FSQQ and National Disability Insurance Agency

[2019] AATA 186

FSQQ and National Disability Insurance Agency [2019] AATA 186 (18 February 2019)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2017/3793

Re:FSQQ  

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Deputy President J W Constance

Date:18 February 2019

Place:Sydney

The Tribunal has jurisdiction, in respect of the application for review lodged on 29 June 2017, to consider the Applicant’s claimed psychiatric conditions.

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

J W Constance
Deputy President

CATCHWORDS

PRACTICE AND PROCEDURE - JURISDICTION - access request did not specify psychiatric conditions - supporting information regarding psychiatric conditions subsequently provided to decision-maker - whether decision-maker need consider only those conditions specified in access request - broad, generous and practical interpretation to be given to access request and supporting information - Tribunal has jurisdiction to consider psychiatric conditions in determining application for review

LEGISLATION

National Disability Insurance Scheme Act 2013 (Cth)

Safety, Rehabilitation and Compensation Act 1988 (Cth)

CASES

Abrahams v Comcare (2006) 93 ALD 147; [2006] FCA 1829

Comcare v Lofts (2013) 217 FCR 220; 137 ALD 522; [2013] FCA 1197
Comcare v Muir (2016) 150 ALD 321; [2016] FCA 346
Fuad and Telstra Corporation Limited (2004) 39 AAR 496; [2004] AATA 1182
Kennedy v Comcare (2014) 63 AAR 100; [2014] FCA 82

SECONDARY MATERIALS

REASONS FOR DECISION

Deputy President J W Constance

18 February 2019

INTRODUCTION

1. In this matter the Applicant sought review of a decision of the Agency that she did not meet the access criteria for participation in the National Disability Insurance Scheme (NDIS).

2. It was not in contention that the Tribunal had jurisdiction to consider the Applicant’s access based on certain medical conditions. However, a question arose as to whether the Tribunal had jurisdiction to consider her claim to be entitled to access based on the psychiatric conditions of depression and post-traumatic stress disorder.

3. I note that in July 2018 it was agreed between the parties that the Applicant was entitled to access to the NDIS.

   BACKGROUND

4. The Applicant suffers from spondyloarthropathy which has caused her to suffer from depression. She also suffers from post-traumatic stress disorder. Prior to accessing the NDIS, the Applicant was receiving disability services under the NSW state scheme.

5. By letter of 23 November 2016, the Agency wrote to the Applicant advising her that people living with a disability in New South Wales would soon begin to transition to the NDIS.[1] She was advised that she would be contacted by an Agency representative to obtain information about her meeting the requirements to become an NDIS participant.

   [1] Document T8 of the Respondent’s section 37 documents filed 2 August 2017.

6. Following initial discussions, the Agency wrote to the Applicant on 16 January 2017 in part as follows:

   To help me consider your access request I need evidence of your impairment from your treating doctor or specialist, and evidence of the impact of your impairment on your life. Specifically, I need the following information:

   Confirmation of your disability from your treating doctor or specialist.

   You can either provide me with this information from any assessments or report you already have, or arrange for the attached form to be completed and returned.[2]

   [2] Document T7 of the Respondent’s section 37 documents filed 2 August 2017.

7. Sometime after 13 February 2017 (it is not clear exactly when), the Applicant submitted to the Agency a form titled Access Request – Supporting Evidence Form.[3] The form included a section completed by the Applicant’s General Practitioner which responded to requests for details of the Applicant’s impairments. The impairments noted by the General Practitioner were:

   ·Ankylosing Spondylityis;

   ·excess weight;

   ·Crohn’s disease;

   ·asthma; and

   ·obstructive sleep apnoea.

   There was no reference in the Form to a psychiatric condition.

   [3] Document T5 of the Respondent’s section 37 documents filed 2 August 2017.

8. In response to the Agency’s request of 16 January 2017, the Applicant’s Specialist Physician wrote to the Agency on 24 February 2017 advising that the Applicant would be “on pain relief for the rest of her life being treated for Ankylosing Spondylitis (spondyloarthropathy).”[4] He also advised that he first consulted the Applicant in August 2012 and he enclosed a copy of a report of that consultation. Reports of subsequent reviews were also enclosed.

   [4] Document T9 of the Respondent’s section 37 documents filed 2 August 2017.

9. The report of 21 August 2012 advised the reader that:

   ·on psychometric testing the Applicant scored positive for “moderate anxiety, extremely severe depression and severe stress”;

   ·the Applicant was taking medication for depression;

   ·her physical condition was complicated by depression; and

   ·she was going to need “effective antidepressant therapy”.

   The Physician recommended that the Applicant see a Clinical Psychologist.

10. The accompanying reports of 19 September 2012[5] and 5 February 2015[6] both referred to the Applicant’s depression or her medication for a mental disorder.

    [5] Document T9 of the Respondent’s section 37 documents filed 2 August 2017.

    [6] Document T9 of the Respondent’s section 37 documents filed 2 August 2017.

11. By letter of 28 February 2017, the Agency advised the Applicant that it had been determined that she did not meet the access criteria specified in the Act.[7] The Applicant requested that the Agency review that decision.

    [7] Document T4 of the Respondent’s section 37 documents filed 2 August 2017.

12. On 1 June 2017, an Internal Review Officer of the Agency wrote to the Applicant advising that she had decided to affirm the initial decision refusing the Applicant’s request for access to the Scheme.[8] It was this decision which the Applicant sought to have reviewed by the Tribunal.

    [8] Document T2 of the Respondent’s section 37 documents filed 2 August 2017.

13. Under the heading Reasons for this Decision, the Review Officer listed the evidence she had considered in reaching her decision. This included the letter from the Specialist Physician of 24 February 2017 and the reports included with that letter. The report of 21 August 2012 was specifically listed.

    THE AGENCY’S ARGUMENT

14. It was submitted on behalf of the Agency that:

    4. The two-tiered internal decision making process in Part 6 of the Act is a well-established procedure modelled on long-standing Commonwealth administrative decision-making legislation. It has, since the late 1990’s and the Full Federal Court decision of Comcare v Lees (1997) 151 ALR 647, been universally accepted that, in the absence of an initial decision (in this case the reviewable decision) and a further internal review (in this case the internal review decision) the Tribunal does not have jurisdiction to review a decision. Those principles have been endorsed by the Tribunal as equally applying to the review scheme established under the Act (see for example Nairn and NDIA [2017] AATA 242).

    5. The respondent submits that a further limitation on the Tribunal’s review jurisdiction is in respect of the basis upon which an access request under s.18 of the Act is made. Section 19 of the Act identifies the matters that are required for an access request and includes the requirement that the request ‘certify that it includes all the information, and is accompanied by all the documents, required as mentioned in paragraph (b) that are in the possession or control of the person’ (s.19(1)(c)).[9]

    [9] Respondent’s Submissions on Jurisdiction in Response to Tribunal’s Direction of 17 January 2018 filed 19 February 2018 at [4]-[5].

15. Subsection 19(1) of the National Disability Insurance Scheme Act 2013 (Cth) provides:

    (1)  An access request must:

    (a) be in the form (if any) approved by the CEO; and

    (b) include any information, and be accompanied by any documents, required by the CEO; and

    (c) certify that it includes all the information, and is accompanied by all the documents, required as mentioned in paragraph (b) that are in the possession or control of the person.

16. Subsection 24(1) provides:

    (1)  A person meets the disability requirements if:

    (a) the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or 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.

17. Subsection 26(1)(a) provides:

    (1) The requests the CEO may make under this subsection after a prospective participant has made an access request (see paragraph 20(b)) are as follows:

    (a) that the prospective participant, or another person, provide information that is reasonably necessary for deciding whether or not the prospective participant meets the access criteria;

18. The Agency further argued that:

    … an assessment of the disability requirement under s.24 is directed by the relevant impairments identified in an application under s.19 of the Act. Given s.19 and 26 it could not have been envisaged that an application for access to the NDIS was to be treated as an open-ended claim for access with the responsibility lying with the respondent to investigate any possible impairment relevant for the purposes of s.24(1).[10]

    It was contended that in this context the Supporting Evidence Form was a key document upon which a request for access under s 18 of the Act was to be considered.

    [10] Respondent’s Submissions on Jurisdiction in Response to Tribunal’s Direction of 17 January 2018 filed 19 February 2018 at [9].

    DISCUSSION

19. As the Agency correctly pointed out, it is appropriate to look for guidance in judgements and decisions interpreting the Safety, Rehabilitation and Compensation Act 1988 (Cth). Both that Act and the National Disability Insurance Scheme Act are beneficial legislation and both provide for a similar two-tier review process.

20. In Abrahams v Comcare, in reference to the Safety, Rehabilitation and Compensation Act, the Federal Court said, in part:

    In construing a document purporting to be a notice of injury under the Act, a broad, generous and practical interpretation should be made, consistent with both the beneficial purposes of the Act and the likelihood that laypeople of differing levels of education, differing levels of medical advice and differing levels of legal advice (indeed in most cases they would not have any) will be giving the notice.[11]

    This principle has been referred to with approval many times in the Federal Court.[12]

    [11] (2006) 93 ALD 147; [2006] FCA 1829 at [18].

    [12] See Kennedy v Comcare (2014) 63 AAR 100; [2014] FCA 82 at [53]; Comcare v Lofts (2013) 217 FCR 220; 137 ALD 522; [2013] FCA 1197 at [69]; Comcare v Muir (2016) 150 ALD 321; [2016] FCA 346 at [14]-[16].

21. Subsection 26(1) of the National Disability Insurance Scheme Act, set out above, gives the Chief Executive Officer the specific power to request further information from the Applicant or another person to assist in deciding whether an applicant meets the access requirements. This provision alone makes it clear that an access request need not be decided only on the information supplied initially by a prospective participant.

22. In addition, Chapter 2 of the Act requires the Agency to provide assistance to people with disability. In particular, subsection 15(2) provides:

    The Agency must use its best endeavours to provide timely and accurate information to people with disability and other people in order to assist them in making informed decisions about matters relevant to the National Disability Insurance Scheme.

23. Against this background, the principle set forth by Justice Downes in Fuad and Telstra Corporation Limited is applicable to the issue presently under consideration:

    … all matters put before the decision-maker as part of a claim under the [Safety, Rehabilitation and Compensation] Act are before this Tribunal for review when an application for review is made, even though the decision may not address them in any particular way. That leaves a problem identifying exactly what was before the decision-maker but that is a practical problem and not a jurisdictional problem.[13]

    [13] (2004) 39 AAR 496; [2004] AATA 1182 at [5].

24. In this application it is abundantly clear that the maker of the decision under review by the Tribunal had information that the Applicant was suffering from a mental disability secondary to her physical disabilities. The report of the Specialist Physician of 21 August 2012 sets this out under the heading Psychometric Test Scores. The Internal Review Officer acknowledged that this information was before her in the reasons for the decision under review.[14]

    [14] Document T2 of the Respondent’s section 37 documents filed 2 August 2017 at 1.

25. I do not accept the argument put on behalf of the Agency that this information could be disregarded on the basis that the report was four years old. The report was provided under cover of a letter to the Agency in response to a request for further information. That response was dated 24 February 2017, four days before the initial decision refusing access was made. A fair reading of that letter and its enclosures is that the Specialist Physician is indicating that the Applicant is continuing to suffer disabilities that began several years earlier.

26. As this information was before the maker of the decision under review by the Tribunal, it follows that the Tribunal has jurisdiction to consider the Applicant’s claim to be entitled to access to the Scheme based on her psychiatric conditions. The condition of depression was stated. In accordance with the principles stated in Abrahams v Comcare, that was sufficient to include the claim for the psychiatric condition of post-traumatic stress disorder.

27. If the decision-maker had any doubt as to the conditions being relied upon by the Applicant, it was incumbent on the Chief Executive Officer to seek further information from the Applicant to assist her in making her claim for access to the Scheme.

I certify that the preceding 27 (twenty-seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance

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

Associate

Dated: 18 February 2019

Date(s) of hearing:	9 April 2018
Solicitors for the Applicant:	Legal Aid New South Wales
Solicitors for the Respondent:	Sparke Helmore Lawyers