Jourfian and National Disability Insurance Agency

[2020] AATA 1883

Jourfian and National Disability Insurance Agency [2020] AATA 1883 (23 June 2020)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number:          2019/4873

Re:Javad Jourfian

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:23 June 2020

Place:Sydney

The decision under review is affirmed.

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

Dr L Bygrave, Member

CATCHWORDS

NATIONAL DISABILITY INSURANCE SCHEME – access – back injury – depression – whether the applicant meets the disability requirements – permanency – substantial reduction in functional capacity – whether the applicant needs the NDIS for life – early intervention requirements – decision under review affirmed

LEGISLATION

National Disability Insurance Scheme Act 2013 (Cth)

National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)

CASES

Mulligan and National Disability Insurance Agency [2015] AATA 974

Mulligan v National Disability Insurance Agency [2015] FCA 544

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634

SECONDARY MATERIALS

Operational Guideline – Access to the NDIS

REASONS FOR DECISION

Dr L Bygrave, Member

23 June 2020

INTRODUCTION

1. The applicant, Mr Javad Jourfian, made his first application to become a participant in the National Disability Insurance Scheme (the NDIS) on 7 March 2017. On 15 March 2017, a delegate of the Chief Executive Officer (CEO) of the National Disability Insurance Agency (the NDIA) determined that Mr Jourfian did not meet the access criteria specified in sections 21–25 of the National Disability Insuran­ce Scheme Act 2013 (Cth) (the NDIS Act).

2. On 9 August 2018, Mr Jourfian made his second application to become a participant in the NDIS. A delegate of the CEO of the NDIA decided on 21 August 2018 that, based on the information provided, Mr Jourfian did not meet the criteria in section 24 of the NDIS Act.

3. Mr Jourfian requested an internal review and, on 17 June 2019, a delegate of the CEO of the NDIA affirmed that Mr Jourfian did not satisfy the access criteria in either sections 24 or 25 of the NDIS Act (the internal review decision). On 10 July 2019, the NDIA advised Mr Jourfian in writing of the internal review decision.

4. On 13 August 2019, Mr Jourfian made an application for review of the internal review decision to the NDIS Division of the Administrative Appeals Tribunal (the Tribunal). The Tribunal has jurisdiction to review the internal review decision pursuant to section 103 of the NDIS Act.

5. The matter was heard by the Tribunal on 26 May 2020 by conference telephone. Mr Jourfian attended the hearing and gave evidence assisted by an interpreter of the Farsi language.

   RELEVANT LEGISLATION

6. The Parliament of Australia expressly provided objects and principles in the NDIS Act to give guidance on the interpretation of the statute. The objects of the NDIS Act are set out in section 3 and include inter alia:

   ·giving effect to Australia’s obligations under the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006 ([2008] ATS 12);

   ·supporting the independence and social and economic participation of people with disability;

   ·enabling people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports; and

   ·facilitating the development of a nationally consistent approach to the access to, and the planning and funding of, supports for people with disability.

7. Paragraph 3(3)(b) of the NDIS Act also provides that, in giving effect to the objects of the Act, regard is to be had to the need to ensure the financial sustainability of the NDIS.

8. The general principles guiding actions under the NDIS Act are contained in section 4 and include inter alia:

   ·affirming that people with disability should be supported to participate in and contribute to social and economic life to the extent of their ability;

   ·acknowledging that people with disability should be supported to receive reasonable and necessary supports; and

   ·promoting positive personal and social development of people with disability.

9. Under subsection 209(1) of the NDIS Act, the Minister may make rules prescribing matters under the Act. Relevant to this matter, the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (the Participant Rules) also form part of the legislation.

10. Operational Guidelines written by the CEO of the NDIA 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: Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[1979] AATA 179; (1979) 2 ALD 634.

    The access criteria

11. To become a participant in the NDIS, Mr Jourfian must satisfy the access criteria, which are summarised 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).

12. There is no dispute that Mr Jourfian meets the age requirements in section 22 and the residence requirements in section 23 of the NDIS Act. The issue in dispute, and therefore the issue for determination by the Tribunal, is whether Mr Jourfian meets the access criteria as set out in section 24 of the NDIS Act (disability requirements) or in section 25 of the NDIS Act (early intervention requirements). I note the alternative access criteria, which are set out in subsection 21(2) of the NDIS Act, are not relevant to this matter.

13. Sections 24 and 25 of the NDIS Act state:

    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.

    25 Early intervention requirements

    (1)       A person meets the early intervention requirements if:

    (a)the person:

    (i)     has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent; or

    (ii)    has one or more identified impairments that are attributable to a psychiatric condition and are, or are likely to be, permanent; or

    (iii)   is a child who has developmental delay; and

    (b)the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person’s future needs for supports in relation to disability; and

    (c)the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by:

    (i)     mitigating or alleviating the impact of the person’s impairment upon the functional capacity of the person to undertake communication, social interaction, learning, mobility, self‑care or self‑management; or

    (ii)    preventing the deterioration of such functional capacity; or

    (iii)   improving such functional capacity; or

    (iv)   strengthening the sustainability of informal supports available to the person, including through building the capacity of the person’s carer.

    Note:    In certain circumstances, a person with a degenerative condition could meet the early intervention requirements and therefore become a participant.

    (2)       The CEO is taken to be satisfied as mentioned in paragraphs (1)(b) and (c) if one or more of the person’s impairments are prescribed by the National Disability Insurance Scheme rules for the purposes of this subsection.

    (3)       Despite subsections (1) and (2), the person does not meet the early intervention requirements if the CEO is satisfied that early intervention support for the person is not most appropriately funded or provided through the National Disability Insurance Scheme, and is more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or through systems of service delivery or support services offered:

    (a)as part of a universal service obligation; or

    (b)in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.

14. The relevant Operational Guideline is the Operational Guideline – Access to the NDIS (the Access Operational Guideline); chapter 8 of the Access Operational Guideline is titled The Disability Requirements and chapter 9 is titled The Early Intervention Requirements.

    EVIDENCE

15. The evidence before the Tribunal comprises:

    ·reports from medical practitioners who have examined or treated Mr Jourfian; and

    ·Mr Jourfian’s oral evidence provided on 26 May 2020.

16. At the outset, I note there is very limited contemporary medical evidence about Mr Jourfian’s medical conditions and Mr Jourfian’s general practitioner, Dr Phuong Ngo, declined to give oral evidence at the Tribunal hearing. I further note that Mr Jourfian did not provide the Tribunal with any written statements about his current circumstances, such as his activities of daily living, despite the Tribunal directing him to file this information prior to his hearing. This means that I have relied primarily on Mr Jourfian’s oral evidence regarding his current medical treatment and functional capacity.

    The medical evidence

17. In an Access Request Form for the NDIS completed on 7 March 2017, Dr Ngo listed Mr Jourfian’s disabilities as:

    -    Back injury … crush vertebrae

    -    Cervical back pain with radiculopathy

    -    Depression[1]

    [1] Exhibit T-T4, page 14.

18. Dr Ngo reported current treatment for Mr Jourfian’s disabilities was counselling, medication and specialist review, and no other treatment was likely to remedy his impairment. Dr Ngo stated Mr Jourfian has a carer and does not require assistance for mobility, communication, social interaction or learning. However, Dr Ngo noted Mr Jourfian requires assistance with showering/bathing and ‘a seat in the shower’ as he ‘can’t stand for long period’, and needs assistance with self-management as he cannot do ‘any strenuous housework or activity’.[2]

    [2] Exhibit T-T4, pages 18–19.

19. In a second Access Request Form for the NDIS completed on 6 August 2018, Ms Maria Nepomuceno (physiotherapist) listed Mr Jourfian’s disabilities, functionality and treatment as follows:

    Chronic neck & low back pain from MVA 2009.

    Poor walking/standing/sitting endurance

    Unable to tolerate repetitive upper limb use.

    1. Ultrasound neck, upper back, low back; 2. Massage; 3. Core strengthening exercises; 4. Stretching upper back, lower limb [illegible] 5. Lower limb tension stretch.[3]

    [3] Exhibit T-T6, page 27.

20. Ms Nepomuceno stated ‘lumbar surgery if appropriate’ was further treatment likely to remedy Mr Jourfian’s impairment. She also noted Mr Jourfian requires the assistance of special equipment, which she described as a ‘single point stick’, to be mobile.[4] She advised Mr Jourfian did not require assistance with communication, social interaction, learning, self-care or self-management.

    [4] Exhibit T-T6, page 27.

21. Mr Jourfian filed with the NDIA and the Tribunal the following medical imaging scans:

    ·A CT of his lumbo-sacral spine dated 29 June 2009 by Dr Shane Connolly (radiologist) that concluded there ‘are superior end plate compression fractures of the bodies of L1 and L3’ and ‘[s]mall posterior disc bulges lower lumbar spine’.[5]

    ·An x-ray report by Dr Caitlin Kapoor (radiologist) dated 20 July 2009 that noted his thoracic spine had ‘[m]ulti-level disc degenerative changes’ and his chest was ‘[n]ormal’.[6]

    ·An MRI report of his lumbar spine and lower thoracic spine by Dr Lavier Gomes (radiologist) dated 26 August 2009 that concluded:

    At L5/S1, there is a broad-based disc bulge with a right paracentral disc protrusion. The rights S1 nerve root is in close apposition to this disc bulge in the lateral recess and is likely to be impinged upon on weight-bearing. Mild disc bulge at L4/5, as described. There are compression fractures of L1 and L3 likely to be related to the trauma.[7]

    ·An x-ray of his chest on 15 February 2011, which found degenerative change present in his thoracic spine and his lung fields are ‘clear’.[8]

    ·An x-ray report of his right knee on 8 May 2019 by Dr S Kariappa (radiologist) that concluded there were ‘[m]ild degenerative changes’.[9]

    [5] Exhibit A7.

    [6] Exhibit T-T6A.

    [7] Exhibit T-T6B, page 33.

    [8] Exhibit A6.

    [9] Exhibit T-T9.

22. Mr Jourfian also filed with the NDIA and the Tribunal part of a medical report by Dr Martha Baz (occupational physician) dated 1 November 2013.[10] Dr Baz completed a detailed assessment of Mr Jourfian and his medical history for the purpose of granting disability support pension to Mr Jourfian. The report by Dr Baz provided a history of Mr Jourfian sustaining a low back injury when he was hit by a car on the way to work in 2009. Dr Baz noted that Mr Jourfian had not worked since this incident although he is a qualified chef and had previously been employed in hospitality.

    [10] This report is at Exhibit T-T6C and is missing pages 2, 4, 6 and 8 onwards. The issue of the missing pages was raised with Mr Jourfian at the hearing, but he was unable to provide a complete copy of the report.

23. Dr Baz diagnosed Mr Jourfian with compression fractures at the L1 and L3 with lumbosacral disc degeneration, and major depression. She summarised Mr Jourfian’s medical conditions and treatment as follows:

    The records, and history, show Mr Jourfian was involved in a motor vehicle accident on 26.6.09, in which he was struck by a car while crossing the road, sustaining injuries to the low back, face and head. There is a history [of] back pain from that time, and contemporaneous imaging studies showing compression fractures at of [sic] L1 and L3, with wedging and disc bulges at L3/4, L4/5 and L5/S1.

    He was reviewed by a neurosurgeon in 2009, evidenced by an invoice, but the report is not available. The records show from November 2009 he had rehabilitation, including physical therapy, exercise, and medication, and no surgery. It is concluded that no surgery was indicated, and rehabilitation was the recommended management.

    The current clinical assessment indicates the possibility of further degenerative spine disease, with possible nerve root compression, and possible spondylolisthesis, warranting an updated neurosurgical review.

    His psychiatric condition is related to the low back pain, and its social and vocational sequelae. The records show this condition has been diagnosed and treated since 2009: management is ongoing with medication and counselling/CBT. Adjustment disorder with depressed mood was diagnosed in 2010. The psychologist notes deterioration in 2011 and diagnoses Major Depression currently. The psychiatrist advises that the depressive disorder is adversely impacted by the lumbar spine condition and its vocational consequences. Both conditions are now chronic and resistant to effective therapy.[11]

    [11] Exhibit T-T6C, page 37.

24. In view of the limited medical evidence provided by Mr Jourfian, the NDIA summonsed and filed medical records prior to the Tribunal hearing. Mr Jourfian’s medical records included the following relevant documents:

    ·Clinical notes by general practitioners at the medical practice attended by Mr Jourfian dating from 21 May 2009 to 4 November 2019 that record his:

    oback injury, on-going back pain and treatment including medication, hydrotherapy, physiotherapy and exercise; and

    odiagnosis of depression, and relevant treatment including counselling and anti-depressant medication.

    ·Specialist reports by Dr Andrew Kam (neurosurgeon) dated 1 September 2009 and 7 January 2010, and Dr Jacqueline McMaster (neurosurgeon) dated 24 November 2009:

    oOn 1 September 2009, Dr Kam stated:

    I have advised [Mr Jourfian] to adopt a conservative approach a little longer. I have given him a prescription for Lyrica to see if this will improve his symptoms further. Failing this, he has been advised about the possibility of undergoing a cortisone injection before considering any sort of surgical solution.[12]

    [12] Exhibit TB, page 380.

    oThe report by Dr McMaster on 24 November 2009 set out that she arranged for Mr Jourfian to have a ‘right S1 peri-radicular injection’.[13]

    [13] Exhibit TB, page 381.

    oOn 7 January 2010, Dr Kam stated that the ‘cortisone injection that [Mr Jourfian] had only lasted for 3 days’ and ‘the role of surgery was briefly discussed but at ‘this stage he has not made any firm decisions regarding surgery’.[14]

    [14] Exhibit TB, page 382.

    ·Rehabilitation reports completed by Mr Peter Emery (exercise physiologist) dated 11 March 2010, 24 March 2010, 16 April 2010, 5 May 2010 and 10 May 2010.

    ·Reports of Ms Fe Limjap (psychologist) dated 12 March 2010, 4 June 2014, 20 February 2015 and 23 June 2016.

    oIn her report dated 12 March 2010, Ms Limjap diagnosed Mr Jourfian with an ‘Adjustment disorder with mixed anxiety and depressed mood’ treated by ‘combined psychotherapy and medications’.[15]

    oThe most recent report of Ms Limjap dated 23 June 2016 briefly set out that Mr Jourfian had been in her care for four years and he suffers from major depression.

    ·A report by Dr D Pourmand (senior consultant psychologist) dated 1 December 2014 that noted Mr Jourfian had ‘been referred to the Trans-cultural Mental Health Centre due to adjustment disorder (depressive features) and back injury’, and his clinical manifestation is ‘exacerbated by multiple psychosocial stressors; including inability to work, limited financial situation and inappropriate housing condition’.[16]

    ·Reports from Westmead Hospital Pain Clinic dated 20 October 2014, 9 February 2015, 4 May 2015, 27 October 2015, 23 February 2016, 27 September 2016 and 11 April 2017.

    oThe report on 11 April 2017 completed by Dr Alister Ramachandran (staff specialist – pain medicine) noted a decision to discharge Mr Jourfian from the pain clinic and advised Mr Jourfian to ‘continue to do his hydrotherapy and physiotherapy sessions’, ‘engage in active physiotherapy through a graded home exercise programme’ and ‘continue to see his psychologist on a regular basis’ due to ‘the importance of addressing his mood and pain simultaneously’.[17]

    ·Ms Nepomuceno’s clinical notes dated 25 June 2019 to 4 November 2019.[18]

    [15] Exhibit TB, pages 369–370.

    [16] Exhibit TB, page 419.

    [17] Exhibit TB, page 393.

    [18] Other records by Ms Nepomuceno are set out in the clinical records from the medical practice attended by Mr Jourfian.

    The evidence of Mr Jourfian

1. Mr Jourfian is 58 years old. He is married with three children and resides in Sydney, New South Wales (NSW). He has been in receipt of disability support pension since 20 July 2012.[19] Mr Jourfian’s wife receives carer payment as his carer.

   [19] Exhibit A8.

2. At the Tribunal hearing, Mr Jourfian provided oral evidence about his circumstances. Mr Jourfian said he has continued to have ‘trouble’ with his back since being hit by a car in June 2009. He sleeps on a thin mattress on the floor and is able to stand up from, and get down to, the mattress/floor on his own. He undertakes activities of self-care such as dressing and showering without assistance, although he uses a seat in the shower and has access to a handrail. He is able to prepare tea or coffee and assists his wife with grocery shopping as he can lift up to three kilograms. He does not assist his wife with household chores such as cooking meals or cleaning the house, but it was not clear whether this is due to him being unable to undertake these tasks.

3. Mr Jourfian can drive a car for 10 minutes and said he drives his youngest daughter to the nearby train station each day. Mr Jourfian is able to organise his medical appointments by telephone. He attends medical appointments alone; this involves him walking approximately 200 metres to the bus stop, sitting on a bus for eight to 10 minutes and then walking a further 150 metres.

4. Mr Jourfian said he completes exercises recommended by his physiotherapist to ease his pain and strengthen his back, and goes for a walk every day. He was able to walk for one kilometre until approximately one year ago when he began to experience pain in his right knee. He now walks 700 metres to 800 metres every day, although he sometimes needs to rest for several minutes due to pain in his knee. He does not use a walking stick and no walking aids have been recommended by his general practitioner.

5. Mr Jourfian explained that he attended appointments with Dr Kam in 2009 for specialist review of his back pain and attended the pain clinic at Westmead Hospital for several years until 2017. He said there was no current plan for him to have surgery and ongoing treatment for his back includes pain medication, daily exercise and walking, attending physiotherapy appointments with Ms Nepomuceno every three to four weeks, and hydrotherapy.

6. Mr Jourfian told the Tribunal that he continues to take anti-depressant medication but has not seen Ms Limjap or received any other counselling for several years. He finds it difficult to leave his house and to socially interact with other people due to their ‘reactions’ about the car accident.

7. When asked by the Tribunal about the supports he is seeking from the NDIS, Mr Jourfian responded that he was unclear about the purpose of the NDIS and available services but said he wanted assistance with ‘strenuous housework’.

   CONSIDERATION

8. While I note that Mr Jourfian’s summonsed medical records refer to medical conditions other than his back injury and depression, none of these other conditions have been listed in either of his Access Request Forms to the NDIS. Mr Jourfian told the Tribunal about his right knee pain and hearing loss; however, he said he has not had specialist review or been prescribed treatment for either of these conditions.

9. In view of the extremely limited medical evidence, I only consider Mr Jourfian’s conditions of back injury and depression in relation to the access requirements in sections 24 and 25 of the NDIS Act.

   The disability requirements

10. Subsection 24(1) of the NDIS Act is satisfied if Mr Jourfian meets all five requirements specified in paragraphs 24(1)(a) to (e). I now consider each of these requirements.

    Does Mr Jourfian have a disability within the meaning of paragraph 24(1)(a)?

11. Consistent with Mortimer J’s decision in Mulligan v National Disability Insurance Agency [2015] FCA 544 at [15] to [16], Chapter 8.1 of the Access Operational Guideline includes the following paragraphs:

    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).

12. The medical evidence, which includes medical imaging scans and reports from specialists, shows Mr Jourfian suffered an injury to his back when he was hit by a car in June 2009. Reports by Mr Jourfian’s general practitioner, Dr Ngo, and his psychologist, Ms Limjap, also show he has been diagnosed with depression since 2010. I am satisfied that the medical evidence and the oral evidence of Mr Jourfian establish that these conditions have reduced his physical and mental function.

13. I therefore find that Mr Jourfian’s back injury and his depression are disabilities within the meaning of paragraph 24(1)(a) of the NDIS Act.

    Are Mr Jourfian’s impairments permanent within the meaning of paragraph 24(1)(b)?

14. The Participant Rules provide the following guidance in considering when an impairment is permanent or 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.

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

    5.6 An impairment may require medical treatment and review before a determination can be made about whether the impairment is permanent or likely to be permanent. The impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated (even though the impairment may continue to be treated and reviewed after this has been demonstrated).

    5.7 If an impairment is of a degenerative nature, the impairment is, or is likely to be, permanent if medical or other treatment would not, or would be unlikely to, improve the condition. [emphasis added]

15. The relevant issue for the Tribunal is whether there are ‘any known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy’ Mr Jourfian’s back injury and/or his depression.

16. Mr Jourfian told the Tribunal that his back injury is currently treated with pain medication, daily exercise and walking, physiotherapy sessions and hydrotherapy. I note that these treatments are consistent with the recommendations in the final report from Westmead Hospital Pain Clinic dated 11 April 2017.

17. However, there is inconsistent evidence before the Tribunal about whether surgery could reduce Mr Jourfian’s back pain and assist his functionality. In the Access Request Form completed by Ms Nepomuceno, she stated ‘lumbar surgery’ may be appropriate treatment to remedy Mr Jourfian’s back injury. ‘Interaction notes’ made by the NDIA on 9 July 2019 also record Mr Jourfian saying he had seen a surgeon regarding ‘further intervention relating to back pain’ and had been ‘recommended to lose weight, stop smoking and attend physiotherapy and hydrotherapy before surgery’.[20] The Tribunal notes that Dr Kam referred to the possibility of surgery in his report on 7 January 2010. At the Tribunal hearing, Mr Jourfian said he has not seen Dr Kam (or another neurosurgeon) since January 2010 and is concerned about the risks associated with surgery, which he had discussed with Dr Ngo. He stated that there is no current plan for him to have surgery. Most relevantly, there is no report from Dr Ngo – or any specialist – about whether surgery could remedy Mr Jourfian’s back injury.

    [20] Exhibit T-T12, page 48.

18. In the absence of consistent medical evidence and recent specialist review, I cannot be satisfied that surgery is not a treatment to remedy Mr Jourfian’s back injury. This means I am not satisfied that Mr Jourfian’s back injury is permanent within the meaning of paragraph 24(1)(b) of the NDIS Act.

19. The clinical reports of Dr Ngo and Mr Jourfian’s evidence confirmed that he continues to take anti-depressant medication for his depression. Mr Jourfian told the Tribunal he has not seen Ms Limjap or received counselling for several years. I note the most recent report from Ms Limjap dated 23 June 2016 is a very brief ‘letter of support’ for Mr Jourfian.

20. In view of Mr Jourfian not having regular psychological support, despite this treatment being recommended by Westmead Hospital Pain Clinic, I am not satisfied that Mr Jourfian is accessing all ‘known, available and appropriate evidence-based…treatments that would be likely to remedy’ his depression. For this reason, I am not satisfied Mr Jourfian’s impairment of depression is permanent in accordance with paragraph 24(1)(b) of the NDIS Act.

    Do Mr Jourfian’s impairments result in substantially reduced functional capacity to undertake one or more of the following activities: communication, social interaction, learning, mobility, self-care and self-management within the meaning of paragraph 24(1)(c)?

21. To comply with paragraph 24(1)(c) of the NDIS Act, Mr Jourfian must demonstrate that his impairments result in substantially reduced functional capacity to undertake any one of the activities specified in subparagraphs (i) to (vi).

22. Paragraph 5.8 of the Participant Rules provides:

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

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

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

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

23. Further guidance is set out in chapter 8.3.1 of the Access Operational Guideline:

    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 in original]

24. In Mr Jourfian’s Access Request Form for the NDIS on 7 March 2017, Dr Ngo reported that he does not require assistance for mobility, communication, social interaction or learning, but needs assistance with self-care (showering/bathing) and self-management (strenuous housework or activity). In contrast, Ms Nepomuceno stated in Mr Jourfian’s Access Request Form dated 6 August 2018, that he required assistance (a walking stick) for mobility but did not need assistance with communication, social interaction, learning, self-care or self-management.

25. Mr Jourfian’s evidence to the Tribunal was that he is able to walk 700 metres to 800 metres daily and he neither uses nor requires a walking stick. He provided many examples of independently completing daily activities of self-care and self-management, such as showering (albeit sometimes seated), dressing, making tea or coffee, driving for 10 minutes, organising medical appointments and travelling alone by bus to medical appointments. He said he assists his wife with grocery shopping and is able to carry up to three kilograms. While Mr Jourfian said he did not cook meals or undertake housework, there is no evidence before the Tribunal that he is unable to do these tasks. Relevantly, Mr Jourfian was unclear about the supports he wanted from the NDIS and was only able to advise that he would like help with ‘strenuous housework’, although household tasks are completed by his wife (who is also paid as his carer).

26. There is no evidence before the Tribunal that shows Mr Jourfian experiences substantially reduced functional capacity in relation to the activities of communication, social interaction, learning, mobility, self-care or self-management. This means I am not satisfied that Mr Jourfian meets the requirement in paragraph 24(1)(c) of the NDIS Act.

    Do Mr Jourfian’s impairments affect his capacity for social or economic participation within the meaning of paragraph 24(1)(d)?

27. Mr Jourfian has not participated in employment since he injured his back when he was hit by a car in June 2009. I also accept the very limited oral evidence of Mr Jourfian that his impairments of his back injury and depression have affected his capacity to engage in social activities.

28. I find Mr Jourfian meets the requirement in paragraph 24(1)(d) of the NDIS Act.

    Is Mr Jourfian likely to require support under the NDIS for his lifetime within the meaning of paragraph 24(1)(e)?

29. 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]).

30. As set out in paragraphs 42 and 44, I am not satisfied that Mr Jourfian’s conditions of back injury and depression are permanent. This means I cannot find that Mr Jourfian will require assistance under the NDIS for his lifetime.

31. I am satisfied that Mr Jourfian does not meet the requirement of paragraph 24(1)(e) of the NDIS Act.

    The early intervention requirements

32. The early intervention requirements are set out in section 25 of the NDIS Act. Chapter 9 of the Access Operational Guideline explains the purposes of the early intervention requirements as follows:

    Early intervention support is available to both children and adults who meet the early intervention requirements. The intention of early intervention is to alleviate the impact of a person’s impairment upon their functional capacity by providing support at the earliest possible stage. Early intervention support is also intended to benefit a person by reducing their future needs for supports.

33. I now consider whether Mr Jourfian meets the early intervention requirements.

    Does Mr Jourfian have a permanent impairment as set out in paragraph 25(1)(a)?

34. As set out in paragraphs 42 and 44 above, I am not satisfied Mr Jourfian’s conditions of back injury and depression are permanent. It follows that I find the requirement in paragraph 25(1)(a) of the NDIS Act is not met.

    Will the provision of early intervention support benefit Mr Jourfian as provided in paragraphs 25(1)(b) and (c)?

35. Paragraphs 25(1)(b) and (c) of the NDIS Act require the CEO of the NDIA to be ‘satisfied that provision of early intervention supports for the person is likely to benefit the person’ in various ways. Paragraph (b) requires a state of satisfaction that the provision of early intervention supports is likely to benefit the person by reducing the person’s future needs for supports in relation to disability. Paragraph (c) requires a state of satisfaction that the provision of early intervention supports is likely to benefit the person by mitigating or alleviating the impact of the person’s impairment, preventing the deterioration of functional capacity, improving functional capacity, or strengthening the sustainability of informal supports available to the person.

36. Paragraph 6.9 of the Participant Rules sets out the issues the CEO of the NDIA would consider in relation to whether the provision of early intervention supports is likely to benefit a person under paragraphs 25(1)(b) and (c) of the NDIS Act:

    6.9 In deciding whether provision of early intervention supports is likely to benefit the person in the ways mentioned in paragraphs 6.2(b) and (c) above, it is expected that the CEO would consider:

    (a)the likely trajectory and impact of the person’s impairment over time; and

    (b)the potential benefits of early intervention on the impact of the impairment on the person's functional capacity and in reducing their future needs for supports; and

    (c)evidence from a range of sources, such as information provided by the person with disability or their family members or carers. The CEO may also in some cases seek expert opinion.

1. The Access Operational Guideline at paragraph 9.3 states:

   9.3 Determining whether early intervention supports are likely to benefit the person

   The NDIA must be satisfied that the provision of early intervention supports (except for children with developmental delay) is likely to benefit the prospective participant by:

   ·     reducing the person's future needs for supports in relation to disability (section 25(1)(b)); and

   ·     achieving one or more of the following four outcomes:

   (i)     mitigating or alleviating the impact of the person's impairment upon the functional capacity of the person to undertake one or more activities (section 25(1)(c)(i)); or

   (ii)    preventing the deterioration of such functional capacity (section 25(1)(c)(ii));

   (iii)   improving such functional capacity (section 25(1)(c)(iii)); or

   (iv)   strengthening the sustainability of informal supports available to the person, including through building the capacity of the person's carer (section 25(1)(c)(iv)).

   When considering whether the provision of early intervention supports is likely to benefit the person, the NDIA should consider:

   ·     the likely trajectory and impact of the person's impairment over time (rule 6.9(a) of the Becoming a Participant Rules); and

   ·     the potential benefits of early intervention on the impact of the impairment on the person's functional capacity and in reducing their future needs for supports (rule 6.9(b) of the Becoming a Participant Rules); and

   ·     evidence from a range of sources, such as information provided by the prospective participant or their family members or carers. The NDIA may also in some cases seek expert opinion (rule 6.9(c)) of the Becoming a Participant Rules).

   When considering if a person is likely to benefit from early intervention supports, the NDIA may consider factors such as the time elapsed since the onset or diagnosis of the disability and whether there has been a recent, or impending, significant change in the person's impairment or disability.

2. There is no medical evidence before the Tribunal concerning potential benefits of early intervention on the impact of Mr Jourfian’s impairments on his functional capacity and reducing his future needs for supports. I find there is insufficient evidence to be satisfied that early intervention supports will be likely to benefit Mr Jourfian in the ways specified in paragraphs 25(1)(b) and (c) of the NDIS Act.

   Is early intervention support most appropriately funded or provided through the NDIS in accordance with subsection 25(3)?

3. Subsection 25(3) operates in circumstances where, even if Mr Jourfian meets subsections 25(1) and (2) of the Act, he may not meet the requirements of early intervention support because the support is not most appropriately funded or provided through the NDIS and is more appropriately funded or provided through other general systems of service delivery or support services, such as through the health system.

4. Based on the medical evidence, I am satisfied that Mr Jourfian’s impairments of back injury and depression are health conditions. This means that any supports are most appropriately delivered through the health system. I also make this finding noting that Mr Jourfian is in receipt of disability support pension and his wife is paid carer payment.

5. Accordingly, I find that Mr Jourfian does not fulfil the early intervention requirements to enable him to become a participant in the NDIS.

   CONCLUSION

6. As I am satisfied Mr Jourfian does not meet access criteria in either section 24 or section 25 of the NDIS Act, I find the internal review decision made on 17 June 2019 is correct.

   DECISION

7. The decision under review is affirmed.

I certify that the preceding 67 (sixty-seven) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

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

Associate

Dated: 23 June 2020

Date of hearing:	26 May 2020
Applicant:	In person
Counsel for the Respondent:	Ms Reg Graycar
Solicitors for the Respondent:	Sparke Helmore Lawyers