Kakakios and National Disability Insurance Agency (NDIS)
[2025] ARTA 184
•6 March 2025
Kakakios and National Disability Insurance Agency (NDIS) [2025] ARTA 184 (6 March 2025)
Applicant/s: Maria Kakakios
Respondent: National Disability Insurance Agency
Tribunal Number: 2022/5887
Tribunal:Dr Sevda Clark, General Member
Place:Sydney
Date:6 March 2025
Decision:The Tribunal affirms the decision under review.
.................................[SGD].......................................
Dr Sevda Clark, General Member
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – access criteria – psychosocial permanency – whether the Applicant is likely to require support under the NDIS for her lifetime if she has approval for a My Aged Care Package – whether early intervention requirements are met – decision affirmed
Legislation
Administrative Review Act 2024 (Cth) ss 9, 12
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act2024 (Cth)
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 (Cth) s 126(1)(a)National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)
National Disability Insurance Scheme Act 2013 (Cth) ss 21, 21(1), 22, 23, 24(1), 24(1)(a)-(e), 25, 25(1)(a)-(b), 25(3), 27, 109(1)Cases
Mulligan v National Disability Insurance Agency [2015] FCA 544
National Disability Insurance Agency v Foster [2023] FCAFC 11
NRNK and National Disability Insurance Agency [2024] AATA 110Sutherland and National Disability Insurance Agency [2024] AATA 411
Kelly v National Disability Insurance Agency [2024] FCA 1462
JZLT and National Disability Insurance Agency [2022] AATA 541
Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[1979] AATA 179; (1979) 2 ALD 634; (1979) 2 ALD 60.Secondary Materials
National Disability Insurance Agency, Our Guidelines – Becoming a Participant – Applying to the NDIS, (Web Page) align="center">Statement of Reasons
INTRODUCTION
This decision concerns a refusal of an application for access to the National Disability Insurance Scheme (NDIS) by Mrs Maria Kakakios, the Applicant. Mrs Maria Kakakios is a 67-year-old woman who was residing in Sydney with her husband and daughter until her extended hospital admission from July 2024. Since filing her application for review in 2022 with the Administrative Appeals Tribunal (AAT), now the Administrative Review Tribunal (ART, the Tribunal), the Applicant’s health has deteriorated, particularly since her hospital admission. Mrs Kakakios participated at the hearing by video link from her hospital bed in Sydney Eye Hospital. She is much loved by her husband Mr Ilias Kakakios and her daughter Ms Jennifer Kakakios who have both been her carers. Ms Kakakios[1] – represented the Applicant in the process of external merits review before the Tribunal.
[1] Statement of Jennifer Kakakios, p 902 [3].
The Applicant was born in 1957. At the time of making her access request,[2] she was aged 64 years. She seeks review of a decision made by the National Disability Insurance Agency (Respondent; Agency), which affirmed an earlier decision to refuse her request for access to the NDIS under provisions of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act; the Act).[3]
[2] Applicant’s Statement of Facts, Issues and Contentions (‘the ASOFIC’), p 4.
[3] National Disability Insurance Scheme Act 2013 (Cth), (‘NDIS Act’).
The Applicant is on the disability support pension[4] and has experienced long-standing symptoms as a result of lumbar spondylarthritis (lumber spine osteoarthritis) and advanced osteoarthritis in her hips and knees in addition to long-standing complex psychological conditions. On 19 March 2022, she made a request to become a participant in the NDIS, seeking access on the basis of the following conditions: obsessive compulsive disorder; anxiety; depression; hoarding disorder; and post-traumatic stress disorder and secondary diagnoses of lumbar spondylarthritis (lumber spine osteoarthritis) and advanced osteoarthritis in her hips and knees; gout; chronic physical pain; obesity and diabetes.
[4] T-Documents 1 (‘T’), Review application to the Tribunal, p 9.
The Tribunal’s jurisdiction to undertake this review arises under section 12 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act),[5] operating in conjunction with section 103 of the NDIS Act.[6]
[5] Administrative Review Tribunal Act 2024 (Cth) s 12, (‘ART Act’).
[6] NDIS Act (n 3) s 103.
THE DECISION UNDER REVIEW
On 2 March 2022, a delegate of the Chief Executive Officer (the delegate) of the Agency did not grant the Applicant access to the NDIS on the basis that she did not meet either the disability requirements in section 24 or the early intervention requirements under section 25 of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) (the original decision).[7]
[7] Ibid s 24-25.
An internal reviewer confirmed the decision on 21 June 2022.
On 25 December 2021, the Applicant applied to the AAT for review of the internal review decision. In explaining the reasons, she contends that the decision to refuse her access to the NDIS was wrong. The Applicant stated: ‘The NDIS Act and NDIA policy were applied inaccurately with marked omissions, resulting in inaccurate findings, in the applicant’s circumstances’ and proceeded to list her reasons.[8]
[8] T1, AAT Application for Review of Decision, p 6.
On 14 October 2024, the AAT, to which this application was brought, was replaced by the ART. An application for review by the AAT that was not finalised before 14 October 2024 is taken to be an application for review by the ART, which has the authority to continue and finalise any aspect of the review that was not completed by the AAT: Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act2024 (Cth).[9]
[9] Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act2024 (Cth).
This matter has now been at the Tribunal for over almost three years in case conferences and directions hearings. There have been various postponements and adjournments, principally because of the Applicant’s changing circumstances and the need for further evidence. Ms Jennifer Kakakios has participated in numerous Tribunal events in a period during which she has been supporting the Applicant. The Applicant was filing documents and evidence with the Tribunal until the morning of the hearing.
However, exercising its statutory duty set out in section 9 of the Administrative Review Tribunal Act 2024 (Cth),[10] the Tribunal decided that to be, amongst other things, fair, just, economical, informal, and quick, that it is time for this matter to be decided and finalised. I do this cognizant of the fact that the Applicant has been a long-stay social inpatient in Sydney Eye Hospital. Indeed, the Applicant’s hospital room became part of the hearing room. Another relevant factor is the Applicant’s husband and daughter have stated their inability to continue caring for her,[11] as discussed below, and therefore, Mrs Kakakios’ need for a decision so that her future support arrangements for her to live a life with dignity can be determined.
[10] ART Act (n 5) s 9.
[11] EB A46, Statement of Ilias Kakakios, p 906 [9–12]; EB A45, Statement of Jennifer Kakakios, p 904 [16]; EB A44, Statement of Maria Kakakios, pp 900–901 [29–30].
The Applicant and Respondent (collectively ‘the parties’) have participated in several case conferences and telephone directions hearings since 2022 in which evidentiary gaps were identified, as well as suggestions as to how these evidentiary gaps could potentially be responded to by the Applicant. The Tribunal is unaware of the content of discussions which took place without prejudice in case conferences facilitated by a Tribunal Conference Registrar. The Tribunal has, however, had the benefit of assessments, reports and other material which have been filed with the Tribunal resulting from such discussions during case conference events and from telephone directions hearings. Many of these were submitted and withdrawn at various points during the history of the matter before the Tribunal.
The parties appeared before the Tribunal at a hearing on 2 December 2024 and 3 December 2024 to give evidence and present arguments. The Applicant was represented by her daughter, Ms Jennifer Kakakios, who has a law degree. The Respondent was represented by Counsel, Ms Amy Douglas-Baker, briefed by Mr Brendan O’Brien. The proceedings were conducted by video using the Microsoft Teams platform. The Applicant participated from her room at hospital. Oral evidence was provided at the hearing by the Applicant Mrs Kakakios, her husband Mr Ilias Kakakios, her daughter Ms Jennifer Kakakios and occupational therapist Ms Catherine Cummings.
LEGISLATIVE FRAMEWORK
The National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 (Cth) (Amending Act) commenced on 3 October 2024.[12]
[12] National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 (Cth) ('Amending Act').
Pursuant to s 126(1)(a) of the Amending Act,[13] the amendments to ss 24, 25, 26 and 27 of the Act do not apply to access requests made before the commencement of the Amending Act. The effect of this provision is that those amendments do not apply to the Applicant’s review application before the Tribunal with respect to her access request made before the Amending Act.
[13] Ibid s 126(1)(a).
As a result, s 24 of the NDIS Act,[14] as it was prior to the commencement of the Amending Act will be considered. It provided as follows.
[14] NDIS Act (n 3) s 24.
The access criteria
To become a participant in the NDIS, the Applicant must satisfy the access criteria set out in subsection 21(1) of the Act,[15] which provides:
[15] Ibid s 21(1).
(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).
Section 22[16] provides as follows:
A person meets the age requirements if the person was aged under 65 when the access request in relation to the person was made.
[16] Ibid s 22.
The Applicant applied for access to the scheme before turning 65, though she was 67 years old at the time of the hearing. There is no dispute the Applicant satisfies the age requirements and the residence requirements. I must decide whether the Applicant satisfies the access criteria in section 24 (‘the disability requirements’)[17] or section 25 (‘the early intervention requirements’) of the Act.[18]
[17] Ibid s 24.
[18] Ibid s 25.
The Disability Requirements
Section 24 of the Act,[19] as it was before the commencement of the Amending Act states:
[19] Ibid s 24.
(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 the person has one or more impairments to which a psychosocial disability is attributable; 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 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.
(3)For the purposes of subsection (1), an impairment or impairments that are episodic or fluctuating may be taken to be permanent, and the person may be taken to be likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the episodic or fluctuating nature of the impairments.
The Early Intervention Requirements
If the Applicant does not meet the disability requirements, I will consider whether she meets the early intervention requirements set out in section 25 of the Act,[20] which state as follows:
[20] Ibid s 25.
(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:
(v)as part of a universal service obligation; or
(vi)in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
The Minister may, under subsection 209(1) of the Act,[21] make rules prescribing matters. Section 27 confers a specific rule-making power on the Agency to make rules relating to the disability requirements under s 24 and the early intervention requirements under s 25.[22] The rules relevant to this matter are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (‘the Access Rules’), which form part of the legislation.[23]
[21] Ibid s 109(1).
[22] Ibid s 27.
[23] National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (‘the Access Rules’).
The NDIS Operational Guidelines also assist in making decisions in accordance with the Act. Operational Guidelines represent government policy and should be applied by the Tribunal unless there is good reason not to do so.[24] The relevant Operational Guideline is Our Guidelines – Becoming a participant – Applying to the NDIS (‘the Operational Guideline’).[25] I also note that the NDIA has updated its operational guidelines again. I have had regard to the Operational Guideline for access decisions which applies to requests made prior to 3 Oct 2024, which was issued on 14 October 2024.[26]
[24] Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[1979] AATA 179; (1979) 2 ALD 634; (1979) 2 ALD 60.
[25] National Disability Insurance Agency, Our Guidelines – Becoming a participant – Applying to the NDIS (the ‘Operational Guideline’) (1 August 2022) (Web Page) < There is a separate guideline for access decisions which applies to requests made on and after 3 Oct 2024, which was issued on 10 December 2024.
Case law by the Federal Court is also instructive in determining the access criteria. In Mulligan, Mortimer CJ held that the legislation requires ‘a relatively high degree of precision by decision-makers … in assessing what a person can or cannot do. The assessment to be undertaken is avowedly functional and multifaceted.’[27] The Full Federal Court in Foster explained that the legislation requires that it is based on a functional, practical assessment of what a person can and cannot do.[28]
[27] Mulligan v National Disability Insurance Agency [2015] FCA 544 [55] (‘Mulligan’).
[28] National Disability Insurance Agency v Foster [2023] FCAFC 11 (‘Foster’).
Section 24 operates on the concept of ‘impairment’, which is generally understood as involving the loss of, or damage to, a physical, sensory, or mental function.[29] As such, as a threshold, it ‘revolves around the severity and permanency of the effects of the impairments experienced by a person, so as to justify the provision of the “reasonable and necessary supports” to which participants may be entitled, after assessment in accordance with Pt 2 of Ch 3 of the Act.’[30] This is consistent with the access criteria as an essential component of the NDIS being intended to reserve the supports, funding and autonomy it delivers to a subset of people with disability.
ISSUES
Disability Requirements
[29] NDIS Act (n 3) s 24.
[30] Mulligan [52].
Section 24(1)(a)
The Applicant has a disability attributable to physical impairments arising from lumbar spondylarthritis and advanced osteoarthritis in her hips and knees, which is not in dispute. Having regard to the evidence, I agree with this view. Therefore paragraph 24(1)(a) of the Act is met with respect to physical impairments.[31]
[31] NDIS Act (n 3) s 24(1)(a).
The parties are also in agreement that the Applicant has one or more impairments to which a psychosocial disability is attributable; these are: anxiety, depression, post-traumatic stress disorder (PTSD), obsessive compulsive disorder (OCD) and hoarding disorder. The Applicant has had chronic depression and anxiety and associated conditions for much of her adult life. In 2022, Specialist Psychiatrist and Associate Professor Anne Wand concluded on 3 August 2022 that the Applicant’s ‘psychiatric history is complex and longstanding, including obsessive-compulsive disorder (OCD hand-washing, cleanliness, order), anxiety, panic, and hoarding.’[32] The following year, Associate Professor Wand stated, ‘Maria has an anxious temperament, which becomes easily exacerbated and tips into panic attacks (and OCD in her younger years) when she is under stress’ and that ‘there were multiple and chronic sources of stress in Maria’s life with progressive disability.’[33] Based on the evidence before me, I agree with the decision by the Agency. Therefore, paragraph 24(1)(a) of the Act is met in respect of the Applicant’s psychosocial impairments.[34]
[32] EB A01, Report of A/Prof Anne Wand (Psychiatrist), p 406.
[33] EB S14, Dr Wand Letter to GP, p 1560.
[34] NDIS Act (n 3) s 24(1)(a).
The Delegate of the Agency was not satisfied that this criterion had been met for the Applicant’s listed conditions of peripheral oedema, obstructive sleep apnoea, renal impairment, fatty liver, hyperiroce, Vitamin D deficiency, lactose intolerance, atopic eczema, urticaria, fibroadenoma, chronic gastritis, hiatus hernia, dyspepsia, colonic polyp, reflux, diverticular disease and haemorrhoids. This remained the Respondent’s position.[35]
[35] RSOFIC [13–16].
The Applicant’s first Statement of Facts, Issues and Contentions (SOFIC) dated 2 September 2024 did not address these medical conditions as the basis for the review; these conditions were added to the Applicant’s revised SOFIC on 24 November 2024, 5 business days before the hearing.
On 19 December 2024, the Tribunal directed the Respondent to file a list of issues and matters in dispute, which was varied on 26 November 2024. On 28 November 2024, the Agency filed brief submissions on the List of Issues and Matters where the Agency listed the additional issues raised in the Applicant’s Additional Statement of Facts, Issues and Contentions dated 24 November 2024. The Agency submitted:
If the Applicant presses the Tribunal to determine the additional issues raised, the Respondent submits that it may be necessary for the hearing to be vacated or adjourned to allow the Respondent the opportunity to consider the issues and any available evidence or any gaps in the evidence, in relation to those issues.
Given the length of time the matter has been before the Tribunal, possible prejudice to the Respondent and the wish to prevent further delays to the matter being determined, the Tribunal made a section 53 order,[36] limiting the issues at the hearing to those in the Applicant’s 2 September SOFIC and provided oral reasons. Applicants have a reasonable opportunity to present their case, but this is not unlimited. This matter has been before the Tribunal since 2022; in the interests of procedural fairness and the need for a final hearing in this matter as expeditiously as possible, these issues were therefore not canvassed at the hearing.
[36] Section 53 reads: ‘Tribunal controls scope of review of decision: In a proceeding for review of a decision, the Tribunal may determine the scope of the review by limiting the questions of fact, the evidence and the issues that it considers.’
The parties are also in agreement that the Applicant has one or more impairments to which a psychosocial disability is attributable. These are: anxiety, depression, post-traumatic stress disorder (PTSD), obsessive compulsive disorder (OCD) and hoarding disorder.
Section 24(1)(b)
It is also not in dispute that Mrs Kakakios’ physical impairments are permanent.[37] The Applicant has had lumbar spondylarthritis and advanced osteoarthritis in her hips and knees for some years. In 2019, Orthopaedic Specialist Dr Solomon recommended hip replacement surgery and advised ‘there is no other treatment that will be effective’.[38] Three-and-a-half years later, Dr Solomon expressed his opinion that ‘the risk of hip replacement surgery is high and I agree with [the Applicant’s] preference not to have surgery’ and that ‘even with a hip replacement, her mobility would be extremely limited due to her knee arthritis as well’.[39] Based on the evidence before me, I agree with the decision by the Agency. Therefore paragraph 24(1)(b) of the Act is met in respect of the Applicant’s physical impairments.[40]
[37] RSOFIC [28].
[38] T18, Report, Dr Michael Solomon (Hip and Knee Surgeon), p 57.
[39] EB A13, Letter from Dr Michael Solomon to Dr Simon Symeou, p 662.
[40] NDIS Act (n 3) s 24(1)(c).
The first issue about which the parties disagree is whether the Applicant’s psychosocial impairments resulting from obsessive compulsive disorder (OCD) and hoarding disorder, are, or are likely to be, permanent. I must consider whether I am satisfied the Applicant has psychosocial impairments that are likely to be permanent.
Section 24(1)(c)
The Respondent accepts that the Applicant’s physical impairments result in substantially reduced functional capacity.[41] It is therefore not in dispute that Mrs Kakakios has substantially reduced functional capacity, or psychosocial function to undertake communication, social interaction, learning, mobility, self-care and/or self-management in relation to her physical impairments. There is no question that Mrs Kakakios performs most activities with difficulty and more slowly than she would without her physical impairments. Her functional capacity in the areas of mobility, self-care and social interaction is substantially reduced. During the course of the hearing, the Applicant was confined to her hospital bed;XXXhis is consistent with the evidence of the Applicant being confined to her armchair while still living at home before her hospital admission. This is summarised in Associate Professor Anne Ward’s report to the Applicant’s GP in 2022 of her ‘primary disability’ of Chronic multiple physical health issues … leading to very poor mobility, deconditioning and full dependence on others for assistance with all activities of daily living.’.[42]
[41] RSOFIC [41].
[42] EB A01, Report of A/Prof Anne Wand (Psychiatrist), p 406.
Therefore paragraph 24(1)(c) of the Act is met in respect of the Applicant’s physical impairments.[43]
[43] NDIS Act (n 3) s 24(1)(c).
If I am satisfied that the Applicant has one or more impairments to which a psychosocial disability is attributable that are likely to be permanent (s 24(1)(a)),[44] I must then consider whether I am satisfied the Applicant has psychosocial impairments that are likely to result in a substantially reduced functional capacity in any of the listed activities. The Respondent contends that though accepting the Applicant has impairments arising from depression or anxiety, these cannot be said to be permanent nor result in a substantially reduced functional capacity to undertake any of the following activities: communication, social interaction, learning, mobility, self-care, or self-management. The Respondent submits the Applicant has not demonstrated a substantially reduced functional capacity in any of the specified domains in subparagraphs 24(1)(c)(i)–(vi) with respect to her psychosocial impairments and therefore does not meet paragraph 24(1)(c) of the Act.[45]
[44] Ibid s 24(1)(a).
[45] Ibid s 24(1)(c); RSOFIC [39–56].
Section 24(1)(d)
The Respondent accepts that the Applicant’s physical impairments and psychosocial impairments affect the Applicant’s capacity for social or economic participation such that the requirements of paragraph 24(1)(d) of the NDIS Act are met.[46] Having regard to the evidence discussed in more detail below, I also accept that the Applicant meets this provision.
[46] NDIS Act (n 3) s 24(1)(d).
Section 24(1)(e)
I will also consider whether Mrs Kakakios meets the requirements set out in paragraph 24(1)(e) of the NDIS Act, that she is likely to require support under the NDIS for her lifetime.[47] The Respondent submitted that the Applicant does not meet this requirement because she has been approved for a Home Care Package (HCP) with My Aged Care and the supports being sought by the Applicant may be included in that HCP.[48]
[47] Ibid s 24(1)(e).
[48] RSOFIC [57–69]; EB T37, Letter, Rosanna Jurisevic (Department of Health), pp 114–115.
Early intervention requirements
If I am not satisfied the Applicant meets the disability requirements, I will then consider whether she meets the early intervention requirements. Mrs Kakakios did not made contentions in relation to the early requirements under s 25 of the NDIS Act in relation to early intervention requirements,[49] which I confirmed with the Applicant at the start of the hearing and the Applicant confirmed in her closing submissions.[50] The Respondent contends that there was no dispute that the requirements are not met and s 25 was therefore not addressed at the hearing.[51] If I find that any of the Applicant’s impairments are permanent, I will consider whether she meets other requirements in section 25 of the Act.[52]
[49] NDIS Act (n 3) s 25.
[50] Applicant’s Closing Submissions, p 3.
[51] NDIS Act (n 3) s 25.
[52] Ibid.
The parties have made detailed written and oral submissions, which I have taken into account, and will address as necessary, below.
In making my findings as to whether I am satisfied the Applicant meets the legislative requirement, I have taken into account all of the evidence before me, including oral evidence provided at the hearing on 2 and 3 December 2024, by the Applicant, Mr Ilias Kakakios, Ms Jennifer Kakakios and Ms Catherine Cummings, occupational therapist, who assessed the Applicant’s functional capacity off-the-papers on 20 May 2024 at the Respondent’s request.[53]
[53] EB R01, Letter of Instruction to Catherine Cummings (Occupational Therapist), pp 967– 969; EB R02, Report of Catherine Cummings, pp 970–1015.
The key issues in dispute therefore, are:
·Whether Mrs Kakakios meets paragraph 24(1)(b) of the NDIS Act,[54] in relation to her psychosocial impairments (those being anxiety, depression, post-traumatic stress disorder (PTSD), obsessive compulsive disorder (OCD) and hoarding disorder); that is, whether they are permanent.
·Whether Mrs Kakakios meets the requirements of paragraph 24(1)(e) of the NDIS Act,[55] that is, whether she is likely to require lifetime support under the NDIS for her lifetime.
·Whether Mrs Kakakios meets the early intervention requirements under section 25.[56]
[54] NDIS Act (n 3) s 24(1)(b).
[55] Ibid s 24(1)(e).
[56] Ibid s 25.
CONSIDERATION OF CLAIMS AND EVIDENCE
Whether the Applicant’s psychosocial impairments (anxiety, depression, post-traumatic stress disorder (PTSD), obsessive compulsive disorder (OCD) and hoarding disorder) meet the permanency criteria
Regarding the issue of permanency, the National Disability Insurance Scheme (Becoming a participant) Rules 2016 (Access Rules)[57] provide that:
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.
[57] Access Rules (n 23).
The Operational Guideline provides further guidance on permanence:[58]
[58] Operational Guideline, pp 7–8.
We don’t fund supports to treat your impairment.
Instead, the supports we fund can help you reduce or overcome the impact your impairment has on your daily life. They can also help you increase your functional capacity, independence, and your ability to work, study or take part in social life.
Your impairment will likely be permanent if your treating professional gives us evidence that indicates there are no further treatments that could relieve or cure it.
Your treating professional will tell us or be asked to certify if there are medical, clinical or other treatments that are likely to remedy your impairment. We need to understand whether there are treatments that are:
• known and available
• appropriate for you and your impairment
• evidence-based – that is, there’s proof they are likely to be effective.
The word treatment should be understood in a broadest sense and may include changes to your diet and lifestyle. So, for example, conditions such as obesity are unlikely to be found to be permanent.
If you’re still undergoing or have recently had treatment, we’ll need to wait until you know the outcome of the treatment before we can decide your impairment is likely to be permanent.
The parties are in agreement that the Applicant has one or more impairments to which a psychosocial disability is attributable; these are: anxiety, depression, post-traumatic stress disorder (PTSD), obsessive compulsive disorder (OCD) and hoarding disorder. The first point of dispute is whether these are or are likely to be permanent pursuant to section 24(1)(b) of the NDIS Act.[59]
[59] NDIS Act (n 3) s 24(1)(b).
As the Operational Guideline elucidates, funding by the NDIS for permanent impairments related to the disabilities in subsection 24(1)(a)[60] are not for the purposes of ‘treatment’.
[60] Ibid s 24(1)(a).
There is evidence to suggest the Applicant’s major depression has been exacerbated by and contributed to limiting treatment options and their potential benefits on her psychosocial wellbeing. Associate Professor Anna Wand, Senior Staff Specialist Psychiatrist and Conjoint Associate Professor at University of Sydney on 18 May 2023, spoke to the links between the Applicant’s high expectations of NDIS funding and what it can provide and her dismissal of other options:
Maria has symptoms of major depression. This is chronic and has developed in the context of her multiple significant physical health problems and associated disability, currently insufficient care provision (despite her family's best efforts), deconditioning, end limited opportunity to experience pleasure and stimulation with her very narrow repertoire of activity. These contributing factors perpetuate and exacerbate her illness and disability. The family focus on NDIS has meant she cannot access the HCP she is eligible for, placing unreasonable burden of care on her husband and daughter, who are clearly struggling to meet her care needs, and resulting in interpersonal conflict. Objectively she would benefit from high level nursing home care, but Maria has declined this option. She feels rejected by service providers and healthcare professionals, and in turn has rejected their offers of help This too compounded the challenges of trying to manage at home.[61]
[61] EB A15, Incomplete Report of A/Prof Anne Wand (Psychiatrist), p 669.
Associate Professor Wand first met the Applicant in August 2022[62] and in her letter to the Applicant’s GP, Dr Simon Symeou, she made it clear that she assessed the Applicant ‘as a clinician conducting an assessment of mood’ but that she ‘does not do medicolegal work [which is] outside her scope of practice and expertise.’ Associate Professor Wand made it clear that she did not provide her psychiatric assessment to support the Applicant’s current matter before the Tribunal.[63] As such, I find the evidence of Associate Professor Wand persuasive.
[62] EB S14, Dr Wand Letter to GP, p 1560.
[63] EB S14, Dr Wand Letter to GP, p 1560.
Associate Professor Wand’s discharge notes of 18 May 2023 similarly recommended:[64]
I was very frank with Maria that a change in antidepressant alone would likely do little to improve her mood and quality of life unless other environmental support, lifestyle and activity factors were addressed. In addition, the OCD sxs are reasonably well controlled on the SSRI.
…
I have recommended again that she reconnect with a psychologist, via telemedicine if possible, as she previously derived benefit from psychotherapy. We discussed that it is usual to need booster sessions to practice and reinforce skills learned. Maria was reluctant to do so as previous improvements have not been sustained indefinitely,
[64] EB A15, Incomplete Report of A/Prof Anne Wand (Psychiatrist), p 669.
The Applicant took steps towards treatment and obtained a referral for a psychologist on 16 October 2023,[65] with an intake session on 9 November 2023, and repeat sessions on 16 November 2023,[66] 12 December 2023,[67] 12 January 2024, 8,[68] 14[69] and 21 February 2024,[70] where she received treatment for her OCD, anxiety, and hoarding disorder. It appears then that the stress of the Applicant’s perception of being unable to be cared for at home and the desire for social admission into hospital care then characterised the months that followed[71] until the Applicant’s admission into Sydney Eye Hospital in July 2024.
[65] EB A27, Letter from Dr James Brown to My Mirror, p 716.
[66] EB A35, Case Notes of Betty Damianidou, p 727.
[67] EB A36, Case Notes of Betty Damianidou, p 740.
[68] EB A38, Case Notes of Betty Damianidou, p 746.
[69] EB A40, Case Notes of Betty Damianidou, p 752.
[70] EB A41, Case Notes of Betty Damianidou, p 755.
[71] EB A48, Evidence Bundle 2, pp 924, 938.
Ms Cummings provided oral evidence at the hearing in addition to an occupational therapy report of the Applicant on the papers produced at the Respondent’s request. She provided the following submissions concerning the Applicant’s psychosocial disabilities based on her analysis of the evidence with which she was provided.
Due to the effects of OCD, anxiety, depression and PTSD, the Applicant ‘experiences difficulties undertaking tasks that involve the following: motivation or drive; consistently maintaining an even demeanour when around other people; cognitive endurance, particularly in relation to memory, concentration and attention; attending to personal care tasks in a timely manner.’[72]
[72] EB R02, Report of Catherine Cummings, p 982.
The evidence before me includes examples of the Applicant’s OCD and hoarding disorder. Ms Cummings’ Occupational Therapy Report highlights how: ‘In the past her OCD tendencies would see her shower up to 4 hours’ and that ‘Even with assisting dressing post showering, it takes her longer than the average Australian, this hasn't changed and is unlikely to change (approx. 1 or 1.5hr) - e.g. dry her toes individually with paper or hairdryer, alcohol wipes inside her individual toes, put compression stockings on.’[73]
[73] EB R02, Report of Catherine Cummings, p 989.
Ms Cummings’ report refers to clinical guidelines in relation to management or treatment of people with OCD diagnosis including from the International OCD Foundation,[74] which do not support accommodation of behaviours or participating in OCD rituals as it can perpetuate the disorder. The report thus states: ‘It is not a reasonable expectation for support workers to attend to [the Applicant’s] rituals around washing and drying requiring considerable time’ and ‘As such, it is recommended that Ms Kakakios attend to her own washing and drying unless she is able to accept washing assistance in an agreed time frame.’ [75]
[74] EB R02, Report of Catherine Cummings, p 989.
[75] EB R02, Report of Catherine Cummings, p 989.
Ms Cummings also provided oral evidence at the hearing that cautioned against accommodating OCD as a means of treatment. Counsel for the Respondent led evidence on the witness’ credible use of such guidelines as an Occupational Therapist. Ms Cummings said:
So when looking at someone's support needs, we refer to obviously the evidence or the information provided by treating clinicians, what's going on for the person themselves and also any clinical guidelines and best practice around that.
Sometimes treating clinicians will say, you know, take into consideration individual circumstances and may deviate from the guidelines because it produces a better outcome for their patients, which in which case, if I identified, I'd definitely take that on board.
She then stated that in making this recommendation about Mrs Kakakios’ needs, she took the Psychiatrist Professor Wands’ evidence into consideration which, to her mind, did not suggest ‘that the OCD behaviours should be catered to in terms of her recommendations.’ I agree with this view.
In her report of 3 August 2022, Associate Professor Anne Wand expressed her view on the Applicant’s ‘complex and longstanding’ psychiatric history, including obsessive-compulsive disorder (OCD handwashing, cleanliness, order), anxiety, panic, and hoarding.’ The report outlines how since 2000, Mrs Kakakios:
received behavioural management, family therapy and continued fluvoxamine. It sounds like she had evidence-based psychotherapy (cognitive behavioural therapy and exposure/response prevention) for OCD at the time, with good effect on reducing her repetitive behaviours and distress. The OCD is no longer a major issue, with markedly reduced time spent with washing compared to years before. She has found further psychotherapy, with a supportive and validating approach, helpful in recent times.[76]
[76] EB A01, Report of A/Prof Anne Want (Psychiatrist), pp 406–407.
Taken together, I find this evidence persuasive. I cannot be satisfied with respect to the Applicant’s OCD that there are no further treatments that could relieve or cure it- the word ‘treatment’ being used in a broad sense, as including changes to the Applicant’s lifestyle.
The Applicant’s Closing Submissions do not address the Applicant’s psychosocial disabilities in light of the permanency criteria of subsection 24(1)(b) directly.[77] They do refer to the Applicant’s psychosocial challenges and state:
The Applicant misses living with her family (ILIAS and Jennifer), desperately wants to return home but cannot without the NDIS. Daily the Applicant is frustrated/ depressed (saying to Jennifer ‘I have nothing positive to look forward to’) being stuck isolated in her room without outings, frequent incontinence accidents and poor overall health. The Applicant is destracted [sic] from her problems by television and visits or calls from her family (later becoming overly emotional such as by crying when they leave).[78]
[77] NDIS Act (n 3) s 24(1)(b).
[78] Applicant’s Closing Submissions, pp 15–16.
During the two days of the hearing, I observed the Applicant to be cognizant and observant for the most part. She understood all the questions asked of her and responded with relatively direct answers. I did observe her to get emotional and upset when hearing Ms Cummings’ evidence, particularly during discussions related to her potential future support arrangements, which is understandable and consistent with the evidence before me.
In its SOFIC, the Respondent submits that it appears the Applicant ‘has discontinued treatment with Ms Aly that may improve her impairment and did not complete or fully comply with the course of treatment’ and that ‘Where there may be evidence of non-compliance with treatment, this may indicate a requirement for further medical treatment or review, in order to demonstrate permanency or likely permanency under the Act’.[79] I agree with this view.
[79] RSOFIC [37–38].
While the Applicant sought hospital admission during the more recent period before her long-term admission in Sydney Eye Hospital where she remains an inpatient, and ‘some treatment has been undertaken by Applicant with respect to some of her psychosocial impairments,’ I cannot be satisfied that all known, appropriate, and available treatments have been undertaken and exhausted.
As permanency has not been made out for the Applicant’s psychosocial impairments, there is no need to consider the remaining statutory criteria under section 24(1),[80] specifically, whether the Applicant has substantially reduced functional capacity in relation to her psychosocial disabilities under subsection 24(1)(c).[81]
[80] NDIS Act (n 3) s 24(1).
[81] Ibid s 24(1)(c).
Will the Applicant require lifelong support of the NDIS
The Applicant’s functional capacity is not in dispute for her physical impairments, therefore paragraph 24(1)(e) of the NDIS Act is enlivened.[82]
[82] Ibid s 24(1)(e).
The Operational Guideline addresses what is taken into account for the purposes of this criterion:[83]
When we decide if you’ll likely need support under the NDIS for your whole life, we consider:
oyour life circumstances
othe nature of your long-term support needs
owhether your needs could be best met by the NDIS, or by other government and community services.
For example, you may have an impairment which is caused by a chronic health condition. Many chronic health conditions are most effectively managed or remedied through medical management through the health system. If this is the case, we may decide that you don’t have a lifetime need for support under the NDIS.
[83] Operational Guideline, p 11.
The Operational Guideline states further that ‘NDIS supports are investments that help you build or maintain your functional capacity and independence, and help you work, study or take part in social life’.[84] This reflects the guidelines with respect to section 24(1)(c) that the NDIS does not fund supports to treat impairment but to build functional capacity and independence.[85]
[84] Operational Guideline, p 11.
[85] NDIS Act (n 3) s 24(1)(c).
The Federal Court has provided guidance on interpreting section 24(1)(e).[86] As pointed out by the Respondent in its closing submissions,[87] in Foster the Court stated that in considering whether a person is likely to require support under the NDIS for their lifetime:
·the focus is on whether a person is likely to require support under the NDIS for their lifetime or whether those support needs are most appropriately met by other systems;[88]
·it would be wrong to ask whether supports under other systems would be comparable to what would be available under the NDIS;[89]
·a person cannot be funded for a support under two schemes. There is no scope for a support to be partially funded under the NDIS.[90]
[86] Ibid s 24(1)(e).
[87] Respondent’s Closing Submissions.
[88] Foster [93].
[89] Ibid [95].
[90] Foster [98].
The full Federal Court in Foster found that the Tribunal had erred in asking itself the wrong question as to whether Mr Foster would need lifetime support under the NDIS. The Court stated:
In the present case, there is another system that provides support to Mr Foster, albeit that it does not cover the full costs of his catheters. Mr Foster submitted that question was not to be approached by asking what supports he was presently requiring but also what supports he might need to be funded through the NDIS once he was a participant in the scheme. That submission cannot be accepted.[91]
[91] Foster [93].
As detailed below, the supports sought by the Applicant can be met by My Aged Care.
On 16 November 2021, when the Applicant was 64 years of age, she received a letter of approval from the Sydney Inner West Aged Care Assessment Team (ACAT).[92] The letter indicates this approval does not expire and is a permanent approval for permanent residential care at a high level, allowing up to 63 days of subsidised care with the possibility for extensions (of up to 21 days). The letter also annexes a support plan,[93] though it is for the Applicant and My Aged Care to assess how best to spend her budget of $59,593.55 per year on those supports.[94]
[92] EB T37, Letter, Rosanna Jurisevic (Department of Health) pp 114–115.
[93] EB T38, MyAgedCare Support Plan for Maria Kakakios, pp 117–127.
[94] EB R02, Report of Catherine Cummings, p 1005.
The approval is also for a Level 4 HCP, assessed at ‘medium’ priority and Mrs Kakakios was placed on a national queue for access. The third approval in the letter is for more flexible, short-term restorative care, allowing Mrs Kakakios up to eight weeks of restorative care, which was due to lapse if not started by 17 May 2022.
Not only does she have a permanent approval, but it appears that the Applicant has made use of this approval. In her Statement of 6 November 2022, she explains she underwent weekly physiotherapy treatment from 24 March 2022 to 14 June 2022 with Mr Ernie Chin and that she had access to his services through the Short-Term Restorative Care (STRC) Programme.[95] An email from social worker Ms Fernanda Herrera from Balmain Hospital to Ms Sharon Kirkpatrick notes the care plan that was ‘developed by Maria and Sharon on 11/03/2022’ which included physiotherapy (twice per week), domestic assistance (including ‘laundry, cleaning bathroom, kitchen, and main living area), personal care ‘assistance with showering’ twice a week, and a ‘podiatrist twice a week’.[96] Multicultural Care confirms in a letter on the 27 June 2022 that the Applicant participated in the program from 25 March 2022 – 25 May 2022.[97]
[95] EB A25, Statement of Applicant, pp 443 –445.
[96] EB A05, Annexures ‘A’ to ‘R’ (excluding Annexures ‘N’ and ‘O’) to the Applicant’s Statement, p 490.
[97] EB A05, Annexures ‘A’ to ‘R’ (excluding Annexures ‘N’ and ‘O’) to the Applicant’s Statement, pp 512–513.
The Applicant made submissions dated 21 July 2023 prepared by Legal Aid on section 24(1)(e).[98] The Applicant submitted that the ‘overall’ circumstances of the prospective participant must be considered and argued that ‘there must be some evidence to show that the health system is the most appropriate option, and no such evidence has been put forward in the present case.’[99]
[98] NDIS Act (n 3) s 24(1)(e).
[99] EB A18, Applicant’s Submissions on s 24(1)(e) of the NDIS Act, p 676.
The Applicant also made submissions on the role of other service systems in the context of section 24(1)(e).[100] She supported this position with the case of JZLT and National Disability Insurance Agency [2022] AATA 541[101] to counter a similar argument by the Agency against granting access as the Applicant may be eligible for support under the aged care service system.
[100] NDIS Act (n 3) s 24(1)(e).
[101] JZLT and National Disability Insurance Agency [2022] AATA 541.
The Applicant’s submissions do not refer to the leading Federal Court decision of 2023 in Foster,[102] outlined above, by which I must be guided.
[102] Foster (n 28).
In this case, Mrs Kakakios has approval for the highest-level HCP with Aged Care, which she has utilised. Following the Court in Foster, a person cannot be funded for a support under two schemes; there is no scope for a support to be partially funded under the NDIS.[103]
[103] Ibid.
At the hearing, the Applicant gave evidence that she would require NDIS support for her lifetime. She tendered a letter for NDIS support from Dr Brown dated 6 October 2024. In it, Dr Brown addresses the Agency and the Tribunal and states:
Thank you for assisting Mrs Maria Kakakios, age 67 yrs, who is a person who requires disability supports under the NDIS for her timetime for her qualifying and permanent psychosocial psychiatric and physical impairments chronic renal impairment, heart failure, chronic incontinence, diabetes, sever osteoarthritis, and severe obsessive compulsive disorder. This disability pensioner requires NDIS funding for life.
At the hearing, the representative for the Applicant, Ms Jennifer Kakakios, submitted that I give this letter weight in assessing the Applicant’s need for lifetime support under the NDIS. The Respondent told me that as Doctor Brown is not a lawyer, he does not set out the relevant legislative criteria which control access to the scheme. Therefore he ‘has done nothing more than assert a series of conclusions which he forms for reasons which he does not articulate.’
Counsel for the Agency argued further that ‘while the rules of evidence do not apply in the Tribunal, procedural fairness and the rule of law nonetheless requires that the Tribunal act only on probative evidence.’ The Agency therefore argued that the Tribunal give the letter no weight, as Dr Brown’s letter does not set out his reasoning, more specifically it ‘does not allow the Tribunal to make for itself its assessment of the quality of that evidence.’ I accept these submissions and do not attach weight to Dr Brown’s letter in so far as it goes to the legislative access criteria generally or section 24(1)(e) specifically.[104]
[104] NDIS Act (n 3) s 24(1)(e).
Mr Ilias Kakakios also gave oral evidence that the Applicant requires NDIS support for her lifetime. The Respondent submitted that I should attach no weight to this evidence, for the same reasons. I agree with this view in attaching no weight to Mr Kakakios’ evidence with respect to section 24(1).[105]
[105] Ibid.
To be clear, this is not a credibility assessment of Mr Kakakios’ evidence, as, I altogether found the witness statements of Mr Kakakios, Ms Kakakios, and Mrs Kakakios to be consistent and reliable. However, for the same reasoning as per the weight given to Dr Brown’s evidence, I cannot give Mr Kakakios’ oral evidence weight, regarding whether the Applicant is likely to require lifetime support under the NDIS for a lifetime as prescribed by the Act and its relevant rules and guidelines.
In her report, Occupational Therapist Ms Catherine Cummings provides a comparative table of supports sought by Mrs Kakakios under the NDIS and whether those supports can be met through an HCP L4.[106] The report also indicates which services may not be covered by the NDIS. [107] Ms Cummings also provided oral evidence on this at the hearing.
[106] EB R02, Report of Catherine Cummings, pp 1002–1005. In Section 7 of the report, which details a range of community-based services and supports potentially applicable to Mrs Kakakios.
[107] EB R02, Report of Catherine Cummings, p 1006.
Evidence before me shows the Applicant has been concerned about taking up the My Aged Care services, specifically Permanent Residential Care or the HCP Level 4, to which she has permanent approval due to the Applicant’s stated preference for access to the NDIS. This is seen, for example, in the discharge summary of Ms Rowena Kellett, Clinical Nurse Consultant on 1 May 2023:
Maria was re-referred by her daughter, Jennifer, to assess her mood which was worsening in context of the ongoing stressors of their legal action to appeal the NDIS decision and her poor quality of life given no services other than COMPACKs are currently utilised. While we explained that our documents can be subpoenaed by the court we will not provide a medico-legal report as this is not within our scope. Maria has symptoms of depression which is chronic and in context of her multiple stressors and physical health conditions. She Is barely mobile, staying most of the day in a reclining chair where she also sleeps. The family's focus is on her NDIS application and their appeal, however, Maria has been granted a Level 4 HCP through ACAT which is on hold while the appeal Is being sought. We suggested to the 'Maria and the family that they consider dropping the appeal in favour of receiving L4 package which could commence Immediately to relieve the burden on the family and start addressing some of Maria's needs. We also discussed the benefit of Marla going to high level nursing home care which she rejected.[108]
[108] EB A14, Report of Rowena Kellett (Consultant Nurse), p 665.
It appears that the Applicant and her family were aware from the advice they received from health care professionals that acceptance of the Level 4 HCP would alleviate carer burden, stresses on the family, and go some way to addressing the Applicant’s support needs.
The Respondent contended in its SOFIC that ‘what emerges from the material produced throughout these proceedings is that the Applicant and her daughter have made a forensic decision not to access the Applicant’s approved HCP under the assumption that they would receive a higher level of supports from the NDIS.’ The Respondent submits that ‘in circumstances where other support systems are available and appropriate, the Applicant does not meet the requirements stipulated under section 24(1)(e).’[109]
[109] RSOFIC [65], [66].
I am not reviewing a statement of participant supports; I am only considering whether the Applicant meets the access requirements. As directed by the Court in Foster, it is not for me to consider whether supports under the My Aged Care package are comparable to what may be available under the NDIS.[110] Therefore, it is not for me to evaluate supports in one system as against another service system in line with the expressed preferences of the Applicant and her representative.
[110] Foster (n 28).
Given the Applicant has approval for My Aged Care as a Level 4 HCP and can receive supports under that scheme, and has utilised those services, the supports she seeks are most appropriately met by that system, and not the NDIS. The Court has made it clear in Foster that a person cannot be funded for a support under two schemes as there is no scope for a support to be partially funded under the NDIS.
This is similar to the Tribunal’s reasoning in NRNK and National Disability Insurance Agency [2024][111] where the Tribunal found that the supports sought by the applicant were more appropriately met by the aged care system. Mrs Kakakios has an approval for the highest, Level 4 HCP.
[111] NRNK and National Disability Insurance Agency [2024] AATA 110.
At the hearing, the Tribunal directed parties to submit closing submissions, specifically for the Applicant to do so by 15 January 2025. On 25 January 2025, the Applicant provided her written submissions which provided a factual comparison between Mrs Kakakios’ circumstances and the applicant in Sutherland and National Disability Insurance Agency [2024] AATA 411[112] (Sutherland). In her submissions, the Applicant reiterates she ‘believes that the aged care package is inadequate for her disability needs.’ [113] The Applicant correctly distinguishes the applicant in Sutherland who had approval for a level 2 HCP from Mrs Kakakios, who ‘was assigned the highest (level 4) Home Care Package package, from the onset (back in 2021)’.[114]
[112] Sutherland and National Disability Insurance Agency [2024] AATA 411, (‘Sutherland’).
[113] Applicant’s Closing Submissions, p 17.
[114] Ibid.
In its closing submissions at the hearing, the Respondent made submissions which go to a pending Federal Court appeal of the Tribunal decision on section 24(1)(e)[115] in Sutherland.[116]
[115] NDIS Act (n 3) s 24(1)(e).
[116] Sutherland (n 112).
The Tribunal took an approach contrary to the Court in Foster by finding that paragraph 24(1)(e) did not require the Tribunal to look to supports from other systems and on its face required the Applicant to satisfy the need for supports under the NDIS for a lifetime. The Tribunal concluded it did ‘not consider it would be a proper interpretation of s 24(1)(e) to undertake an assessment of whether the supports required by Ms Sutherland could be provided by other service systems in order to decide whether this criterion is met’.[117]
[117] Respondent’s Closing Submissions, p 2 [4].
Rather, the Tribunal held, ‘the wording of s 24(1)(e) simply requires the AAT to satisfy itself as to whether Ms Sutherland will require support under the NDIS for her lifetime, as per the wording of this provision. The AAT interpreted that to mean that the AAT must focus on whether Ms Sutherland would need those supports under the NDIS for her lifetime and that this does not depend on whether she can acquire the supports themselves elsewhere’.[118]
[118] Ibid.
On appeal before the Federal Court, it was argued that the Tribunal incorrectly construed this paragraph in finding that the Applicant met the access criteria.[119]
[119] The appeal from the AAT decision in Sutherland was heard on 16 December 2024 after the final hearing for this matter) and the decision is reserved.
The Respondent submits ‘that the construction of s 24(1)(e), as set out in Sutherland, is not supported by either its text or statutory context and is inconsistent with the Full Court’s judgment in Foster v National Disability Insurance Agency (2023) 295 FCR 521 at [93] – [97].’[120]
[120] Respondent’s Closing Submissions, p 2 [5].
Another relevant consideration is the Applicant has been receiving supports under the universal health care system as a social entry inpatient at Sydney Eye Hospital since 20 July 2024.
At the hearing, Ms Kakakios told me that she had been trying to get Mrs Kakakios admitted, unsuccessfully, at Bankstown Hospital and Royal Prince Alfred Hospital (RPA) but ‘They would not admit her and then we tried to get her admitted at Prince of Wales and they were the ones who transferred her here to Sydney Hospital.’ Ms Kakakios said, ‘We were trying to get a social admission because we cannot look after her at home,’ and the Applicant ‘needed like someone who's gonna be able to look after 24/7.’
This oral evidence is consistent with the discharge record of RPA which shows that the Applicant presented to the emergency department with her daughter and husband on 19 July 2024, seeking admission, but that no acute medical issues were raised. The discharge record notes Ms Kakakios’ NDIS inquiry indicating the perceived urgency of and need to expedite the Applicant’s application process through hospital admission: ‘Her daughter inquired as to whether there was any way that her NDIS application could be escalated from within the hospital but I advised her that this was not possible.’[121]
[121] EB A48, Evidence Bundle 2, p 939.
In May 2023, Associate Professor Anne Wand made repeated recommendation to the Applicant and her family to make use of the HCP Level 4 approval. In her assessment notes of the Applicant on 1 May 2023 Associate Professor Wand wrote:
Maria was re-referred by her daughter, Jennifer, to assess her mood which was worsening in context of the ongoing stressors of thie rlegal action to appeal the NDIS decision and her poor quality of life given no services other than COMPACKs are currently utilised … Maria has symptoms of depression which is chronic and in context of her multiple stressors and physical health conditions … The family’s focus is on her NDIS application and their appeal, however, Maria has been granted a Level 4 HCP through ACAT which is on hold while the appeal is beings sought. We suggested to the Maria [sic] and family that they consider dropping the appeal in favour of receiving L4 package which could commence immediately to relieve the burden on the family and start addressing some of Maria’s needs. We also discussed the benefit of Maria going to high level nursing home care which she rejected.[122]
[122] EB S13, Clinical Notes Dr Wand, p 1555.
On 18 May 2023, Associate Professor Wand repeated these recommendations:[123]
We have talked about her ADL support needs, and noted she is eligible for a level 4 HCP, which – although not exhaustive – would provide considerably more care than she currently receives and is a reasonable initial alternative to moving to a RACF. It may also reduce carer burden and conflict with family.
[123] EB A15, Incomplete Report of A/Prof Anne Wand (Psychiatrist), p 669.
At the time of the hearing and confirmed by email by Ms Kakakios to the Tribunal after the hearing, Mrs Kakakios continues to be a social inpatient at Sydney Eye hospital where she has been since July 2024. For the duration of the hearing, over the two days I saw the Applicant in her hospital bed, she demonstrated a strong comprehension of what was occurring and the questions that were asked of her, which she answered in a cogent manner. In this regard, I witnessed her eating, drinking out of a straw, and being assisted by hospital staff during the hearing. Furthermore, Mrs Kakakios told me of her showering arrangements at the hospital. At times, I saw her become upset about her situation and worry about the uncertainty of her future care arrangements. At one point, she expressed her frustration and distress at being a burden on her family should she have to return home from full-time care arrangements that she is currently experiencing at Sydney Eye Hospital. This is consistent with the evidence of Associate Professor Anne Ward in 2022:
Maria has multiple stressors including constant pain, needing help from her husband and feeling a burden. Maria is frustrated with her situation, poor mobility, health issues and dependency on others. This frustration is often directed towards her family, who have become increasingly stressed. [124]
[124] EB A01, Report of A/Prof Anne Wand (Psychiatrist), p 406.
I am satisfied that Mrs Kakakios continues to receive support, however unfavourable (as compared with potential NDIS funding) it may be perceived to be by her and her family, from other service systems including My Aged Care and the health system.
With respect to the construction of the legislative requirement of the access criteria, the Respondent submitted ‘that the words “under the NDIS” have work to do in the proper construction of s 24(1)(e) per Foster, and that paragraph 24(1)(e) requires me to be satisfied that the Applicant is likely to require:[125]
·support
·that support under the NDIS (and not implicitly, another system)
·that support for the Applicant’s lifetime.
[125] Respondent’s Closing Submissions, [7–8].
I accept this view. Considered overall and consistent with leading case law in Foster,[126] I am not satisfied the Applicant meets the requirements of paragraph 24(1)(e) of the Act due to her permanent approval for supports under My Aged Care.[127] In addition to having permanent approval for a Level 4 HCP, evidence before me shows that Mrs Kakakios has made use of the approval.
[126] Foster (n 28).
[127] NDIS Act (n 3) s 24(1)(e).
Does the Applicant satisfy the early intervention requirements?
The parties did not raise section 25 as an issue in their written or oral submissions to the Tribunal.[128] As the Applicant has not met the disability requirements, I must consider whether she meets the early intervention requirements.
[128] Ibid s 25.
The Operational Guideline with respect to early intervention (pre-legislation changes) stated as follows:[129]
To meet the early intervention requirements, we must have evidence of all of the following:
· You have an impairment that’s likely to be permanent
· Early intervention will help you by reducing your need for supports in the future
· Early intervention will help you by either reducing the impact your impairment has on your functional capacity or support your informal supports to build their skills to help you
· The early intervention you need is most appropriately funded by the NDIS.
[129] Operational Guideline.
The Applicant has had the lumbar osteoarthritis, advanced osteoarthritis, and associated impairments for many years. It is not in dispute by the parties that the impairments arising from these conditions are likely to be permanent. For the reasons stated above with respect to section 24(1)(b),[130] section 25(1)(a) of the Act is met in respect of the Applicant’s physical impairments.[131]
[130] NDIS Act (n 3) s 24(1)(b).
[131] Ibid s 25(1)(a).
With respect to the Applicant’s psychosocial impairments, for the reasons stated above under section 24(1)(b),[132] section 25(1)(a) of the Act is not met with respect to Mrs Kakakios’ psychosocial impairments.[133]
[132] Ibid s 24(1)(b).
[133] Ibid s 25(1)(a).
Based on the evidence before me, I am satisfied that early intervention for Mrs Kakakios is unlikely to reduce the impact of her physical impairments on her functional capacity. Therefore, section 25(1)(b) is not met with respect to Mrs Kakakios’ physical impairments.[134]
[134] Ibid s 25(1)(b).
The evidence before me shows that Mrs Kakakios’ physical condition has been deteriorating, particularly since her hospital admission in July 2024. I cannot be satisfied that provision of early intervention supports for the Applicant is therefore likely to benefit her by mitigating or alleviating the impact of her physical impairments upon her functional capacity to undertake activities in any of the five areas prescribed by section 25(1)(c);[135] or preventing the deterioration of such functional capacity; or improving such functional capacity. Nor am I satisfied that provision of early intervention supports would be likely to strengthen the sustainability of informal supports available to the Applicant by way of her husband or daughter, who have their own health challenges to manage. Section 25(1)(c) of the Act is not met with respect to Mrs Kakakios’ physical impairments.[136]
[135] Ibid s 25(1)(c).
[136] Ibid.
For the reasons stated above with respect to paragraph 24(1)(e) of the NDIS Act, even if early intervention supports were likely to build skills to help Mrs Kakakios in managing her physical impairments arising from lumbar osteoarthritis, advanced osteoarthritis, and associated impairments, these early interventions are not most appropriately funded by the NDIS.[137] Therefore section 25(3) is not met with respect to Mrs Kakakios’ physical impairments.[138]
[137] Ibid s 24(1)(e).
[138] Ibid s 25(3).
CONCLUSION
There is no dispute that the Applicant meets the requirements of sections 22[139] and 23[140] of the NDIS Act.
[139] Ibid s 22.
[140] Ibid s 23.
For the reasons given above, I am not satisfied that Mrs Kakakios meets the access criteria for her psychosocial impairments for permanence pursuant to section 24(1)(b) of the Act,[141] nor will she require lifelong support of the NDIS pursuant to section 24(1)(e) of the Act for her physical impairments.[142]
[141] Ibid s 24(1)(b).
[142] Ibid s 24(1)(e).
Mrs Kakakios must satisfy all the requirements in section 24(1),[143] in order to meet the disability requirements set out in section 24 of the Act.[144] As she does not meet the disability requirements, she does not satisfy all the access criteria and therefore, cannot become a participant of the NDIS.
[143] Ibid s 24(1).
[144] Ibid s 24.
For the reasons given above, I am not satisfied that Mrs Kakakios meets the early intervention requirements in section 25 and therefore, she cannot become a participant in the NDIS.[145]
[145] Ibid s 25.
DECISION
The decision under review is affirmed. The Tribunal decides that the Applicant does not meet the access criteria under section 21 of the National Disability Insurance Scheme Act 2013 (Cth).[146]
[146] Ibid s 21.
Date(s) of hearing: 2-3 December 2024 Advocate for the Applicant: Ms J Kakakios Counsel for the Respondent: Ms A Douglas-Baker Solicitors for the Respondent: Mr B O'Brien, Partner, Moray & Agnew Lawyers
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