Foster and National Disability Insurance Agency

Case [2021] AATA 4738

Foster and National Disability Insurance Agency [2021] AATA 4738 (17 December 2021)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2019/8347

Re:Michael Foster

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Deputy President F Meagher

Date:17 December 2021

Place:Brisbane

Pursuant to subparagraph 43(1)(c)(i) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision under review and, in substitution, decides that the Applicant meets the access criteria under section 21 of the National Disability Insurance Scheme Act 2013 (Cth).

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

Deputy President F Meagher

Catchwords

NATIONAL DISABILITY INSURANCE SCHEME – access criteria – whether applicant meets disability requirements – Neurogenic Overactive Bladder – inability to void bladder – whether impairments substantially reduce functional capacity – whether impairments affect applicant’s capacity to undertake social interaction or self-care – whether applicant likely to require support under NDIS for lifetime – decision set aside and substituted.

Legislation

National Disability Insurance Scheme Act 2013 (Cth) ss 3, 4, 13, 21, 24, 25, 27 209

National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) r 5.8

Cases

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27; 260 ALR 1
G v Minister for Immigration and Border Protection (2018) 266 FCR 511
Minister forUrban Affairs and Planning v Rosemount Estates Pty Ltd (1996) LGERA 31
Mulligan and National Disability Insurance Agency (2015) 149 ALD 408
Mulligan v National Disability Insurance Agency (2015) 233 FCR 201
SAS Trustee Corporation v Miles (2018) HCA 55; (2018) 361 ALR 206

Victims Compensation Fund v Brown [2003] HCA 54; (2003) 77 ALJR 1797; 201 ALR 260

Secondary Materials

‘Access to the NDIS Operational Guidelines’, National Disability Insurance Agency (Web Page, 17 December 2021) < cl 8.3
Productivity Commission’s 2011 report, Disability Care and Support, Report No 54, 31 July 2011

REASONS FOR DECISION

Deputy President F Meagher

INTRODUCTION

  1. This is a decision about whether Mr Michael Foster (the Applicant), 58 years old, meets the access requirements to become a participant in the National Disability Insurance Scheme (the NDIS).

  2. On 27 March 2019, the Applicant made an application to become a participant in the NDIS stating that his disabilities were Spinal Encephalomyelitis, Peripheral Neuropathy, Neurogenic Overactive Bladder, Bipolar Affective Disorder and Asthma.

  3. On 14 August 2019, that application was refused as set out in a decision of a delegate of the National Disability Insurance Agency (the Respondent) on the basis that the Applicant did not meet the disability requirement nor the early intervention requirements necessary to access the NDIS. [1]

    [1] Exhibit 1, T21.

  4. The Applicant requested review of that decision on 28 October 2019.[2] On 24 November 2019, the internal review decision (the decision under review)[3] affirmed the original decision on the basis that, as regards the Neurogenic Overactive Bladder, Spinal Encephalomyelitis, Peripheral Neuropathy, Bipolar Affective Disorder and Asthma, the delegate was not satisfied that:

    (a)the Applicant had substantially reduced functional capacity,…

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Foster and National Disability Insurance Agency [2021] AATA 4738
Case
[2021] AATA 4738
Decision Date

CaseChat Overview and Summary

This matter concerned an application for review of a decision by the National Disability Insurance Agency (NDIA) regarding the applicant's eligibility for the National Disability Insurance Scheme (NDIS). The applicant, who had developed a neurogenic overactive bladder following encephalomyelitis, sought funding for catheters as essential support. The NDIA had affirmed its original decision, finding the applicant did not meet the criteria for substantially reduced functional capacity or the likelihood of requiring lifetime support.

The core legal issues before the Tribunal were whether the applicant's impairments resulted in an inability to participate effectively or completely in self-care or social interaction without assistive technology, pursuant to rule 5.8(a) of the NDIS Access Rules, and whether the applicant was likely to require NDIS support for his lifetime, as per section 24(1)(e) of the NDIS Act. The applicant argued that the requirement for clean intermittent self-catheterisation, necessitated by the Botox treatment for his bladder overactivity, was essential for his ability to manage his bladder in a predictable and socially acceptable manner, thereby enabling participation in social interaction and self-care. The NDIA contended that the catheter was equipment used to rectify an impairment or assist general functioning, rather than being specifically directed to the NDIS-eligible functions.

The Tribunal considered the applicant's medical history, including the development of neurogenic overactive bladder following encephalomyelitis and the subsequent treatment with intravesical Botox, which, while resolving incontinence, led to complete urinary retention requiring self-catheterisation. The Tribunal noted that save for the need to catheterise, the applicant was independent in all other aspects of self-care and social interaction. The Tribunal accepted the applicant's submission that the catheter provided an alternative method for voiding his bladder, and that it was necessary for symptomatic management of the retention caused by the Botox treatment. The Tribunal found that the need to catheterise impacted the applicant's capacity for social and economic participation, requiring access to suitable amenities.

The Tribunal set aside the NDIA's decision and substituted a new decision. It found that the applicant's impairments substantially reduced his functional capacity to undertake self-care and social interaction without the use of catheters. Furthermore, the Tribunal was satisfied that the applicant was likely to require NDIS support for his lifetime. Consequently, the applicant was deemed a participant in the NDIS.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The application was heard by the Tribunal on 28 June 2021 partially utilising Microsoft Teams. The Applicant had legal representation by Queensland Legal Aid for the duration of the hearing process. The parties provided oral closing submissions during the hearing and no further written submissions were filed after the hearing. BACKGROUND As outlined within the Agreed Statement of Facts and Issues filed by the parties on 16 June 2021,[5] the relevant background is as follows:[5] Exhibit 2. 5.In February 2018, the Applicant presented to Townsville Hospital with sub-acute onset of lower limb weakness, sphincter dysfunction, double vision and at one point altered conscious level. This appeared to follow on from an intercurrent illness, possibly viral and was eventually diagnosed as an encephalomyelitis (inflammatory condition of the brain and spine), presumed post viral.6.The Applicant subsequently developed a neurogenic overactive bladder with poor contractility and some mild urinary retention that developed as a result of the spinal encephalomyelitis.7.On the 19 January 2019, the Applicant trialled a sacral nerve lead placement with an external stimulator for management of both his overactive symptoms and his poor contractility.8.Despite appropriate stimulator placement and sensory response, as well as trying various program settings, there was a poor response to the treatment. The sacral nerve leads were removed and the Applicant did not progress onto having a permanent stimulator placed.9.Following this, the Applicant decided to progress to intravesical Botox treatment for his bladder overactivity, accepting that this would likely worsen his urinary retention. However, the aim was to improve his overactive symptoms, in particular his urgency and urge urinary incontinence.10.On 6 February 2019, a cystoscopy and injection of 200 units of intravesical Botox into the bladder, including some trigone injections, was performed. After several weeks the Applicant’s overactive bladder symptoms completely ceased but went into urinary retention.11.As a result, the Applicant now has to do clean intermittent self-catheterisation about six times a day to empty his bladder, as he is unable to void at all.12.The Applicant is, however, no longer incontinent and has control over when he empties his bladder, without unexpected leakages.13.The Applicant requires ongoing intravesical Botox injections every 6 to 12 months, as required when he feels that his lower urinary tract symptoms are returning.14.Save for the need to use a catheter to void his bladder, the Applicant is independent and fully capable of performing all activities of communication, social interaction, learning, mobility, self-care and self-management.15.The need to catheterise affects the Applicant’s capacity for social or economic participation in that he needs to be in a location that has suitable amenities so as to allow him to void his bladder through the use of a catheter.16.The only support that the Applicant presently requires for the purposes of the NDIS is sufficient funding for Coloplast Speedicath Flex catheters.17.The Applicant presently receives an annual payment from the Australian Government under the Continence Aids Payment Scheme (CAPS) to subsidise the costs of his catheters.[Footnotes omitted]LEGISLATION

Evidence

Evidence Before The Court

The Applicant also explained his preference for a particular type of catheter,[25] and compared the cost of his preferred brand with the cost of ‘hospital catheters’,[26] and the amount of the subsidy he currently receives from a different scheme.[27] [25] Ibid, [44] – [51].[26] Ibid, A15, [5]. [27] Ibid, [4] – [6].Evidence of Dr Phillippe Wolanski, Consultant Urologist Dr Wolanski did not provide oral evidence at the hearing. Dr Wolanski, Consultant Urologist, provided the following written evidence:·a letter addressed to Dr Gavin Andrews dated 19 September 2018;[28]·a report 1 May 2020 responsive to questions from the Applicant’s representative.[29][28] Ibid, T9.[29] Ibid, A5. Within the letter dated 19 September 2018, Dr Wolanski indicated that the Applicant was referred to him with lower urinary tract symptoms following spinal encephalomyelitis and noted that his impression was that the Applicant has a neurogenic overactive bladder.[30] The report further states that:[31][The Applicant] was in Hospital/Rehabilitation for 6 months and has recovered quite well, having gone from being a paraplegic to now able to walk again and care for himself independently. [The Applicant] still has some residual leg weakness and numbness of his feet. His bowel function is otherwise normalised and his bladder function has improved but he is still having issues with frequency and urgency and incompletely bladder emptying. [The Applicant] was doing clean intermittent self-catherization to empty his bladder but now only has to do so once per day, in the morning post void…[30] Ibid, T9.[31] Ibid. The report dated 1 May 2020 primarily goes to the Applicant’s impairments and whether they are permanent, including whether any further treatment could be pursued by the Applicant to remedy his impairments, whether is able to undertake activities of self-care and whether the Applicant will require supports for his lifetime. Dr Wolanski considers that the Applicant’s impairments ‘were causing significant impingement on his quality of life in regard to social interaction, physiological wellbeing, and self-care’.[32] (emphasis added)[32] Exhibit 1, A5, 2. Dr Wolanski further stated that:[33]With the current treatment regime that he is on he is now in a position in which he feels confident in social interactions and it improves his ability to work within a classroom as a teacher, as he is now able to self-care and manage his bladder in a way that is predictable and socially acceptable. His urological issue otherwise have no impact on his communication, learning or mobility.[33] Ibid. Dr Wolanski considers that the Applicant is able to manage his own self-care with respect to clean intermittent self-catherisation and management of his catheters.[34] In relation to the support required by the Applicant, Dr Wolanski states that the Applicant will require ongoing urological review, ongoing applications of intravesical Botox every 6 to 12 months and access to catheters.[35] Dr Wolanksi considered that these supports ‘allow him to feel confident socially interacting within the community and workplace’.[36] [34] Ibid. [35] Ibid. [36] Ibid.

Decision

Reasons for decision

The Applicant requested review of that decision on 28 October 2019.[2] On 24 November 2019, the internal review decision (the decision under review)[3] affirmed the original decision on the basis that, as regards the Neurogenic Overactive Bladder, Spinal Encephalomyelitis, Peripheral Neuropathy, Bipolar Affective Disorder and Asthma, the delegate was not satisfied that:(a)the Applicant had substantially reduced functional capacity, or psychosocial function, to undertake communication, social interaction, learning, mobility, self-care and/or self-management pursuant to paragraph 24(1)(c) of the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act). (b)the Applicant would require lifetime support of the NDIS pursuant to paragraph 24(1)(e) of the NDIS Act;(c)early intervention supports are likely to reduce future supports for the Applicant in relation to his disability pursuant to paragraph 25(1)(b) of the NDIS Act; (d)the provision of early intervention supports for the Applicant would benefit him in any of the ways outlined in paragraphs 25(c)(i) – (iv) of the NDIS Act; and (e)the NDIS is the most appropriate support system for the Applicant and that early intervention supports are more appropriately funded through other systems of service delivery or support services pursuant to subsection 25(3) of the NDIS Act. [2] Ibid, T18.[3] Ibid, T2. On 11 December 2019, the Applicant made an application for review of the decision under review to the Tribunal pursuant to section 103 of the NDIS Act.[4][4] Ibid, T1. The application was heard by the Tribunal on 28 June 2021 partially utilising Microsoft Teams. The Applicant had legal representation by Queensland Legal Aid for the duration of the hearing process. The parties provided oral closing submissions during the hearing and no further written submissions were filed after the hearing. BACKGROUND As outlined within the Agreed Statement of Facts and Issues filed by the parties on 16 June 2021,[5] the relevant background is as follows:[5] Exhibit 2. 5.In February 2018, the Applicant presented to Townsville Hospital with sub-acute onset of lower limb weakness, sphincter dysfunction, double vision and at one point altered conscious level. This appeared to follow on from an intercurrent illness, possibly viral and was eventually diagnosed as an encephalomyelitis (inflammatory condition of the brain and spine), presumed post viral.6.The Applicant subsequently developed a neurogenic overactive bladder with poor contractility and some mild urinary retention that developed as a result of the spinal encephalomyelitis.7.On the 19 January 2019, the Applicant trialled a sacral nerve lead placement with an external stimulator for management of both his overactive symptoms and his poor contractility.8.Despite appropriate stimulator placement and sensory response, as well as trying various program settings, there was a poor response to the treatment. The sacral nerve leads were removed and the Applicant did not progress onto having a permanent stimulator placed.9.Following this, the Applicant decided to progress to intravesical Botox treatment for his bladder overactivity, accepting that this would likely worsen his urinary retention. However, the aim was to improve his overactive symptoms, in particular his urgency and urge urinary incontinence.10.On 6 February 2019, a cystoscopy and injection of 200 units of intravesical Botox into the bladder, including some trigone injections, was performed. After several weeks the Applicant’s overactive bladder symptoms completely ceased but went into urinary retention.11.As a result, the Applicant now has to do clean intermittent self-catheterisation about six times a day to empty his bladder, as he is unable to void at all.12.The Applicant is, however, no longer incontinent and has control over when he empties his bladder, without unexpected leakages.13.The Applicant requires ongoing intravesical Botox injections every 6 to 12 months, as required when he feels that his lower urinary tract symptoms are returning.14.Save for the need to use a catheter to void his bladder, the Applicant is independent and fully capable of performing all activities of communication, social interaction, learning, mobility, self-care and self-management.15.The need to catheterise affects the Applicant’s capacity for social or economic participation in that he needs to be in a location that has suitable amenities so as to allow him to void his bladder through the use of a catheter.16.The only support that the Applicant presently requires for the purposes of the NDIS is sufficient funding for Coloplast Speedicath Flex catheters.17.The Applicant presently receives an annual payment from the Australian Government under the Continence Aids Payment Scheme (CAPS) to subsidise the costs of his catheters.[Footnotes omitted]LEGISLATION

Ratio Decidendi

Legal Principle Established

Therefore, the issues in dispute are:a.Whether the result of the Applicant’s impairment is that he is unable to participate effectively or completely in the activities of self-care or social interaction, or perform the task or actions required to undertake or participate effectively or completely in those activities, without assistive technology or equipment (other than commonly used items such as glasses), pursuant to rule 5.8(a) of the NDIS Access Rules;[80] andb.Whether the Applicant is likely to require support under the NDIS for his lifetime pursuant to paragraph 24(1)(e) of the NDIS Act.[81][80] Ibid, [25].[81] Ibid, [26].CONSIDERATION The Applicant and Respondent both submitted that each case must be decided on its own facts.Is the result of the Applicant’s impairment that he is unable to participate effectively or completely in the activities of self-care or social interaction or perform the task or action required to undertake or participate effectively or completely in those activities without the assistive technology or equipment (other than commonly used items such as glasses) pursuant to rule 5.8(a) of the NDIS Access Rules? The Applicant’s case is that he requires catheters to participate effectively or completely in the activities of self-care or social interaction.[82] He contends that he requires a catheter to toilet and participate in social interaction by the management of his bladder in a predictable and socially acceptable manner.[83] [82] Applicant’s Statement of Facts, Issues and Contentions, [32](a). [83] Ibid, [32](b). In relation to the use of the catheter, the Respondent sought to draw a distinction between equipment it said was used to rectify an impairment – in this case the impairment being the inability to expel urine – and equipment used to assist level of function or for the performance of the activity.[84] The Respondent submitted that the Applicant now has Botox injections which meant that he is no longer incontinent.[85] The Respondent contended that it was an ancillary or collateral outcome of the use of the catheter that it assisted the Applicant’s level of function.[86] Therefore, the Respondent contended, the catheter is necessary for general functioning, rather than being specifically directed to the functions in paragraph 24(1)(c) of the NDIS Act.[87] In response the Applicant submitted that the catheter provided an alternative way for him to void his bladder.[88] He submitted that, relying on the evidence of Dr Orlanksy and Dr Vogeld, the treatment consists of the ongoing Botox injections which cause retention, and the catheters are for the symptomatic management of that.[89] [84] Respondent’s Statement of Facts, Issues and Contentions, [26]; Transcript, P-19, lines 45 – 47; P-20, lines 1 – 7. [85] Transcript, P-19, lines 13 – 16. [86] Respondent’s Statement of Facts, Issues and Contentions, [26]; Transcript, P-18, lines 25 – 27. [87] Respondent’s Statement of Facts, Issues and Contentions, [26]. [88] Transcript, P-6, lines 15 – 16.[89] Applicant’s Statement of Facts, Issues and Contentions, [11]; Transcript, P-23, lines 39 – 41.