Holmes and National Disability Insurance Agency

[2024] AATA 186

Holmes and National Disability Insurance Agency [2024] AATA 186 (12 February 2024)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2022/3366

Re:Emily Jane Holmes

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Senior Member George

Date:12 February 2024

Place:Adelaide

The Reviewable Decision of 14 April 2022 is affirmed.

.................[Sgnd].......................................................

Senior Member George

CATCHWORDS

NATIONAL DISABILITY INSURANCE SCHEME – whether Applicant is a person who meets the access criteria set out under section 24 NDIS Act – congenital heart disease -– fatigue – whether condition results in substantially reduced functional capacity – decision under review affirmed.

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

National Disability Insurance Scheme Act 2013 (Cth)

REASONS FOR DECISION

Senior Member George

12 February 2024

1. Ms Emily Holmes requested access to become a participant of the National Disability Insurance Scheme (“NDIS”) on 3 December 2020 for a primary disability of congenital heart disease. Secondary disabilities were listed as “multiple surgeries” and “chronic lethargy/fatigue”.[1]

   [1] Exhibit R3, Combined Evidence Bundle, Access Request Form, Dr James Herbert, page 28.

2. On 16 February 2022, the Respondent refused Ms Holmes’ access to the NDIS under s 20 of the National Disability Insurance Scheme Act 2013 (Cth) (“the Act”). On 9 March 2022, the Applicant sought an internal review of the decision under s 99 of the Act.

3. On 14 April 2022, a delegate of the Respondent made an internal review decision under s 100(6) of the Act affirming the original decision (“the Reviewable Decision”). On 27 April 2022, the Applicant applied to the Tribunal for a review of the Reviewable Decision.

4. The primary issue for the Tribunal is whether Ms Holmes’ congenital heart disease has resulted in a substantial reduction in functional capacity, in particular by way of chronic lethargy and fatigue.

5. For the following reasons, the Reviewable Decision is affirmed.

   LEGISLATIVE FRAMEWORK

6. For Ms Holmes to meet the access criteria of the NDIS she must, amongst other things, satisfy the Tribunal under s 21(1)(c)(i) of the Act that she meets the disability requirements under s 24 of the Act. It is not in issue that Ms Holmes has congenital heart disease, which is a permanent impairment, within the meaning of ss 24(1)(a)-(b) of the Act.

7. Under s 24(1)(c) of the Act, Ms Holmes will meet the disability requirements of participation in the NDIS if her impairments result in substantially reduced functional capacity to undertake one or more of the following activities: communication, social interaction, learning, mobility, self-care, and self-management.

   SUMMARY OF MATERIAL FACTS

8. Ms Holmes is aged 42 years. She was born with complex congenital heart disease called Tetralogy of Fallot.[2] She has had several surgeries throughout her life including open heart surgery to implant a replacement valve in her heart. Ms Holmes says that her impairment causes her constant pain, and she always feels exhausted.[3]

   [2] Exhibit R3, Combined Evidence Bundle, Letter of Dr Disney, pages 205-206.

   [3] Exhibit R3, Combined Evidence Bundle, Email of Applicant, page 202.

9. Ms Holmes is a single mother and resides with her two daughters for whom she has full care and responsibility. Her children have special needs. Ms Holmes used to have daily support from her mother but that ceased when she had to move houses. During Ms Holmes’ oral evidence, it became clear that she relies on her children to perform domestic chores in the home such as washing dishes, taking out the bin and hanging out the washing. Her mother pays for a meal service which delivers meals to her home on a weekly basis and Ms Holmes does her weekly grocery shopping online.

10. Ms Holmes has long suffered from fatigue. In July 2008, cardiologist Dr Ian Button noted that Ms Holmes had a “variable exercise capacity but is often quite tired all day”. Dr Button noted Ms Holmes’ blood pressure of 60 in the right radial pulse and 95/70 in the left, noting the differential blood pressure, he wondered if she suffered radio femoral delay. Dr Button advised Ms Holmes “not to attempt conception and to avoid the extremes of exertion”.[4]

    [4] Exhibit R3, Combined Evidence Bundle, Letter of Dr Button, pages 543-544.

11. In September 2008, gynaecologist Dr Louise Hull noted that Ms Holmes had been trying to conceive. Dr Hull opined that Ms Holmes may have an anovulation problem and recommended that Ms Holmes consult a geneticist.[5]

    [5] Exhibit R3, Combined Evidence Bundle, Letter of Dr Hull, page 452.

12. In March 2009, cardiologist Dr Philip Adams noted that Ms Holmes’ exercise capacity had reduced to 6 minutes from a predicted 9 ¾ to 10 ¾ minutes.[6]

    [6] Exhibit R3, Combined Evidence Bundle, Letter of Dr Adams, page 537.

13. In February 2010, Dr Adams observed that Ms Holmes’ blood pressure was “a little lowish” and that could account for her tiredness.[7] Dr Adams noted that Ms Holmes was probably pregnant, and, in her oral evidence, Ms Holmes said that she had many miscarriages during this time.

    [7] Exhibit R3, Combined Evidence Bundle, Letter of Dr Adams, page 535.

14. It is unnecessary to repeat Ms Holmes’ medical history in full, suffice to note that her cardiac treatment was reduced between consulting Dr Adams in 2010 and cardiologist Dr Luan Huynh in October 2018.[8] Although Dr Huynh did not note that Ms Holmes was complaining of tiredness on that occasion, cardiologist Dr Patrick Disney noted in November that it was Ms Holmes’ main complaint. Dr Disney reassured Ms Holmes that “I do not think that any of her fatigue relates to her heart.”[9]

    [8] Exhibit R3, Combined Evidence Bundle, Letter of Dr Huynh, page 380.

    [9] Exhibit R3, Combined Evidence Bundle, Letter of Dr Disney, page 378.

15. Ms Holmes says that her fatigue has resulted in her feeling socially isolated. She needs to rest during the day which impacts her ability to complete activities. She drops her children off at school but remains in her vehicle. When taking her children to out of school activities, she must park close to the event to avoid feeling fatigued. If she cannot find a suitable park, she and her children simply do not attend the activity.

16. Ms Holmes says that she finds it difficult to interact verbally to others as it results in feelings of breathlessness. She rarely talks to people on the telephone and instead engages with one or two people via online messaging.

17. The Respondent consulted Ms Belinda Dwyer, an Occupational Therapist, to conduct an Independent Functional Capacity Assessment Report of Ms Holmes. In her report of April 2023, Ms Holmes noted that her primary difficulties are:

    “Fatigue on a daily basis impacting her engagement in all domains of activities of daily living – decreased endurance – reduced walking tolerance to < 100 meters – exhaustion with the exertion of bending – breathlessness when talking – trouble hearing some tones.”[10]

    [10] Exhibit R3, Combined Evidence Bundle, Report of Belinda Dwyer Occupational Therapist, page 224.

18. Ms Dwyer formed a view that it was the reduction in blood flow between the heart and lungs that resulted in Ms Holmes’ lowered oxygen saturation, shortness of breath on exertion, and high fatigue. In her oral evidence, Ms Dwyer noted that she had not used a pulse oximeter to measure Ms Holmes’ lowered oxygen saturation and she also deferred to Dr Disney regarding cardiological opinion.

19. In May 2023, Dr Disney addressed questions posed to him about Ms Holmes. Dr Disney had not seen Ms Holmes since 2019. In his letter he addressed the question of whether the Applicant’s symptoms were related to her heart. Dr Disney expressed an opinion that he did not believe that Ms Holmes had any significant symptoms or impairments related to her heart. He opined that Ms Holmes’ heart was functioning well and that he did not think it should cause her functional limitation. Dr Disney said that he was not aware that Ms Holmes would need physical assistance for normal activities of daily living. Dr Disney concluded that neuropsychological testing may be beneficial.[11]

    [11] Exhibit R3, Combined Evidence Bundle, Letter of Dr Disney, pages 205-206.

    CONSIDERATION

20. It is clear from the material facts that Ms Holmes suffers from fatigue. It is in contest whether the fatigue has resulted in a substantial reduction in functional capacity. This contest aside, the first question for the Tribunal to consider is whether Ms Holmes’ fatigue is attributable to her congenital heart disease.

21. Central to Ms Holmes’ case is her belief that her fatigue is caused by her heart condition. In support of her belief, Ms Holmes submitted that the Tribunal should prefer Ms Dwyer’s evidence over Dr Disney’s evidence.

22. Dr Disney’s evidence is that he was not of the opinion that Ms Holmes’s fatigue was in any way related to her heart condition. Although he did not appear at the hearing, Dr Disney’s evidence is so unequivocal that it is difficult to see how his view could be altered.

23. Ms Dwyer believed there was a link between Ms Holmes’ heart condition and her fatigue, but this was an opinion expressed in an occupational therapy assessment and was not formed after examination with a pulse oximeter. In examination-in-chief, Ms Dwyer was deferential to Dr Disney’s speciality as a cardiologist regarding Ms Holmes’ heart issues.

24. On the conflicting evidence before it, the Tribunal is not satisfied that Ms Holmes’ fatigue is attributable to her congenital heart disease. Accordingly, Ms Holmes does not meet the disability requirements under s 24 or the access criteria under s 21(1)(c)(i) of the Act.

25. Given the findings made above, the remaining considerations in s 24(1) of the Act are not relevant. Similarly, any question of Ms Holmes meeting the early intervention requirements of s 25 of the Act is also not relevant.

26. With the findings made in the matter, the Tribunal must affirm the Reviewable Decision of 14 April 2022.

    DECISION

27. The Reviewable Decision of 14 April 2022 is affirmed.

I certify that the preceding twenty-five (27) paragraphs are a true copy of the reasons for the decision herein of Senior Member George

.............................[Sgnd]..............................

Associate

Date of Decision:

12 February 2024

Date of Hearing:

24 and 25 January 2024

Representation for the Applicant:

Self-represented

Solicitor for the Respondent:

Counsel for the Respondent:

Ms Tamara Economou
HWL Ebsworth

Mr Paul d’Assumpcao

ANNEXURE A – EXHIBIT REGISTER

28.     EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED	DATE TENDERED
R1	Respondent’s Statement of Facts, Issues and Contentions	R	17/7/2023	17/7/2023	24/1/2024
R2	Respondent’s List of Authorities	R	N/A	29/7/2022
R3	Combined Evidence Bundle	R	N/A	3/11/2023