HPSC and National Disability Insurance Agency

Case [2021] AATA 727

HPSC and National Disability Insurance Agency [2021] AATA 727 (31 March 2021)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2019/5801

Re:HPSC

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Deputy President Gary Humphries AO

Date:31 March 2021

Place:Canberra

The reviewable decision dated 28 August 2019, made under section 20 of the National Disability Insurance Scheme Act 2013, that the Applicant does not meet the access criteria to be a participant, is affirmed.

........................................................................

Deputy President Gary Humphries AO

Catchwords

NATIONAL DISABILITY INSURANCE SCHEME – access to scheme – primary disability of anxiety – secondary disabilities of carnitine palymitoyltransferase deficiency type II and cyclic vomiting syndrome – whether impairments result in “substantially reduced functional capacity” to undertake any one or more specified activities – methodology used by experts to conduct assessment of level of impairment – decision made under section 20 of National Disability Insurance Scheme Act 2013 (Cth), that Applicant does not meet the access criteria to be a participant in the Scheme, is affirmed

Legislation

National Disability Insurance Scheme Act 2013 (Cth) ss 20, 22-25, 100(6)(a), 103

National Disability Insurance Scheme (Becoming a Participant) Rules 2016

Cases

Beezley v Repatriation Commission [2015] FCAFC 165

Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409

Ewin and National Disability Insurance Agency [2018] AATA 4726

Madelaine v NDIA AATA [2020] 4025

Mulligan and National Disability Insurance Agency [2015] AATA 974

TYKL and National Disability Insurance Agency [2021] AATA 135

Secondary Materials

NDIA Operational Guidelines

REASONS FOR DECISION

Deputy President Gary Humphries AO

31 March 2021

INTRODUCTION

  1. The Applicant is a 28-year-old woman living in Brisbane, Queensland. She seeks to become a participant to the National Disability Insurance Scheme (NDIS or the Scheme) in relation to a primary disability of anxiety and secondary disabilities of carnitine palymitoyltransferase deficiency type II (CPD) and cyclic vomiting syndrome (CVS).

  2. She has sought access to the Scheme on at least two occasions. In response to her most recent attempt a delegate of the CEO of the National Disability Insurance Agency (the NDIA or the Agency) determined on 4 June 2019 that she did not meet the access criteria under the National Disability Insurance Scheme Act 2013 (the Act). She sought internal review of that decision but on 28 August 2019 a different delegate affirmed the earlier refusal to give her access.

  3. On 12 September 2019 she sought merits review of this decision before the Tribunal. As the reviewable decision was made pursuant to section 100(6)(a) of the Act, the Tribunal has jurisdiction to review it pursuant to section 103.

  4. A hearing of her application occurred on 17 November 2020. By reason of the coronavirus pandemic the hearing was conducted by videoconference, with the Applicant and her mother (as her representative) in Brisbane and the Tribunal in Canberra. The Tribunal determined it was reasonable to hold a hearing by videoconference, having regard to the nature of this matter and the individual…

Continue reading HPSC and National Disability Insurance Agency

Sign in free to access the full text

Details
AGLC
HPSC and National Disability Insurance Agency [2021] AATA 727
Case
[2021] AATA 727
Decision Date

CaseChat Overview and Summary

This matter concerned an application for review of a decision by the National Disability Insurance Agency (NDIA) to refuse access to the National Disability Insurance Scheme (NDIS). The applicant, who suffered from primary anxiety and secondary conditions including Carnitine Palmitoyltransferase Deficiency Type II and Cyclic Vomiting Syndrome, sought to challenge the NDIA's determination that she did not meet the Scheme's access criteria. The Administrative Appeals Tribunal (AAT) was tasked with reviewing this decision.

The central legal issue before the Tribunal was whether the applicant's impairments resulted in a "substantially reduced functional capacity" to undertake any one or more of the activities specified in section 24(1)(c) of the *National Disability Insurance Scheme Act 2013* (Cth), excluding learning. This required the Tribunal to assess the applicant's functional capacity, considering what she could and could not do, and determining if her capacity was substantially reduced in relation to at least one specified activity. The Tribunal also had to consider the impact of fluctuating or episodic impairments on overall functional capacity, particularly in the periods between acute episodes, in accordance with relevant guidelines.

The Tribunal reasoned that for an episodic impairment to result in a substantially reduced functional capacity, the impact on the person's ability to function must be considered not only during acute episodes but also in the periods between them. Applying this principle, the Tribunal found that while the applicant experienced periods of significant incapacity, her day-to-day functioning, including her ability to maintain employment, study, engage in social activities, and manage personal affairs, indicated a level of functionality that did not meet the threshold for a substantially reduced functional capacity. The Tribunal noted that eligibility for the NDIS is determined by applying the statutory tests to an individual's circumstances, rather than by comparison with other individuals.

Consequently, the Tribunal affirmed the NDIA's decision of 28 August 2019, made under section 20 of the Act, that the applicant did not meet the access criteria to be a participant in the NDIS. The Tribunal concluded that the applicant's level of impairment did not reach the thresholds provided for in section 24(1)(c) of the Act.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The Agency was represented by Ms Slack of counsel.BACKGROUND The Applicant was born in Coffs Harbour and moved to Brisbane when she was 17 years old. She was diagnosed with CVS when she was an infant and with CPD when she was a teenager. She has suffered from anxiety since at least 2015. In her evidence to the Tribunal, she said that, since moving to Brisbane to attend university, she has lived in several locations. She lived first in a unit with a friend, then in another unit with another friend, then with her then boyfriend in a house for two years and then in another house with him. Later she moved into a unit with a friend, during which time her mother, who was by then living close by, provided her with care in the unit. She said she no longer has contact with the friends with whom she shared a house, as the relationships broke down because they increasingly took on the role of carers for her. Presently she lives in a unit in a tower, with her brother living in a unit in the next tower. Her mother shares her time between the two units, providing care to her two children. However, mum’s mostly with me, she said.[1][1] In this decision italics generally connote a direct quotation. The Applicant works one day a week in a costume shop. This arrangement has been in place, though sporadically, since 2014. Her role is mainly on the shop’s computer, maintaining the website, and serving customers when the shop is busy. She volunteered at the Commonwealth Games in April 2018 on the Gold Coast, where she worked in a call centre. She resumed studying for the degree of Bachelor of Arts and Communications at the University of Queensland in the second semester of 2019. She completed one unit in that semester. The study involves face-to-face interactions on the campus, although the coronavirus pandemic has modified these requirements. She said that her main hobby is cosplay, which is making up, buying and wearing costumes and role-playing in them. Her main character is Harley Quinn, though she plays other roles as well. She applies and wears make up in those roles. Her mother and another relative help her make her costumes. As part of cosplay she attends annual Supanova conventions in Brisbane and on the Gold Coast, always with the help of friends, though she doesn’t take part in the cosplay competitions there. She said she generally arrives late and needs to rest during the day. In November 2016 she attended a Supanova convention where she had a different costume to wear for each of the three days of the event. She has attended conventions most years since 2006. She is also involved in LARPing – live action role-playing – which is similar to cosplay but involves a combat element. This takes place on a field in Brisbane, involving some 50 participants. She also plays video games most evenings, for a number of hours, where she interacts with other players. Until 12 months ago the Applicant had a boyfriend. She has several female friends at present, whom she sees with varying frequency. She sees them once or twice a month. She also has some friends who are involved in cosplay/LARPing. She goes camping with friends, most recently for three days in October 2020, when they stayed in tents. She maintains social media accounts on Messenger, Instagram and Facebook. She takes part in group chats, though she said I lurk so I don’t often actively start conversations. She attends social functions such as weddings and birthday parties. She sometimes engages in creative writing, though not so much in recent years.

Evidence

Evidence Before The Court

In cross-examination the Applicant clarified that what had been stopped in the last couple of years was her cyclical vomiting, but not episodes of nausea. Before late 2018, the pattern of cyclical vomiting varied enormously; in some years she would be hospitalised only once, in others every 2-3 weeks. Inevitably, vomiting led to hospitalisation because my body’s not capable of stopping on its own.MEDICAL EVIDENCE A letter dated 22 October 2018 by the Applicant’s general practitioner, Dr Angela Sprott, was tendered. In it Dr Sprott says: [The Applicant] is a 26 year old Aboriginal woman with multiple complex health and support needs…She meets the disability requirements of the assessment criteria as set out in the guidelines for NDIA…·Her disability is attributed to a physical impairment·Her impairment is a permanent genetic condition·Are functional capacity is substantially reduced in the areas of self-care and self-management·She will require ongoing lifetime support under the NDIS scheme. [Her] impairment varies in intensity but remains permanent…This impairment is the loss and reduction of physical function. During episodes she becomes bedridden and is unable to participate in physical activities. These episodes can last from days to weeks…[The Applicant] lives with functional incapacity daily. She physically does not have the energy to move and live as people her own age do. [She] has arm and leg aches constantly which prevent activity. She relies on food for energy and supplements, as her body is unable to process fats into energy… She lives in a constant state of lethargy.[The Applicant] is unable to hold a fulltime position due to her condition and would require an extremely understanding employer who was willing to let her rest when necessary and is understanding of her need to miss work days when a condition requires hospitalisation for treatment or has her too ill to leave her bed…During episodes [she] has mobility impairments, she is unable to undertake ordinary activities of daily living and must remain in bed for days at a time and is incapacitated for weeks at a time depending on the severity of the episode. She remains at home because she does not have the energy required to walk or participate in activities. During severe episodes [she] is unable to organise her life, make plans or complete daily tasks and her anxiety spikes uncontrollably. [Her] life function capacity is well below that of her peers…During episodes [the Applicant] requires assistance, physically, with guidance and supervision to perform everyday tasks, manage her own affairs, make decisions and give informed consent, because of her weakened state, pain, vomiting and anxiety…She is unable to make plans to attend university or undertake courses because of her weakened state and the episodic and unpredictable nature of the condition. [The Applicant] will require lifetime support if she is to have success with education, employment, improve the economic and social participation and have any form of independent lifestyle and living arrangement.

Decision

Reasons for decision

To succeed in becoming a participant in the Scheme, an applicant must satisfy each of the paragraphs in section 24(1). As the Tribunal has determined that here the Applicant has not satisfied paragraph (c) of the subsection, it is unnecessary to determine whether she satisfies paragraph (e).CONCLUSION The Tribunal notes that the Applicant exhibited a relatively high degree of functionality compared with other potential participants who have applied for merits review. It was satisfied that, most of the time in her day-to-day life, she was able to hold down employment, study at university, engage in social activities with friends, move about in the community, drive a car, take overseas holidays, enter into romantic relationships and engage in outdoor activities. It could be noted that she is less able to do those things than a person who is not afflicted with her quite severe medical conditions, but it would also appear to be true that she is much more capable than a typical participant in the NDIS is. Eligibility for entry to the Scheme, however, is not determined by making comparisons with other people and their level of disability or impairment. It is determined by applying, inter alia, the tests in section 24 to an individual’s life circumstances. In this case, sadly, her level of impairment does not rise to reach the thresholds provided for in that section. Accordingly, the reviewable decision of the Agency dated 28 August 2019, made under section 20 of the Act, to the effect that the Applicant does not meet the access criteria to be a participant in the Scheme, is affirmed.

Ratio Decidendi

Legal Principle Established

The Applicant’s mother mounted a series of criticisms of the way in which the NDIA had considered her daughter’s request for access to the Scheme. She said that, given the evidence which had been supplied to the NDIA, her daughter’s access to the Scheme should never have been in question. However, the Tribunal does not have a general supervisory jurisdiction over the departments and agencies whose decisions are subject to merits review. What is before the Tribunal here is the reviewable decision of 28 August 2019. It must decide if this is the correct or preferable decision or if it should be set aside and a different decision put in its place. The way in which the reviewable decision was made is, generally speaking, irrelevant.CONSIDERATIONSection 24(1)(c) – impairments result in substantially reduced functional capacity The critical question is whether the Applicant’s impairments result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the activities listed in section 24(1)(c), other than learning. In analysing that question several important principles can be distilled from earlier decisions: (a)What is being assessed is what the Applicant can and cannot do: Mulligan v NDIA [2015] FCA 544 at [56];(b)It is sufficient if she has substantially reduced functional capacity in relation to just one activity: Mulligan at [67];(c)The relevant test is not how much better her life would be if she had access to NDIS supports: Madelaine v NDIA AATA 4025 at [72]-[73]; and(d)Functional capacity should not be characterised by what she is only able to do on a “bad day”: Madelaine at [76]. The Applicant contended that her impairments resulted in substantially reduced functional capacity to undertake all of the activities in section 24(1)(c) other than learning. Conversely, the NDIA contended that the evidence showed that her impairments do not result in a substantially reduced functional capacity to undertake any of the activities mentioned in section 24(1)(c). The evidence suggests that the conditions with which the Applicant lives fluctuate in intensity from day to day, week to week – indeed, even from year to year. It is clear that, at times, the conditions lead to a very high level of functional incapacity, while at other times to a much lower level of functional incapacity. Accordingly, an important threshold question for the Tribunal to determine is the frequency with which episodes of incapacity occur. The significance of dealing with this question is underscored by the Guidelines at 8.3 where it states: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. Before applying this guideline to the Applicant’s situation, it is important, as was made clear by Drake, for the Tribunal to satisfy itself that a subordinate instrument is consistent with the legislative scheme of the Act itself. The Tribunal has on several occasions disregarded such instruments where it considered that they were inconsistent: see for example Ewin and National Disability Insurance Agency [2018] AATA 4726 at [80]-[82]; Madelaine at [118]-[131]; TYKL and National Disability Insurance Agency [2021] AATA 135 at [103]-[108]. In the case of Guideline 8.3, consistency with the Act does not appear to be an issue. A condition which affects a person only intermittently cannot be said to substantially reduce their capacity to undertake that activity overall. What the Act seeks to do is consider a person’s life circumstances holistically, rather than focusing on acute but atypical instances of impairment and incapacity.