Foster and National Disability Insurance Agency
[2021] AATA 4738
•17 December 2021
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 206Victims 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 2011REASONS FOR DECISION
Deputy President F Meagher
INTRODUCTION
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).
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.
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.
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
The objects of the NDIS Act are set out in section 3 and include to give effect to Australia’s responsibilities under the Convention on the Rights of Persons with Disabilities established at the United Nations Headquarters in New York on 13 December 2006,[6] and to facilitate the development of a nationally consistent approach to access to, and planning and funding of, supports for people with disability.[7] The NDIS Act also states that, in giving effect to the objects of the Act, regard is to be had to the need to ensure the financial sustainability of the NDIS.[8]
[6] [2008] ATS 12, ratified by Australia on 17 July 2008.
[7] NDIS Act, s 3(1)(f).
[8] Paragraph 3(3)(b).
There are general principles guiding actions under this act as set out in section 4 of the NDIS Act and they relevantly include that people with disability be:
·supported to participate in and contribute to social and economic life to the extent of their ability;[9]
·able to receive the care and support they need over their lifetime and that there be certainty around this;[10]
·supported to pursue their goals and maximise their independence;[11]
·supported to live independently and to be included in the community as fully participating citizens;[12] and
·able to undertake activities that enable them to participate in the community and in employment.[13]
[9] Subsection 4(2).
[10] Subsection 4(3).
[11] Paragraph (4)(11)(a).
[12] Paragraph (4)(11)(b).
[13] Paragraph (4)(11)(c).
The provisions relating to access to the scheme are contained in Part 1 of Chapter 3 of the NDIS Act. Section 21 of the NDIS Act provides that for a person to meet the access criteria, they must meet the age and residence requirements in addition to either the disability requirement (section 24 of the NDIS Act) OR the early intervention requirements (section 25 of the NDIS Act).
The NDIS Act also provides, in subsection 209(1), that the Minister may make rules prescribing matters under the NDIS Act. Section 27 of the NDIS Act further states that the rules may prescribe circumstances in which, or criteria to be applied with respect to assessing whether, a person meets the disability requirements under section 24 or the early intervention requirements under section 25 of the NDIS Act. The relevant rules are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (the NDIS Access Rules).
There are also operational guidelines issued in relation to the access criteria under the NDIS Act, the ‘Access to the NDIS Operational Guideline’ (the Access Guideline).[14] The Tribunal must give consideration to all of the material before it which includes the existence, and content, of policy unless it is unlawful or unless its application would produce an unjust decision in the overall circumstances of the particular case.[15] Further guidance in relation to the application of policy is found in G v Minister for Immigration and Border Protection (2018) 266 FCR 511 which is authority for the proposition that policy is one of all of the considerations that the Tribunal must take into consideration.[16]
[14] ‘Access to the NDIS Operational Guidelines’, National Disability Insurance Agency (Web Page, 17 December 2021) < Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 645.
[16] G v Minister for Immigration and Border Protection (2018) 266 FCR 511, 564 [266].
THE ACCESS CRITERIA
With respect to the disability requirements, section 24 of the NDIS Act provides:
Disability requirements
1A person meets the disability requirements if:
(a)the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or to one or more impairments attributable to a psychiatric condition; and
(b)the impairment or impairments are, or are likely to be, permanent; and
(c)the impairment or impairments result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the following activities:
(i) communication;
(ii) social interaction;
(iii) learning;
(iv) mobility;
(v) self‑care;
(vi) self‑management; and
(d)the impairment or impairments affect the person’s capacity for social or economic participation; and
(e)the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime.
2For 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.
(Emphasis added)
In assessing whether a person meets the disability requirements, section 27 of the NDIS Act provides:
National Disability Insurance Scheme rules relating to disability requirements and early intervention requirements
(1) The National Disability Insurance Scheme rules may prescribe circumstances in which, or criteria to be applied in assessing whether:
(a)one or more impairments are, or are likely to be, permanent for the purposes of paragraph 24(1)(b) or subparagraph 25(a)(i) or (ii); or
(b)one or more impairments result in substantially reduced functional capacity of a person to undertake, or psychosocial functioning of a person in undertaking, one or more activities for the purposes of paragraph 24(1)(c); or
(c)one or more impairments affect a person’s capacity for social and economic participation for the purposes of paragraph 24(1)(d); or
(d)the provision of early intervention supports is likely to benefit a person by reducing the person’s future needs for supports in relation to disability for the purposes of paragraph 25(1)(b); or
(e)the provision of early intervention supports is likely to benefit a person by mitigating, alleviating or preventing the deterioration of the person’s functional capacity to undertake one or more of the activities for the purposes of subparagraph 25(1)(c)(i) or (ii), or improving such functional capacity for the purposes of subparagraph 25(1)(c)(iii); or
(f)the provision of early intervention supports is likely to benefit a person by strengthening the sustainability of the informal supports available to the person, including through building the capacity of the person’s carer for the purposes of subparagraph 25(1)(c)(iv).
Rule 5.8 of the of the NDIS Access Rules outlines when an impairment results in ‘substantially reduced functional capacity’ to undertake relevant activities, as follows:
An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities—communication, social interaction, learning, mobility, self-care, self-management (see paragraph 5.1(c))—if its result is that:
(a)the person is unable to participate effectively or completely in the activity, or to perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications; or
(b)the person usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in the activity or to perform tasks or actions required to undertake or participate in the activity; or
(c)the person is unable to participate in the activity or to perform tasks or actions required to undertake or participate in the activity, even with assistive technology, equipment, home modifications or assistance from another person.
The Tribunal is mindful that, as explained by Mortimer J in Mulligan v National Disability Insurance Agency (2015) 233 FCR 201 (Mulligan) if the deeming provisions in rule 5.8 of the NDIS Access Rules have been met, the person is taken to have a substantially reduced functional capacity, and if they are not met, the Tribunal is still required to determine whether the Applicant’s impairments otherwise result in substantially reduced functional capacity to undertake social interaction.
Clause 8.3 of the Access Guideline states than an impairment under paragraph 24(1)(c) of the NDIS Act results in a substantially reduced functional capacity if it affects a participant’s capacity to undertake one of more of the following activities:
The NDIA must be satisfied that an impairment results in substantially reduced functional capacity of a prospective participant to undertake one or more relevant activities (section 24(1)(c)).
The NDIA is required to consider whether any permanent impairment, or permanent impairments when considered together, result in substantially reduced functional capacity to undertake one or more of the following activities:
· Communication: includes being understood in spoken, written or sign language, understanding others and expressing needs and wants by gesture, speech or context appropriate to age;
· Social interaction: includes 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;
· Learning: includes understanding and remembering information, learning new things, practicing and using new skills;
· 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;
· Self-care: means activities related to personal care, hygiene, grooming and feeding oneself, including showering, bathing, dressing, eating, toileting, grooming, caring for own health care needs; or
· Self-management: means 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.
The NDIA does not need to be satisfied that a person's impairment is 'serious', or more serious than another person's. Rather, access to the NDIS is based on a functional, practical assessment of what a person can and cannot do (see Mulligan and NDIA [2015] FCA 44 at [56]).
The NDIA will not need to consider whether a prospective participant's impairment results in substantially reduced functional capacity in relation to all of the relevant activities for every access request.
It is sufficient for a prospective participant to have substantially reduced functional capacity in relation to one activity (see Mulligan and NDIA [2015] FCA 44 at 67).
Which activity the NDIA will need to consider will depend on the circumstances and the evidence presented by the prospective participant.
For example, if a prospective participant has an impairment which results in substantially reduced functional capacity to undertake mobility, but otherwise has full cognitive capacity, it may not be necessary for the NDIA to consider whether the impairment results in substantially reduced functional capacity to undertake activities related to cognition.
(Emphasis added)
Clause 8.3.1 of the Access Guideline repeats the wording of rules 5.8(a), (b) and (c) of the NDIS Access Rules and also continues on to provide further guidance as follows:
The following information provides further guidance in relation to determining when an impairment results in substantially reduced functional capacity:
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 bath mats, 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. For example, children under the age of 2 will not necessarily have a substantially reduced functional capacity because they need assistance to provide for self-care needs.
A person will be considered to 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 of time. Undertaking a task more slowly or differently to others will not necessarily mean a person cannot participate effectively or completely in an activity.
When considering whether a fluctuating or episodic impairment results in substantially reduced functional capacity to undertake relevant activities, the NDIA will consider the impact on the person's ability to function in the periods between acute episodes.
(Emphasis omitted)
THE EVIDENCE
The evidence before the Tribunal includes the following:
·statements of lived experience of the Applicant;
·letters and/or reports and oral evidence from medical and letters and/or reports and oral evidence from medical and allied health practitioners who have treated and/or examined and/or assessed the Applicant, namely:
oDr Phillippe Wolanski, Consultant Urologist
oDr Mike Boggild, Consultant Neurologist
oDr Sarah Leeder, Senior Medical Office for Rehabilitation
oMr Sven Roehrs, Occupational Therapist
oDr Satish Karunakaran, Consultant Neuropsychiatrist
oDr Gavin Andrews, General Practitioner
·various material regarding the Continence Aids Payment Scheme.
Evidence of the Applicant
The Applicant did not provide oral evidence at the hearing.
The Applicant provided two statements of lived experience to the Tribunal, one dated 2 June 2020[17] and one dated 16 February 2021.[18] In summary they set out the impairments that the Applicant experiences,[19] provides details of the onset of his spinal encephalomyelitis [20] and continence issues[21] and outlines how his impairments impact upon his daily life.
[17] Exhibit 1, A8.
[18] Ibid, A15.
[19] Ibid, A8, [7].
[20] Ibid, [10] – [13].
[21] Ibid, [24] – [27].
The Applicant’s statements of lived experience set out the rehabilitation process that he undertook following his episode of spinal encephalomyelitis, including that he spent ‘about 6 or 7 weeks in hospital[22]’ and then undertook outpatient care for a period of six months.[23] The Applicant stated that, despite the period of rehabilitation, he continues to experience ongoing neurological issues and has permanent urinary incontinence.[24]
[22] Ibid, [17].
[23] Ibid.
[24] Exhibit 1, [19].
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.
Dr Wolanksi considers that the Applicant will require ongoing intravesical Botox injections and the need for self-catherisation over the rest of his life.[37] Dr Wolanski further stated that, given how long it has been since the Applicant’s symptoms first occurred, the Applicant’s impairments are unlikely to get significantly better in the future, however they could potentially change over time.[38]
[37] Ibid, 3.
[38] Ibid.
Evidence of Dr Mike Boggild, Consultant Neurologist
Dr Boggild did not provide oral evidence at the hearing.
Dr Boggild’s evidence primarily goes to the Applicant’s impairments, particularly the treatment that has provided since the onset of his spinal encephalomyelitis in February 2018 and 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 Boggild provided a report dated 22 May 2020[39] responsive to questions from the Applicant’s representative.[40]
[39] Exhibit 1, A7.
[40] Ibid, A4.
Dr Boggild considers that the Applicant’s impairments ‘have a significant impact on his day to day functioning.’[41] Dr Boggild further elaborated stating:
He undertakes intermittent self-catheterisation to allow bladder emptying. He needs to be diligent with regard to diet and bowel function which clearly has the potential to impact his social interactions. His mobility is somewhat impaired in that he has a degree of lower limb fatigability, again as a consequence of spinal injury. In terms of self-care and self-management he reports inevitably some degree of overall fatigue, but he is capable of managing his own affairs and continues to work in his role as a teacher.
[41] Ibid, A7, 2.
Dr Boggild considers that the Applicant is able to manage his own self-care in relation to the identified bladder and bowel issues[42] and that ‘good management of his neurogenic bladder symptoms can substantially improve quality pf life and participation’.[43]
[42] Ibid.
[43] Ibid.
Dr Boggild considers that the Applicant’s impairments will be lifelong and that such aids, presumably access to catheters, will be required for his lifetime.[44]
[44] Ibid.
Evidence of Dr Sarah Leeder, Senior Medical Officer for Rehabilitation
Dr Leeder did not provide oral evidence at the hearing.
Dr Leeder, Senior Medical Officer for Rehabilitation, provided the following written evidence:
·a letter addressed to Dr Gavin Andrews dated 23 July 2019;[45]
·a report dated 2 July 2020[46] responsive to questions from the Applicant’s representative.[47]
[45] Exhibit 1, T20, 179 – 180.
[46] Ibid, A7.
[47] Ibid, A6.
Dr Leeder’s evidence primarily provides further detail of the process of self-catherisation that the Applicant undertakes, including the type of catheter used by the Applicant and the necessary steps that he takes to mitigate the risk of infection.
Within the letter of 23 July 2019, Dr Leeder stated:[48]
I can confirm that [the Applicant] had encephalomyelitis in February 2016 and this is classified as a spinal cord injury. This has resulted in permanent and severe disability and is affecting [the Applicant’s] mobility and sphincter function. [The Applicant] are at ongoing risk of falls and have decreased balance as a result of your physical impairments. [The Applicant] would benefit from maintenance Exercise Physiology to maintain your muscle mass and to reduce the complications of disability. [The Applicant] require[s] ongoing Exercise Physiology to continue to work as a Teacher. Without ongoing input, it is likely that [the Applicant] will have complications such as falls, which will impact on [the Applicant’s] ability to work and activities of daily living.
[48] Ibid, T20, 179.
Dr Leeder further stated that the specific type of catheter used by the Applicant, the Coloplast SpeediCath Flex, is essential for the Applicant to continue to work and that she supported the Applicant’s application to become a participant of the NDIS as catheters are essential for the Applicant’s activities of daily living.[49]
[49] Ibid.
In relation to the Applicant’s diagnosis of bipolar disorder, Dr Leeder stated:[50]
[The Applicant] require[s] ongoing psychology input to maintain [the Applicant’s] mental health and to continue to work. Psychology continues to encourages self-efficacy to manage [the Applicant’s] condition and [the Applicant] require[s] ongoing maintenance therapy to prevent additional complications.
[50] Ibid, 180.
Turning to the report of 2 July 2020, Dr Leeder stated that the Applicant can independently attend to all of his self-care needs but noted that he required the assistance of medical devices, including catheters and medications to do so.[51] Dr Leeder considers that, without such devices, the Applicant would not be independent and particularly that, without access to catherisation, the Applicant would progress to end stage renal failure, which would cause ill health and eventually result in death.[52]
[51] Exhibit 1, A9.
[52] Ibid, 1.
Dr Leeder provided further detail regarding the type of catheter used by the Applicant, the process of self-catherisation, including how often this is required and the detailed steps that must be taken by the Applicant to do so, and the necessary environmental circumstances required by the Applicant to self-catharise.[53]
[53] Ibid, 2.
Evidence of Mr Sven Roehrs, Occupational Therapist
Mr Roehrs did not provide oral evidence at the hearing.
Mr Roehrs, Occupational Therapist, provided a detailed report dated 8 December 2020[54] responsive to questions from the Applicant’s representative.[55]
[54] Ibid, A13.
[55] Ibid, A12.
Mr Roehrs undertook a functional capacity assessment of the Applicant in his home on 12 November 2020.[56] Mr Roehrs noted and, where he considered relevant, summarised the material which he reviewed prior to compiling his report, which included:[57]
[56] Ibid, A13, 3.
[57] Ibid, 4.
·Tribunal’s ‘Persons Giving Expert and Opinion Evidence Guideline’.
·Tribunal documents.
·Report of Dr Philippe Wolanski, Urologist dated 01.05.2020.
·Report of Dr Mike Boggild dated 22.05.2020.
·Report of Dr Sarah Leeder dated 05.06.2020.
·Statement of Michael Foster dated 02.06.2020.
·GP Statement of Evidence dated 17.10.2019.
·Report of Dr Sarah Leeder dated 23.07.2019.
·Report of Dr Mike Boggild dated 04.05.2018.
·Hospital Discharge Summary dated 23.03.2018.
Mr Roehrs’ report notes, with respect to the preparation of his report, that he draw upon many mediums including the report identified above, the subjective reporting of the Applicant gathered by way of interview, the Functional Capacity Assessment of the Applicant and the psychological observations at the interview.[58]
[58] Exhibit 1, A13, 3 – 4.
Mr Roehrs indicated that the Applicant reported to be experiencing the following symptoms:[59]
[59] Ibid, 5 – 6.
·No ability to voluntarily void bladder.
·No ability to control leakage if the bladder is overdistended.
·Pain in the bladder when overdistended.
·No awareness of fullness of bladder until experiencing pain.
·Minimal time available between experiencing bladder pain and leakage (one minute maximum).
·Low awareness of requirement to pass a motion
·Likelihood of passing stool without knowing until too late, if stool is soft.
·Requirement of suppository if no passing has occurred for an extended period.
·Inability to feel heat or cold from the waist down.
·Altered sensation under the feet with a constant burning pins and needle type sensation.
·Unaware if what he is standing on is hot or cold.
·Diminished awareness of where his lower limbs are in space (proprioception)
·Decreased sensation, decreased proprioception, decreased muscle strength resulting in decreased lower limb control/coordination and balance.
·Higher falls risk.
In summary, Mr Roehrs stated:[60]
My assessment of Mr Foster indicates that it is necessary and reasonable for him to be provided with the aids/assistive equipment that will allow him to participate economically, socially, and to contribute to the community. Without provision of appropriate aids/assistive equipment he will no longer be able to work, will be reliant on welfare and increasingly on the public health system. His ability to participate socially and within the community has been greatly diminished from his condition, greater involvement however with further investigation with an occupational therapist is considered achievable, such as to reengage in a refugee English education program, or riding a 3 wheeled bike with his wife. Without provision of aids/assistive equipment, particularly appropriate catheters, he will have no ability to participate in economic, social and community activities.
[60] Exhibit 1, A13, 75.
Mr Roehrs was asked to answer a number of questions relating to the activities of mobility and self-care.[61] Mr Roehrs stated that the type and level of assistance needed by the Applicant was that of a aid/device or assistive technology, namely a cathether.[62]
[61] Ibid, A12.
[62] Ibid, A13, 77.
Mr Roehrs also comments on the suitability of the available catheters, and in Annexure A to his report concludes that the Coloplast Speedicatheter Flex is best for the applicant.
Evidence of Dr Gavin Andrews, General Practitioner
Dr Andrews did not provide oral evidence at the hearing.
Dr Andrews, General Practitioner, provided the following written evidence:
·letter addressed to the NDIS dated 17 June 2019;[63]
·GP Statement of Evidence dated 17 October 2019.[64]
[63] Ibid, T15.
[64] Ibid, T17.
Dr Andrews provided a brief letter dated 17 June 2019 in response to further questions posed by the NDIA during the processing of the Applicant’s request to become a participant in the NDIS. Dr Andrews stated that the Applicant is now dependent on regular bladder botox injections and self-catherisation eight times a day.[65] Dr Andrews opined that this ‘affects his job, travel, social life and sleep’ and that ‘lack of sleep can affect his mental health condition of bipolar disorder’.[66] Dr Andrews further stated that the Applicant has weakness and lack of balance in his legs which restricts his mobility at times, as such that he is now unable to do home maintenance.[67]
[65] Exhibit 1, T15.
[66] Ibid.
[67] Ibid.
Dr Andrew concluded that the Applicant would need to continue to self-fund his bladder Botox and catheters and mental health care for the rest of his life.[68]
[68] Ibid.
Within this letter Dr Andrews references an earlier report dated 19 April 2019, however the Tribunal notes that this report is not currently before the Tribunal.[69]
[69] Ibid.
The GP Statement of Evidence, completed by Dr Andrews, appears to largely be blank, however parts C and D have been completed to record details of psychiatric and psychological conditions and details of a condition impacting spinal function.[70] Dr Andrews briefly outlines the current symptoms of the Applicant’s impairments, current treatment and briefly details the functional impact that such conditions have on the Applicant.[71]
[70] Ibid, T17.
[71] Ibid.
Evidence of Dr Satish Karunakaran, Consultant Neuropsychiatrist
Dr Satish Karunakaran did not provide oral evidence at the hearing.
Dr Karunakaran, Consultant Neurologist, provided a brief letter dated 13 February 2016[72] addressed to Dr Gavin Andrews which outlined the status of the Applicant’s mental health conditions at the time and details of the medication that was being used to treat such conditions.
[72] Ibid, T3.
Evidence of Melinda Roubicek, Social Worker
Ms Roubicek provided a summary of the applicant’s situation at the conclusion of his rehabilitation – a “Closure Report” dated 22 August 2018.[73]
[73] Exhibit 1, T8.
ISSUES
The parties accept, and the Tribunal considers, based on the evidence, that the Applicant meets the age requirements pursuant to section 22 of the NDIS Act and the residence requirements pursuant to section 23 of the NDIS Act.[74]
[74] Agreed Statement of Facts and Issues, [18].
The parties accept, and the Tribunal considers, based on the evidence, that the Applicant has a disability that is attributable to a neurological impairment, namely a Neurogenic Overactive Bladder and inability to void his bladder (the impairment), pursuant to paragraph 24(1)(a) of the NDIS Act.[75]
[75] Ibid, [20].
The parties accept, and the Tribunal considers, based on the evidence, that the Applicant’s impairment is permanent for the purposes of paragraph 24(1)(b) of the NDIS Act.[76]
[76] Ibid, [21].
The parties accept, and the Tribunal considers, based on the evidence, that the Applicant’s impairment does not result in substantially reduced functional capacity to undertake any of the activities of communication, social interaction, learning, mobility, self-care and self-management for the purposes of paragraph 24(1)(c) of the NDIS Act.[77] Despite this, the parties acknowledged that the issue of whether the Applicant is ‘deemed’ to have a substantially reduced functional capacity by virtue of rule 5.8(a) of the NDIS Access Rules was in dispute.[78]
[77] Ibid, [22].
[78] Ibid, [22].
The parties accept, and the Tribunal considers, based on the evidence, that the Applicant’s impairment affects his capacity for social or economic participant pursuant to paragraph 24(1)(d) of the NDIS Act.
The parties accept, and the Tribunal considers, based on the evidence, that the Applicant does not meet the early intervention requirements under section 25 of the NDIS Act.[79]
[79] Agreed Statement of Facts and Issues, [24].
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] and
b.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.
The Respondent contended that toileting, as referred to in the definition of self-care in the Access Guideline does not include expelling urine (‘the evacuation of a person’s bladder’), ‘which is better described as a bodily function’.[90] The Applicant rejected that approach – submitting that it was “artificially narrow”.[91] The Applicant stated that he could not effectively or completely participate in self-care or social interaction without the use of catheters,[92] and that ultimately, without catheters he will suffer renal failure and death.[93]
[90] Respondent’s Statement of Facts, Issues and Contentions, [27].
[91] Transcript, P-6, lines 20 – 21.
[92] Applicant’s Statement of Facts, Issues and Contentions, [32](a).
[93] Transcript, P-7, lines 32 – 36.
The Respondent further contended that an inability to undertake one isolated activity in self-care did not mean that the Applicant could not effectively or completely participate in the activity of self-care or social interaction.[94] The Respondent also submitted that self-care and social interaction should be looked at as a whole,[95] and when the words effectively or completely are applied, the Applicant does not come within rule 5.8(a) of the NDIS Access Rules because he is able to undertake those activities independently.[96] The Applicant submitted, in response to that approach, that the Tribunal needed to look at his ability to undertake or participate in an activity effectively or completely, or perform tasks or actions required to undertake or participate effectively or completely in the activity without assistive technology, equipment (other than commonly used items such as glasses), or home modifications.[97] The Applicant referred to the decision of the Tribunal (differently constituted) in Ditchfield and National Disability Insurance Agency[98] as authority that the phrase ‘effectively or completely’ should be given its ordinary meaning.[99]
[94] Respondent’s Statement of Facts, Issues and Contentions, [31].
[95] Ibid, [29].
[96] Ibid, [29].
[97] Transcript, P-6, lines 39 – 47.
[98] [2019] AATA 2121, [138] – [139].
[99] Transcript, P-7, lines 7 – 11.
Regarding statutory interpretation the Tribunal was referred to a number of principles and cases. The Applicant disagreed with the approach advanced by the Respondent that the legislation and rules should be interpreted by reference to the Access Guideline, rather than ascertaining whether the policy contained in the Access Guideline is consistent with the legislation – ‘to reverse that approach‘ would allow the Respondent to interpret the legislation, in effect usurping the role of the Tribunal and the Courts.[100] In that regard the Applicant referred the Tribunal to A2 v R [2018] NSW CCA 174, specifically pargraphs [499] and [500].[101]
[100] Transcript, P-5, lines 32 – 34.
[101] Transcript, P-5, lines 40 – 43.
The Respondent referred the Tribunal to the Federal Court decision of Mortimer J in Mulligan, which sets out some of the principles regarding the construction of the NDIS Act and, in particular, with respect assessing functional capacity:
50. The access criteria in Ch 3 of the Act are an essential component of the NDIS as conceived. They are designed to impose a number of thresholds on access to the NDIS. By s 13, broad and general provision may be made for persons with disabilities – but access to the NDIS, and the supports, funding and autonomy it is intended to deliver, is reserved for a subcategory of persons with disabilities. One of the issues which this appeal presents is the height of the thresholds set, and the focus of the thresholds, at least through the operation of s 24(1).
51. Some general observations should be made about these matters. The term “disability” is used in the Act, and in s 24, as a descriptive concept for the overall effect of a person’s impairments on that person’s abilities to participate in all aspects of personal and community life. Threshold provisions such as s 24 operate not on the concept of disability, but on the concept of an impairment, which, as the Tribunal correctly observed at [19] of its reasons, is generally understood as involving the loss of or damage to a physical, sensory or mental function.
52. Although an impairment may, in general terms (and, for example, in the terms of Art 1 of the Convention on the Rights of Persons with Disabilities extracted above) be responsible for or related to a disability, the threshold in s 24 revolves around the severity and permanency of the effects of the impairments experienced by a person, so as to justify the provision of the “reasonable and necessary supports” to which participants may be entitled, after assessment in accordance with Pt 2 of Ch 3 of the Act.
53. At p 14 of the revised Explanatory Memorandum, the purpose of what became s 24 is described:
Clause 24 sets out the disability requirements a person must satisfy in order to become a participant in the NDIS launch. The disability requirements are designed to assess whether a prospective participant has a current need for support under the scheme, based on one or more permanent impairments that have consequences for the person’s daily living and social and economic participation on an ongoing basis. This clause also implements recommendation 3.2 of the Productivity Commission report.
54. Recommendation 3.2 of the Productivity Commission Inquiry Report, “Disability Care and Support” (31 July 2011), stated:
Individuals receiving individually tailored, funded supports through the NDIS:
·should have a disability that is, or is likely to be, permanent, and
would meet one of the following conditions:
·have significantly reduced functioning in self-care, communication, mobility or self-management and require significant ongoing support
·be in an early intervention group, comprising individuals for whom there is good evidence that the intervention is safe, significantly improves outcomes and is cost effective
In exceptional cases, the scheme should also include people who would receive large identifiable benefits from support that would otherwise not be realised, and that are not covered by the groups above. Guidelines should be developed to inform the scope of this criterion and there should be rigorous monitoring of its effects on scheme costs.
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. The legislative scheme contemplates 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.
56. That being the case, no arbitrary limits are placed on access to the NDIS. 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. Critically, the scheme makes detailed provision for that assessment, and it is sufficient for a person to have substantially reduced functional capacity in relation to one activity. That, in my opinion, recognises the spectrum of impairments which can be experienced by persons with disabilities, and accommodates different abilities within one person in terms of her or his daily activities. That is why a detailed functional assessment is so important.
…
67. Rule 5.8 operates expressly by reference to each of the activities in s 24(1)(c)(i) to (vi). It requires the decision-maker to look, as a matter of factual assessment, at the outcome or effect of a person’s impairment on the performance of each, and any, of those six activities. If the outcome or effect is any of the outcomes or effects specified in r 5.8(a), (b) or (c), the deeming effect of r 5.8 operates.
The Tribunal was also referred by the Respondent to the decision of Mulligan on remittal to the Tribunal and the decisions, regarding reasonable and necessary supports under the NDIS, rather than access to the Scheme, of Re Fear (by his mother Fear) and National Disability Insurance Agency (2015) 148 ALD 386 (Fear)[102] and and Re Young and National Disability Insurance Agency (2014) 140 ALD 694 (Young).[103] The Tribunal does not consider the decision of Fear or Young to be of assistance in this matter as they are decisions dealing with the supports to be provided to a participant in the NDIS, and as stated in Mulligan, that:[104]
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 the majority of 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.
[102] Respondent’s Statement of Facts, Issues and Contentions, [48].
[103] Transcript, P-18, line 30.
[104] Mulligan, [34].
Self-care
As set out above, self-care is defined in the Access Guideline as:[105]
…activities related to personal case, hygiene, grooming and feeding oneself, including showering, bathing, dressing, eating, toileting, grooming, caring for own health care need.
[105] NDIS Access Guidelines, cl. 8.3.
The Tribunal considers that voiding one’s bladder is part of the activity of self-care, and specifically toileting. The Tribunal accepts the Applicant’s submission that to draw a distinction between voiding one’s bladder and toileting is artificial.
The Tribunal also considers that catheters are equipment within the meaning of rule 5.8(a) of the NDIS Access Rules. The Tribunal notes that this is consistent with the usage of ‘equipment’ in relation to catheters in the Appendix to the Access Guideline.
In coming to this conclusion, the Tribunal does not accept the Respondent’s proposition that the catheter is for an ancillary or collateral purpose such that it does not meet the requirements of rule 5.8(a) of the NDIS Access Rules. The Tribunal does not consider that such a distinction is supported, and furthermore there is nothing in the legislative scheme to suggest that equipment should have only one purpose.
The Tribunal also considers that the Respondent’s submissions as set out in paragraph 73 above, that the Applicant’s inability to undertake what it defined as an ‘isolated activity’ is unable to be supported, having regard to the following statements of Mortimer J in Mulligan:[106]
[106] Mulligan, [67].
56.That being the case, no arbitrary limits are placed on access to the NDIS. 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. Critically, the scheme makes detailed provision for that assessment, and it is sufficient for a person to have substantially reduced functional capacity in relation to one activity. That, in my opinion, recognises the spectrum of impairments which can be experienced by persons with disabilities, and accommodates different abilities within one person in terms of her or his daily activities. That is why a detailed functional assessment is so important.
(Emphasis added)
Taking all of the above into consideration, and having regard to the guidance with respect to the application of rule 5.8(a) of the NDIS Access Rules of Mortimer J in Mulligan,[107] the Tribunal considers that the outcome or effect on the Applicant without the equipment (catheters) is that he is unable to participate effectively or completely in the activity (self-care) or perform tasks or actions (toileting) required to undertake or participate effectively or completely in the activity, and hence the deeming effect of rule 5.8(a) of the NDIS Access Rules operates.
[107] At [67].
Social interaction
As also set out above, social interaction is defined in the Access Guideline as:[108]
…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.
[108] NDIS Access Guidelines, clause 8.3.
Turning to the clarification of ‘social interaction’ contained in clause 8.3 of the Access Guideline, the Tribunal considers that such examples appropriately focus on interpersonal skills, rather than access or barriers to practicing such interpersonal skills.
As such, the Tribunal does not consider that the Applicant’s impairment results in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking social interaction.
The Tribunal therefore considers that the Applicant’s impairment results in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking the activity of self-care pursuant to subparagraph 24(1)(c)(v) of the NDIS Act.
Is the Applicant likely to require support under the NDIS for his lifetime pursuant to paragraph 24(1)(e) of the NDIS Act?
The Applicant contends that he will be likely to need support under the NDIS for his lifetime in relation to his impairment as it will last for his lifetime.[109]
[109] Applicant’s Statement of Facts, Issues and Contentions, [37].
The Respondent contended that the inclusion of the words ‘under the NDIS for the person’s lifetime’ in paragraph 24 (1)(e) of the NDIS Act means the Tribunal must consider not simply whether the Applicant will require support, but also whether that support should be provided under the NDIS.[110] The Respondent further contends that the NDIS has to ‘work in conjunction with other laws’[111] and to enable people with disability to maximise independent lifestyles.[112] It also contends that the NDIS Act contemplates interaction between the provision of services under the NDIS and other services, including mainstream services to persons who are not participants.[113] The Respondent concluded its contentions by referring to the Continence Aids Payment Scheme 2020 (CAPS), established pursuant to section 12 of the National Health Act 1953 (Cth), which currently subsidises the Applicant’s catheters.[114] Specifically, the Respondent referred to subsection 5(1) of the CAPS which sets out the eligibility of persons to participate in the scheme if they, relevantly, suffer from ‘permanent and severe incontinence’ caused by an ‘eligible neurological condition’.[115] The Respondent submitted that the appropriate scheme to provide continence supports should be determined on a case-by-case basis,[116] and in this case the appropriate scheme is the CAPS, as it already provides support to the Applicant, noting that the CAPS excludes participants in the NDIS.[117]
[110] Respondent’s Statement of Facts, Issues and Contentions, [34] – [35].
[111] Ibid, [36].
[112] Ibid.
[113] Ibid, [38].
[114] Ibid, [42].
[115] Ibid, [44].
[116] Ibid, [46].
[117] Ibid, [47].
Further to that point, the Respondent drew the Tribunal’s attention to the following passage from the Productivity Commission Report 2011 (Productivity Comission Report), which it said was put before Parliament and led to the establishment of the NDIS:[118]
Access to generic services, such as health and housing, can affect demand for NDIS funded shortfalls, and vice versa. It will be important for the scheme not respond to problems or shortfalls in mainstream services by providing its own substitute services. To do so would weaken the incentives by governments to properly fund mainstream services for people with a disability, shifting the cost another part of government (such as from a state government to the NDIS, or from one budget silo to another). This ‘pass the parcel’ approach would undermine the sustainability of the scheme and the capacity of people with a disability to access mainstream services. If governments and departments thought that the NDIS would address both specialist and mainstream service needs, people with a disability may well be seen as a lesser priority for the generic services provided by government.
[118] Respondent’s Statement of Facts, Issues and Contentions, [47]. Productivity Commission’s 2011 report, Disability Care and Support, Report No 54, 31 July 2011, 238.
In submissions, the Respondent referred the Tribunal to further extracts of the Productivity Commission Report which identified a tiered approach to providing supports and in particular the supports to be provided by the NDIS being those in tier 3, as opposed to those referred to in tier 2, which are supports from other systems.[119] The Respondent made specific reference to the following passage:[120]
The government makes clear that it does not intend for the scheme to address the care and support needs of all individuals, but rather should focus on those with such needs are greatest. Such a focus is consistent with the fact that risk pooling through insurance tends to focus on the high cost, less frequent events like death, serious injury and property loss. Many families and individuals have an ability to bear in finance some risks themselves, and this is a more efficient and flexible way of addressing smaller and more common risks than formal risk pooling through insurance.
[119] Transcript, P-9, lines 33 – 47; P-10, lines 1 – 7.
[120] Productivity Commission’s 2011 report, Disability Care and Support, Report No 54, 31 July 2011, 165. Transcript, P-10, lines 18 – 34.
In relation to the CAPS, the Applicant submitted that it provided only a subsidy towards the supports he needs.[121] The Applicant submitted that the catheters are not provided through the CAPS – rather the Applicant receives a small subsidy from the CAPS towards them.[122] In terms of the scale of the subsidy, the Applicant submitted that for the 2021 financial year, he received a subsidy of $623.80 towards the cost of the catheters, the actual cost of which exceeded $13,000 for the same period.[123] The Respondent’s submission in that regard was that the fact that the Applicant received only a subsidy, rather than the whole amount, ought not be a consideration as to whether the Applicant becomes a participant in the NDIS.[124] The Applicant also referred the Tribunal to the appendix to the Access Guideline second column which sets out the circumstances in which ‘supports may be funded by the NDIS or other parties’.[125] In the second column, the last entry relates to ‘aids and equipment’ and in relation to the funding of catheters states as follows:[126]
Aids and equipment which are permanent and for the purpose of improving functioning and related to a participant self-care needs including continence aids and catheters, except for medical or surgical procedures. The NDIS would not be responsible for providing aids and catheters for participants undergoing treatment within hospital settings.
[121] Exhibit 1, A15. Transcript, P-8, lines 7 – 11.
[122] Ibid.
[123] Trasncript, P-8, lines 8 – 9.
[124] Transcript, P-21, lines 29 – 33.
[125] Transcript, P-8, lines 34 – 37.
[126] Transcript, P-8, lines 37 – 44.
The Respondent also referred to the other passages from the Productivity Commission Report, set out below, which it said provide guidance as to whom the NDIS was directed – particularly persons with severe and profound disability.[127] The Respondent referred to the proposed assessment criteria for access to the NDIS contained in the Productivity Commission Report[128] and made reference to the intended intersection with the health system, specifically ‘[T]he commission recommends that the primary care and hospital (inpatient and outpatient-based services) and medical and pharmaceutical products remain outside the scope of the scheme.’[129] The Respondent highlighted what was foreshadowed by the Productivity Commission, that there will not be a precise definition between the roles of the health and disability systems.[130] The Respondent stated that each case will need to be considered individually to consider whether the NDIS should provide the supports and that the NDIS should not ‘respond to problems or shortfalls in health, mainstream services by providing its own substitute services’.[131]
[127] Productivity Commission’s 2011 report, Disability Care and Support, Report No 54, 31 July 2011, 167. Transcript, P-10, lines 40 - 43.
[128] Productivity Commission’s 2011 report, Disability Care and Support, Report No 54, 31 July 2011, 174. Transcript, P-11, lines 18 – 24.
[129] Productivity Commission’s 2011 report, Disability Care and Support, Report No 54, 31 July 2011, 182. Transcript, P-11, lines 29 – 34.
[130] Productivity Commission’s 2011 report, Disability Care and Support, Report No 54, 31 July 2011, 182. Transcript, P-11, lines 43 – 47.
[131] Productivity Commission’s 2011 report, Disability Care and Support, Report No 54, 31 July 2011, 237. Transcript, P-12, lines 18 - 42.
In addition, the Respondent made submissions about the legislative scheme, pointing, in particular, to the following references:
·The need to ensure the financial sustainability of the scheme are set out in the Objects contained in subsection 3(3) of the NDIS Act.[132]
·That regard is to be had to provision of services by other agencies, departments and organisations and the need for interaction between provision of mainstream services in the provision of supports under the NDIS, as set out in paragraph 3(3)(d) of the NDIS Act.[133]
·That people with disabilities should be supported to participate and contribute to social and economic life to the extent of their ability, as contained in the guiding actions and principles in subsection 4(2) of the NDIS Act.[134]
·That people with disabilities should be supported to receive supports outside the NDIS and be assisted to coordinate the supports provided under the NDIS – see subsection 4(14) of the NDIS Act.[135]
·That the NDIS may provide general supports to, or in relation to people with disability who are not participants – see section 13 of the NDIS Act.[136]
[132] Respondent’s Statement of Facts, Issues and Contentions, [36].
[133] Ibid, [36] – [37]. Transcript, P-13, lines 6 – 14.
[134] Transcript, P-13, lines 16 – 21.
[135] Transcript, P-13, lines 23 – 28.
[136] Transcript, P-13, lines 30 – 35.
With respect to section 13, the Respondent submitted that it is included for people who need supports from another service.[137]
[137] Transcript, P-13, lines 39 – 44.
The Tribunal has considered the respective positions contended by each of the Applicant and Respondent. The Tribunal considers that the inclusion of the words ‘under the NDIS for the person’s lifetime’ should be construed in accordance with their ‘natural meaning’ in conformity with the statement by Edelman J in SAS Trustee Corporation v Miles (2018) HCA 55; (2018) 361 ALR 206:
64.The task of statutory construction involves the legal application of the meaning of statutory words, as interpreted, to the facts of a case. In Federal Commissioner of Taxation v Consolidated Media Holdings Ltd, this Court said that the task of statutory construction must begin and end with the text of the statute. That statement does not mean that the text of a statute must be interpreted only according to the range of semantic meanings of the individual words. It means only that the interpretation of a statute, like any other legal instrument, is an interpretation of its words. Those words are interpreted in their context and in light of their purpose although legal rules can sometimes exclude or restrict the use of some context. In ascertaining the reasonably intended meaning of Parliament context is, literally, those matters to be considered (simultaneously) together with the text. Context can give words an interpretation that is the opposite of their ordinary meaning and grammatical sense. Context can also permit a construction of words that excludes their application to matters that would have fallen within the application of their literal meaning. However, as with contractual interpretation, where "the clearer the natural meaning the more difficult it is to justify departing from it", so too in statutory interpretation "questions of degree arise" and it will be more difficult to displace an interpretation that "has a powerful advantage in ordinary meaning and grammatical sense".
[Footnotes omitted]
The Tribunal does not consider that it follows from the existence of a subsidy scheme for catheters, to which the Applicant has had access, that the Applicant should be confined to obtaining support from that scheme only. While the Applicant is clearly eligible under the CAPS, he also falls within the category of people to whom the Appendix to the NDIS Access Guidelines is directed – he requires catheters on a permanent basis for the purpose of improving functioning related to his self-care. Furthermore, his use of catheters is not in the context of undergoing treatment within a hospital setting which is the circumstance in which cathethers are excluded under the Access Guidelines.
In addition, the Tribunal has had regard, as required by paragraph 3(3)(d) of the NDIS Act, to the provision of services by other agencies, departments and organisations and the need for interaction between provision of mainstream services in the provision of supports. The Tribunal observes that the subsidy that the Applicant receives is for only a small part of his total expenditure on catheters, and accordingly does not consider that there is an agency, department or service providing a comparable mainstream support.
The Respondent made a number of contentions and submissions regarding the objects and statements of principle in the NDIS Act. The Tribunal observes that NDIS Act contains at least ten objects, three ways by which the objects are to be achieved, and four matters to which regard must be had in giving effect to the objects. There are also 17 general principles guiding actions under the NDIS Act. Thus, there is a multiplicity of broad statements of intent and, in some cases it seems that giving effect to one of the objects or general principles, may lead to a contrary outcome in terms of other of the objects or general principles. It is not clear from the legislation how such tensions are to be resolved. In the circumstances the Tribunal considers this presents a situation such as was referred by Heydon J in Victims Compensation Fund v Brown [2003] HCA 54; (2003) 77 ALJR 1797; 201 ALR 260 where he said in respect of the legislation relevant to that matter that ‘it was difficult to state the legislative purpose except at such extreme levels of generality that it is not useful in construing particular parts of the legislative language’.[138] Further guidance with respect to the application of objects clauses can be found in the decision of Coles JA in Minister forUrban Affairs and Planning v Rosemount Estates Pty Ltd (1996) LGERA 31 which stated ‘whilst regard may be had to an objects clause to resolve uncertainty or ambiguity, the objects clause does not control clear statutory language, or command a particular outcome of exercise of discretionary power’.[139]
[138] Victims Compensation Fund v Brown [2003] HCA 54; (2003) 77 ALJR 1797; 201 ALR 260, [33].
[139] Minister forUrban Affairs and Planning v Rosemount Estates Pty Ltd (1996) LGERA 31, [78].
In terms of the references made by the Respondent to the Productivity Commission Report, the Tribunal does not consider that it displaces the wording of the NDIS Act. The decision of the High Court in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27; 260 ALR 1, while contemplating and approving reference by courts and tribunals to extrinsic materials stated:[140]
[140] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27; 260 ALR 1, [47].
111.This court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.
[Footnotes omitted]
In this case the statement of legislative intent is in the Tribunal’s view, clear. Furthermore the NDIS act is beneficial legislation[141] and the presumption therefore is that it should be construed in favour of the Applicant.
[141] See NNXF and National Disability Insurance Agency [2019] AATA 5552, [24].
Accordingly, the Tribunal considers that the Applicant is likely to require support under the NDIS for his lifetime pursuant to paragraph 24(1)(e) of the NDIS Act.
CONCLUSION
Based on the conclusions reached in paragraphs 83, 87 and 102 above, the Tribunal concludes that the Applicant meets the disability requirements under section 24(1) of the NDIS Act and that he meets the access criteria under section 21 of the NDIS Act.
Accordingly, the Tribunal sets aside the decision under review and in substitution, decides that the Applicant meets the access criteria under section 21 of the NDIS Act.
I certify that the preceding 104
(one hundred and four) paragraphs are a true copy of the reasons for the decision herein of Deputy President F Meagher.…………………[SGD]………………..
Associate
Dated: 17 December 2021
Dates of Hearing: 28 June 2021 Final Submissions Received:
Representative for the Applicant:
Counsel for the Applicant:
28 June 2021
Legal Aid Queensland
Mr M Black
Counsel for the Respondent: Mr P Nolan
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