HKJQ and National Disability Insurance Agency

HKJQ and National Disability Insurance Agency [2021] AATA 379 (19 February 2021)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2018/5599
Re:HKJQ
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Deputy President J W Constance
Date:19 February 2021
Place:Sydney

The reviewable decision made 3 September 2018, refusing the Applicant access to the National Disability Insurance Scheme, is affirmed.
............................[SGD]............................................
Deputy President J W Constance
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – access to Scheme – whether Applicant meets the access criteria – whether Applicant meets the early intervention requirements – panic disorder – agoraphobia – schizoaffective disorder – whether the impairments suffered by the Applicant result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the specified activities – weight to be given to varying opinions – where medical reports based on Applicant’s self-reporting – decision affirmed
LEGISLATION
National Disability Insurance Scheme Act 2013 (Cth) ss 21, 24, 25
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 r 5.8, 6.8, 6.9
SECONDARY MATERIALS
Access to the NDIS Operational Guideline, s 8
REASONS FOR DECISION
Deputy President J W Constance
19 February 2021
INTRODUCTION

The Applicant is a 40-year-old man who, for the past 23 years, has suffered from panic disorder and agoraphobia. In 2015 he was diagnosed as suffering schizoaffective disorder.
In December 2017 the Applicant applied for access to the National Disability Insurance Scheme established by the National Disability Insurance Scheme Act 2013 (Cth). To be entitled to access the Applicant is required to meet the access criteria set out in the Act, which include, but are not limited to, disability requirements or in the alternative, early intervention requirements.[1]
[1] Sections 24 and 25 respectively.
On 18 January 2018 the Chief Executive Officer of the Agency (CEO) decided that the Applicant did not meet the access criteria set out in either section 24 or 25 of the Act. The Applicant requested a review of this decision and on 3 September 2018 a reviewer affirmed the original decision. I will refer to the reviewer’s decision as the reviewable decision.
On 28 September 2018 the Applicant applied to the Tribunal to review the reviewable decision.
For the reasons which follow the reviewable decision will be affirmed.
LEGISLATIVE FRAMEWORK
Access criteria
Subsection 21(1) of the Act provides:
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).
Section 24 of the Act sets out the requirements which must be shown before a person is said to meet the disability requirements for access to the Scheme.
An alternative pathway to access is provided by section 25. It sets out what the CEO (or, in this case, the Tribunal) must be satisfied of before an applicant can be given access to the Scheme under the early intervention requirements.
Sections 24 and 25 and the relevant Rules and paragraphs of the relevant Operational Guideline are set out later in these reasons.
ISSUES FOR DETERMINATION
The Agency concedes that the Applicant meets the age and residency requirements set out in section 21 and the requirements of paragraphs (a) and (b) of subsection 24(1). I am satisfied on the evidence that this is a proper concession.
The following issues require determination.
(1)Do the impairments suffered by the Applicant result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the specified activities?
(2)If so, is the Applicant likely to require support under the National Disability Insurance Scheme for his lifetime?
(3)If not, does the Applicant meet the early intervention requirements in section 25 of the Act?
EVIDENCE
The Applicant
The Applicant provided a statement dated 19 June 2019[2] and gave evidence.
[2] Exhibit A1 at 51.
The Applicant first experienced issues which he now associates with anxiety disorder in about 1999-2000. He suffered anxiety and panic attacks which caused him to miss days at work which led to his employment being terminated. As a result of his panic attacks, anxiety and agoraphobia he has not been able to maintain ongoing employment.
In his statement the Applicant said, in part:
Over the last five years I have not received the help I need and I have felt the full impact of my anxiety disorder, panic disorder and agoraphobia. I rarely leave my house and hardly ever leave my neighbourhood. I am stuck at home most of the day, and find daily living a major burden.[3]
[3] Exhibit A1 at 51-52.
Under the heading “My challenges in the areas of substantially reduced functional capacity”, the Applicant addressed each of the following, setting out details of his day-to-day activities and his understanding of the effect of his medical conditions on his:
·social interaction;
·learning;
·mobility;
·self-care; and
·self-management.
Mr T., friend of the Applicant
Mr T. provided a statement dated 14 May 2020[4] and gave evidence.
[4] Exhibit A1 at 76.
Mr T. has known the Applicant since about 2010. He has observed the Applicant to become distressed while travelling in a vehicle and when accompanying him to [redacted], other venues such as cinemas and at social events.
Mr T. described the Applicant’s communication as “abrupt” at times. On occasions he does not make sense when speaking to others.
It appears to Mr T. that the Applicant is becoming increasingly estranged from his family.
When he gave evidence Mr T. said that when he visited the Applicant’s home it was not clean. Mr T. said the Applicant was not attending to personal grooming and was not properly caring for his clothing.
Ms S., friend of the Applicant
Ms S. provided a statement dated 11 May 2020[5] and gave evidence. She has known the Applicant since about 2014.
[5] Exhibit A1 at 74.
Ms S. stated in part:
I have been with HKJQ several times whilst they are suffering from panic attacks. These times include driving through a tunnel, in a drive-through, walking through the city, turning my car heater on, waiting at red traffic lights, and in an elevator. When this happens, I have noticed sweating, hyperventilation, complete silence or becoming quite loud, severe disorientation, and shaking.
…
Another severe impediment to HKJQ’s abilities to socially interact is a lack of selfcare. They rarely shower, have offensive body odour, and poor oral hygiene.
Report dated 9 June 2015 by Dr Roberts, Consultant Forensic Psychiatrist[6]
[6] Exhibit A1 at 1.
Dr Roberts commenced treating the Applicant in 2005. His report was prepared for the purposes of an insurance claim by the Applicant. Prior to writing the report, Dr Roberts was last consulted by the Applicant in March 2014.
Dr Roberts diagnosed the Applicant as suffering Schizoaffective Disorder. He reported, in part:
[The Applicant’s] psychiatric condition is characterised by a disturbance of mood, episodes of psychosis inclusive of delusional beliefs and significant propensity to anxiety. These symptoms are considered incompatible with successful participation in the workforce and until such time as appropriate treatment is implemented and his symptoms remit, it is expected that [the Applicant] will be unable to sustain employment.
…
Having not been involved in [the Applicant’s] management since 26 March 2014 and for five years prior to that date, the extent to which there may be other factors impacting on him in uncertain. Irrespective of other factors the predominant issue impacting upon [the Applicant’s] well-being and his ability to participate in the workforce, remains his untreated psychiatric condition.[7]
Reports dated 19 February 2018[8] and 26 November 2018[9] by Dr Corne, Consulting Psychologist
[7] Exhibit A1 at 7.
[8] Exhibit A1 at 9.
[9] Exhibit A4.
The first report was written in support of the Applicant’s application for housing assistance.
Dr Corne reported, in part:
[The Applicant] scores on the Severe Range for the Beck Anxiety Inventory. He is unable to drive in traffic, to go out and see friends, or look for work. He is restricted to his local neighbourhood and doesn’t travel any distance from home. He is currently on medication and being monitored by his psychiatrist.[10]
[10] Exhibit A1 at 9.
In her second report Dr Corne stated, in part:
His Panic Disorder (relative agoraphobia) and underlying mood disorder is lifelong and permanent. He may occasionally function in society. However, the majority of the time he requires a lot of support.
His condition substantially effects his ability for social interaction and selfcare. Examples of this are the times when he did not answer his phone to my calls or others because he told me that his panic and his depressed mood had taken over.
When he experiences a set back with anxiety and depression, he says he doesn’t shower for periods of time and eats poorly, failing to prepare any meals. He socially isolates himself during daytime hours or peak seasons, (public or religious holidays) and does not have a support network of friends now that he is approaching midlife. He generally shies away from social events, including those times that involve nonfamiliar persons, including mixing in crowds while shopping which he finds daunting. When he goes to appointments in busy areas and the panic rises, he describes becoming disoriented. He has a driving licence but has been very reluctant to drive due to the overwhelming feelings of panic he experiences on the roads with other cars near him.
Evidence of Ms Battersby, Occupational Therapist
Ms Battersby assessed the Applicant on 16 October 2019 at his request. She provided a report dated 19 October 2019[11] and gave evidence.
[11] Exhibit A1 at 11.
Ms Battersby assessed the Applicant at his home and administered the Montreal Cognitive Assessment and the Adolescent/Adult Sensory Profile screening tools. She also considered the report of Dr Roberts and some of the other documents filed in these proceedings.[12]
[12] Exhibit A1 at 11-12.
Ms Battersby identified the following factors which were impacting on the Applicant’s functioning at the time:[13]
·experience of panic attacks in the community setting;
·avoidance of busy locations such as Westfield;
·only able to drive his car at night and takes extended routes to avoid having to stop at traffic lights due to feeling panicked or "trapped";
·difficulty using escalators and lifts due to panic;
·poor motivation for personal care and eating;
·poor sleep hygiene;
·significant and persistent interpersonal conflict with others in his family and community;
·highly sedentary and limited routine.
[13] Exhibit A1 at 14.
In her report Ms Battersby provided the following assessment:
[The Applicant] is 39 years old. He is single and lives alone in a (reportedly) registered boarding house in [redacted]. He demonstrates functional disability in a number of areas of his life; most prominently in domains of self-care, employment, social relationships and self-management activities. From information available at assessment these difficulties arise from a combination of factors including high levels of anxiety and panic, and secondary avoidance of situations likely to lead to anxiety and panic; limited functional coping and self-regulation skills, poor social skills and impulsivity in situations of emotional stress. He has been unable to maintain employment or social relationships during his adult life and has, by his own admission, become estranged from almost all of his informal supports due to impulsive and inappropriate social behaviours. He has also lost important formal supports such as NSW Housing and Legal Aid when he has refused options offered to him or failed to turn up to services offered, realising only in hindsight that he had acted against his own best interest.
Aside from a gradually reducing dose of alprazolam, he is not currently taking any medication for a psychiatric condition and states that he has trialled a number of medications and psychological approaches in an attempt to address his difficulties but has ceased due to being unable to tolerate the process or side effects. The most recent psychiatric reports note opinion of diagnosis of schizoaffective disorder (2015) and likely untreated psychotic disorder (2018). It is important to highlight that lack of insight into the nature of one's condition and need for treatment can be a symptom of psychotic disorders. Failure to comply or adhere to recommended treatment can in such situations be understood as both a symptom of the condition as well as a factor limiting potential recovery or progress.[14]
[14] Exhibit A1 at 16-17.
Ms Welshe, Occupational Therapist
Ms Welshe assessed the Applicant on 29 April 2019 at the request of the Solicitors for the Agency. She provided a report dated 14 May 2019[15] and gave evidence.
[15] Exhibit A1 at 20.
The assessment was carried out at the Applicant’s home. Ms Welshe obtained a detailed history from the Applicant, including details of his daily activities, living situation and leisure/avocational interests.
Ms Welshe used the following standardised assessment tools to provide information regarding the Applicant’s functioning:
·The Depression, Anxiety and Stress Scale (DASS-21);
·The Standardised Mini Mental State Examination (SMMSE);
·WHODAS (World Health Organisation Disability Assessment Schedule 2.0); and
·Life Skills Profile (LSP-16).[16]
[16] Exhibit A1 at 28.
Further details of Ms Welshe’s assessment will be provided later in these reasons.
Report dated 1 June 2020[17] by Dr Mustac, Consultant and Addiction Psychiatrist
[17] Exhibit A3.
Dr Mustac is the Applicant’s treating Psychiatrist. He assessed the Applicant on the same day as he reported to the Applicant’s General Practitioner.
Dr Mustac reported, in part:
[The Applicant] has a severe anxiety disorder, which is permanent and has not improved at all despite ongoing treatment by me for the past three years. As a substantially reduced capacity to do many activities which in normal day-to-day life not be considered an issue to worry about you or a challenge for a person not suffering from this mental illness. This includes admissions to a private psychiatric hospital The Sydney clinic. He had a pre-seeding psychiatric history with treatment from Dr S Roberts from 2005.
…
My patient has an impairment in terms of communication because he avoids communicating with many people in his community as well as people outside the community. This is due to his mental condition.
…
Due to his severe anxiety he has not been able to socialise appropriately with members of the community, engage in romantic relationships and has also been chronically unemployed over a period of years. He has not worked in a steady job for 15 years.
…
His mobility is impacted because he is not able to leave a very circumscribed area in the [redacted] in which she (sic) is able to tolerate his anxiety. As soon as he attempts to leave this area he feels overwhelmed with anxiety and therefore has not been able to do so for a number of years. He is also not able to travel in elevators or to do the shopping in the supermarket that he needs to do on a regular basis. Similarly he is unable to access shopping centres for normal retail purposes.
…
The self-care is substantially reduced. This includes personal hygiene and day-to-day grooming. He is forced to use electronic devices to remind him to do day-to-day activities because his anxiety is interfering with his short term memory.[18]
[Errors in original.]
[18] Exhibit A3 at 2.
Weight to be given to the varying opinions
In her report Ms Battersby expressed the opinion that the Applicant “demonstrates functional disability in a number of areas of his life; most prominently in domains of self-care, employment, social relationships and self-management activities”.[19] She later refers to the Applicant’s “poor functioning”.[20] When she gave evidence Ms Battersby said that the Applicant had substantially reduced psychosocial functioning in at least one of the specified domains, namely self-management.[21]
[19] Exhibit A1 at 16.
[20] Exhibit A1 at 17.
[21] Transcript, 6 August 2020 at 28-29.
There is support for Ms Battersby’s opinions in the reports of Dr Mustac, Dr Roberts and Dr Corne.
The evidence of the Applicant, Mr T. and Ms S. shows that the Applicant does suffer considerable impairment as a result of his mental conditions. However, the issue I have decide is whether those conditions “result in substantially reduced functional capacity ……or psychosocial functioning” in the circumstances specified in subsection 24(1). This requires consideration of the expert evidence which is based in part on the behaviour of the Applicant as self-reported and as reported by others.
Having considered the evidence, I prefer the opinions expressed by Ms Welshe to those of the other health professionals. Ms Welshe provided a comprehensive report addressing the request that she conduct a full functional assessment of the Applicant. She undertook testing of the Applicant and distinguished clearly between her observations and the information self-reported by him. Ms Welshe addressed the definitions of the areas of functionality provided to her.
Unfortunately, Ms Battersby did not have access to information which would have assisted her in making her assessment. I do not suggest that this was a result of any lack of attention to the task at hand on her part. The Applicant engaged the services of Ms Battersby directly and he may not have understood fully the information which would assist Ms Battersby.
Prior to being cross-examined at the hearing, Ms Battersby was unaware of the extent of the Applicant’s interaction with his family and friends. She was unaware that he used the lift when being assessed by Ms Welshe. She was surprised to learn that the Applicant does “batch cooking” when preparing meals for himself.
In relation to the Applicant’s use of social media, Ms Battersby said that the Applicant “would be guarded about the full extent of what he was sharing with me.”[22] She was unaware that he was providing emergency psychological support to others through the application known as Zello. She was unaware also of his use of the trading platforms of Gumtree and eBay and the extent of his role in assisting the agents who manage the building in which he resides.
[22] Transcript, 6 August 2020 at 40.
The following exchange took place between Ms Battersby and Counsel for the Agency:
Counsel: But you'd agree, Ms Battersby, wouldn't you that your report is in effect limited as you say to the information, you were given and that it might have been very different if you'd had access to his statement and Ms Welshe in that you've now been advised of or aware of?
Ms Battersby: Sure. And I mean, it certainly would have allowed me to answer – to ask more targeted questions. So, because I mean, sometimes it can be that people can function in one context and they think they can't in another for a variety of reasons. [Emphasis added]. But (indistinct words) you're aware of those discrepancies, you can ask further questions around them to see if you can understand why that might be.[23]
Ms Battersby said that it was probable that she may change sections of her report after considering all of the available information.[24]
[23] Transcript, 6 August 2020 at 48.
[24] Transcript, 6 August 2020 at 51.

Although Dr Mustac is the Applicant’s treating Psychiatrist, he does not provide the detailed reasoning in support of his opinions in the same way Ms Welshe does. This reduces the weight I give to his evidence. Both Dr Roberts and Dr Corne provided little detail to support their respective opinions. In addition, when Dr Roberts wrote his report in 2015, the last consultation with the Applicant had been in March 2014, seven years ago. Their reporting of the effect of the Applicant’s disabilities varies from the more recent observations of Ms Welshe.
Apart from Ms Battersby, none of the witnesses relied upon by the Applicant had the opportunity to observe the Applicant functioning in his home environment as Ms Welshe was able to do. In reaching their respective opinions they relied significantly on the Applicant’s self-reporting.
As I have stated I prefer the opinions of Ms Welshe to those of Ms Battersby and the other health professionals. On this basis I turn to consider the requirements of subsection 24(1) paragraph (c) of the Act.
ISSUE 1: DO THE IMPAIRMENTS SUFFERED BY THE APPLICANT RESULT IN SUBSTANTIALLY REDUCED FUNCTIONAL CAPACITY TO UNDERTAKE, OR PSYCHOSOCIAL FUNCTIONING IN UNDERTAKING, ANY OF THE ACTIVITIES SPECIFIED IN SECTION 24 OF THE ACT?
Section 24 of the Act
Subsection 24(1) provides:
A person meets the disability requirements if:
(a) the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or to one or more impairments attributable to a psychiatric condition; and
(b) the impairment or impairments are, or are likely to be, permanent; and
(c) the impairment or impairments result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the following activities:
(i) communication;
(ii) social interaction;
(iii) learning;
(iv) mobility;
(v) self-care;
(vi) self-management; and
(d) the impairment or impairments affect the person's capacity for social or economic participation; and(e) the person is likely to require support under the National Disability Insurance Scheme for the person's lifetime
National Disability Insurance Scheme (Becoming a Participant) Rules 2016
Rule 5.8 provides:
An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities—communication, social interaction, learning, mobility, self-care, self-management (see paragraph 5.1(c))—if its result is that:
(a) the person is unable to participate effectively or completely in the activity, or to perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications; or
(b) the person usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in the activity or to perform tasks or actions required to undertake or participate in the activity; or
(c) the person is unable to participate in the activity or to perform tasks or actions required to undertake or participate in the activity, even with assistive technology, equipment, home modifications or assistance from another person.
Access to the NDIS Operational Guideline
Section 8 of the Guideline relates to the disability requirements. It provides:
A prospective participant will meet the disability requirement if they meet each of the following requirements:
-    the prospective participant 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 (section 24(1)(a));
-    the prospective participant's impairment/s are, or are likely to be, permanent (section 24(1)(b));
-      the prospective participant's impairment/s result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the following relevant activities:
a. communication;
b. social interaction;
c. learning;
d. mobility;
e. self-care; or
f. self-management (section 24(1)(c));
-      the prospective participant's impairment/s affect their capacity for social or economic participation; (section 24(1)(d)); and
-      the prospective participant is likely to require support under the NDIS for their lifetime (section 24(1)(e)).
For the above purposes, impairments that vary in intensity may be permanent and a prospective participant may still require support under the NDIS for their lifetime despite the variation (section 24(2)).
If a prospective participant does not meet one or more of the above disability requirements, the NDIA will consider whether the prospective participant can become a participant in the NDIS under the early intervention requirements instead.
The activities referred to in subsection 24(1) paragraph (c)
Communication
Ms Welshe reported:
Based on my observations as detailed above in Functional Assessment (Communication), in my opinion [the Applicant] is able to communicate effectively with others. I observed him communicating effectively with myself in both spoken and written language, with examples being his verbal description of his treatment history upon my request for the same, and his completion of written assessment items. His face to face interaction and telephone skills were directly observed over a collective period of 2.75 hours and were assessed to be socially appropriate, reciprocal in nature and responsive. His written and verbal communication was able to be understood without difficulty by myself, he was able to verbally express his needs and wants such as his wish to improve his diet, and he was able to demonstrate comprehension of all verbal and written assessment items presented, as evidenced by the appropriate responses documented. He currently does not utilise physical assistance, assistive technology, prompting or supervision to communicate in any format. In my opinion, [the Applicant] does not require future disability specific support to communicate. I was unable to identify any behaviours that would be limiting his capacity to communicate at present.[25]
[25] Exhibit A1 at 38-39.
Social interaction
Ms Welshe reported:
Based on my observations, [the Applicant] has capacity to interact with others in social situations. He was able to maintain appropriate face to face contact for the two hour assessment whilst adhering to social conventions, including consideration of the needs of others, saying hello and goodbye, taking turns, maintaining a comfortable level of eye contact, maintaining composure and not interrupting. He was able to maintain a 45 minute follow up telephone conversation without apparent difficulty or inappropriate conduct. He demonstrated how to use a smartphone app for social interaction in special interest groups. Whilst not directly observed, it is noted that [the Applicant] described ways in which he interacted with the community as detailed in Functional Assessment (Social Interaction) earlier in this report. It is noted in the medical records of The Sydney Clinic on 2 October 2017 that [the Applicant] attended a group on values and "appeared in a stable mood and contributed well", indicating capacity to interact in group environments.
In my opinion [the Applicant] does not require assistance or support to interact with others in social situations. He currently does not receive physical assistance, assistive technology, prompting or supervision for social interactions. He volunteers for the [redacted – a political party] for a variable number of hours per week, with his duties including answering questions from the public, handing out information cards and posting signs. On the day of assessment, he reportedly completed two hours of volunteer work for the [redacted – a political party] performing these duties, indicating of capacity to interact socially with the general public in the community.
[The Applicant] receives a rent subsidy in return for acting as building manager for his apartment complex. He was able to recall and effectively relate the duties involved in this role, such as using a master key to help people regain access to their apartments, handling noise complaints from residents, attending to the apartment complex rubbish bins, reviewing security camera footage, and providing access to the building/basement as required for maintenance or other purposes.
[The Applicant] stated that his main hobby was driving, and that he drove along the quieter eastern beaches most nights. He also walked along [redacted – a nearby beach] most nights.
Whilst he reported to have lost friends previously when his psychiatric condition was poorly controlled, he was able to detail clear steps he was currently taking to remedy this, such as volunteering for the [redacted – a political party] and using the Zello app to increase his social networks. In my opinion, [the Applicant] does not require disability specific support for social interaction and I consider it likely his social networks will grow organically and strengthen over time via the channels he is currently engaged in.[26]
[26] Exhibit A1 at 39-40.
Learning
Ms Welshe reported:
A screen of [the Applicant’s] cognition during the assessment was unable to identify any apparent barriers to effective learning. During the assessment [the Applicant] was able to demonstrate capacity for new learning by detailing new information and skills he had recently acquired in order to fulfil his obligations as building manager, including obtaining his security licence, explaining how he monitored the surveillance cameras, and explaining the different ways that fire alarms worked. He currently does not receive physical assistance, assistive technology, prompting or supervision to learn new things. There is no specific rehabilitation or intervention that I would recommend with respect to [the Applicant’s] capacity to learn as I was unable to identify disability specific barriers to him doing so independently, as evidenced by his recent capacity to learn about how to manage a building without support. In my opinion [the Applicant] does not require disability specific support to learn new things.[27]
[27] Exhibit A1 at 41.
Mobility
Ms Welshe reported:
During the assessment, I directly observed [the Applicant] mobilising to access all areas inside and outside of home, including the hallways, lift, basement, rear garden and footpath outside the front his apartment complex. His ability to mobilise was observed to be unrestricted, which is consistent with his report that he was able to walk to access shops, services and the beach which are all a 10 minute walk from his home. He was able to demonstrate mobilising sufficiently to undertake ordinary activities of daily living, such as transferring into/out of his bed, chair and shower. He was able to demonstrate using his limbs whilst mobilising, as evidenced by his capacity to carry his coffee from the kitchen to the lounge. Cognitive testing undertaken and his demonstrated capacity to sit and use his upper limbs functionally supported his assertion that he was able to use his motorised scooter or car to access the community independently.
Based on my direct observations that [the Applicant] was able to remain on his feet to walk and stand for a period of 10 to 15 minutes without difficulty/support/mobility aids, and demonstrated normal walking speed, pace and gait pattern, I conservatively estimate that he is able to walk at least one kilometre over 10 minutes without a break. This is consistent with [the Applicant’s] reported capacity to walk to attend service providers in his community and to access [redacted – a nearby beach] once per day, an estimated distance of 1 kilometre.
[The Applicant] currently does not receive physical assistance, assistive technology, prompting or supervision to mobilise. I was unable to identify any behaviours that could be addressed by intervention or recommend any assistive aids or supports in this respect as he is already fully independent in all aspects of mobility.[28]
[28] Exhibit A1 at 42-43.
Self-care
Ms Welshe reported:
During the assessment, I directly observed [the Applicant] simulating and explaining how he attended to showering, dressing, and personal hygiene without restriction. He presented as well groomed, clean shaven, neatly dressed and was not malodorous. A review of the medical records provided, including hospital records, did not provide evidence of problematic neglect of self-care. He was observed to drink from a standard cup and no physical barriers to eating/drinking were assessed or reported. [The Applicant] currently does not receive physical assistance, assistive technology, prompting .or supervision in relation to self care. [The Applicant] identified that he neglected showering at times and perceived that his diet was suboptimal. If required, a brief period of intervention by an occupational therapist and/or dietician under a Chronic Diseases Management Plan would likely provide him with strategies to improve the frequency of showering and a meal plan to follow, which I consider him to be cognitively and physically capable of implementing if he chose to do so. I do not consider that [the Applicant] requires future disability specific supports with respect to self care.[29]
[29] Exhibit A1 at 43-44.
Self-management
Ms Welshe reported:
[The Applicant’s] scores on the SMMSE indicated intact attention span, concentration, memory, language and communication skills, ability to plan and ability to understand instructions. This skill set underpins cognitive capacity to organise one's life, plan, make decisions and problem solve.
During the assessment, [the Applicant] was observed to explain his weekly budget in detail, how he paid each bill, and how he managed to "break even" each week, indicating capacity to manage finances independently. His apartment appeared neat and tidy and he was able to explain the tasks required to maintain a home to a clean and hygienic standard, indicating cognitive capacity to organise domestic chores.
He was able to describe his daily and weekly routine which included essential tasks such as shopping, paying bills, preparing meals, domestic cleaning, laundry and attending medical appointments. In the event he wanted to develop different daily habits such as eating more nutritious foods or attending to self care more frequently as stated, a brief period of intervention from an occupational therapist and/or dietician under a Chronic Diseases Management Plan would be of benefit. In the event that he wanted to secure part time employment as discussed during the assessment, he would be eligible for Centrelink's Disability Employment Services at no cost to assist in this regard.
The SMMSE conducted on the day of assessment indicated intact cognition. [The Applicant] currently does not receive physical assistance, assistive technology, prompting or supervision in relation to decision making. Whilst he previously has a history of making poor decisions, he is remorseful about this and considers that these issues were related to poor control of his psychiatric conditions, an opinion that appears to be consistent with the medical evidence which suggested that, after commencing Lurasidone in October 2017, he was less litigious and more amenable to engaging in psychological intervention.
During the assessment, [the Applicant] was able to demonstrate problem solving and subsequent decision making upon realisation that he had not allowed sufficient time for the appointment. He initially attempted to call his Psychiatrist to reschedule the appointment, however failing this, suggested and negotiated a time for me to call back to complete the interview, which he adhered to.
I therefore consider that [the Applicant] is able to make decisions independently and presented numerous examples of competent problem solving and subsequent decision making in the Functional assessment (Self Management) section earlier in the report. I consider these examples to be indicative of [the Applicant’s] capacity to make decisions regarding his personal finances, healthcare and living situation. I form this opinion based on his demonstrated capacity to go through the process of making decisions, i.e.:
1. Understanding the information and choices presented (e.g. there was not enough time allowed for my appointment, so he could either cut my appointment short or reschedule the subsequent appointment).
2. Weighing up the information to determine what the decision will mean (e.g. attempting to call the psychiatrist to find out if rescheduling was an option, and asking me questions regarding what it would mean if part of the assessment was conducted over the telephone/skype)
3. Communicating that decision (e.g. verbally advising that he was unable to get in contact with his psychiatrist and that rescheduling part of the assessment to another day was the best option, then communicating to make arrangements for this follow up appointment).
This process is consistent with the definition of capacity to make a decision as per the NSW Department of Attorney General and Justice.
I was therefore unable to identify any barriers to [the Applicant] being able to independently make appropriate decisions and do not consider that he requires disability specific support in this respect.
During the appointment, [the Applicant] was observed to call his psychiatrist in order to attempt to reschedule his appointment, indicating capacity to make an appointment. During a follow up phone call conducted on 1 May 2019, he indicated that he had attended this appointment as scheduled. His results on the LSP indicate good compliance with respect to taking medications/accepting medical advice. I therefore was unable to identify any need for assistance to make or attend appointments and note that he does not receive any physical assistance, assistive technology, prompting or supervision to make appointments at present.
I was unable to identify any rehabilitation or intervention to improve [the Applicant’s] function with respect to making appointments or decisions as he is functioning effectively in this respect at present.[30]
[30] Exhibit A1 at 44-46.
Finding
Based on the evidence of Ms Welshe I am satisfied that none of the impairments suffered by the Applicant result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, any of the activities of communication, social interaction, learning, mobility, self-care or self-management.
I accept the evidence of Ms Welshe that the Applicant is able to function at present without additional supports. Although he may at times appear not to meet the standards expected of him by others, I am not satisfied that this is a consequence of substantially reduced functional capacity as he has demonstrated an ability to function appropriately when he considers it to be necessary.
As the requirements in paragraphs (a) to (e) are cumulative, the Applicant does not meet the disability requirements set out in subsection 24(1) of the Act. Therefore it is unnecessary that I consider the requirements of subsection 24(1)(e).
ISSUE 2: DOES THE APPLICANT MEET THE EARLY INTERVENTION REQUIREMENTS IN SECTION 25 OF THE ACT?
Section 25 of the Act
Subsection 25(1) provides:
A person meets the early intervention requirements if:
(a) the person:
(i) has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent; or
(ii) has one or more identified impairments that are attributable to a psychiatric condition and are, or are likely to be, permanent; or
(iii) is a child who has 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.
Access to the NDIS Operational Guideline

Section 9 provides:
Early intervention support is available to both children and adults who meet the early intervention requirements. The intention of early intervention is to alleviate the impact of a person's impairment upon their functional capacity by providing support at the earliest possible stage. Early intervention support is also intended to benefit a person by reducing their future needs for supports.
A prospective participant will meet the early intervention requirements if they meet each of the following requirements:
the person:
i.       has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent (section 25(1)(a)(i)); or
ii.      has one or more identified impairments that are attributable to a psychiatric condition that are, or are likely to be, permanent (section 25(1)(a)(ii)); or
iii.      is a child who has developmental delay (section 25(1)(a)(iii)); and
the NDIA is satisfied that provision of early intervention supports is likely to benefit the person by reducing their future needs for disability related supports (section 25(1)(b)); and
the NDIA is satisfied that provision of early intervention supports is likely to benefit the person by:
i.       mitigating or alleviating the impact of the person's impairment upon their functional capacity to undertake communication, social interaction, learning, mobility, self-care or self-management (section 25(1)(c)(i)); or
ii.      preventing the deterioration of such functional capacity (section 25(1)(c)(ii)); or
iii.      improving such functional capacity (section 25(1)(c)(iii); or
iv. strengthening the sustainability of informal supports available to the person, including through building the capacity of the person's carer (section 25(1)(c)(iv)); and
the NDIA is satisfied early intervention support for the person is most appropriately funded or provided through the NDIS (section 25(3)).
Note, in certain circumstances, a person with a degenerative condition could meet the early intervention requirements and become a participant in the NDIS.
National Disability Insurance Scheme (Becoming a Participant) Rules 2016
The Rules provide, in part:
Part 6 When does a person meet the early intervention requirements?
…
Deciding whether provision of early intervention supports is likely to benefit the person
6.8 Where paragraph 6.2(a) applies to a person, the main way in which the CEO can determine whether the provision of early intervention supports is likely to benefit the person in the ways set out in paragraphs 6.2(b) and (c) above is to consider evidence going to those matters, as indicated in paragraph 6.9 below. ………..
Where evidence is required
6.9 In deciding whether provision of early intervention supports is likely to benefit the person in the ways mentioned in paragraphs 6.2(b) and (c) above, it is expected that the CEO would consider:
(a) the likely trajectory and impact of the person's impairment over time; and
(b) the potential benefits of early intervention on the impact of the impairment on the person's functional capacity and in reducing their future needs for supports; and
(c) evidence from a range of sources, such as information provided by the person with disability or their family members or carers. The CEO may also in some cases seek expert opinion.
Are the impairments suffered by the Applicant, or likely to be, permanent? (s25(1)(a))
The Respondent agrees that the Tribunal can be satisfied that the Applicant has a disability attributable to an impairment or impairments that is or is likely to be permanent.[31] On the evidence before me I am satisfied that this is an appropriate concession.
Is the Tribunal satisfied that the provision of early intervention supports for the Applicant is likely to benefit him by reducing his future needs for supports in relation to disability? (s25(1)(b))
[31] Respondent’s Post Hearing Submissions dated 21 September 2000 at para. 45.
It was argued on behalf of the Applicant that:
…… early intervention supports in the form of assistance with the activities as set out …… [by Ms Battersby] are likely to benefit the Applicant by reducing the Applicant’s future needs for supports in relation to his disabilities. Further Ms Battersby gave evidence that in her view if supports were not provided to the Applicant the likely trajectory of his impairments over time would either stay the same or gradually reduce further.[32]
[32] Applicant’s Submissions dated 31 August 2021 at [66] and transcript, 6 August 2020 at 31.
For the reasons already stated, I prefer the opinions of Ms Welshe to those of Ms Battersby. Ms Battersby’s opinion as to the likely trajectory of the Applicant’s impairments was formed on the basis of incomplete information.
Based on the evidence of Ms Welshe, set out in paragraphs 51 to 56 above, I am satisfied that at present the Applicant does not need any support in respect of any of the functions to which she referred. On the same basis, I am satisfied also that it is unlikely that he will develop needs for support in these activities in future. In these circumstances I am not satisfied that the Applicant is likely to be benefitted by reducing his future needs for supports in relation to his disabilities.
Is the early intervention support more appropriately funded through other general systems of service delivery or support services? (subsection 25(3))
Had I been satisfied that the Applicant met the requirements of subsection 25(1)(b), the Applicant would still not meet the early intervention requirements by reason of the provisions of subsection 25(3).
Apart from the support presently being provided to the Applicant by his health professionals, the only assistance Ms Welshe considered may be of benefit to him was that which could be provided under a Chronic Diseases Management Plan and/or Centrelink’s Disability Employment Services. These are systems of service delivery other than the Scheme.
I take into account also that, in 2015, Dr Roberts reported that “irrespective of other factors the predominant issue impacting upon [the Applicant’s] well-being and his ability to participate in the workforce, remains his untreated psychiatric condition.” Such treatment is funded outside the Scheme and is presently availed of by the Applicant
Had early intervention support been required, I would have been satisfied that such support for the Applicant is not most appropriately funded or provided through the Scheme.
CONCLUSION
The reviewable decision made 3 September 2018, refusing the Applicant access to the National Disability Insurance Scheme, will be affirmed.

I certify that the preceding 72 (seventy -two) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance

.............................[SGD]...........................................
Associate
Dated: 19 February 2021

Date(s) of hearing: 6 and 7 August 2020

Date final submissions received: 21 September 2020

Solicitors for the Applicant: M Zraika, Cogent Lawyers

Counsel for the Respondent: R Graycar

Solicitors for the Respondent: L Beale, Maddocks Lawyers

[2021] AATA 379

19 February 2021

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Appeal

Date(s) of hearing:	6 and 7 August 2020
Date final submissions received:	21 September 2020
Solicitors for the Applicant:	M Zraika, Cogent Lawyers
Counsel for the Respondent:	R Graycar
Solicitors for the Respondent:	L Beale, Maddocks Lawyers