Goodwin and National Disability Insurance Agency (NDIS) - [2025] ARTA 2

Goodwin and National Disability Insurance Agency (NDIS) [2025] ARTA 2 (3 January 2025)
Applicant/s:  David Goodwin
Respondent:  National Disability Insurance Agency
Tribunal Number:                2022/8153

Tribunal:Deputy President K Dordevic
Place:Sydney
Date:3 January 2025

Decision:The Tribunal affirms the decision under review pursuant to subsection 105(a) of the Administrative Review Tribunal Act 2024 (Cth).

...........................[SGD].............................................
Deputy President K Dordevic
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – access to scheme – reviewable decision of Chief Executive Officer – becoming a participant – age and residence requirements met – permanence – substantially reduced functional capacity – weight attributable to medical evidence – disability and early intervention requirements not met – decision affirmed
Legislation
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
Social Security Act 1991 (Cth)
Cases
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
National Disability Insurance Agency v Foster [2023] FCAFC 11
Mulligan v National Disability Insurance Agency [2015] FCA 544
National Disability Insurance Agency v Davis [2022] FCA 1002
Madelaine and National Disability Insurance Agency [2020] AATA 4025
Timofticiuc and National Disability Insurance Agency [2021] AATA 3015
Rooney and National Disability Insurance Agency [2021] AATA 3523
Secondary Materials
National Disability Insurance Scheme (Becoming a Participant) Rules 2016
Statement of Reasons
BACKGROUND

This issue requiring determination by this Tribunal is whether Mr Goodwin may become a participant in the National Disability Insurance Scheme (the NDIS or the scheme). To become a participant, Mr Goodwin must meet the access criteria as prescribed in section 21 of the National Disability Insurance Scheme Act 2013 (the Act).
Mr Goodwin sought access to the scheme on 27 July 2022. On 8 August 2022 a delegate of the Chief Executive Officer (the CEO) of the NDIS determined that Mr Goodwin did not meet the access criteria.[1] Mr Goodwin lodged a timely review to that decision, which was confirmed on 31 August 2022 by a different delegate of the CEO.
[1] T1A, folios 10 to 14.
On 4 October 2022 Mr Goodwin made an application to the NDIS Division of the Administrative Appeals Tribunal (the AAT) for an independent review of the decision. From 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). This decision and statement of reasons is made by the Tribunal.[2]
[2] Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.
The Tribunal held a video hearing by Microsoft Teams on 6 and 7 November 2024. Mr Goodwin was represented by Mr Cameron Mason, an Advocate from the Rights Information and Advocacy Centre. The Respondent,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Goodwin and National Disability Insurance Agency (NDIS)

Details

AGLC: Goodwin and National Disability Insurance Agency (NDIS) [2025] ARTA 2
Case: [2025] ARTA 2
Decision Date: 3 January 2025

CaseChat Overview and Summary

In the matter of Goodwin and National Disability Insurance Agency (NDIS), the Federal Circuit and Family Court of Australia was called upon to review a decision made by the Chief Executive Officer of the NDIS regarding Mr Goodwin's eligibility for NDIS participation. Mr Goodwin sought to be recognised as having a disability under the National Disability Insurance Scheme (NDIS) Act 2013 (Cth). The core legal issues revolved around whether Mr Goodwin's impairments were permanent and whether they substantially reduced his functional capacity in any of the six domains of activity specified under the Act.

The court examined the evidence provided by Mr Goodwin, including medical reports and testimonies, to determine if his impairments met the criteria for eligibility under the NDIS. Specifically, the court had to assess if Mr Goodwin's functional capacity was substantially reduced due to his impairments and if these impairments were permanent. The decision-maker's assessment of Mr Goodwin's ability to perform daily activities and his medical history was critically evaluated. The court noted that Mr Goodwin had significant physical impairments, but these alone did not necessarily lead to a finding of substantial reduction in functional capacity under the Act.

Upon reviewing the evidence and applying the relevant legal criteria, the court found that Mr Goodwin did not meet the disability requirements as stipulated in section 24 of the Act. The impairments, while severe, did not result in a substantial reduction of functional capacity in any of the six domains of activity. Consequently, the decision to deny Mr Goodwin's application for NDIS participation was affirmed. The court concluded that the decision-maker correctly applied the law and the evidence, thereby upholding the decision under review.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

In Mulligan[21] Mortimer J explained that Access Rule 5.8 defines when a person must be found to have a substantially reduced functional capacity and is a ‘deeming provision’[22] of this Rule; that is, that Rule 5.8 operates by reference to each of the activities set down in each of the six subparagraphs 24(1)(c)(i) to (vi). The decision-maker must make a factual assessment of each of the outcomes or effects of the person’s impairments in each of the six activities. However, her Honour made clear that this is the first part of the statutory task required by paragraph 24(1)(c) of the Act. The decision maker must then proceed to consider whether, regardless of Rule 5.8, a person’s functional capacity is substantially reduced in any of the six domains of activity.[23] [21] Mulligan at [66]-[67].[22] Mulligan at [77].[23] Ibid.MR GOODWIN’S EVIDENCE Mr Goodwin’s evidence is summarised as follows. He has been in receipt of disability support pension since 1995. Since that time he has gone backwards; his conditions are getting progressively worse. He initially had three back discs out, now there are five. These are putting pressure on his spine and his doctor has told him it will only get worse and this is stressing him out. Mr Goodwin reported a history of falls at his home. At the recommendation of Ms Gemma Smith, occupational therapist, he organised a fall detector. He thinks he most recently used it in December 2023 or January 2024 when he experienced chest pain. He has never used the fall detector for a fall. Mr Goodwin explained that he used to be able to bend down and pick things up but he can no longer do so. He has about a dozen ‘reachers’ (sticks that assist him in picking up items, particularly from low heights) around his unit to allow him to pick up things. He has a tendency to break them when he gets frustrated, so has bought a few of them for between $2.50 to $10 each. He uses a walking stick when mobilising around the home. He prefers not to use a walking aid when he goes shopping but does carry a portable one with him. Usually he uses a shopping trolley to assist him mobilising at the shops. He must stop at short intervals when at the shops given his pain. He will also sit regularly and Ms Millard will continue shopping without him. He described it as “break, stop, break, stop” and it will usually take about four hours to complete his shopping, including travel and the time it takes him to get in and out of the car. Mr Goodwin reported that whilst he can dress independently, it can take him up to 45 minutes just to dress. He keeps his clothing simple; he wears t-shirts and tracksuit pants. Mr Goodwin reported that he uses a shoehorn not just to put on his shoes, but to also assist in dressing, including his underwear and pants. He also uses a sock slide. The shoehorn and sock slide were given to him, so he could not comment on their cost. Mr Goodwin reported that he can manage most aspects of grooming, including dying his beard in the Richmond Football Club colours and shaving his head with a hand razor. After cutting his toe he now visits a podiatrist every 10 weeks.

Decision

Reasons for decision

Mr Goodwin does not meet the disability requirements set down in section 24 of the Act, nor does he meet the early intervention requirements in section 25 of the Act. Therefore, the decision under review is correct and so is affirmed. DECISION The Tribunal affirms the decision under review pursuant to subsection 105(a) of the Administrative Review Tribunal Act 2024 (Cth).

Ratio Decidendi

Legal Principle Established

This approach was endorsed by the Full Court in Foster.[7]CONSIDERATIONDisability requirements[7] National Disability Insurance Agency v Foster [2023] FCAFC 11 (Foster) at [64].Does Mr Goodwin have a disability attributable to an impairment? The Respondent does not dispute that Mr Goodwin suffers from physical impairments as a result of his chronic pain and osteoarthritis.[8] These findings are supported by the radiology and medical reports in evidence from as early as October 2005. [8] Most recently conceded at page 3 in the Respondent’s Statement of Facts, Issues and Contentions (RSFIC) dated 7 October 2024. Mr Goodwin’s other medical conditions include ischaemic heart disease, diabetes, chronic anxiety and depression.[9] It is understood that Mr Goodwin is not relying on these conditions for the purposes of paragraph 24(1)(a) of the Act.[10][9] T2, folio 42, T11, folio 67.[10] C3, folio 377. Specialist review undertaken by Mr Nathan Donovan, orthopaedic surgeon, confirmed the diagnosis of diffuse idiopathic skeletal hyperostosis and spine bridging osteophytes of the cervical spine and lumbar spondylosis with multilevel degenerative change, canal stenosis and foraminal stenosis. Mr Donovan also confirmed bilateral hip, ankle, subtalar, midfoot and first MTRP joint arthritis in addition to right knee arthritis with lateral compartment full thickness cartilage loss and clawing of lesser toes.[11] [11] C6, folio 399. Mr Donovan stated that Mr Goodwin’s physical impairments result in grossly restricted movement, particularly of the cervical spine with stiff residual movement. Mr Goodwin is unable to stand for prolonged periods due to pain, and is unable to bend down, twist to reach or look behind himself. Mr Donovan also noted that Mr Goodwin has marked reduction in hip flexion, adduction and rotation, which presents difficulty in dressing including his shoes and socks.[12][12] C6, folio 400. Mr Goodwin has long-standing chronic lower back pain due to disc prolapse and spinal stenosis. He also suffers from chronic bilateral knee and ankle pain due to osteoarthritis. I am satisfied that Mr Goodwin has a disability that is attributable to a physical impairment, so satisfying paragraph 24(1)(a) of the Act.Are Mr Goodwin’s impairments permanent? As Mortimer J in Davis explained, it is the impairment, and not the medical condition, that must be permanent:The critical point is that “permanent” is used as an adjective in s 24(1) to the noun “impairment” (or in the plural, “impairments”). The focus of the text, consistently with the purposes of the scheme, is on whether the impairments experienced by individuals (rather than the cause of the impairments or the specific diagnoses which might be applied to a medical condition) have an enduring quality so as to fit within the conceptual emphasis of the scheme.[13][13] National Disability Insurance Agency v Davis [2022] FCA 1002 (Davis), [86]. Therefore, the Tribunal must be satisfied that there are no treatments that may remedy the impairment. Mortimer J went on to explain that ‘remedy’ means something approaching a removal or cure of the impairment.[14][14] Davis, [136]-[137].