Jones and National Disability Insurance Agency

[2024] AATA 1304

Jones and National Disability Insurance Agency [2024] AATA 1304 (23 May 2024)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2023/4227

Re:Caitlin   Jones

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Member J Toohey  

Date of oral decision:           23 May 2024

Date of written reasons:      30 May 2024

Place:Brisbane

The Tribunal sets aside the decision under review and remits the matter for reconsideration, with a direction that the Applicant meets the early intervention requirements for access to the National Disability Insurance Scheme as set out in section 25 of the National Disability Insurance Scheme Act 2013 (Cth).

........................[SGD].........................

Member J Toohey

Catchwords

National Disability Insurance Scheme – Access – Early intervention requirements under section 25 – Becoming a participant rules – Rule 6.4 – Known, available and appropriate treatments – Psychosocial disability – Complex PTSD – Support to access clinical treatment – Whether more appropriately provided through the health system

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)

National Disability Insurance Scheme (Becoming a Participant) Rules 2016

Cases

BBMC and National Disability Insurance Agency [2018] AATA 386
National Disability Insurance Agency v Davis [2022] FCA 1002

National Disability Insurance Agency v WRMF [2020] FCAFC 79

REASONS FOR DECISION

Member J Toohey

1. This decision and reasons were provided orally on the day of the hearing on 23 May 2024. The Respondent requested written reasons on the same day. The following is a statement in writing of the reasons of the Tribunal for its decision provided in accordance with section 43(2A) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). Footnotes and citations have been added which were not included with the oral reasons.

2. I have decided that the Applicant meets the early intervention requirements as set out in section 25 of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act).

3. I am aware that this is not what the Applicant is seeking[1] but have decided this is the correct decision for the following reasons.

   [1] As conveyed by the Applicant during oral evidence in response to questions from the Respondent’s counsel.

4. I am satisfied that the Applicant has impairments to which a psychosocial disability is attributable.[2] This is accepted by the Respondent, is clear from Dr Ewer’s 2024 report,[3] and other information in this matter,[4] including summons records from the Applicant’s treaters and hospital admissions.[5] The focus here is on impairments, not diagnosis, so whether or not there is a specific diagnosis in relation to dissociative episodes[6] is not required.

   [2] NDIS Act section 25(1)(a)(ii).

   [3] Report of Dr Ewer dated 26 February 2024, page 13.

   [4] See also: report of Dr Ewer dated 3 May 2022, pages 16 and 17; report of Dr Angelakis dated 23 February 2021.

   [5] See for example: Dr Mohan consultation notes 10 March 2022; Royal Adelaide Hospital Emergency Discharge Letter 2 July 2021; Dr Angelakis consultation notes 26 March 2019; Report of Karen Heseltine attached to Brett Dixon letter dated 4 August 2004.

   [6] Written submissions from the Applicant dated 25 April 2024 and oral evidence. 

5. I am satisfied that these impairments are likely to be permanent.[7] Dr Ewer’s 2024 report does say that the Applicant’s prognosis is better, and that with new treatments, there is high probability the Applicant will improve significantly.[8] However, I do not read this as meaning that the Applicant will improve to a point where she will no longer live with any impairments and consider it likely that some level of impairment will continue. 

   [7] NDIS Act section 25(1)(a)(ii).

   [8] Report of Dr Ewer 26 February 2024, page 17.

6. I have considered the Respondent’s submissions in relation to permanency and the NDIS (Becoming a Participant) Rules.[9] I agree that there are known and appropriate treatments indicated.[10] I am not satisfied that these treatments are available to the Applicant.[11] Dr Ewer first expressed this opinion in May 2022 and again in February 2024. It is now two-years since Dr Ewer’s first report and the Applicant has not progressed in accessing these treatments.

   [9] National Disability Insurance Scheme (Becoming a Participant) Rules 2016.

   [10] See rule 6.4.

   [11] Also see rule 6.4.

7. I have considered the additional material and submissions made in relation to availability of these services.[12] I also note the Applicant is not currently engaged with a regular GP, treating psychologist or psychiatrist.[13] As Justice Mortimer (as the Chief Justice then was) said at paragraph 140 in Davis,[14] affordability may not be the only factor impacting access to treatment. The combination of a person’s impairments may also mean that these treatments are not available to that person. I am not persuaded that the Applicant’s ability to fund past treatments are an indication of her ability to afford the current treatments recommended, even if these are partly funded through Medicare.[15] I understand that the Applicant receives a pension. In my view, the cost of these services, as well as the Applicant’s impairments, are preventing her from accessing the recommended treatments. Without support to access these treatments, the impairments are likely to be permanent.

   [12] Supplementary bundle and counsel’s closing submissions.

   [13] Confirmed by the Applicant during oral evidence and submissions.

   [14] National Disability Insurance Agency v Davis [2022] FCA 1002.

   [15] See also Davis paragraph 75, the decision-maker needs to be satisfied on the evidence that the impairment will be excluded from the permanency criteria.

8. In relation to sections 25(1)(b) and (c), I am satisfied that, if the Applicant was able to access the treatments suggested by Dr Ewer her functional capacity could improve and this could reduce her future needs.[16]

   [16] Report of Dr Ewer, 26 February 2024, page 17.

9. For section 25(3), I am not satisfied that early intervention supports are more appropriately funded or provided through other systems. I acknowledge that the treatments suggested by Dr Ewer, and the supports the Applicant says she would require,[17] are clinical in nature and are primarily the responsibility of the health system to deliver. I agree with the decision in BBMC[18] in this regard. However, the specific supports that may be provided are part of the planning process and these may yet be different from what the Applicant is asking for now. Due to the Applicant’s psychosocial disability, she has been unable to access the recommended clinical services. There is, in my view, a proper role for early intervention supports under the NDIS to assist a person with a psychosocial disability to access appropriate services.

   [17] Report of Dr Ewer, 26 February 2024, page 18.

   [18] BBMC and National Disability Insurance Agency [2018] AATA 386 at 41.

10. I acknowledge this is not an easy fit with the language of ‘early intervention’ given the longstanding nature of the Applicant’s disability. However, the improvement in prognosis and treatments identified in Dr Ewer’s report do warrant a fresh look at whether these interventions could change the trajectory of the Applicant’s impairments.[19]        

    [19] See rule 6.9.

11. In reaching this conclusion, I have also considered the objects and principles of the NDIS Act,[20] including that people with disability should be supported to receive supports outside the NDIS, and be assisted to coordinate these supports with the supports provided under the NDIS.[21] As well as, the need to adopt an insurance-based approach[22] and ensure the financial sustainability of the Scheme,[23] and the need for interaction between mainstream services and the NDIS.[24]

    [20] See National Disability Insurance Agency v WRMF [2020] FCAFC 79 at paragraph 138.

    [21] NDIS Act section 4(14). 

    [22] NDIS Act section 3(2)(b).

    [23] NDIS Act section 3(3)(b).

    [24] NDIS Act section 3(3)(d).

12. In relation to section 24, I am not satisfied that the Applicant, based on the current information, is likely to require the support of NDIS for her lifetime. It is yet to be seen whether the significant improvements indicated by Dr Ewer can be achieved given the Applicant’s longstanding impairments. However, it is possible that the Applicant’s impairments could be improved to a point where support from the NDIS is no longer required. Having reached that conclusion, I do not need to go through the other factors in section 24 and do not need to consider whether the Applicant currently has a substantially reduced functional capacity.     

13. I acknowledge the Respondent’s assistance in arranging the second report from Dr Ewer. When Dr Ewer says that Ms Jones has a number of unhelpful personality traits,[25] in my view, this is an understatement. Ms Jones was disruptive and disrespectful throughout the hearing. I considered whether the Applicant’s conduct amounted to an abuse of process.[26] However, I consider that the Applicant’s behaviour is likely to be related to her Complex PTSD.[27] I consider that efforts to manage this behaviour during the hearing are a reasonable adjustment for the Applicant’s disability. I am sorry that the Respondent and its representatives were subject to the Applicant’s disruptive and abusive conduct. I am also sorry that the Tribunal process was distressing for the Applicant. I will be considering the Applicant’s feedback to improve future hearings that I am involved in.

    [25] Report of Dr Ewer, 26 February 2024, page 13.

    [26] AAT Act section 42B(1)(c).

    [27] See the description of Complex Post-traumatic Stress Disorder (PTSD) symptoms at

14. Overall, having considered the information before the Tribunal, the parties’ submissions, the NDIS Act, Rules, and evidence provided during the hearing, I have concluded that it is appropriate for early intervention support to be provided by the NDIS. Early intervention supports will give the Applicant the best opportunity to access psychosocial recovery services. In turn, early intervention may mean that the Applicant’s future needs for NDIS supports are reduced. 

    Conclusion

15. The Tribunal sets aside the decision under review and remits the matter for reconsideration, with a direction that the Applicant meets the early intervention requirements for access to the National Disability Insurance Scheme as set out in section 25 of the National Disability Insurance Scheme Act 2013 (Cth).

    I certify that the preceding 15 (fifteen) paragraphs are a true copy of the reasons for decision of Member J Toohey.

    …………………[SGD]………………
    Associate

    Dated: 30 May 2024

    Date of Hearing:  23 May 2024  

    Counsel for the Respondent:  Ms Josephine Battiste

    Solicitor for the Respondent:  Mr Stephen Warren