KDYG and National Disability Insurance Agency

KDYG and National Disability Insurance Agency [2019] AATA 3411 (10 September 2019)
Division:National Disability Insurance Scheme Division
File Number(s): 2018/0178
Re:KDYG
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Mrs J C Kelly, Senior Member
Date:10 September 2019

The reviewable decision dated 15 December 2017 is set aside. In substitution, the Tribunal decides that the Applicant meets the disability requirements of the Act (s 24).
...................................[SGD].....................................
Mrs J C Kelly, Senior Member
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – whether the Applicant meets the requirements for access to the Scheme – whether the Applicant’s impairment(s) are permanent – Applicant’s medical history and treatment considered – Applicant’s impairment(s) are permanent – whether the Applicant’s impairment(s) result in substantially reduced functional capacity to undertake learning, self-care and self-management – Applicant’s impairment(s) result in substantially reduced functional capacity to undertake self-care – Applicant likely to require support under NDIS for her lifetime - reviewable decision set aside and substituted
LEGISLATION
National Disability Insurance Scheme Act 2013 (Cth) ss 24(1)(b), 24(1)(c), 24(1)(e)
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 r 5.8
CASES
Mulligan and National Disability Insurance Agency [2015] FCA 544
Sheldon and National Disability Insurance Agency [2018] AATA 2560
SECONDARY MATERIALS
National Disability Insurance Scheme Operational Guidelines – The disability requirements cll. 8, 8.2, 8.3, 8.3.1
REASONS FOR DECISION
Mrs J C Kelly, Senior Member
10 September 2019
The reviewable decision

On 5 April 2017, the Applicant, KDYG, made a request to the National Disability Insurance Agency (the Agency) to become a participant in the National Disability Insurance Scheme launch (the Scheme) because of her disability, which is complex Post Traumatic Stress Disorder (PTSD) with Dissociative Identity Disorder (DID), severe anxiety, severe depression, chronic suicidal ideation, and disorientation. The Agency refused the request on 11 May 2017. On 15 December 2017, the Agency affirmed that decision. The Tribunal is reviewing that decision (the reviewable decision).
The regulatory regime
Part 1 of Chapter 3 of the National Disability Insurance Scheme Act 2013 (Cth) (the Act) sets out the statutory requirements for access to the Scheme.
The Agency accepts that the Applicant satisfies the following requirements in the Act:
·the age requirements (s 22);
·the residence requirements (s 23);
·the disability requirement, that is, the Applicant has a disability that is attributable to one or more impairments attributable to a psychiatric condition (s 24(1)(a)); and
·the impairment or impairments affect her capacity for social or economic participation (s 24(1)(d)).
The issues
The Agency does not accept that the Applicant meets the following requirements:
·the impairment or impairments are, or are likely to be, permanent (s 24(1)(b)), and
·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 (s 24(1)(c)); and
·the person is likely to require support under the National Disability Insurance Scheme for the person's lifetime (s 24(1)(e)).
·the early intervention requirements in s 25 of the Act, specifically that the impairment is not permanent (s 25(1)(a)(ii)).
Is the Applicant’s impairment permanent or likely to be permanent?
The Agency put the following contentions to support its argument that the Applicant’s impairment is not permanent or likely to be permanent. The Applicant has not undertaken all reasonable medical treatment in relation to the diagnosed psychiatric conditions. She has not provided evidence detailing the specific treatments undertaken, nor the period of time, nor the frequency of such treatment, and in the absence of evidence establishing that she has considered all known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment, the Applicant does not suffer from an impairment that is likely to be permanent for the purposes of s 24(1)(b) of the Act. The Agency relied on the case of Sheldon and National Disability Insurance Agency [2018] AATA 2560 to support those contentions.
The Tribunal does not accept the Agency’s contentions for the following reasons.
Dr B G, general practitioner, wrote a report dated 15 January 2018. Dr B G’s practice is located in inner-city Sydney. The report set out the following. The Applicant attended Dr B G’s practice from 1996 until September 2014. In 1997, she was referred to and seen by Dr Q (psychiatrist) who concurred with a diagnosis of DID. Over subsequent years, the Applicant continued to display symptoms consistent with comorbid DID and complex PTSD. The Applicant has engaged in a range of therapies including regular work with counsellors and psychologists.
Dr B G concluded:
This has helped her to manage her symptoms a little better but the illnesses remain chronic and likely to be lifelong. The symptoms interfere with every aspect of her life.
Dr B G did not describe the symptoms.
The evidence shows that around 2013/2014, the Applicant relocated to an outer Sydney commuter area. The evidence does not disclose which medical practice, if any, she attended from 2014 to 2016. However, the clinical notes of a medical practice in her new location were in evidence dating from mid-2016.
In a letter dated 30 September 2016 referring the Applicant to Dr B, psychiatrist, for an opinion and management, Dr L G, a general practitioner from the new medical practice, reported that the Applicant had been previously diagnosed with complex PTSD by Dr V in approximately 2008, noted that one of her counsellors thinks that she has borderline PD, which the Tribunal understands to refer to Personality Disorder, and that her social worker, Ms T believes that she has DID.
Dr C, the Applicant’s usual general practitioner at the new practice, filled out a form dated 4 November 2016, in support of an application for alternative housing for the Applicant and the Applicant’s 15 year old child (C). She provided the following information about the Applicant’s medical condition and its impact upon her:
·Complex PTSD; severe anxiety in response to triggers, flashbacks. Severe depression, avoidance. Severe impact on her wellbeing. Likely duration: long.
·Unable to look for private rental accommodation because of mental health issues.
·Has extra expenses because of ongoing counselling; travelling to appointments.
It is clear from the Mental Health Treatment Plan/Review referral form prepared by Dr C dated 11 October 2016, that the 30 September 2016 referral to a psychiatrist was in order to get a diagnosis to be able to access the Scheme. The summons documents received from the general medical practice the Applicant was attending did not include a report from Dr B but did include another referral to Dr D, consultant psychiatrist and psychotherapist, dated 11 October 2016 by Dr C, who referred to the 2008 diagnosis of complex PTSD, that several therapists have diagnosed borderline personality disorder and that Ms T believes that the Applicant has DID, and enclosed a letter from Ms T.
On 2 December 2016, Dr D wrote a comprehensive report which detailed the Applicant’s history. Dr D diagnosed generalised anxiety disorder – severe and complex PTSD (or borderline personality disorder). Dr D noted that the Applicant is the parent of C who struggles with autism and complex trauma. The Applicant was receiving disability support pension, carer allowance and Part B family tax benefit and was living in community housing. Dr D wrote that:
(The Applicant) has managed despite her considerable difficulties to have received some experience in child care, telemarketing and some government work during the elections.
Dr D did not diagnose the Applicant with DID and explained why. Dr D did think that the Applicant’s “experiences of dissociation are consistent with her presentation of complex PTSD”.
Dr D listed the following symptoms reported by the Applicant:
·She is often anxious and ‘edgy’, with a patchy short term memory
·Some occasional difficulties with irritability and anger
·Light sleep
·Experiences of both depersonalisation and derealisation
·Needs to use distraction almost constantly otherwise she experiences extreme intense emotions and fears that she will die
·She is particularly sensitive to sudden or loud noises
·Regular nightmares reflecting themes of abuse and victimisation
·Intrusive memories of past trauma
·Once a month or so she will wake disoriented to time, place and person; disorientation can settle quickly
·Constant, chronic suicidal ideation but no current plans or intent
On 13 February 2017 Ms T wrote a letter which included the following. The Applicant had been attending counselling two times per week for the past four years. She presented with a significant trauma history, her presentation is consistent with complex PTSD and DID. She also experiences depression with frequent suicidal ideation and anxiety. She found counselling to be very helpful, but the sources of funding were short term, and without funding, the Applicant:
will be unable to attend counselling and she is likely have a significant deterioration in her mental health.
On 10 March 2017, Dr C wrote a referral to Dr W which contained similar information to that provided to Dr D and included a copy of Ms T’s 13 February 2017 letter. Dr W, psychiatrist, wrote a report dated 20 March 2017. Dr W diagnosed PTSD with dissociative symptoms as well as DID. He acknowledged that the Applicant was caring for C and the Applicant’s 12 month relationship. He wrote:
On mental state examination she was neatly groomed. Her speech was normal in rate and volume. There were no periods of dissociation during the interview. Her affect was reactive. There was no evidence of formal thought disorder. Her thought content was logical. There was no evidence of cognitive impairment. Her insight and judgement were intact.
Dr W wrote that he was happy for the Applicant to use his letter to support her seeking access to additional support through the Scheme and that:
…the primary focus of her treatment should be the continued trauma work she is doing with (Ms T).
Dr W’s next report is dated 11 September 2017. Dr W reported that the Applicant “continues to struggle with periods of dissociation and intrusive trauma symptoms” and was continuing to see “psychologist” Ms T.
Dr C issued a medical certificate for the Applicant on 22 September 2017 in which she certified her unfit for work/study from 4 August 2017 to 13 October 2017 because of “exacerbation of chronic medical health condition”. A referral to a support service dated 20 October 2017, shows that the reasons were a break down in the relationship with C’s NDIS coordinator and the move into the house that had been purchased.
Around the same time, the Applicant was investigating weight management with appropriate clinicians.
Dr C referred the Applicant to Dr W again on 12 January 2018. On the same day Dr C wrote a letter “To whom it may concern” which set out her diagnosis and then:
It means that she requires therapeutic support -- ideally at least weekly psychotherapy, 3-6 monthly psychiatry review and regular GP appointments to maintain day to day functioning.
She also requires assistance with household tasks including shopping, cooking and cleaning, and personal care.
She also needs a support person to help her attend medical appointments and for advocacy. (The Applicant) also cares for (C) who has Autism spectrum Disorder, PTSD and low intellect. This at times is overwhelming and impacts on her mental health – she would benefit from some respite care.
(The Applicant’s) condition is lifelong and chronic and the above measures are to maintain reasonable level of daily functioning and safety rather than hoping for cure.
Dr W also wrote reports dated 23 March 2018 and 10 May 2018.
A letter from a counsellor dated 10 August 2018 shows that the Applicant had changed counsellor from Ms T at that time.
It is clear from the medical evidence that the Applicant has suffered from the impairment or impairments since about 1995. Over the years, she has had treatment for her mental health condition(s) from psychologists, therapists, involving counselling, and medications prescribed by her general practitioner and recommended by psychiatrists she has seen. The reviewable decision referred to the “newly acquired” diagnosis by Dr W and to Dr C’s comment in her letter of 5 April 2017 that the Applicant “would also benefit from an outpatient PTSD therapy group run from St John of God” as the basis for finding that the impairment or impairments were not permanent. The Tribunal has additional evidence to that before the primary decision-maker and the reviewable decision-maker. Dr W’s diagnosis was not “new”. Differences in diagnosis, such as between Doctors Q and W and Doctors V and D, are differences of expert opinion as to the appropriate categorisation of symptoms. The nature of the symptoms has remained consistent, although varying in severity at times. Given the Applicant’s lengthy history of therapy, the Tribunal does not accept that not attending a PTSD therapy group leads to the conclusion that her impairment or impairments are not or not likely to be, permanent. In the report dated 10 May 2018, Dr W stated that there are no specific treatments that the Applicant has been able to engage in that would improve her functional abilities.
The Agency submitted no other evidence of alternative treatments that the Applicant might have which may improve her mental health condition but did mention seeing a clinical psychologist. During cross-examination, the Applicant said that she had not been assessed by a clinical psychologist. Given the lengthy history of the Applicant’s mental health condition and treatment by various medical and allied practitioners, and the opinions of Dr C and Dr W quoted above, the Tribunal is not persuaded that because she has not been assessed by a clinical psychologist her impairment or impairments are not permanent. In making that finding the Tribunal has taken into account the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (the Participant Rules) 5.4 to 5.7 and the National Disability Insurance Scheme Operational Guidelines – The disability requirements (the OG) cll. 8 and 8.2.
The Applicant’s impairment or impairments are permanent. She meets the requirement of s 24(1)(b) of the Act.
Does the impairment result in substantially reduced functional capacity?
Section 24(1)(c) of the Act refers to “functional capacity” and to “psychosocial functioning”. The parties referred to “functional capacity” rather than “psychosocial functioning”. There was no issue about which term should be used. The Tribunal adopts the parties’ usage.
Do the Applicant’s impairments result in substantially reduced functional capacity in any of the six areas specified in s 24(1)(c)?
Rule 5.8 of the Participant Rules provides that for the purposes of s 24(1)(c) of the Act:
When does an impairment result in substantially reduced functional capacity to undertake relevant activities?
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.
The OG is also relevant.[1]
[1] Clauses 8.3 and 8.3.1.
By the end of the hearing, the legal representative for the Applicant did not press that the Applicant’s impairment or impairments resulted in substantially reduced functional capacity to undertake communication or social interaction. The Tribunal considers those concessions appropriate given the totality of the evidence, including the oral evidence of the Applicant. He argued that the Applicant’s impairment resulted in substantially reduced functional capacity to undertake learning, self-care and self-management. Mobility had never been relied on.
The relevant evidence was in medical reports, clinical notes, the letter of Ms T, the report and oral evidence of Ms W, occupational therapist, the oral evidence of the Applicant and the written and oral evidence of her partner.
The Applicant’s legal representative relied on a list of symptoms of DID set out in a fact sheet on the condition produced by the Mental Health Association of NSW Inc to support his submission. The Tribunal takes into account the symptoms suffered by the Applicant that emerge from the evidence about her. She does not suffer all the symptoms listed in the fact sheet.
Dr D listed the Applicant’s symptoms as set out above.
Ms T wrote in her letter dated 13 February 2017, that the Applicant:
struggles with day-to-day tasks such as cooking and shopping, she has limited social connections and no family support.
…
In addition to her own mental illness (the Applicant) also cares for (her child), (who) requires a carer to be present with her at all times and this has limited (the Applicant’s) ability to attend appointments.
…
(her) mental health has a significant impact on her quality of life, some of the impact has been mitigated by counselling and ongoing counselling can be of benefit to (her).
The report from an obesity service to Dr C dated 27 September 2017 refers to the Applicant’s:
past history of PTSD … which significantly affects her day-to-day living in the form of panic attacks, memory lapses, difficulty with decision-making and flashbacks.
In his report dated 23 March 2018, Dr W wrote:
(The Applicant) will frequently dissociate when attempting to access public services i.e. train stations, shopping centres and community centres; this causes significant impairment and disability. I support her application for a companion card.
In his report dated 10 May 2018, Dr W wrote that the Applicant:
Has a range of marked functional impairments that occur as a direct consequence of her severe PTSD and (DID). She requires significant and sustained assistance with activities of daily living. She requires a support person to attend medical appointments to assist her in getting to the appointment as well as advocacy and planning. She requires assistance with household duties and is unable to shop, cook or clean her home without significant support.
Her impairments are likely to be permanent and will result in a substantially reduced functional capacity in communication, social interaction, learning, self-care and self-management.

The report was prepared for these proceedings in response to a letter from the Applicant’s legal representative which asked specifically that the doctor address s 24(1)(c) of the Act which was set out. Dr W does not specify the symptoms that the Applicant suffers which result in the listed reduced functional capacity to undertake the specified activities.
Ms W, occupational therapist, assessed the Applicant at her residence on 30 July 2018. Her report is dated 3 August 2018. It was prepared at the request of the Applicant’s solicitor and in response to specific questions. The Applicant’s partner (P) was present during the assessment. Ms W undertook a World Health Organization Disability Assessment. She obtained information “via observation of the home environment and demonstration of selected domestic tasks”. There were five categories according to which Ms Wong could assess abilities: no difficulties, mild difficulties, moderate difficulties, severe difficulties and extreme difficulty or cannot do.
Ms W concluded that the Applicant had moderate difficulties with communication, when her emotional status is unstable, mainly because she became very emotional when she was unable to turn off notifications on a tablet.
Ms W formed the view that the Applicant has severe difficulties with social interaction. That conclusion was based on reports from the Applicant.
She formed the view that the Applicant had severe difficulties in relation to learning. That conclusion was based on reports from the Applicant and the observation that she required prompting from her partner when making a cup of tea. No cognitive test or neuropsychological assessment reports were available for Ms W to review.
Ms W assessed that the Applicant had moderate difficulties with self-care/household tasks based on reports from the Applicant and her partner, the prompts required when she was making a cup of tea, including by Ms W who had to intervene to ensure she did not burn herself, her inability to hang washing outside, and her difficulty vacuuming.
Based on reports from the Applicant and her partner, Ms W assessed that the Applicant has severe difficulties with self-management.
P’s written statement was dated 9 May 2018. The Applicant did not provide a written statement but did give oral evidence. P also gave oral evidence. There were some inconsistencies between the evidence of the Applicant and P. They both said that they met on an on-line dating site in about January 2016.
The Applicant said that they then became friends on Facebook and after the Applicant posted a photograph, in about March 2016, P invited her to a barbecue which the Applicant attended with C at a picnic location some distance from their home. They spent the day travelling to and from and attending the barbecue. Within a week she and P “were together”.
P’s evidence was that they first met at P’s home which was located within seven kilometres of the Sydney CBD, one and a half hours’ travel from the Applicant’s home.
P started spending weekends with the Applicant and C at their home or they would travel to Sydney and stay with P.
From March 2017 they were looking to move in together and so P needed to transfer work location. P moved in with the Applicant and C in August 2017 in rented premises and they bought a house together in the area where they lived, in September 2017. P has been working in that area ever since and now works 1.5 days a week and receives a carer pension for C. They married in June 2018 at a nearby community hall with friends and relatives. In January/February 2019, the couple, C, and a friend who could care for C, travelled overseas for about three weeks.
P noticed that the Applicant was having issues with her finances in May 2016 and by June 2017 P had started to manage them. From October 2017, P also managed the Applicant’s bank accounts, to ensure they could pay their bills, and the Applicant did not spend her money on computer games. P gives the Applicant $10 or $20 a week to put in her wallet. If the Applicant wants to buy anything, they discuss it. P also started managing the medications for both the Applicant and C, ensuring that they were in blister packs. P pays all the bills and does the budget.
By the time of the hearing, P claimed to do 99% of the day to day tasks for the family, including paying the bills, organising medications, cooking and washing. P was overseeing C’s National Disability Insurance Scheme Plan (NDIS plan), prompting the Applicant to shower, providing notes to remind her what to do, using a whiteboard to set out activities for the week which the Applicant could cross off, and checking with the Applicant by telephone and text. P described the Applicant’s memory, particularly her short term memory, as poor and requiring lots of prompting. P speaks to the Applicant when she drives locally to pick up bread or milk to keep her on track and has an application on the phone which enables monitoring where the Applicant is. There is an application on the Applicant’s telephone to remind her to take her medications every morning. P did everything for the Applicant during their recent overseas trip.
P described the Applicant’s social life as follows. The Applicant has one good friend she relies on who lives 55 minutes away. The Applicant and P tend not to have a lot of people over and keep to themselves unless there is a family celebration. P has introduced the Applicant to friends, including one good friend who has blended in. They have visited the house of the Applicant’s sister a few times and she has visited their home. The Applicant and P have occasionally gone to the movies. They do not go out to dinner. They do things as a family. The Applicant has Facebook pages. P answers the Applicant’s telephone if the Applicant is having a bad day. The Applicant and P have travelled to the Central Coast without C. They took the Applicant’s friend with them. They have also visited friends in Brisbane.
P said that when the Applicant was doing volunteering support work visiting a man in a nearby town, P would speak to her on the telephone during her trip to the man’s home. In P’s opinion, the Applicant may wish to do many courses, but she is not capable.
The Applicant gave the following evidence. She acknowledged that she is the manager of C’s NDIS plan. The first plan was prepared in 2016. She only has to submit invoices on the Mygov website, inserting dates. C has a support co-ordinator who helps with getting supports. During cross-examination, the Applicant talked about the supports C receives, that the co-ordinator has asked for a review, that the plan includes $80,000 for social and community participation, and that the Applicant has a separate bank account for those funds. She said that she has managed $80,000 over 12 months and is capable of doing that. She also said that the NDIA card is with P and she has her own Centrelink card.
The Applicant attended two or three plan reviews with the support co-ordinator but only remembers the last one which was to set goals for the child, and identify the supports necessary to achieve those goals. She said that she tended to let the support co-ordinator do it and that she would not go in and had taken a friend with her. She said that the plan does not cover all the child’s needs and her counsellor has reduced the fees by one-third. She explained that she had her own needs and they said that they would take both plans into account. During re-examination, the Applicant said that she only gets five or six invoices and puts them in G-mail folders.
The Applicant said that P helps care for C, including making her bed and taking her to singing lessons.
The Applicant did not claim to never go outside on her own, for example she does go to a familiar person like a psychologist or counsellor. P goes with her to see the psychiatrist because there are some triggers. If she goes to a public place, she gets P or someone to go with her because she is afraid of being harmed. She also sees things that are not there, for example flashes of a snake or person.
She described her volunteering work during the second half of 2018 as follows. It was once a fortnight for two hours in a one-on-one situation. She visited an old person in his home, maybe five times, and no more than ten times. She is not doing that now. It was exhausting, watching videos of his trip around Australia. It was a 15 minute trip each way. She had no problems getting there at the specified time. She was asked to do a group situation, but was not prepared to do that. During re-examination, the Applicant said that she spoke to P on the trip to and from the man’s home.
She described keeping in touch with one friend via messenger. When travelling overseas, only P sat next to her. She is able to contact Centrelink by telephone. Apart from going to the supermarket with P, she uses self-service and does not have to speak to anyone. P is with her most of the time when she is driving. If she drives two kilometres to the local shop, she gets there and forgets what she was going for. She gets anxious if she forgets where she is and uses Bluetooth. She rings her counsellor. She uses notes her partner has written for her in the house and her partner rings to see how she is progressing with the list.
The Applicant can put a plate and cup in the sink but sometimes does not remember to do so. She sometimes vacuums part of the house. They employ a cleaner once a fortnight and someone to mow the lawn.
The Applicant knows how to cook but forgets where she is up to and burns herself on the stove. She makes notes on her mobile phone but may write down a number but forget whose it is. She photographs addresses. She gets confused about where she is. She can physically be somewhere but feels she is not there and sometimes does not know P or C.
The Applicant attempted studying animal care but the practical component was placement in a rescue shelter. She went once, saw a sign “Snakes”, and because of her abusive background felt in severe danger and was unable to do it. She is currently enrolled in a TAFE digital media course but is unable to do it. There was a lot of thinking to do. She was due to graduate in April.
The Applicant had gastric sleeve surgery and got a family gym membership. She attended twice with P and cannot do group sessions. She has a treadmill at home and does not have to leave the house. Her general practitioner had referred her to a healthy weight clinic. She had seen a dietician and psychologist but she had cancelled the last several dietician appointments and could not do hydrotherapy.
The Applicant has issues with managing her finances. She started spending her weekly budget on games which she used to “stay in today” and not dissociate. Now, P manages things.
The Applicant can look after her personal care with reminders from her partner.
During cross-examination, while saying that her memory was not good, the Applicant’s recollection of treating doctors, including psychiatrists, psychologists, social workers and counsellors was detailed and clear, going back to 1995 and up to today. She did not demonstrate any short term memory difficulties while giving her evidence.
The Applicant was seeing Ms T, who specialised in trauma, until about May 2018. The Applicant had seen three other people but they were not a good fit. She was seeing another the day after the hearing. She talked about the various sources of funding for her therapists. She talked about various kinds of therapy, including some which she had been advised were not appropriate. She said that she had not been assessed by a clinical psychologist.
The Applicant said that C had been mostly in her care. The Department of Community Services removed C in about 2011 when she was about 10 years old and placed her in the care of her God-mother. C was returned to the Applicant after she had seen a counsellor at a particular service. The Applicant was able to name the counsellor and the location of the service.
The Applicant has a couple of Facebook accounts. One is for photography. C is interested in photography and wanted to have a business. It is not an active business. Another account is used to share her experiences and her journey. She has about 1,000 followers. There were not many comments. Maybe 10 people might like it, but she does not have relationships with those people.
The Applicant talked about places she visited during the recent overseas trip, including private visits to attractions, not walking around among the public, and cutting short some visits. She had special needs assistance at an international airport.
The Applicant saw two people when she and P visited Brisbane. She talked about the trip to the Central Coast with her partner and friend.
When asked about her symptoms, the Applicant said that she has good and bad days and parts of days. She thinks that she requires more treatment and that 10 mental health sessions are not enough. Her concept is that the Scheme will supplement those sessions.
Consideration – Is the Applicant’s functional capacity to undertake learning, self-care or self-management, substantially reduced?
In Mulligan v National Disability Insurance Agency [2015] FCA 544, Mortimer J considered s 24(1)(c) and rule 5.8 of the Participant Rules. Her Honour said:
Rule 5.8 of the Rules defines the circumstances in which a person must be taken to have “substantially reduced functional capacity” for the purposes of s 24(1)(c). Whether the content of r 5.8 exhausts the concept of “substantially reduced functional capacity” in s 24(1)(c) is not a matter which need be determined in this appeal.
Rule 5.8 operates expressly by reference to each of the activities in s 24(1)(c)(i) to (vi). It requires the decision-maker to look, as a matter of factual assessment, at the outcome or effect of a person’s impairment on the performance of each, and any, of those six activities. If the outcome or effect is any of the outcomes or effects specified in r 5.8(a), (b) or (c), the deeming effect of r 5.8 operates.[2]
[2] At [66-67].
The Applicant’s legal representative relied only on rule 5.8(b). The evidence does not suggest that rule 5.8(a) or (c) is relevant. The Applicant’s Statement of Issues, Facts and Contentions included a definition of ‘usual’:
The Oxford English Reference Dictionary defines the word 'usual' as an adjective. Such as commonly occurs, or is observed or done; customary, and habitual. Examples provided are 'the usual formalities', 'it is usual to tip them', 'forgot my keys as usual', and 'a person's usual drink'. Accordingly, it is contended that the word in this context is to be construed as meaning a regular or common occurrence, being more than sometimes, but less than 'most of the time' or 'most often'.
The Macquarie Dictionary (on-line) is in similar terms.
The Applicant has suffered from the impairment or impairments since about 1995. Life has been a continuing struggle for her.
It is apparent from the evidence of the Applicant and P that the Applicant’s life has been transformed since they have been in a relationship, and particularly since they began living together. P now oversees in some way almost every aspect of the Applicant’s life.
The Applicant struggled to manage her life and C’s life for some years before she entered that relationship without that degree of oversight and support.
The OG clause 8.3 relevantly provides:
Self-care means activities related to personal care, hygiene, grooming and feeding oneself, including showering, bathing, dressing, eating, toileting, grooming, caring for own health care needs.
The OG clause 8.3.1 provides:
… 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.
The Applicant’s case in relation to self-care is that the Applicant requires constant reminders about personal care, taking medication, where food and her clothes are kept, is unable to go to a public toilet alone, hurts herself while grooming because of lack of concentration so that her partner undertakes those tasks, has difficulties with cooking and cleaning because of lack of concentration, and is unable to hang washing outside because of fear.
The Agency points to the years before the Applicant had the support of P when she managed her life and C’s life, and argues that the assistance provided, in summary, is not usually required.
The Tribunal accepts the evidence of P and the Applicant about the assistance the Applicant requires. It is not consistent with normal expectations of a person of a similar age.
The evidence does not disclose how the Applicant managed before she received the current level of support and assistance she gets from P. That the Applicant struggled and survived before having the current level of assistance does not persuade the Tribunal that she does not require the assistance she is currently receiving.
The evidence of Ms T, Dr C and Dr W strongly supports a finding that the Applicant usually requires assistance from other people to participate in the activity or to perform tasks or actions required to undertake or participate in the activity of self-care. Ms T had a therapeutic relationship with the Applicant for more than four years. Dr C has been her general practitioner for more than two years. Dr C’s clinical notes reflect that the Applicant had a very close therapeutic relationship with Ms T and that both Ms T and Dr C have a very good understanding of the impact the Applicant’s impairments have on her functional capacity, including to undertake self-care. Dr W had been caring for her for a shorter period but has made the same assessment.
The Tribunal is persuaded on the evidence that the Applicant “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” self-care as required by r 5.8(b).
The Applicant’s impairment or impairments result in substantially reduced functional capacity to undertake self-care. She meets s 24(1)(c) of the Act. It is therefore unnecessary to consider the other activities in dispute, learning and self-management.
Having found that the Applicant’s impairment or impairments are permanent and that they result in substantially reduced functioning to undertake self-care, the Tribunal finds that she is likely to require the support of the NDIS for her lifetime pursuant to s 24(1)(e) of the Act.
The Applicant meets the disability requirements of the Act (s 24).
Decision
For the above reasons, the reviewable decision dated 15 December 2017 is set aside. In substitution, the Tribunal decides that the Applicant meets the disability requirements of the Act (s 24).

I certify that the preceding 93 (ninety-three) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member.

..................................[SGD]......................................
Associate
Dated: 10 September 2019

Date(s) of hearing: 25 February 2019

Counsel for the Applicant: Mr M Zraika

Counsel for the Respondent: Ms K Katavic

Solicitors for the Respondent: Mr O Young, Legal Services National Disability Insurance Agency

[2019] AATA 3411

10 September 2019

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Standing

Date(s) of hearing:	25 February 2019
Counsel for the Applicant:	Mr M Zraika
Counsel for the Respondent:	Ms K Katavic
Solicitors for the Respondent:	Mr O Young, Legal Services National Disability Insurance Agency