Jeftic and National Disability Insurance Agency - [2024] AATA 892

Jeftic and National Disability Insurance Agency [2024] AATA 892 (29 April 2024)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2022/2041
Re:Judith Jeftic
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Senior Member K Buxton
Date:29 April 2024
Place:Brisbane

The Tribunal affirms the decision under review pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).
..........................[SGD]..........................
Senior Member K Buxton
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – Application for Review of Decision – Access to Scheme – Applicant not having met the disability and early intervention requirements of the Act – Decision Under Review Affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance SchemeAct 2013 (Cth)
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)
Cases
HPSC and National Disability Insurance Agency [2021] AATA 727
Madelaine and National Disability Insurance Agency [2020] AATA 4025
Mulligan and National Disability Insurance Agency [2015] AATA 974
National Disability Insurance Agency v Davis [2022] FCA 1002
National Disability Insurance Agency v Foster [2023] FCAFC 11
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
REASONS FOR DECISION
Senior Member K Buxton
29 April 2024

This review relates to a request made in November 2021 by the Applicant, a 67-year-old woman who resides in Queensland, to become a participant in the National Disability Insurance Scheme (‘NDIS’).
The Applicant’s request for access to the NDIS was refused by a delegate of the Chief Executive Officer (‘CEO’) of the Respondent on 21 November 2021. The Respondent was not satisfied that the Applicant met the disability requirements under section 24 or the early intervention requirements under section 25 of the National Disability Insurance SchemeAct 2013 (Cth) (‘the NDIS Act’). Following a review under subsection 100(6) of the NDIS Act, a delegate of the CEO affirmed the earlier decision on 11 February 2022. On 9 March 2022 the Applicant applied to the Tribunal for review pursuant to section 100 of the NDIS Act. The Applicant contends that she meets the access criteria prescribed in the NDIS Act.
The Applicant lives with the following conditions that were identified when she requested access to the NDIS:
(a)       Psoriatic Arthritis,
(b)       Cervical Spondylosis,
(c)       Knee/Shoulder Bursitis,
(d)       Bulging Discs, and
(e)       Nerve Root Compression.
A hearing of the review application was conducted by the Tribunal on 19 March 2024 using the electronic platform Microsoft Teams. During the hearing, Ms Jeftic indicated that she is also seeking access in relation to:
(a)psychosocial impairments arising from the conditions of depression and anxiety, and
(b)physical impairments arising from a right elbow condition.
Following the hearing the parties produced written submissions.[1] In arriving at its decision, the Tribunal has considered these together with the tendered documents and the oral evidence given at the hearing.
[1] Respondent’s closing submissions dated 26 March 2024 and the Applicant’s closing submissions dated 3 April 2024.
It is not in dispute, and the Tribunal accepts,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Jeftic and National Disability Insurance Agency

Details

AGLC: Jeftic and National Disability Insurance Agency [2024] AATA 892
Case: [2024] AATA 892
Decision Date: 29 April 2024

CaseChat Overview and Summary

This matter concerned an application by Ms Judith Jeftic for review of a decision by the National Disability Insurance Agency (NDIA) to refuse her access to the National Disability Insurance Scheme. The Tribunal was required to determine whether the applicant met the eligibility criteria for the scheme, specifically concerning the impact of her permanent impairments on her functional capacity and her need for lifetime support, as well as whether she satisfied the early intervention requirements.

The Tribunal considered whether the applicant’s permanent impairments resulted in a substantially reduced functional capacity under section 24(1)(c) of the NDIS Act, and whether she was likely to require NDIS support for her lifetime under section 24(1)(e). Additionally, the Tribunal assessed whether the applicant met the early intervention criteria outlined in section 25 of the Act. In its determination, the Tribunal had regard to extensive documentary evidence, including medical reports and the applicant's own statements, as well as the NDIA's Access Operational Guidelines.

The Tribunal's reasoning focused on the interpretation of "substantially reduced functional capacity" as requiring disability-specific supports, such as significant assistance from others or prescribed assistive technology. It noted that while the applicant presented with various physical conditions and a history of depression, the evidence did not establish that these impairments, considered collectively, substantially reduced her functional capacity in the defined domains or that she would require NDIS support for her lifetime. The Tribunal also found that the applicant did not meet the early intervention criteria. Consequently, the Tribunal affirmed the NDIA's original decision to refuse access to the scheme.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The following issues are to be determined by the Tribunal:(a)Whether the Applicant’s permanent impairments result in a substantially reduced functional capacity pursuant to section 24(1)(c);(b)Whether the Applicant is likely to require support under the NDIS for her lifetime pursuant to section 24(1)(e); and(c)Whether the Applicant meets the early intervention criteria pursuant to section 25.EVIDENCE The hearing bundle contains almost 900 pages of documentary evidence. The Tribunal has had particular regard to those parts of the bundle to which the parties have drawn the Tribunal’s attention, and to other documents the Tribunal has consulted in order to understand background and context. The parties had ample opportunity during the hearing to indicate further documents on which they specifically wished to rely. I have summarised below the evidence of the witnesses which each party stated were key to the issues before the Tribunal and placed less weight on the remaining documents as no submissions were made in relation to them. The original Access request form dated 11 July 2021,[9] filled in partly by the Applicant’s General Practitioner, Dr Nabil Ikram, identified only the domains of mobility and self-care in which he stated that the Applicant “needs help”. Help at home, including with cleaning and in the shower, were identified as potential supports. His supporting letter, dated 5 November 2021, did not note any mental health issues. In his letter dated 15 March 2023,[10] Dr Ikram noted that the Applicant had, amongst her physical conditions, depression. This was included in a list of conditions that Dr Ikram described as permanent and lifelong. The Tribunal notes that the Applicant told Ms Hayes, during an assessment described below, that she did not have depression.[11] There is reference in the Applicant’s medical history to depression being active from 2012, and being associated with her workplace bullying claim, and some of her medications have uses which include depression, but also include the treatment of neuropathic pain. Earlier GP notes mention a history of depression but do not provide insight into any diagnosis, treatment, or ongoing impairment. Dr Ikram did not give oral evidence at the hearing.[9] HB p. 81-91.[10] HB p. 278-280.[11] HB p. 336.The Applicant The Applicant provided two written statements of her lived experience[12], and gave oral evidence during the hearing. She has also provided relevant information indirectly, through her reporting to medical and allied health professionals, as reflected in various records, letters and reports in the Hearing Bundle. The Applicant’s oral evidence traversed her personal circumstances, provided details of the onset and degeneration of her physical symptoms, and addressed some aspects of her mental health. She also gave evidence about how her impairments impacted upon her daily life, and about the various medications she takes to assist with her conditions. She stated that some medications were taken daily and other as needed, depending on both her pain levels and her levels of stress. She also uses a TENS machine to alleviate pain.[12] Dated 22 June 2022, T26 and 1 November 2023, T40.

Decision

Reasons for decision

For the reasons set out above, the Tribunal finds that the Applicant does not meet the access criteria in sections 24 or 25 of the NDIS Act. It is therefore proper to affirm the decision under review.DECISION The Tribunal affirms the decision under review pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).I certify that the preceding 120 paragraphs are a true copy of the reasons for decision of Senior Member K Buxton...........................[SGD]..........................AssociateDated: 29 April 2024Hearing: 19 March 2024, by Microsoft TeamsDate of final submissions: 3 April 2024Applicant: Ms Judith Jeftic Solicitor for the Respondent: Mr Peter Crethary, HWL Ebsworth Lawyers

Ratio Decidendi

Legal Principle Established

Operational Guidelines written by the Chief Executive Officer of the Respondent also assist staff to make decisions in accordance with the NDIS Act. Operational Guidelines represent government policy and should be considered by the Tribunal unless there is good reason not to do so.[7] The relevant Operational Guideline is the Our Guidelines – becoming a participant (‘the Access Operational Guidelines’)[8] published in June 2023.[7] Re Drake and Minister for Immigration and Ethnic Affairs (No 2)(1979) 2 ALD 634. [8] National Disability Insurance Agency, Our Guidelines – Applying to the NDIS, (Web Page) < > (‘The Access Operational Guidelines’). As to the application of section 24(1)(c), the Access Operational Guidelines provides:Does your impairment substantially reduce your functional capacity?Your permanent impairments needs to substantially reduce your functional capacity or ability to undertake activities in one of the following areas:• Communicating – how you speak, write, or use sign language and gestures, to express yourself compared to other people your age. We also look at how well you understand people, and how others understand you.• Socialising – how you make and keep friends, or interact with the community, or how a young child plays with other children. We also look at your behaviour, and how you cope with feelings and emotions in social situations.• Learning – how you learn, understand and remember new things, and practise and use new skills.• Mobility, or moving around – how easily you move around your home and community, and how you get in and out of bed or a chair. We consider how you get out and about, and use your arms or legs.• Self-care – personal care, hygiene, grooming, eating and drinking, and health. We consider how you get dressed, shower or bathe, eat or go to the toilet.• Self-management (if older than 6) – how you organise your life. We consider how you plan, make decisions, and look after yourself. This might include day-to-day tasks at home, how you solve problems, or manage your money. We consider your mental or cognitive ability to manage your life, not your physical ability to do these tasks.Your impairment substantially reduces your functional capacity if you usually need disability-specific supports to participate in or complete the above tasks.These disability-specific supports include:• a high level of support from other people, such as physical assistance, guidance, supervision or prompting• assistive technology, equipment or home modifications that are prescribed by your doctor, allied health professional or other medical professional.To help us decide if you’re eligible, we need to know your capacity and where you need more help. We get this information from your NDIS 6 Drake and Minister for Immigration and Ethnic Affairs (No2) 1979 2 ALD 634 at 639-640.If you have more than one permanent impairment we will consider them together, to see if they substantially reduce your functional capacity.We consider how you’re involved in different areas of life like home, school, work and the community, and how you carry out tasks and actions. We also consider any other factors that may impact your day to day life.Your needs might go up and down each day or each month. Progressive Multiple Sclerosis (MS) can be a good example of this. We consider your ability over time, taking into account your ups and downs.