Green and National Disability Insurance Agency
[2024] AATA 189
•8 February 2024
Green and National Disability Insurance Agency [2024] AATA 189 (8 February 2024)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2022/4138
Re:Mr Bert Green
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Member T. Bubutievski
Date:08 February 2024
Place:Sydney
The decision under review is affirmed.
.......................[SGD].................................................
Member T. Bubutievski
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – access – COPD – emphysema – bipolar affective disorder – whether substantially reduced functional capacity – reduced mobility due to breathlessness – self-care affected due to shortness of breath – psychosocial impairment of limited impact due to appropriate medical treatment – decision under review affirmed
Legislation
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Becoming a Participant) Rules 2016National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Act 2022
Cases
Mulligan v National Disability Insurance Agency [2015] 233 FCR 201
National Disability Insurance Agency v Foster [2023] FCAFC 11
National Disability Insurance Agency v Davis [2022] FCA 1002
Beezley v Repatriation Commission (2015) 150 ALD 11
Holmes and National Disability Insurance Agency [2017] AATA 2870
Jourifian & National Disability Insurance Agency [2020] AATA 1883
Kilgallin and National Disability Insurance Agency [2017] AATA 186
Madelaine and National Disability Insurance Agency [2020] AATA 4025MHZQ & National Disability Insurance Agency [2019] AATA 810
REASONS FOR DECISION
Member T. Bubutievski
08 February 2024
This application is about whether Mr Bert Green (Mr Green) should be granted access to the National Disability Insurance Scheme (the NDIS). At the time of his application to become a participant, he was 58 years of age. In his first application for access to the NDIS, dated 13 December 2021 Mr Green described his primary disability as bipolar disorder. His treating doctor, Dr Oteng, also noted that Mr Green has severe chronic obstructive pulmonary disease (COPD) and emphysema.[1]
[1] T-Docs at T7, Access Request Form, 13 December 2021.
Following his application to become a participant, the National Disability Insurance Agency (NDIA or the Agency) decided, on 25 February 2022, that Mr Green was ineligible to access the NDIS. He sought internal review of this decision by the Agency and provided a second application for access to the NDIS based on severe chronic airways disease.[2]
[2] T-Docs at T1A, Access Request Form, 4 April 2022.
On 11 April 2022, an Agency decision maker affirmed the decision. The Agency accepted that Mr Green has bipolar affective disorder, severe COPD and emphysema, high blood pressure, high cholesterol and depression. The Agency was not of the view that the impairments caused by these conditions entitle Mr Green to access the NDIS. On the basis of this decision, Mr Green made an application to this Tribunal on 19 May 2022 for external merits review under s 103 of the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act).
Mr Green has a history of hospitalisations for bipolar affective disorder in 2016 and 2021. His treatment occurs in accordance with a community treatment order, which requires regular supervision. Mr Green’s psychiatrist, Dr Dundar, states that Mr Green is compliant with his medication and his regime has been successful in preventing relapse. He indicates that there are no significant impairments associated with Mr Green’s bipolar affective disorder.[3]
[3] Response to targeted questions, Dr Yenal Dundar, 6 October 2022.
Mr Green has developed emphysema, a type of COPD, as a consequence of years of smoking. His treating doctor indicates that he has a severe disease, which had been present for seven years as at April 2022.[4] This condition causes Mr Green to experience shortness of breath on exertion. It is managed with several inhaled medications.[5] Mr Green’s specialist, Dr Philip Masel, states that treatment is keeping Mr Green’s COPD stable but there will nevertheless be a deterioration in his lung capacity each year as a result of ageing.[6]
[4] T-Docs at T1A, Access Request Form, 4 April 2022.
[5] Ibid.
[6] Response to targeted questions, Dr Philip Masel, 18 January 2023.
Mr Green contends that he meets the access criteria under s 21 of the NDIS Act.
To gain access to the NDIS under s 21 of the NDIS Act, Mr Green is required to meet:
(a)the “age” access criteria;
(b)the “residence” access criteria; and
(c)either the “disability” access criteria or the “early intervention” access criteria.
The Agency accepts that Mr Green meets both the “age” and “residence” access criteria but contends that he does not meet the “disability” or “early intervention” access criteria.
The parties to this proceeding consented to the matter being determined without a hearing. The Tribunal is satisfied that the issues for determination in this matter can be adequately determined in the absence of the parties. The Tribunal has proceeded to determine the matter in the absence of a hearing under s 34J of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act).
LEGISLATIVE FRAMEWORK
The NDIS Act was amended in 2022 with the passage of the National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Act 2022 (Amendment Act). The Tribunal had not completed its review of Mr Green’s application by the time the amendments commenced. The original decision which the Agency made regarding Mr Green’s access request, the Agency’s internal review decision, and Mr Green’s application to this Tribunal for independent merits review were made prior to those amendments. The Tribunal’s decision is made subsequent to those amendments.
At the time that the Agency made its internal review decision, a person met the disability requirements under sub-s 24(1)(a) if:
‘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.’
The amendments removed the reference to impairments attributable to a psychiatric condition and replaced them with the phrase ‘one or more impairments to which a psychosocial disability is attributable’. From 1 July 2022, a person meets the disability requirements under sub-s 24(1)(a) if:
‘the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable.’
The transitional provisions at Schedule 2, Item 54 of the National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Act 2022 (Cth) provide that:
(1)The amendments of ss 24 and 25 of the National Disability Insurance Scheme Act 2013 made by this Schedule apply in relation to the following:
(a) an access request made on or after the commencement of this item;
(b) an access request that was pending immediately before that commencement;(c) a revocation under s 30 of that Act made on or after that commencement.
As the decision under review relates to the determination of an access request under s 18 of the NDIS Act, it follows that the term ‘an access request that [is] pending immediately before” the commencement covers a decision under review, as in this review, that “has not been finalised prior to the commencement’. The Revised Explanatory Memorandum[7] provides, in relation to Schedule 3, Item 56 that the amendment would apply ‘if a decision on their request under s 18 of the Act has not been finalised prior to the commencement’.
[7] Revised Explanatory Memorandum, National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021 (Cth).
Section 24 of the NDIS Act provides as follows:
(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 the person has one or more impairments to which a psychosocial disability is attributable; 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 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.
(2) For the purposes of sub-s (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.
The early intervention requirements are set out in s 25 of the Act:
(1)A person meets the early intervention requirementsif:
(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 to which a psychosocial disability is attributable and that are, or are likely to be, permanent; or
(iii)is a child who has developmentaldelay; 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.
(1A) For the purposes of subparagraph (1)(a)(i) or (ii), an impairment or impairments that are episodic or fluctuating may be taken to be permanent despite the episodic or fluctuating nature of the impairments.
(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 subs.
(3)Despite sub-ss (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(a) of the NDIS Act provides that the NDIS rules may prescribe circumstances in which, or criteria to be applied in assessing whether one or more impairments are, or are likely to be, permanent for the purpose of sub-s 24(1)(b), or sub-ss 25(1)(a)(i) or (ii) of the NDIS Act. Such rules have been codified into the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (NDIS Access Rules). The Tribunal is bound to apply the legislation as enacted, including the NDIS Access Rules.
Specifically, rules 5.4 to 5.7 of the NDIS Access Rules explain when a condition can be assessed to be “permanent”:
When is an impairment permanent or likely to be permanent for the disability requirements?
5.4An impairment is, or is likely to be, permanent (see paragraph 5.1(b)) only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.
5.5An impairment may be permanent notwithstanding that the severity of its impact on the functional capacity of the person may fluctuate or there are prospects that the severity of the impact of the impairment on the person's functional capacity, including their psychosocial functioning, may improve.
5.6An impairment may require medical treatment and review before a determination can be made about whether the impairment is permanent or likely to be permanent. The impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated (even though the impairment may continue to be treated and reviewed after this has been demonstrated).
5.7If an impairment is of a degenerative nature, the impairment is, or is likely to be, permanent if medical or other treatment would not, or would be unlikely to, improve the condition.
Section 27(b) of the NDIS Act also provides that the NDIS Access Rules may prescribe circumstances in which, or criteria to be applied in assessing whether one or more impairments result in ‘substantially reduced functional capacity’ of a person to undertake one or more activities for the purpose of sub-s 24(1)(c) of the NDIS Act.
Specifically, rule 5.8 of the NDIS Access Rules elaborates upon when an impairment is taken to have resulted in a ‘substantially reduced functional capacity’ to undertake any one or more of the relevant activities in relation to sub-s 24(1)(c) of the NDIS Act and provides as follows:
5.8An 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.]
The objects of the NDIS Act are set out in s 3. These include giving effect to international treaty obligations; supporting the independence and social and economic participation of people with a disability; and providing reasonable and necessary supports for participants. Section 4 sets out the general principles which guide any actions taken under the NDIS Act. These include that people with a disability have the same right as other members of society to realise their potential and should be supported to participate in, and contribute to, social and economic life to the extent of their ability. They should also have certainty that they will receive the care and support that they need over their lifetime. The Tribunal has considered the objects and general principles of the NDIS Act in making its decision.
The NDIA has issued Operational Guidelines including in relation to the access criteria under the Act (Operational Guidelines). The Operational Guidelines are published on the NDIA’s website.[8] The way they are written has changed significantly over time to make them more user friendly for potential applicants and participants in the NDIS, but the important parts of the content have not been greatly altered. The Tribunal also had regard to the Operational Guidelines in coming to its decision.
[8] ‘Our Guidelines: How we make decisions’, 30 October 2023,
The Tribunal had before it a bundle of documents provided by the Agency in accordance with its obligation under s 37 of the AAT Act (T-Docs). This included both the Agency’s own documents and the documents provided by Mr Green in support of his application. It also had been provided with lists of targeted questions and the response to these questions from:
· Dr Yenal Dundar, psychiatrist, dated 6 October 2022;
· Dr Philip Masel, thoracic physician, dated 18 January 2023; and
· Dr Khalil Ahmed, general practitioner, dated 11 April 2023;
The Respondent had also lodged a letter of instruction to Mr Matthew Wong, independent occupational therapist, dated 6 June 2023 and a report by Mr Wong, dated 12 July 2023; and a Statement of Facts Issues and Contentions (SFIC) dated 7 November 2023 to which it requested the Tribunal have regard to. On 18 December 2023 the Respondent provided a Joint Tender Bundle (JTB).
ISSUES BEFORE THE TRIBUNAL
In making the access decision in Mr Green’s case, the Agency decided that Mr Green did not meet the criteria in ss 24(1)(a) of the NDIS Act, as having a disability attributable to COPD/emphysema and bipolar affective disorder.[9] The Agency did not accept that Mr Green had undertaken all available and appropriate treatment which could remedy his impairments. As a result, his disabilities could not be considered to be permanent for the purpose of sub-s 24(1)(b) of the NDIS Act. Disabilities which are not permanent do not qualify a person for access to the NDIS. The officer was also satisfied that Mr Green did not meet the early intervention requirements.[10]
[9] T-Docs at T8, Access Decision, 25 February 2022.
[10] Ibid.
On internal review, the reviewer decided that Mr Green met the criteria in sub-s 24(1)(a) of the NDIS Act in respect of COPD and bipolar affective disorder and that he has a disability from these conditions. However, the reviewer was not satisfied that his emphysema, high blood pressure, high cholesterol and depression met the criteria.[11]
[11] T-Docs and T1B, Internal Review, 11 April 2022.
Furthermore, Mr Green failed to provide the reviewer with a sufficient treatment history to establish that he had tried all of the available treatments which may ameliorate his conditions. Absent this detailed treatment history, the reviewer could not be satisfied that Mr Green had a permanent disability. Consequently, he could not be found to have a substantial functional impairment in accordance with sub-s 24(1)(c) of the NDIS Act. Nor could he be found to require the assistance of the NDIS for his lifetime (sub-s 24(1)(e)) or that the early intervention requirements were met.
It was common ground between the parties that Mr Green met the age requirements in s 22 and the residence requirements in s 24 at the time that he applied for access to the NDIS. In its SFIC, the NDIA accepted that Mr Green has impairments arising from COPD and bipolar affective disorder (sub-s 24(1)(a)). It also accepted that he has exhausted all treatment options available to him in respect of his COPD and that this can therefore be considered a permanent condition (sub-s 24(1)(b)). It was of the view that any impairments arising as a result of Mr Green’s bipolar affective disorder had been alleviated by appropriate treatment, and that he could not be considered to have any permanent impairment arising from the condition. From the Respondent’s point of view, the only condition for which Mr Green could potentially be granted access to the NDIS is COPD.
In relation to the COPD, the Respondent argues that:
(a)Mr Green does not have a substantially reduced functional capacity in any of the relevant domains – s 24(1)(c);
(b)Mr Green is not likely to require the support of the NDIS for his lifetime – s 24(1)(e);
(c)There is no evidence that there is any form of early intervention treatment which would benefit Mr Green and reduces future needs for support - s 2(1)(b); and
(d)Support for Mr Green’s conditions is not most appropriately provided through the NDIS – s 25(3).
Mr Green contends that his COPD causes him to have a substantially reduced functional capacity in the domain of mobility, and that his ability to undertake household chores, self-care and socialise are affected by his impairments.
For the reasons set out below, the Tribunal finds that the evidence does not establish that Mr Green currently has a substantially reduced functional capacity in at least one of the relevant functional domains. This means that the requirements of s 24 of the NDIS Act for access to the NDIS are not met.
The Tribunal cannot find that Mr Green meets the requirements for entry to the NDIS under the early intervention pathway. He does not meet any of the criteria for access to the NDIS.
FACTS
The medical evidence
Diagnoses
The medical evidence put before the Tribunal about the treatment and history of Mr Green’s medical conditions shows that he has been diagnosed with bipolar affective disorder,[12] adjustment disorder with depressed mood,[13] hypertension.[14] COPD and emphysema.[15]
[12] T-Docs at T1A, Access Request, Dr Ahmed, 4 April 2022.
[13] T-Docs at T5, this shows discharge summary, 15 February 2021.
[14] T-Docs at T1A, Access Request, Dr Ahmed, 4 April 2022.
[15] T-Docs at T6, report of Dr Huynh, thoracic clinic, 12 January 2022.
The primary condition which appears to affect Mr Green’s day-to-day function is the impairment of respiratory function caused by COPD/emphysema. The Tribunal noted that the two diagnoses are referred to interchangeably within the documents. It consulted the Medline Plus medical dictionary on 16 January 2024, which states that; ‘emphysema is a type of COPD. COPD is a group of lung diseases that make it hard to breathe and get worse over time.’[16] The Tribunal further noted that Mr Green’s thoracic specialist refers to his respiratory condition as severe COPD.[17] which is consistent with this definition. The Tribunal was therefore satisfied that the diagnosis of COPD encompasses the full range of Mr Green’s respiratory impairment and is therefore the correct condition to be considered for the purpose of access to the NDIS, rather than the diagnosis of emphysema being considered separately.
[16] MedlinePlus - Health Information from the National Library of Medicine; https:// medlineplus.gov.
[17] Response to targeted questions, Dr Philip Masel, 18 January 2023.
Mr Green’s COPD is managed by a thoracic physician. He uses several different medications. Dr Masel confirms that the condition is progressive, and it is expected that Mr Green’s condition will deteriorate over time, particularly in the next five years.[18] Dr Masel and Dr Ahmed have both indicated that Mr Green is to undertake a six-minute walk test to assess his eligibility for home oxygen and portable oxygen cylinders, with a view to increasing his mobility. There is no evidence before the Tribunal as to whether this test has been undertaken and the outcome of said test. Both Mr Green and Dr Ahmed mention lung transplantation as a possible treatment. It is not referred to by Dr Masel and there is no indication that this treatment is being actively pursued.[19]
[18] Ibid.
[19] Response to targeted questions, Mr Green, 6 September 2022; response to targeted questions Dr Ahmed, 11 April 2023.
Mr Green has also been diagnosed with bipolar affective disorder. The evidence shows two periods of hospitalisation in 2016 and 2021 because of bipolar affective disorder. Mr Green’s psychiatrist, Dr Dundar, states that Mr Green is treated with olanzapine and sodium valproate. He states that ‘these treatments have been successful to date as Mr Green has not had any relapse of his illness since his discharge from hospital in October 2021’.[20] He states that Mr Green is currently treated under the Treatment Authority (community category) and is compliant with his medications. Dr Dundar confirms that Mr Green requires long-term treatment, with bipolar affective disorder being a long-standing mental illness which is episodic in nature.[21]
[20] Response to targeted questions, Dr Yenal Dundar, 6 October 2022.
[21] Ibid.
There has been limited evidence provided about the nature of, and the treatment provided for, depression to Mr Green, separate to the management of his bipolar affective disorder. It is unclear whether depression is a manifestation of the bipolar affective disorder or a separate condition.
Mr Green takes medication for hypertension. He is also reported to have high cholesterol. There has been no evidence provided indicating that these conditions have any functional impact on Mr Green. On the evidence before it, the Tribunal cannot be satisfied that Mr Green’s hypertension and high cholesterol cause him any functional impairment.
CONSIDERATION
The evidence before the Tribunal indicates that Mr Green has COPD, bipolar affective disorder, depression, hypertension and high cholesterol.
While there is no formal onus of proof upon Mr Green, as the Full Court explained in Beezley v Repatriation Commission,[22] Mr Green must put forward evidence and information sufficient to satisfy the Tribunal that the relevant statutory requirements in s 24 or s 25 are met. If the Tribunal is not so satisfied, Mr Green cannot succeed.[23]
Are any of Mr Green’s impairments ’permanent’ or likely to be ‘permanent’ for the purpose of s 24 of the Act?
[22] (2015) 150 ALD 11,[68].
[23] HPSC and National Disability Insurance Agency [2021] AATA 727, [85].
Rule 5.4 outlines that an impairment is only permanent, or likely to be permanent if there are ‘no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.’
The word 'remedy' is understood to mean something approaching a removal or cure of the impairment.[24] In this case, the Tribunal has no evidence to suggest that Mr Green’s high cholesterol and high blood pressure have not been responsive to medical treatment such that they are permanent impairments. There is also no evidence to indicate that his depression can be considered to be a permanent impairment separate to his bipolar affective disorder.
[24] National Disability Insurance Agency v Davis [2022] FCA 1002 ('Davis'), [136].
The evidence indicates that Mr Green has been compliant with his treatment regime in respect of his bipolar affective disorder and this treatment regime has stabilised his condition. The Tribunal accepts the evidence of Dr Dundar that this condition is a long-standing mental illness which is episodic in nature. The Respondent has proposed that Mr Green’s ongoing treatment regime has remedied this condition and it therefore cannot be a permanent impairment. The Tribunal disagrees. While Mr Green’s bipolar affective disorder is controlled with his current treatment regime, it has not been remedied. The condition has not been removed or cured; it is simply being well-managed. This management impacts on the degree of functional impairment that Mr Green experiences from the condition. At the time of answering the Agency’s questions, Dr Dundar stated that there is no current indication for additional medication or medical treatment. He states:
‘currently, Mr [Green] is not presenting with any significant impairments associated with his illness affecting his functional capacity in relation to his mobility, communication, social interaction, self-care, and self-management. However, non-adherence is a common occurrence in patients with bipolar affective disorder and is often closely linked to relapse and rehospitalisation.’[25]
[25] Response to targeted questions, Dr Yenal Dundar, 6 October 2022.
Dr Dundar states that although Mr Green presently has no areas of substantially reduced function, he does still have some difficulty coping with feelings and emotions in social settings and difficulty organising tasks and remembering appointments and important dates. He notes that Mr Green particularly has difficulty making wise decisions around managing his physical health.[26]
[26] Ibid.
The Tribunal is satisfied that Mr Green does still have mild impairments as a consequence of his bipolar affective disorder. The Tribunal finds that this amounts to a significant reduction in the functional impairments associated with Mr Green’s bipolar affective disorder but cannot be equated with a remedy. The Tribunal therefore finds that Mr Green’s bipolar affective disorder is a permanent condition for the purpose of sub-s 24(1)(b) of the NDIS Act.
The Respondent has acknowledged that Mr Green’s COPD is a permanent impairment for the purpose of sub-s 24(1)(b) of the NDIS Act. The Tribunal agrees. The evidence of Dr Masel and Dr Ahmed is that this is a permanent medical condition which is expected to continue to deteriorate as Mr Green ages. Mr Green is compliant with his medical treatment and has engaged in all appropriate therapies offered to him, although the evidence before the Tribunal does not clarify whether he has been found suitable for oxygen therapy and, if so, if it has improved his functional capacity. Nonetheless, the Tribunal is satisfied that the evidence establishes that Mr Green’s COPD cannot be ameliorated by medical treatment and that he has a residual impairment which causes him to experience breathlessness on exertion and to have limited stamina.
The Tribunal finds that Mr Green has the permanent impairments of COPD and bipolar affective disorder for the purpose of sub-s 24(1)(b) of the Act.
Do any of Mr Green’s impairments ‘results in substantially reduced functional capacity to undertake one or more’ of the activities listed in ss 24(1)(c) of the Act?
The next question the Tribunal must answer is whether Mr Green’s impairments result in substantially reduced functional capacity to undertake one or more of the activities listed in sub-s 24(1)(c) of the Act. The case law has established several important principles about how to undertake that assessment. In Mulligan v National Disability Insurance Agency (Mulligan),[27] it was found that what is being assessed is what Mr Green can and cannot do, not what he actually does. It is sufficient for an Applicant to have substantially reduced functional capacity in relation to just one activity.[28] The relevant test is not how much better Mr Green’s life would be if he had access to NDIS supports, although such access would be likely to improve his quality of life.[29] His functional capacity should not be characterised only by what he is able to do on a bad day, but by what he can do overall, taking account of both the bad days and the days that are better.[30]
[27] Mulligan v National Disability Insurance Agency (2015) 233 FCR 201, [56].
[28] Ibid.
[29] Madelaine v National Disability Insurance Agency [2020] AATA 4025, [72]-[73].
[30] Ibid, [76].
The Legal Test
For the Tribunal to be satisfied that Mr Green meets the disability requirements for access to the NDIS, the Tribunal must be able to find that Mr Green has substantially impaired function in at least one of the six domains as set out in s 24 of the Act. The test is not that he might have a substantial functional impairment or that he is likely to have such an impairment. The test is that he does have such an impairment and that impairment is caused by his disability. Consistent with the court in Mulligan, the Tribunal must reach a level of positive satisfaction such that the requirements of the NDIS Act are established. To reach that level of positive satisfaction, the Tribunal must be satisfied that the evidence supports a finding that Mr Green has a substantial functional impairment.
Bipolar affective disorder
The evidence of Dr Dundar is that Mr Green’s bipolar affective disorder is well-controlled on his current therapeutic regime and monitoring. No other treatments or interventions are clinically indicated at the present time. As noted at paragraph [43], Dr Dundar’s opinion is that Mr Green is not presenting with any significant functional impairments in the areas of mobility, communication, social interaction, self-care and self-management. He notes that Mr Green has some impairment in the area of social interaction as he has limited social skills in coping with feelings and emotions in a social context. He states that Mr Green can learn new things but has difficulty recalling information, which impacts the activity of learning. In terms of self-management, Dr Dundar states that Mr Green has difficulty organising tasks and remembering appointments and important dates. He also has difficulty making wise decisions around his physical health.[31]
[31] Response to targeted questions, Dr Yenal Dundar, 6 October 2022.
The Tribunal finds that Mr Green has some impairments associated with his bipolar affective disorder, but these impairments are not sufficiently severe to amount to a substantial functional impairment in any of the relevant activities. The requirements of sub-s 24(1)(c) are not met in relation to bipolar affective disorder.
COPD
This condition appears to be the one which causes Mr Green the most impairment of functionality. The Tribunal considered the impact of Mr Green’s COPD in each of the functional domains.
Communication
Dr Masel states that Mr Green can communicate with people, but speaking is limited by breathlessness.[32] There is no indication that Mr Green has any impairment of his communication skills. The Operational Guidelines set out what communication is for the purpose of the Act:[33]
• Communicating – how you speak, write, or use sign language and gestures, to express yourself compared to other people your age. We also look at how well you understand people, and how others understand you.
[32] Response to targeted questions, Dr Philip Masel, 18 January 2023.
[33] National Disability Insurance Agency, Our Guidelines: Applying to the NDIS, (Web Page) <>
If a person is able to do all these things, it is unlikely that they have a substantial functional impairment in communication.[34] The Tribunal is satisfied that Mr Green’s COPD does cause him to experience breathlessness when speaking, but that he otherwise has no impairment in communication. The Tribunal finds that breathlessness from COPD limits Mr Green’s ability to speak, but there is no other indication that he has an impairment in the activity of communication. The Tribunal cannot conclude that Mr Green has a substantial functional impairment in the domain of communication. The requirements of sub-s 24(1)(c)(i) of the Act are not satisfied.
[34] HPSC and National Disability Insurance Agency [2021] AATA 727, [50].
Social interaction
Mr Green does not frequently interact with people socially due to his difficulties mobilising, but when he does so he appears to be able to do so appropriately. None of the medical evidence indicates that he has an impairment in this area. The Operational Guidelines focus on whether or not a person has the skills to engage in social interaction and how they behave when they do so, rather than any opportunity for social interaction which may be present in their lives, or any barriers which may make accessing social interaction more difficult for the person.[35]
[35] National Disability Insurance Agency, Our Guidelines: Applying to the NDIS, (Web Page) <>
In Kilgallin and National Disability Insurance Agency,[36] the Tribunal was faced with the circumstances of an Applicant who had significantly reduced their social interactions as a result of their disability. In that case, the Tribunal found that the Applicant may well have reduced psychosocial functioning in undertaking such activities, but the skills required for social interaction were not significantly affected. This accords with Mr Green’s situation. The Tribunal cannot find Mr Green has a substantially reduced functional capacity to undertake the activity of social interaction outlined in sub-s 24(1)(c)(ii).
[36] [2017] AATA 186.
Learning
Mr Green’s learning has not been formally assessed. Dr Masel indicates that that it is likely to be affected by hypoxia. None of the other medical evidence indicates a specific problem in this area. The independent occupational therapist’s functional assessment notes that Mr Green demonstrated appropriate attention, memory recall and problem-solving skills.[37] The Tribunal cannot find Mr Green has a substantially reduced functional capacity to undertake the activity of learning outlined in sub-s 24(1)(c)(iii).
[37] Report of Mr Matthew Wong, 12 July 2023.
Mobility
The Operational Guideline provides a definition of mobility:
Mobility, or moving around – how easily you move around your home and community, and how you get in and out of bed or a chair. We consider how you get out and about and use your arms or legs.[38]
The concept of mobility in the NDIS Act refers to how a person moves around their home and uses their arms and legs to undertake the ordinary activities of daily living. It also refers to what a person physically can do, as opposed to what they actually do. Doing activities slower than a normal person, or in a modified way, does not mean that a person has a significantly reduced functional capacity.
[38] Does your impairment substantially reduce your functional capacity? | NDIS, 17 May 2023.
In Madelaine and National Disability Insurance Agency,[39] the Tribunal considered the threshold for functional capacity in mobility, and decided that a person has functional capacity in mobility if they can “move about their home, get in and out of the bed or chair, and mobilise in the community.”[40] It acknowledged that the threshold is a modest one, which only involves short distances around a person’s home and around community facilities once they are transported there. Further, it came to the view that “significantly, the concept does not include being able to move around in the community for the purpose of accessing services, such as shops, the bus stop or the local park.”[41]
[39] [2020] AATA 4025.
[40] Ibid [104] (DP Humphries).
[41] Ibid [105] (DP Humphries).
In Jourifian & National Disability Insurance Agency,[42] the Tribunal found that the applicant did not have a substantially reduced functional capacity with mobility, having regard to evidence that he was able to walk 700 metres to 800 metres daily without using a walking stick, driving for 10 minutes, travelling alone by bus, assisting his wife with grocery shopping and carrying up to 3 kilograms. In MHZQ & National Disability Insurance Agency,[43] the Tribunal accepted that the applicant’s bilateral knee condition caused significant difficulties in her capacity to mobilise. However, the Tribunal was not satisfied that the applicant’s bilateral knee condition resulted in a substantial reduction in functional capacity to mobilise, as she did not use mobility aids and she had the capacity to walk without aids for 50 metres if she were to lose further weight. The Tribunal noted the decision in Holmes & National Disability Insurance Agency,[44] which found that the capacity to walk 50 metres, then needing to rest, then continuing to walk after a break, does “not amount to a substantially reduced capacity in… mobility.”
[42] [2020] AATA 1883.
[43] [2019] AATA 810.
[44] [2017] AATA 2750 [76] (M McCallum).
The Operational Guideline does not specify ability to walk a particular distance as a definition of the level of mobility. However, as Deputy President Humphries pointed out in Madelaine & National Disability Insurance Agency:[45]
… It seems reasonable to suggest that a person who can travel 50 metres by herself has the capacity to do the things referred to in the Guideline. That view would be consistent with the decisions of the Tribunal in Holmes and MHZQ…
[45] [2020] AATA 4025, [106] (DP Humphries).
Dr Masel provides the following opinion in relation to Mr Green’s mobility:
‘… Because his lung capacity is classified as very severe, that is FEV1 =31% of predicted, Bert is very limited in his activities. He can only walk around 20 metres on the flat ground before having to stop. He cannot manage hills or even moderate exertion because of his severe impairment of lung capacity….
… as mentioned before he gets breathless with very minimal exertion because of his severe impairment of lung capacity. He would have difficulty getting out of a bed or a chair and would struggle leaving the home as he can only walk short distances before having to stop. He would be very restricted in moving around the community. He would also have difficulty performing tasks such as hanging up the washing because of his impaired lung capacity….’[46]
[46] Response to targeted questions, Dr Philip Masel, 18 January 2023.
Dr Masel states that Mr Green has a severe impairment of lung capacity and can only walk for 20 metres without needing to stop. He cannot manage hills or any exertion. Dr Masel’s evidence indicates that Mr Green has difficulty mobilising due to breathlessness. It would likely take him much longer to perform mobility related tasks than it would take a person without the disability. It is also probable that Mr Green would be unable to persist at tasks for as long as a person without a disability before becoming fatigued. He has a limited capacity to walk on flat ground and an inability to walk on steeper terrain. Dr Masel notes that Mr Green is to undertake a six-minute walk test to determine his eligibility for home oxygen therapy and portable oxygen cylinders with a view to improving Mr Green’s mobility. The Tribunal has no evidence before it to establish whether this has occurred and the results of such a test.
A discharge summary of 15 February 2021 states that, at that time, Mr Green was only able to mobilise for 10 metres without shortness of breath, but that he also had community-acquired pneumonia.[47] Dr Huynh stated that, as at 12 January 2022, Mr Green was able to mobilise up to 15 steps. His medication was changed following this review.[48] Dr Oteng states that Mr Green’s mobility is limited to 80-100 metres and is likely to deteriorate.[49] Mr Green’s own statement says that he can walk for 80-100 metres.[50] Dr Dundar states that Mr Green has limited mobility and can only walk short distances but has no limitations in moving around the house, although he tends to become exhausted quickly.[51] Dr Ahmed states that Mr Green has shortness of breath after walking a few metres.[52]
[47] T-Docs at T5, Discharge Summary, 15 February 2021.
[48] T-Docs at T6, report of Dr Karen Huynh, 12 January 2022.
[49] T-Docs at t7, Access Request Form, 28 January 2022.
[50] JTB at S6, Statement of Lived Experience, 6 September 2022.
[51] Response to targeted questions, Dr Yenal Dundar, 6 October 2022.
[52] Response to targeted questions, Dr Khalil Ahmed, 11 April 2023.
The independent occupational therapist, Mr Wong, states that Mr Green has a reduced physical capacity in activities which require standing and walking and also has reduced stamina due to shortness of breath. He notes that Mr Green has a significantly reduced tolerance for activity and exertion; a reduced capacity to ambulate and stand; and a reduced capacity for the activities of daily living. He states that Mr Green can walk independently, without aids. He can walk for 30 metres before needing to stop due to shortness of breath. Upon resting he can walk again for a total of 60 to 80 metres. He can independently descend 10 stairs and was observed to walk 30 metres to his letterbox and back. Mr Wong provides the opinion that Mr Green would need aids and regular breaks to mobilise further. He suggests that he may benefit from a four wheeled walker with seat.[53]
[53] Report of Mr Matthew Wong, 12 July 2023.
Mr Wong noted that it took two minutes for Mr Green’s breathing to return to normal after walking 30 metres. He was found to be independent in transfers but reported that he has difficulty getting in and out of the car when he is breathless and fatigued. Mr Green does his shopping himself and uses the trolley to lean on. He was found to have a full range of movement. Mr Wong records that Mr Green advised that he showers every three days due to a lack of motivation and fatigue. Mr Wong noted some restriction in all self-care tasks and that Mr Green could be assisted by energy conservation strategies and aids for domestic and self-care activities.[54]
[54] Ibid.
The evidence before the Tribunal indicates that Mr Green’s mobility is affected by shortness of breath. He does not use any walking aids, although a four wheeled walker may be beneficial. Mr Green does not have any regular assistance from another person for mobility. He is able to mobilise independently around his home and around the shops with the assistance of a trolley to lean on. He appears to be able to walk for around 80 metres in total, provided he can take a rest break. He can walk up and down a small number of stairs. He was observed by Mr Wong to be independent in transfers although he finds them more difficult when he is fatigued. The prognosis is for a deterioration in his condition, although his mobility may be able to be improved with oxygen therapy.
Mr Green mobilises with difficulty. His shortness of breath affects his ability to walk and complete tasks which require any level of exertion such as household chores and self-care activities. He requires regular breaks and has a limited capacity for activity. He would no doubt benefit from assistance with activities like cleaning and mowing his lawn. The Tribunal is satisfied that Mr Green does have a significant impairment in the activity of mobility, but it could not find that he has a substantial functional impairment in this activity. Mr Green can mobilise independently around his home and in the community for short distances. He can transfer independently. He does not currently use any aids or assistive technology. His walking tolerance is limited to less than 100 metres. The Tribunal considers that Mr Green’s functional capacity is similar to that in Madeleine. He can participate in the activity of mobility without the use of aids or the assistance of another person. The Tribunal considered Rule 5.8 and sub-s 24(1)(c) of the Act and decided that Mr Green could not yet be considered to have a substantial functional impairment.
The Tribunal cannot find that Mr Green currently has a substantially reduced functional capacity to undertake the activity of mobility outlined in sub-s 24(1)(c)(iv). Having said that, the Tribunal notes Mr Green’s deteriorating prognosis, especially in the next five years. It is entirely possible that he will meet this criteria at some time in the future but before he reaches the age of 65. It may be appropriate for him to re-apply for access to the NDIS at that time.
Self-care
The evidence indicates that Mr Green has difficulties with self-care due to his shortness of breath. He only showers every three days. Dr Masel states that Mr Green’s ability to self-care is affected by his COPD as his poor lung capacity affects his ability to do things like shave and shower.[55] Mr Wong states that Mr Green is independent in dressing, showering, toileting and eating although he has some difficulty putting his pants on while standing; urinating without leaning on the wall and eating and drinking if his hands are shaking from his disability or medication.[56] The Tribunal could not find that the difficulties Mr Green has with self-care are so severe that they would amount to a substantially reduced functional capacity. The Tribunal cannot find Mr Green currently has a substantially reduced functional capacity to undertake the activity of self-care outlined in sub-s 24(1)(c)(v).
[55] Response to targeted questions, Dr Philip Masel, 18 January 2023.
[56] Report of Mr Matthew Wong, 12 July 2023.
Self-management
Mr Wong notes that Mr Green manages his own money and shopping. He manages his medication with the assistance of a Webster Pack. He uses his phone and placing letters on his fridge to help remind him of appointments. He has difficulty with household tasks due to shortness of breath but has two sons living at home who will occasionally assist him.[57]
[57] Ibid
The available evidence indicates that Mr Green has some difficulty with self-management, but that he utilises common strategies such as reminders on his phone and placing his letters in an obvious place to assist him. He also has difficulties with household tasks because of his reduced stamina from COPD. He tends to avoid household activities because they cause him to experience shortness of breath. The Tribunal accepts that Mr Green has some impairment in the area of self-management, but could not find that the evidence before it is sufficient to establish that he has a substantial functional impairment as required under sub-s 24(1)(c)(vi) of the NDIS Act.
The test set out in Mulligan establishes that the Tribunal must be positively satisfied that the requirements of the NDIS Act are met in relation to an impairment before access to the scheme can be granted. The Tribunal has not been able to meet the requisite level of positive satisfaction in relation to Mr Green’s impairments caused by bipolar affective disorder and COPD. As such, it cannot be satisfied that Mr Green meets the requirements for access to the scheme under sub-s 24(1)(c) of the NDIS Act.
Section 25 – Early Intervention Requirements
Section 25 of the Act sets out the requirements for access to the NDIS under the early intervention criteria. The Tribunal has found that Mr Green has two permanent impairments. He may be granted access to the NDIS if the Tribunal is satisfied that the provision of early intervention supports may reduce Mr Green’s need for future supports. There is no evidence of this nature before the Tribunal. The evidence before the Tribunal is that Mr Green’s condition is expected to deteriorate, and he will likely require more support over the course of his lifetime. There does not appear to be any treatment regime or support available which could change this. Mr Green does not fulfil the early intervention requirements to enable him to become a participant of the NDIS.
CONCLUSION
The Tribunal is satisfied that Mr Green does not meet any of the requirements to access the NDIS. The Agency’s decision on internal review dated 11 April 2022 was correct.
DECISION
The decision under review is affirmed.
I certify that the preceding 76 (seventy-six) paragraphs are a true copy of the reasons for the decision herein of Member T Bubutievski
............................[SGD]............................................
Associate
Dated: 08 February 2024
Date(s) of hearing:
Date of final submissions:
18 December 2023
11 December 2023
Advocate for the Applicant: Mr Timothy Fisher Solicitors for the Respondent: Mr Peter Crethary, of HWL Ebsworth Lawyers for the National Disability Insurance Agency
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