[43] written by a physiotherapist, Keith Fleming, which he described as a functional capacity evaluation summary report. Ms Dyson commended it to the Tribunal. It is an old report, which provides the results of assessments in February 1999. The report includes an assessment of significant limitations in Ms Dyson’s range of motion, with particular reference to the cervical spine, left and right trunk flexion, extension and rotation, straight leg raising and bilateral hip extension. A strength assessment indicated decreased strength of muscles acting on the neck and trunk, decreased strength of left hip extensors, a slight decrease in strength in the left and right biceps, a significant decrease in strength in the left and right triceps, and a significant decrease in strength in the left and right finger extensors in both hands. The report noted that Ms Dyson presented with a chin thrust posture and she had a noticeable decrease in grip strength on the left hand. The physiotherapist noted that she had recommenced Pilates exercises and he recommended that she continue these.
[43] Exhibit E
Ms Dyson’s mental health was a matter of considerable concern in the context of some comments which Mr Cummins offered about her being at risk of breakdown. While the Tribunal is concerned about the reliability of aspects of Mr Cummins’ evidence and the weight which can be attached to it, his concern for his client’s wellbeing is genuine. In his letter he emphasised the impact of the injuries which Ms Dyson has endured, with particular reference to chronic pain and the long-term distress which she has experienced. He has a perception that “professionals” underestimate the physical pain and the continuing trauma of personal difficulties, adaptations and compromises which people suffer through their “pain burden” and “pain budget”.
The bulk of Mr Cummins’ letter addressed the six activities specified in s 24(1)(c) of the NDIS Act, namely communication, social interaction, learning, mobility, self-care and self-management. Apart from the activity of communication, with which Mr Cummins appeared to acknowledge there is not a problem, his comments about the other activities are broadly a recitation of what Ms Dyson told him. Mr Cummins acknowledged in evidence that, contrary to the heading in the letter, in fact the letter was not a psychological report. The letter does not provide a perspective by a psychologist about the psychological aspects, if any, that bear upon the interference with or diminution of functional capacity to undertake the various activities of daily living. He acknowledged that it was not a report containing a psychological assessment with details of a psychological history, assessment, or psychometric testing. He said that he was not asked to provide a comprehensive psychological report and he was not paid to provide one. He said that, because he was not being paid to provide a comprehensive psychological report, it was entirely appropriate to address and answer the questions by setting out Ms Dyson’s description of limitations and restrictions in the activities. He acknowledged that his letter was not a medico-legal report. Curiously, however, he said that he did not anticipate that he would be giving evidence about this matter, especially as it related, in his words, to something as small as a few thousand dollars which Ms Dyson was requesting for cleaning and gardening.[44]
[44] Oral evidence 3 February 2022
Dr Schirripa stated in evidence that he did not agree with Mr Cummins’ assessment about Ms Dyson being at high risk, and that view is consistent with a comment which he made in his report. In answer to a question by Ms Dyson during the hearing, Dr Schirripa’s evidence was that she had told him that she had not self-harmed in the past. Dr Schirripa has treated patients who suffer from chronic pain, with specialisation in treatment of people with mood disorders and major depressive conditions. He formed the impression, however, that there was a presence of a “paranoid personality style and narcissistic trait… She is extremely mistrusting of authority figures; in particular governments and organisations”. Dr Schirripa’s observations about her personality style relate to her apparent bluntness, irritability, and her views about aspects of the medical profession and certain government policies and programs in public health. Ms Dyson disagreed vehemently with Dr Schirripa’s comments about paranoia and narcissism.
It is important to bear in mind that the Tribunal has accepted evidence about Ms Dyson’s psychiatric condition as being an intermittent adjustment disorder with depressed mood. Dr Schirripa did not consider that Ms Dyson has chronic major depressive disorder, bipolar disorder or a primary anxiety disorder and the Tribunal’s finding is that she does not have such disorders.
Ms Dyson contended that Dr Schirripa and Ms De Vries were dishonest. The Tribunal rejects those contentions. There is no basis for them. The Tribunal accepts that both Dr Schirripa and Ms De Vries conducted their assessments and compiled their reports in accordance with appropriate professional standards and requirements. The Tribunal accepts that each of them gave their oral evidence honestly
COMMUNICATION – Section 24(1)(c)(i) NDIS Act
Section 8.3 of the Operational Guideline refers to communication as including: “being understood in spoken, written or sign language, understanding others and expressing needs and wants by gesture, speech or context appropriate to age.”[45]
[45] Exhibit B, T18
Ms Dyson confirmed in evidence that she is bilingual, with English as her second language.
In her report,[46] Ms De Vries, occupational therapist, concluded that Ms Dyson does not require assistance with communication. In his report, Mr Cummings did not suggest that Ms Dyson has difficulties with communication.[47]
[46] Exhibit R1
[47] Exhibit A2
Dr Schirripa reported[48] that Ms Dyson does not need assistance with communication, as she can communicate effectively with others in written and spoken language. He did not consider that her depressive symptoms are sufficiently severe to cause incapacity with her communication. In his evidence, Dr Schirripa confirmed that, from a psychiatric perspective, Ms Dyson does not have substantially reduced functional capacity in this area.
[48] Exhibit R2
In the supporting evidence form, Dr Kosmas ticked the box indicating that Ms Dyson does not require assistance with communication.[49] In the letter he wrote on 12 January 2021, to Ms Dyson’s advocate, he commented more fully, and suggested that Ms Dyson’s pain can affect her ability to communicate, which, in turn, causes difficulties for others communicating with her, and when the pain is particularly severe, she has difficulty concentrating and retaining information.[50] In evidence, Dr Kosmas was asked about Ms Dyson’s capacity for communication in a professional setting. He acknowledged that he had not had communications with her outside of a doctor-patient context. He described her as an intelligent person who conducts herself in a socially acceptable manner. Her communication can be affected from time to time by pain, and Dr Kosmas is aware of the occasions when she needs to refocus and get back on track with her communication.
[49] Exhibit B, T11
[50] Exhibit A6
The Tribunal accepts that Ms Dyson has intermittent difficulty with communication when her capacity and patience for communicating is reduced by fatigue and pain. However, Ms Dyson is clearly capable of communicating in spoken and written language. She has no difficulty understanding others and she is able to express her needs and wants appropriately. In both oral and written communications, she is articulate, clear and capable.
Having heard Ms Dyson give evidence, and having read her comprehensive written submissions, and noting all of the medical and clinical evidence, the Tribunal is satisfied that Ms Dyson does not have a substantially reduced functional capacity, arising out of her physical and mental health impairments, to communicate within the meaning of s 24(1)(c)(i) of the NDIS Act.
SOCIAL INTERACTION – Section 24(1)(c)(ii) NDIS Act
Section 8.3 of the Operational Guideline refers to social interaction as including:
… making and keeping friends (or playing with other children), interacting with the community, behaving within limits accepted by others, coping with feelings and emotions in a social context.[51]
[51] Exhibit B, T18, Operational Guideline – Access, pp 105–106
In her pre-hearing statement,[52] Ms Dyson referred to isolation which occurs when she is in a lot of pain. She does not want to be with others in those situations, and she believes that feeling is reciprocated. She wrote: “my kids don’t like seeing me in a lot of pain so they don’t come and see me.” She made similar comments in her lived experience statement.[53] In evidence, Ms Dyson said that she has a circle of friends. She said that occasionally, although not very often, they visit her at home. She acknowledged that she has some friends who accompany her to listen to bands. She does a bit of dancing, which she described as standing on the spot and wriggling around in her own style. However, she has difficulty sitting, and, together with the social restrictions caused by covid regulations, both the opportunity and her enthusiasm for these social outings are diminished. She implied that she spends less time with friends outside home because of financial issues. She has a friend “up the road” who has five children and she “pops in occasionally”.
[52] Exhibit C
[53] Exhibit A7
Ms Dyson stated in her evidence that she wants to remain as physically active as possible. She emphasised the importance of maintaining her mobility. Her routine includes going to the beach nearby every day. She drives to the park and allows the dog to run around. On good days, she walks along the beach for a couple of kilometres. She walks slowly and avoids soft sand and corrugated sand. She has lived in the area for about 40 years and knows many of her neighbours and local residents. She stops on the beach and chats with them.
In her closing submissions, Ms Dyson pointed out that her social life was severely affected. Socialising leads to exhaustion, and physical pain heightens her emotions, which results in her being less able to cope socially and emotionally. She has little contact with her family, and she said that friends have ceased inviting her to join them on outings as they do not want to see her in physical pain and with heightened emotions. Therefore, she has reached a point where she has to make a virtue out of isolation, appreciating her pets and appreciating nature. She pointed out that greeting someone else passing by on the beach is no indicator of a social life. She said that she does not leave the house at all when she is having a bad day.
Mr Cummins’ letter[54] refers to matters which Ms Dyson relayed to him about “very significant social and emotional isolation and withdrawal.” This has come about because of “the crippling pain, the absence of any spare money to afford simple social activities, the inability to interact more, and the emotional dysfunction leading to intolerance and relationship breakdown.”
[54] Exhibit A
Dr Schirripa reported[55] that Ms Dyson does not need assistance to interact with others in social situations. He considered that she has the psychiatric capacity for social interaction. Noting her interest in yoga, live music and dancing, he considered that she is able to interact with others in social situations and does not require additional assistance in that regard. Dr Schirripa also wrote in his report:
She told me that she is angry with Covid-19 restrictions as she is unable to go out dancing and listen to live bands. Her level of interaction may vary depending on the severity of pain levels, and at times if she was feeling more intense, transient depressive symptoms, but she indicated to me that when she [is] able to go out and do these social activities she does enjoy them.
[55] Exhibit R2
In the supporting evidence form Dr Kosmas ticked the box indicating that Ms Dyson does not need assistance with social interaction, while noting that she has depression which she self manages, together with support which he provides in his role as general medical practitioner. This was in contrast with comments in Dr Kosmas’ letter to Ms Dyson’s advocate on 12 January 2021, in which he wrote that social interaction:[56]
… causes severe difficulty for Nina as she is limited in the type of activity and community engagement that she can participate in due to her severe disabling pain. This causes difficulty in keeping and maintaining friends not only because she is unable to physically participate in social activity but also emotionally as others have shown difficulty in understanding and accepting her disability and Nina often feels excluded as a result of this.
[56] Exhibit A6
Ms De Vries reported[57] in the occupational therapy assessment that Ms Dyson is independent with her social interactions.
[57] Exhibit R1
In evidence, Ms Dyson agreed with Dr Schirripa’s observation that she has capacity to interact with others in social situations. She said she can do it in a few languages.
While accepting that Ms Dyson’s impairments cause some interference with her capacity and willingness for social interaction, the Tribunal does not accept Mr Cummins’ views about the extent of emotional dysfunction, intolerance and breakdown in relationships. Ms Dyson’s evidence does not suggest such an extreme level of interference in social interactions and activities. The terminology in the Operational Guideline provides important and conventional indicators of key aspects of social interactions. With those elements in mind, it is apparent that Ms Dyson behaves generally within limits accepted by others, maintains some friendships, copes with emotions and expresses herself in an articulate and clear manner. By the same token, the clear impression which Ms Dyson conveyed in her oral evidence is her capacity and willingness “to speak her mind” with an occasional tendency towards bluntness rather than diplomacy. Whether or not she picks the right occasion for making a point is potentially problematic and appears to have caused some concern for Dr Schirripa in his conversation with her about Covid. Nonetheless, Dr Kosmas confirmed in evidence that her interactions with him for more than 20 years have been appropriate. He regards her in terms of the doctor-patient relationship as compliant and respectful in listening to and following advice.
The Tribunal prefers Dr Schirripa’s evidence about Ms Dyson’s capacity for social interaction. While that capacity may fluctuate from time to time because of her impairments, the Tribunal is not satisfied that impairments attributable to her physical impairment and mental health impairment have resulted in a substantially reduced functional capacity for social interaction within the meaning of s 24(1)(c)(ii) of the NDIS Act.
LEARNING – Section 24(1)(c)(iii) NDIS Act
Section 8.3 of the Operational Guideline states that learning “includes understanding and remembering information, learning new things, practising and using new skills.”[58] In evidence, Ms Dyson mentioned her interest in reading academic and medical studies about disease and medication. She accesses material on the Internet by iPhone. She has read extensively about Covid. However, Ms Dyson said that she has brain fog. She referred to difficulties that she has with her memory and asserted that she could no longer recall what she read recently in a book.
[58] Exhibit B, T18, Operational Guideline – Access, pp 105–106
In the supporting evidence form,[59] Dr Kosmas ticked the box stating that Ms Dyson does not need assistance with learning. However, in the letter he wrote to Ms Dyson’s advocate on 12 January 2021,[60] Dr Kosmas referred to difficulties which Ms Dyson has with learning and retaining new information. He commented that her chronic pain and strong analgesia medication adversely affect her concentration, short term memory and retention of information.
[59] Exhibit B, T11
[60] Exhibit A6
In her occupational therapy assessment,[61] Ms De Vries reported that: “as a result of chronic pain and fatigue, Ms Dyson can have difficulties maintaining her concentration at times of increased symptoms.” Ms De Vries recorded the medications which Ms Dyson was taking in October 2020, listing them as Targin 20mg, Meloxicam, Ventolin and preventative inhaler, Eutroxsig, Norgesic and PRN Endone. According to the report, Ms Dyson takes Endone on most days.
[61] Exhibit R1
In his letter,[62] Mr Cummins acknowledged that Ms Dyson had made various “intelligent adaptations” to address difficulties with learning. She has some difficulty with recollection, though not with understanding, and he also referred to her as being rational and practical.
[62] Exhibit A2
Dr Schirripa considered that there is no psychiatric condition that interferes with Ms Dyson’s ability to learn new things. He noted that she told him that she has spent considerable time researching laws, and it was an activity that she enjoyed. [63] The Tribunal accepts Dr Schirripa’s evidence on this issue.
[63] Exhibit R2
Ms Dyson told the Tribunal that, by choice, she does not read newspapers or watch television. She said she turned the television off 15 years ago. She uses her iPhone to read material. A problem with reading arises out of her difficulties with concentration. Her ability to concentrate suffers when she is in severe, physical pain. The situation is different now, after reducing her medication, as she felt the larger doses of medication were adversely affecting her ability to retain information. Although she no longer reads books, she said that the problem for her is a physical problem, namely holding a book.
In relation to Ms Dyson’s permanent impairments, the Tribunal is not satisfied that there is satisfactory evidence of a reduced functional capacity, substantial or otherwise, in learning. Ms Dyson does not meet the criterion in s 24(1)(c)(iii) of the NDIS Act.
MOBILITY – Section 24(1)(c)(iv) NDIS Act
Section 8.3 of the Operational Guideline provides a definition of mobility:
… this means the ability of a person to move around the home (crawling/walking) to undertake ordinary activities of daily living, getting in and out of bed or a chair, leaving the home, moving about in the community and performing other tasks requiring the use of limbs.[64]
[64] Exhibit B, T18, Operational Guideline – Access, pp 105–106
In her pre-hearing statement,[65] Ms Dyson described difficulties which she has with mobility. She wrote that there are at least two days each week when she can do nothing other than lie down. She suffers pain when sitting and she avoids sitting for long periods. Walking up and down hills is difficult for her. She avoids stairs as much as possible. The steps in front of her house are too high, so she walks to the back of the house to go through the back door. Her legs do not work properly when her back is bad. Inside the house she has a grab rail installed in the bathroom and for the toilet. There was a time when she used walking sticks. However, she abandoned them on advice and tries to walk as naturally and freely as possible. She cannot stand for long periods and she cannot stand in one spot because of problems with balancing and the risk of falling.
[65] Exhibit C
In Madelaine & National Disability Insurance Agency the Tribunal (Deputy President Humphries) referred also to the threshold requirements in the Operational Guideline as being relatively modest, noting that:[66]
A person has functional capacity if they can move about their home, get in and out of a bed or a chair, and mobilise in the community. Movement in the home does not need to be achieved by walking; a person might even crawl from room to room…The use of the phrase move around... to undertake ordinary activities of daily living in the Guideline is significant. It implies some expectation of how far a person needs to be able to move to undertake ordinary daily activities, say, getting to the bathroom to wash or toilet, getting to the kitchen to prepare food, perhaps getting to the front letterbox to collect mail. Implicit in this concept is that the distances involved will be relatively short. Significantly, the concept does not include being able to move around in the community for the purpose of accessing services, such as shops, the bus stop or the local park – the phrase moving about in the community is not qualified in the same way that move about the home is qualified by to undertake ordinary activities of daily living. To define mobility by the ability to reach local services would be to make it a function of where one lived. A better application of the concept is to ask whether a person can move about in shops or a park once they have reached them, say by car or public transport.
Moving around the home
[66] [2020] AATA 4025 at [105]
Ms De Vries reported[67] that Ms Dyson is independent with mobility and transfers, and noted that she does not use mobility devices and does not require them. However, she also noted that: “regular rotation in postures is required to assist with symptom management.” In evidence, Ms De Vries said that she walked around the house with Ms Dyson, and she observed that Ms Dyson had no functional restrictions of significance, and she was not using any form of mobility aid.
[67] Exhibit R1
In her report,[68] Ms De Vries described Ms Dyson’s house, which is a few hundred metres from an outer suburban beach. It is a five-bedroom house on a sloping block of approximately 760 sqm, with side and rear gardens. It is a split-level house, with two steps between the bedroom/bathroom and living area, with two separate lounge areas and two bathrooms. There are four concrete steps to enter the “rear door” and a single step to the “front door”. A rail has been installed inside and at the “rear door”. Ms De Vries noted that:
… the installation of a grab rail occurred following a previous occupational therapy assessment which allows Ms Dyson to navigate up/down independently. She reports that on bad days she can misjudge when lifting her foot and can trip going upstairs.
[68] Exhibit R1
Ms Dyson told the Tribunal that the four concrete steps are at the front door entry, not the rear as referred to in Ms De Vries’ report.[69] She has a grab rail installed for the outside step and a grab rail for the steps inside the house in the hall. In evidence, Ms Dyson told the Tribunal that she has difficulty walking over uneven surfaces and she faces the risk of tripping, particularly because of problems with her knees. She tends to use the single step at the back of the house in preference to the steps at the front. She said that there are some days when she cannot feel her legs, and she attributes this to spinal nerve damage. She referred to a bad fall which she had “the other day”. In evidence, she agreed that she demonstrated a deep squat to the floor when she was with Ms De Vries. She explained that squatting comes from the hips and her hips are good, and that the squatting motion has nothing to do with spinal damage.
[69] Exhibit R1
Ms Dyson told the Tribunal that three of the five bedrooms are closed off. She does the vacuuming, at least when the vacuum cleaner is working, for periods up to about 15 minutes. She keeps birds and they make a mess, which she cleans up. She also has two dogs, and they shed hair and sand inside. She keeps the house as clean as possible. However, it is not to the standard that she would like. She does the housework in stages, perhaps lasting half an hour for each stage.
Ms De Vries wrote in her report[70] that Ms Dyson told her she can stand for extended periods, provided she can rotate between both feet. The rotation helps to manage symptoms in her knees and her back.
Getting in and out of bed or a chair
[70] Exhibit R1
Ms De Vries reported[71] that Ms Dyson is independent with all transfers, and that she observed Ms Dyson transferring independently from her bed and her couch. She does not use aids to assist with transfers and there are no rails within the wet areas.
[71] Exhibit R1
Ms De Vries recorded[72] her observations about bedding in this way:
Ms Dyson has a queen-sized bed which she purchased due to its high height from the ground. Ms Dyson transfers on/off the bed independently with no assistance. Ms Dyson sleeps with a bolster pillow underneath her knees, which improves her comfort within the bed. High levels of pain have a detrimental effect on Ms Dyson’s sleep hygiene. She reports to sleep a maximum of 3–4 hours and then wakes up stiff and sore. When waking up she may go on her phone, read or turn on the television.
[72] Exhibit R1
Ms Dyson implied in her evidence that Ms De Vries had understated difficulties and improvisations which she has made with transfers. Ms Dyson said that she has a high bed with a satin sheet. This enables her to slide to the edge of the bed and use her elbow as a prop to put her feet slowly on the floor when she is getting out of bed. She acknowledged in evidence that she transfers from bed independently, sometimes with difficulty. Mr Cummins wrote[73] that Ms Dyson told her that she cannot get out of bed easily and uses satin sheets so that she can slide from the bed.
Leaving the home
[73] Exhibit A2
Ms Dyson commented that it takes her four hours to get ready before she can leave home. Then she is exhausted, even after a short trip to the local shop.
Ms De Vries reported[74] that Ms Dyson navigated the inside and outside steps independently. Ms De Vries reported that Ms Dyson walked through the home unaided and that she moved: “with a typical gait pattern and could navigate all areas of the home, including both sets of stairs. Ms Dyson confirmed that she does not use any mobility aid either in the home or community.”
[74] Exhibit R 1
Mr Cummins wrote[75] that Ms Dyson is frequently unable to leave the house and sometimes spends all day in bed because of the pain and inability to straighten up.
Moving about in the community
[75] Exhibit A 2
In her pre-hearing statement,[76] Ms Dyson wrote:
… when I go for walks the distance depends on the ground. I have trouble with the ground if it isn’t flat. Some days I can’t lift my legs very high and I trip over any sort of un even surface. If I walk a long distance, I may not be able to get back home. When I go uphill, I lose all power in my legs. The dog sometimes helps by pulling me up a hill. What I used to be able to do in 40 mins now takes me 1.5-2 hours to do.
[76] Exhibit C, paragraph 21
In her statement of lived experience,[77] Ms Dyson wrote that she drives her car to the beach and takes the dog for a walk on the beach, lasting about 40 minutes. Then she might drive to the local shop or attend an appointment. She commented on the evidence about her walking on the beach. She submitted that she struggles with soft sand. If the beach is corrugated, she has difficulties. She said she used to be able to walk from her house down to the beach and up to the rocks, covering a distance of about 2 km. Now she has to drive, and it sometimes takes her twice as long to do half of what she did previously.
[77] Exhibit A7
Ms De Vries recorded Ms Dyson’s comments about walking as follows:[78]
Ms Dyson reports that she manages a 30 minute walk each day with her dog. She explains that her pace has significantly reduced and she has difficulty navigating uneven terrains. Ms Dyson reports daily walking on the beach regardless. Ms Dyson explained that before the recent car crashes she could walk up to a few kilometres and now only manages a few hundred metres.
[78] Exhibit A7
Ms De Vries noted[79] that Ms Dyson: “independently goes into the community a few times per week for food shopping, appointments or to her yoga appointments. She can do this independently.” She noted Ms Dyson manages the food shopping independently. She drives a manual vehicle, which she can get into and out of independently. Ms Dyson reported to Ms De Vries that she drives to the beach each day and the local shops two days per week. Driving for extended periods often causes an increase in adverse symptoms the following day and beyond.
[79] Exhibit R1
Ms Dyson told the Tribunal that she drives her car to the nearby shop on average about three times per week. It is a five-minute drive from her house to the shop. She does not have assistance from anyone else in getting to the shops, doing the shopping and returning home.
In his letter,[80] Mr Cummins noted that Ms Dyson told her that she can “only walk slowly on level ground and only on good days. She described how she has trained her dog to pull her along, particularly uphill. She must push herself to maintain these capacities otherwise her body freezes up and condition and strength is lost.” Mr Cummins reported apparent criticisms which Ms Dyson made of the report by Ms De Vries concerning mobility as follows: “… she notes the information about walking is incomplete and inadequate, especially insofar as it does not note the need for her to use her dog to enable her to walk, especially up the hill slope to her home and across uneven ground.”
[80] Exhibit A2
The findings of the Tribunal about mobility in other reviews provide useful guidance about the approach to be taken in considering evidence about a person’s reduction in functional capacity to move about inside home and outside. The findings are by no means definitive for this case, as each case depends on its own unique circumstances, however they illustrate some of the considerations that are important and relevant to the functional analysis.
In Allen & National Disability Insurance Agency,[81] the Tribunal (Member Professor McCallum AO), found that the applicant did not have a substantially reduced functional capacity with respect to mobility (s 24(1)(c)(iv) of the NDIS Act). In that matter, the Tribunal accepted evidence that the applicant could walk around her home without the use of assistive technology, she undertook a walk of 800 m on a flat concrete surface, she had pain and some anxiety when moving around her home and walking, she does the family shopping although she needs to rest, she drives an automatic car and experiences some pain when driving.
[81] [2018] AATA 3851
In Jourifan & National Disability Insurance Agency,[82] the Tribunal (Senior Member Dr Bygrave) found that the applicant did not have a substantially reduced functional capacity with mobility, having regard to evidence that he was able to walk 700 metres to 800 metres daily without using a walking stick, driving for 10 minutes, travelling alone by bus, assisting his wife with grocery shopping and carrying up to 3 kilograms.
[82] [2020) AATA 1883
In MHZQ & National Disability Insurance Agency,[83] the Tribunal (Senior Member Dr Bygrave) accepted that the applicant’s bilateral knee condition caused significant difficulties in her capacity to mobilise. However, the Tribunal was not satisfied that the applicant’s bilateral knee condition resulted in a substantial reduction in functional capacity to mobilise, as she did not use mobility aids and she had the capacity to walk without aids for 50 metres if she loses further weight. The Tribunal noted the decision in Holmes & National Disability Insurance Agency[84] (per Professor McCallum), which found that the capacity to walk 50 metres, then needing to rest, then continuing to walk after a break, does “not amount to a substantially reduced capacity in… mobility.”
[83] [2019] AATA 810
[84] [2017] AATA 2750, at [76]
The Operational Guideline does not specify ability to walk a particular distance as a definition of the level of mobility. However, as Deputy President Humphries pointed out in Madelaine & National Disability Insurance Agency:[85]
… It seems reasonable to suggest that a person who can travel 50 metres by herself has the capacity to do the things referred to in the Guideline. That view would be consistent with the decisions of the Tribunal in Holmes and MHZQ.
[85] [2020] AATA 4025, at [106]
The Tribunal accepts that Ms Dyson is slow in getting out of bed, getting dressed and getting ready to go out. However, as the Operational Guideline points out, slowness in undertaking a task does not necessarily equate to inability to participate or complete the task. The Tribunal accepts Ms De Vries’ evidence about Ms Dyson’s mobility in the community. In fact, Ms Dyson’s evidence about walking does not diverge significantly from Ms De Vries’. The Tribunal is satisfied by the evidence that Ms Dyson is able to leave home by herself, and that she walks along the beach regularly for distances that are considerably greater than 50 metres, for periods of 30 minutes or more. She moves about in her local community, driving short distances in her car to go the shops.
Falls
In her prehearing statement, Ms Dyson commented that she often has falls. She added:[86]
I have fallen over twice in the past 2 months. Falling over jars my back and makes the pain really bad for a while. I have fallen downstairs and have fallen onto the curb before, a few years ago, and have been left with a permanent dent in hip bone. That took about 8 months to recover from.
[86] Exhibit C, paragraph 23
In her evidence about falls, Ms Dyson did not describe a history of frequent falls. At home, she has never had a fall which required help from another person. She was asked about falling outside of her house, and she described an incident when she was walking in a disused quarry. There were lots of sticks on the ground. She was wearing “flip flop” shoes and she tripped and fell sideways on to rocky, clay ground. She needed treatment from Dr Kosmas for injury to her left hip. She said that she has grab rails fixed in the bathroom, both inside and outside the shower alcove. She has not had falls while showering, and she takes the precaution of having slip mats on the bathroom floor.
Mr Cummins reported[87] that Ms Dyson has “learned to manage her sciatic impairment which affects balance, but nonetheless still suffers falls, especially when her foot drags and she cannot climb steps. This is of very significant concern.”
[87] Exhibit A2
The occupational therapy assessment by Ms De Vries is in contrast to Mr Cummins’ letter. Ms De Vries wrote[88] that there are no reports of recurring falls. She reported that Ms Dyson’s participation in yoga assisted with her dynamic and static balance. Standing on her left foot unaided was more effective than on her right foot. On this topic, more weight can be given to occupational therapy evidence than psychology evidence.
[88] Exhibit R1
In the supporting evidence form, Dr Kosmas suggested that the assistance required with mobility related to home modifications.[89] He wrote that the requirements will be best addressed by an occupational therapy assessment regarding the steps at home, which should be changed to a ramp and rail. He added that Ms Dyson: “Is unable to use public transport, she does drive but finds it painful to her lower back.” Dr Kosmas’ assessment in his letter to Ms Dyson’s advocate on 12 January 2021 was more pessimistic, as he wrote that Ms Dyson’s mobility is severely limited: “… to the extent that she can only walk small distances and has to pace her activity such as housework to avoid experiencing severe exacerbations of her pain that can result in her being bed-bound for days at a time. Nina is unable to safely negotiate stairs and is at constant risk for falls.”[90]
[89] Exhibit B, T11
[90] Exhibit A6
Ms Dyson emphasised in her evidence the negative impacts for her from certain movements and activities. Those impacts include pain on exertion and the need for her to rest after exertion to alleviate the painful effects. She emphasised the slowness of her participation in particular activities and the extra time which needs to be set aside to complete it, if indeed it is completed. There is a point in carrying out activities of daily living where it is unsafe, unrealistic and unfair to expect a person to endure the pain of the impairment and still undertake those activities. As the Tribunal pointed out in Madelaine:[91]
… the Tribunal accepts that the level of risk of injury associated with certain activities may be so great that the person may be, in effect, prevented from participating effectively or completely in that activity… Similarly, it is possible that an activity may be so painful that a person is unable to undertake it effectively or completely…
[91] [2020] AATA 4025, at [108]
Ms Dyson prioritises her need to remain as physically active as possible to maintain fitness, to get out of the house and maintain and enhance her mobility. She is not to be penalised in this review for that priority, as it is plainly laudable. It is acknowledged that her efforts at maintaining mobility come at a cost, namely that she may need to rest after moving about and she may suffer pain after some exertion. Undoubtedly, some aspects of mobility are restricted when she has a bad day. However, the question for the Tribunal is not whether the functional capacity is reduced. The question is whether there is a substantially reduced functional capacity.
In reference to NDIS Rule 5.8, the evidence indicates that Ms Dyson mobilises without resort to assistive technology or equipment. With reference to the Operational Guideline, the Tribunal notes and accepts that commonly used items such as bathroom grab rails and stair rails do not come within the scope of specialist disability aids and equipment formally prescribed by a medical practitioner or specialist clinician. When she is not having a bad day, Ms Dyson is able to mobilise to the extent necessary to perform the tasks and carry out the actions which are required for the particular task. There is some evidence which indicates that Ms Dyson needs more time than she would like to complete activities such as getting out of bed and getting dressed, but the evidence does not demonstrate that she cannot participate in or complete the activity.
The Tribunal is satisfied that Ms Dyson is able to move around her home, leave her home and move about in the community when she goes for walks, shopping and to occasional social gatherings. She is able to get in and out of bed with improvised manoeuvring. She is able to undertake ordinary activities of daily living. In all of these activities there are times when she moves more slowly than she would prefer and times when she is in physical pain. She maintains caution in her movements to avoid falling. She drives her car locally and ventures out on longer trips only if necessary, such as going to Dr Kosmas’ surgery on the other side of the city. There are some days when she rests at home and avoids any activity at all.
The Tribunal is persuaded by the evidence of Ms De Vries. Her report was comprehensive, and her evidence was consistent and reliable. The Tribunal is satisfied that Ms Dyson has reduced functional capacity in mobility, arising out of her physical and mental health impairments, although it is not a substantially reduced reduction within the meaning of s 24(1)(c)(i) of the NDIS Act.
SELF-CARE – Section 24(1)(c)(v) NDIS Act
Section 8.3 of the Operational Guideline refers to self-care as meaning:
… activities related to personal care, hygiene, grooming and feeding oneself, including showering, bathing, dressing, eating, toileting, grooming, caring for own health care needs.[92]
[92] Exhibit B, T18, Operational Guideline – Access, pp 105–106
In her statement of lived experience,[93] Mrs Dyson commented that she can no longer keep up with the daily chores while maintaining the house. At times, she is not well enough to cook and at times she cannot maintain the house to the standard that she wants. She likes to “potter around the house and garden.” In her prehearing statement,[94] Ms Dyson mentioned that she has trouble picking things up from the floor, difficulty with making the bed, and problems with cleaning the bath. She can shower and dress herself, however, she takes much longer than she would like. She does the washing and places the clothes on a rack rather than hanging them on a clothesline. She acknowledged that she prepares her meals. She was receiving two hours’ assistance for gardening per month and one and a half hours per fortnight for cleaning, however the service provider lost its government funding, and the assistance has been withdrawn. As a result, the house is getting “dusty and messy”, and Ms Dyson asserts that it has had a “big impact” on her mental health.
[93] Exhibit A7
[94] Exhibit C
Ms De Vries noted in her occupational assessment[95] that Ms Dyson is: “independent with personal care tasks, including showering, toileting, grooming, eating and caring for her own health needs. Ms Dyson does not utilise any assistive technology; however, low-level aids would be beneficial in promoting her independence and safety.”
[95] Exhibit R1
In her report,[96] Ms De Vries provided her assessment of the type and level of assistance which Ms Dyson may require in activities of daily living. Ms Dyson is able to transfer in and out of her bath with no physical or mechanical assistance, and similarly with showering. Ms Dyson did not report falls in the wet area, and Ms De Vries noted that rails are not in place. Ms Dyson can transfer on and off the toilet with no rails required. Ms De Vries reported that Ms Dyson independently manages the laundry and hangs small items on a waist-high clothes airer.
[96] Exhibit R1
In evidence, Ms Dyson confirmed that she takes regular Epsom salt baths. She can get in and out of the bath independently, having devised a method that works safely and suitably for her. She purchases the Epsom salts in 20 kg bags.
Ms De Vries reported[97] that Ms Dyson requires minimal assistance with meal preparation and cooking. Ms De Vries reported that Ms Dyson has reduced strength in her hands and pain in the left thumb, which together cause difficulty with bilateral tasks such as opening jars. However, she does not have assistive technology in place to assist her with meal preparation.
[97] Exhibit R1
In evidence, Ms Dyson agreed broadly with Ms De Vries’ report[98] about fluctuating capacity in her fine motor skills, which is attributed to numbness in both arms and difficulties with bilateral coordination impacted by arthritis in her left thumb. Ms Dyson pointed out that her left thumb was injured in one of the motor vehicle accidents. Ms Dyson told the Tribunal that it takes her a long time to get dressed in the morning. It may take her two or more hours getting out of bed, getting dressed, taking a rest, continuing with dressing and so on. She agreed that she is independent with grooming, but she indicated that washing her hair can be difficult. She agreed with the comments in the report about her independence with toileting, feeding and meal preparation and cooking. She mentioned, however, that she does not cook often, as she eats raw foods frequently. Generally, she cooks a large amount of food, which she then divides into smaller portions, freezes, and then reheats the smaller serves.
[98] Exhibit R1
Ms Dyson agreed that she can operate kitchen appliances, as set out in Ms De Vries’ report – including the toaster, kettle, stovetop and oven – but she qualified this to having that ability on a good day only. She agreed with Ms De Vries’ observation about Ms Dyson’s difficulty with bilateral tasks. She is not incontinent; however, she sometimes has difficulties with urgency.
Ms De Vries noted[99] that Ms Dyson requires assistance to hang out larger laundry items on a clothesline and, as she does not have that assistance, she tries to hang them over the clothes airer or over doors. These difficulties are mainly due to restrictions in the range of movement in both of her shoulders. In addition, Ms De Vries reported that moderate physical assistance would be required for Ms Dyson with cleaning wet areas, mopping floors, and cleaning the oven, microwave and fridge. She would require moderate physical assistance with home maintenance, and in the meantime, she employs strategies such as using a “miracle lifter” that involves placing microfibre pads under pieces of furniture to slide them across the floor. Ms Dyson told the Tribunal that she can do some mopping, which she described mainly as spot cleaning here and there, principally in the kitchen and lounge. The problem is that mopping causes her pain in the back. She has difficulty making her bed because of problems with her hands.
[99] Exhibit R1
In evidence, Ms De Vries confirmed that her observations of the interior of the house and outside the house were that it was well kept, and she had no concerns about the conditions. Ms De Vries noted that “sustained and repetitive postures” which are aggravating to Ms Dyson’s back, neck and shoulders cause difficulties for her with activities such as cleaning the bath, shower and toilet, and making the bed. Ms Dyson may be able to do some light gardening, such as tidying or watering, but otherwise Ms De Vries confirmed that Ms Dyson requires physical assistance for most of the gardening.
In evidence, Ms Dyson stated that she is not supposed to lift more than 5 kg. However, the practicalities of living require that, from time to time, she carries heavier loads, for example, carrying the shopping or carrying a bucket of water.
Mr Cummins reported[100] that Ms Dyson told him that she has significant difficulty washing clothes; she is usually unable to hang her clothes out, and must use a lower level clothes rack; she cannot vacuum or move without feeling excruciating pain; she is embarrassed about the poor standards of cleanliness in her house; that her house is “generally so squalid that she cannot have people over, and her own children said they will not go there nor bring her grandchildren to visit, such is the level of squalor… It is as much as she can do to keep her kitchen and rumpus room acceptable, but the other bedrooms are all shut off.” He reported that she said that she cannot bend or stoop to clean the bathrooms. Mr Cummins also reported that Ms Dyson said she uses her good days to cook enough food to survive for most of the week; that she is “completely incapable of gardening beyond the most trivial tasks.” Exertion from unavoidable tasks resulted in, according to Mr Cummins’ report, “… a disabling and excruciating pain burden to be paid thereafter, and these can make her bed-bound for days after.”
[100] Exhibit A2
In the supporting evidence form[101] Dr Kosmas suggested that Ms Dyson would benefit from an occupational therapy assessment regarding home modification. In his subsequent letter[102] to Ms Dyson’s advocate, Dr Kosmas reported that Ms Dyson can administer her medication and carry out self-care activities, however, the time that it takes is much longer than it would be for other people. In evidence, Dr Kosmas acknowledged that he has never had any concerns for the way in which Ms Dyson manages her medication. He said she is above average intelligence, and she absorbs information well, although better on a good day than when she is having a bad day. In relation to management of medication, he stated that she is compliant – she understands and follows medical advice.
[101] Exhibit B, T11
[102] Exhibit A6
In weighing up the evidence about self-care, the Tribunal considers that the evidence of Ms De Vries is more cogent and reliable than Mr Cummins’ evidence. Moreover, Ms Dyson’s evidence is suggestive of variable impact on elements of self-care, rather than a substantial reduction in functional capacity to maintain personal care, hygiene and grooming. The Tribunal is not satisfied that Ms Dyson’s permanent impairments have resulted in a substantially reduced functional capacity in self-care within the meaning of s 24(1)(c)(iv) of the NDIS Act.
SELF-MANAGEMENT – Section 24(1)(c)(vi) NDIS Act
The Operational Guideline refers to self-management as meaning:
… the cognitive capacity to organise one’s life, to plan and make decisions, and to take responsibility for oneself, including completing daily tasks, making decisions, problem-solving and managing finances.[103]
[103] Exhibit B, T18, Operational Guideline – Access, pp 105–106
Ms Dyson acknowledged in evidence that she undertakes responsibility for managing her finances, correspondence and appointments. Her house is unencumbered [she owns her house freehold, with no mortgage outstanding]. She takes responsibility for collecting and managing medication, which she has reduced significantly.
Dr Schirripa reported that Ms Dyson was alert, oriented and able to concentrate during the interview. Her affect was generally “… blunt and irritable. She had a sarcastic manner and tone at times. She was not tearful or presenting as depressed or anxious… There was no evidence of suicidal ideation.” The themes during the mental state examination “… primarily related to a sense of financial hardship, chronic pain, mistrust and that she has been treated badly by various government agencies and the medical system in general over the last 28 years.”[104]
[104] Exhibit R2
Mr Cummins reported[105] that Ms Dyson is living in “penury and poverty”. Her “extreme poverty” is the result of her injuries and the lack of financial and other support. The combination of health problems and financial concerns was described by Mr Cummins as follows:
… in this distressed and unsatisfactory state, and with no alternative but to persist, Ms Dyson has managed to plan and manage herself to date, but the physical and emotional exhaustion will reach critical breakdown levels at any time. Moreover, she simply does not have enough income to survive financially. She cannot afford to pay for heating; she is two years behind in council rates. She has no capacity to supplement her income. She suffers persistent and intrusive plans and urges to commit suicide. This is due both to the unrelenting nature of the extensive, severe and chronically painful injuries, but also from the physical and financial inability to survive.
[105] Exhibit A2
Dr Schirripa’s report[106] is somewhat in contrast to Mr Cummins observations. Dr Schirripa considered that Ms Dyson does not need support from a psychiatric perspective. She can function independently, she can independently follow a medication regime, and she has insight with regard to appropriate decision-making. In relation to self-management, Dr Schirripa wrote:
In my opinion, there is no psychiatric condition present that would impair her capacity to make decisions and solve problems independently. Her depressive symptoms are not severe enough to cause an incapacity to her ability to undertake self-management.
[106] Exhibit R2
In her oral evidence, Ms Dyson did not appear to disagree with Dr Schirripa about her capacity for decision-making, except to say that on a bad day when she has to lie down throughout the day, she is incapable of doing anything.
In both the supporting evidence form[107] and in the subsequent letter[108] to Ms Dyson’s advocate, Dr Kosmas indicated that Ms Dyson does not need assistance with self-management. In the letter, he referred to her “sound insight and judgement”, and acknowledged her ability to understand and manage household finances and personal affairs. In evidence, Dr Kosmas acknowledged that Ms Dyson is diligent and punctual in her arrangement of appointments and attendance at appointments. She is punctual and plans ahead to give herself time to get to appointments, and makes allowances for restrictions and problems that she might encounter.
[107] Exhibit B, T11
[108] Exhibit A6
Ms De Vries concluded[109] that Ms Dyson has cognitive capacity to manage her money and household. Ms Dyson had presented with a long-standing diagnosis of depression. She reported to Ms De Vries that she had always tried to be positive and active. She reported feeling occasional brain fog, which she attributed to poor sleep, which adversely affects her concentration on specific tasks. Ms De Vries considered that Ms Dyson has: “… adequate cognition to participate in everyday living tasks such as reading, watching movies, driving and looking after her own money.” Ms Dyson has lived in the same house for 42 years and no longer has any mortgage outstanding.
[109] Exhibit R1
A key consideration in the interpretation of this Operational Guideline is a person’s “cognitive capacity” in making decisions, taking responsibility and solving problems. The evidence confirms Ms Dyson’s cognitive capacity in those domains. The Tribunal accepts the evidence of Dr Schirripa; in particular, in relation to Ms Dyson’s capacity for self-management. Within her health constraints and to the best of her ability, she is able to manage, consult, engage and understand the need for planning, organising and taking personal responsibility.
The Tribunal is not satisfied that Ms Dyson’s permanent impairments have resulted in a significantly reduced functional capacity in self-management as required by s 24(1)(c)(vi) of the NDIS Act.
SUMMARY – Section 24(1)(c) NDIS Act
The Tribunal has considered the factors set out in NDIS Rule 5.8 and is satisfied that Ms Dyson does not fall within any of the sub-paragraphs demonstrating substantially reduced functional capacity. In Kilgallin & National Disability Insurance Agency, the Tribunal pointed out that: “a failure to fall within the provisions of Rule 5.8 of the Becoming a Participant Rules 2016 does not define all the circumstances in which a person might have a substantially reduced functional or psychosocial lack of capacity: per Mortimer J in Mulligan v NDIA [2015] FCA 544, at [77]. But it certainly guides the Tribunal to the kinds of factors which need to be considered in deciding whether a person has reduced capacity.”[110] Ms Dyson’s circumstances do not indicate that she has an inability to participate effectively or completely in relevant activities without assistive technology, equipment or home modifications. The evidence does not support a conclusion that she usually requires assistance from other people to participate in relevant activities. The evidence does not indicate an inability to participate in activities even with the use of assistive technology, equipment, home modifications or assistance from another person. On the contrary, Ms Dyson makes little use of technology other than accessing information on her iPhone, and has no requirements for prescribed, assistive technology. It is logical that she would prefer to have the modest domestic assistance which was available to her at an earlier time for home and garden maintenance. However, she is still able to look after her dogs, feed her birds, and maintain standards of household cleanliness, which are acceptable although short of the levels that she might prefer.
[110] 2017 AATA 186, at [26]
The Tribunal is not satisfied that Ms Dyson’s physical and mental health impairments have resulted in substantial reduction of her functional capacity in relation to any of the activities which are set out in s 24(1)(c) of the NDIS Act. The Tribunal has considered the factors set out in NDIS Rule 5.8 and is satisfied that Ms Dyson does not fall within any of the sub-paragraphs demonstrating substantially reduced functional capacity.
Accordingly, the Tribunal concludes that Ms Dyson does not meet the requirements under s 24(1)(c) of the NDIS Act, as amended. The Tribunal would have made the same finding in relation to the criteria in s 24(1)(c) prior to its amendment.
SOCIAL OR ECONOMIC PARTICIPATION – Section 24(1)(d) NDIS Act
Ms Dyson’s last employment was more than 25 years ago. She has been in receipt of the disability support pension for at least 10 years. She is unlikely ever again to engage in gainful employment, for which she is reasonably qualified. This incapacity is predominantly a result of her back condition.
Section 8.4 of the Operational Guideline provides in part that:
This disability requirement does not require a person's impairment to reduce, substantially reduce or affect to any degree their social or economic participation. Rather, the impairment merely needs to affect the person's social or economic participation.[111]
[111] Exhibit B, T18, Operational Guideline – Access, pp 105–106
The Tribunal finds that Ms Dyson meets the requirements of s 24(1)(d) of the NDIS Act, as her permanent impairments affect her capacity for social and economic participation.
SUPPORT UNDER THE NDIS FOR THE PERSON’S LIFETIME – Section 24(1)(e) NDIS Act
In order to become a participant in the NDIS, an applicant must meet each of the paragraphs in s 24(1) of the NDIS Act. As Ms Dyson does not meet the requirements of s 24(1)(c) of the NDIS Act to become a participant in the NDIS it is not necessary for the Tribunal to decide whether she meets the criteria in s 24(1)(e) of the NDIS Act.
DISABILITY REQUIREMENTS – CONCLUSION
Ms Dyson meets the age requirements under s 22 and the residence requirements under s 23 of the NDIS Act.
Ms Dyson meets the requirements under s 24(1)(a), (b), and (d) of the NDIS Act.
Ms Dyson does not satisfy the requirements under s 24(1)(c) the NDIS Act. She must satisfy all the requirements in s 24(1) in order to meet the disability requirements. Accordingly, she does not fulfil the disability access criteria to become a participant in the NDIS.
EARLY INTERVENTION REQUIREMENTS
Section 25 of the NDIS Act sets out the requirements for access to the NDIS under the early intervention criteria.
At the time when the Agency made its internal review decision, a person met the early intervention requirements under s 25 (1)(a)(i) and (ii) if the person:
(i) has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent; or
(ii) has one or more identified impairments that are attributable to a psychiatric condition and are, or are likely to be, permanent…
In tandem with the amendment to s 24 (1) (a) which removed the reference to an impairment attributable to a psychiatric condition, an amendment on 1 July 2022 to s25(1) (a) did the same. The amendment removed the reference to impairments attributable to a psychiatric condition. From 1 July 2022 the person meets the disability requirements under s 24 (1) (a) (ii)if the person:
(ii)has one or more identified impairments to which a psychosocial disability is attributable and that are, or are likely to be, permanent…
Section 2.5(b) of the NDIS Rules includes the following passage about the rationale for the early intervention requirements as an alternative to accessing the scheme through the disability requirements:
A person can access the NDIS through the early intervention requirements without having substantially reduced functional capacity. Instead, the early intervention requirements consider the likely trajectory and impact of a person’s impairment over time and the potential benefits of early intervention on the impact of the impairment on the person’s functional capacity.
Section 9 of the Operational Guideline provides guidance about the purpose and potential benefits of early intervention. It states:
Early intervention support is available to both children and adults who meet the early intervention requirements. The intention of early intervention is to alleviate the impact of a person’s impairment upon their functional capacity by providing support at the earliest possible stage. Early intervention support is also intended to benefit a person by reducing their future needs for supports.[112]
[112] Exhibit B, T18, Operational Guideline – Access, pp 105–106
As already discussed and determined, Ms Dyson’s physical impairments and mental health impairments are permanent and therefore s 25(1)(a) (i)& (ii) of the NDIS Act is satisfied.
Ms Dyson’s work accident occurred in 1994. Twenty-eight years have passed, with multiple medical and allied health interventions, which takes this case well away from the expectations of possible benefits through early intervention. Provision of support for Ms Dyson now and into the future does not come within the concept of early intervention support being provided “at the earliest possible stage”.
The Tribunal is not satisfied that the provision of early intervention supports, which is contemplated by s 25(1)(b) and (c) of the NDIS Act, is applicable to Ms Dyson’s long-standing conditions.
Although it is not now necessary to decide the point, it is quite possible that the support for Ms Dyson’s conditions would not be most appropriately funded or provided through the NDIS as required by s 25(3) of the NDIS Act, given that supports for her physical impairments and mental health issues may be more appropriately delivered through the health system.
DECISION
The decision under review, made by the Agency on 30 September 2019, is affirmed.
I certify that the preceding 191 [one hundred and ninety-one] paragraphs are a true copy of the reasons for the decision herein of Member Thompson.
.......[Sgnd]................................
Associate
Dated 11 October 2022
Dates of hearing: 3, 4 and 11 February; 12 May 2022
Applicant’s Representative: Self-represented
Respondent’s Representative: Paul d’Assumpcao
ANNEX A
EXHIBIT REGISTER
Date tendered Tendered By DOCUMENT Exhibit No. 03/02/2022 Applicant Letter of instruction to Paul Cummins, psychologist (dated 09/04/2021) A1 03/02/2022 Applicant Report of Mr Paul Cummins, psychologist (dated 02/05/2021) A2 03/02/2022 Applicant Letter from Dr Jim Kosmas, general practitioner (dated 06/04/2020) A3 03/02/2022 Applicant Letter from Dr Jim Kosmas, general practitioner (dated 01/09/2020) A4 03/02/2022 Applicant Letter of instruction to Dr Jim Kosmas (dated 01/12/2020) A5 03/02/2022 Applicant Letter from Dr Jim Kosmas, general practitioner (dated 12/01/2021) A6 03/02/2022 Applicant Statement of lived experience (dated 05/05/2020) A7 03/02/2022 Applicant Documents provided by Services Australia (dated various) A8 03/02/2022 Applicant Medical imaging report of Dr Sarah Saha (dated 23/11/2020) A9 03/02/2022 Respondent Witness statement of Natasha De Vries, occupational therapist (dated 19/09/2021), and attachments (report dated 29/10/2020):
NV-1 – Letter of instruction:
· Letter from Dr Kosmas dated 06/04/2020 – A3, page 25
· Statement of lived experience dated 05/05/2020 – A7, page 33
· Letter from Dr Kosmas dated 01/09/2020 – A4, page 26
· Historical material obtained from Services Australia, accessed on 24/08/2020 – A8, page 36
NV-2 – Report
NV-3 – Tribunal guideline
R1 03/02/2022 Respondent Report of Dr Michael Schirripa, psychologist, and attachments (dated 06/10/2021):
Letter of instruction
Note: the documents listed in paragraphs 4.1.1, 4.1.2 and 4.1.3(a)-(c) are located in this bundle as follows:
· Patient health summary dated 22/04/2016 – R1, page 62
· Access request – supporting evidence form completed by Dr Jim Kosmas dated 08/07/2019 – R1, page 69
· WHODAS 2.8 dated 08/07/2019 – R1, page 76
· Letter from Dr Kosmas dated 06/04/2020 – A3, page 25
· Statement of lived experience dated 05/05/2020 – A7, page 33
· Letter from Dr Kosmas dated 01/09/2020 – A4, page 26
Curriculum vitae
R2 03/02/2022 Respondent T-Documents B 03/02/2022 Applicant Hearing Statement – Nina Dyson (dated 16/12/2021) C 03/02/2022 Applicant Medical Reports:
· Medical Letter – Dr Kosmas (dated 1/09/2020)
· QEH Radiology Report (dated 01/05/2006)
· Dr Jones & Partners Medical Imaging Report (dated 13/01/1997)
· CRS Rehabilitation referral (dated 21/09/2006)
· Dr Peter Fry medical assessment report (dated 19/08/2014) and CV
· Dr A Nitchingham CT report (dated 26/03/2013)
· Dr J Kosmas Xray report (dated 09/04/2013)
· MRI report, Dr C Molloy (dated 08/09/1999)
· Flinders Medical Centre, radiology report (dated 20/03/1995)
· Dr Jones & Partners Medical Imaging Report (dated 16/02/year not visible)
· Benson radiology CT report (dated 30/08/2012)
· Flinders Medical Centre, radiology report (dated 07/09/1995)
· Dr Jones & Partners CT report (dated 23/11/2020; signed 24/1/2020)
· Letter from Tindall Gask Bentley (dated 22/03/2020)
· Letter from Dr T Kartuf (dated 03/04/1996)
· Letter from WorkCover (dated 15/05/2006)
· Letter from WorkCover (dated 22/05/2006)
· Letter from Adelaide Spine Clinic (dated 18/05/2006)
D 04/02/2022 Applicant Functional capacity evaluation summary report (dated 03/02/1999) E 12/05/2022 Applicant · Letter from Elizabeth Park Medical Clinic, Dr Kosmas (dated 01/05/2022)
· MRI report, Dr Jones & Partners (dated 25/11/2019)
· Xray, Dr Jones & Partners (dated 04/01/2021)
· CT report, Dr Jones & Partners (dated 22/09/2021)
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