FBJV and National Disability Insurance Agency

Case [2021] AATA 913

FBJV and National Disability Insurance Agency [2021] AATA 913 (19 April 2021)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s): 2019/6936

Re:FBJV

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Member W Frost

Date:19 April 2021

Place:Canberra

The Tribunal affirms the decision under review pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975.

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

Member W Frost

Catchwords

NATIONAL DISABILITY INSURANCE SCHEME – access to scheme – endometriosis causing chronic pain – whether impairments result in “substantially reduced functional capacity” to undertake any one or more specified activities – whether Applicant meets early intervention requirements – access criteria under sections 24 and 25 National Disability Insurance Scheme Act 2013 not met – decision affirmed

Legislation

Administrative Appeals Tribunal Act s 43

National Disability Insurance Scheme Act 2013 ss 3, 18, 20-21, 24-25, 28, 100, 103, 209

National Disability Insurance Scheme (Becoming a Participant) Rules 2016 

Cases

Arnel and NDIA [2019] AATA 4778

Ditchfield and NDIA [2019] AATA 2121

Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Howard and National Disability Insurance Agency [2019] AATA 2

James and NDIA [2019] AATA 4248

Jourfian and NDIA [2020] AATA 1883

Madelaine and NDIA [2020] AATA 4025

Mulligan v National Disability Insurance Agency [2015] FCA 544

Schwass and National Disability Insurance Agency [2019] AATA 28

Secondary Materials

Macquarie Dictionary (online at 17 March 2021)

NDIS Operational Guidelines

REASONS FOR DECISION

Member W Frost

19 April 2021

INTRODUCTION

  1. The Applicant, FBJV, is 35 years old and lives in Eglington, near Bathurst, in New South Wales with her young family. She has long suffered from endometriosis causing chronic pain and reducing her quality of life. As a result, FBJV applied to become a participant in the National Disability Insurance Scheme (NDIS).[1]

    [1] Exhibit R1, T10, page 28.

  2. In June 2019, a delegate of the Chief Executive Officer (CEO) of the National Disability Insurance Agency (NDIA) determined that FBJV did not meet the access requirements set out in the National Disability Insurance Scheme Act 2013 (NDIS Act).[2]

    [2] Exhibit R1, T14, page 38.

  3. FBJV requested an internal review by the NDIA[3] and, in October 2019, another delegate of the CEO confirmed its decision that FBJV did not satisfy the access criteria in either sections 24 (containing the disability requirements) or 25 (containing the early intervention requirements) of the NDIS Act.[4] Pursuant to section 103 of the NDIS Act, FBJV applied to Administrative Appeals Tribunal (Tribunal) for merits review of the NDIA’s decision made under section 100 of the NDIS Act.[5]

    [3] Exhibit R1, T15, page 40; T16, pages 41-43.

    [4] Exhibit R1, T2, pages 7-13

    [5] Exhibit R1, T1, pages 1-6.

    ISSUES

  4. The Tribunal must decide whether FBJV meets the access criteria to become a participant in the NDIS.

  5. It was common ground between the parties that FBJV meets the age and residence requirements to access the NDIS, pursuant to subsections 24(1)(a) and (b) of the NDIS Act.

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AGLC
FBJV and National Disability Insurance Agency [2021] AATA 913
Case
[2021] AATA 913
Decision Date

CaseChat Overview and Summary

This matter concerned an application by FBJV to become a participant in the National Disability Insurance Scheme (NDIS). The dispute arose because the National Disability Insurance Agency (NDIA) had decided that FBJV did not meet the access criteria under sections 24 and 25 of the *National Disability Insurance Scheme Act 2013* (Cth). The Administrative Appeals Tribunal was required to review this decision.

The Tribunal was tasked with determining whether FBJV's impairments, primarily chronic pain secondary to endometriosis, resulted in a "substantially reduced functional capacity" to undertake any one or more of the specified activities listed in the NDIS Act. Additionally, the Tribunal had to consider whether FBJV met the early intervention requirements for access to the scheme.

In reaching its decision, the Tribunal considered various forms of evidence, including lay evidence from FBJV detailing her daily experience of pain and its impact on her ability to work and care for her children, as well as medical reports from a surgeon, a gynaecologist, and a general practitioner. The Tribunal noted that while FBJV experienced significant pain and functional limitations, it found that these did not meet the threshold for a "substantially reduced functional capacity" as defined by the NDIS Act. The Tribunal also considered the NDIA's Operational Guideline, which provides guidance on access criteria. Ultimately, the Tribunal concluded that FBJV did not meet the disability requirements under section 24 or the early intervention requirements under section 25 of the NDIS Act.

Consequently, the Tribunal affirmed the NDIA's decision that FBJV did not meet the access criteria under section 21 of the NDIS Act to become a participant in the scheme.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Finally, Ms Walcot confirmed the array of documentation that was available to her regarding FBJV’s impairment prior to, and at the time of, her assessment. She also noted the extensive training she has undertaken regarding pain, including in relation to the physiological and psychological response to pain and treatment options and specific training on chronic pain. Lay evidence FBJV FBJV provided a Statement of Lived Experience in this proceeding, which stated in part that:[33][33] Exhibit A1. The pain can be around 8-9/10. Its hard to quantify as I live with it every day, it doesn’t go anywhere. A standard day is maybe 4/10, that’s really like my zero. There is always some sort of pain, usually a dull cramping sort in my abdomen. If I do any activity then it goes up from there. I get flare ups that are sharp, intense and radiate from the abdomen up to my hips. It’s almost like I feel my bones in my pelvis and hip and feel where the pain is. Then it radiates down to my leg. The flare ups are so often per day I can’t really say how many I have. I have bad pain everyday but with the flare ups, I spend the majority of the day in bed. Triggers are standing, or any activity or movement. I know need to move, not moving can make pain worse but sometimes stuffed if you do or stuffed if you don’t. It’s a matter of how important of an activity. I will try hold the kids but won’t walk with them. If my son is upset and runs off, he needs to be picked up, mum things like that have to take priority but it’ll cause me pain and I will need to rest. I won’t even be able to that for much longer as they’re getting so big.After something like the OT assessment [Kelly Walcott OT Report 24 April 2020], I was in so much pain because I had to do so much. It was a 9-10/10 pain day. I would never do that much activity in a day and the assessment was only around 1-1.5 hours. I was exhausted and in great pain for 2 days; my whole left-side went numb, I was in bed for couple of days. If it wasn’t because of being in the height of COVID-19 I would have gone to hospital for pain relief. …I used to work in bed and use my laptop. But I have recently purchased a new desk chair and ensure that I get up every half hour to prevent pain. I need regular movement. I work seven hours, but I spilt it up and rest. I couldn’t work more than 3 hours in a row without rest. Usually take at least one out of three days per week off. Effectively I am working two days per week. I had to reduce my days because I was taking so much leave. I got to the point where being at work was so uncomfortable and painful that I discussed with my boss what other things I could try. I kept going for as long as possible because we weren’t sure we could afford going part time. …The pregnancy stirred everything up, I never got better after that. It affects every part of our family’s life. [errors in original]Examination-in-chief FBJV gave evidence to the Tribunal at the hearing and confirmed adherence to her statement, although she noted that she was now 35 years old and her condition had deteriorated. In this regard, FBJV told the Tribunal that ‘everything’ had been exacerbated and ‘gotten worse’. For example, FBJV’S pain was said to now be ‘much worse’, including in her leg and hip, and she has been hospitalised a few times for pain relief. Additionally, FBJV said she could not walk ‘as far as before’ and undertakes tasks for a shorter amount of time. Fatigue was said to be ‘one of the worst symptoms’, together with pain, which affect her cognitive ability and communication.

Decision

Reasons for decision

In circumstances where the Tribunal has found that FBJV meets neither the disability requirements in section 24 of the NDIS Act nor the early intervention requirements in section 25 of the NDIS Act, she does not at this time meet the access criteria under section 21 of the NDIS Act to become a participant in the NDIS. DECISION The Tribunal affirms the decision under review pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975.

Ratio Decidendi

Legal Principle Established

Additionally, an ‘Access to the NDIS Operational Guideline’(Operational Guideline) written by the CEO of the NDIA provides guidance when determining whether a person with a disability meets the access criteria to become a participant of the NDIS. The Operational Guideline represents government policy and, to the extent it is consistent with the relevant legislation, should be applied by the Tribunal unless there is good reason not to do so.[6] The Tribunal considers below in these reasons the parties’ submissions regarding whether it should apply this policy document. EVIDENCEMedical evidence[6] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634. Dr Neil Meulman – Surgeon Dr Meulman produced an operation report dated 14 July 2018 following FBJV’s undergoing a ‘Laparoscopy Appendicectomy’ to remove her appendix, which found ‘Nodule anterior abdominal wall of uncertain significance. A mild inflamed appendix’.[7] [7] Exhibit R1, T4, page 15. A related anatomical pathology report dated 13 July 2018 diagnosed FBJV with endometriosis in the appendix and stated that sections of it:[8]show foci of endometriosis at the tip of appendix. There are benign endometrial glands surrounded by endometrial stroma in the muscle layer of appendix. There are collections of foamy macrophages in this area. Sections of the appendix are otherwise within normal limits. [8] Exhibit R1, T3, page 14. Dr Meulman was not called to give evidence at the hearing of this proceeding. Professor Jason Abbott – Gynaecologist Professor Abbott compiled a report dated 21 March 2019 following examination of FBJV and relevantly stated that she ‘has had increasing levels of pain’, noting the removal of her appendix the previous year which contained endometriosis.[9] Professor Abbott also reported that FBJV ‘had no diagnosis of pelvic endometrioses at that time’, but that she ‘has had increasing pelvic pain and pain down the back of her legs’ while noting a scan showed ‘small myomas’ with ‘no other apparent disease’. [9] Exhibit R1, T5, pages 16-17. FBJV reported experiencing bladder pain, painful bowel movements and bloating ‘in association with the pain in her pelvis’. Professor Abbott further reported that:[10]On examination today the abdomen was soft and non tender…The uterus is anteverted and mobile and there are no adnexal masses. There is no induration, thickening or nodularity in the posterior compartment. The pelvic floor is normal to examination. There is no myalgia.[FBJV] is describing downstream neuropathic symptoms that is causing her pain and she has had a response to the Lyrica…I will also arrange a deep pelvic scan to look for any other GI disease. [10] ibid. Professor Abbott was not called to give evidence at the hearing of this proceeding. Dr Yamin Kasim – General Practitioner In May 2019, FBJV provided the NDIA with a ‘Supporting Evidence Form’ completed by Dr Kasim regarding FBJV’s ‘primary impairment’, recorded as ‘chronic pain secondary to severe endometriosis (impairment with daily life)’.[11] Dr Kasim stated that FBJV had the impairment ‘since 2015’, it was likely to be lifelong and that physiotherapy ‘will be useful’.[12] In relation to functional impact, Dr Kasim recorded that FBJV needs assistance with mobility, social interaction and self-care. In relation to mobility, Dr Kasim said that FBJV has ‘chronic pain debilitating to the point that partner needs to help her get dressed’, her walking was ‘limited due to pain’ and activities of daily living were ‘limited due to pain’.[13] [11] Exhibit R1, T8, pages 20-26. [12] ibid., pages 22-23.[13] ibid., page 24.