Furminger and National Disability Insurance Agency
[2018] AATA 1872
•26 June 2018
Furminger and National Disability Insurance Agency [2018] AATA 1872 (26 June 2018)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2017/5096
Re:William Furminger
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Deputy President Dr P McDermott RFD
Date:26 June 2018
Place:Brisbane
The decision under review is affirmed.
.........................[SGD]..........................................
Deputy President Dr P McDermott RFD
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – the application of the access criteria – access request requirements – whether the disability requirements and early intervention requirements are satisfied – the application of sections 21, 24 and 25 of National Disability Insurance Scheme Act 2013
Legislation
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)
Cases
YPRM and National Disability Insurance Agency [2016] AATA 1023
Kilgallin and National Disability Insurance Agency [2017] AATA 186
Mulligan and NDIA [2015] AATA 974
Secondary Materials
Operational Guideline – Access to the NDIS
REASONS FOR DECISION
Deputy President Dr P McDermott RFD
26 June 2018
INTRODUCTION
On 22 February 2017, the applicant completed an Access Request Form outlining his primary disability as “degenerative spinel (sic) condition and spinel (sic) canal stenosis in lower back and also degeneration in the back, chronic pain” and other disability as “clinical depression and PTSD”.[1]
[1] Exhibit A, T-Documents, T9, p.17.
On 8 March 2017, the respondent determined that the applicant did not meet the access criteria specified in section 21 of the National Disability Insurance Scheme Act 2013 (“NDIS Act”). The respondent also considered the applicant did not meet the disability requirements and the early intervention requirements outlined in sections 24 and 25 of the NDIS Act respectively.[2]
[2] Exhibit A, T-Documents, T10.
On 30 May 2017, the applicant applied for an internal review of the decision of 8 March 2017.[3]
[3] Exhibit A, T-Documents, T14.
On 31 July 2017, the internal review decision affirmed the original decision of 8 March 2017 confirming that the applicant did not meet all the disability and early intervention requirements outlined in sections 24 and 25 of the NDIS Act.[4] The respondent considered that the applicant did not meet sections 24(1)(c), 24(1)(e) and 25 of the NDIS Act. [5]
[4] Exhibit A, T-Documents, T2.
[5] Exhibit A, T-Documents, T2.
LEGISLATIVE FRAMEWORK
Section 18 of the NDIS Act provides that a person may make a request (an access request) to become a participant in the National Disability Insurance Scheme.[6]
[6] National Disability Insurance Scheme Act 2013 s 18.
Section 21 of the NDIS Act outlines the access criteria:
Section 21 – When a person meets the access criteria
(1) A person meets the access criteria if:
(a) the CEO is satisfied that the person meets the age requirements (see section 22); and
(b) the CEO is satisfied that, at the time of considering the request, the person meets the residence requirements (see section 23); and
(c) the CEO is satisfied that, at the time of considering the request:
(i) the person meets the disability requirements (see section 24); or
(ii) the person meets the early intervention requirements (see section 25).
(2) If the CEO is not satisfied as mentioned in subsection (1), the person meets the access criteria if the CEO is satisfied of the following:
(a) at the time of considering the request, the person satisfies the requirements in relation to residence prescribed as mentioned in subsection 23(3) (whether or not the person also satisfies the requirements mentioned in subsection 23(1));
(b) the person:
(i) was receiving supports at the time of considering the request or, if another time is prescribed by the National Disability Insurance Scheme rules for the purposes of this subparagraph, at that other time; and
(ii) received the supports throughout the period (if any) prescribed by the National Disability Insurance Scheme rules for the purposes of this subparagraph; and
(iii) received the supports under a program prescribed by the National Disability Insurance Scheme rules for the purposes of this subparagraph;
(c) if the person becomes a participant, the person would not be entitled to receive the supports referred to in paragraph (b), or equivalent supports.
(3) The CEO is taken to have decided that the prospective participant does not meet the access criteria if:
(a) the CEO does not do a thing referred to in paragraph 20(a) or (b) within the 21-day period referred to in section 20; or
(b) if subsection 26(2) applies—the CEO does not do one of the things referred to in that subsection within the 14-day period referred to in that subsection.
Sections 22 and 23 of the NDIS Act provide for age and residence requirements.
Section 24 of the NDIS Act provides:
Section 24 – Disability requirements
(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 and economic participation; and
(e) the person is likely to require support under the National Disability Insurance Scheme for the person's lifetime.
(2) For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the National Disability Insurance Scheme for the person's lifetime, despite the variation.
Section 25 of the NDIS Act provides:
Section 25 – Early intervention requirements
(1) A person meets the early intervention requirements if:
(a) the person:
(i) has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent; or
(ii) has one or more identified impairments that are attributable to a psychiatric condition and are, or are likely to be, permanent; or
(iii) is a child who has developmental delay; and
(b) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person's future needs for supports in relation to disability; and
(c) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by:
(i) mitigating or alleviating the impact of the person's impairment upon the functional capacity of the person to undertake communication, social interaction, learning, mobility, self-care or self-management; or
(ii) preventing the deterioration of such functional capacity; or
(iii) improving such functional capacity; or
(iv) strengthening the sustainability of informal supports available to the person, including through building the capacity of the person's carer.
Note: In certain circumstances, a person with a degenerative condition could meet the early intervention requirements and therefore become a participant.
(2) The CEO is taken to be satisfied as mentioned in paragraphs (1)(b) and (c) if one or more of the person's impairments are prescribed by the National Disability Insurance Scheme rules for the purposes of this subsection.
(3) Despite subsections (1) and (2), the person does not meet the early intervention requirements if the CEO is satisfied that early intervention support for the person is not most appropriately funded or provided through the National Disability Insurance Scheme, and is more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or through systems of service delivery or support services offered:
(a) as part of a universal service obligation; or
(b) in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
Section 27 of the NDIS Act provides:
Section 27 – National Disability Insurance Scheme rules relating to disability requirements and early intervention requirements
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).
The National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (“NDIS Rules”) outline the disability requirements criteria in order to be eligible to become a participant.
Paragraph 5.8 of the NDIS Rules is made for the purposes of section 27(b) of the NDIS Act and provides:
When does an impairment result in substantially reduced functional capacity to undertake relevant activities?
5.8 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.
Paragraph 5.8 is made for the purposes of paragraph 27(b) of the Act.
MEDICAL EVIDENCE
Report of Dr Sarah Young, psychologist dated 22 October 2017
Dr Young supports the view that the applicant experiences a substantial reduction in his functional capacity and that intervention would help reduce the long term impacts of his conditions.
In Dr Young’s report of 22 October 2017, she summarises the applicant’s difficulties as follows:
Adaptive skill area
Description
General adaptive composite
Borderline impaired
Conceptual
Borderline impaired
Communication
Low average
Functional academics
Low average
Self-direction
Borderline impaired
Social
Borderline impaired
Leisure
Borderline impaired
Social
Low average
Practical
Borderline impaired
Community use
Low average
Home living
Moderately impaired
Health and safety
Borderline impaired
Self-care
Borderline impaired
Dr Young also considers:
(a)the applicant’s memory falls into the low average range for immediate memory. He has difficulty recalling items after a short delay but this improves when prompted by visual cues.
(b)the applicant’s attention falls into the average range for short term memory when required to repeat back sentences of numbers however his performance is borderline impaired range (slow processing) when required to identify corresponding numbers and shapes.
(c)the applicant’s visuospatial/constructional performance falls into the low average range. He has the ability to copy a complicated figure showing adequate organisation but has difficulties when having to identify spatial orientation of lines in two dimensions demonstrating reduced accuracy when visually distracted.
(d)the applicant’s language performance falls into the average range when required to name visual pictures of everyday objects but his semantic fluency is in the low average range showing slowed processing.
Report of Dr Sarah Young dated 27 November 2017
The opinion of Dr Young can be summarised as follows:
| Area | Example(s) |
| Communication | · Struggles with eye contact when speaking with others · Can only sometimes discuss complex information which requires thought and opinion · Engages in limited non-verbal prompts when conversing with others · Hypervigilant around other people due to anxiety regarding the motives of others |
| Functional academics | · Only sometimes engages in monetary exchange of purchasing items and paying bills (often left to the responsibility of his wife) · Difficulties checking statements and reading labels before purchasing products |
| Self-direction | · Experiences difficulties with emotional regulation at times · Finds it challenging to budget · Difficulties planning and organising tasks |
| Leisure and social | · Avoids community and social events · Difficulties selecting appropriate friends · Challenging to communicate effectively towards others |
| Community use | · Struggles with asking for assistance when required · Only sometimes manages to arrange his own appointments by electronic communication |
| Home living | · Struggles to pay bills on time and requires assistance with this · Great difficulty in cooking meals and tending to housework |
| Health and safety | · Does not plan and cook his own meals · Does not dispose of expired food or check medication for expiration dates |
| Self-care | · Does not engage in exercise · Requires assistance at times with walking and getting out of bed · Difficulties attending to self-care such as showering, grooming his hair and dressing in clean clothes |
Letter of Dr Gregory Hill dated 9 November 2017
Dr Hill supports the view that the applicant’s conditions are likely to be lifelong and he will require ongoing support for activities of daily living.
Dr Hill’s findings can be summarised as follows:
Area
Description and example(s)
Social interaction
· Great difficulties due to physical limitations with his back pain, low mood, anhedonia and agitation/anxiety associated with his depression
· Cannot leave the house for long periods due to back pain preventing him from being able to stand or mobilise for long periods
· An example of this was when the applicant was due to run a model train display at the Stanthorpe Winter Festival but standing for a few hours exacerbated his back pain so much so that he was unable to continue running the display and it was closed down for the remainder of the festival. As a result the applicant was bed bound for the next few days until the pain settled.
Learning
· His conditions affect his ability to engage in education and learning particularly his severe depression which causes loss of motivation and anhedonia
Mobility
· Limited by his back pain and unable to stand or mobilise for any significant period
Self-management
· His depression affects his ability to self-manage routine tasks such as medication, appointments and finances without prompting
SUBMISSIONS
Letter of Terry Pinney dated 28 January 2018
Mr Pinney worked in the position of Senior Practitioner for Lifeline Darling Downs while the applicant worked as a peer support worker for the Personal Helpers and Mentors Program.
The applicant was employed as a part of this program to support others on their journey to finding meaningful roles and goals for their lives. The team environment was an accepting and safe place for the applicant who was well loved within the team. The applicant’s participation was appropriately adjusted according to his needs which included the purchasing of an ergonomic chair and varied driving/standing/moving requirements.
Mr Pinney outlines that the applicant required excessive amounts of time off to recover in bed from the basic physical and emotional requirements of the role however over time the limit to the amount of leave the applicant could take had been exhausted which had to be taken into consideration as the objectives of the role were being neglected. The applicant was aware that he could not continue attempting to work three days per week with Lifeline and took a redundancy from the role on 8 June 2016.
Mr Pinney submits that a considerable amount of time went into supporting the applicant in his role as support worker and his reduced capacity was accommodated as he was a valued member of the team.
Applicant’s Submissions
The applicant’s wife made submissions on the applicant’s behalf. She submitted that she has gradually witnessed the applicant’s back and mental conditions deteriorate and while the applicant had back surgery in 1990, this did little to reduce the pain and it continued to worsen.
The applicant has also suffered from post-traumatic stress disorder and depression for most of his life and he has had a range of major depressive episodes including in 1999 when he was admitted to hospital for three months.
The applicant’s wife submits that she also suffers from mental health problems and while she is the applicant’s carer, there is only so much she can do as it is a very demanding role. The applicant’s wife submits that she does the majority of the housework including the cooking, cleaning, washing and taking care of the dogs. She also has to do the outside tasks such as mowing the grass as they cannot afford to hire someone. The applicant is sometimes able to assist with the washing up.
The applicant’s wife submits that the applicant gets very depressed about the whole situation and “hates himself” for not being able to help. She submits that the applicant often cries because he feels as though he has let his wife down and made her life a misery.
The applicant’s wife also submits that the applicant finds it difficult to go to the shops or make simple phone calls, and sometimes neither of them are able to go out.
Respondent’s Submissions
The respondent concedes that the applicant satisfies the requirements under sections 22 and 23 NDIS Act.
The respondent is satisfied that the applicant satisfies section 24(1)(a) NDIS Act in that he 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.[7]
[7] Exhibit G, Respondent’s Submissions dated 10 January 2018, p.7.
The respondent accepts that the applicant has a degenerative back condition, depression and post-traumatic stress disorder (“PTSD”). The respondent is satisfied that the applicant’s degenerative back condition is permanent for the purposes of section 24(1)(b) NDIS Act however is not satisfied that the applicant’s depression and PTSD are permanent.[8] The respondent submits that there is limited evidence to show the applicant has received treatment for his psychiatric conditions.
[8] Exhibit G, Respondent’s Submissions dated 10 January 2018, p.7.
The respondent is not satisfied that the applicant satisfies section 24(1)(c) NDIS Act as the applicant’s conditions do not result in a substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the following activities:
(a)communication
(i)The respondent submits that the evidence falls short of establishing a “substantially reduced” functional capacity with regards to communication. The respondent submits the evidence indicates that the applicant does not require assistance with communication (per Dr Molly Atkinson);[9] the applicant is able to only sometimes discuss complex information that requires thought and opinion; the applicant can sometimes discuss with others regarding his preferred activities;[10] and as outlined in the applicant’s wife’s application dated 3 November 2016, the applicant’s wife benefits greatly from her husband (the applicant) with communication.[11]
[9] Exhibit A, T-Documents, T9, p.19.
[10] Exhibit D, Report of Dr Sarah Young dated 27 November 2017, p.1.
[11] Exhibit G, Respondent’s Submissions dated 10 January 2018, Annexure A, p.6.
(b)social interaction
(ii)The respondent submits that the applicant does not have a substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, social interaction as the applicant was able to work as a peer support worker three days per week with Lifeline until he was made redundant in 2016.[12] The applicant also participated in running a model train display at the Stanthorpe Winter Festival;[13] and has demonstrated his ability to attend a medical appointment without assistance.[14] The respondent also submits that the evidence does not support that the applicant usually requires assistance and prompting from other people to participate in, or to perform tasks that involve social interaction.
[12] Exhibit A, T-Documents, T6, p.9.
[13] Exhibit C, Report of Dr Gregory Hill dated 9 November 2017.
[14] Exhibit A, T-Documents, T6, p.9.
(c)learning
(iii)The respondent submits that the applicant’s conditions do not result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking learning because the applicant’s performance falls into the low to average range for immediate memory, average range for recalling structured information, relative strength in recalling visually presented information and average range for his short term memory and sustained information.[15]
[15] Exhibit B, Letter of Dr Sarah Young dated 22 October 2017.
(d)mobility
(iv)The respondent submits that while the applicant may have some reduction in functional capacity for mobility, he does not have a substantially reduced capacity as he has been able to attend the Stanthorpe Winter Festival[16] and travel to a medical appointment independently.[17]
[16] Exhibit C, Report of Dr Gregory Hill dated 9 November 2017.
[17] Exhibit A, T-Documents, T6, p.9.
(e)self-care
(v)The respondent submits that while the applicant may have some difficulties with self-care, he does not have a substantially reduced functional capacity as his emotional distress only impacts the management of his self-care “at times”[18] and not “usually”.[19] The respondent also submits this is confirmed in the applicant’s wife’s NDIA application which states the applicant assists his wife with her self-care at times.[20]
(f)self-management
(vi)The respondent submits that “self-management” should be understood in the sense described in the Productivity Commission Report which states:[21]
“Self-management” is a term employed in the Victorian Disability Act 2006. According to the Victorian Department of Human Services (2009), self-management includes being in control of one’s behaviour, insight, memory and decision making. For example, the ability to independently make decisions, including decisions with medium to long-term implications or to make long-term plans”.
(vii)The respondent considers the applicant does not usually require assistance with regards to self-management in the context of the above meaning and he can sometimes engage in monetary exchange to purchase items and pay bills (although this is often left to his wife).[22] The applicant struggles to pay bills on time and requires assistance with this[23] but he can sometimes manage arranging his own appointments by electronic communication. [24]
[18] Exhibit A, T-Documents, T12, p.26.
[19] Exhibit G, Respondent’s Submissions dated 10 January 2018, p.11.
[20] Exhibit G, Respondent’s Submissions dated 10 January 2018, Annexure A, p.7.
[21] Exhibit G, Respondent’s Submissions dated 10 January 2018, p.11; Mulligan and NDIA [2015] AATA 974, [136].
[22] Exhibit D, Report of Dr Sarah Young dated 27 November 2017.
[23] Exhibit D, Report of Dr Sarah Young dated 27 November 2017.
[24] Exhibit D, Report of Dr Sarah Young dated 27 November 2017.
The respondent is not satisfied that the applicant satisfies section 24(1)(d) NDIS Act and relies on the previous examples given that the applicant was able to run a model train display at the Stanthorpe Winter Festival and was able to work as a peer support worker three days per week with Lifeline.
The respondent is not satisfied that the applicant satisfies section 24(1)(e) NDIS Act as the applicant’s needs arise from health conditions which are more appropriately treated through the health system.
The respondent is also not satisfied that the applicant meets the requirements of section 25 NDIS Act. The respondent relies on the reasoning in YPRM and National Disability Insurance Agency [2016] AATA 1023[25] which outlines:
The NDIS is conceived as an “insurance based approach, informed by actuarial analysis, to the provision and funding of supports for people with disability”: s 3(2)(b). Consistent with this approach, the objective of early intervention support is to “lower the costs and impacts associated with the disability for individuals and the wider community over the longer term”.
The early intervention requirements “consider the likely trajectory and impact of a person’s impairment over time and the potential benefits of early intervention on the impact of the impairment on the person’s functional capacity”. In this respect, the early intervention requirements differ from the disability requirements in s 24(1) which require substantially reduced functional capacity to undertake one or more specified activities.
[25] [5]-[6].
The respondent submits that the applicant has had chronic health conditions including a back condition since the 1980s and mental health conditions since the 1990s and there is insufficient evidence to support that the applicant would likely benefit from early intervention support to reduce his future need for support in relation to his disability. The respondent also considers his conditions are best treated by the health system.[26]
[26] Exhibit G, Respondent’s Submissions dated 10 January 2018, [4.40]-[4.41].
CONSIDERATION
There is no issue that the applicant meets the age and residence requirements of sections 22 and 23 of the NDIS Act.
SECTION 24(1)(a)
The respondent accepts that the applicant has a disability that is attributable to a physical impairment or to one or more impairments attributable to a psychiatric condition.[27] I find, having regard to the evidence before the Tribunal that the applicant suffers from attributable physical and psychiatric impairments, namely a degenerative back condition, PTSD and depression.
SECTION 24(1)(b)
[27] Exhibit G, Respondent’s Submissions dated 10 January 2018, p.7.
I find that the applicant’s degenerative back condition is permanent. I make this finding having regard to the report of Dr Nicholson which confirms that there is severe multilevel lumbar degenerative disc disease involving the entire lumbar spine.
I have to consider whether the mental health conditions of the applicant are or are likely to be permanent. The applicant gave evidence that in 1999 he was a patient at the Belmont Private Hospital for depression and pain management and that he has since been on antidepressant medication. There are no records of this treatment. Dr Young, a clinical psychologist, reported on 4 May 2017 that she was continuing to treat the applicant for PTSD: she remarked: “His symptoms are described as longstanding and significantly impact on his daily functioning”. In her later report dated 27 November 2017, Dr Young described some on the symptoms reported by the applicant, including the avoidance of “community and social events”. However, the applicant gave evidence of his involvement in the model railway club when he made reference to the “assembly” of members of the club. Dr Hill, the general practitioner of the applicant, wrote a letter on 9 November 2017 in which he stated that the depression condition of the applicant was likely to be lifelong but gave no reasons for that conclusion. Dr Hill in his letter of 27 November 2017 and Dr Atkinson in her report of 20 February 2017 make no mention of the applicant as having a PTSD condition. The applicant at the hearing of his application agreed that there are no records prior to 2017 which document the treatment of his PTSD condition. On the present state of the evidence I am unable to make a finding that the mental health conditions of the applicant are permanent or likely to be permanent.
SECTION 24(1)(c)
Section 24(1)(c) provides that the impairment or impairments result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of a number of activities, the guidelines provide guidance in outlining the considerations which are relevant to an assessment:
·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 case, 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 one’s self, including completing daily tasks, making decisions, problem solving and managing finances.
To assist in the interpretation of section 24(1)(c) NDIS Act, the Operational Guideline – Access to the NDIS (“Operational Guideline”) provides guidance at paragraph 8.3. NDIA is not required to be satisfied that a person’s impairment is serious or more serious than another persons’ but rather access to the NDIS is based on a functional, practical assessment of what a person can and cannot do.[28] NDIA is not required 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 but rather it is sufficient for a prospective participant to have substantially reduced functional capacity in relation to one activity.[29] The activity that is considered is dependent on the circumstances and the evidence available and as provided for in the Operational Guideline:[30]
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 in relation to cognition.
42. Further, an impairment will result in substantially reduced functional capacity to undertake activities when:[31]
·the person is unable to participate effectively or completely in the activity 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) or home modifications (rule 5.8(a) of the Becoming a Participant Rules); or
·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 (rule 5.8(b) of the Becoming a Participant Rules); or
·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 (rule 5.8(c) of the Becoming a Participant Rules).
[28] Operational Guideline – Access to the NDIS at [8.3]; Mulligan and NDIA [2015] FCA 44, [56].
[29] Operational Guideline – Access to the NDIS at [8.3]; Mulligan and NDIA [2015] FCA 44, [67].
[30] Operational Guideline – Access to the NDIS at [8.3].
[31] Operational Guideline – Access to the NDIS at [8.3.1].
With regards to social interaction, Kilgallin and National Disability Insurance Agency[32] elaborates by explaining that social interaction does not mean interaction with the whole community but rather elements of the community and sections of the community.[33] Interaction on a more-or-less regular basis with people [the applicant] feels comfortable with amounts to social interaction.[34]
[32] Kilgallin and National Disability Insurance Agency [2017] AATA 186.
[33] Kilgallin and National Disability Insurance Agency [2017] AATA 186, [19].
[34] Kilgallin and National Disability Insurance Agency [2017] AATA 186, [19].
With regards to mobility, 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 mats, bathroom grab rails, stair rails, age appropriate child safety locks, simple adapted kitchen utensils and dressing aids.[35]
[35] Operational Guideline – Access to the NDIS at [8.3.1].
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.[36]
[36] Operational Guideline – Access to the NDIS at [8.3.1].
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. [37] 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. [38]
[37] Operational Guideline – Access to the NDIS at [8.3.1].
[38] Operational Guideline – Access to the NDIS at [8.3.1].
When considering self-management, the case of Mulligan and NDIA[39] provides some guidance, outlining that self-management connotes a cognitive capacity to organise one’s life, to plan and make decisions, and to take responsibility for oneself.
[39] [2015] AATA 974, [138].
I have concluded that there is no cogent evidence that the impairments result in a substantially reduced capacity to undertake, or psychosocial functioning in undertaking one or more of the activities listed in section 24(1)(c) of the NDIS Act. I will now state my conclusions upon those activities.
Communication. Dr Atkinson in her report dated 20 February 2017 remarked that the applicant does not need assistance with the activity of communication.
Social interaction. The applicant does not have a substantially reduced capacity to undertake social interaction. Until 2006 the applicant engaged in social interaction as a member of a number of motorcycle clubs, he stated that he attended parties and an annual run which could last for up to five days. Until he was made redundant in 2016 the applicant has had a variety of employment including as a truck driver and a peer support worker. On 14 June 2016 the applicant reported to the Granite Belt Medical Services that his mood was good and he was then going to get a new part-time job. Dr Hill on 9 November 2017 reported on the applicant having participated in the model train display at the Stanthorpe Winter Festival. The applicant himself gave evidence of his involvement in developing the model train club as well as attending at the festival on one day for five hours.
Learning. In considering the capacity of the applicant for learning I have noted that Dr Young in the report dated 22 October 2017 has stated that his performance in repeating memory tasks and his sustained attention was in the average range. The applicant has been taking antidepressant medication for the past 19 years and was able to achieve a Certificate III in Community Services. On 25 September 2016 the applicant reported to Dr McCullough that his concentration was “OK”.
Mobility. Having regard to the impairment of the back condition, it is important to have regard to contemporaneous medical reports. On 10 August 2016 the applicant reported to Dr McCullough that his back pain was then under control. On 23 September 2016 the applicant reported to Dr McCullough that his back pain was good and he was “mobilising well and working on bike”. In considering the capacity of the applicant in mobility, I have had regard to the capacity of the applicant to drive a car. He was able to drive to Brisbane from Stanthorpe to attend medical appointments. On the day when he attended the Tribunal he was able to travel by Train and walk across the road from the station to the Tribunal. In 2017 after he submitted his access request, he was able to drive to a local dam where he was able to swim. The applicant gave evidence of his ability to drive to Victoria by himself over a number of days. The applicant drove the work car when he was employed as a peer support worker between 2013 until he was made redundant in 2016.
Self-care. In considering the capacity of the applicant with regards to self-care, I have had regard to the fact that the wife of the applicant in her access request dated 3 November 2016 nominated the applicant as assisting with her self-care. In giving evidence the applicant confirmed that he was able to assist his wife with her medication, by getting her something to eat and by prompting her to have a bath or shower. When the applicant drove to Victoria by himself he made arrangements for his meals and gave evidence that he was able to take his medication as well as attend to his personal care such as taking showers.
Self-management. I have had regard to the fact that the applicant was able in April and May 2017 to undertake an interstate trip to Victoria by himself and arrange motel accommodation and his meals. Dr Atkinson in her report dated 20 February 2017 remarked that the partner of the applicant managed his finances. However, the applicant informed the Tribunal that when he went on the interstate trip he managed his finances himself. On 25 September 2016 the applicant reported to Dr McCullough that his concentration was “OK”.
SECTION 24(1)(d)
Section 24(1)(d) NDIS Act provides that a person meets the disability requirements if the impairment(s) affect the person’s capacity for social or economic participation. I am unable to make a finding that section 24(1)(d) of the NDIS Act is satisfied. The applicant certainly has capacity for social participation. More recently, his involvement in the model railway club is evidence of his capacity for social participation as was his interstate visit to his relative in Victoria. I consider that the applicant has capacity for economic participation. The applicant has always had gainful employment while he had his back and his mental health impairments. Even after the position of the applicant as a peer support worker was made redundant, the applicant had plans to obtain part-time employment.
SECTION 24(1)(e)
Section 24(1)(e) NDIS Act provides that the person meets the disability requirements if the person is likely to require support under the NDIS for the person’s lifetime.
To assist in the interpretation of section 24(1)(e) NDIS Act, the Operational Guideline again provides guidance as seen in paragraph 8.5 which provides that NDIA is required to consider a prospective participant’s overall circumstances and conclude that the person will require support under NDIS for their lifetime. The purpose of this requirement seems to be to distinguish that subset of people with serious permanent disabilities who are intended to be beneficiaries of funded supports.[40]
[40] Mulligan and NDIA [2015] AATA 974, [153].
NDIA does not need to be satisfied that the support required for the person’s lifetime meet the reasonable and necessary criteria as the criteria are only relevant to whether funding is provided (not whether a person meets the disability requirements).[41]
[41] Operational Guideline – Access to the NDIS at [8.5]; Mulligan and NDIA [2015] AATA 974, [53] & [146]-[150].
Additionally, if an impairment(s) varies in intensity the person may still be assessed as likely to require support under the NDIS for the person’s lifetime, despite the variation.[42]
[42] NDIS Act s 24(2).
After my review of the evidence I am unable to find that the applicant is likely to require support under the NDIS for his lifetime. The fact that the applicant was able to drive to Victoria by himself and make the necessary arrangements for accommodation, self-care and food as well as his involvement in the model railway club is, in my view inconsistent, with the need for such support.
SECTION 25
There is no evidence before me that the applicant meets the early intervention requirements in section 25 of the NDIS Act. The type of case where such evidence is useful is where there is evidence of the potential benefits of early intervention: see YPRM and NDIA [2016] AATA 1023.
CONCLUSION
I found the applicant to be a truthful witness. However, under the scheme of the NDIS Act the applicant does not qualify for support. I wish to acknowledge the assistance of Ms Rowley who provided support for the applicant. In a case such as this, it is difficult for a person to be both an advocate and witness.
DECISION
I affirm the decision under review.
I certify that the preceding 63 (sixty-three) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD
........................[SGD]..................................
Associate
Dated: 26 June 2018
Date of Hearing: 31 January 2018
Date Final Submissions Received: 11 March 2018
The Applicant’s Representative: Ms Lyn Rowley
Solicitors for the Respondent: National Disability Insurance Agency
Counsel for the Respondent: Mr Matthew Hawker
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