Johnson and National Disability Insurance Agency

Case [2023] AATA 1989

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

  1. 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’).

  2. 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.

  3. On 15 October 2019…

Continue reading Johnson and National Disability Insurance Agency

Sign in free to access the full text

Details
AGLC
Johnson and National Disability Insurance Agency [2023] AATA 1989
Case
[2023] AATA 1989
Decision Date

CaseChat Overview and Summary

This matter concerned an application for review of a decision by the National Disability Insurance Agency (NDIA) regarding the applicant's eligibility for the National Disability Insurance Scheme (NDIS). The applicant sought access to the NDIS, but the NDIA had determined that the applicant did not meet the relevant criteria. The applicant appealed this decision to the Tribunal.

The central legal issues before the Tribunal were whether the applicant met the disability requirements under section 24 of the NDIS Act 2013 (Cth), specifically concerning the permanence of his impairments and whether all appropriate treatments had been considered. The Tribunal was required to assess the available medical evidence, including reports from treating practitioners and oral evidence from medical experts, to determine if the applicant's impairments were permanent and if the criteria for access were satisfied.

The Tribunal's reasoning focused on interpreting the NDIS Act in light of its purpose and objects, as guided by established principles of statutory construction. It emphasised that the scheme focuses on the impairments experienced by a person and their impact on functional capacity, rather than solely on diagnostic labels. The Tribunal found that the medical evidence, including the opinions of treating doctors and specialists, supported the applicant's claim of permanent impairments. It accepted the veracity of these opinions, noting that they were based on the witnesses' observations and expertise and were not challenged by the respondent. The Tribunal also considered the applicant's history of various medical conditions, including psychiatric disability, learning disability disorder, osteoarthritis, COPD, and Functional Neurological Disorder.

Consequently, the Tribunal set aside the NDIA's decision and remitted the matter for reconsideration. The Tribunal directed that the applicant be found to meet the access criteria under section 21 of the NDIS Act, encompassing the age, residence, and disability requirements.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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)

Decision

Reasons for decision

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]…………………AssociateDated: 10 July 2023Dates of the hearing: 14, 15 and 16 March 2023 Date of final submissions: 5 May 2023 Counsel for the Applicant: Mr NolanSolicitors for the Applicant: Ms NuttallCounsel for the Respondent: Ms Graycar Solicitors for the Respondent: Ms Hunt

Ratio Decidendi

Legal Principle Established

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].