Isherwood and National Disability Insurance Agency
[2024] AATA 597
•4 April 2024
Isherwood and National Disability Insurance Agency [2024] AATA 597 (4 April 2024)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2022/0247
Re:Mr Stephen Isherwood
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Member T. Bubutievski
Date:4 April 2024
Place:Sydney
The decision under review is affirmed.
.................................[SGD].......................................
Member T. Bubutievski
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – access – alcohol induced neurocognitive disorder – liver failure – impairment relied upon for access changed during Tribunal process – permanence – whether substantially reduced functional capacity – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Becoming a Participant) Rules 2016National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Act 2022
Cases
Beezley v Repatriation Commission [2015] FCAFC 165
HPSC and National Disability Insurance Agency [2021] AATA 727
Mulligan v National Disability Insurance Agency [2015] 233 FCR 201
Nika and National Disability Insurance Agency [2021] AATA 2127
National Disability Insurance Agency v Davis [2022] FCA 1002
NVRY and National Disability Insurance Agency [2023] AATA 1019
Rooney and National Disability Insurance Agency [2021] AATA 3523Young and National Disability Insurance Scheme (2014) ALD 694
Secondary Materials
Our Guidelines: How we make decisions’, 30 October 2023, Explanatory Memorandum, National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021 (Cth)
REASONS FOR DECISION
Member T. Bubutievski
4 April 2024
This application is about whether Mr Stephen Isherwood (Mr Isherwood) should be granted access to the National Disability Insurance Scheme (the NDIS). At the time of his application to become a participant, he was 58 years of age. In his application for access to the NDIS, Mr Isherwood described his primary disability as liver disease.[1]
[1] Exhibit 2, T6, Access Request Form, 13 August 2021, pp 41-68.
Following his application to become a participant, the National Disability Insurance Agency (NDIA or the Agency) decided, on 28 September 2021, that Mr Isherwood was ineligible to access the NDIS. He sought internal review of this decision by the Agency and on 11 January 2022, an Agency decision maker affirmed the decision. It is this reviewable decision of the Agency which is the subject of Mr Isherwood’s application to this Tribunal on 11 January 2022 for external merits review under s 103 of the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act or the Act).
Mr Isherwood has liver failure, oesophageal varices and ascites.[2] At the time of his application for access to the NDIS he also had a large umbilical hernia which was subsequently surgically repaired in early 2023.
[2] Ibid.
Mr Isherwood’s general practitioner, Dr Bradley Olsen, stated that Mr Isherwood had had these conditions for 5 to 6 years prior to his application and that his treatment was only palliative, not curative.[3]
[3] Ibid.
During the Tribunal process it was noted that Mr Isherwood also appeared to have some memory loss. On 4 May 2022, Dr Olsen provided a diagnosis of alcohol induced early dementia.[4] A subsequent independent assessment by a consultant physician, and geriatrician, Dr Pia Iacovella, confirmed that Mr Isherwood has impaired memory and attention which is consistent with a mild cognitive impairment.[5]
[4] Exhibit 1, Letter from Dr Brady Olsen, 4 May 2022, pp 126.
[5] Exhibit 1, R4, Report of Dr Pia Iacovella,30 June 2023, p 56.
During the course of the proceedings, Mr Isherwood’s representative allegedly changed the basis on which Mr Isherwood was seeking access to the NDIS from liver disease to neurocognitive impairment.
Mr Isherwood contends that he meets the access criteria under s 21 of the NDIS Act.
To gain access to the NDIS, under s 21 of the NDIS Act, Mr Isherwood is required to meet:
(a)the ‘age’ access criteria;
(b)the ‘residence’ access criteria; and
(c)either the ‘disability’ access criteria or the ‘early intervention’ access criteria.
The Agency accepts that Mr Isherwood meets both the ‘age’ and ‘residence’ access criteria but contends that he does not meet the ‘disability’ or ‘early intervention’ access criteria.
LEGISLATIVE FRAMEWORK
The NDIS Act was amended in 2022 with the passage of the National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Act 2022 (Amendment Act). The Tribunal had not completed its review of Mr Isherwood’s application by the time the amendments commenced. The original decision which the Agency made regarding Mr Isherwood’s access request, the Agency’s internal review decision, and Mr Isherwood’s application to this Tribunal for independent merits review were made prior to those amendments. The Tribunal’s decision is made subsequent to those amendments.
At the time that the Agency made its internal review decision, a person met the disability requirements under s 24(1)(a) if:
‘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.’
The amendments removed the reference to impairments attributable to a psychiatric condition and replaced them with the phrase ‘one or more impairments to which a psychosocial disability is attributable’. From 1 July 2022, a person meets the disability requirements under s 24(1)(a) if:
‘the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable.’
The transitional provisions at Schedule 2, Item 54 of the Amendment Act provide that:
(1)The amendments of sections 24 and 25 of the National Disability Insurance Scheme Act 2013 made by this Schedule apply in relation to the following:
(a) an access request made on or after the commencement of this item;
(b) an access request that was pending immediately before that commencement;(c) a revocation under s 30 of that Act made on or after that commencement.
As the decision under review relates to the determination of an access request under s 18 of the NDIS Act, it follows that the term ‘an access request that [is] pending immediately before [the] commencement” covers a decision under review, as in this review, that “has not been finalised prior to the commencement’. The Revised Explanatory Memorandum[6] provides, in relation to Schedule 3, Item 56 that the amendment would apply ‘if a decision on their request under s 18 of the Act has not been finalised prior to the commencement’.
[6] Revised Explanatory Memorandum, National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021 (Cth).
Section 24 of the NDIS Act provides as follows:
(1)A person meets the disability requirements if:
(a) the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable; and
(b) the impairment or impairments are, or are likely to be, permanent; and
(c) the impairment or impairments result in substantially reduced functional capacity to undertake one or more of the following activities:
(i)communication;
(ii)social interaction;
(iii)learning;
(iv)mobility;
(v)self-care;
(vi)self-management; and
(d) the impairment or impairments affect the person’s capacity for social or economic participation; and
(e) the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime.
(2) For the purposes of ss (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.
The early intervention requirements are set out in s 25 of the Act:
(1)A person meets the early intervention requirementsif:
(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 to which a psychosocial disability is attributable and that 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.
Note: In certain circumstances, a person with a degenerative condition could meet the early intervention requirements and therefore become a participant.
(1A) For the purposes of subparagraph (1)(a)(i) or (ii), an impairment or impairments that are episodic or fluctuating may be taken to be permanent despite the episodic or fluctuating nature of the impairments.
(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 ss.
(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.
Section 27(a) of the NDIS Act provides that the NDIS rules may prescribe circumstances in which, or criteria to be applied in assessing whether one or more impairments are, or are likely to be, permanent for the purpose of s 24(1)(b) or s 25(1)(a)(i) or (ii) of the NDIS Act. Such rules have been prescribed, namely, the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (NDIS Access Rules). The Tribunal is bound to apply the legislation as enacted, including the NDIS Access Rules.
Specifically, rules 5.4 to 5.7 of the NDIS Access Rules explain when a condition can be assessed to be ‘permanent’:
When is an impairment permanent or likely to be permanent for the disability requirements?
5.4An 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.
5.5An 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.
5.6An impairment may require medical treatment and review before a determination can be made about whether the impairment is permanent or likely to be permanent. The impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated (even though the impairment may continue to be treated and reviewed after this has been demonstrated).
5.7If an impairment is of a degenerative nature, the impairment is, or is likely to be, permanent if medical or other treatment would not, or would be unlikely to, improve the condition.
Section 27(b) of the NDIS Act also provides that the NDIS Access Rules may prescribe circumstances in which, or criteria to be applied in assessing whether one or more impairments result in ‘substantially reduced functional capacity’ of a person to undertake one or more activities for the purpose of s 24(1)(c) of the NDIS Act.
Specifically, rule 5.8 of the NDIS Access Rules elaborates upon when an impairment is taken to have resulted in a ‘substantially reduced functional capacity’ to undertake any one or more of the relevant activities in relation to s 24(1)(c) of the NDIS Act and provides as follows:
5.8An 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.
[Paragraph 5.8 is made for the purposes of paragraph 27(b) of the Act.]
The objects of the NDIS Act are set out in s 3. These include giving effect to international treaty obligations; supporting the independence and social and economic participation of people with a disability; and providing reasonable and necessary supports for participants. Section 4 sets out general principles guiding actions under the NDIS Act. These include that people with disability have the same rights as other members of society to realise their potential and should be supported to participate in and contribute to social and economic life to the extent of their ability. They should also have certainty that they will receive the care and support that they need over their lifetime. The Tribunal has considered the objects and general principles of the NDIS Act in making its decision.
The NDIA has issued Operational Guidelines including in relation to the access criteria under the Act (Operational Guidelines). The Operational Guidelines are published on the NDIA’s website.[7] The way they are written has changed significantly over time to make them more user friendly for potential applicants and participants in the NDIS, but the important parts of the content have not been greatly altered. The Tribunal also had regard to the Operational Guidelines in coming to its decision.
[7] ‘Our Guidelines: How we make decisions’, accessed 14 March 2024,
The Tribunal had before it a joint tender bundle (JTB) which contained almost all the documents lodged by both parties. This was taken into evidence (Exhibit 1). The Tribunal also took into evidence the bundle of documents provided by the Agency in accordance with its obligations under s 37 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) (T-Documents) (Exhibit 2); the Respondent’s Statement of Facts, Issues and Contentions (SFIC) dated 19 January 2024 (Exhibit 3); a report by Deanne Farrell, psychologist, dated 9 June 2022 (Exhibit 4); and a letter from the Respondent to the Applicant’s representative dated 16 September 2022 (Exhibit 5).
Mr Isherwood gave evidence and called his wife, Mrs Tracy Isherwood, and his wife’s support worker, Ms Lori Beer, to give evidence on his behalf. The Respondent called Dr Pia Iacovella, independent consultant physician and geriatrician; and Ms Jane Cooper, independent occupational therapist, to give evidence.
ISSUES BEFORE THE TRIBUNAL
In making the access decision in Mr Isherwood’s case, the Agency decided that Mr Isherwood did not meet the criteria in s 24(1)(c) of the NDIS Act, as having a substantially reduced functional capacity.[8] The Agency accepted that Mr Isherwood has liver failure, oesophageal varices and ascites. The decision-maker accepted that Mr Isherwood completes tasks differently or more slowly than other people but was not satisfied that he could not do so without disability specific supports. The decision-maker was also satisfied that Mr Isherwood did not meet the early intervention requirements.[9]
[8] Exhibit 2, T8, p 71.
[9] Ibid.
On internal review, the reviewer decided that Mr Isherwood meets the criteria in s 24(1)(a) of the NDIS Act in respect of his multiple medical disabilities including liver failure, oesophageal varices, ascites, umbilical hernia, pedal oedema and associated pain; and a psychosocial disability of adjustment disorder. The reviewer was not satisfied that Mr Isherwood’s disabilities could be considered to be permanent. They were of the view that there was insufficient evidence available to be satisfied that all recommended, available evidence-based treatment options had been completed or explored. Further, there was insufficient evidence to demonstrate that Mr Isherwood had engaged fully with all recommended treatments and specialist opinions.[10]
[10] Exhibit 2, T1E, pp 19-21.
The reviewer was also not satisfied that Mr Isherwood has a substantial functional impairment as a result of his condition or that Mr Isherwood will require the support of the NDIS for his lifetime. The reviewer was also of the view that the early intervention requirements were not met.[11]
[11] Ibid, pp 21-23.
It was common ground between the parties that Mr Isherwood met the age requirements in s 22 and the residence requirements in s 23 at the time that he applied for access to the NDIS. In its SFIC the NDIA contended that:
(a)Mr Isherwood initially sought access to the NDIS on the basis of his liver failure. The Respondent’s position on this was that this condition did not meet the permanence criteria set out in s 24(1)(b), so the Applicant refocused application on his mild to moderate neurocognitive disorder. The Respondent conceded that this condition is a permanent impairment for the purpose s 24(1)(b);
(b)The evidence does not establish that Mr Isherwood has a substantially reduced functional capacity in any of the relevant domains as a consequence of this impairment – s 24(1)(c). The Respondent acknowledges that Mr Isherwood’s impairments have some impact in the domain of learning and self-management, but contends that the level of this impairment does not reach the high bar required to be considered ‘substantial’;
(c)The evidence does not establish that Mr Isherwood’s neurocognitive impairment affects his capacity for social or economic participation – s 24(1)(d). Mr Isherwood ceased employment as a result of his liver disease and drink-driving, not his neurocognitive impairment. He continues to socialise independently;
(d)Mr Isherwood is not likely to require the support of the NDIS for his lifetime – s 24(1)(e). The supports required by Mr Isherwood in the management of his neurocognitive decline are most appropriately provided by the health system and community agencies;
(e)There is no evidence that there is any form of early intervention treatment which would benefit Mr Isherwood and reduce future needs for support – ss 25(1)(b); and
(f)Support for Mr Isherwood’s conditions are not most appropriately provided through the NDIS – s 25(3).[12]
[12] Respondent’s SFIC, 19 January 2024.
Mr Isherwood contended that his impairments cause him to have a substantially reduced functional capacity. He concentrated his evidence on his loss of stamina and endurance. His wife concentrated her evidence on his memory loss and lack of motivation. Mr Isherwood contends that his ability to undertake household chores and self-management are affected by his impairments.
The Tribunal noted that Mr Isherwood had changed the focus of his application from liver disease to neurocognitive impairment, but considered that, on the evidence before it, it had an obligation to consider both Mr Isherwood’s physical and neurocognitive impairments for access to the NDIS.
For the reasons set out below, the Tribunal finds that the evidence does not establish that Mr Isherwood’s liver disease and umbilical hernia are permanent, or likely to be permanent. It also finds that the evidence does not establish that Mr Isherwood’s mild to moderate neurocognitive impairment causes a substantially reduced functional capacity in any of the relevant functional domains. This means that the requirements of s 24 of the NDIS Act for access to the NDIS are not met.
The Tribunal also cannot find that Mr Isherwood meets the requirements for entry to the NDIS under the early intervention pathway. He does not meet any of the criteria for access to the NDIS.
Procedural Matter – the decision to change the focus of the application during the course of the proceedings
It is often the case that as an application progresses through the Tribunal that an Applicant produces additional evidence which establishes that they have impairments in addition to the impairment for which they have claimed access to the NDIS. This is what has occurred in this case. During the proceedings, questions were raised about Mr Isherwood’s memory and decision-making capacity. As a consequence, he attended an assessment with a psychiatrist, Dr Nandam, on 26 September 2022. Dr Nandam noted that Mr Isherwood displayed a poor memory and could not finish appointed tasks. His score in a Mini Mental State Exam (MMSE) was 20/30, which is indicative of cognitive impairment. Dr Nandam provided a provisional diagnosis of alcohol induced major neurocognitive disorder.[13]
[13] Exhibit 1, A2, Report of Dr L Sanjay Nandam, undated, p 11.
Mr Isherwood then attended an assessment with Dr Pia Iacovella on 14 June 2023, an independent consultant physician and geriatrician. She diagnosed Mr Isherwood with a mild to moderate neurocognitive disorder, which is most likely alcohol-related. His performance on the cognitive assessments that she administered was also consistent with cognitive impairment.[14]
[14] Exhibit 1, R4, Report of Dr Pia Iacovella, 30 June 2023, p 45.
When the Tribunal spoke to Mr Isherwood at the hearing, it asked Mr Isherwood if he was aware of the decision to change his application for access from being about his liver disease and associated complications to his neurocognitive disorder. Mr Isherwood indicated that he had not been aware of this. The Tribunal asked Mr Isherwood why he thought he was applying for access to the NDIS. Mr Isherwood said that he thought it was because he used to be able to walk 5 km and now he can only walk for 100 metres before he needs to rest. The Tribunal asked Mr Isherwood if he knew why he now got tired so easily. Mr Isherwood said that he did not know. When asked what assistance he was hoping for from the NDIS Mr Isherwood said that he would like a better mobility scooter and someone to help with the lawns.
While the Tribunal accepts that Mr Isherwood has a neurocognitive impairment, the Tribunal had a real concern that if it was to limit the scope of this review to Mr Isherwood’s neurocognitive disorder it would be neglecting to consider the real reason that Mr Isherwood was seeking support. It understands the decision to refocus Mr Isherwood’s application was made by his representative on the basis of advice by the Respondent that it does not consider Mr Isherwood’s liver disease and associated impairments to be permanent. This appears to have been a strategic decision by his representative.
As the matter has now proceeded to a hearing, the Tribunal was satisfied that the issues of access before it are at large and it would be incorrect in law if it were to fail to consider both the impairments listed in the original application and the neurocognitive impairment confirmed subsequent to the application.
FACTS
The medical evidence
Diagnoses
The medical evidence put before the Tribunal about the treatment and history of Mr Isherwood’s medical conditions covers a significant period of time. In summary, these documents show that Mr Isherwood has liver failure caused by cirrhosis, with the accompanying conditions of oesophageal varices and ascites.[15] The treatment of these conditions has varied over time.
[15] Exhibit 1, A1, Access Request Form completed by Dr Bradley Olsen, 15 August 2022, p 4; Exhibit 1, R5, Report of Dr Janene French, gastroenterologist, 13 July 2020, p 130; Exhibit 1, R5, Report of Dr Richard Skoien, gastroenterologist, 27 January 2021, p 143; Exhibit 1, report of Dr Richard Skoien, gastroenterologist, 16 February 2022, p 169.
Mr Isherwood also had a large umbilical hernia which was described as inoperable,[16] but which was subsequently successfully surgically repaired in early 2023.
[16] Exhibit 1, R5, Letter from Dr Bradley Olsen, 24 February 2022, P 122.
Mr Isherwood has been diagnosed with an adjustment disorder and referred to a psychologist.[17]
[17] Exhibit 1, R5, Mental Health Plan, Dr Bradley Olsen, 5 November 2021, p 123; Exhibit 1, Surgery Consultation, Dr Bradley Olsen, 5 November 2021, p 114; Exhibit 4, Report of Ms Deanne Farrell, psychologist, 9 June 2022.
Mr Isherwood has a cognitive impairment. While the exact cause of this impairment is unclear, it is consistent with his history of heavy alcohol use and is most likely an alcohol-induced neurocognitive disorder.[18] A CT scan of Mr Isherwood’s brain shows changes to his brain in keeping with cerebral atrophy, inconsistent with his age.[19]
[18] Exhibit 1, R4, Report of Dr Pia Iacovella, 30 June 2023, p 45.
[19] Exhibit 1, A3, CT brain, 10 October 2022, p 13.
Liver disease
It is agreed between the parties that Mr Isherwood does have an impairment from liver disease, although on the evidence before the Tribunal the degree of impairment Mr Isherwood experiences from this condition has changed considerably over time. When it was first diagnosed, he was unwell and was having oesophageal bleeds due to varices and his abdomen was distending with fluid, requiring abdominal paracentesis on a regular basis. Mr Isherwood had his oesophageal varices banded to stop the bleeding and embarked on a regime of alcohol abstinence and diuretics in an attempt to improve his liver function and reduce his need for paracentesis. He was not initially successful in abstaining from alcohol.[20] On 13 July 2020 his treating specialist noted that Mr Isherwood continued to drink heavily, at least eight standard drinks per day, and that his wife was reporting increasing confusion. She notes that she has spoken to Mr and Mrs Isherwood about the severity of his liver disease and the likely trajectory of his condition if he continued to drink.[21] He was considered not to be a candidate for a liver transplant as he was still drinking and unlikely to be abstinent.[22]
[20] Exhibit 1, R5, Reports of Dr Janene French, 13 July 2020, 29 July 2020 and 27 November 2020, at pp 130, 132, and 136 respectively.
[21] Exhibit 1, R5 Report of Dr Janene French, 13 July 2020, p 130.
[22] Exhibit 1, R5, Report of Dr Richard Skoien, 27 November 2020, pp136-142.
In January 2021, Mr Isherwood’s specialist, Dr Gupta, reported that Mr Isherwood had no difficulty with the activities of daily living secondary to his ascites and no confusion. At that time, he was said to be abstinent from alcohol.[23] In April 2021, Dr Skoien, noted that Mr Isherwood was continuing to drink occasionally but that there was some evidence of ongoing improvement in his liver function and no evidence of encephalopathy. He reported that at that time Mr Isherwood was well, although there were some questions being asked about his capacity in the context of family discord.[24] By June 2021, Dr Skoien was reporting that Mr Isherwood had no intermittent encephalopathy and no intermittent episodes of confusion, having been abstinent from alcohol since March 2021.[25]
[23] Exhibit 1, R5, Report of Dr Rohit Gupta, 27 January 2021, p 143.
[24] Exhibit 1, R5,Report of Dr Richard Skoien, 6 April 2021, p 145.
[25] Exhibit 1, R5, Report of Dr Richard Skoien, 30 June 2021, p 158.
In June 2021, a Medical Registrar who examined Mr Isherwood noted that Mr Isherwood was well apart from fatigue and exertional shortness of breath. He had obvious free fluid in his abdomen (from the ascites) and his abdomen was due to be drained the following week.[26] In July 2021, Mr Isherwood was booked for abdominal paracentesis every three weeks and his diuretic regime was changed with the restoration of frusemide.[27]
[26] Exhibit 1, R5, Report of Dr Samuel Thokala, 6 July 2021, p 159.
[27] Exhibit 1, R5, Report of Dr Stephen Flecknoe-Brown, 16 July 2021, p 161.
By October 2021, Mr Isherwood was having abdominal paracentesis every six weeks. It was noted that he was unable to exercise due to breathlessness and he was reconsidered for the transplant list.[28] In October 2021, it was noted that Mr Isherwood had no active complaints although he still had some shortness of breath on exertion.[29] He was referred to a clinic for the appropriate testing prior to receiving a liver transplant and this was conducted at the end of October 2021.[30]
[28] Exhibit 1, R5, Report of Dr Enoka Gonsalkorala, 1 October 2021, p 166.
[29] Exhibit 1, R5, Report of Dr Anatoli Sobtchouk, 4 October 2021, p 167.
[30] Exhibit 1, R5, Summons documents from Royal Brisbane and Women’s Hospital, pp 227-246.
In February 2022, Dr Skoien noted that Mr Isherwood had not had any large-volume paracentesis since November 2021 and was stable on his regime of diuretics. It is recorded that he had been able to do odd jobs around the house, including laying bricks; and that he was walking a few times a week. Dr Skoien was of the opinion that an urgent liver transplant was not needed and that from a physical point of view Mr Isherwood was doing very well.[31]
[31] Exhibit 1, Report of Dr Richard Skoien, 16 February 2022, p 169.
At the hearing, Mr Isherwood advised that he has not required any abdominal paracentesis since September 2022 and that he was no longer under consideration for a liver transplant because he had resumed drinking. He stated that his liver had regenerated so he decided that he was able to start drinking again. He said that he would have one or two drinks per fortnight. He indicated that this had commenced in October 2023 due to his wife’s birthday celebrations. Mrs Isherwood indicated that it had commenced soon after Mr Isherwood had his hernia repair in early 2023.
Mr Isherwood is now able to maintain his weight around 83 kg, his normal weight, and is not retaining fluid due to the ascites.
Mr Isherwood’s evidence at hearing was that he continues to tire easily and that it takes him much longer to do things than it used to. He said that he used to be able to walk for 5 km at a time but now is tired after walking 10 to 15 metres. The Tribunal notes that there is limited evidence about Mr Isherwood’s walking capacity in the file, but that on 26 October 2021 he did a six-minute walk test where he traversed 388 metres in six minutes. The test was not terminated due to shortness of breath or fatigue.[32] Ms Cooper, the independent occupational therapist, noted that Mr Isherwood was able to mobilise independently on flat surfaces in the house with no mobility aids. She said that he can stand or walk for 10 minutes and walk for up to 100 metres but had poor endurance and difficulty bending.[33] This assessment was undertaken prior to Mr Isherwood having his hernia repair.
[32] Exhibit 1, R5, Report of six-minute walk test, 26 October 2021, p 225.
[33] Exhibit 1, R2, Report of Jane Cooper, 1 February 2023, p 29.
Mr Isherwood told the Tribunal that he has been much better since his hernia repair. He explained that the surgery had potentially been life-threatening due to the possible loss of blood, but he had not required a transfusion and he is happy with the result. The hernia is not poking out of his abdomen anymore and he is able to move around a lot better. He explained that he had initially bought himself a mobility scooter because of the impact of the pain from the hernia on his mobility.
Mrs Isherwood explained that Mr Isherwood takes 10 tablets in the morning, two at lunchtime and five at night. These are for his liver. She said that she has told him that he is not supposed to drink alcohol at all, but he does not listen to her.
Mr Isherwood has blood tests for his liver whenever he is asked to. They are no longer regular. He also has a CT scan if it is requested by his specialist. Other than his medication he has no other regular treatment for his liver disease. He has a telehealth appointment with Dr Skoien every few months.
The evidence indicates that Mr Isherwood’s liver disease has a reversible component which is improved if Mr Isherwood does not drink alcohol. He is not presently abstinent.
Umbilical hernia
Mr Isherwood’s inoperable umbilical hernia turned out not to be inoperable and he had it repaired in early 2023. There is no evidence that he currently experiences any functional impairment as a result of this condition. His evidence is that he is happy with the result and no longer has pain and limitations on his mobility from the hernia.
Adjustment disorder
In November 2021, Dr Olsen completed a mental health plan for Mr Isherwood and referred him to a psychologist.[34] There is no indication that Mr Isherwood attended a psychologist at that time. Dr Olsen’s clinical notes on 28 March 2022 indicate that a surgeon in Brisbane had requested that Mr Isherwood have a mental health plan, and that he had completed a mental health plan and made a referral to a psychologist for Mr Isherwood on that day.[35]
[34] Exhibit 1, R5, Mental health plan and referral,5 November 2021, p 114.
[35] Exhibit 1, R5, Surgery Consultation, 28 March 2022, 118.
On 9 June 2022, Ms Deanne Farrell stated that as at that date she had seen Mr Isherwood on one occasion, which had been an initial assessment. She states that Mr Isherwood suffers from anxiety and pain and that his treatment plan is cognitive behavioural therapy, mindfulness and relaxation.[36] Mr Isherwood told the Tribunal that he sees Ms Farrell every three months. Sometimes he goes alone and sometimes Mrs Isherwood comes with him. Mr Isherwood said that Ms Farrell is a lovely person to talk to about his situation. He said that as far as he understood his mental health condition had not improved at all over the time he has been seeing her.
[36] Exhibit 4, Report by Deanne Farrell, 9 June 2022.
The Tribunal has no other evidence about Mr Isherwood’s adjustment disorder.
Neurocognitive disorder
The first evidence the Tribunal can see about any cognitive impairment experienced by Mr Isherwood is in the report of Dr Janine French of 13 July 2020 where she notes that Mrs Isherwood had reported ‘increasing confusion’.[37] This is in the context of Mr Isherwood continuing to drink heavily. Subsequent consultations note that Mr Isherwood was displaying no confusion.
[37] Exhibit 1, R5, Report of Dr Janene French, 13 July 2020, p 130.
On 26 March 2021, Dr Olsen certified that Mr Isherwood was ‘currently mentally competent’.[38] There is no evidence before the Tribunal about how Dr Olsen reached this conclusion.
[38] Exhibit 1, R5, Letter of Dr Bradley Olsen,26 March 2021, p 121.
On 6 April 2021, Dr Skoien refers to questions about Mr Isherwood’s capacity in the context of family discord. Mr Isherwood told the Tribunal that once he was diagnosed as terminally unwell his daughter started to ask questions about his assets. Dr Skoien notes that he gave Mrs Isherwood forms to have her appointed as an enduring power of attorney for Mr Isherwood so that there could be no questions about Mr Isherwood’s capacity. Mrs Isherwood said that this had been done ‘early on’ in Mr Isherwood’s diagnosis of liver failure.[39]
[39] Exhibit 1, R5, Report of Dr Richard Skoien,6 April 2021, p 145; Mrs Isherwood’s oral evidence, 4 March 2024.
On a claim for carer allowance dated 19 April 2021, Dr Olsen has noted that Mr Isherwood is not cognitively impaired, but does show signs of depression and memory loss, and withdraws from social contact.[40]
[40] Exhibit 1, R5, Claim for carer payment/carer allowance, 19 April 2021, 152.
On 21 June 2021, Dr Skoien noted that Mr Isherwood had no encephalopathy and no intermittent episodes of confusion.[41] On 1 August 2021 he was noted to be fully oriented and cooperative.[42]
[41] Exhibit 1, R5, Report of Dr Richard Skoien, 23 June 2021, p 158.
[42] Exhibit 1, R5, Report of Dr Stephen Flecknoe-Brown, 4 August 2021, p 163.
Nursing notes from the Royal Brisbane and Women’s Hospital in October 2021, while Mr Isherwood was attending for a full assessment with a view to a liver transplant, note that Mr Isherwood’s stepdaughter told nurses that Mrs Isherwood was concerned about Mr Isherwood’s forgetfulness.[43]
[43] Exhibit 1, R5, Nursing notes, 25 October 2021, p 233.
Mr Isherwood does not appear to have had any formal cognitive assessment prior to 26 September 2022 when he was assessed by Dr Nandam. Dr Nandam records that Mr Isherwood had a poor memory and was unable to finish appointed tasks. It was reported to Dr Nandam that Mr Isherwood gets lost at the shops, cannot use a computer or smart phone, and cannot learn even when shown repeatedly. He is reported to be unable to assemble a meal and to become muddled in conversation but not to realise. Dr Nandam conducted an MMSE in which Mr Isherwood scored 20 out of 30. The cut-off score for cognitive impairment in that test is 23. Dr Nandam noted that there is no family history of dementia and gave a provisional diagnosis of alcohol induced major neurocognitive disorder.[44]
[44] Exhibit 1, A2, Report of Dr L Sanjay Nandam, 26 September 2022, p 11.
Ms Cooper performed a number of motor and dexterity tasks with Mr Isherwood. She noted that he was unable to perform the finger to nose test without the instructions being repeated several times. Her report states that this could be either due to a cognitive deficit or co-ordination problem. In her oral evidence, she confirmed that it was not possible for her to determine whether the problem was cognitive or a deficit in co-ordination or motor skills. Mr Isherwood was also unable to complete the heel to toe stand. Once again, this could have been due to cognitive or motor impairments, although Ms Cooper noted that Mr Isherwood’s balance seemed to be impaired.[45]
[45] Exhibit 1, R2, Report of Ms Jane Cooper, 1 February 2023, p 29; Ms Cooper’s oral evidence, 5 March 2024.
A WHODAS completed by Ms Cooper (a self-reported survey of function and disability) indicated that Mr Isherwood views himself as severely disabled. He had scores which were indicative of extreme difficulty in getting around and engaging in household life activities; and severe difficulties in participating in society and with pain. Once again, this was conducted before the surgical repair of Mr Isherwood’s painful hernia.[46]
[46] Exhibit 1. R2, WHODAS, pp 35-36.
The Barthel Index returned a score of 18/20, which indicates that Mr Isherwood could complete most activities of daily living independently and in a modified way, even when he was still troubled by his hernia.[47]
[47] Exhibit 1, R2, Barthel Index, p 36.
Ms Cooper also conducted the ACE-III assessment. She explained that a score of less than 82 on this assessment is indicative of a cognitive impairment, most likely dementia. Mr Isherwood’s score was 72.[48] On the M-ACE, Mr Cooper advises that a score of less than or equal to 21 indicates that the person is almost certainly as dementia patient. Mr Isherwood’s score was 21.[49]
[48] Exhibit 1, R2, ACE-III, p 37.
[49] Exhibit 1, R2, M-ACE, p 37.
Dr Pia Iacovella assessed Mr Isherwood on 14 June 2023. She noted that serial cognitive assessments in September 2022, January 2023, and June 2023 all show deficits in memory and language skills, and difficulty with multi-step instructions. In her oral evidence she confirmed that the results of all the assessments were similar and indicated that Mr Isherwood’s neurocognitive disorder had been stable over that time. She was of the view that Mr Isherwood’s intermittent hepatic encephalopathy was well controlled and was not contributing to his underlying neurocognitive disturbance. The Tribunal asked Dr Iacovella if her conclusion about that would change if Mr Isherwood had been drinking at the time of her assessment. Dr Iacovella stated that there had been no evidence of hepatic encephalopathy at the time of her assessment, and she was of the opinion that it did not contribute to Mr Isherwood’s presentation at that time and did not affect the results of the cognitive tests she administered.[50]
[50] Exhibit 1, R4, Report of Dr Pia Iacovella, 30 June 2023, p 45; oral evidence of Dr Iacovella, 5 March 2024.
Dr Iacovella’s report states that Mr Isherwood has decreased cognition, in particular in the areas of problem solving and memory. New learning is impaired. When asked about the extent of the impairment on learning, she opined that it was ‘mild’. Dr Iacovella administered the Montreal Cognitive Assessment Version 8.2 to Mr Isherwood. Mr Isherwood’s score was 23/30. She found that the results of this assessment indicate that Mr Isherwood’s visuospatial and executive functions are intact, as is his ability to name objects, but that he has impaired memory and reduced attention, which is consistent with a mild cognitive impairment.[51]
[51] Exhibit 1, R4, report of Dr Pia Iacovella, 30 June 2023, p 45; Dr Iacovella’s oral evidence, 5 March 2024.
Dr Iacovella also administered the ACE-R cognitive assessment. Mr Isherwood’s score on that assessment was 74, with memory items being particularly poor at 17 out of 26. The cut-off score indicating cognitive impairment on this assessment is 75. This can also be converted into an equivalent score on the MMSE, which was 23.[52]
[52] Exhibit 1, R4, Report of Dr Pia Iacovella, 30 June 2023, p 45.
Dr Iacovella’s opinion is that Mr Isherwood has a mild to moderate neurocognitive disorder, which is most likely alcohol related. She recommended that he have an MRI and pathology to exclude Alzheimer’s disease. At hearing she gave the opinion that the best brain scan for Mr Isherwood to have to determine the reason for his impairment would be an FDG PET CT brain scan. Dr Iacovella explained that if Mr Isherwood’s condition turns out to be Alzheimer’s disease rather than an alcohol related disorder, there are treatment options to ameliorate the effects and symptoms of Alzheimer’s disease which would not be effective on an alcohol induced neurocognitive disorder.[53]
[53] Exhibit 1, R4, Report of Dr Pia Iacovella, 30 June 2023, p 45; Dr Iacovella’s oral evidence, 5 March 2024.
CONSIDERATION
Are any of Mr Isherwood’s impairments ‘permanent’ or likely to be ‘permanent’ for the purpose of s 24 of the Act?
The evidence before the Tribunal indicates that Mr Isherwood has liver disease, adjustment disorder and neurocognitive impairment. He also previously had an umbilical hernia which was successfully surgically repaired in early 2023. The Tribunal finds that the umbilical hernia is not a permanent impairment.
Liver Disease
The evidence before the Tribunal indicates that Mr Isherwood’s liver disease has a significant reversible component. The impairments caused by his liver disease improved significantly when he was abstinent from alcohol. He no longer required regular abdominal drainage and has not had that procedure since 2022. As he no longer retains fluid in his abdomen, and has had his hernia repaired, he does not have the same functional difficulties he had with bending as he did at the time of Ms Cooper’s report. Mr Isherwood told the Tribunal that his liver had ‘regenerated’ when he stopped drinking.
Mr Isherwood is not currently abstinent from alcohol. This is the main treatment for his liver disease and improves his function. If he is able to remain abstinent from alcohol and his liver disease continues to progress, he has the option of a liver transplant available to him, although that obviously involves waiting for a donor, which may not become available.
Rule 5.4 outlines that an impairment is only permanent, or likely to be permanent if there are ‘no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.’
The word ‘remedy’ is understood to mean something approaching a removal or cure of the impairment.[54] In this case, the Tribunal is satisfied that the evidence before it indicates that Mr Isherwood’s functional impairment caused by his liver disease is largely ameliorated by not drinking alcohol. While he gave evidence that he experiences ongoing impairments to his stamina and motivation there is no medical evidence before the Tribunal which indicates that his liver disease is the cause of these impairments.
[54] National Disability Insurance Agency v Davis [2022] FCA 1002 ('Davis'), at [136].
The Tribunal is unable to form a view that Mr Isherwood’s liver disease is a permanent impairment for the purpose of s 24(1)(b) of the NDIS Act. As this is not a permanent impairment, he does not meet the disability requirements for access to the NDIS on the basis of liver disease.
Even if the condition was considered to be permanent, the Tribunal could not find that this condition causes Mr Isherwood a substantial functional impairment in any of the relevant domains, as required by s 24(1)(c).
Adjustment disorder
Mr Isherwood’s evidence is that he attends quarterly sessions with a psychologist. There is no evidence before the Tribunal about Mr Isherwood’s progress in this therapy other than his own statement that he understood that he had not improved at all. There is no indication that Mr Isherwood has tried any other treatments for his adjustment disorder, such as antidepressants. There are many different medications and treatment regimes for mental health conditions and there is no indication that Mr Isherwood has tried anything other than relatively infrequent sessions with a psychologist. By its very nature, an adjustment disorder is a temporary condition caused by difficulty in adjusting to a change of circumstances. Ms Ferrell indicates that Mr Isherwood suffers from anxiety and pain, and it is not clear that these conditions are being appropriately managed. The Tribunal is not in a position to say that Mr Isherwood’s mental health impairment is a permanent impairment.
The Tribunal is unable to form a view that Mr Isherwood’s adjustment disorder is a permanent impairment for the purpose of s 24(1)(b) of the NDIS Act.
Neurocognitive disorder
There is no dispute that Mr Isherwood demonstrates a functional impairment of his memory and attention that is consistent with a cognitive impairment. Three different cognitive assessments in September 2022, January 2023 and June 2023 showed deficits in memory, language skills and difficulty following multistep instructions. The level of impairment shown in each of the assessments was stable over time. Dr Iacovella is of the opinion that the condition she assessed was not a temporary impairment as a result of Mr Isherwood having consumed alcohol around the time of the assessment, but likely a permanent impairment as a result of heavy alcohol use over an extended period of time. Nonetheless, it was her view that Alzheimer’s disease should be excluded because there are treatments available to Mr Isherwood to assist with his memory if his cognitive impairment is caused by Alzheimer’s disease rather than alcohol induced.
The Respondent submitted that Mr Isherwood’s neurocognitive disorder is a permanent condition, although it acknowledged that this position does not sit strictly with the evidence before the Tribunal and the fact that other causes of this disorder, which would be amenable to treatment, have not yet been excluded. On balance, the Tribunal considers this to be a reasonable position given that even if Mr Isherwood has Alzheimer’s disease the treatment available to him appears likely to lessen his impairment, not remedy it.
Dr Iacovella’s evidence is that this condition will likely deteriorate over time but can be expected to be stable for around the next 10 years as long as Mr Isherwood remained abstinent from alcohol or consumes only very small amounts.[55]
[55] Dr Iacovella’s oral evidence, 5 March 2024.
Mr and Mrs Isherwood confirmed that he has not seen any specialist about his memory and he has not undertaken any of the diagnostic testing recommended by Dr Iacovella. Mr and Mrs Isherwood just manage the impairment the best they can.
The Tribunal finds that the most beneficial interpretation of the evidence before it is that Mr Isherwood’s neurocognitive disorder is a permanent impairment for the purpose of ss24(1)(b) of the NDIS Act. This means that Mr Isherwood could potentially be granted access to the NDIS if he meets the other criteria set out in s 24(1) of the NDIS Act.
Does Mr Isherwood have a substantially reduced functional impairment under s 24(1)(c) of the NDIS Act?
Section 24(1)(c) of the NDIS Act requires an analysis of whether the impairment results in substantially reduced functional capacity to undertake one or more of the activities specified in the subsection. Those activities are communication, social interaction, learning, mobility, self-care and self-management.
Each of the activities specified in s 24(1)(c) of the NDIS Act and their impact on functional capacity will be examined in relation to Mr Isherwood’s neurocognitive disorder. The legislation requires:
… a relatively high degree of precision by decision-makers (see, for example, the six activities in s 24(1)(c)) in assessing what a person can or cannot do. The assessment to be undertaken is avowedly functional and multi-faceted.[56]
[56] Mulligan v National Disability Insurance Agency [2015] 233 FCR 201 (‘Mulligan’), at [55].
In Nika & National Disability Insurance Agency,[57] the Tribunal (Deputy President Meagher) referred to s 24(1)(c), noting that:
… the test is not whether the Applicant could do more with respect to a particular activity. The test is whether the Applicant has substantially reduced functional capacity to undertake the activity.[58]
[57] (2021) AATA 2127.
[58] (2021) AATA 2127 at [230].
Under rule 5.8 of the NDIS Access Rules, the decision-maker must assess the effect of a person’s impairment on the performance of each of the activities that are set out in s 24(1)(c). If the result is any of the outcomes which are specified in rule 5.8(a), (b) or (c), then the deeming effect of rule 5.8 will apply, namely that the impairment results in substantially reduced functional capacity to undertake one or more of the relevant activities. These NDIS Access Rules require consideration of a person’s capacity to participate in the activity without assistive technology, equipment other than commonly used items or home modifications; whether the person usually requires assistance from someone else to undertake the activity; or whether the person is unable to participate in the activity even with assistive technology, equipment, home modifications or assistance from another person.
The Tribunal has regard to s 8.3.1 of the Operational Guidelines - Access,[59] and in particular, the following passages about an impairment resulting in substantially reduced functional capacity:
[59] Exhibit 2, T12, Operational Guidelines – Access, p 137.
When does an impairment result in substantially reduced functional capacity to undertake activities?
An impairment results in substantially reduced functional capacity to perform one or more activities when:
·the person is unable to participate effectively or completely in the activity or perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items) or home modifications (rule 5.8(a) of the Becoming a Participant Rules); or
·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 (rule 5.8(b) of the Becoming a Participant Rules); or
·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 (rule 5.8(c) of the Becoming a Participant Rules).
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. For example, children under the age of 2 will not necessarily have a substantially reduced functional capacity because they need assistance to provide for self-care needs.
A person will be considered to be unable to participate effectively or completely in an activity 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.[60]
[60] Exhibit 2, T15, 137-138.
Functional Capacity Evidence
Much of the functional capacity evidence relates to Mr Isherwood’s physical impairments because of his hernia and ascites which are not relevant to his impairment as a result of his neurocognitive disorder.
Mrs Isherwood’s evidence
In terms of Mr Isherwood’s neurocognitive disorder, Mrs Isherwood’s evidence was that she looks after all the finances for the family, but she has always done that. She said that decision-making about financial decisions used to be more of a joint exercise than it is now, and she now tends to make those decisions alone. Mrs Isherwood explained that she needs to know where Mr Isherwood is going and what he is doing all the time because sometimes he takes too long. She confirmed that he is still driving and has not had a driving assessment.[61]
[61] Mrs Isherwood’s oral evidence, 4 March 2024.
Mrs Isherwood uses a medication dossette box for Mr Isherwood. She fills the box and reminds him to take his medication. As she is there and needs to take her own medication it is usually simple just to remind him. They have not tried Webster Packs or medication alarms. She said that Mr Isherwood needs a lot of reminders, and she will often have to repeat herself because he forgets to do simple tasks, like taking something out of the freezer. Mrs Isherwood said that the doctors explained to her that Mr Isherwood will be more confused if he is drinking, and she thinks that is the case. She said that they often have disagreements because he forgets something she has told him and says that she did not tell him. Mrs Isherwood said that can escalate quickly.[62]
[62] Ibid.
Mrs Isherwood said that Mr Isherwood has specialist appointments about his liver by telehealth and she is usually present for this. She said that she often has to explain what the doctor has said to Mr Isherwood again afterwards. She sometimes attends Mr Isherwood’s psychology appointments and sometimes does not. Mrs Isherwood said that it takes Mr Isherwood a long time to do anything because he seems to lack motivation and to have to think hard about things.[63]
[63] Ibid.
Mrs Isherwood confirmed that Mr Isherwood is able to assist her to prepare a meal. He tends to cut the pumpkin and to do the tasks that she is physically unable to do. She usually does the cooking because Mr Isherwood forgets that he has things on the stove and has melted things onto the stovetop. She usually asks him what he would like to eat. As Mrs Isherwood is in receipt of NDIS support, she has a support worker and cleaner so there is not much for Mr Isherwood to do in the form of housework. He does still mow the lawn although now he uses a ride on mower. Mrs Isherwood said that Mr Isherwood is different to the way he used to be because he never used to sit still, but now he just sits on the couch and watches television. He requires a lot of prompting and tasks take longer.[64]
[64] Mrs Isherwood’s oral evidence, 4 March 2024..
As an example, Mrs Isherwood explained that the day before the hearing Mr Isherwood had built a shower niche. This involved him taking off the tiles, cutting through the wall, measuring, relining and re-tiling that part of the shower. This took the whole day when previously it would not have taken him so long. Mrs Isherwood confirmed that Mr Isherwood still does everyday maintenance on the car, but that there are some things that he cannot remember so he cannot do as much as he used to. They have a new caravan, so he does not need to work on it, although he did work on the old one.[65]
[65] Ibid.
Mrs Isherwood stated that Mr Isherwood still goes to the pub to socialise and play pool about once a week. He goes alone and drives there and drives back. If they are going somewhere unfamiliar, Mrs Isherwood goes along and uses the GPS on her phone for directions. Late last year they drove down to Rainbow Beach, about three hours away. They had not been there before. Mr Isherwood drove and towed the caravan. He did not have trouble navigating or forget where he was, but Mrs Isherwood was there with the GPS.[66]
[66] Ibid.
Mrs Isherwood said that Mr Isherwood only uses his phone for calls. He can read a text message but has never learned how to send one. He learned how to do a QR check in on a smart phone during covid. Mrs Isherwood uses a diary on the computer so that Mr Isherwood can remember his appointments and she also will type him out a shopping list or text a shopping list to him but said that he often forgets to take his phone when he goes out. Mrs Isherwood said that Mr Isherwood rarely goes to the shops alone, but he is able to tap and pay using his card. He is able to go into the bank and withdraw money over-the-counter but she has never seen him use an ATM. Mrs Isherwood is Mr Isherwood’s enduring power of attorney.[67]
[67] Mrs Isherwood’s oral evidence, 4 March 2024.
Mrs Isherwood explained that Mr Isherwood does not think that his drinking affects his memory and does not seem to understand that he has a problem with his memory. She said that he does not make a lot of decisions, just agrees with what has been said. Mrs Isherwood advised that sometimes her son accompanies Mr Isherwood when he goes out, just to give her a break.[68]
Ms Beer’s evidence
[68] Ibid.
Mrs Isherwood’s support worker, Ms Lori Beer, stated that she has been working with Mrs Isherwood since 2019 and attends the home three times per fortnight. She stated that she has noticed that Mr Isherwood is not as active as he used to be and struggles with remembering how to do maintenance tasks. The lawns are not as well-kept as they used to be. She stated that she may tell Mr Isherwood something at the beginning of her shift but by the end of her shift he has forgotten it. Mr Isherwood does not help her with any of her tasks. She noted that he used to put the chairs on top of the table, so the kitchen was ready for her to mop, but he does not do that anymore. She has observed Mrs Isherwood to ask Mr Isherwood to get something while he was out and then have Mr Isherwood come home without it or call and ask what it was that she wanted. She confirmed that he often goes out without his phone. Ms Beer stated that Mr Isherwood’s short-term memory seems worse than it used to be, and that he gets frustrated and disappointed because he runs out of energy quickly. She stated that she had observed Mr Isherwood have difficulty fixing the car because he has trouble with his memory. She has also seen him go outside to take the bins out and then forget why he went outside. She stated that Mrs Isherwood will often ask Mr Isherwood to repeat what she has told him.[69]
Mr Isherwood’s evidence
[69] Ms Beer’s oral evidence, 4 March 2024.
Mr Isherwood said that he thought his application for access to the NDIS was because he cannot do what he used to be able to do before. He particularly referenced his ability to walk. He confirmed that he is still driving and that he also uses a mobility scooter. He said that he does not get lost while driving between places that he knows, and if he is going somewhere unfamiliar, he will frequently ask his wife to come with him and get her to use the GPS on her phone. He can drive his mobility scooter from his home into town. He can ride it 9 km to the shopping centre or 10.5 km to the hospital. He does not forget to recharge it. He goes out on his mobility scooter every few days in the hot weather and almost daily during winter. He goes to the shops, to the pub to play pool and to the hospital. He also uses his mobility scooter with a GPS to go out alone and pick up things that Mrs Isherwood has bought on Facebook. He said that if he has a problem he can call Mrs Isherwood and he usually calls her when he is leaving where ever he has been. Mr Isherwood confirmed that he drove the car, towing the caravan, to Rainbow Beach and back and did not have a problem driving in an unfamiliar place.[70]
[70] Mr Isherwood’s oral evidence, 4 March 2024.
Mr Isherwood did not think he has problems with his memory but acknowledged that his wife will often ask him to do something, and he thinks he has done it, but then when he checks he has not done it. He said that he then gets annoyed with himself. He said that he thought he could remember all the usual stuff, but he needs to really think about things a bit more. For example, he used to know exactly which size of spanner to use to repair each part of the car but now he has to work it out. He said that some things are locked in his mind, and he can always do them, but other things he needs to think about a lot. Technical things go over his head now. He recalled that his wife had inherited a Mazda from her mother in June 2022.[71]
[71] Ibid.
Mr Isherwood agreed that Mrs Isherwood is responsible for the financial management for the family, and that this has always been the case. He said that he uses his card to pay for things using tap and go, and that he can withdraw money over-the-counter at the bank. He can remember his PIN to do this.[72]
[72] Ibid.
Mr Isherwood said that his wife puts his appointments into a diary for him and he uses this to know what he needs to do. He said that most of the time he can go to appointments by himself, but he does like Mrs Isherwood to come with him in case he forgets anything. He often takes a notepad and pen with him so that he can write things down. He explained that if he has to go to the shops he cannot remember which aisle products are in, so he has to look for each product individually. Mr Isherwood said that Mrs Isherwood is his biggest help and she reminds him of a lot. He confirmed that she is his enduring power of attorney. He said that he is happy with the way she manages the finances and there is no reason to change it.[73]
[73] Mr Isherwood’s oral evidence, 4 March 2024.
Mr Isherwood confirmed that he had built a niche into the shower on the day before the hearing. He said that he had to measure things repeatedly because he just wasn’t sure, and the job took him the whole day when in the past it would have taken him about two hours.[74]
[74] Ibid.
Mr Isherwood’s ride on lawn mower is currently broken. He explained that it needs a new ignition switch and that he will get Mrs Isherwood to order the right one online. He will also call the supplier to make sure that it was the right model. He intends to install the new ignition switch himself.[75]
[75] Ibid.
Mr Isherwood agreed that he helps Mrs Isherwood prepare meals by doing the heavier tasks that she cannot, like cutting pumpkin and carrying heavy pots of water.[76]
[76] Ibid.
Mr Isherwood’s evidence was that he has not seen anybody about his memory. His psychologist has never talked to him about his memory. He did not think that he had been confused when he was drinking more heavily, because his mates would have said something.[77]
[77] Ibid.
Mr Isherwood thought that the supports he would like from the NDIS were a better mobility scooter and some help mowing the lawns. He noted that they have a modified bathroom due to Mrs Isherwood’s disability and he finds that useful himself.[78]
Dr Iacovella’s evidence
[78] Mr Isherwood’s oral evidence, 4 March 2024.
Dr Iacovella is a qualified geriatrician with years of expertise. She was of the view that Mr Isherwood’s simple financial management skills were intact, but that he would need to rely on his wife and other family members for more complicated transactions. She said that her usual recommendation for a person with this deficit is to have somebody assist them to set up direct debits from their bank account. As Mr Isherwood is still able to pay by tap and go Dr Iacovella was of the view that he could maintain financial independence in this manner.[79]
[79] Dr Iacovella’s oral evidence, 5 March 2024.
Dr Iacovella recommended that Mr Isherwood’s medication be dispensed in a dosette box managed by Mrs Isherwood. This is the current method being used. Dr Iacovella said that an alternative would be a Webster Pack with regular monitoring. This could be provided by community nursing or Red Cross if Mrs Isherwood was unable to assist. She said that it may also be sufficient to set up an alarm on a mobile phone. Dr Iacovella noted that Mr Isherwood would benefit from a medication review as her examination of his medication indicated that he could take all his medication in the morning with the exception of Propanalol at night. This would mean he has less to remember. She stated that Mr Isherwood does need supervision and prompting with his medication because nonadherence will result in a deterioration in his liver disease. A Webster Pack with an alarm may remove the need for monitoring but Dr Iacovella stated that in her experience this is not enough. She noted that Mr Isherwood would also need assistance in managing the supply of medication into the home.[80]
[80] Ibid.
Dr Iacovella stated that Mr Isherwood may well remember a lot of his medical appointments but would still need some executive oversight of this as he may not remember on a bad day. He also may well remember the skills involved in driving, but at the time of her assessment she was told that Mr Isherwood was not driving due to geographic disorientation.[81]
[81] Dr Iacovella’s oral evidence, 5 March 2024.
Dr Iacovella noted that at the time she examined Mr Isherwood he had not yet recovered fully from his hernia surgery, so had issues with his truncal flexion which may have subsequently resolved.[82]
[82] Ibid.
Dr Iacovella confirmed that Mr Isherwood’s ability to learn new skills and short-term memory are inefficient and unreliable. She noted that his cognitive impairment does not prevent him from learning new skills, it just presents a barrier. Mr Isherwood may need repetition, more detailed instructions, support, or a different learning pathway. She said that in her view the functional impairment of his learning is still mild.[83]
[83] Ibid.
Dr Iacovella was of the view that the mainstream supports she had recommended in her report including a referral to Dementia Australia, a chronic disease management plan from Mr Isherwood’s GP for physiotherapy or occupational therapy and low-cost assistive technology would be sufficient to address Mr Isherwood’s deficiencies if he were a patient of hers. She confirmed that there are no treatments which would be considered as early intervention for Mr Isherwood’s condition.[84]
Ms Cooper’s evidence
[84] Ibid.
Ms Cooper is a qualified and experienced occupational therapist. She regularly assesses cognitive impairments, dementia, stroke and acquired brain injury. Mr Isherwood was unable to perform the finger to nose test and the heel-to-toe stand during her assessment. She had the impression that the inability to do the heel-to-toe stand was as a result of a physical issue of balance or coordination, but she could not be sure if the difficulty in performing the finger to nose test was cognitive or physical. She noted that her assessments indicate that Mr Isherwood would have difficulty following instructions, taking medication, and engaging in new learning. She explained that the extent of that difficulty would depend on where his deficit was. She noted that, in a cognitive impairment, a person’s baseline skills may be fine, with the result that there is some knowledge that they still automatically know. For example, in Mr Isherwood’s case as a former truck driver he may be fine driving a new ride on lawn mower. She noted that he had failed to take his medication on the day of the assessment and said that she would recommend that Mr Isherwood work with his medical team to look at the best way to ensure he takes his medication. Mrs Isherwood was not present at the time of this assessment, so was not there to remind him.[85]
[85] Ms Cooper's oral evidence, 5 March 2024.
Ms Cooper advised that there are a range of task management strategies and devices that can be taught to help individuals with memory impairments to get through a routine and make it an automatic response.[86] She explained that some people use Google Assist to set reminders for tasks, wall charts, voice reminders, button reminders, large-scale clocks, and whiteboard routines. Ms Cooper explained that these would be her recommendations for early-stage memory loss, and these are what she would recommend for Mr Isherwood.[87]
[86] Ibid.
[87] Ibid.
Ms Cooper explained that the next stage would be labelling kitchen items and clothes, putting tags on keys and phones to locate them, and using visual signs around certain tasks, such as turning off the cooker and not putting spoons in the microwave. A GPS watch would be recommended at a later stage. Ms Cooper told the Tribunal that the exact interventions depend upon where the deficits lie - for example if a person has difficulty calculating correct change, they may need to pay for things on a card. If they have difficulty working out what to buy, they may need a list. If they have difficulty following multistep instructions these could be converted to a three-step command.[88]
[88] Ibid.
Ms Cooper recommended that Mr Isherwood have a further assessment for his mobility scooter. She explained that the usual process for prescribing a mobility scooter is to have a clearance from a GP and also an assessment specifically for a mobility device plus on road testing. She said there would also need to be a discussion around the need for reassessment if there are changes in a person’s cognition. Ms Cooper noted that at the time of her assessment Mr Isherwood had indicated that he had difficulty making his way home from areas.[89]
[89] Ms Cooper's oral evidence, 5 March 2024.
CONSIDERATION
The Tribunal has found that Mr Isherwood has a permanent impairment of mild to moderate neurocognitive disorder. The evidence of Dr Iacovella and Ms Cooper is that Mr Isherwood is still in the relatively early stages of this disease, and it is stable. Dr Iacovella described Mr Isherwood’s functional impairment of learning as mild. Ms Cooper described the interventions that she would recommend as those which are appropriate for early-stage cognitive decline. The Tribunal finds that Mr Isherwood has functional impairments in the areas of learning and self-management due to his neurocognitive disorder.
There is no doubt that Mrs Isherwood assists Mr Isherwood in remembering and completing his day-to-day activities. He is lucky to have her and she supports him well.
In its final submissions, the Respondent noted that there is a crucial distinction between a disability which satisfies s 24(1)(a) of the Act and one which satisfies s 24(1)(c) of the Act and that is the criteria that the person must have a substantially reduced functional capacity. This word is to be given its ordinary meaning and imports a significant threshold.[90]
[90] Rooney and NDIA [2021] AATA 3523, at [20].
It seems that Mr Isherwood needs repeated instructions and learns new things more slowly than most people, although he has been able to learn to use a smart phone to login using QR codes; and how to use a new mobility scooter and ride on lawnmower. He can pay for things using tap and go and withdraw cash from the bank. He can travel into town, to hospital and to the pub by himself either by driving or by using a mobility scooter. He can attend his appointments alone, but Mrs Isherwood usually accompanies him. He can assist with the cooking and other household tasks and remains responsible for household maintenance even though it takes him longer to do things now than it used to. He intends to order and install a new part in his ride on lawnmower. Mrs Isherwood is responsible for the family finances and reminds Mr Isherwood to take his medication. Mr Isherwood has never been responsible for the broader household financial management, this has always been Mrs Isherwood’s job.
Mr Isherwood may need more time or direction to be able to participate fully in activities which involve his memory, but he does seem to be able to participate. The case law has established that undertaking the task more slowly or differently to others does not mean that a person cannot do it.[91]
[91] Nika and NDIA [2021] AATA 2127.
The evidence before the Tribunal does not establish that Mr Isherwood’s impairment causes a substantially reduced functional capacity in any of the necessary domains. While he does have impairments in the domains of learning and self-management, these impairments are still mild, although clearly frustrating for Mr and Mrs isherwood. Dr Iacovella’s evidence is that Mr Isherwood’s disorder is stable and is likely to remain so for the next 10 years as long as he remains largely abstinent from alcohol and continues to take his thiamine.
While there is no formal onus of proof upon Mr Isherwood, as the Full Court explained in Beezley v Repatriation Commission,[92] Mr Isherwood must put forward evidence and information sufficient to satisfy the Tribunal that the relevant statutory requirements in s 24 or s 25 are met. If the Tribunal is not so satisfied, Mr Isherwood cannot succeed (HPSC and National Disability Insurance Agency).[93] The test in Mulligan[94] requiring the Tribunal to be positively satisfied about all the criteria in s 24 cannot be fulfilled in this particular case.
[92] [2015] FCAFC 165; (2015) 150 ALD 11, at [68].
[93] [2021] AATA 727, at [85].
[94] [2015] 233 FCR 201
As the Tribunal cannot be satisfied that Mr Isherwood’s impairments lead to a substantially reduced functional capacity in any of the domains for the purpose of s 24(1)(c) of the Act, he does not meet the disability requirements for access to the NDIS.
Section 25 – Early Intervention Requirements
Section 25 of the Act sets out the requirements for access to the NDIS under the early intervention criteria. At the time the Agency made its internal review decision, a person met the early intervention requirements under s 25(1)(a)(i) and (ii) if 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 to which a psychosocial disability is attributable and that are, or are likely to be, permanent…
Rule 2.5(b) of the NDIS Rules includes the following passage about the rationale for the early intervention requirements as an alternative to accessing the scheme through the disability requirements:
‘A person can access the NDIS through the early intervention requirements without having substantially reduced functional capacity. Instead, the early intervention requirements consider the likely trajectory and impact of a person’s impairment over time and the potential benefits of early intervention on the impact of the impairment on the person’s functional capacity.’
The evidence before the Tribunal is that there are no early intervention treatments available to Mr Isherwood which would provide him with any potential benefit or change his functional capacity. Further, the recommended supports set out by Dr Iacovella are provided through the health system and existing mainstream community systems. This appears to be where the supports for Mr Isherwood’s condition lie, not within the NDIS. In Young and National Disability Insurance Agency[95] the Tribunal noted:
‘Whether or not funding is available through other general systems is not the test of whether it is most appropriately funded or provided through the NDIS. The fact that the health system does not fund entirely, or even at all, what is essentially clinical treatment, or some other form of support that is more appropriately funded through the health system, does not make it the responsibility of the NDIS.’
[95] [2014] AATA 401, at [41].
The Tribunal finds that Mr Isherwood’s impairments do not fulfil the early intervention requirements to enable him to become a participant of the NDIS.
CONCLUSION
The Tribunal is satisfied that Mr Isherwood does not meet any of the requirements to access the NDIS. The Agency’s decision on internal review dated 11 January 2022 was correct.
DECISION
The decision under review is affirmed.
I certify that the preceding 134 (one hundred and thirty-four) paragraphs are a true copy of the reasons for the decision herein of Member T. Bubutievski
........................................................................
Associate
Dated: 4 April 2024
Date(s) of hearing: 4-5 March 2024 Advocate for the Applicant: Ms P Wolter, 88 Constellations Solicitors for the Respondent: Ms V Ginnane, Moray & Agnew
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