Gretton and National Disability Insurance Agency

[2020] AATA 4126

Gretton and National Disability Insurance Agency [2020] AATA 4126 (14 October 2020)

Division:GENERAL DIVISION

File Number:          2019/2270

Re:Thomas Gretton

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Senior Member C. J. Furnell

Date:14 October 2020

Place:Melbourne

The Tribunal affirms the decision under review.

Senior Member C. J. Furnell

Catchwords

NATIONAL DISABILITY INSURANCE SCHEME – access to scheme – disability arising from impairments resulting from multiple sclerosis – disability requirements – impairments did not result in substantially reduced capacity to undertake one or more specified activities – social interaction – learning – not likely to require support for lifetime – early intervention requirements – early intervention not likely to reduce future needs for supports – decision affirmed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)

Social Security Act 1991 (Cth)

Cases

McGarrigle v National Disability Insurance Agency [2017] FCA 308

Mulligan v National Disability Insurance Agency [2015] FCA 544

Secondary Materials

United Nations Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, A/RES/61/106 (entered into force 3 May 2008)

REASONS FOR DECISION

Senior Member C. J. Furnell

14 October 2020

1. Mr Gretton made a request under the National Disability Insurance Scheme Act 2013 (the Act) to become a participant in the National Disability Insurance Scheme launch (NDIS).[1]

   [1] T3A.

2. He would have become such a participant had the chief executive officer of the National Disability Insurance Scheme Launch Transition Agency (NDIA) decided that Mr Gretton met what is characterised in the Act as the access criteria.[2]

   [2] Act, s 28.

3. The decision of the chief executive officer was, however, that Mr Gretton did not meet the access criteria.[3] That decision was confirmed on internal review.[4]

   [3] Act, s 20(a); Decision of 9 August 2018 – T7.

   [4] Act, s 100(6); Decision of 3 April 2019 – T2.

4. Mr Gretton has requested that the Tribunal review that decision of the reviewer.[5]

   [5] Act, s 103; Application of 16 April 2019 – T1.

5. In the conduct of that review, the Tribunal steps into the shoes of the decision maker. Hence, the question in issue in this proceeding is whether the original decision that Mr Gretton does not meet the access criteria ought be confirmed, varied or set aside and substituted.

   MATERIAL BEFORE TRIBUNAL

6. In considering the question in issue I had before me:

   ·“T documents” (being the documents lodged with the Tribunal under s 37 of the Administrative Appeals Tribunal Act 1975);

   ·a statement of issues of the Respondent dated 18 June 2019;

   ·an Occupational Therapy report of Ms Hocking dated 22 July 2019;

   ·a letter of 27 October 2019 from Mr Gretton;

   ·a further statement of issues of the Respondent dated 8 April 2020;

   ·a statement of facts, issues and contentions of the Respondent dated 6 July 2020; and

   ·a letter of 13 February 2020 from Associate Professor Butler of Monash Health’s neurology department.

7. In addition, at the hearing of this proceeding, both Mr Gretton and Ms Hocking gave oral evidence.

   ACCESS CRITERIA

8. Mr Gretton will meet the access criteria if he meets:

   ·the age requirements set out in s 22 of the Act;

   ·the residence requirements set out in s 23 of the Act; and

   ·either the disability requirements set out in s 24 of the Act or the early intervention requirements set out in s 25 of the Act.

9. As a person aged under 65 years when he made his request to become a participant in the NDIS, Mr Gretton meets the age requirements set out in s 22 of the Act.[6]

   [6] Mr Gretton is currently aged 56.

10. As an Australian citizen who resides in Australia, Mr Gretton meets the residence requirements set out in s 23 of the Act.

11. The Respondent submits, however, that Mr Gretton does not meet either the disability requirements set out in s 24 of the Act or the early intervention requirements set out in

    
    

    s 25 of the Act.

    Disability requirements

12. There are five disability requirements each of which is set out in a discrete paragraph of s 24(1) of the Act.

13. The first requirement (set out in paragraph (a)) is that the person requesting to become a participant in the NDIS (the applicant) have “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.”

14. According to Mortimer J in Mulligan[7] the “…term “disability” is used in the Act, and in s 24, as a descriptive concept for the overall effect of a person’s impairments on the person’s abilities to participate in all aspects of personal and community life. Threshold provisions such as s 24 operate not on the concept of disability, but on the concept of impairment, which…is generally understood as involving the loss of or damage to a physical, sensory or mental function.”

    [7] Mulligan v National Disability Insurance Agency [2015] FCA 544 at [51].

15. Mr Gretton has a disability attributable to one or more impairments. He suffers from multiple sclerosis, having been diagnosed as suffering from the disease in 2004.[8] As a consequence, he is blind[9] (or partially blind)[10] in the right eye and has gait ataxia and some cognitive impairment.[11] Mr Gretton’s general practitioner has stated that Mr Gretton also suffers from hypertension, diabetes, fatty liver and lung nodules.[12]

    [8] T8B – letter of Dr Newman of 14 August 2018.

    [9] Evidence from Mr Gretton at the hearing of this proceeding.

    [10] T8B.

    [11] Associate Professor Butler, T3A, p 13.

    [12] T6A.

16. As will be seen later, these conditions (especially, the multiple sclerosis, the blindness and the cognitive impairment conditions) result in Mr Gretton having a disability. They have an effect on his “abilities to participate in all aspects of personal and community life.”[13] Expressed in terms of Article 1 of the United Nations Convention on the Rights of Persons with Disabilities,[14] Mr Gretton is a person with disability as his medical conditions constitute “long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder …[Mr Gretton’s] full and effective participation in society on an equal basis with others.”

    [13] Mulligan v National Disability Insurance Agency [2015] FCA 544 at [51].

    [14] Noting that an object of the Act is to give effect to this Convention – s 3(1)(a) of the Act.

17. The second requirement (set out in paragraph (b)) is that the applicant’s impairment or impairments are, or are likely to be, permanent.[15]  

    [15] Under s 24(2) of the Act 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.

18. Mr Gretton’s impairments are likely to be permanent. When describing Mr Gretton’s multiple sclerosis (and its consequences for Mr Gretton’s cognition), the uncontroverted evidence of Associate Professor Butler, a neurologist, was to the effect that Mr Gretton’s impairment is likely to be lifelong.[16]

    [16] T3A, p 13.

19. As for the third requirement (set out in paragraph (c)), I will address it and the fifth requirement (set out in paragraph (e)) in more detail later as it is these two requirements which the Respondent submits are not met.

20. The fourth requirement (set out in paragraph (d)) is that the applicant’s impairment or impairments affect the person’s capacity for social or economic participation.

21. Mr Gretton’s impairments affect at least his capacity for economic participation. He is currently the recipient of a disability support pension. A person cannot qualify for such a pension unless, amongst other things, the person has an impairment and a “continuing inability to work”.[17]

    [17] Social Security Act 1991, s 94(1)(c)(i). I note there is no suggestion that Mr Gretton is participating in the program administered by the Commonwealth known as the supported wage system.

    Third requirement – substantially reduced functional capacity to undertake certain activities

22. The third disability requirement (set out in paragraph 24(1)(c) of the Act) is that the applicant’s “impairment or impairments result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of…” six categories of activity.

23. Before delving into the issue of the effect of Mr Gretton’s impairments on his functional capacity to undertake the relevant activities, I should mention an aspect of the regulatory context consisting of certain rules.

24. Under s 209(1) of the Act, rules may be made prescribing matters under the Act. Those rules may prescribe circumstances in which, or criteria to be applied in, assessing whether, amongst other things, “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).”

25. Rules have been so prescribed, entitled National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (Participant Rules).

26. Rule 5.8 of the Participant Rules defines the circumstances in which a person must be taken to have “substantially reduced functional capacity” for the purposes of paragraph 24(1)(c) of the Act.[18] Under Rule 5.8, an impairment will be considered to result in a substantially reduced functional capacity to undertake a relevant activity 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.

    [18] Mulligan v National Disability Insurance Agency [2015] FCA 544 at [66].

27. The focus of Mr Gretton’s case was on submissions that his impairment or impairments resulted in him having a substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, two of the six categories of activity, being “social interaction” and “learning”. Nevertheless, I will briefly address the other four categories of activity: communication, mobility, self-care and self-management.

    Communication

28. As for communication, Mr Gretton contends that his capacity to undertake it is impaired because his reading is limited due to partial right eye blindness and a need for glasses for his left eye. Associate Professor Butler corroborated Mr Gretton’s evidence about the difficulty he experienced in reading, which was said to be a result of Mr Gretton’s multiple sclerosis.[19] 

    [19] T8A – letter of 6 September 2018.

29. Despite these contentions, I am not satisfied that Mr Gretton’s impairments result in him having a substantially reduced functional capacity to undertake communication. A difficulty with reading does not, of itself, constitute or reflect such a reduction in capacity.

30. To the contrary, I am satisfied that Mr Gretton’s impairments have not resulted in a substantial reduction in his functional capacity to undertake communication. As Mr Gretton stated in material lodged with the Tribunal, he “can verbally converse with people when required,”[20] a proposition made out in the effective presentation of his case at the hearing of this proceeding.

    [20] T6 – letter of 9 July 2018.

31. In terms of Rule 5.8 of the Participant Rules, Mr Gretton is able to communicate completely and effectively without assistive technology, equipment (other than glasses; a “commonly used item”) or home modifications, and without the assistance of other people. Indeed, in Mr Gretton’s request to become a participant, Associate Professor Butler opined that Mr Gretton did not require assistance in relation to communication,[21] a proposition echoed in the occupational therapy functional assessment of Ms Hocking of 22 July 2019.

    Mobility, self-care and self-management

    [21] T3A, p 15.

32. As for mobility, self-care and self-management, I am not satisfied that Mr Gretton’s impairments result in him having a substantially reduced functional capacity to undertake the relevant activities. 

33. In terms of Rule 5.8 of the Participant Rules, Mr Gretton is able to undertake the relevant activities completely and effectively without assistive technology, equipment or home modifications and without the assistance of other people. That this is so is consistent with the opinion expressed by Associate Professor Butler in Mr Gretton’s request to become a participant.[22] It is also consistent with the opinion expressed by Ms Hocking in her occupational therapy functional assessment of 22 July 2019, albeit that she did suggest that:

    ·in relation to mobility, Mr Gretton “requires additional time and is a high falls risk”; and

    ·in relation to self-management, Mr Gretton needs to use items such as a diary and shopping lists (items which I consider to be commonly used)..

    [22] T3A, pp 15-17.

34. Support for the conclusion that Mr Gretton’s functional capacity in relation to the relevant activities has not been substantially reduced as a result of his impairments is found in Mr Gretton’s evidence that he walks 45 minutes a day, uses his own car for transport and undertakes household tasks without assistance (noting that he lives on his own).

35. I turn now to the two categories of activity in relation to the undertaking of which it was submitted that Mr Gretton had a substantially reduced capacity as a result of his impairments.

    Social interaction

36. The first such category of activity is social interaction.

37. In her occupational therapy functional assessment of 22 July 2019, Ms Hocking:

    ·stated that Mr Gretton “…is very socially isolated”[23] and that his family are his only social connections;

    ·stated that Mr Gretton required assistance to undertake social interaction activities in the form of support for planning trips (“including logistics of booking flights, support with planning getting there”[24]) and financial support to enable Mr Gretton to visit his family interstate and within Victoria more regularly; and

    ·opined that his social isolation was “…due to his condition and also that most of his family reside interstate or some distance away from him.”

    [23] I note Associate Professor Butler also expresses the view that Mr Gretton is socially isolated – letter of 13 February 2020.

    [24] Ms Hocking also referred in her report to the need “when required” for a support worker. At the hearing of this proceeding Ms Hocking acknowledged that assistance in addition to travel planning support was not currently required.

38. In light of the material before me and Mr Gretton’s evidence at the hearing of this proceeding, I find that these statements of Ms Hocking’s do not accurately  reflect the facts.

39. From Mr Gretton’s evidence it is clear that his social interaction extends well beyond family members. He meets weekly with members of the MS Society. He participates actively as a volunteer in MS Society events (such as fun runs) as well as in events organised by the Cancer Council. He does the gardening for at least two discrete sets of friends (one being a couple whose son used to work with Mr Gretton and another being his sons’ former basketball coach). The results of his woodworking have been distributed to around ten to twelve friends. This is not suggestive of Mr Gretton being “very socially isolated”.

40. Ms Hocking’s statement that Mr Gretton required assistance to plan trips was directly contradicted by Mr Gretton’s evidence. He said that he personally would do the necessary research for travel and “put it in place.” I have little doubt as to his current capacity to do so. When assisting with MS Society events such as fun runs, Mr Gretton travels to them by car using street directories. He pays his bills over the internet, undertakes weekly budgeting and generally manages his affairs without assistance. Further, any suggestion that Mr Gretton requires assistance because his impairments have substantially reduced his capacity for social interaction is inconsistent with Associate Professor Butler’s opinion that no such assistance is required.[25]

    [25] T3A, pp 15-16.

41. As to Ms Hocking’s opinion that Mr Gretton’s social isolation was due to his condition,[26] I attribute no probative value to it.

    [26] Occupational Therapy report of 22 July 2019.

42. Even if Mr Gretton’s social interactions were confined to those he has with family members or otherwise were such as to leave him very socially isolated (which I do not accept), the difficulties he would have as a consequence would, I suspect, be a result of his geographical remoteness relative to that of his family members (and other associates) and his lack of a financial (not functional) capacity to travel. There is no probative material before me suggestive of any such difficulties being a result of Mr Gretton’s impairments.

43. Ms Hocking did not explain why she considered there to be a causal relationship between Mr Gretton’s “condition” and his social isolation. In her oral evidence, Ms Hocking freely acknowledged that her expertise did not extend to matters of causation (as opposed to rehabilitation and management of the symptoms of medical conditions) and suggested that she might have reconsidered the aspect of her July 2019 assessment report dealing with the alleged causal relationship between Mr Gretton’s “condition” and his social isolation, were she given an opportunity to do so.

    Learning

44. The second category of activity in relation to the undertaking of which it was submitted that Mr Gretton had a substantially reduced capacity as a result of his impairments was “learning”.

45. Associate Professor Butler opined that Mr Gretton suffers cognitive impairment as a result of his multiple sclerosis. [27] As a result, he is said by the Professor to have difficulty reading and difficulty in retaining new information and learning,[28] with slowed processing and impaired memory and learning.[29]

    [27] Associate Professor Butler, T3A, p 13.

    [28] T8A – letter of 6 September 2018.

    [29] Letter of 13 February 2020.

46. Mr Gretton stated that his learning is affected by reason of his reduced cognition and difficulty in reading texts. He states that, as a result, he was unable to complete two tertiary further education courses, [30] one relating to gardening and the other to book-keeping.

    [30] T8 – letter of 21 September 2018.

47. While the foregoing is enough to establish that Mr Gretton’s functional capacity to undertake “learning” has been reduced as a result of his impairments, I am not satisfied that the reduction in functional capacity is substantial.

48. In this regard, reliance was placed by Mr Gretton on Ms Hocking’s occupational therapy functional assessment of 22 July 2019. She stated that Mr Gretton is orientated as to day, date and year only through the use of a diary, that his memory is poor (particularly his

    
    

    short-term memory) and that he has a “slower processing speed, needing twice as long to process information and respond.” In order to learn effectively, Ms Hocking stated that Mr Gretton required assistance in the form of third party support co-ordination (“especially around travel plans with his family”) and assistive technology in the form of a yearly diary and desk calendar.

1. The statements and opinions made and expressed by Ms Hocking in her report are not materially probative with respect to the extent of the effect of Mr Gretton’s impaired cognition on his functional capacity to undertake learning.

2. Ms Hocking spent around one hour with Mr Gretton before preparing her report. In so doing she did not conduct any cognitive assessment of Mr Gretton. According to Ms Hocking, the conduct of assessments of that type does not fall within the range of expertise of an occupational therapist such as herself. According to Ms Hocking, occupational therapists are able to conduct cognitive screens in order to identify whether there might be problems with cognition but, if potentially material problems are identified in the conduct of such a screen, the person concerned would be referred to a neuro-psychologist for assessment. 

3. In relation to Mr Gretton, as I have said, Ms Hocking did not assess his cognition. Moreover, she would appear not to have conducted even a formal cognition screen. Instead, in relation to Mr Gretton, she said she conducted a “very basic cognitive screen”. Lastly, I note that Ms Hocking did not consider that the results of that very basic screen were such as to warrant a referral to a neuro-psychologist.

4. As for Ms Hocking’s suggestion that Mr Gretton required assistance in the form of:

   ·third party support co-ordination (“especially around travel plans with his family”[31]), as I said earlier (and for the reasons previously given), I have little doubt as to Mr Gretton’s current capacity to do the necessary research for travel and “put it in place”; and

   ·a yearly diary and desk calendar, as I see it, such things are commonly used items which ought not be considered as “equipment” when assessing, for the purposes of Rule 5.8 of the Participant Rules, whether Mr Gretton is unable to participate effectively or completely in “learning” without assistive technology, equipment or home modifications.

   [31] Occupational Therapy report of 22 July 2019.

5. Accordingly, I am not satisfied that the reduction in functional capacity to undertake “learning” resulting from Mr Gretton’s impaired cognition is substantial.

6. This means that Mr Gretton does not meet the third disability requirement provided for in

   
   

   paragraph 24(1)(c) of the Act. In particular, I am not satisfied that his impairment or impairments result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the six specified categories of activity.

7. While this conclusion makes it unnecessary to do so, I turn now to consider, briefly, the fifth disability requirement (set out in paragraph 24(1)(e) of the Act).

   Fifth requirement – likely to require NDIS support for rest of life

8. The fifth disability requirement (set out in paragraph 24(1)(e) of the Act) is that the applicant be likely to require support under the NDIS for the person’s lifetime.

9. Mr Gretton does not meet this requirement.

10. Given the nature of the impairments suffered by Mr Gretton, he may well require supports under the NDIS in the future. Currently, however, he does not.

11. I have outlined earlier some of the assistance which Ms Hocking contended Mr Gretton required. For the reasons given, I am not satisfied that he requires that assistance (a conclusion consistent with Associate Professor Butler’s opinion that Mr Gretton did not require any particular forms of assistance).

12. As for Mr Gretton, in his evidence before the Tribunal, he stated that the only form of assistance he was truly seeking in now making his request to participate in the NDIS is financial assistance.[32] Funding is not, however, a form of support. The concept of “support” as used in the Act constitutes “… a practical description of the means by which a person with disability is assisted. It is not intended… to encompass funding.”[33]

    [32] See too Mr Gretton’s letter of 27 October 2019: “My plan with the NDIS funding was for me to travel around Australia to visit relatives who I have been unable to visit as my condition continues to worsen and becomes more restrictive.”

    [33]  McGarrigle v National Disability Insurance Agency [2017] FCA 308 at [88].

13. Hence, the only form of assistance Mr Gretton currently requires is funding and funding is not a form of support under the NDIS.

14. As Mr Gretton does not currently require support under the NDIS, he cannot be said to be likely to require such support for his lifetime.

    The early intervention requirements

15. Subject to one qualification, under s 25(1) of the Act a person will be considered to meet 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; [34] 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.[35]

    [34] Paragraphs (b) and (c) are taken to be satisfied for the purposes of s 25(2) of the Act if one or more of the person’s impairments are prescribed by the National Disability Insurance Scheme rules.

    [35]Ibid.

16. These requirements are cumulative. I am not satisfied that the one I just outlined in paragraph (b) is met. In terms of that requirement, there is no relevant and probative material before me on which I could be satisfied that the provision of early intervention supports for Mr Gretton is likely to benefit him by reducing his future needs for supports in relation to disability.

17. Hence, I am not satisfied that early intervention requirements are met in the case of Mr Gretton.[36]

    [36] The Respondent has contended that there are two more reasons for concluding that the early intervention requirements are not met in the case of Mr Gretton, but I need not address them, given my conclusion in relation to the s 25(1)(b) requirement.

    CONCLUSION AND DECISION

18. As I am not satisfied that Mr Gretton meets the access criteria provided for in the Act, I confirm and affirm the decision under review.

67.     I certify that the preceding 66 (sixty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member Chris Furnell.

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

Associate

Dated: 14 October 2020

Date of hearing:	15 September 2020
The Applicant:	By telephone
Advocate for the Respondent:	K Grinberg