James and National Disability Insurance Agency

[2019] AATA 4248

James and National Disability Insurance Agency [2019] AATA 4248 (18 October 2019)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number:           2018/0581

Re:Grahame James

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:The Hon. John Pascoe AC CVO, Deputy President

Date:18 October 2019

Place:Sydney

The reviewable decision of the Respondent which decided that the Applicant did not satisfy the access criteria as set out in the National Disability Insurance Scheme Act 2013 (Cth) is affirmed.

................................[sgd]........................................

The Hon. John Pascoe AC CVO, Deputy President

CATCHWORDS

NATIONAL DISABILITY INSURANCE SCHEME – access – autism spectrum disorder – whether applicant meets early intervention criteria – whether early intervention likely to reduce future need for supports – decision affirmed

LEGISLATION

National Disability Insurance Scheme Act 2013 (Cth) – s 25

SECONDARY MATERIALS

National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)

Operational Guideline – Access to the NDIS

REASONS FOR DECISION

The Hon. John Pascoe AC CVO, Deputy President

18 October 2019

1. In this case the Applicant, Mr Grahame James, lodged an access request form with the National Disability Insurance Scheme (‘NDIS’). His primary disability was said to be Asperger’s syndrome. Subsequently he lodged a supporting evidence form which relevantly noted that the Asperger’s syndrome was diagnosed by a Dr Greg Pearson in January 2017.

2. On 2 August 2017 the Respondent rejected Mr James’ access request on the basis that he did not meet the access requirements of section 24 of the Act in relation to his physical disabilities. Additionally the Respondent found that the Applicant did not meet the early intervention requirements prescribed by section 25(1)(b) in that early invention was unlikely to benefit him by reducing his future needs for support in relation to his disability.

3. On 18 August 2017 the Applicant applied for an internal review of the decision and on 12 January 2018 a reviewer confirmed the original decision of 2 August 2017.

4. The Applicant then applied for a review by this Tribunal on 6 February 2018.

5. For the purposes of these proceedings it was only necessary to deal with access under the early intervention criteria of section 25 of the Act as both parties agreed that the Applicant did not satisfy the disability criteria in section 24 of the Act and any claim originally made in relation to section 24 was not being pursued.

   THE LEGISLATION

6. Although it is useful for the decision-maker to understand the entire framework of the act, the issues in this case are to be determined in accordance with section 25, the relevant provisions of which are as follows:

   Early intervention requirements

   (1)  A person meets the early intervention requirements if:

   (a)the person:

   (i)     has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent; or

   (ii)    has one or more identified impairments that are attributable to a psychiatric condition and are, or are likely to be, permanent; or

   …………

   (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.

   ………….

   (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.

7. The Tribunal must also have regard to the operational guidelines for access to the NDIS and to the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 created pursuant to sections 27 and 209 of the Act.

   THE EVIDENCE

8. The Tribunal received evidence from the following:

   ·the Applicant;

   ·Mrs James (the wife of the Applicant);

   ·Dr Greg Pearson (Psychiatrist) (I note that Dr Pearson’s evidence was not able to be tested as he ignored a subpoena issued to him);

   ·Ms Diane Arnott (Psychologist);

   ·Ms Aimee Prosser (Occupational Therapist); and

   ·Ms Claire Welshe (Occupational Therapist).

   The Applicant’s evidence

9. The Applicant provided a statement of lived experience which he said he had prepared with the assistance of his wife.

10. At the hearing, the Applicant gave evidence as to his difficult childhood. His father was said to have been a violent and abusive man and the Applicant gave an account of various acts of cruelty on the part of his father which resulted in him being unable to live at home for significant periods of his life. The Applicant also suffered from learning disabilities and social isolation. He did not understand why he had such difficulties in interpersonal relationships. The Applicant gave evidence that his father forced him into the workforce at an early age and that he continued to work until he was made redundant in 2012. He has been searching for another job since that time but has not been able to find one. He said that he has faced continuous rejections in response to his many job applications. He is currently receiving Newstart allowance and has done so virtually since the time he lost his job.

11. The Applicant gave evidence as to feeling a lack of self-worth and said that he has always found it difficult to communicate with more than one person at a time.

12. In 2016 Dr Pearson, a psychiatrist, diagnosed him with Asperger’s syndrome, which is perhaps better known as a type of autism spectrum disorder. The Applicant gave evidence that the diagnosis, whilst giving him an explanation as to why his life had been so difficult, did not really change his anxiety and depression. He gave evidence that he gets very angry and frustrated and that his only support is his wife of some 30 plus years.

13. The Applicant gave evidence that he had received some benefit from attending sessions at ARAFMI (a community organisation which aims to provide support for people with mental illness or disorders) and that he had been able to participate in outings with that group. If he were unable to attend the group he would simply stay at home.

14. The Applicant gave evidence that his depression had been exacerbated by the recent death of his mother.

15. Under cross-examination the Applicant gave evidence as to his various interests prior to his redundancy which included stamp collecting and family history. He had created a Facebook group called Genealogy Australia which had some 6000 members and had written a book about his family history.

16. He also gave evidence of his attendance at both a church group a local darts group and a group for sufferers of depression called ‘depression and hope’. He also had an interest in music and went to various bands sessions at a local club or hotel. He felt that he had built a friendship group through ARAFMI.

17. The Applicant had been involved in a criminal assault for which he received a suspended sentence. He gave evidence that he had been lured into assaulting another person, he said through meeting someone on the Internet.

18. The Applicant also gave evidence of travel to Europe with his wife and his niece on an organised tour. He said he felt comfortable on the tour because his niece and his wife were with him.

19. The Applicant also gave evidence that he had received assistance from a range of health professionals. In a number of areas he felt that his life was becoming better despite the fact that he still suffered from a range of physical and psychological difficulties.

    Mrs James (the Applicant’s wife)

20. Mrs James gave evidence of the stresses of living with the Applicant, particularly when he was out of routine or if things were not going his way. She gave evidence that he became very agitated and acted without thinking.

21. She was of the view that the diagnosis of Asperger’s syndrome in 2016 had been very useful because it gave an explanation for the Applicant’s behaviour and his lack of insight as to how his behaviour affected other people.

22. Mrs James gave evidence as to the trip to Italy and the difficulties the Applicant had in relating to other people in their tour group.

23. She felt that the ARAFMI group had been very helpful for the Applicant and that he had made some friends through the group, although there were ups and downs. She felt that meditation was helpful to the Applicant and that he also enjoyed listening to music. After his diagnosis the fact that he could go to ARAFMI was very useful.

24. Under cross-examination by counsel for the Respondent, Mrs James gave evidence as to the financial stresses on the family, as well as problems within the marriage, particularly during the period of the Applicant’s criminal trial.

25. Mrs James felt that things had become better more recently because she had modified her behaviour as a result of the diagnosis of her husband’s condition, but that he had problems with depression and anxiety both before and after his diagnosis with Asperger’s syndrome. She noted his attendance at a number of groups including ARAMI and ‘Depression and Hope’. She said the benefit of the ARAFMI group had been to provide some structure for the Applicant but stated that it was not helping him to learn new skills. She also gave evidence as to his very significant interest in genealogy and his Facebook group.

    Ms Amy Prosser

26. Ms Prosser is an occupational and mental health therapist who prepared two reports in relation to the Applicant, the first dated 10 July 2018 and the second dated 29 January 2019.

27. Ms Prosser gave evidence that she regularly works with people with autism and that her 2018 report had been prepared after a visit to the Applicant. She gave evidence that the Applicant’s wife was present at the time of the visit and she felt that it was important for his wife to be present so that she could understand the degree of support the Applicant required.

28. She gave evidence that her early interaction with the Applicant was very awkward and that his wife was required to intervene significantly, particularly if the Applicant was out of his ‘comfort zone.’ Ms Prosser felt that the Applicant’s attendance at ARAFMI was very important as it enabled him to interact with people who had similar difficulties.

29. Ms Prosser gave evidence that in her opinion the Applicant would benefit from some multidisciplinary interventions following his treatment and that early intervention may assist him in being able to get back into the workforce. She said that anxiety is often a comorbidity of Asperger’s syndrome and that the Applicant also has a long history of depression. Ms Prosser felt that the Applicant will always need support as he does not view the world in the same way as others. She said that autism is a lifelong disorder and that the best that can be hoped for is functional improvement and that major changes in structure or routine can be very challenging indeed.

30. Ms Prosser felt that without treatment or support the Applicant would be completely dependent on his wife and that treatment would improve his functionality and living.

31. Ms Prosser gave evidence that her first report in 2018 was primarily directed to section 24 of the Act rather than the early intervention criteria in section 25, which is the relevant section in these proceedings.

32. When questioned about improvement in the Applicant’s capacities between the time Ms Prosser saw the Applicant in 2018 and when Ms Welshe saw the Applicant in March 2019, she said that changes in medication could account for improvement. Ms Prosser noted that her reports were based very much on her interaction with the Applicant and his wife. She felt that ongoing supports would benefit the Applicant.

33. It was noted that Ms Prosser and Ms Welshe had come to radically different conclusions in relation to the Applicant’s cognitive ability and that Ms Prosser had relied very much on self-assessment and the comments of his wife, whereas Ms Welshe had looked at a number of factors including self-assessment, the Applicant’s ability to perform tasks and other tests for objective assessment. Ms Prosser also gave evidence that her later report had been based on observations six months before the date of that report.

34. Ms Prosser was of the view that it would be difficult to predict what effect early intervention supports would have on the Applicant’s functional capacity. She said that results of such supports for people with autism spectrum disorder were very dependent on the particular individual.

    Ms Dianne Arnott

35. Ms Arnott had prepared two reports, one dated 19 June 2018 and another dated 29 January 2019. She is a registered psychologist but noted that she was not a clinical psychologist and that Asperger’s syndrome was not her specialty. She had started seeing the Applicant around 2012 and had been treating him for reactive depression. She learnt about his diagnosis with Asperger’s syndrome more recently but said that her treatment was focused on depression and later on other life events. She was aware of the various ways in which Asperger’s impacted on the Applicant’s life, both from her personal interaction with him and also from his wife.

36. Ms Arnott gave evidence that she had been seeing the Applicant for a long period of time but she did not observe a great deal of change. She noted that she concentrated on the symptoms of his illness in particular his difficulty with social interactions. The Applicant’s symptoms had ‘waxed and waned’. She had encouraged the Applicant to participate in meditation, his church group walks and other interests. She said that she had seen significant improvement over time in his reactive depression. There had been improvement noted in his DASS (Depression and Anxiety Stress Scale) scores.

37. Ms Arnott when asked whether early intervention would help reduce the Applicant’s future need for supports the Applicant stated that she thought it was doubtful. Ms Arnott felt that the support the Applicant had received from her had prevented his condition from worsening and that if he had similar support going forward his condition would not deteriorate.

    Ms Claire Welshe

38. Ms Welshe is a qualified Occupational Therapist who carried out an evaluation at the request of the Respondent on 28 March 2019 where she conducted both formal and informal assessments of the Applicant. Ms Welshe said that she saw no ‘red flags’ in relation to the Applicant. She saw him at home without the presence of his wife which she felt was more valuable as he was not able to rely on someone else to answer questions for him. Ms Welshe noted that the Applicant received a phone call when she was present and that he answered the call and dealt with the issue appropriately. She also gave evidence as to the Applicant’s interaction with a tiler who was present in the home at the time that she was there. He had excellent test results from a screening of cognitive function test.

39. Ms Welshe gave evidence that the Applicant saw himself as significantly impaired whereas objective testing was much more positive. Based on her observations she was of the opinion that the Applicant was at the lower end of the autism spectrum disorder, and that he demonstrated insight into his interactions with others including the ARAFMI group. The Applicant wanted to interact with others. Ms Welshe felt that the Applicant had received all of the benefit he would get from ARAFMI and that it was now time for him to move on to other groups, for example a photography group. Ms Welshe felt that the Applicant’s difficulties were nuanced and that what was necessary was ongoing mental health care which he is already receiving from a psychologist, as well as further activities which could improve his social skills and provide him with other training.

40. Ms Welshe was of the view that although the Applicant’s underlying autism spectrum disorder would remain, he could improve even as an adult and that those improvements could be adequately provided under a mental health care plan within the health system.

    Dr Pearson

41. Although Dr Pearson was summonsed to give evidence at the hearing, he chose to ignore the summons and therefore was not available for cross-examination. When he failed to appear, counsel for the Respondent accepted the written material from Dr Pearson on the basis that he would not be available for cross-examination. A number of documents from Dr Pearson were produced by summons for the hearing.

42. Dr Pearson provided a number of reports in relation to the Applicant. He first saw the Applicant on 9 December 2016 at the time when the Applicant had been charged with assault. At the time the Applicant was said to be extremely depressed and anxious. He was prescribed Zoloft, an antidepressant. The Applicant appeared to be affected by similar stress and anxiety for much of February but in March the reports seem to indicate that Dr Pearson saw improvement. On 22 September 2017 he noted considerable improvement; a similar finding was made in November 2017.

43. Dr Pearson wrote to Centrelink on 22 March 2017 noting that the Applicant had depression as well as Asperger’s syndrome which has been ‘persistent life long’. There was no evidence to indicate Dr Pearson had any qualifications to make a diagnosis of Asperger’s syndrome or whether there was any independent verification of this diagnosis.

44. On 23 July 2018, Dr Pearson wrote a letter to Centrelink where he noted that the Applicant ‘is no longer depressed, but he remains highly anxious’. He also noted that ‘I cannot see Mr James symptoms improving significantly’.

45. On 29 October 2018, Dr Pearson reported to the Applicant’s solicitor that Mr James diagnosis of Asperger’s syndrome was permanent. Dr Pearson also reported that the Applicant was very well and ‘thinking and vegetative functioning are normal’.

46. I note that from the documentation, Dr Pearson was in regular contact with other health professionals treating the Applicant including Ms Arnott and Dr Antoine Louka, a general practitioner. Dr Louka reported on 28 April 2017 that Mr James did not need assistance except for self-management, for which he required help in decision making and problem solving. At the time of this report Dr Louka had been treating the Applicant for approximately eight years. Dr Louka was not called to give evidence before the Tribunal.

    CONSIDERATION

47. It is clear from the evidence that the Applicant suffered from learning difficulties and problems with social interaction from a very early age. His disabilities would not have been assisted by the behaviour of his father. Nevertheless, the Applicant was able to hold down a job for a very long period of time until he was made redundant at the age of 62. With the support of his wife, he had been able to maintain a very long marital relationship and to raise a son, although at the time of the hearing his relationship with his son may best be described as problematic. His autism spectrum disorder was, in Dr Pearson’s opinion, ‘persistent and lifelong’.

1. The issue for determination in this case is whether the Applicant meets the early intervention requirements in section 25(3) of the Act. However, before considering the various elements of section 25(3), it is worthwhile to consider the objective of early intervention.

2. The objective of early intervention support is expressed to be to ‘lower the costs and impacts’ associated with the disability for individuals and the wider community over the longer term. Accordingly the early intervention requirements look at 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.

3. Thus, the early intervention requirements differ from the disability requirements in section 24(1) of the Act which require substantially reduced functional capacity to undertake one or more of the activities specified.

4. There are a number of gateways which the Applicant must traverse in order to meet the requirements of the section. The first is set out in section 25(1)(a), the provisions of which have been set out earlier in this judgement. The Applicant meets the requirements of section 25(1)(a) in that he has been diagnosed with a permanent impairment, namely autism spectrum disorder.

5. The second gateway set out in section 25(1)(b) is much more problematic for the Applicant, especially in light of the fact that the section is concerned not with ‘early’ intervention in terms of an early diagnosis, but rather earlyin the course of the impairment where early intervention is likely to have a significant impact on the course taken by that impairment.

6. Evidence was given that early intervention in children diagnosed with autism spectrum disorder can be of significant benefit. There was no evidence presented to the Tribunal to support such a proposition in relation to adults.

7. The Applicant relied upon the report relating to him prepared by Ms Prosser. Much of that report relates to conditions which were the subject of a broader application for access to the NDIS under section 24 of the Act. It also relates to ongoing supports or scaffolding for Mr James which do not fall within the definition of early intervention but rather are ongoing supports. Ms Arnott in her report outlines the scaffolding or support which she gave to the Applicant over a period of nearly 7 years but says that she did not see any of it as having the effect of changing outcomes for the Applicant or reducing his future needs for such supports.

8. Similarly, Dr Pearson does not identify any ‘early intervention’ which would likely change the trajectory of the Applicant’s condition or reduce his need for support in the future. This is also true of the reports of Dr Louka, the Applicant’s general practitioner.

9. Further there was no evidence that without ‘early intervention’ his condition would substantially deteriorate.

10. At best, the medical reports suggest that the various experts are unsure of the benefit any ‘early intervention’ would bring and one of them, Ms Welshe, is quite clear in her report that there is no benefit to be gained.

11. It is also clear from the medical evidence and from the evidence of the Applicant and his wife that ongoing support Applicant is already being provided through the health system and is most appropriately provided through the various supports available in that system, including an ongoing mental health care plan.

12. I note that the Applicant placed considerable weight on the benefit of attending the ARAFMI program which had enabled him to develop a wider social circle and included him going on outings with other group members. The strength of the relationships developed through ARAFMI could not be described as strong friendships; rather at best the members of the group were acquaintances. Other groups are available to the Applicant and there was evidence from Ms Arnott and Ms Welshe that the Applicant needed to move on and interact with others in broader social groups.

13. I note that there is considerable evidence of the Applicant’s capacity to relate to third parties in areas in which he has an interest, for example genealogy and musical groups. The Applicant’s wife gave evidence to the effect that he was able to do things in areas in which he was ‘interested’.

14. There was no evidence of a need to access supports which were not available through the health system or the community more generally, for example darts groups, church groups, and mental health support groups. The Applicant is already attending some such groups. It was clear from his evidence that because both he and his wife are currently unemployed, there can be a financial burden in attending such groups, but this does not of itself mean that he meets the requirements for access to the NDIS.

15. Having considered all of the evidence presented, I am not satisfied that the provision of early intervention supports are likely to benefit the Applicant by reducing his future need for supports in relation to his disability.

    DECISION

16. The reviewable decision of the Respondent which decided that the Applicant did not satisfy the access criteria as set out in the National Disability Insurance Scheme Act 2013 (Cth) is affirmed.

I certify that the preceding 63 (sixty -three) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President

...............................[sgd].........................................

Associate

Dated: 18 October 2019

Dates of hearing:	29 & 30 August 2019
Advocate for the Applicant:	Mr M Vaarzon-Morel
Solicitors for the Applicant:	Vaarzon-Morel Solicitors
Counsel for the Respondent:	Ms F Roughley
Solicitors for the Respondent:	Wisewould Mahony Lawyers