Jemison-Budd and National Disability Insurance Agency

[2022] AATA 341

Jemison-Budd and National Disability Insurance Agency [2022] AATA 341 (1 March 2022)

Division:GENERAL DIVISION

File Number(s):      2019/6044

Re:Jemison-Budd

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Deputy President B W Rayment OAM QC 

Date:1 March 2022

Place:Sydney

The reviewable decision is set aside, and it is decided that the applicant meets the disability requirements under section 24 of the National Disability Insurance Scheme Act 2013.

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

Deputy President B W Rayment OAM QC

CATCHWORDS

National Disability Insurance Scheme – access to the scheme, disability requirements, Diffuse Idiopathic Skeletal Hyperostosis, Undifferentiated Connective Tissue Disease, whether impairments are permanent, whether impairments result in “substantially reduced functional capacity” to undertake any one or more specified activities, decision set aside and substituted with decision that the Applicant met access criteria under s21 of the National Disability Insurance Scheme Act 2013 (Cth)

LEGISLATION

National Disability Insurance Scheme Act 2013

CASES
Mulligan v National Disability Insurance Agency [2015] FCA 544; (2015) 233 FCR 201

SECONDARY MATERIALS

National Disability Insurance Scheme (Becoming a Participant) Rules 2016

Mayo Clinic, Diseases and Conditions webpage

REASONS FOR DECISION

Deputy President B W Rayment OAM QC

1 March 2022

1. This review concerns an application by Mr Jemison-Budd to become a participant in the National Disability Insurance Scheme.

2. Mr Jemison-Budd, in his teenage years, was healthy and well until, at the age of 16, he began to suffer significant pain, including back pain and knee pain.  He is now in his mid-forties. At first, the pain was undiagnosed and was treated by pain medication, of varying kinds.  In 2014, rheumatologist, Dr Bertouch, diagnosed him as suffering from Diffuse Idiopathic Skeletal Hyperostosis (DISH).  He then reported widespread joint pain in his hands, wrists, shoulders, knees and feet.  In 2015, rheumatologist, Dr Damodaran, also diagnosed possible Undifferentiated Connective Tissue Disease (UCTD), with inflammatory joint pain.

3. Since 2019, his UCTD has no longer been regarded by his treating doctors as merely possible, but rather has been treated as, together with DISH, a principal cause of his functional problems and of the resultant pain. 

4. The respondent accepts that the applicant’s disabilities are attributable to both DISH and UCTD.

5. Mr Jemison-Budd lives alone.  He cannot now work and has not done so for many years.  He leaves his one-bedroom unit only up to about three times each week, either to check in on his mother, who is also ill, or to do some light shopping.

6. If he stands, he will normally only do so for two or three minutes before he needs to find a seat. He cannot sit for more than 15 minutes in one position without pain. He says that because of his widespread pain, he has had to pare back to a bare minimum cleaning, shopping and exercise. His general practitioner explains that he has difficulties with mobility and physical tasks as well as stamina.

7. The age and residence requirements for him to become a participant in the National Disability Insurance Scheme are satisfied. In these proceedings the respondent agency has, in effect, put Mr Jemison-Budd to proof that he satisfies the disability requirements spelt out in section 24 of the National Disability Insurance Scheme Act 2013 (the Act).  If he satisfies those requirements, he is entitled to become a participant in the scheme. 

8. Section 24 of the 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 to one or more impairments attributable to a psychiatric condition; and

   (b) the impairment or impairments are, or are likely to be, permanent; and

   (c) the impairment or impairments result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the following activities:

   (i) communication;

   (ii) social interaction;

   (iii) learning;

   (iv) mobility;

   (v) self-care;

   (vi) self-management; and

   (d) the impairment or impairments affect the person’s capacity for social or economic participation; and

   (e) the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime.

   (2) For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the variation.

9. Section 24 is to be read in the light of published Rules known as the National Disability Insurance Scheme (Becoming a Participant) Rules 2016. The function of those rules as described in the Act is to assist the CEO of the Agency (and therefore, this Tribunal on review) to determine who becomes a participant.  In particular, part 5 of the rules is relevant.  Part 5 provides as follows:

   Part 5 When does a person meet the disability requirements?

   5.1 The Act sets out when a person meets the disability requirements. The requirements are met if:

   (a) the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments, or to one or more impairments attributable to a psychiatric condition; and

   (b) the person’s impairment or impairments are, or are likely to be, permanent (see paragraphs 5.4 to 5.7); and

   (c) the impairment or impairments result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the following activities: communication, social interaction, learning, mobility, selfcare, self-management (see paragraph 5.8); and

   (d) the impairment or impairments affect the person’s capacity for social and economic participation; and

   (e) the person is likely to require support under the NDIS for the person’s lifetime.

   5.2 In relation to the above, an impairment that varies in intensity (for example because the impairment is of a chronic episodic nature) may be permanent, and the person is likely to require support under the NDIS for the person's lifetime, despite the variation.

   5.3 This Part sets out rules relating to some of the elements in paragraph 5.1 above, however, in order to meet the disability requirements, all of the requirements in that paragraph need to be satisfied.

   When is an impairment permanent or likely to be permanent for the disability requirements?

   5.4 An impairment is, or is likely to be, permanent (see paragraph 5.1(b)) only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.

   5.5 An impairment may be permanent notwithstanding that the severity of its impact on the functional capacity of the person may fluctuate or there are prospects that the severity of the impact of the impairment on the person's functional capacity, including their psychosocial functioning, may improve.

   5.6 An 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).

   5.7 If 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.

   When does an impairment result in substantially reduced functional capacity to undertake relevant activities?

   5.8 An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities—communication, social interaction, learning, mobility, self-care, self-management (see paragraph 5.1(c))—if its result is that:

   (a) the person is unable to participate effectively or completely in the activity, or to perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications; or

   (b) the person usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in the activity or to perform tasks or actions required to undertake or participate in the activity; or

   (c) the person is unable to participate in the activity or to perform tasks or actions required to undertake or participate in the activity, even with assistive technology, equipment, home modifications or assistance from another person.

10. The applicant has led oral evidence in support of his claim for access. The Tribunal has the function of considering each of the provisions of section 24, referring also to the Rules and that evidence should be considered, together with the information contained in the section 37 documents filed with the Tribunal. The respondent, in effect, put the applicant to proof that each provision of section 24 is satisfied, with the exception of section 24(1)(a), which the respondent accepted was satisfied, both for the conditions of DISH and UCTD.

11. I say that the respondent, in effect, put the applicant to proof of the relevant issues because the only evidence tendered by the respondent on the review was several publications of the Mayo Clinic which relate to conditions from which the applicant suffers. Otherwise, the respondent tendered no evidence, but merely cross-examined the witnesses of the applicant.  As is well known, there is no onus of proof as such before the Tribunal, although the Tribunal must be satisfied, on the basis of rationally probative and relevant evidence of the various matters in issue if the applicant is to succeed. The respondent submitted that the Tribunal ought not to be satisfied of the requisite matters as a matter of fact.

12. The applicant was represented by a disability advocate, Mr Stephin Hargreave, and the respondent was represented by Mr Joshua Sproule of counsel, who was instructed by a legal officer from the Agency. 

13. The Act does not define the word, “disability”, nor the word, “impairment”. 

14. An excerpt from the reasons for judgment of Mortimer J in Mulligan v National Disability Insurance Agency [2015] FCA 544 indicates some important background matter concerning section 24. At paragraphs [51] – [56], her Honour said,

    [51]  Some general observations should be made about these matters. The term “disability“ is used in the Act, and in s 24, as a descriptive concept for the overall effect of a person’s impairments on that person’s abilities to participate in all aspects of personal and community life. Threshold provisions such as s 24 operate not on the concept of disability, but on the concept of an impairment, which, as the Tribunal correctly observed at [19] of its reasons, is generally understood as involving the loss of or damage to a physical, sensory or mental function.

    [52]  Although an impairment may, in general terms (and, for example, in the terms of Art 1 of the Convention on the Rights of Persons with Disabilities extracted above) be responsible for or related to a disability, the threshold in s 24 revolves around the severity and permanency of the effects of the impairments experienced by a person, so as to justify the provision of the “reasonable and necessary supports“ to which participants may be entitled, after assessment in accordance with Pt 2 of Ch 3 of the Act.

    [53]  At p 14 of the revised Explanatory Memorandum, the purpose of what became s 24 is described:

    Clause 24 sets out the disability requirements a person must satisfy in order to become a participant in the NDIS launch. The disability requirements are designed to assess whether a prospective participant has a current need for support under the scheme, based on one or more permanent impairments that have consequences for the person’s daily living and social and economic participation on an ongoing basis. This clause also implements recommendation 3.2 of the Productivity Commission report.

    [54]  Recommendation 3.2 of the Productivity Commission Inquiry Report, “Disability Care and Support“ (31 July 2011), stated:

    Individuals receiving individually tailored, funded supports through the NDIS:

    •should have a disability that is, or is likely to be, permanent, and

    •would meet one of the following conditions:

    •     have significantly reduced functioning in self-care, communication, mobility or self-management and require significant ongoing support

    •     be in an early intervention group, comprising individuals for whom there is good evidence that the intervention is safe, significantly improves outcomes and is cost effective

    In exceptional cases, the scheme should also include people who would receive large identifiable benefits from support that would otherwise not be realised, and that are not covered by the groups above. Guidelines should be developed to inform the scope of this criterion and there should be rigorous monitoring of its effects on scheme costs.

    [55]  Using the concept of impairment enables assessment of the severity and permanency of a person’s condition, and of the effects of that condition through not only the evidence of an applicant, but also medical and clinical evidence. The legislative scheme contemplates 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]  That being the case, no arbitrary limits are placed on access to the NDIS. No decision-maker need be satisfied a person’s impairment is “serious“, or more serious than another person’s. No qualitative judgments in that sense are called for. Rather, the legislative scheme is based on a functional, practical assessment of what a person can and cannot do. Critically, the scheme makes detailed provision for that assessment, and it is sufficient for a person to have substantially reduced functional capacity in relation to one activity. That, in my opinion, recognises the spectrum of impairments which can be experienced by persons with disabilities, and accommodates different abilities within one person in terms of her or his daily activities. That is why a detailed functional assessment is so important.

15. I understand in the reference to the word, “impairment” to refer for present purposes to a deterioration in the correct functioning of bodily systems. Functional capacity in a number of respects is referred to in section 24(1)(c). The impairments in question in order to qualify a person for admission to the scheme, must also be permanent as section 24(1)(b) emphasises.

16. As Mortimer J points out at [55], an assessment of the severity and permanency of a person’s impairments will depend upon not only the evidence of the applicant in the case, but also upon medical and clinical evidence. 

17. The contribution to the applicant’s disabilities made by the two conditions described as UCTD and DISH are that the applicant suffers generalised pain throughout his body. Fibromyalgia was also diagnosed by a rheumatologist in 2017. I heard no oral evidence from any rheumatologist. Dr Lo, the applicant’s general practitioner, stated that it “could be part of the connective tissue disease” (UCTD) which I understand to be a suggestion that it is secondary to the condition of UCTD. Fibromyalgia itself involves generalised pain according to Mayo Clinic information, and if it is secondary to UCTD and DISH, in substance it plays no independent role in the impairments of the applicant. In any event, as the respondent submits, and as Mortimer J found in Mulligan, it is the impairments of the applicant on which s.24 focuses, so that if a condition other than UCTD and DISH is responsible for the applicant’s impairments, the case would be no different. The Mayo Clinic information states that fibromyalgia has no cure. It states that a variety of medications can control symptoms. It also states that fibromyalgia often co-exists with other conditions, here UCTD and DISH. The applicant has taken, since his teenage years, many medications without significant pain relief. The fact that the applicant has suffered from his impairments for some thirty years, confirms the permanence of his impairments.

18. Two other conditions are mentioned in the evidence. The first is the applicant’s Obstructive Sleep Apnoea (OSA) which contributes to his suffering from interrupted sleep. The second such condition is Mr Jemison-Budd’s obesity. The OSA was attempted to be treated with a CPAP machine, but the applicant could not tolerate it. 

19. The obesity was treated by surgery which he undertook in recent times. His experience following the surgery is that his pain is very largely undiminished as a result of the surgery, although he is more comfortable following the surgery. 

20. The two conditions which the respondent accepts are conditions from which he suffers, that is DISH and UCTD, appear on that basis to be primary causes of the pain which he experiences, together with fibromyalgia. 

21. The question arising under section 24(1)(b) is the permanence of the impairments arising from his conditions. Permanence is dealt with in the rules at clauses 5.4 to 5.7. Those provisions are satisfied by a number of aspects of the medical evidence before the Tribunal. Dr Lo, the applicant’s general practitioner, said that there is no known cure for either condition, so that the conditions which are now of longstanding are or are likely to be permanent for him. Dr Lo’s evidence also satisfies me of each of the requirements of rules 5.4 to 5.7. The pain which the applicant suffers include widespread pain in his lower back, knees, hips and shoulders.

22. That the conditions of which the applicant suffers are capable of producing such pain sufficiently appears from the account of the Mayo Clinic concerning the two conditions.  DISH can affect one’s neck and lower back and other areas such as shoulders. Stiffness may be noticeable in the mornings, a symptom which is also experienced by the applicant.  Pain might be experienced in one’s back or in other areas such as one’s knees. The applicant suffers from those symptoms. 

23. UCTD is an autoimmune disease and common symptoms include arthritis and joint pain, both of which are experienced by the applicant.

24. For those reasons the evidence shows that the applicant’s impairments are permanent, within the meaning of s.24(1)(b).

25. The matter of reduced functional capacity is dealt with in section 24(1)(c) and in rule 5.8. I turn to consider each of the activities mentioned in section 24(1)(c).

26. The applicant does not complain of any communication difficulty. His main method of communicating is by the use of the internet and not by personal interaction.

27. Social interaction, the second activity mentioned in s.24(1)(c ), is very diminished in the case of the applicant because he is largely housebound. He used to interact with others far more frequently before he began to suffer seriously from widespread pain and found himself, as I have said, housebound. As he said, he used to mix with others with frequency before he became largely housebound. He has gradually lost friends with whom he formerly interacted. I found his evidence in that respect and generally to be reliable.

28. As to learning activities, Mr Jemison-Budd is capable of learning by digital means, but has found that his attendance at courses for the purposes of advancing his learning, is difficult because of his mobility problems and the fact that he is housebound.  He attempted to attend courses, and succeeded in earlier days, but now finds himself unable to do so.

1. The question of mobility looms large in these proceedings.  Mr Jemison-Budd can only walk for short distances with rests. That is because his generalised pain limits his movement and stamina.   He does not attend shops for the purpose of carrying heavy items, but rather does what he describes as light shopping when he does go out to shop.  Thus, he must utilise, at the present time since he lives alone, home delivery at some expense. Lack of mobility affects the activities of social interaction, learning, and self-care.

2. His self-care is also an activity in which his impairments result in substantially reduced functional capacity. Mr Jemison-Budd cannot stand for the purposes of chopping vegetables or preparing food and is essentially reduced to microwaving readily prepared meals. Activities around the home to clean it are minimised in the case of Mr Jemison-Budd.  He has difficulty when stooping in picking up objects.  He has difficulty making transfers for toileting purposes and as the Occupational Therapist, Ms Hildebrand said, he is in general need of assistance for that purpose, as well as for purposes of shopping and, as Ms Hildebrand stated, to clean his one bedroom unit.  She said: “in the bathroom he sprays the floor and rinses it off with the shower hose but is unable to scrub the tiles and group lines. He reported and demonstrated difficulty gripping with a mop with both hands, as he needed to hold on to his walking stick. He leaned against the bench top with his body and alternated leaning onto his hands whilst washing dishes.  He is unable to move furniture to clean under it.  He does not do regular house cleaning.” She said that due to pain, restricted standing, walking and reaching ability, the applicant does not go out to the back of the house and the garden is overgrown and unkempt.

3. Ms Hildebrand made recommendations for reasonable and necessary supports which could be considered if he becomes a participant as a consequence of the reduced functional capacity which she reported.

4. Ms Hildebrand remarked that her because his weight-loss surgery was after her visit to the applicant’s home, she could not comment on its effect. However both the applicant and his general practitioner observed that the weight-reduction surgery did not result in a significant pain reduction.  In my opinion, the functional assessment of Ms Hildebrand, and the account given by the applicant and his general practitioner show that the applicant’s impairments result in substantially reduced functional capacity to undertake social interaction, external learning, mobility and self-care. Turning to the particular provisions of rule 5.8, his impairments are such that he is unable to participate effectively or completely in the activities of mobility, self-care, social interaction and external learning.

5. As to section 24(1)(d), the impairments referred to in these reasons clearly affect Mr Jemison-Budd’s capacity for social and economic participation. He cannot work and indeed, he cannot contemplate working in his present condition. His housebound status severely limits his capacity for social participation.

6. As to section 24(1)(e), Mr Jemison-Budd is likely to require support under the Scheme for his lifetime. Not only are his impairments longstanding and likely to be permanent, the present situation in which Mr Jemison-Budd finds himself indicate a need, from his point of view, for support under the Scheme for his lifetime.

7. The respondent’s submissions on the findings of fact which I have made in these reasons constitute submissions designed to persuade me that the findings of fact which I have made on the basis of the evidence before me were either not open or should not be made. As I have indicated in these reasons, I am comfortably satisfied by the evidence of each of the matters to which I have referred to above.

8. Accordingly, the Tribunal sets aside the reviewable decision and decides that Mr Jemison-Budd meets the disability requirements referred to in section 24 of the Act.

I certify that the preceding 36 (thirty-six) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment OAM QC.

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

Associate

Dated: 1 March 2022

Date(s) of hearing:	6 & 7 July 2021, 17 September 2021, 24 January 2022
Date final submissions received:	21 October 2021
Advocate for the Applicant:	Mr S Hargreave
Solicitors for the Applicant:	People with Disability Australia
Counsel for the Respondent:	Mr J Sproule
Solicitors for the Respondent:	Sparke Helmore Lawyers