Guy and National Disability Insurance Agency - [2024] AATA 1212

Guy and National Disability Insurance Agency [2024] AATA 1212 (27 May 2024)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2022/5895
Re:Clifford Guy
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:M P Hunter
Date:27 May 2024
Place:Sydney

The decision under review is set aside and, in substitution, the Tribunal decides that the Applicant meets the access criteria under section 21 of the National Disability Insurance Scheme Act 2013 (Cth).
....................................[SGD]....................................
M P Hunter
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – access request – chronic pain – whether there is substantially reduced capacity – assistive technology – access granted – decision set aside and substituted.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)
CASES
Cooper and National Disability Insurance Agency [2024] AATA 420
Beezley v Reparation Commission [2015] FCAFC 165
Holmes and National Disability Insurance Agency [2017] AATA 2750
Madelaine and the National Disability Insurance Agency [2020] AATA 727
Mulligan v National Disability Insurance Agency [2015] FCA 544
MHZQ and National Disability Insurance Agency [2019] AATA 810
National Disability Insurance Agency v Foster [2023] FCAFC 11
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634; (1979) 2 ALD 60.
SECONDARY MATERIALS
National Disability Insurance Agency, Our Guidelines: Applying to the NDIS,
National Disability Insurance Agency, Our Guidelines: Assistive Technology (equipment, technology and devices)
REASONS FOR DECISION
M P Hunter
27 May 2024

This application is about whether Mr Clifford Guy (the Applicant) should be granted access as a participant to the National Disability Insurance Scheme (the NDIS).
The Applicant is 59 years old. He has worked as a journalist, and a television presenter and has written a number of songs. Until his parents passed away in 2020, he had been their full-time carer for around 17 years. He lives in Nara Glen NSW, on a 115 acre property and shares ownership of the property, with his partner from whom he has separated. The Applicant’s ex-partner lives in the main house on the property with their son, who is approximately 14 years old. The Applicant has a bedroom in a separate granny flat on the property and accesses the main house for kitchen and laundry facilities. The Applicant also has an adult daughter from a previous relationship.
By application dated 20 January 2022, the Applicant applied to become a participant in the NDIS. He sought access on the basis of his chronic pain, due to degenerative disease, arthritis, cervical spondylosis, cervical radiculopathy, and osteoarthritis, as well as depression, anxiety and Post Traumatic Stress Disorder (PTSD).
On 10 February 2022, a delegate of the Chief Executive Officer (CEO) of the National Disability Insurance Agency (the Respondent) determined that the Applicant did not meet the access requirements set out in the National Disability Insurance Scheme Act 2013 (the Act).
The Applicant requested an internal review by the…

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 Guy and National Disability Insurance Agency

Details

AGLC: Guy and National Disability Insurance Agency [2024] AATA 1212
Case: [2024] AATA 1212
Decision Date: 27 May 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered an application by Mr Guy for review of a decision by the National Disability Insurance Agency (NDIA) that he did not meet the access criteria to become a participant in the National Disability Insurance Scheme. Mr Guy had sought access to the scheme due to chronic pain and associated psychosocial impairments. The NDIA had previously confirmed its decision following an internal review.

The primary legal issues before the Tribunal were whether Mr Guy had a disability attributable to one or more physical or psychosocial impairments, whether these impairments were permanent, and crucially, whether they resulted in a substantially reduced functional capacity to undertake specified activities and affected his capacity for social or economic participation. The Tribunal was required to be satisfied that Mr Guy met the disability requirements under section 24 of the National Disability Insurance Scheme Act 2013 (Cth).

The Tribunal applied the NDIS Operational Guidelines, which state that an impairment substantially reduces functional capacity if a person usually needs disability-specific supports to participate in or complete tasks. These supports include a high level of assistance from others or prescribed assistive technology. The Tribunal found that the undisputed medical evidence established that Mr Guy had a disability arising from chronic pain and psychosocial impairments, which were permanent and resulted in a reduced ability to function. The Tribunal was satisfied that these impairments substantially reduced his functional capacity in communication, social interaction, learning, mobility, self-care, and self-management, and affected his capacity for social and economic participation.

The Tribunal set aside the NDIA's decision and substituted a new decision that Mr Guy satisfied the disability requirements for access to the National Disability Insurance Scheme.

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

The Operational Guidelines state:Your impairment substantially reduces your functional capacity if you usually need disability-specific supports to participate in or complete the (specified) tasks.These disability-specific supports include:·a high level of support from other people, such as physical assistance, guidance, supervision or prompting.·assistive technology, equipment or home modifications that are prescribed by your doctor, allied health professional or other medical professional.ISSUES AND EVIDENCE As discussed in Mulligan,[3] the legislative framework requires that the Tribunal must be positively satisfied that the requirements of the Act are established in relation to a disability or early intervention before access to the scheme can be granted. As a practical matter, it is the Applicant who is to provide evidence and information sufficient to meet the statutory requirements and satisfy the Tribunal that the criteria are met.[4][3] Mulligan v National Disability Insurance Agency [2015] FCA 544 [55].[4] Beezley v Reparation Commission [2015] FCAFC 165 [68]. In arriving at its decision, the Tribunal has considered not only the oral evidence at hearing but various documents including the documents filed by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act) (Exhibit R1 T-Documents), a joint hearing bundle (JTB), a Statement of Facts Issues and Contentions filed by the Respondent dated 16 November 2023 (RSFIC), documents filed by the Applicant and Respondent at hearing Exhibits A1 and R2, the Respondent’s closing submissions of 22 February 2024 and the Applicant’s correspondence of 12 and 18 March 2024, as well as his closing submissions of 15 March 2024 with annexures. It is noted further that the closing submissions of the Applicant were provided to the Respondent for consideration and comment and no objection or comment has been provided. Does the Applicant have a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments? Firstly, the Tribunal will consider whether it is satisfied that the Applicant has a disability that is attributable to one or more intellectual, cognitive, sensory or physical impairments, as required by paragraph 24(1)(a) of the Act. In their RSFIC the Respondent has not taken issue with whether the Applicant satisfies paragraph 24(1)(a) of the Act and this was confirmed at the Tribunal hearing.[5] [5] Transcript 6 February 2024 at p.7 paragraph 40 The undisputed medical evidence demonstrates that the Applicant has a “disability” arising from the impairments of:a) chronic pain, caused by spondylosis, degenerative disease, arthritis and osteoarthritis cervical, mid thoracic and lumbar spine, knee pain caused by arthritis and osteoarthritis, arthritis of the hands, wrists and feet.b) a psychosocial impairment as a result of diagnoses of depression, anxiety and PTSD. The Tribunal is satisfied that these impairments cause a reduction or loss of the Applicant’s ability to function. It follows that the Applicant has a disability within the meaning of paragraph 24(1)(a) of the NDIS Act in relation to these physical and psychosocial impairments.

Decision

Reasons for decision

The Applicant requested an internal review by the Respondent, and on 17 June 2022, another delegate of the CEO (the Respondent Internal Reviewer) confirmed the decision that Mr Guy did not satisfy the access criteria to become a NDIS participant (the internal review decision). On 12 July 2022, the Applicant applied to the Administrative Appeals Tribunal (the Tribunal) for review of the internal review decision pursuant to section 103 of the Act. A hearing was conducted by Microsoft Teams video on 6 and 9 February 2024. The Applicant was unrepresented, the Respondent was represented by counsel. The Tribunal heard oral evidence from the Applicant, Mr Anup Mangipudi, independent occupational therapist, and Mr Gary Stretton, independent occupational therapist. The Applicant was observed to participate in the hearing while lying down. He claimed to have taken additional medication in order to “get through” the Tribunal hearing. When questioned he said that he had consumed 10 mg of Targin a few hours before the hearing when he first woke, then another two just before the hearing. He had also consumed standard Panadol. He was observed to remain engaged in the hearing process, could answer questions, and, when offered a break, declined. The hearing was broken up into three intervals over the two days. The Tribunal is satisfied that the Applicant had an opportunity to engage meaningfully in the hearing process and comment on issues of concern, particularly whether he had a substantially reduced functional capacity. These issues were set out in the Respondent’s Statement of Facts Issues and Contentions which was provided to the Applicant with reasonable notice, approximately three months before the hearing. At the conclusion of the hearing, the parties were given time to file closing submissions in writing. LEGISLATIVE FRAMEWORKThe access criteria To become a participant in the NDIS, the Applicant must satisfy the access criteria set out in subsection 21(1) of the Act, which provides as follows:(1)A person meets the access criteria if:(a)the CEO is satisfied that the person meets the age requirements (see section 22); and(b)the CEO is satisfied that, at the time of considering the request, the person meets the residence requirements (see section 23); and(c)the CEO is satisfied that, at the time of considering the request:(i)the person meets the disability requirements (see section 24); or(ii)the person meets the early intervention requirements (see section 25). There is no dispute the Applicant satisfies the age and the residence requirements set out in sections 22 and 23 of the Act, and so the Tribunal finds. The Tribunal must decide whether the Applicant satisfies the access criteria in section 24 (the disability requirements) or section 25 (the early intervention requirements). As to the disability requirements, section 24 of the Act states:(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 subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the variation.

Ratio Decidendi

Legal Principle Established

The NDIS Operational Guidelines assist in making decisions in accordance with the Act. Operational Guidelines represent government policy and should be applied by the Tribunal unless there is good reason not to do so.[1] The relevant Operational Guideline is Our Guidelines – Becoming a participant – Applying to the NDIS (Operational Guidelines).[2][1] Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[1979] AATA 179; (1979) 2 ALD 634; (1979) 2 ALD 60.[2] National Disability Insurance Agency, Our Guidelines – Becoming a participant – Applying to the NDIS. The Operational Guidelines state:Your impairment substantially reduces your functional capacity if you usually need disability-specific supports to participate in or complete the (specified) tasks.These disability-specific supports include:·a high level of support from other people, such as physical assistance, guidance, supervision or prompting.·assistive technology, equipment or home modifications that are prescribed by your doctor, allied health professional or other medical professional.ISSUES AND EVIDENCE As discussed in Mulligan,[3] the legislative framework requires that the Tribunal must be positively satisfied that the requirements of the Act are established in relation to a disability or early intervention before access to the scheme can be granted. As a practical matter, it is the Applicant who is to provide evidence and information sufficient to meet the statutory requirements and satisfy the Tribunal that the criteria are met.[4][3] Mulligan v National Disability Insurance Agency [2015] FCA 544 [55].[4] Beezley v Reparation Commission [2015] FCAFC 165 [68]. In arriving at its decision, the Tribunal has considered not only the oral evidence at hearing but various documents including the documents filed by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act) (Exhibit R1 T-Documents), a joint hearing bundle (JTB), a Statement of Facts Issues and Contentions filed by the Respondent dated 16 November 2023 (RSFIC), documents filed by the Applicant and Respondent at hearing Exhibits A1 and R2, the Respondent’s closing submissions of 22 February 2024 and the Applicant’s correspondence of 12 and 18 March 2024, as well as his closing submissions of 15 March 2024 with annexures. It is noted further that the closing submissions of the Applicant were provided to the Respondent for consideration and comment and no objection or comment has been provided. Does the Applicant have a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments? Firstly, the Tribunal will consider whether it is satisfied that the Applicant has a disability that is attributable to one or more intellectual, cognitive, sensory or physical impairments, as required by paragraph 24(1)(a) of the Act. In their RSFIC the Respondent has not taken issue with whether the Applicant satisfies paragraph 24(1)(a) of the Act and this was confirmed at the Tribunal hearing.[5] [5] Transcript 6 February 2024 at p.7 paragraph 40