Holmes & National Disability Insurance Agency
[2017] AATA 2750
•21 December 2017
Holmes and National Disability Insurance Agency [2017] AATA 2750 (21 December 2017)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s):2017/3618
Re:Noel Holmes
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Professor R McCallum AO, Member
Date:21 December 2017
Place:Sydney
The decision under review is affirmed.
........................[sgd]................................................
Professor R McCallum AO, Member
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – access – post traumatic stress disorder – emphysema – neck and throat condition – whether the applicant satisfies the disability requirements – the applicant does not meet the disability requirements - whether the applicant satisfies the early intervention requirements – the applicant does not meet the early intervention requirements – decision under review affirmed
LEGISLATION
National Disability Insurance Scheme Act 2013 (Cth) ss 3, 4, 21, 22, 23, 24, 25, 100, 103, 209
National Disability Insurance Scheme (Becoming a Participant) Rules 2013 (Cth) rr 5.4, 5.5, 5.8, 6.9
CASES
Mulligan and the National Disability Insurance Agency [2015] AATA 974
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634.
SECONDARY MATERIALS
Operational Guidelines – Access to the NDIS (the Guidelines)
REASONS FOR DECISION
The Applicant, Mr Noel Holmes lives in rural New South Wales and is aged in his sixties.
On 9 September 2016, Mr Holmes completed a verbal access request to become a participant in the National Disability Insurance Scheme (the NDIS).
However, on 16 December 2016, a letter of that date from a delegate of the CEO of the National Disability Insurance Agency (the NDIA) informed Mr Holmes that his application was unsuccessful as he did not meet the access requirements of the NDIS as set out in sections 21-25 of the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act).
On that same day, Mr Homes verbally requested an internal review of this decision.
On 14 February 2017, an NDIA access request supporting evidence form was completed by Mr Holmes and by Dr A K M Nazrul Islam who was Mr Holmes general practitioner.
Dr Islam stated that Mr Holmes primary impairment was Emphysema which he had contracted at least ten years ago. The current treatment for this disability was the use of a respiratory inhaler.
Dr Islam also stated that Mr Holmes suffered from a narrowing of the throat and neck condition. He was unable to open his mouth; there was a hardening of the neck with limited rotation; and difficulty in swallowing owing to a dry mouth. This impairment was contracted following treatment for carcinoma of the tonsil, that is cancer of the tonsil.
Dr Islam further stated that Mr Holmes suffered from post-traumatic stress disorder (PTSD).
Dr Islam wrote that no assessments have been made of Mr Holmes impairments.
Section 3 of the NDIA access request supporting evidence form requires the medical practitioner to give details of the functional impact of the impairments. In relation to mobility, Dr Islam ticked that Mr Holmes requires special equipment and assistance from other persons. Dr Islam detailed that what was required was a mobility scooter and a carer.
In relation to communication, Dr Islam ticked that Mr Holmes requires assistance from other persons. He detailed assistance from a carer to give guidance and supervision when dealing with others.
Dr Islam did not tick that Mr Holmes required assistance with social interaction or with learning.
On 24 April 2017, the internal review decision letter affirmed the original decision refusing admission to the NDIS by Mr Holmes.
Mr Holmes now appeals to the NDIS Division of the Administrative Appeals Tribunal seeking a review of the 24 April 2017 review decision.
The Access Criteria
To become a participant in the NDIS, Mr Holmes must satisfy the access criteria. Section 21(1) of the NDIS Act helpfully summarises the access criteria as follows:
21 When a person meets the access criteria
(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).
The parties agree that Mr Holmes met the age requirements as of 9 September 2016 in section 22 of the NDIS Act. The parties further agree that Mr Holmes meets the residence requirements in section 23 of the NDIS Act.
Therefore, Mr Holmes will fulfil the access criteria if he meets either the disability requirements as set out in section 24 of the NDIS Act, or the early intervention requirements as set out in section 25 of the NDIS Act. Sections 24 and 25 of the NDIS Act are as follows:
24 Disability requirements
(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 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.
(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.
25 Early intervention requirements
(1) 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 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; and
(c)the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by:
(i) mitigating or alleviating the impact of the person’s impairment upon the functional capacity of the person to undertake communication, social interaction, learning, mobility, self‑care or self‑management; or
(ii) preventing the deterioration of such functional capacity; or
(iii) improving such functional capacity; or
(iv) strengthening the sustainability of informal supports available to the person, including through building the capacity of the person’s carer.
Note: In certain circumstances, a person with a degenerative condition could meet the early intervention requirements and therefore become a participant.
(2) The CEO is taken to be satisfied as mentioned in paragraphs (1)(b) and (c) if one or more of the person’s impairments are prescribed by the National Disability Insurance Scheme rules for the purposes of this subsection.
(3) Despite subsections (1) and (2), the person does not meet the early intervention requirements if the CEO is satisfied that early intervention support for the person is not most appropriately funded or provided through the National Disability Insurance Scheme, and is more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or through systems of service delivery or support services offered:
(a)as part of a universal service obligation; or
(b)in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
Of course, sections 24 and 25 are only two provisions in a detailed statute governing the NDIS. These provisions must be interpreted having regard to the entire statute and section 24 and section 25 must be read in conformity with the purposes and objects of the Act. The Parliament of Australia has expressly provided objects and principles in the NDIS Act to give guidance on the interpretation of the statute and these apply to the interpretation of sections 24 and 25.
It is not necessary to set out the objects and principles in their entirety, but for the purposes of this decision, the following objects and principles are reproduced.
3 Objects of Act
(1) The objects of this Act are to:
(a)in conjunction with other laws, give effect to Australia’s obligations under the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006 ([2008] ATS 12); and
(b)provide for the National Disability Insurance Scheme in Australia; and
(c)support the independence and social and economic participation of people with disability; and
…
(e)enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports;
…
and
(f)facilitate the development of a nationally consistent approach to the access to, and the planning and funding of, supports for people with disability;
…
(3) In giving effect to the objects of the Act, regard is to be had to:
…
(b)the need to ensure the financial sustainability of the National Disability Insurance Scheme;
…
4 General principles guiding actions under this Act
…
(4) People with disability should be supported to exercise choice, including in relation to taking reasonable risks, in the pursuit of their goals and the planning and delivery of their supports.
…
(12) The role of families, carers and other significant persons in the lives of people with disability is to be acknowledged and respected.
…
(17) It is the intention of the Parliament that the Ministerial Council, the Minister, the Board, the CEO and any other person or body is to perform functions and exercise powers under this Act in accordance with these principles, having regard to:
(a)the progressive implementation of the National Disability Insurance Scheme; and
(b)the need to ensure the financial sustainability of the National Disability Insurance Scheme.
Under section 209(1) of the NDIS Act, the Minister has made Rules about matters concerning determinations under the Act. Relevant to these proceedings are the National Disability Insurance Scheme (Becoming a Participant) Rules 2013 (Cth) (the Rules). The rules are part of the legislation, and I shall refer to the Rules later in this decision.
The CEO of the NDIA has made Operational Guidelines to assist staff in making decisions and performing other functions under the NDIS Act. The Operational Guidelines represent government policy and should be applied by the Tribunal unless there is good reason not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[1979] AATA 179; (1979) 2 ALD 634.
For the purposes of the matter before me, the relevant operational guidelines are the Operational Guidelines – Access to the NDIS (the Guidelines).
Chapter 8 of the Guidelines is titled “The Disability Requirements”, and Chapter 9 is titled “The Early Intervention Requirements”. I shall refer to the Guidelines later in this decision.
The Hearing
Mr Holmes attended the hearing by telephone and he represented himself. The Tribunal asked him whether he had applied for assistance to any of the advocacy schemes. Mr Holmes said that he had not applied because he did not wish other persons to know about his business.
Mr Holmes gave evidence by affirmation over the telephone.
Mr Holmes was asked about his disabilities. In relation to his PTSD, Mr Holmes said that he was in Thailand in 2004 when the Boxing Day Tsunami occurred. Ever since, he has had PTSD.
Mr Holmes said that he saw two psychiatrists. He last saw Dr Klaas Akkerman about ten years ago. There is a report from Dr Akkerman before the Tribunal dated 6 December 2007. Dr Akkerman’s report reads in part as follows:
As you know, he was a man who was in the tsunami in‘Thailand. He had a bar on Phuket. He could have died.
He showed me some correspondence from Dr Holmes, a Psychiatrist in Kempsey. I concur with the diagnosis of Post Traumatic Stress Disorder and Major Depression.
He said:
· He becomes upset when he thinks about it
· He uses avoidance
· He startles easily
· He is hypervigilant
· He has nightmares
· He has flashbacks
· He believes he is different from others
· He has a restricted affect
He does not have a sense of foreshortened future. There is no psychogenic amnesia.
He also suffers from Major Depression. He reported the following symptoms:
· His sleep is disturbed
· His concentration is impaired
· His short term memory is down
· He lacks energy
· His level of interest in things is low
· His appetite is decreased
· His libido is down
· He is very irritable
· He is somewhat tearful
I restarted him on Efexor. He is currently taking 75mg per day. In the past he has been on Lexapro, Lovan and something else. Ail antidepressants are efficacious in Post Traumatic Stress Disorder. We need to reduce his hyper-arousal first. Antidepressants are the way to go.
I have told him to increase the Efexor to 150mg per day. He has already trialled three antidepressants. This is a worry.
He will improve a lot but he will have to show some tenacity. He also told me he has recently won an appeal against Centrelink regarding his pension. He is happy about this.
I have increased his medication to 150mg per day. I will review him in three weeks. Many thanks for referring him. I will keep you informed.
Mr Holmes said that he did not go back to Dr Akkerman because Dr Akkerman wished him to increase the strength of the tablets. He had chemotherapy for carcinoma of the tonsil and did not wish to take anymore medication. Mr Holmes said that he is no longer receiving any psychiatric help or counseling and is not currently on any medication.
In relation to his disability of a narrowing of the throat resulting from cancer of the tonsil, Mr Holmes said that he had chemotherapy for cancer of the tonsil in Thailand in 2004. His throat closes up and he has trouble swallowing. He cannot rotate his head properly.
Mr Holmes said he has had some treatment for these issues including dialation of the throat. He said that his daughter, who is a student physiotherapist, massages his neck as does his wife.
In relation to his emphysema, Mr Holmes said that he contracted this impairment when working in coal mining. His emphysema leads to shortness of breath.
He stated he is fatigued a lot.
Mr Holmes said that he had emphysema for ten years. He has a prescription for a respiratory inhaler which helps him breathe.
In a report from Dr Peter Broad, dated 22 October 2009 which is before the Tribunal, Dr Broad recommended treatments including a lung rehabilitation test. Mr Holmes said that he had not undertaken this test.
Mr Holmes was asked how his disabilities limit him. He said that he cannot walk very far and is often out of breath. Mr Holmes said that he cannot turn from side to side safely. He can walk 50m before he has to rest. After a rest he can continue walking.
Mr Holmes said that he would like a mobility scooter to enable him to be mobile. Mr Holmes said that he needs assistance having a shower as he cannot wash himself properly.
He said his condition/mobility varies depending on what day it is.
Mr Holmes said he can walk to the toilet without problems.
Mr Holmes stated that he has no problems with communication.
Mr Holmes said that he tries to feed himself, but struggles with this and so his wife helps him. He has difficulty swallowing as he has no saliva as a result of the radiation. This means that he has to have a drink after each mouthful.
Mr Holmes said that his wife was his carer, however, he said that he did not know whether she received a carer’s allowance. Mr Holmes receives the Disability Support Pension.
Mr Holmes said that his PTSD leads him to avoiding social interaction, and he often wanders off on his own.
In cross-examination, Mr Holmes was taken to the NDIA access request supporting evidence form which was filled out by Mr Holmes and Dr Islam on 14 February 2017. It was put to Mr Holmes that on the form it was stated that no assessments were undertaken of his impairments. Mr Holmes confirmed that this was correct.
Mr Holmes attached a series of medical reports to his application. Mr Holmes was taken to a number of these reports in cross-examination.
Mr Holmes was taken to a CT scan of his cervical spine which was performed on 24 August 2016. Mr Holmes said that it did not relate to any of the impairments set out in his claim for the NDIS. In other words, the CT scan had nothing to do with his emphysema, tightening of the throat or PTSD.
Mr Holmes was then taken to a report from Dr Peter Braude dated 22 October 2009 concerning, amongst other matters, his contraction of pneumonia. Mr Holmes said that the pneumonia was a consequence of the radiation and chemotherapy as the food gets stuck in his throat resulting in chest infections.
Finally, Mr Holmes was taken to a report by doctors Kwok and Sebastian dated 1 July 2013 concerning pain in his calf. Mr Holmes said that this pain did not relate to his three impairments.
No other oral evidence was before the Tribunal. Mr Holmes’ wife, who is his carer, did not attend the hearing by telephone and she did not give evidence about her caring role to the Tribunal.
CONSIDERATION
Under section 103 of the NDIS Act, the Tribunal has jurisdiction to review the internal review decision dated 24 April 2017 as it was made pursuant to subsection 100(6)(a) of the NDIS Act.
It is common ground that Mr Holmes meets the age and the residence requirements of the NDIS. Therefore, to become a participant in the NDIS, Mr Holmes must either meet the disability requirements or the early intervention requirements under sections 24 and 25 of the NDIS Act.
There is very little detailed medical evidence before the Tribunal concerning Mr Holmes’ impairments of a narrowing of the throat and related neck condition and emphysema. In relation to Mr Holmes PTSD, there is the report from Dr Akkerman dated 6 December 2007 which has been quoted above. However, this report is a decade old. In assessing whether Mr Holmes meets the disability requirements, and more especially the early intervention requirements the lack of detailed medical evidence makes these tasks difficult ones for the Tribunal.
The disability requirements
Section 24 of the NDIS Act has been set out earlier in this decision.
Section 24(1) will be satisfied if Mr Holmes meets the five requirements specified in paragraphs (a) to (e) of this provision. As each paragraph is joined by the conjunction “and” it is necessary for Mr Holmes to meet all of the requirements to become a participant in the NDIS.
I shall now examine these requirements in turn.
Does Mr Holmes have a disability within the meaning of section 24(1)(a)?
The Respondent accepts that Mr Holmes PTSD and a narrowing of the throat and neck condition are disabilities. I agree and find that these two impairments are disabilities. In relation to Mr Holmes emphysema, the Respondent relies upon Chapter 8.1 of the Guidelines which posits a narrower function-based definition of disability.
Mr Holmes gave evidence that he suffers from a shortness of breath owing to his emphysema which restricts his mobility.
Given this evidence, I find that Mr Holmes emphysema is also a disability within the meaning of this provision.
Are Mr Holmes impairments permanent within the meaning of section 24(1)(b)?
Paragraphs 5.4 and 5.5 of the Rules provide as follows:
5.4 An impairment is, or is likely to be, permanent (see paragraph 5.1(b)) only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.
5.5 An impairment may be permanent notwithstanding that the severity of its impact on the functional capacity of the person may fluctuate or there are prospects that the severity of the impact of the impairment on the person's functional capacity, including their psychosocial functioning, may improve.
After examining the evidence before me, I find that Mr Holmes impairment of PTSD is not permanent within the meaning of section 24(1)(b) of the NDIS Act and the rules. This is because he has not availed himself of treatments which would be likely to remedy this impairment. The portion of Dr Akkerman’s psychiatric report which recommends further medication is quoted above. In his evidence, Mr Holmes said that he refused to continue with the medication treatment recommended by Dr Akkerman. Mr Holmes also said that he was not currently undertaking any further treatment for his PTSD.
In relation to Mr Holmes impairment of emphysema, Dr Braude recommended a lung rehabilitation test. In his evidence, Mr Holmes said that he did not take this test. There is no further evidence before the Tribunal about the extent to which a lung rehabilitation test could assist Mr Holmes.
Having regard to the limited evidence before the Tribunal, and given the long-standing nature of his emphysema, I find that this impairment is permanent within the meaning of section 24(1)(b).
Finally, I find that the impairment of a narrowing of the throat and neck condition is permanent within the meaning of section 24(1)(b) of the NDIS Act.
Do Mr Holmes 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 within the meaning of section 24(1)(c)?
It is important to appreciate that to comply with section 24(1)(c) of the NDIS Act, Mr Holmes must show that his impairments result in substantially reduced functional capacity to undertake any one of the activities specified in subparagraphs (i) to (vi) of section 24(1)(c).
Paragraph 5.8 of the Rules is of assistance. It provides as follows:
5.8 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.
I shall now examine these activities.
In relation to communication, in his evidence Mr Holmes said that he had no difficulties with communication. I find that Mr Holmes has no difficulties with communication. He attended the two hour hearing by telephone with one break and he fully participated in the hearing.
I accept that in situations involving social interaction situations Mr Holmes has some social awkwardness. However, I find that this limitation is overwhelmingly the result of his PTSD which I have found is not a permanent impairment.
I therefore find that Mr Holmes does not have a substantially reduced functional capacity to undertake social interaction.
In relation to learning, there is no evidence before the Tribunal. Given the lack of evidence and Mr Holmes’ capacity to give evidence at this hearing, I therefore find that Mr Holmes has no difficulties with learning.
In relation to mobility, it is clear that Mr Holmes does have some limitations. In his evidence, he said that he can walk about 50 metres and then he has to rest, although he can continue walking after a break.
Mr Holmes also said that owing to his PTSD, he wanders off, and I take this to mean that he wanders off by himself.
He also said that his mobility varies from good days to bad days.
Chapter 8.3.1 of the Guidelines provides, in part, as follows:
The following information provides further guidance in relation to determining when an impairment results in substantially reduced functional capacity:
By itself, reliance on commonly used items will not result in a substantially reduced functional capacity to participate effectively or completely in an activity. Commonly used items include glasses, walking sticks, non-slip bath mats, bathroom grab rails, stair rails, age appropriate child safety locks, simple adapted kitchen utensils and dressing aids.
In considering the role played by assistive technology, home modifications and equipment, the NDIA will consider specific needs arising from the prospective participant's impairment, and whether those needs are met (or need to be met) through the use of specialist disability aids and/or equipment.
Such items would generally be specifically designed to assist in increasing the functional capacity and participation of people with disability and be formally prescribed by a medical practitioner, specialist clinician or allied health professional such as an occupational therapist, physiotherapist or speech therapist.
When considering whether a person requires assistance from others to participate or perform tasks associated with an activity, the NDIA will have regard to whether a person's need for assistance is consistent with normal expectations of a person of a similar age.
…
A person will be considered to be unable to participate effectively or completely in an activity if they cannot safely complete one or more of the tasks required to participate in an acceptable period of time. Undertaking a task more slowly or differently to others will not necessarily mean a person cannot participate effectively or completely in an activity.
When considering whether a fluctuating or episodic impairment results in substantially reduced functional capacity to undertake relevant activities, the NDIA will consider the impact on the person's ability to function in the periods between acute episodes.
In his evidence, Mr Holmes said that he would like a mobility scooter to increase his mobility. This is a relatively common piece of technology. There is no evidence that a medical practitioner has prescribed a mobility scooter for him. However, Dr Islam did recommend a mobility scooter when he filled out the NDIA access request supporting evidence form on 14 February 2017.
In his evidence, Mr Holmes did not say that his mobility was restricted in other ways apart from his limitations in walking. For example, there is no evidence that Mr Holmes has difficulties in getting in and out of a chair or a bed, or in doing chores around the home.
Having regard to all of the evidence, and especially to Mr Holmes evidence that he can walk 50 meters at a time, I find that although Mr Holmes has some difficulties with mobility, they do not amount to a substantially reduced capacity in his mobility.
In relation to self-care, Mr Holmes does have some difficulties. There is not a great deal of evidence before the Tribunal. Mr Holmes said that his conditions vary. He does need some assistance in the shower to wash himself all over, but from his evidence on good days he needs less assistance.
Mr Holmes also needs some assistance with feeding, given his difficulty in swallowing and his dry mouth. Mr Homes said that he can go to the toilet by himself. There is no evidence that he has difficulty in dressing, in undressing and in shaving.
As was noted above, there is no evidence before the Tribunal from Mr Holmes wife who is his carer about what assistance she gives Mr Holmes in showering and in feeding.
Having regard to the evidence before the Tribunal, I find that Mr Holmes has some difficulties with self-care. However, I further find that these difficulties do not amount to a substantially reduced capacity in his self-care.
Finally, there is no evidence about any limitations which Mr Holmes has in self-management. At the hearing, he was able to recount events, put his views with clarity and to concentrate throughout the hearing. Therefore, I find that Mr Holmes has no difficulties with self-management.
From what has been written above, I find that in relation to the activities set out in section 24(1)(c) of the NDIS Act, Mr Holmes does not have a substantially reduced functional capacity to undertake any of the activities listed in this provision.
Do Mr Holmes impairments affect his capacity for social or economic participation Within the meaning of section 24(1)(d)?
I am clearly of the view that Mr Holmes emphysema does affect his capacity for economic participation as it most certainly truncates his capacity to undertake employment. This is sufficient to hold that Mr Holmes fulfils section 24(1)(d) of the NDIS Act.
Is Mr Holmes likely to require support under the National Disability Insurance Scheme for his lifetime within the meaning of section 24(1)(e)?
In Mulligan and the National Disability Insurance Agency [2015] AATA 974, Senior Member Toohey and I made the following comment on section 24(1)(e) of the NDIS Act. We said at [153]:
It is difficult to know what to make of s 24(1)(e). It is easier to say what it does not mean than what it does mean. Given that it is one of the disability requirements, its purpose must be to distinguish that subset of people with serious and permanent disabilities who are intended to be the beneficiaries of funded supports.
Chapter 8.5 of the Guidelines does give some guidance. It is as follows:
8.5 When is a person likely to require support under the NDIS for their lifetime?
The NDIA must also be satisfied that the prospective participant is likely to require support under the NDIS for the rest of their lifetime (section 24(1)(e)).
If an impairment varies in intensity (for example, because the impairment is of a chronic episodic nature) the person may still be assessed as likely to require support under the NDIS for the person's lifetime, despite the variation (section 24(2)).
The NDIA is required to consider a prospective participant's overall circumstances and conclude that the person will require support under the NDIS for their lifetime. The purpose of this requirement seems to be to distinguish that subset of people with serious and permanent disabilities who are intended to be the beneficiaries of funded supports (Mulligan and NDIA [2015] AATA 974 at [153]).
For example, if a person's support needs arise from a health condition and are most appropriately provided through another service system (i.e. the health system) then the person will not require support under the NDIS for their lifetime. Rather, the person will require support under the health system.
When considering this criterion, the NDIA does not need to be satisfied that the support/s required for the person's lifetime meet the reasonable and necessary criteria. The reasonable and necessary criteria are relevant to whether funding is provided, not whether a person meets the disability requirements (see Mulligan and NDIA [2014] AATA 374 at [53] and Mulligan and NDIA [2015] AATA 974 at [146]–[150]).
Mr Holmes’ permanent impairments are emphysema and a narrowing of the throat and neck condition.
Given that I have found that Mr Holmes does not comply with section 24(1)(c) of the NDIS Act, nothing much turns upon my finding with respect to section 24(1)(e) of the NDIS Act.
On the limited evidence before me, I am unable to find that Mr Holmes impairments of emphysema and a narrowing of the throat and neck condition are best managed by the health system. While Mr Holmes uses an inhaler prescribed by his doctor, there is insufficient evidence about future medical interventions flowing from a lung rehabilitation test.
Therefore, I am unable to conclude that Mr Holmes will not require assistance under the NDIS for his lifetime.
I find that Mr Holmes does comply with section 24(1)(e) of the NDIS Act.
As Mr Holmes does not comply with section 24(1)(c) of the NDIS Act, I find that he does not fulfil the disability requirements to become a participant in the NDIS.
Early intervention Requirements
The early intervention requirements are set forth in section 25 of the NDIS Act which has been reproduced above.
The opening words of Chapter 9 of the Guidelines explain the purposes of the early intervention requirements. The Guidelines state as follows:
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.
The key elements of the early intervention requirements are set out in section 25(1)(b) and (c). It is easiest to reproduce these paragraphs again. They provide as follows:
25 Early intervention requirements
(1) A person meets the early intervention requirements if:
…
(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.
Paragraphs (b) and (c) require the CEO of the NDIA to be “satisfied that provision of early intervention supports for the person is likely to benefit the person” in various ways.
Paragraph (b) requires a state of satisfaction that the provision of early intervention supports is likely to benefit the person by reducing the person’s future needs for supports in relation to disability.
Paragraph (c) requires a state of satisfaction that the provision of early intervention supports is likely to benefit the person in ways which are set out in its four subparagraphs which have been reproduced above. It will suffice to note that Subparagraph (i) requires the person to benefit through the provision of early intervention supports which will mitigate or alleviate “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”.
Rule 6.9 of the Rules amplifies how the CEO of the NDIA is to be satisfied whether the provision of early intervention supports is likely to benefit a person under section 25(1)(b) and (c) of the NDIS Act.
Rule 6.9 provides as follows:
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.
Paragraph 6.9 does not compel the CEO to take the actions mentioned in that paragraph in any particular instance.
Rule 9.3 of the Guidelines is as follows:
9.3 Determining whether early intervention supports are likely to benefit the person
The NDIA must be satisfied that the provision of early intervention supports (except for children with developmental delay) is likely to benefit the prospective participant by:
· reducing the person's future needs for supports in relation to disability (section 25(1)(b)); and
· achieving one or more of the following four outcomes:
(i) mitigating or alleviating the impact of the person's impairment upon the functional capacity of the person to undertake one or more activities (section 25(1)(c)(i)); or
(ii) preventing the deterioration of such functional capacity (section 25(1)(c)(ii));
(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)).
When considering whether the provision of early intervention supports is likely to benefit the person, the NDIA should consider:
· the likely trajectory and impact of the person's impairment over time (rule 6.9(a) of the Becoming a Participant Rules); and
· 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 (rule 6.9(b) of the Becoming a Participant Rules); and
· evidence from a range of sources, such as information provided by the prospective participant or their family members or carers. The NDIA may also in some cases seek expert opinion (rule 6.9(c) of the Becoming a Participant Rules).
When considering if a person is likely to benefit from early intervention supports, the NDIA may consider factors such as the time elapsed since the onset or diagnosis of the disability and whether there has been a recent, or impending, significant change in the person's impairment or disability
As I have noted earlier, there is very little medical evidence about Mr Holmes’ permanent impairments of a narrowing of the throat and neck condition and his emphysema. There is no evidence about the likely trajectory and impact of these impairments.
There is no evidence concerning the potential benefits of early intervention on the impact of these impairments on Mr Holmes functional capacity and in reducing his future needs for supports etc.
I find that there is insufficient evidence before me as I stand in the shoes of the CEO of the NDIA, to enable me to attain a state of satisfaction that early intervention supports will be likely to benefit Mr Homes in the ways specified in section 25(1)(b) and (c) of the NDIS Act.
Accordingly, I find that Mr Holmes does not fulfil the early intervention requirements to enable him to become a participant in the NDIS.
CONCLUSION
As I have found that Mr Holmes does not meet either the disability requirements or the early intervention requirements, the decision set out in the internal review decision letter dated 24 April 2017 is correct.
DECISION
The decision under review is affirmed.
| I certify that the preceding 107 (one hundred and seven) paragraphs are a true copy of the reasons for the decision herein of |
..........................[sgd]..............................................
Associate
Dated: 21 December 2017
| Date(s) of hearing: | 13 December 2017 |
| Applicant: | In person |
| Solicitors for the Respondent: | Jonathan Hutton, Attorney General's Department; Laura Hinwood, National Disability Insurance Agency |
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