Johnson and National Disability Insurance Agency
[2023] AATA 1989
•10 July 2023
Johnson and National Disability Insurance Agency [2023] AATA 1989 (10 July 2023)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number: 2021/0088
Re:Douglas Johnson
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Senior Member Buxton
Date:10 July 2023
Place:Brisbane
The Tribunal sets aside the decision under review and remits the matter for reconsideration with a direction that the Applicant meets the access criteria in section 21 of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act), in that he meets the:
1.age requirements in section 22 of the Act;
2.residence requirements in section 23 of the Act; and
3.disability requirements in section 24 of the Act.
................................[SGD]..................................
Senior Member Buxton
CATCHWORDS
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – access criteria – facts not available for consideration before CEO – continuum of original access request – temporal consideration – assessment of substantial functional impairment - set aside and remits for reconsideration – meets the access criteria under section 21
Legislation
Acts Interpretation Act 1909 (Cth),
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)
Cases
Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner [2020] FCAFC 192.
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634.
Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250; [2019] HCA 16.
JLZT and National Disability Insurance Agency [2022] AATA 541.
Kilgallin and National Disability Insurance Agency [2017] AATA 186.
MDCT and National Disability Insurance Agency [2020] AATA 6036.
Mulligan v. National Disability Insurance Agency (2015) 233 FCR 201; [2015] FCA 544.
Minister for Immigration and Border Protection and Makasa (2021) 386 ALR 200; [2021] HCA 1.
National Disability Insurance Agency v Davis [2022] FCA 1002.
National Disability Insurance Agency v Foster [2023] FCAFC 11.
Rogers and National Disability Insurance Agency [2022] AATA 2809.
Schwass and National Disability Insurance Agency (2019) 167 ALD 104.
Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286.
Trout v. Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 583
QDKH by his litigation representative BGJF v NDIA [2021] FCAFC 189.
REASONS FOR DECISION
Senior Member Buxton
10 June 2023
BACKGROUND
Mr Douglas Johnson (‘the Applicant’) is aged in his late 60’s and lives in a rural town located within the Rockhampton region of Queensland. The Applicant seeks review of a decision of the National Disability Insurance Agency (‘the Respondent’) declining his request for access to the National Disability Insurance Scheme (‘the NDIS’).
For the reasons set out below, the Tribunal finds that the Applicant does meet the access criteria in section 21 of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) and, accordingly, the decision under review will be set aside and the matter remitted for reconsideration with a direction to that effect.
On 15 October 2019 the Applicant, who was then younger than 65 years of age, made a request to become a participant in the NDIS.[1] In his request for access form[2], the Applicant listed his impairments as: Major Depressive Disorder (‘MDD’), learning disability secondary to Cortical Integration Deficiency (‘CID’), arthritis to the knee and hip and spasticity in the legs due to lumbar spine disc prolapse. The Applicant has since identified further impairments relevant to his access request.
[1] Exhibit 4.
[2] Exhibit 3.
The Applicant’s access request was declined on 22 October 2019. Following a review under subsection 100(6) of the NDIS Act, a delegate affirmed the earlier decision on 5 February 2020. On 7 January 2021 the Applicant applied to the Tribunal for review. He required, and was granted, and extension of time within which to do so. The Applicant contends that he meets the access criteria prescribed in section 21 of the NDIS Act.
A prospective participant must satisfy three aspects of the access criteria, the age and residency requirements set out sections 22 and 23 of the NDIS Act and either the disability requirements in section 24 of the NDIS Act or the early intervention requirements in section 25 of the NDIS Act. The Respondent was satisfied that the Applicant has met the age and residency requirements. The issue arising in this case is whether the Applicant satisfies the “disability requirements” under section 24 of the NDIS Act. The Applicant does not submit that he meets the “early intervention requirements” under section 25 of the NDIS Act and has not presented evidence that this criteria is met.[3] It is not, therefore, necessary to further consider those provisions.
[3] Exhibit 18 [13].
There are five mandatory requirements that the Applicant must satisfy in order for him to meet the “disability requirements” as set out in subsections 24(1)(a) to (e) of the NDIS Act (reproduced below). The Respondent has conceded that the Applicant has satisfied the requirements in subsection 24(1)(a) of the NDIS Act in relation to the following impairments.[4]
(a)Learning disability disorder secondary to ‘cortical integration deficiency’;
(b)Psychiatric disability (the access form stated “major depressive disorder – secondary to baseline learning disorder”: and the Respondent accepted that he suffers from some degree of psychiatric/depressive disorder);
(c)Osteoarthritis of the knee and hip;
(d)Emphysema, or Chronic Obstructive Pulmonary Disorder (COPD); and
(e)Functional Neurological Disorder (FND).
[4] Respondent’s closing submissions [18] – [19].
The review application was heard by the Tribunal in Brisbane, utilising the electronic platform Microsoft Teams, across 14, 15 and 16 March, 2023. During the hearing the Applicant was represented by Mr Nolan of counsel and the Respondent was represented by Ms Graycar of counsel. In arriving at a decision, the Tribunal has considered various documents, including reports, correspondence and witness statements together with sworn evidence given during the hearing and the written submissions provided by each party prior to and after the hearing.[5]
[5] Together, over 1300 pages of material was before the Tribunal.
relevant legislation
The objects and principles in sections 3 and 4 of the NDIS Act give guidance on the interpretation of the statute. In particular, the objects of the NDIS Act relevantly include giving effect to Australia’s obligations under the Convention on the Rights of Persons with Disabilities established at the UN Headquarters in New York on December 2006.[6] Subsection 3(3)(b) of the NDIS Act provides that regard is to be had to the need to ensure the financial sustainability of the NDIS in giving effect to the objects of the NDIS Act.
[6] Convention on the Rights of Persons with Disabilities, opened for signature (30 May 2007), [2008] ATS 12 (entered into force 3 May 2008).
The Minister may make rules prescribing matters pursuant to subsection 209(1) of the NDIS Act. Relevant to this matter, the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (‘the Participant Rules’) form part of the legislative scheme. Operational Guidelines written by the CEO of the Respondent also assist staff to make decisions in accordance with the NDIS Act. Operational Guidelines represent government policy and should be applied by the Tribunal unless there is good reason not to do so.[7] The relevant Operational Guideline is the Operational Guideline – Access to the NDIS (‘the Access Operational Guidelines’). The stated purpose of the Access Operational Guidelines are to provide guidance in determining whether the access criteria are met and “to ensure that the NDIA focus is centered on people with disability living in Australia with the most unmet need intended to benefit from the support under the NDIS”.[8] Chapter 8 of the Access Operational Guidelines relates to the disability requirements.
[7] Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[1979] AATA 179; (1979) 2 ALD 634.
[8] Access Operational Guidelines, Chapter 1.
The relevant access criteria
To become a participant in the NDIS, a prospective participant must satisfy the access criteria, which are set out in subsection 21(1) of the NDIS Act:
21 When a person meets the access criteria
(1) A person meets the access criteria if:
(a)The CEO is satisfied that the person meets the age requirements (see section 22); and
(b)The CEO is satisfied that, at the time of considering the request, the person meets the residence requirements (see section 23); and
(c)The CEO is satisfied that, at the time of considering the request:
(i) the person meets the disability requirements (see section 24); or
(ii) the person meets the early intervention requirements (see section 25).
The reviewable decision is the decision that the Applicant does not meet the access criteria.[9] As there is no dispute that the Applicant meets the age requirements in section 22 of the NDIS Act and the residence requirements in section 23 of the NDIS Act, and no contention that he meets the criteria in section 25 of the NDIS Act, the issue for determination is whether the Applicant meets that part of the access criteria that are set out in section 24 of the NDIS Act and relate to disability.
[9] NDIS Act ssubection 99(1), item 1.
Section 24 of the NDIS Act states:
24 Disability requirements
(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.
The criteria set out in each of subsection 24(1) of the NDIS Act are cumulative, meaning all of the requirements must be met in order for a person to become a participant in the NDIS.
THE APPLICANT’S CONTENTIONS
The Applicant submitted that he was a person who met the access criteria in that he met the disability requirements under section 24 of the NDIS Act in relation to any or all of his mental health impairments, physical health impairments and in relation to Functional Neurological Disorder.[10] The Applicant submitted that he had impairments that were permanent, resulted in substantially reduced functional capacity, and for which he was likely to require lifetime support from the NDIS.[11]
[10] Exhibit 18 (p.224).
[11] Ibid (p.241).
The Applicant submitted that he has both a major depressive disorder and anxiety and panic attacks, together with COPD, arthritis of the knee and hip, lumbar spine disc prolapse and functional neurological disorder.[12] The Applicant submits that he has a disability attributable to the impairments arising from these conditions, either separately or together, that meets the disability requirements in section 24 of the NDIS Act.
[12] Transcript day 2, p.4; Exhibit 3 (p.45); Exhibit 9 (p.65).
THE RESPONDENT’S CONTENTIONS
The Respondent submitted that the decision under review ought to be affirmed as the disability requirements are not met in this case. The Respondent accepted that the Applicant met the requirements of subsection 24(1)(a) of the NDIS Act in respect of impairments already identified. The Respondent submitted that there was insufficient evidence from which the Tribunal could conclude that post-traumatic stress disorder meets the criterion in subsection 24(1)(a), nor did it accept that the Applicant suffered from any intellectual impairment.[13]
[13] Exhibit 24 (p.295)
As to subsection 24(1)(b) of the NDIS Act, the Respondent submitted that in relation to all but the Applicant’s learning disorder (which, it was submitted, would not satisfy the requirements of subsection 24(1)(c) of the NDIS Act) the impairments were not permanent because options to address or treat the Applicant’s symptoms had not been fully explored and there was insufficient evidence of the Applicant having engaged in known, available and appropriate evidence-based treatments.
Relevantly, the Participant Rules state:[14]
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.
5.5An 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.
5.6 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.
[14] National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth), rr 5.4-5.7.
The effect of the Respondent’s submission is that, accordingly, if there is any known, available and appropriate treatment available, the prospective participant should generally undergo that treatment before a determination is made on permanency.
The nature of the relevant treatment contended for by the Respondent with respect to the mental health issues, before the Tribunal could be satisfied on the issue of permanence, is cognitive behavioural therapy and/or ongoing counselling.[15] The Respondent submitted that the Tribunal must be positively satisfied that the criteria in section 24 of the NDIS Act are met.[16] As to the physical issues, the Respondent submitted that it was a matter for the Applicant to prove (and not the Respondent to disprove) permanence of these impairments, and that there was insufficient material before the Tribunal from which that conclusion could be reached. The Respondent submitted that the available evidence does not support a conclusion that all known clinical, medical or other treatments for the Applicant’s impairments have been considered and either meaningfully attempted or rejected as not appropriate for the Applicant.[17]
[15] Respondent’s closing submissions [34 – 40], [42] – [43].
[16] See Schwass and National Disability Insurance Agency (2019) 167 ALD 104, at [25], citing Mulligan v National Disability Insurance Agency (‘Mulligan’) (2015) 233 FCR 201, at [55].
[17] Respondent’s closing submissions from [41].
EVIDENCE
Substantial documentation was made available to the Tribunal which is discussed below. The following witnesses gave oral evidence during the hearing, and their evidence is also addressed below:
(a)Dr Brighton Prasathnayagam, General Practitioner;
(b)Dr Alexander Lehn, Neurologist; and
(c)Dr Lauren Den Ouden, Clinical Neuropsychologist.
The Tribunal was provided with a tender bundle, which incorporated the T Documents and other relevant documents (including statements of the Applicant’s lived experience, hospital records and correspondence between hospital-based doctors and general practitioners over time, and reports from various medical and allied health professionals). Further documents were tendered during the hearing.
The documentary evidence available to the Tribunal included the following information. As neither party called the witnesses or authors of the documents to give oral evidence this information represents the available medical records, opinion and other evidence which has not been challenged by either party.
Rockhampton Hospital records provided some of the Applicants relevant medical history:[18]
(a)Depression - 7 February 2014 and 12 January 2015 with endogenous (non-traumatic) depression noted on 14 July 2014.
(b)Sleep Apnoea - 22 April 2014
(c)COPD – 15 June 2015, with chronic obstructive airway disease notes two years later on 5 June 2017;
(d)Hip and lumbosacral pain - 9 February 2015
(e)Acute Back Pain and Osteoarthritis - of the spine, 12 November 2015, (osteoarthritis also noted) on 19 January 2016,
(f)Chronic pain and fatigue - 11 January 2016
[18] Exhibit 29 (p.990).
The Applicant was noted as seeing Dr Jenkins, psychiatrist, in February 2001[19] and was seeing a psychologist during 2014.
[19] Exhibit 30 (p.39)
The Applicant was recorded as weighing 112kg in September 2014[20] As he is 170cm in height, his BMI was in the obese range at that time and obesity was noted in his medical records in July 2015. His weight is recorded as increasing over time (and was recorded more recently in his GP’s records at over 140kg).
[20] Exhibit 29 (p.1062-1063)
Bundaberg Base Hospital records provide the following additional information:
(a)These records refer to a psychiatric evaluation in August 1997 (which led to the involvement of Dr Sheehan, psychiatrist);
(b)The Applicant was admitted to the mental health unit following a suicide attempt on 24 December 2000 (which took place at a former workplace).[21] The Applicant was noted to have some psychomotor retardation and depressed affect.
(c)Dr Frank Sharp, Psychologist, prepared a report on 29 January 2001 following an assessment of the Applicant on 15 January 2001 in the context of a WorkCover setting. He expressed the opinion in that report that the Applicant had depression and “high anxiety” and recommended counselling sessions;[22]
(d)The hospital records contain a notation, on 2 February 2001, that the Applicant had long-standing anxiety and depression as was taking various medications,[23] and that he was previously under the care of Dr Scott Jenkins, Psychiatrist.[24]
[21] Exhibit 30, (p 8, 9, 33]
[22] Ibid (p.105]
[23] Ibid, (p.34]
[24] Ibid (p.39).
Dr Sheehan, Psychiatrist
Dr Sheehan reported having seen the Applicant in October 1997 following a referral from the Bundaberg base hospital. He stated that the applicant seemed “quite significantly” depressed and had “quite a lot of anxiety symptoms”. His adjustment had deteriorated in the last few years. He recommended medication, further consultations and referral back to the treating doctor.[25]
[25] Exhibit 30 (p.1197).
Alyson Allpass, Occupational Therapist and Maggie Dickson, Social Worker
Ms Allpass and Ms Dickson prepared a supporting evidence form on 13 January 2020. The primary impairment they identified was “COPD- Frequent exacerbation of infective COPD”. They also identified “depression- social anxiety’ and reported that this was ‘probably’ life-long and that the Applicant found it hard to go out and has to have his wife with him.[26] They also noted that the Applicant:
(a)is illiterate, requires assistance to write and uses a ‘talk-to text’ app when writing.[27]
(b)is socially isolated. He finds it difficult to interact in social situations due to depression and requires encouragement and prompting to interact with others.[28]
(c)receives assistance from his wife when showering due to increased shortness of breath if done independently and requires assistance with dressing when sitting.[29]
(d)receives assistance from neighbours to pay bills, write lists and carry shopping bags upstairs.[30]
[26] Exhibit 41 (p.1217).
[27] Ibid (p.1219).
[28] Ibid (p.1220).
[29] Ibid (p.1221).
[30] Ibid.
Jennifer Merle Reinikka, Psychologist
Ms Reinikka prepared a “Supporting Evidence Form” dated 20 January 2020[31], in which she identified the Applicant’s primary impairment as being that his literacy and understanding are poor.[32] She stated that current treatment is therapy in ‘problem solving’[33]. While she notes that she has only seen him in the office space, she stated that he mobilises poorly, has a walking stick and struggles to get up stairs.[34] She also noted that he suffers anxiety and depression for which she recommends continuing with and strengthening his existing supports, including continuing CBT and solutions focused therapy.[35] She noted that the Applicant struggles to maintain relationships.[36]
[31] Exhibit 42.
[32] Ibid (p. 1224).
[33] Ibid.
[34] Ibid (p. 1226).
[35] Ibid (p.1224-1225).
[36] Ibid (p.1227).
Dr Akosile (Psychiatrist, Acute Care Team, Queensland Health)
Dr Akosile reviewed Mr Johnson on 31 May 2021.[37] Dr Akosile reported that Mr Johnson displayed diagnostic features consistent with:
(a)general anxiety with panic disorder;
(b)suspected intellectual impairment;
(c)suspected non-epileptic attack disorder (awaiting confirmation by neurologist); and
(d)antisocial traits.[38]
[37] Exhibit 5 (p. 53)
[38] Ibid.
Dr Akosile stated (31 May 2021) that Mr Johnson required a “tailored NDIS package”[39] and would benefit from psychotherapy in the long-term. He also recommended Mr Johnson undergo an occupational therapy review, intellectual testing, and full functional testing for his needs. He concluded that the Applicant’s diagnoses were impacting on his communication, social interaction, and learning.[40]
[39] Ibid (p. 54).
[40] Ibid (p.55)
Nola Radel, Psychotherapist
Ms Radel completed a full mental health assessment of the Applicant and prepared a report dated 29 May 2021.[41] Ms Radel noted that the Applicant suffered with Complex Post Traumatic Stress Disorder, Depression, Paranoia, Acute Anxiety Disorder, and FND Seizures.[42] She stated, “FND is a medical condition in which there is a problem with the functioning of the nervous system and how the brain and body sends and/or receives signals, rather than a structural disease process such as multiple sclerosis or stroke”.[43] She recommended long term counselling support but did not see the Applicant’s mental health improving.[44]
[41] Exhibit 6.
[42] Ibid (p.59).
[43] Ibid.
[44] Ibid (p.60).
Dr Hewavithana, Medical Registrar (Rockhampton Hospital)
Dr Hewavithana reviewed the Applicant on 6 June 2021 in relation to his reported seizures. In his letter to the Applicant’s GP, prepared on 17 June 2021[45] he noted that these were occurring 3-4 times per day and were precipitated by stress or intense emotions. Dr Hewavithana reported that all investigations to date had been normal, including Computed-Tomography (CT) head and neck, MRI brain, electroencephalogram (EEG), transthoracic echocardiogram (TTE) and blood investigations. Dr Hewavithana stated that Mr Johnson may have a functional neurological disorder causing psychogenic non-epileptic seizure and recommended further psychiatric assessment.
[45] Exhibit 28(p.498).
Dr Andre Troiano, Neurologist
In his report dated 3 August 2021, Dr Andre Troiano, confirmed the diagnosis of Functional Neurological Disorder (psychogenic non-epileptic seizures) and described one these seizures as follows:
“He was sitting on a chair and was able to talk to me, but he became tremulous and then slouched on the chair, falling to the floor with irregular movements with extension and abduction of the upper limbs. After thirty seconds or so, he is able to vocalise again. There is no postictal phase”.[46]
[46] Exhibit 12 (p.81).
Dr Troiano stated that “there is no treatment for psychogenic non-epileptic seizures as far as neurology therapy is concerned but ongoing follow up with a psychiatrist and psychologist would be recommended.”[47]
[47] Exhibit 12 (p.82).
Ms Coulson, Psychotherapist
Ms Coulson prepared a report, dated 17 August 2021[48], following an examination, concluding that the Applicant’s mental health conditions are permanent, but that with treatment they could be better managed.[49] She noted that he had avoided seeking treatment in the past[50] and would benefit from psychotherapy in the long term[51] but as the Applicant’s trauma is complex it would take a long time to safely unpack and process this trauma.[52] She noted that his conditions were not well managed and he is gaining weight (he was then 136 kilos) which makes it difficult for those assisting him.[53]
[48] Exhibit 11.
[49] Ibid (p.77).
[50] Ibid.
[51] Ibid (p78).
[52] Ibid (p.78).
[53] Ibid (p.79).
In her view, the Applicant would be assisted by:[54]
(a)Long term psychotherapy for the treatment of his mental health conditions
(b)Psychiatry to monitor medication and adjust as needed
(c)Psychosocial supports
Ms Coulson noted, with reference to the opinion expressed in Dr Troiano’s report that, while there is no treatment for FND, addressing these matters may minimise the frequency of episodes.[55]
[54] As above at 49.
[55] Ibid.
Ms Radel’s notes, which were summonsed by the Respondent and included in the agreed hearing bundle,[56] indicated that the Applicant underwent face to face counselling sessions with Ms Coulson, who was also in the Central Queensland rural health practice, after the assessment by Ms Radel was undertaken in May 2021 and prior to Ms Coulson’s assessment in August 2021. Ms Coulson’s clinical notes of a session with the Applicant on 25 June 2021[57] include the following information:
(a)Experienced Childhood trauma
(b)Evidence of PTSD
(c)Anxiety
[56] Exhibit 25.
[57] Ibid (p.326).
Oral Evidence
The Applicant did not give evidence at the hearing. He produced a statement from Dr Prasathnayagam on the first day of the hearing to the effect that he was unsuited to giving evidence on medical grounds.
The following witnesses provided written evidence and attended at the hearing to provide sworn evidence, including through cross-examination.
Dr Prasathnayagam, General Practitioner
In the “Supporting Evidence Form”[58] prepared by Dr Prasathnayagam on 30 September 2019, he identified the Applicant’s primary impairment as a learning disability disorder secondary to ‘cortical integration deficiency’.[59] He stated that this is likely to be a lifelong impairment as the Applicant cannot learn life skills or educate himself. He identified the further significant impairment of “major depressive disorder – secondary to baseline learning disorder”[60] which he stated is likely lifelong due to its long history, dating back to the Applicant’s teenage years. Dr Prasathnayagam also identified the Applicant’s impairments as including osteoarthritis of the knee and hip and emphysema/COPD.[61]
[58] Exhibit 38.
[59] Ibid (p.1204).
[60] Ibid.
[61] Exhibit 38 (p.1204).
The Applicant’s medical history was further detailed by Dr Prasathnayagam (reports of 19 February 2021[62] and 08 July 2021[63]), as including back pain (lumbar), chronic pulmonary airway disease (emphysema, moderate to severe in nature), dermatitis, gastro-oesophageal reflux disease, prostatic hypertrophy, morbid obesity, and osteoarthritis of the knee.[64] The Applicant’s medical and physical conditions were noted to reduce his functional capacity in relation to communication, social interaction, learning, mobility, selfcare, and self-management.[65]
[62] Exhibit 1.
[63] Exhibit 9.
[64] Exhibit 1 (p.11).
[65] Ibid.
In a report dated 8 July 2021[66], Dr Prasathnayagam set out he following diagnoses and recommendations for the Applicant:
[66] Exhibit 28(p.516).
1.Chronic Mood disorder with Anxiety and depression symptoms and panic attacks/agoraphobia complicated with Functional neurological Disorder. He has been suffering with the mental health condition almost of his entire life. He is socially and economically significantly disadvantaged because of his mental health condition. His mental health condition is chronic and permanent now. Due to the long-term nature of his mental health illness this has lately been complicated with functional [neurological] disorder.
2.Chronic Pulmonary Airway Disease/Emphysema-Moderate to severe in nature. He has been suffering with long term emphysema which is a permanent disorder of the lungs with limited capacity leading up to elicit symptoms of exertional short of breath.
3.Significant impairment of his mobility secondary to Multilevel osteoarthritis complicated with morbid obesity and Emphysema.
The combination of the above three permanent medical conditions have been affecting his mobility and ambulation significantly and thereby his quality of life.
Recommendations:
oHe needs ongoing lifelong tailored psychotherapy to overcome his phobias and fears to live a near normal social life.
oHe needs continuous 24-hour personal carers which can help his mobility day and night to manage his daily activities.
oHe may benefit from tailored ongoing technological education to cope the current technological and digital trend.
oHe may benefit from personalised ambulatory devices/Vehicles for him to move around to explore his social life options along with his wife Cheryl.
53.Dr Prasathnayagam, who preferred to be addressed by his first name, Dr Brighton[67], gave sworn evidence during the hearing[68], to the following effect:
[67] Transcript Day 1, p. 27. Line 32.
[68] Including through cross-examination by counsel for the Respondent
(a)He has been the Applicant’s GP since early 2019[69] until end of 2022 when his care was assumed by another Doctor in the practice. The Applicant had a history of difficulty building rapport with other doctors.[70]
[69] Transcript Day 1, p. 28. Line 4.
[70] Transcript Day 1, p. 28. Lines 3-11.
(b)When asked to assume that “permanent” means there is “no remedy or treatment available to reverse a condition back to normal or to have the Applicant free of that condition, or whether any treatments were available that likely remedy? “[71], Dr Prasathnayagam replied:[72]
[71] Transcript Day 1, p. 30. Line 5.
[72] Transcript Day 1, p. 30. Lines 9-17.
“Not to reverse the condition, like to treat to come back to normalcy. But the available treatments are only for his ongoing rehabilitation to enable him to function in the community for his basic functioning of his lifestyle. Not to cure or not to treat the condition, so there’s no treatment available or cure or treatment, but there is treatment available for, you know, to tackle this condition as a rehabilitation to make him live in the community with minimal functioning - minimal requirement for his participation in the community”.
(c)In considering functional capacity issues Dr Prasathnayagam stated that the Applicant’s Mental Health, Anxiety, Depression and FND[73] could be considered together noting that FND is associated with generalised anxiety disorder, panic attacks and mental health conditions[74] but considered separate to the physical conditions of emphysema and COPD.[75]
(d)Dr Prasathnayagam explained that when the Applicant became his patient, in June 2019, he had referred to some paperwork provided by the Applicant and summarised his history on that first day,[76] but that he made his own assessment of the Applicant and gathered information[77] about the Applicant’s history of depression and COPD[78] (he was then a smoker and sniffing tobacco and used a vape [79]), GORD (reflux) and dermatitis.[80] He was morbidly obese[81] and used CPAP machine for sleep apnoea.[82]
(e)The Applicant had seen a psychologist before, but not for a while, and Dr Prasathnayagam asked if he would do so as part of a treatment plan.[83] The Applicant was then referred for a telehealth assessment with Dr Sivaruban.[84]
(f)When Dr Prasathnayagam prepared the Access request, he included the reference to Major Depressive Disorder on the basis of his assessment, the past history and the telehealth psychiatrist assessment which Dr Prasathnayagam had attended with the Applicant on 20 June 2019.[85]
(g)In response to questions about the diagnosis of Major Depressive Disorder, Dr Prasathnayagam stated that what was required was at least two weeks history of loss of interest, along with other psychomotor symptoms (appetite, motor retardation, exclude other health conditions). He noted that the psychiatrist had assessed him and that he had suspected that diagnosis.[86]
(h)Dr Prasathnayagam gave evidence as to a mental health care plan referral he had made for the Applicant on 18 Feb 2021.[87] He noted that the Applicant had appointments with a psychologist but had cancelled three times due to anxiety which had prevented the Applicant from seeking treatment.[88]
(i)Dr Prasathnayagam provided an explanation of steps taken to obtain the diagnoses for FND after attending at the Rockhampton Hospital in February 2021,[89] and was referred back for investigation of these seizures. [90] He was not aware of any earlier seizures or FND symptoms.[91]
[73] Transcript Day 1, p. 30. Lines 29-31.
[74] Transcript Day 1, p. 30. Lines 35-36.
[75] Transcript Day 1, p. 30. Lines 32-33.
[76] Transcript Day 1, p. 31. Lines 35-36.
[77] Transcript Day 1, p. 31. Line 39.
[78] Transcript Day 1, p. 32. Line 2.
[79] Transcript Day 1, p. 32. Line 12, 26, HB 350.
[80] Transcript Day 1, p. 32. Line 35 -38.
[81] Ibid.
[82] Transcript Day 1, p. 32. Lines 45-46.
[83] Transcript Day 1, p. 33. Lines 4-6, lines 9-10 and lines 12-13.
[84] Transcript Day 1, p. 33. Line 20.
[85] Transcript Day 1, p. 34. Lines 24-30.
[86] Transcript Day 1, p. 35. Lines 15-19.
[87] Transcript Day 1, p. 40. Line 20.
[88] Transcript Day 1, p. 40. Line 46 – p.41. Line 18
[89] Transcript Day 1, p. 42. Lines 43-44.
[90] Transcript Day 1, p. 43. Line 39.
[91] Transcript Day 1, p. 42. Line 38; p. 43. Line 9.
Dr Lehn, Consultant Neurologist
In his report dated 21 December 2021[92], prepared following an assessment of the Applicant undertaken by video conference, Dr Lehn described the Applicants “long history of severe mental health problems including severe depression and anxiety”[93]; and that about “8 or 9 years ago he started developing recurrent attacks of uncontrollable shaking”.[94] Dr Lehn agreed with the diagnosis of functional neurological disorder, or psychogenic non-epileptic seizures, the main trigger for which was being under pressure and in uncomfortable places (such as medical appointments).[95] While further medical therapy was “unlikely [to] be of benefit”[96], Dr Lehn suggested that the Applicant’s symptoms could be managed better and quality of life improved were he to engage in “ongoing psychological therapy” and have “stabilised psychotherapy”[97]:
[92] Exhibit 23.
[93] Ibid (p.262).
[94] Ibid.
[95] Ibid (p.286).
[96] Ibid.
[97] Ibid.
Dr Lehn considered the conclusion of Dr Troiano as to treatment options and opined that Dr Troiano had probably meant, “that is there is no medical (i.e. pharmacological) treatment of FND, which is correct. The treatment of FND is generally 'retraining' the brain, which is usually done with a combination of psychological therapy and physiotherapy. In patients with severe mental health disturbances often psychiatrists are involved to manage psychiatric comorbidities.”[98]
[98] Exhibit 23 (p.287).
Dr Lehn further stated that the Applicant’s “severe mental health problems make any meaningful therapy for his FND difficult if not impossible. In view of that Mr Johnson has received all appropriate and effective medical treatment for his FND.”[99]
[99] Ibid (p.265).
Dr Lehn gave sworn evidence during the hearing[100] to the following effect:
(a)As to the concept of “brain re-training” he stated generally the treatment for Functional Neurological Disorder is not medication and not surgery. The brain retraining approach is not (indistinct) it’s an appropriate term. Generally for the majority of patients this would mean psychological therapy and physical therapy, typically it’s a combination of. It really depends on the individual patient and individual symptoms. For some patients this might be more on the physical therapy side, for some patients more the psychological side. And in this patient’s case where (indistinct words) what people call psychogenic non-epileptic seizures are a major issue the emphasis would generally be more on psychological treatment.[101]
(b)Dr Lehn was asked to assume that the Applicant’s onset of FND symptoms had not occurred prior to February 2021 and stated, if that was, that whilst he Applicant “does have several other prognostic factors, and his prognosis might still be poor, but needless to say if his symptoms are not as long standing as I think they are that would change his prognosis.”[102]
(c)In answer to a question from Ms Graycar to whether, if the Tribunal were to find that, based on the material before it, the Applicant had not engaged in treatment-based psychological therapies, his answer about the efficacy of treatments would be any different, Dr Lehn responded in two parts:
(i)“Yes, but I guess it’s becoming a number of (indistinct) now, so if he has had adequate therapy clearly that would change his prognosis, because potentially with adequate therapy he could improve, but there would still be the issues of long symptom duration, so someone with eight or nine years of symptoms would still have a worse chance of improving despite them going adequate therapy…
(ii)And lastly also in patients with severe refractory underlying mental health disturbance in my experience in those patients even with trials of adequate therapy it’s really hard to shift symptoms if their underlying mental health is so poor. So he still has several poor prognostic factors. But, yes, it would change my answer.”[103]
[100] Including through cross-examination by counsel for the Respondent
[101] Transcript Day 2, p.9. Lines 16-25.
[102] Transcript Day 2, p.10. Lines 28-30.
[103] Transcript Day 2, p 12. Lines 16-25.
Dr Den Ouden, Clinical Neuropsychologist
Dr Den Ouden prepared a report dated 9 August 2022[104] following an in-person examination of the Applicant over a period of 5.5 hours on 29 July 2022.[105] Dr Den Ouden based her conclusions as to permanency on the following information: Mr Johnson has reportedly received appropriate psychological intervention for FND symptoms without success, these strategies are UNLIKELY to be helpful in alleviating his FND symptoms.[106]
[104] Exhibit 16.
[105] Ibid (p. 190).
[106] Ibid (p.213).
She concluded:
Although Mr Johnson may experience variation in his FND with support and appropriate management, he is LIKELY to require the support of the NDIS for his lifetime. The collective prognosis for FND is POOR, with disability persisting and often worsening over time, and even poorer outcomes are anticipated for individuals with higher symptom severity and comorbidities (as is the case for Mr Johnson). According to Mr Johnson’s self-report, presentation, collateral information, and responses to formal functional assessment, Mr Johnson’s FND, MDD and learning disorder are significantly impacting his capacity for functional behaviour in the domains of Communication, Daily Living Skills, and Socialisation. Thus, they DO appear to be substantially impacting his capacity to perform relevant activities of daily living.[107]
[107] Ibid (p.214).
Dr Den Ouden gave sworn evidence[108] during the hearing to the following effect:
[108] Including through cross-examination by counsel for the Respondent.
(a)She explained that she had not provided a diagnostic report but agreed with the diagnoses (listed on page3 of the report,)[109] and was questioned about whether the Applicant would respond to treatment.
[109] Transcript Day 1, p.49. Line 42.
(b)Cognitive behaviour therapy (CBT) is the first-line therapy and is the standard approach for treatment of FND with seizures.[110] However, CBT would not remedy the impairments of FND.[111] CBT for FND is about management of symptoms.[112] The Applicant has FND with non-epileptic seizures[113] he is on stable and sufficient doses of anti-depressants.[114]
[110] Transcript Day 1, p.50. Lines 1-2.
[111] Ibid. Lines 15-17.
[112] Transcript Day 1, p.62. Lines 3-5.
[113] Transcript Day 1, p.50. Lines 35-36.
[114] Ibid. Lines 39-40.
(c)Dr Den Ouden stated that it was necessary to consider the Applicant’s FND in conjunction with his major depressive disorder as they “feed into each other”.[115] With both, research indicates that those conditions don’t respond well with other, standard therapies.[116] In a patient with FND , CBT will not change level of depression if we give CBT[117] or a Generalised Anxiety Disorder or more mild or moderate depressive symptoms.
[115] Transcript Day 1, p.50 line 47 to p.51 lines 1-2.
[116] Transcript Day 1, p.51. Lines 4-6.
[117] Transcript Day 1, p.51. Line 13.
(d)During cross-examination, Dr Den Ouden agreed that, if the Applicant’s condition commenced in February 2021, her opinion as to the impact of treatment may change with regards to chronicity[118] as the longer the symptom, the more increased the likelihood that condition won’t respond.[119]
(e)Dr Den Ouden assessed the Applicant and determined he did not have an intellectual disability.[120] She was not able to diagnose whether the Applicant had a major depressive disorder but deferred to information provided by Kate Clauson, mental health clinician, Ms Randall, psychotherapist, and Dr Akosile, psychiatrist.[121]
(f)Dr Den Ouden was asked to consider the impact of the suggestion of Ms Clauson that the Applicant has avoided psychotherapy treatment in the past.[122] She noted that his GP said that the Applicant had engaged with mental health many times, and that in 2006 he had a suicide attempt and engaged with treatment at that time.[123] Dr Den Ouden stated that she would still consider the Applicant’s condition permanent if he had not engaged fully in mental health treatments but noted that he may still improve his quality of life if he engaged in therapy and that this could help manage symptoms. She stated it very unlikely the further treatment would remove those symptoms.[124]
(g)Dr Den Ouden gave evidence about “brain retraining” therapy as a species of physiotherapy.[125] She stated that motor FND issues relate to balance, tremors etc and that brain retraining is based with a physiotherapist to re-established the neural pathways.[126] As the Applicant’s FND is with non-epileptic seizures it is not amenable to that kind of treatment[127] She instead referred to cognitive behavioural therapy (CBT), or “talk therapy”[128] which, for FND, may include psychoeducation, learning warning signs and management, but not elimination, of symptoms:[129]
“I’ve listed in my report the things that would be included in CBT specifically for functional neurological disorders: things like psychoeducation, increasing awareness of warning signs, learning techniques to avoid episodes, changing thoughts and behaviours about the symptoms, and developing a management plan. And you will note there that all of those strategies are really around symptom management, not elimination.”[130]
…
“The functional neurological disorder with the non-epileptic seizures – there’s consistent evidence in the literature to suggest that it – you know, while cognitive behaviour therapy or psychological therapy is the first line treatment for it, it’s really not a great treatment. We need better treatments, and we don’t tend to get good responses from it. It more works to minimise how frequently he will have a seizure, but he will still continue to have the seizures.”[131]
(h)Dr Den Ouden noted that she understood the Applicant had seen a psychologist in the past but even if he hadn’t this would not change her view: the Applicant could benefit from CBT from a quality-of-life perspective, but not to provide a remedy.[132] She further noted that mental health issues are a barrier for accessing treatment.[133]
[118] Transcript Day 1, p.54. Lines 29-30.
[119] Transcript Day 1, p.54. Lines 30-32.
[120] Transcript Day 1, p.55. Lines 31-32.
[121] Transcript Day 1, p.56. Lines 21-23.
[122] Transcript Day 1, p.56. Lines 36-37.
[123] Transcript Day 1, p.56. Lines 42-45.
[124] Transcript Day 1, p.57. Lines 10-14.
[125] Transcript Day 1, p.59. Line 10.
[126] Ibid. Lines 12-14.
[127] Ibid. Lines 16-17.
[128] Transcript Day 1, p.61. Lines 43-44.
[129] Transcript Day 1, p.62. Lines 1-6.
[130] Transcript Day 1, p 61. Line 46 to p. 62 line 5.
[131] Transcript Day 1, p. 62. Lines 45 to p. 63 line 5.
[132] Transcript Day 1, p. 63. Lines 25-26.
[133] Transcript Day 1, p. 65. Lines 27-29.
The Respondent submitted that there were “significant evidentiary lacunae that would prevent the Tribunal from being satisfied that the Applicant meets the access criteria”, and that “much of what he puts as his case is based on self-report”.[134] The Respondent invited the Tribunal to conclude that, having no opportunity to test the credibility of the Applicant, the Tribunal would be unable to be positively satisfied that the Applicant’s reports about his claimed impairments, and how they affect him, are credible. That observation would be apt in cases where such self-reporting was not accompanied by evidence amassed over years (and in respect of many of the Applicant’s impairments, decades) from treating medical and allied health professionals who have expressed professional opinions which align with the Applicant’s self-reporting. Dr Prasathnayagam made himself available for cross-examination. Despite the opportunity to do so, counsel for the Respondent did not seek to impugn the opinion evidence he gave by suggesting that his opinions were based merely on self-reporting from the Applicant, or that those opinions were other than reasonably held. The Respondent submitted that the Applicant’s case was “characterised by the provision of only very limited evidence” and that an adverse inference should be drawn as a result of his personal election not to give sworn evidence.[135] The Respondent submission that there is “no evidence outside what is self-reported” as to the Applicant’s day to day functioning, or his treatments over time, is not consistent with the extensive documentary evidence outlined above, and in particular observations made by Psychiatrists, Dr Sheehan in 1997[136], Dr Jenkins in 2001[137], Dr Sivaruban in 2019 and Dr Akosile in 2021[138], (each of whom examined the Applicant, with Dr Sivaruban having done so by telephone in the presence of Dr Prasathnayagam),[139] Medical Registrar Dr Hewavithana in 2021[140], Ms Allpass (Occupational Therapist) and Ms Dickson (Social Worker) in January 2020[141], Psychologists Ms Reinkka (January 2020)[142], Psychotherapists Ms Radel[143] (following examination of the Applicant) and Ms Coulson[144], who treated him, and Dr Prasathnayagam, his treating General Practitioner[145] who observed him over a three-year period.[146]
[134] Respondent’s post-hearing submissions [10], [11].
[135] Ibid [12]
[136] Exhibit 36.
[137] Exhibit 30.
[138] Exhibit 5.
[139] Exhibit 28 (p.424).
[140] Exhibit 7.
[141] Exhibit 41.
[142] Exhibit 42.
[143] Exhibit 6.
[144] Exhibit 19 and exhibit 26.
[145] Exhibit 1.
[146] Transcript Day 1, p. 28. Lines 1-3.
The Applicant is entitled to rely on this evidence and the Tribunal does not find that the preponderance of evidence in this case is from self-reporting by the Applicant. The Tribunal accepts the veracity of the opinions expressed by those witnesses and is not satisfied that they are expressed other than reasonably having regard to the witnesses’ own observations and expertise. Any inference that the Tribunal could draw by the absence of sworn evidence from the Applicant is to be considered in the context of all of the available evidence, which is substantial in this case.
consideration
The medical evidence before the Tribunal establishes that the Applicant has been diagnosed with the following conditions:
(a)a psychiatric disability
(b)learning disability disorder secondary to ‘cortical integration deficiency’;
(c)Osteoarthritis of the knee and hip;
(d)Emphysema, or Chronic Obstructive Pulmonary Disorder (COPD); and
(e)Functional Neurological Disorder (FND).
In interpreting the provisions of the NDIS Act, regard is to be had to the purpose and objects of that Act.[147] The approach properly to be taken in construing provisions of the NDIS Act was outlined by Sarah Derrington J, with whom Katzmann and Perry JJ agreed, in National Disability Insurance Agency v Foster:[148]
[30] The principles applicable to questions of statutory construction, which require consideration of the text, content, and purpose, are well established [Citations omitted].
[31] In the Bay Street Appeal[149], the Chief Justice expressed the approach in this way, at [4]:
[4] ... The principle is clear: Meaning is to be ascribed to the text of the statute, read in its context. The context, general purpose and policy of the provision and its consistency and fairness are surer guides to meaning than the logic of the construction of the provision. The purpose and policy of the provisions are to be deduced and understood from the text and structure of the Act and legitimate and relevant considerations of context, including secondary material. [Citations omitted]
[5] There can be no doubt that the search for principle in the High Court reveals a settled approach of some clarity: R v A2 [2019] HCA 35; 373 ALR 214 at 223-225 [31]- [37]. The notion that context and legitimate secondary material such as a second reading speech or an Explanatory memorandum cannot be looked at until some ambiguity is drawn out of the text itself cannot withstand the weight and clarity of High Court authority since 1985. [Citations omitted]
[147] Acts Interpretation Act 1909 (Cth), s.15AA.
[148] [2023] FCAFC 11, per Sarah Derrington J, [30]-[31].
[149] Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner [2020] FCAFC 192.
There was conjecture between the parties, and in the evidence, as to the diagnoses received by the Applicant in relation to his psychiatric disabilities. However, in National Disability Insurance Agency v Davis,[150] the Court noted the significance of the concept of impairment rather than diagnosis:
What the legislative scheme focuses on is not the name of a person’s disability, nor the diagnosis given to a person – but rather what are the impairments experienced by a person which may require supports so that the person can participate in all aspects of personal and community life. It is the impairment which the scheme contemplates may affect the “functional capacity” of a person.”
[150] [2022] FCA 1002 at [69].
The concept of “impairment” is to be understood as involving loss of or damage to a physical, sensory or mental function.[151] There is sufficient evidence, both documentary and from Dr Prasathnayagam’s oral evidence, from which the Tribunal can readily infer that the Applicant’s symptoms and condition manifest in loss or damage to his physical and mental function including:
(a)Depressed or low mood and affect;
(b)Loss of interest in activities;
(c)Weight gain (not clinically linked, but present);
(d)Difficulty sleeping;
(e)Fatigue;
(f)Episodic psychomotor retardation; and
(g)Suicidal ideation at times.
[151] Mulligan v National Disability Insurance Agency (2015) 233 FCR 201; [2015] FCA 544 at [55]; chapter 8.1 of the Access Operational Guidelines.
Further, there is overwhelming evidence that the Applicant has been suffering with anxiety for almost three decades, and that his current and former treating doctors have considered this to be significant. Dr Sheehan’s report of significant anxiety dates back prior to 1997.[152] The evidence as a whole demonstrates that his anxiety has manifested in the additional impairments of episodic heightened state, mistrust of others, difficulty with social interaction, and low self-esteem.
[152] Exhibit 36.
Evidence of the Applicant’s morbid obesity dates back at least to as early as April 2012, when his weight was recorded as 112kg[153] when he was in the Rockhampton Hospital, and has steadily increased across almost a decade to now exceed 140kg.[154] Evidence of the Applicant’s other physical conditions demonstrates, and it is accepted by the Respondent, that the Applicant has pain and reduced mobility from the combined impact of COPD and/or Emphysema (lung disease), osteoarthritis of the knee and hip and the more recent onset of Functional Neurological Disorder.
[153] Exhibit 29 (p.1063)
[154] Exhibit 16 (p.197).
Temporal Element
The Applicant’s symptoms of functional neurological disease did not manifest until February 2021. If the Applicant had made an access request at the time of manifestation of these symptoms, he would not have satisfied the access criteria as he was then over 65 years of age and would not have satisfied the age requirements. However, he did have a review on foot in this Tribunal of the decision of the Respondent that he did not satisfy the access criteria in relation to the access request initiated in October 2019. The question arises whether any disability attributable to impairments associated with functional neurological disease can be considered by the Tribunal in determining whether he meets the access criteria in this review.
The Tribunal invited submissions from the parties as to the scope of the question before the Tribunal, and whether impairment’s from FND, which arose in February 2021, could be considered within the scope of this review. The Applicant submitted that the Tribunal was to consider any facts or circumstances that arose between the time the access request was made and the time of consideration of the request, which included re-consideration by the Tribunal on review. The Applicant submitted that the Tribunal must now look at whether the Applicant meets the disability requirement at the time of the Tribunal’s decision, and that this is to include consideration of any disabilities and/or impairments that have arisen since he made the access request, including functional neurological disorder. The Respondent agreed with those submissions without further analysis.[155]
[155] Applicant’s closing submissions [5] – [15] and Respondent’s closing submissions [22].
Although the parties agree on the approach to be taken in this case, the Tribunal should be very cautious when determining any jurisdictional issue where the correct interpretation of a statute is not settled by superior court authority, and where the interpretation affects the way in which a prospective participant must act to preserve and exercise their statutory rights. That is particularly so because, during the life of a review before the Tribunal, a superior court may conclude that a failure to make a new request arising from new factual circumstances does lead to a want of jurisdiction in an extant review. This would not be something that a statutory tribunal can later ‘set to right’.[156]
[156] See discussion in Rogers and National Disability Insurance Agency [2022] AATA 2809 (26 August 2022) [31] – [35]
Part of the Applicant’s submission (with which the Respondent agreed), in purported reliance upon the decision in Frugtniet v Australian Securities and Investments Commission[157] (“Frugtniet”), at [53], stated, “The tribunal must now look at whether the Applicant meets the disability requirement at the time of this decision, which includes any disabilities and/or impairments that have since arisen. Such an approach is entirely consistent with the concept of regarding the administrative-making (sic) process as a continuum and to look upon the Tribunal’s function as part of that continuum. (Emphasis added)[158] The identified paragraph from the decision of Justices Bell, Gageler, Gordon and Edelman in Frugtniet, at [53], states:
The AAT and the primary decision-maker exist within an administrative continuum.[159] The AAT has no jurisdiction to make a decision on the material before it taking into account a consideration which could not have been taken into account by the primary decision-maker in making the decision under review and which could not be taken into account by the primary decision-maker were the AAT to remit the matter to the primary decision-maker for reconsideration.
[157] (2019) 266 CLR 250; [2019] HCA 16 (15 May 2019).
[158] Applicant’s closing submissions [15].
[159] Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 at 300-301 [45], quoting Jebb v Repatriation Commission [1988] FCA 105; (1988) 80 ALR 329 at 333-334.
The concept of a “continuum” in this setting does not refer to an expansion of decision-making powers, but a continuation of the re-exercise of the same powers, with the Tribunal’s decision (if different) being substituted for the original decision and, in that way, becoming part of that decision-making continuum. This is consistent with the concept of the Tribunal’s re-exercise of the original powers ss.43(1) of the AAT Act and the default position of the effect of its decision being from the date of the original decision in ss.43(6) of the AAT Act. The passage identified by the Applicant from their Honours decision does not necessarily support the contention that the Tribunal can make a decision not available to the original decision-maker, nor does it support the contention that disabilities or impairments that could not have formed part of the original decision-maker’s consideration must be considered by the Tribunal on review. The effect of a decision that the Applicant satisfies the access criteria as a result of a disability attributable to FND would be to replace the CEO’s decision made on 21 October 2019 with a decision that the applicant satisfied the access criteria based upon facts which did not come into existence until February 2021. The interpretation of the access criteria contended for by both parties in this case, and which would lead to this unlikely outcome, therefore bears careful scrutiny.
The long-settled scope and limitations of the Tribunal’s review jurisdiction, as restated by the High Court in Frugtniet v Australian Securities and Investments Commission[160] (“Frugtniet”), requires the Tribunal to re-consider afresh the question before the original decision maker. In Frugtniet, Kiefel CJ, Keane and Nettle JJ stated:[161]
The enactment of the AAT Act established a new and substantially unprecedented regime of administrative merits review, distinguished principally by the AAT's jurisdiction to re-exercise the functions of original administrative decision-makers. The question for determination by the AAT on the review of an administrative decision under s 25 of the AAT Act is thus whether the decision is the correct or preferable decision. That question is required to be determined on the material before the AAT, not on the material as it was when before the original decision-maker. As Bowen CJ and Deane J held in Drake v Minister for Immigration and Ethnic Affairs, however, and has since been affirmed by this Court in Shi v Migration Agents Registration Authority, the AAT is not at large. It is subject to the same general constraints as the original decision-maker and should ordinarily approach its task as though it were performing the relevant function of the original decision-maker in accordance with the law as it applied to the decision-maker at the time of the original decision.
Depending on the nature of the decision the subject of review, the AAT may sometimes take into account evidence that was not before the original decision-maker, including evidence of events subsequent to the original decision. But subject to any clearly expressed contrary statutory indication, the AAT may do so only if and to the extent that the evidence is relevant to the question which the original decision-maker was bound to decide; really, as if the original decision-maker were deciding the matter at the time that it is before the AAT. The AAT cannot take into account matters which were not before the original decision-maker where to do so would change the nature of the decision or, put another way, the question before the original decision-maker. As Kiefel J observed in Shi, identifying the question raised by the statute for consideration will usually determine the facts that may be taken into account in connection with the decision. The issue is one of relevance, to be determined by reference to the elements of the question necessary to be addressed in reaching a decision.
[Footnotes omitted, emphasis added]
[160] (2019) 266 CLR 250; [2019] HCA 16 (15 May 2019).
[161] Frugtniet at [14]-[15].
Therefore, the Tribunal may take into account evidence not available to the original decision-maker, but in doing so must consider the relevance of that evidence only to the question before that decision maker. Their Honours Justices Bell, Gageler, Gordon and Edelman described the scope of the Tribunal’s review jurisdiction as follows:[162]
…the jurisdiction conferred on the AAT by ss 25 and 43 of the AAT Act, where application is made to it under an enactment, is to stand in the shoes of the decision-maker whose decision is under review so as to determine for itself on the material before it the decision which can, and which it considers should, be made in the exercise of the power or powers conferred on the primary decision-maker for the purpose of making the decision under review. The AAT exercises the same power or powers as the primary decision-maker, subject to the same constraints. The primary decision, and the statutory question it answers, marks the boundaries of the AAT's review. The AAT must address the same question the primary decision-maker was required to address, and the question raised by statute for decision by the primary decision-maker determines the considerations that must or must not be taken into account by the AAT in reviewing that decision. A consideration which the primary decision-maker must take into account in the exercise of statutory power to make the decision under review must be taken into account by the AAT. Conversely, a consideration which the primary decision-maker must not take into account must not be taken into account by the AAT.
[Footnotes omitted]
[162] Frugtniet at [51].
The significance of whether the statutory question involved a “temporal element” was raised in Shi v. Migration Agents Registration Board,[163] where Kiefel J explained:
[143] Where the decision to be made contains no temporal element, evidence of matters occurring after the original decision may be taken into account by the Tribunal in the process of informing itself. Cases which state that the Tribunal is not limited to the evidence before the original decision-maker, or available to that person, are to be understood in this light. It is otherwise where the review to be conducted by the Tribunal is limited to deciding the question by reference to a particular point in time.
[144] In Freeman, Davies J identified the importance of the nature of the decision under review, in determining what facts the Tribunal might take into account. A decision had been made to cancel Mrs Freeman's widow's pension. The definition of "widow", in the Act providing for the pension, did not include a widow who was living with a man, as his de facto wife. That circumstance applied to Mrs Freeman at the time of the decision. That was sufficient to disentitle her from receipt of a pension. The statutory scheme was such that a pension, once cancelled on this ground, could only be reinstated on a further claim being made. Subsequent to the cancellation decision Mrs Freeman's circumstances changed, such that she again qualified for the pension. His Honour held the Tribunal to have been correct to limit its consideration to the circumstances existing at the time the decision to cancel was made. The Tribunal was entitled to take into account all the facts placed before it, but the issue was whether the decision it was reviewing, to cancel the pension, was the correct or preferable decision when it was made. It was not whether Mrs Freeman had an entitlement to a widow's pension at the date of the Tribunal's decision.
[145] The situation in Freeman was distinguished by Davies J from cases where the matter to be determined is a person's entitlement to a pension. Where that was the decision to be reviewed the Tribunal might not be limited to facts existing at a particular time, since the entitlement might be a continuing one. His Honour did not suggest, by this comparison, that the ambit of the decision to be reviewed was to be determined by a general description of what the decision concerned - a grant or a cancellation of an entitlement. In each case what is entailed in a decision is to be ascertained by reference to the statute providing for it.
[Footnotes omitted, emphasis added]
[163] Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31, [143] – [145].
It can be seen from this passage that it is not the beneficial nature of the grant of access to the NDIS that is to be considered, but whether the statutory provisions setting out the requirements prescribe any temporal element as to when those requirements are to be considered. For an access request, the decision-making process takes the following path:
(a)The decision under review in the Tribunal is a decision that a person does not meet the access criteria upon consideration of the access request.[164] This is not a review limited to the question whether the disability requirements, alone, are not met, even though that is the controversial issue in this case but, rather, whether the Applicant meets the cumulative requirements for access under section 21 of the NDIS Act in respect of the access request he has made. The Tribunal must consider, afresh, whether the cumulative criteria for access are met in relation to the Applicant’s original request, that is, that the prospective participant meets the age, residency and (relevantly here) disability requirements in respect of a single access request which, in this case, was made by the Applicant on 15 October 2019.[165]
[164] Subsection 99(1), item 1, NDIS Act.
[165] Exhibit 18 (p.221).
(b)It is for the CEO, and therefore the Tribunal, to determine whether the access criteria are met on the basis of the information available, not for a prospective participant to state which impairments give rise to a disability. As Member Webb stated in JLTZ and National Disability Insurance Agency[166], “just as a reviewer under s 100 is not confined to consider supports put before them and a participant is not required to identify the particular supports sought on review,[167] so, too, a reviewer is not confined to consider only impairments placed before them and a prospective participant is not required to identify impairments in an access request or when seeking review.” Therefore, the Applicant was not required to identify FND as a basis upon which he sought access and any failure to do so would not prevent the CEO, or the Tribunal on review, from taking it into account if that conclusion was available. However, as the Applicant could not have identified it because it was a fact not then in existence, the question arises whether or not it could have been considered by the primary decision maker when considering the request and, therefore, whether it can be considered by the Tribunal on review.
[166] JLZT and National Disability Insurance Agency [2022] AATA 541 (25 March 2022).
[167] QDKH by his litigation representative BGJF v NDIA [2021] FCAFC 189 at [7].
(c)The Tribunal[168] has the same powers and discretions as the original decision-maker[169] and the Tribunal’s decision will have effect from the day on which the decision under review had effect[170]. In Trout v. Minister for Immigration, Citizenship and Multicultural Affairs,[171] it was determined by Feutrill J that, on review of a decision to revoke a visa cancellation, the correct or preferable decision was to be determined at the time of cancellation, noting that the powers vested in the Tribunal by section 43(1) of the AAT Act were subject to two important qualifications:
[168] Exercising review jurisdiction created by subection103(1) of the NDIS Act and subsection 25(1) of the AAT Act.
[169] AAT Act, subsection 43(1).
[170] AAT Act, subsection 43(6), unless the Tribunal otherwise orders, see Trout v. Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 583, [66] – [68]
[171] [2023] FCA 583
That exercise is 'for the purpose of reviewing a decision'. Also, the powers of the Tribunal are not at large and are confined to those relevant for a review of the decision: Frugniet at [14]; Shi at [147]. Section 43(1) is facilitative and permits the Tribunal, in the exercise of the power to vary or substitute a decision, to exercise the applicable powers of the decision-maker relevant to the decision under review… Further, if the Tribunal makes a varied or substituted decision it is deemed to be a decision of the original decision-maker: s 43(6). Therefore, it takes effect as a decision of the original decision-maker exercising that decision-maker’s power and with effect from the time the decision of the delegate was made.[172] (citations removed)
[172] Ibid at [69]
(d)A person may make an access request under section 18 of the NDIS Act, and the request must take the form prescribed, and including the information required, by the CEO under subsection 19(1). In considering the access request, under section 21 of the NDIS Act, the CEO is to be satisfied that each of the age, residence and (in this case) disability requirements are met and must reach that level of satisfaction in the ways described in section 22 of the NDIS Act. In approaching its review task, the High Court stated in Minister for Immigration and Border Protection and Makasa,[173] that “the function of the AAT … is “to do over again” that which was done by the primary decision-maker.” [174] So, what was the question which the original decision-maker was bound to decide?
(e)The age requirement is met if the person was aged under 65 when the access request was made. Satisfaction of the disability requirement is cast in different terms. That requirement is met by the CEO reaching the requisite level of satisfaction at the time of considering the request. As the Applicant submitted, the language is intentionally different, and the CEO is not required to determine whether the disability requirements are met at the date that the access request was made. Section 22 of the NDIS Act specifies, instead, that satisfaction of the disability requirement is to be made at the time of the CEO considering the request. The question arises as to what timeframe, or “temporal element”[175] attaches to that consideration.
(f)Subsections 20(1)(a) and 20(2)(a) of the NDIS Act provides a mandatory, and extremely tight, timetable for that consideration: the CEO must decide the access request within 21 days. Subsections 20(1)(b) and 20(2)(b) provide for this time to be extended if the CEO elects, within that 21-day period, to exercise its information-gathering powers under subsection 26(1) of the NDIS Act and, if extended, the CEO must decide the access request within 14 days after the last of any requested information is received.[176] The CEO is to form a state of satisfaction, as a result of this consideration, as to whether the access criteria are met and this “consideration” is referred to in section 22 insofar as the disability requirements are concerned. A brief explanation of the interplay between these temporal provisions was provided by the Tribunal in MDCT and National Disability Insurance Agency:[177]
When the CEO is determining an application for access to the NDIS under section 20 of the National Disability Insurance Scheme Act 2013 (Cth) (“NDIS Act”), section 26 of the Act prescribes the powers exercisable by the CEO, including to request (but not require) that a person seeking access undergo one or both of an assessment of the person and a medical, psychiatric, psychological or other examination. The stakes are high and failure by a person seeking access to the NDIS to accede to such a request leads to a deemed withdrawal of the access request. Operational Guidelines therefore provide guidance and limitations upon the evidence gathering powers of the CEO and impose strict timeframes.
(g)The reason for these strict time frames is apparent from the context of the provision. A prospective participant is waiting for a determination of the request to access the NDIS, and to access any reasonable and necessary supports that status as a participant may allow. If the access request is declined (and if any review of the decision is finally determined unsuccessfully) a new request can be made based on the prospective participant’s updated circumstances, [178] and the same tight statutory time frame would apply. Therefore, one reasonable interpretation of the temporal element is:
(i)when an access request meets the age requirements, the questions whether the prospective participant meets the residency requirements (section 23) and the disability requirements (section 24) are to be answered at the time of consideration by the CEO; and.
(ii)that time of consideration is the time prescribed by section 20 of the NDIS Act, and is within 21 days of the access request, or such expanded time as is provided for in the event that information is sought under section 26 of the NDIS Act.
[173] (2021) 386 ALR 200; [2021] HCA 1.
[174] Ibid at [50] per Kiefel CJ, Gageler, Keane, Gordon and Edelman JJ, citing Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31 at [100] per Hayne and Heydon JJ.
[175] See Trout v. Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 583, discussion from [59] – [70]
[176] NDIS Act subsection26(2).
[177] [2020] AATA 6036 (24 December 2020), [23].
[178] NDIS Act subsection 19(2).
This is not the view contented for by the parties in this case. The effect of the parties’ submissions is that, when the CEO’s decision is the subject of re-consideration, whether by a section 100 reviewer or by the Tribunal, the same task is to be undertaken and it follows that the Tribunal’s “consideration” on review continues until the date of the decision because no time frame is imposed upon the Tribunal.
The alternative interpretation is that, in order for the Tribunal “to do over again that which was done by the primary decision-maker”[179], the Tribunal would need to impose the same limitations upon that re-consideration that applied to the CEO and form the state of satisfaction about the issue before the CEO at that time. This would require a reconsideration of all of the relevant access criteria[180] including:
whether the age requirements were met at the date of request; and
whether the other relevant requirements were met at the time of consideration by the CEO (being 21 days from the request, or such longer time as was created by the operation of section 26 of the NDIS Act).
Any reconsideration on review is not limited to the disability requirements alone but must address the access criteria as a whole. This interpretation allows for meaning to be given to each of the temporal parameters provided for the various aspects of the access criteria. This interpretation is also consistent with the purpose of a beneficial statutory scheme designed to support people with a qualifying disability who are likely to require access to the scheme for life provided that they access the scheme before they turn 65.
[179] Ibid at [50] per Kiefel CJ, Gageler, Keane, Gordon and Edelman JJ, citing Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31 at [100] per Hayne and Heydon JJ.
[180] NDIS Act section 99.
In giving effect to the objects of the NDIS Act, regard is to be had to the need to ensure the Scheme’s financial sustainability and to the provision of services by other Government agencies.[181] Without clear language in the NDIS Act, caution must be exercised to favour an interpretation that defeats the statutory intent to limit participation in the scheme according to age at entry where the mechanism through which that is achieved is the existence of an extant, and as yet undetermined, review.
[181] NDIS Act subsection.3(3)(b) and 3(3)(d).
If the Tribunal were to consider new facts up to the date of the decision that were not available to the CEO during considering of the original decision, unintended and untenable consequence may follow, which can perhaps best be illustrated by some examples. If a person became disabled at age 67, say as a result of a car accident, that person could not apply for access under the scheme as a result of any relevant impairments. However, if that person had already sought access for an unrelated impairment, which did not satisfy the access criteria, the existence of the ongoing review of the decision relating to that access request would enliven jurisdiction to consider impairments that could not otherwise have been taken into account. If a person developed a substantially impaired functional capacity for the first time at age 67 as a result of a degenerative disease, that person could not apply for access under the scheme as a result of those impairments. However, if that person had already sought access for the degenerative condition earlier, when it did not satisfy the access criteria, the existence of that access request would enliven jurisdiction to consider the impairments that could not otherwise have been taken into account. The application of a more expansive temporal approach for the inclusion of facts relevant to the review up to the date of decision does not take account of the explicit temporal constraints upon the statutory task of the CEO in section 20 of the NDIS Act and may be seen to artificially expand the question which the original decision-maker was bound to decide.
This statutory interpretation issue has not been explored in any superior court decision and the Tribunal in such cases should take a conservative approach which gives effect to the statutory intent, but does not place an Applicant at risk of losing review rights through an incorrect approach.
In this case, the parties not made clear submissions to the Tribunal as to the basis on which the timeframe in section 20 is not to be applied to the “review” task. This provision was not addressed in the submissions of either party. There may be a basis upon which it is proper to apply that time frame to the CEO’s decision, but not to subsequent reviews, but no such basis has been enunciated or explained by the Respondent in this case. If correct, the interpretation contended for by the parties in this case would require consideration, on review, of any new facts not able to have been considered by the CEO. The Tribunal’s task would then amount not to a review, strictly, of the CEO’s decision, or a reconsideration of the access request, but to the consideration of a potentially ever-expanding access request to be considered across a period of time limited only by the “final determination”[182] of the extant review process. In circumstances where prospective participants in the scheme have degenerating impairments, or may develop completely new impairments, the Tribunal would need to make the difficult practical decision when to draw a line under the evidence and determine the Application, whilst providing a mechanism for review that is fair.
[182] Section19 NDIS Act
However, the interpretation alternative to that contended for by the parties sits comfortably with the plain words of the access regime and the intent of the NDIS Act, particularly where the NDIS Act contemplates a very simple mechanism for a new access request to be made as soon as an earlier request is finally determined. The only category of prospective participant that would not be able to make a new request is a person who no longer met the age or residency requirements.
Despite the focus of both parties upon the Applicant’s disability attributable to impairments arising from FND, and conscious of the uncertainty raised by the discussion above, the Tribunal in this case has limited its focus to the impairments to which the CEO could clearly have regard when considering the Applicant’s access request and provisions of section 20 of the NDIS Act. For the reasons that follow, and in the particular circumstances of this case, the Tribunal has determined that the Applicant meets the access criteria based on the facts in existence at that time. As it has not been necessary to consider the impairments said to arise from FND as a question of fact, it has also not been necessary to decide in this case whether the later manifested impairments arising in 2021 from the onset of functional neurological disease should be taken into account as a matter of statutory interpretation. However, it is likely that this issue will require explicit determination in a future case with a different factual profile. More detailed submissions, particularly from the Respondent, would no doubt assist in such a case.
The disability requirements
Subsection 24(1)(a) of the NDIS Act – does the Applicant have a disability?
Subsection 24(1)(a) of the NDIS Act requires that a 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’.
Consistent with Mortimer J’s decision in Mulligan v National Disability Insurance Agency (2015) 233 FCR 201 (‘Mulligan’),[183] the following guidance is outlined in chapter 8.1 of the Access Operational Guidelines:
For the purposes of becoming a participant in the NDIS the focus of ‘disability’ is on the reduction or loss of an ability to perform an activity which results from an impairment.
The term ‘impairment’ commonly refers to a loss of, or damage to, a physical, sensory or mental function.
The narrower definition of ‘disability’ employed by the NDIS seeks to target those people with disability who have a significant impairment to their functional capacity. This functional definition of disability focuses on outcomes for people with disability that are in the most need (Explanatory Statement to the Becoming a Participant Rules).
[emphasis added]
[183] at [15] – [16].
I am satisfied the Applicant meets the requirements of subsection 24(1)(a) of the NDIS Act.
Subsection 24(1)(b) of the NDIS Act – are the Applicant’s impairments permanent?
Subsection 24(1)(b) of the NDIS Act requires that the Applicant’s ‘impairment or impairments are, or are likely to be, permanent’. Subsection 24(2) of the NDIS Act further notes that ‘an impairment that varies in intensity may be permanent’.
The Participant Rules provide the following guidance in considering when an impairment is, or is likely to be, permanent:
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.
5.5An 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.
5.6 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
[emphasis added]
In National Disability Insurance Agency v. Davis[184], Mortimer J considered the word permanent to mean “enduring”[185] and examined the scope of these rules in the context of whether an impairment was permanent[186]:
… in r 5.4 the word “remedy” should be understood to mean something approaching a removal or cure of the impairment. That is consistent with the meaning I consider should be given to the statutory phrase “permanent impairment”, as an impairment which is enduring and, while its impacts on a person from time to time might fluctuate, is not an impairment which is likely to be removed or cured.
Psychological impairment Major Depressive Disorder/Adjustment Disorder
[184] [2022] FCA 1002 (29 August 2022).
[185] At [87].
[186] At [136].
In considering whether the Applicant’s loss of psychiatric function leads to an impairment that is permanent, I have had particular regard to the medical evidence as a whole, including the historic psychiatric evidence and more recent evidence from Dr Prasathnayagam.
Although there is no clear evidence of a diagnosis, by a psychiatrist, of a major depressive disorder, Dr Prasathnayagam noted that the Applicant would be required to exhibit a number of symptoms for more than two weeks and that these were not better explained by another relevant condition. The historical medical evidence demonstrates that, in 1997, Dr Sheehan noted that the Applicant seemed quite significantly depressed and had a history of depression which had seen deteriorated over the previous few years.[187] Whilst Dr Prasathnayagam’s opinion that the Applicant met the criteria for a major depressive disorder is not the diagnosis of a psychiatrist, his opinion is consistent with the long-standing and, frankly, overwhelming evidence that the Applicant is a long term sufferer from serious, albeit episodic, depressive symptoms.
[187] Exhibit 36 (p.1197).
Over the past three decades the Applicant has taken medication, and has had intermittent contact with the hospital system, psychiatric care and, more recently, the care of his general practitioner and psychotherapists. Further, there is a substantial body of compelling evidence that the Applicant has been suffering with anxiety for almost three decades, and that his current and former treating doctors have considered this significant. Dr Sheehan’s report of significant anxiety dates back prior to 1997.[188] Dr Akosile noted the presence of a generalised anxiety (with panic) disorder and both treating psychotherapists gave evidence consistent with this opinion.[189] The evidence as a whole demonstrates that the Applicant’s anxiety has manifested in the additional impairments of episodic heightened state, mistrust of others, difficulty with social interactions and low self-esteem.
[188] Ibid.
[189] Exhibit 5 (p.53).
The Tribunal must be positively satisfied that there is no further treatment available that would be likely to remedy the Applicant’s impairment of depressive symptoms. The Respondent urged the Tribunal to find that there was no evidence of the Applicant having engaged in known, available and appropriate evidence-based treatment from which the Applicant would “benefit”.[190] However, such treatments are relevant only in they are likely to remedy the impairment in the sense of something approaching a removal or cure. In this case, there is no basis to conclude that further assessments, treatment or processes will be curative, or will likely remedy, the impairments identified above.
[190] Do you wish for a reference here, SM?
The Tribunal accepts that:
(a)The Applicant’s depressed mood and anxiety were well established in 1997 (Sheehan)[191] and likely lifelong (Dr Akosile,[192] Ms Allpass, Ms Dickson);[193]
(b)Whilst both psychotherapists (Ms Coulson,[194] Ms Radel[195]) recommended long term counselling support both saw the Applicant’s mental health conditions as permanent and did not see the Applicant’s mental health improving;
(c)Dr Prasathnayagam stated that the Applicant’s “major depressive disorder – secondary to baseline learning disorder”[196] was likely lifelong due to its long history, dating back to the Applicant’s teenage years and that his mental health condition was chronic and permanent.
[191] Exhibit 36 (p.1197).
[192] Exhibit 5.
[193] Exhibit 41.
[194] Exhibit 26.
[195] Exhibit 25.
[196] Exhibit 38 (p.1204).
The Respondent noted that there was no evidence available to the Tribunal of the assessment of Dr Sivaruban, on which Dr Prasathnayagam’s finding was made. In fact, Dr Prasathnayagam’s evidence of his recollections[197] was available to the Tribunal, and was perfectly credible, and the Respondent chose not to explore the veracity of this aspect of Dr Prasathnayagam’s evidence during the hearing. There is no basis whatsoever upon which the Tribunal could conclude that he has given inaccurate evidence to the Tribunal. I accept his evidence completely, and note that it is entirely consistent with the picture of the Applicant’s mental health that can be gleaned from consideration of the evidence as a whole.
[197] Exhibit 28 (p.424).
In any event, based on the evidence, I am satisfied the Applicant has engaged in evidence-based clinical, medical or other treatments as required by rule 5.4 of the Participant Rules. These treatments have included the Applicant taking recommended medications and participating in consultations with his treating GP, consulting psychologists and, when available, a psychiatrist. There is insufficient evidence to demonstrate the consistency of these treatments, and the Applicant has not always been compliant with participation in talk-therapies. However, the evidence suggests that his low mood is self-limiting and although it does not go so far as to demonstrate that treatment is unavailable the clear evidence that the Applicant self-isolated and was given to bouts of extreme anxiety make his low level of engagement with such therapies unsurprising.
The evidence demonstrates, on balance, that the Applicant’s psychiatric impairments are within the meaning of subsection 24(1)(b) of the NDIS Act, notwithstanding that the impairments may vary in intensity and the severity of their impact on the functional capacity of the Applicant may fluctuate.[198] For these reasons, the Tribunal finds that the Applicant’s psychiatric impairments are permanent within the meaning of subsection 24(1)(b) of the NDIS Act.
COPD, osteoarthritis, obesity
[198] Participant Rules, r 5.5.
Based on the evidence, the Tribunal is satisfied that the Applicant’s physical conditions arises from various degenerative conditions, being severe osteoarthritis of the spine, COPD and obesity. Whilst not the subject of separate submissions, that Tribunal has considered the evidence that demonstrates that obesity adds a further limitation upon the Applicant’s capacity to move and mobilise. (The Tribunal notes evidence that he has also suffered a prolapsed disc in the past.) The Tribunal is further satisfied that the Applicant’s impairments arising from his physical conditions are not likely to be improved by further medical or other treatment as identified in ule 5.7 of the Participant Rules. I note that a “permanent” impairment may continue to be treated and reviewed. That test for permanence prescribed by Participant Rule 5.7, that is relevant to the Applicant’s osteoarthritic pain and limitation, and the limitation in movement from his COPD (with or without the obesity), provide for that impairment to be unlikely to be improved by medical or other treatment.
Hospital records show that, for at least the last eight years, the Applicant has had the degenerative lung condition COPD – 5 June 2015, with chronic obstructive airway disease notes two years later on 5 June 2017. Those records also confirm his history of Acute Back Pain and Osteoarthritis - of the spine, (12 November 2015) and chronic pain and fatigue (11 January 2016. Obesity was noted in the medical records on 29 July 2015.[199]
[199] Exhibit 29 (p.990).
The Applicant has been treated by his GP, Dr Prasathnayagam, for three years during which he has consistently expressed the views that each of these conditions was permanent. He opined that the COPD was moderate to severe and permanent, with limited lung capacity leading to symptoms of exertional short of breath and noted the Applicant’s further significant impairment of his mobility secondary to Multilevel osteoarthritis complicated with morbid obesity.[200]
[200] Exhibit 9.
Apart from the prospect, albeit unlikely after many years of obesity, of some weight loss, these conditions are acute, and chronic or degenerative, and are not reversable. The Tribunal is satisfied that, on balance, the evidence demonstrates that the Applicant’s physical impairments are not likely to improve with treatment. The conclusion that the impairments arising from them is permanent is therefore inescapable. For these reasons, the Tribunal finds that the Applicant’s physical impairments are permanent within the meaning of subsection 24(1)(b) of the NDIS Act.
Subsection 24(1)(c) of the NDIS Act – do the Applicant’s impairments result in substantially reduced functional capacity to undertake communication, social interaction, learning, mobility, self-care or self-management?
To meet the criteria in subsection 24(1)(c) of the NDIS Act, the Applicant must demonstrate that his impairments result in substantially reduced functional capacity to undertake any one or more of the activities specified in subsection 24(1)(c) of the NDIS Act. The Applicant contended that the domains of social interaction, mobility, self-care and self-management were relevant.
Application of the legislation requires:[201]
…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.
[201] Mulligan, at [55].
It is enough for a prospective participant to have substantially reduced functional capacity in relation to one activity: “If the outcome or effect is any of the outcomes or effects specified in r 5.8(a), (b) or (c), the deeming effect of r 5.8 operates”.[202]
[202] Ibid, at [67].
Rule 5.8 of the Participant Rules provides:
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.
[emphasis added]
Further, chapter 8.3.1 of the Access Operational Guidelines states:
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.
…
A person will be considered to be unable to participate effectively or completely in an activity if 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.
[emphasis added]
I note that the Applicant submitted that his impairments result in a substantially reduced functional capacity to undertake activities in and the Tribunal will consider each of these in turn.
Subsection 24(1)(c)(i) of the NDIS Act – Communication
Chapter 8.3 of the Access Operational Guidelines refers to communication as including: “being understood in spoken, written or sign language, understanding others and expressing needs and wants by gesture, speech or context appropriate to age”.[203]
[203] See also Kilgallin and National Disability Insurance Agency [2017] AATA 186.
The Respondent accepted that the Applicant suffers from anxiety and some form of social phobia and has done so for a considerable time. However, the Respondent submitted that whilst the Applicant is “impacted”[204] by these, the evidence does not demonstrate that the Applicant has substantially reduced functional capacity in communication,[205] and submitted that he is able to communicate effectively using a “talk to text”[206] app, speak with neighbours and can go to the shops with his wife.
[204] Exhibit 24 [at 80].
[205] Ibid.
[206] Ibid [at 76].
The Tribunal accepts that the Applicant is impacted and limited by his social withdrawal and phobias, but understands that he can communicate with his wife, doctor and neighbours and that he is able to express his needs and wants. The evidence does not demonstrate a substantially reduced functional capacity in this domain.
Subsection 24(1)(c)(ii) of the NDIS Act – Social Interaction
Chapter 8.3 of the Access Operational Guidelines refers to social interaction as including:
…making and keeping friends (or playing with other children), interacting with the community, behaving within limits accepted by others, coping with feelings and emotions in a social context.
The Applicant’s long-established anxiety and some social phobia substantially curtails his capacity for social interaction. The evidence from the Psychiatrists noted the social anxiety affecting the Applicant’s capacity to socialise and Dr Akosile in particular noted the Applicant’s anti-social traits.[207] He concluded that the Applicant’s diagnoses were impacting on his communication, social interaction, and learning. The conclusions expressed by Dr Den Ouden are consistent with this finding, and the Tribunal notes that this conclusion was unrelated to her findings with respect to the Applicant’s impairments from FND.
[207] Exhibit 5.
The Tribunal accepts that the Applicant’s capacity for social interaction is substantially impeded by the interplay of his anxiety, social phobia and depressive symptoms. While the Applicant’s capacity for social interaction may fluctuate from time to time because of his impairments, and in particular his depression, the Tribunal is satisfied that those limitations when considered together result in a substantially reduced functional capacity for social interaction within the meaning of subsection 24(1)(c)(ii) of the NDIS Act.
Subsection 24(1)(c)(iii) of the NDIS Act – Learning
Chapter 8.3 of the Operational Guideline states that learning “includes understanding and remembering information, learning new things, practising and using new skills.”
The Respondent contended that, whilst the Applicant has a learning disability secondary to cortical integration deficiency,[208] the Applicant does not have substantially reduced functional capacity in learning.
[208] Exhibit 24 [at 4.1].
The evidence of Dr Den Ouden and Dr Lehn are supportive of the conclusion that the Applicant’s capacity for recall and learning have diminished, but the Tribunal is not able to discern in this case whether this is attributable to his new symptoms of FND, either alone or when taken in combination with any earlier functional incapacity. Further, while the evidence suggests that the Applicant is impacted and limited by his capacity to learn the available evidence is insufficient to demonstrate a substantially reduced functional capacity in this domain.
Subsection 24(1)(c)(iv) of the NDIS Act – Mobility
Chapter 8.3 of the Operational Guideline provides a definition of mobility:
This means the ability of a person to move around the home (crawling/walking) to undertake ordinary activities of daily living, getting in and out of bed or a chair, leaving the home, moving about in the community and performing other tasks requiring the use of limbs.
The anecdotal evidence, supported by Dr Prasathnayagam and Dr Lehn, establishes that the Applicant has substantially reduced functional capacity in mobility with a baseline of being severely disabled.[209] The Tribunal did not understand the evidence of Dr Lehn to suggest that this was the case only when the Applicant was experiencing symptoms of FND (although this no doubt exacerbated this “baseline” disability). The Applicant experiences shortness of breath from his lung condition and is unable to stand or walk for a significant distance. In 2019, Dr Prasathnayagam identified the Applicant’s physical impairments as including osteoarthritis of the knee and hip and the various hospital records support this as a contributing factor to the Applicant significant and long-standing mobility issues. The Tribunal is satisfied that the evidence demonstrates a substantial reduction in the Applicant’s capacity to attend to his activities of daily life through both his various physical limitations and the overlay of his anxious and depressive manifestations which, at times, also immobilise him. The Tribunal finds that the Applicant’s impairments have substantially reduced his functional capacity in mobility within the meaning of subsection 24(1)(c)(iv) of the NDIS Act.
[209] Exhibit 23 (p.270).
Subsections 24(1)(c)(v) and (vi) of the NDIS Act – Self-Care and Self-management
The Applicant contends that he has severely curtailed capacity in the activities of self-care and self-management. This is consistent with the evidence given by Dr Prasathnayagam during the hearing and concerns expressed by his Psychotherapists Ms Radel and Ms Coulson, particular in relation to managing medication and daily decision-making.
The Tribunal finds that the Applicant’s impairments have reduced his functional capacity in self-care and self-management but the available evidence is not sufficient to demonstrate that the Applicant had a substantial reduction in functional capacity this domain within the meaning of subparagraphs 24(1)(c)(v) and (vi) of the NDIS Act.
Subsection 24(1)(d) of the NDIS Act – do the Applicant’s impairments affect his capacity for social or economic participation?
Subsection 24(1)(d) of the NDIS Act requires that the Applicant’s impairment or impairments affect his capacity for social or economic participation. There is no requirement that the affect be “substantial”, or otherwise significant. The evidence supports, and the Respondent accepts, that this requirement had been met.[210]
[210] Exhibit 1, H1, para 44.
The Tribunal finds the requirement in subsection 24(1)(d) of the NDIS Act is met because the Applicant’s impairments affect his capacity for economic participation.
Subsection 24(1)(e) of the NDIS Act – is the Applicant likely to require support under the NDIS for his lifetime?
Chapter 8.5 of the Access Operational Guideline states the following:
8.5 When is a person likely to require support under the NDIS for their lifetime?
The NDIA must also be satisfied that the prospective participant is likely to require support under the NDIS for the rest of their lifetime (section 24(1)(e)).
If an impairment varies in intensity (for example, because the impairment is of a chronic episodic nature) the person may still be assessed as likely to require support under the NDIS for the person's lifetime, despite the variation (section 24(2)).
The NDIA is required to consider a prospective participant’s overall circumstances and conclude that the person will require support under the NDIS for their lifetime. The purpose of this requirement seems to be to distinguish that subset of people with serious and permanent disabilities who are intended to be the beneficiaries of funded supports (Mulligan and NDIA [2015] AATA 974 at [153]).
For example, if a person's support needs arise from a health condition and are most appropriately provided through another service system (i.e. the health system) then the person will not require support under the NDIS for their lifetime. Rather, the person will require support under the health system.
When considering this criterion, the NDIA does not need to be satisfied that the support/s required for the person's lifetime meet the reasonable and necessary criteria. The reasonable and necessary criteria are relevant to whether funding is provided, not whether a person meets the disability requirements (see Mulligan and NDIA [2014] AATA 374 at [53] and Mulligan and NDIA [2015] AATA 974 at [146]–[150]).
The Tribunal has concluded that the Applicant’s impairments result in him having substantially reduced functional capacity to undertake activities in the domains of social interaction and mobility. Having regard to the policy guidance set out in chapter 8.5 of the Access Operational Guidelines, I consider that it would be appropriate for the Tribunal to make a finding that a prospective participant is likely to require support under the NDIS for their lifetime in circumstances where the evidence shows they have a substantially reduced functional capacity to undertake activities in those domains.
As I am satisfied that the Applicant’s impairments result in substantially reduced functional capacity in relevant domains as a result of an impairment that is permanent, the Tribunal finds that the Applicant will require assistance under the NDIS for his lifetime. Therefore, the Applicant meets the requirement of subsection 24(1)(e) of the NDIS Act.
conclusion
For the reasons set out above, the Tribunal finds that the Applicant meets the disability criteria in section 24 of the NDIS Act.
decision
The Tribunal sets aside the decision under review and remits the matter for reconsideration with a direction that the Applicant meets the access criteria in section 21 of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act), in that he meets the:
(a)age requirements in section 22 of the Act;
(b)residence requirements in section 23 of the Act; and
(c)disability requirements in section 24 of the Act.
I certify that the preceding 129 (one hundred and twenty-nine) paragraphs are a true copy of the reasons for decision of Senior Member Buxton.
…………………[SGD]…………………
Associate
Dated: 10 July 2023Dates of the hearing: 14, 15 and 16 March 2023
Date of final submissions: 5 May 2023
Counsel for the Applicant: Mr Nolan
Solicitors for the Applicant: Ms Nuttall
Counsel for the Respondent: Ms Graycar
Solicitors for the Respondent: Ms Hunt
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