Khassouk and National Disability Insurance Agency (NDIS)
[2024] ARTA 233
•20 November 2024
Khassouk and National Disability Insurance Agency (NDIS) [2024] ARTA 233 (20 November 2024)
Applicant/s: Sabriah Khassouk
Respondent: National Disability Insurance Agency
Tribunal Number: 2022/9255
Tribunal:General Member L Proske
Place:Adelaide
Date:20 November 2024
Decision:The Tribunal affirms the decision under review.
..................[SGND]......................................................
General Member L Proske
Catchwords
NATIONAL DISABLITY INSURANCE SCHEME – access to the scheme – disability requirements – permanence– decision under review affirmed
Legislation
Administrative Review Tribunal Act 2024 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) Act 2024 (Cth)
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)Cases
Mulligan v National Disability Insurance Agency [2015] FCA 544
National Disability Insurance Agency v Davis [2022] FCA 1002
Re Drake and Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409Statement of Reasons
The Applicant (Ms Khassouk) has applied to the Tribunal for review of a decision made by the National Disability Insurance Agency (Respondent) on 14 October 2022. That decision confirmed an earlier decision made by the Respondent that Ms Khassouk did not meet the access criteria for the National Disability Insurance Scheme (NDIS), as prescribed under the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act).[1]
[1] All sections referred to in these reasons for decision, including in the footnotes, are sections of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act), unless otherwise stated.
BACKGROUND AND JURISDICTION
Ms Khassouk made an access request to the Respondent to become a participant of the NDIS. On 23 August 2022, a delegate of the Chief Executive Officer (CEO) of the Respondent determined that Ms Khassouk did not meet the access criteria for the NDIS (original decision).[2] On 21 September 2022, Ms Khassouk requested that the original decision be reviewed by a reviewer.[3]
[2] Exhibit 1 (E1), T12, 121.
[3] E1, 128.
On 14 October 2022, a reviewer confirmed the original decision that Ms Khassouk did not meet the access criteria for the NDIS (internal review decision).[4] On 10 November 2022, Ms Khassouk made an application to the Tribunal for review of the internal review decision.[5] The Tribunal has jurisdiction to review the internal review decision under s 103(1), in combination with s 12 of the Administrative Review Tribunal Act 1975 (Cth) (ART Act).
[4] E1, 22.
[5] E1, 1.
LEGISLATION AND POLICY
Ms Khassouk must meet the access criteria in s 21(1) to become a participant of the NDIS. In summary, s 21(1) provides that a person meets the access criteria if they meet the age requirements in s 22; the residence requirements in s 23; and either the disability requirements in s 24 or the early intervention requirements in s 25.
There is no dispute between the parties, and the Tribunal is similarly satisfied on the evidence before it, that the Applicant meets the age and residence requirements in ss 22 and 23.[6] The issue for determination by the Tribunal is therefore whether the Ms Khassouk meets the disability requirements in s 24 or the early intervention requirements in s 25.
[6] Respondent’s Statement of Facts, Issues and Contentions (RSFIC), [20].
Section 24 provides:
24 Disability requirements
(1) A person meets the disability requirements if:
(a) the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or 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.
(4) Subsection (3) does not limit subsection (2).
Section 25 provides:
25 Early intervention requirements
(1) A person meets the early intervention requirements if:
(a) the person:
(i)has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent; or
(ii)(has one or more identified impairments to which a psychosocial disability is attributable and that 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.
(1A) For the purposes of subparagraph (1)(a)(i) or (ii), an impairment or impairments that are episodic or fluctuating may be taken to be permanent despite the episodic or fluctuating nature of the impairments.
(2)The CEO is taken to be satisfied as mentioned in paragraphs (1)(b) and (c) if one or more of the person’s impairments are prescribed by the National Disability Insurance Scheme rules for the purposes of this subsection.
(3)Despite subsections (1) and (2), the person does not meet the early intervention requirements if the CEO is satisfied that early intervention support for the person is not most appropriately funded or provided through the National Disability Insurance Scheme, and is more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or through systems of service delivery or support services offered:
(a) as part of a universal service obligation; or
(b) in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
Under s 209(1) the Minister may make rules prescribing certain matters. Relevant to this application, the Minister has issued the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (Access Rules), which forms part of the legislation.
Operational Guidelines published on the NDIS website contain information about what the Respondent considers when making decisions under the legislative framework. These are essentially policy documents. The Operational Guideline ‘Applying to the NDIS’ (the Access Guideline) is relevant to this application. The Tribunal will take this into account unless there are cogent reasons not to.[7]
[7] Drake and Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 420.
EVIDENCE AND SUBMISSIONS
The parties filed with the Tribunal an agreed joint hearing bundle, which included the T-Documents filed by the Respondent on 18 November 2022, and evidence filed by Ms Khassouk and the Respondent during the review. The agreed joint hearing bundle was received into evidence at the commencement of the hearing (Exhibit 1).
The Respondent filed a Statement of Facts, Issues and Contentions (Respondent’s SFIC) and a list of authorities on 8 August 2024. Ms Khassouk filed a Reply to the Respondent’s SFIC (Ms Khassouk’s Reply) on 30 August 2024, and attached to that document was a blood test result regarding a sample collected on 18 July 2024. Ms Khassouk’s Reply with that attachment was also received into evidence at the commencement of the hearing (Exhibit 2).
Two further documents were received into evidence during the hearing, specifically:
a) the Respondent’s briefing letter to Dr Reiter dated 25 September 2023 (Exhibit 3)
b) the Respondent’s briefing letter to Ms Harper dated 6 February 2024 (Exhibit 4).
Ms Khassouk, Fatima Haj (Ms Haj), Dr Loretta Reiter (Dr Reiter) and Jessica Harper (Ms Harper) gave oral evidence at the hearing. The hearing concluded on 20 September 2024.
The Tribunal has considered the abovementioned evidence and submissions in making this decision.
It should be noted that after the hearing was concluded, the NDIS Act was amended by the National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) Act 2024 (Cth) (Amending Act). Some of those amendments took effect from 3 October 2024. The Respondent was directed to provide submissions regarding the effect, if any, of the Amending Act, and any Rules and Guidelines made thereunder, on this application for review; and Ms Khassouk was given an opportunity to file a response to those submissions.
The Respondent filed submissions on 11 October 2024, to the effect that pursuant to s 126 of the Amending Act, amendments made by the Amending Act to ss 24 and 25 of the NDIS Act apply to a person who makes an access request on or after 3 October 2024; and that in circumstances where Ms Khassouk’s access request was made before 3 October 2024, it should be determined in accordance with the NDIS Act and NDIS Rules as they existed before the commencement of the Amending Act on 3 October 2024. The Tribunal agrees with those submissions.
CONSIDERATION
The issue for determination by the Tribunal is whether the Applicant meets the disability requirements in s 24 or the early intervention requirements in s 25.
Ms Khassouk is seeking access to the NDIS on the basis of impairments arising from Sjogren’s Syndrome, Systematic Lupus Erythematosus (SLE), Secondary Hemophagocytic Lymphohistiocytosis (HLH), osteoporosis, bone fractures, anaemia and recurrent urinary tract infections (UTIs).[8] Prior to the hearing, Ms Khassouk confirmed she does not rely on impairments arising from rheumatoid arthritis, or impairments to which a psychosocial disability is attributable, for access to the NDIS.[9]
[8] E1, 226-228; Ms Khassouk’s Reply to the Respondent’s Statement of Facts, Issues and Contentions (Ms Khassouk’s Reply), 1.
[9] Ms Khassouk’s Reply, 1; and an email sent by Ms Haj to the Tribunal and the Respondent dated 15 August 2023.
The Respondent accepts Ms Khassouk has a disability that is attributable to physical impairments arising from Sjogren’s Syndrome, HLH and SLE; but does not accept she has a disability that is attributable to impairments arising from UTIs, osteoporosis, bone fractures or anaemia.[10] The Respondent does not accept that Ms Khassouk’s physical impairments are, or are likely to be, permanent.[11] The Respondent also contends the Tribunal ought to find Ms Khassouk does not have substantially reduced functional capacity for any of the relative activities as a result of any permanent impairment.[12]
[10] Respondent’s Statement of Facts, Issues and Contentions (RSFIC), [23]-[24].
[11] E1, [26], [73].
[12] RSFIC, [36].
Ms Khassouk has a long and complex medical history. In a letter dated 12 July 2016, Dr Griff Richards (Dr Richards), rheumatologist, reported that Ms Khassouk had an onset of cutaneous polyarteritis nodosa in 2000 with fever and neutropenia.[13] Dr Richards reported Ms Khassouk had had no recurrence of that condition, despite having ceased Imuran and Plaquenil therapy at least 2 years prior; and with respect to other medical issues noted Ms Khassouk was on long term narcotic medication including Endone and Oxycontin.[14] On 18 January 2018, Dr Richards reported that Ms Khassouk was previously on long-term low dose corticosteroid therapy as well as Imuran that seems to control her autoimmune disease, that at that time was diagnosed as cutaneous polyarthritis nodosa.[15] He further reported that recent immunological tests were consistent with SLE, she was strongly positive in regard to her DNA antibody and her pancytopenia is secondary to her autoimmune disease.[16] Dr Richards began treating Ms Khassouk with immunosuppressive treatment which included Imuran and Prednisone, and reported she would continue with vitamin D therapy and take oxycontin for her chronic pain syndrome.[17]
[13] E1, 9.
[14] E1, 9.
[15] E1, 476.
[16] E1, 476.
[17] E1, 476.
Ms Khassouk was admitted to the Royal Prince Alfred Hospital (RPA) between 28 July 2020 and 4 August 2020 with fevers and recurrent UTIs in the context of pancytopenia.[18] During that admission she was under the care of Dr Scott Dunkley (Dr Dunkley), a haematologist.[19] An RPA discharge referral dated 4 August 2020 reports Ms Khassouk’s autoimmune screen was indicative of active SLE and records her principal diagnosis as SLE/Sjogren’s associated pancytopenia.[20] Dr Dunkley reviewed Ms Khassouk on 31 August 2020 and opined she had had reactive anaemia and pancytopenia for some years, that once an active agent is started her symptoms and anaemia should improve, and he had pencilled her in for possible transfusion in 4 weeks.[21]
[18] E1, 57-58, 470.
[19] E1, 470-471.
[20] E1, 58.
[21] E1, 562.
On 11 September 2020, Dr Gemma Winkler (Dr Winkler), a rheumatologist, reported that Ms Khassouk had a previous diagnosis of cutaneous polyarteritis nodosa which is no longer active, and has a connective tissue disease, specifically SLE/Sjogrens which mostly manifests as pancytopenia.[22] Ms Khassouk reported to Dr Winkler that she continued to experience non-inflammatory arthralgia, which Dr Winkler opined was consistent with fibromyalgia.[23] Dr Winkler reported that Ms Khassouk’s anaemia was no longer symptomatic, she has a number of widespread tender points consistent with fibromyalgia, and her arthralgia is secondary to fibromyalgia and will not respond to immunosuppression.[24] Dr Winkler further reported that the plan was to reduce Plaquenil and commence Imuran and prednisolone; that she had discussed with Ms Khassouk techniques for managing her arthralgia, however it is unclear what those techniques were.[25]
[22] E1, 613.
[23] E1, 613.
[24] E1, 613.
[25] E1, 613.
On 28 September 2020, Dr Dunkley reported Ms Khassouk had symptomatic and serological progression of her autoimmune disease and reactive anaemia.[26] He was hopeful that once her connective tissue disease was controlled, her anaemia would respond.[27] Dr Winkler reviewed Ms Khassouk on 29 September 2020 and reported her main symptom at that time was fatigue and that that may well be related to a combination of her recent disease flare as well as a diagnosis of fibromyalgia.[28]
[26] E1, 568.
[27] E1, 568.
[28] E1, 609.
Ms Khassouk was admitted to RPA on 18 October 2020 under the care of Dr Winkler with a 2-day history of fevers, flank pain and rash in the setting of SLE with Sjogren’s serology.[29] She was diagnosed with autoimmune-driven HLH, transferred to ICU for supportive care and received etoposide and tocilizumab therapy.[30] Ms Khassouk’s ICU admission was complicated by worsening hypoxaemia in the context of initial acute pulmonary oedema and acute respiratory distress syndrome (ARDS).[31] She required intubation.[32] She was discharged from RPA on 23 November 2020.[33] It was around the time of this discharge that Ms Khassouk’s SLE induced pancytopenia began to be treated with Rituximab infusions.[34]
[29] E1, 69.
[30] E1, 69.
[31] E1, 71.
[32] E1, 71.
[33] E1, 69.
[34] E1, 516.
Dr Dunkley reviewed Ms Khassouk on 5 January 2021.[35] He referred to her severe SLE flare in early October 2020 which ultimately resulted in a severe macrophage activating syndrome with an associated ARDS that required HLH therapy.[36] Dr Dunkley reported that Ms Khassouk’s HLH switched off with control of her SLE and risk should remain low with ongoing SLE control.[37] He also reported that she had mild baseline anaemia.[38]
[35] E1, 570.
[36] E1, 570.
[37] E1, 570.
[38] E1, 570.
Ms Khassouk underwent a bone density scan on 18 February 2021 for progress assessment in relation to a L1 vertebral fracture.[39] Dr Ragu Yogaratnam (Dr Yogaratnam) reported her bone density was now consistent with osteoporosis, notably in the lumbar spine.[40] Dr Winkler reviewed Ms Khassouk on 18 April 2021, at which time she reported that Ms Khassouk’s SLE was stable despite prednisolone wean, no synovitis was present, her anaemia was stable, she had ongoing back pain which was manageable with panadeine forte, she had an ongoing Vitamin D deficiency and was due for an Aclasta infusion.[41] Dr Winkler reported Ms Khassouk appeared well, albeit with mild ongoing UTI symptoms.[42]
[39] E1, 525.
[40] E1, 525.
[41] E1, 427.
[42] E1, 426.
Dr Marwan Aloe (Dr Aloe) has been Ms Khassouk’s general practitioner for over 20 years.[43] On NDIS Access forms completed Dr Aloe in early 2021, he records Ms Khassouk’s impairments as SLE, HLH, Sjogren’s Syndrome, polyarthritis nodosa, osteoarthritis and anaemia; reports that Ms Khassouk has severe musculoskeletal pain, lethargy and headaches; and opines she requires assistance with the activities of mobility and self-care.[44] Ms Khassouk was reviewed in relation to her SLE by Dr Christopher Needs (Dr Needs), a rheumatologist, on 21 June 2021. Ms Khassouk’s medication at that time included rituximab, methotrexate, plaquenil and panadeine forte.[45] Dr Needs reported panadeine forte helped Ms Khassouk’s fibromyalgia symptoms.[46] Dr Needs also reported that Ms Khassouk has osteoporosis with T8 and L1 vertebral fractures, and in view of her current UTI was advised to take regular vitamin C.[47]
[43] E1, 126; oral evidence.
[44] E1, 82-94.
[45] E1, 422.
[46] E1, 422.
[47] E1, 422.
On 27 January 2022, Dr Aloe reported that Ms Khassouk has lived alone since October 2021, and requires help to access shops, complete housework and meal preparation; and recommended an occupational therapy assessment.[48] On 28 February 2022, Dr Needs reviewed Ms Khassouk again.[49] He reported she has ongoing issues with fatigue and joint pain.[50] As at that time, she had been on Keflex for 4 weeks and her current urinalysis showed no evidence of infection.[51] He further reported Ms Khassouk has SLE, osteoporosis, fibromyalgia and recurrent UTIs; her current medications included paracetamol, Plaquenil, methotrexate and prednisone; and that she will require long term immunosuppression and regular reviews to monitor and control her autoimmune disease.[52] In April 2022, Dr Needs suggested Ms Khassouk speak with her general practitioner about the possibility of being referred to a renal physician for their advice regarding ongoing management of her recurrent UTIs, and advised her medication for SLE would continue as was.[53] There is no evidence before the Tribunal that Ms Khassouk was thereafter referred to a renal physician.
[48] E1, 17.
[49] E1, 119.
[50] E1, 119.
[51] E1, 119.
[52] E1, 119-120.
[53] E1, 419.
In July 2022 Ms Khassouk reported to Ms Hero Rawanduz (Ms Rawanduz), a psychologist, that despite the ongoing use of medication such as endone, panadeine forte, cortisone and Zoloft, she continued to experience severe chronic pain, muscular pain, and severe fatigue.[54] On 12 September 2022, Dr Needs reported that Ms Khassouk’s SLE had been very well controlled with no areas of synovitis, and she had ongoing fatigue as her main symptom.[55] He reported Ms Khassouk had had a recurrence of a UTI for which he prescribed a course of Bactrim and thereafter Keflex for prevention.[56] With respect to her osteoporosis, Ms Khassouk reported to Dr Needs a recent x-ray had shown new fractures, however Dr Needs was unable to find the films online.[57] On 20 September 2022, Dr Aloe opined that all treatment to control Ms Khassouk’s conditions have been taken and her chronic condition will get worse due to HLH, SLE and osteoporosis.[58] Dr Aloe opined it is important to understand that there are many stages to HLH and SLE and Ms Khassouk is in a more serious and permanent stage of these diseases which will affect her for the rest of her life.[59]
[54] E1, 19.
[55] E1, 417.
[56] E1, 417.
[57] E1, 417.
[58] E1, 127.
[59] E1, 127.
In December 2022, Dr Needs reported that Ms Khassouk’s UTIs had been well controlled with Keflex.[60] With respect to her osteoporosis, Dr Needs stated recent x-rays of her spine showed vertebral height loss involving L1, T12, T11 and T8.[61] She continued to have rituximab infusions, methotrexate, prednisone, panadeine forte and Aclasta infusions.[62] Whilst her SLE had been well controlled, she had increased pain and swelling in her MCP joints of both hands during the preceding 3 weeks.[63] In June 2023, Dr Needs reviewed Ms Khassouk in relation to the ongoing management of of her SLE and fibromyalgia.[64] He stated she has osteopaenia in the context of requiring long term corticosteroids and was being treated with annual Aclasta infusions.[65] His examination revealed swelling over the second and third MCP joints in both hands, and Ms Khassouk indicated she experienced generalised pain with palpation of the joints consistent with her background diagnosis of fibromyalgia.[66] Dr Needs reported that whilst Ms Khassouk’s SLE was a lifelong condition, it was inactive due to current therapy.[67] He noted SLE is associated with fatigue, which may persist despite therapy.[68]
[60] E1, 416.
[61] E1, 416.
[62] E1, 416.
[63] E1, 416.
[64] E1, 235.
[65] E1, 235.
[66] E1, 235.
[67] E1, 235.
[68] E1, 235.
The Respondent arranged for Dr Loretta Reiter (Dr Reiter), a rheumatologist, to assess Ms Khassouk. Dr Reiter’s assessment was based on history provided by Ms Khassouk, a clinical examination on 31 October 2023, and review of documentation provided by the Respondent.[69] In her report dated 8 November 2023, Dr Reiter reported that Ms Khassouk suffers with severe and pervasive levels of fatigue, and has whole body pain.[70] Her current symptoms were also reported to include dry eyes and mouth, and headaches.[71] On examination, Ms Khassouk did not have the butterfly rash on her face that is seen with SLE; the small joints of her hands, wrists, elbows, knees, ankles and feet did not reveal any evidence of swelling or synovitis; however she did have tender trigger points in her upper limbs, lower limbs, chest, neck, as well as upper and lower back.[72] Dr Reiter recorded what was shown by x-rays of Ms Khassouk’s thoracolumbar spine and lumber spine in August 2022 and August 2023, and a bone mineral density scan in August 2023.[73]
[69] E1, 25; E3.
[70] E1, 256.
[71] E1, 256.
[72] E1, 258.
[73] E1, 258.
Dr Reiter noted that when Ms Khassouk was last reviewed by Dr Needs in June 2023, he considered her SLE was inactive as it was under control with her present treatment, and in this regard, Dr Reiter agreed as Ms Khassouk’s symptoms are not due to inflammation in her joints and she currently has no history of serositis nor a face rash.[74] She further opined Ms Khassouk’s treatment for SLE is highly effective as she has inactive SLE.[75] Dr Reiter opined Ms Khassouk’s widespread pain is due to her condition of fibromyalgia.[76] She stated Ms Khassouk meets the American College of Rheumatology criteria for fibromyalgia as she has a widespread pain index score of 19 and a symptom severity score of 12, and the AAPT criteria for fibromyalgia as she has 9 out of the 6 or 9 possible pain sites required, as well as severe sleep problems and fatigue.[77]
[74] E1, 258.
[75] E1, 262.
[76] E1, 258.
[77] E1, 259.
Dr Reiter opined Ms Khassouk has not been provided any treatment for her condition of fibromyalgia, which is the main condition impacting her activities of daily living; and she requires at least the opportunity to trial specific medications as this could improve her day-to-day functioning and allow her to be independent in her activities of daily living.[78] The treatment Dr Reiter recommended Ms Khassouk receive included non-steroidal anti-inflammatory drugs, simple analgesics, moderate analgesics, Tricyclic anti-depressents, anti-depressant Cymbalta, Anti-epileptic Lyrica, gentle exercise, hydrotherapy and Naloxone.[79] Ms Reiter’s opinion was that treatment was likely to improve her condition of fibromyalgia; and there is a very good opportunity for these treatments to reduce her symptoms due to her condition of fibromyalgia such that she will be more functional and able to do activities of daily living.[80] Dr Reiter concluded that Ms Khassouk requires medical treatment before she can determine or offer an opinion on whether or not the known treatments are considered appropriate for her to undertake and likely to remedy the impairment or improve the underlying condition.[81]
[78] E1, 258, 262.
[79] E1, 259.
[80] E1, 263.
[81] E1, 263.
In a letter dated 21 April 2024, Dr Aloe reported that Ms Khassouk has been suffering from chronic pain for nearly 20 years.[82] Dr Aloe noted he had read Dr Reiter’s report, and with respect to the treatment Dr Reiter recommended he wrote:
‘I can confirm that every treatment recommended has been tried over the last 15 years and some how are were not effective. Mrs Khassouk in my opinion has been treated adequately over the years and her treatment failed to improve her function and my record can confirm that’.[83]
[82] E1, 239.
[83] E1, 249.
There is in evidence a complete record of medications Dr Aloe has prescribed Ms Khassouk between 30 November 2006 and 5 July 2024.[84]
[84] E1, 243.
Ms Khassouk underwent a blood test on 18 July 2024 and the results were reported by Australian Clinical Labs as mild anaemia and mildly raised ESR.[85] Dr Needs reviewed Ms Khassouk on 30 August 2024, and reported:
‘[Ms Khassouk] has an underlying chronic autoimmune disease, currently classified as lupus, but has evolved over a number of years. That is, the previous diagnoses of polyarteritis nadosa and rheumatoid arthritis were all part of the same autoimmune spectrum. The characteristic features of her autoimmune disease has been the propensity to develop cytopenias and haemophagocytic syndrome. At present time her autoimmune disease is being controlled, but not cured, with 6 monthly 1000mg rituximab infusions. Recently her ferritin is starting to rise at a level of 654 and hence I am arranging for her to have another 1000mg rituximab infusion in a few weeks.
The other issue that Mrs Khassouk has been experiencing is that of diffuse musculoskeletal pain classified as fibromyalgia which has been present for a number of years and been unresponsive to all measures used. Unfortunately some of the usual treatments for this condition are not able to be retried because of adverse reactions, especially excessive daytime sedation. She has also been having headaches associated with rises in diastolic blood pressure.’[86]
[85] E2, attachment.
[86] E1, 253.
Dr Aloe gave oral evidence that he believed Ms Khassouk’s impairments arise from autoimmune disease, rather than fibromyalgia; and agreed that the greatest problem Ms Khassouk faces in terms of her function is because of her pain. When asked in cross-examination what specific treatment Ms Khassouk has had for fibromyalgia, Dr Aloe gave evidence to the effect that treatment has included simple analgesics, non-steroid anti-inflammatory drugs, antidepressants including tricyclic, lyrica, physiotherapy and hydrotherapy; and that none of the treatment worked. Dr Aloe gave oral evidence to the effect that whilst rheumatologists have given different diagnosis over the years, he is Ms Khassouk’s treating doctor and the one who is looking after her. When asked whether with respect to autoimmune disease diagnosis he would defer to the opinions of expert rheumatologists, Mr Aloe’s evidence was that he has had different opinions from different rheumatologists, and with autoimmune disease he understands the symptoms interact and can overlap, and the management would be nearly the same.
Dr Reiter gave oral evidence that widespread pain and fatigue are symptoms associated with fibromyalgia. With respect to the treatment she recommended Ms Khassouk trial for her fibromyalgia, Dr Reiter explained at the hearing that usually when treating a rheumatological condition you start with one treatment and see how the person responds, so you know how effective that particular treatment is for the person and whether or not there are any side effects. Dr Reiter stepped through each treatment she had recommended in her written report for Ms Khassouk’s fibromyalgia and explained how long each of those would take to trial up to the maximum dose. Dr Reiter estimated it would take approximately 12 months for Ms Khassouk to trial all of the medications she has recommended. She explained that the recommended medications take time to be effective and a rheumatologist would stay at the lowest effective dose.
Lyrica is one of the medications Dr Reiter has recommended Ms Khassouk trial for fibromyalgia. At the hearing, Dr Reiter was informed that there is evidence before the Tribunal that Ms Khassouk was prescribed 75 milligrams of Lyrica to be taken twice a day on 28 November 2023 and 26 March 2024; and asked whether she considered those 2 prescriptions to be within what she would recommend for a patient in Ms Khassouk’s position. Dr Reiter gave evidence that it is not. Dr Reiter explained that she presumes Ms Khassouk is tolerating the Lyrica as she had been prescribed it for a second time and if she has not had any improvement in her symptoms due to a condition of fibromyalgia then Dr Reiter would gradually increase Lyrica up to a maximum dose of 300 milligrams twice a day. Dr Reiter gave further evidence the recommended medication has to be used by someone with expertise such as a rheumatologist knowing how to use those medications, knowing how to increase the dosage and how long they take to work.
Dr Reiter explained that inactive SLE means medicine prescribed by a rheumatologist is effective and the patient does not have any symptoms of that condition. With respect to the x-rays and bone mineral density scan Dr Reiter referred to in her report, Dr Reiter was asked at the hearing whether fractures are necessarily causative of pain. Dr Reiter gave evidence that one place a patient could have a fracture and not know is the thoracic spine, but if they do have symptomatic fractures of their thoracic vertebrae, those fractures heal and the pain resolves. Dr Reiter gave further evidence that the type of pain associated with thoracic spine fractures is quite focal to where the fracture level is, whereas the pain from fibromyalgia is quite profuse; and rheumatologists are trained to differentiate different types of pain and what is contributing to them so they can then provide further treatment. With respect to the results of Ms Khassouk’s blood test dated 18 July 2024, Dr Reiter gave evidence that raised ESR may indicate inflammation or infection; and the result needs to be interpreted by the treating rheumatologist within a specific context as it is not a standalone.
The Respondent arranged for Jessica Harper (Ms Harper), an occupational therapist, to conduct a functional capacity assessment of Ms Khassouk. Ms Harper assessed Ms Khassouk in her home on 13 February 2024 and prepared a report dated 11 March 2024. Ms Harper reported that the separate functional impact of each of Ms Khassouk’s diagnosis is unable to be clearly defined, and deferred to the medical experts for comment as to the conditions which cause her functional incapacity.[87] Ms Khassouk reported to Ms Harper that on a ‘bad day’ she experiences increased pain, reduced mobility and reduced function.[88] Ms Harper assessed that Ms Khassouk was independent with communication, social interaction, learning and self-management, and opined that any barriers for those activities are attributed to her mobility limitations.[89] With respect to the activities of mobility and self-care, Ms Harper assessed Ms Khassouk as requiring assistive technology or physical assistance with a number of tasks within each of those domains, and needing to use a modified technique to complete most other tasks within each of those domains.[90] With respect to particular movements, Ms Harper reported that Ms Khassouk’s ability to bend, twist, reach, lift and carry is significantly impaired by lower back pain; with general joint pain also impacting her ability to lift and carry, and shoulder pain also impacting her ability to reach; and her capacity for prolonged standing is restricted by weakness, fatigue, chronic pain and impaired sensation in her feet.[91]
[87] E1, 302.
[88] E1, 279.
[89] E1, 288, 289, 294, 306, 308, 309.
[90] E1, 289-293.
[91] E1, 307.
In oral evidence Ms Harper confirmed it was her understanding Ms Khassouk’s main limitations for self-care were related to widespread pain that is exacerbated with functional tasks. She confirmed concerns reported to her by Ms Khassouk during her assessment included pain, reduced mobility, and fatigue which could be made worse by pain.[92] She understood Ms Khassouk uses a 4-wheel walker because of pain, fatigue and risks of falls.[93] The Tribunal queried with Ms Harper the functional codes recorded in her report for specific tasks within the activities of mobility and self-care, and in oral evidence Ms Harper made appropriate corrections to those.
[92] Oral evidence.
[93] Oral evidence.
Fatima Haj (Ms Haj) is Ms Khassouk’s daughter. Ms Haj is married with 4 children and provides care and support to her mother.[94] Ms Haj estimates she spends 5 to 6 hours every day assisting or completing tasks for Ms Khassouk.[95] As at May 2024, Ms Haj reported things she helps Ms Khassouk to do include, but are not limited to, shopping, attending medical appointments, showering and house cleaning.[96] Ms Haj is unable to contribute financially to her own household, because her carer responsibilities prevent her from working.[97]
[94] E1, 241.
[95] E1, 241.
[96] E1, 241.
[97] E1, 241.
Ms Haj gave oral evidence that she helps Ms Khassouk with dressing and undressing, getting to and from the shower and washing her back, meal preparation, house cleaning, and getting to and from appointments, the chemist and the supermarket. Ms Haj confirmed in oral evidence that Ms Khassouk requires assistance from her because she cannot bend and is in a lot of pain; and that she spends 2 to 3 hours each morning and approximately 30 minutes each evening assisting Ms Khassouk.[98] With respect to Ms Khassouk’s blood test on 18 July 2024, Ms Haj gave oral evidence that she understood Ms Khassouk’s mildly raised ESR was indicative of active SLE, and that this is consistent with what Dr Needs told her during Ms Khassouk’s last review with him in late August 2024.
[98] Oral evidence.
Ms Khassouk gave oral evidence at the hearing. Ms Khassouk described her pain as being all over her body, and impacts her strength and ability to move her body. She uses a 4-wheel walker to mobilise in her home. She gave oral evidence that Ms Haj assists her with dressing, getting in and out of the shower, drying her body, household cleaning, brings her meals, and takes her to do her grocery shopping. When asked why Ms Haj helps her with dressing and getting dried, Ms Khassouk gave evidence it is because those tasks are painful for her. Ms Khassouk gave evidence she will on rare occasions drive herself to Ms Haj’s house, which is 5 minutes away and she has occasionally driven to her local chemist. She leans on a fence to get to and from the car on those occasions and does not use her 4-wheel walker.[99]
[99] Oral evidence.
With respect to her treating professionals, Ms Khassouk gave evidence that Dr Aloe has been her treating general practitioner for over 20 years, and she is also reviewed by Dr Needs every 6 weeks to 3 months who orders blood tests every 6 weeks and prescribes medication.[100] When asked in cross-examination whether she had been prescribed Tramadol, Ms Khassouk responded that she thought she had, it sounded familiar. With respect to hydrotherapy, Ms Khassouk gave evidence to the effect that it would be difficult for her to attend hydrotherapy because you need to go regularly, it costs a lot, her only income is a Disability Support Pension, and attending hydrotherapy would mean putting more pressure on Ms Haj to take her and ‘she does everything for me’.
[100] Oral evidence.
Having considered the evidence before it, and in particular that referred to above, the Tribunal finds as follows:
a) Ms Khassouk has an underlying autoimmune disease which has since at least 2020 been classified as SLE. Whilst in 2021 Dr Aloe recorded on Ms Khassouk’s NDIS Access form that she has polyarthritis nodosa in addition to SLE, the Tribunal prefers the evidence provided by Dr Richards, Dr Winkler and Dr Needs which is to the effect that Ms Khassouk’s autoimmune disease has evolved into or is now more appropriately diagnosed as SLE. Those rheumatologists have specialised knowledge of autoimmune conditions, and a consensus in relation to Ms Khassouk’s current diagnosis. The Tribunal has also given weight to Dr Reiter’s agreement with this diagnosis.
b) Whilst SLE is a life-long condition, Ms Khassouk’s SLE has been very effectively treated for some time and is currently inactive. In making this finding, the Tribunal has given significant weight to Dr Needs’ June 2023 opinion that Ms Khassouk’s SLE was inactive due to current treatment, Dr Reiter’s agreement with that opinion, and Dr Needs’ August 2024 opinion that Ms Khassouk’s autoimmune disease is being well controlled, but not cured, with 6 monthly 1000mg rituximab infusions. With respect to Ms Khassouk’s blood test result in July 2024 which were reported to indicate mildly raised ESR, the Tribunal has given no weight to Ms Haj’s evidence that result demonstrates Ms Khassouk’s SLE is in fact active in circumstances where she is not medically trained to interpret those results, and Dr Reiter’s evidence was that raised ESR is not a standalone indicator of active SLE and needs to be interpreted by Ms Khassouk’s treating rheumatologist within a specific context. The Tribunal has similarly given no weight to Ms Haj’s evidence that she was recently informed by Dr Needs that Ms Khassouk’s SLE is active, in circumstances where Dr Needs’ most recent evidence is that her SLE is being controlled, but not cured, by rituximab infusions.
c) In circumstances where Ms Khassouk’s SLE is well controlled and inactive, the Tribunal finds her autoimmune disease is currently asymptomatic. In making this finding, the Tribunal has given weight to Dr Reiter’s oral evidence that inactive SLE means medicine prescribed by a rheumatologist is effective and the patient does not have any symptoms of that condition. Given her specialised knowledge in relation to autoimmune diseases, the Tribunal preferred Dr Reiter’s evidence regarding this to that provided by Dr Aloe, which was to the effect that Ms Khassouk’s current pain is caused by her autoimmune disease.
d) In 2020 Ms Khassouk experienced a severe SLE flare and was diagnosed with autoimmune-driven HLH. She was for a period gravely ill, requiring admission to ICU and intubation. The Tribunal accepts Dr Needs’ evidence that a characteristic feature of Ms Khassouk’s autoimmune disease has been the propensity to develop HLH, however notes Dr Dunkley’s January 2021 evidence that Ms Khassouk’s HLH switched off with control of her SLE and risk should remain low with ongoing SLE control. There is no evidence that Ms Khassouk has experienced any HLH symptoms since her discharge from RPA in November 2020, and the Tribunal finds accordingly.
e) Dr Richards, Dr Winkler, Dr Dunkley and Dr Needs have all reported that a characteristic feature of Ms Khassouk’s autoimmune disease is reactive anaemia. The Tribunal accepts this evidence. The Tribunal notes that in 2020 Dr Dunkley was hopeful that once Ms Khassouk’s connective tissue disease was controlled, her anaemia would respond. Dr Winkler’s evidence in April 2021 that Ms Khassouk’s SLE and anaemia were stable suggests Dr Dunkley’s prediction with respect to this was correct. The Tribunal accepts that Ms Khassouk’s anaemia is generally stable when her autoimmune disease is well controlled.
f) Dr Reiter opined that Ms Khassouk, with her widespread pain and severe fatigue, meets the criteria for fibromyalgia. She further opined that Ms Khassouk’s widespread pain is due to her condition of fibromyalgia; and that widespread pain and fatigue are symptoms associated with fibromyalgia. Both Dr Winkler and Dr Needs have previously reported that Ms Khassouk has been diagnosed with fibromyalgia, and as recently as August 2024 Dr Needs reported that Ms Khassouk has been experiencing diffuse musculoskeletal pain classified as fibromyalgia. The Tribunal accepts this evidence and finds that Ms Khassouk has fibromyalgia, and her current pain and fatigue is due to her condition of fibromyalgia. With respect to Dr Aloe’s evidence that Ms Khassouk’s current pain is not caused by fibromyalgia, the Tribunal prefers the evidence of Dr Needs and Dr Reiter, because of their specialised knowledge and expertise.
Does Ms Khassouk have a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or one or more impairments to which a psychosocial disability is attributable?
For the purposes of s 24(1)(a), the Tribunal must be satisfied that Ms Khassouk has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments, or one or more impairments to which a psychosocial disability is attributable.
The concept of ‘impairment’ is generally understood as involving the loss or damage to a physical, sensory or mental function.[101] In Mulligan v National Disability Insurance Agency (Mulligan), Mortimer J observed that the term ‘disability’ is used in s 24 as a descriptive concept for the overall effect of a person’s impairments on that person’s abilities to participate in all aspects of personal and community life.[102] In National Disability Insurance Agency v Davis [2022] FCA 1002, Mortimer J noted that:
‘What the legislative scheme focuses on is not the name of a person’s disability, nor the diagnosis given to a person – but rather what are the impairments experienced by a person which may require supports so that the person can participate in all aspects of personal and community life. It is the impairment which the scheme contemplates may affect the “functional capacity” of a person’.[103]
[101] Mulligan v National Disability Insurance Agency [2015] FCA 544 (Mulligan), [51].
[102] Mulligan, [51].
[103] National Disability Insurance Agency V Davis [2002] FCA 1002 (Davis), [69].
The Access Guideline states:
When we consider your disability, we think about whether any reduction or loss in your ability to do things, across all life domains, is because of an impairment.
An impairment is a loss or significant change in at least one of:
·your body’s functions
·your body structure
·how you think and learn.
To meet the disability requirements, we must have evidence your disability is caused by at least one of the impairments below:
·intellectual – such as how you speak and listen, read and write, solve problems, and process and remember information.
·cognitive – such as how you think, learn new things, use judgment to make decisions, and pay attention
·neurological – such as how your body functions
·sensory – such as how you see and hear
·physical – such as the ability to move parts of your body.
You may also be eligible for the NDIS if you have a psychosocial disability. This means you have reduced capacity to do daily life activities and task due to your mental health.[104]
[104] National Disability Insurance Agency, NDIS Operational Guideline – Applying to the NDIS (Pre-legislation changes 14 October 2024) (Access Guideline), 6-7.
Ms Khassouk’s and Ms Haj’s evidence is to the effect that Ms Khassouk has long lived with pain and fatigue that impact her ability to mobilise and function. Ms Khassouk’s reporting in relation to her experience of pain and fatigue is irrefutably corroborated by reports in evidence from her treating rheumatologists, haematologist and general practitioner; and further confirmed by Dr Reiter. Whilst pain and/or fatigue will not always involve the loss or damage to a physical, sensory or mental function, the Tribunal is persuaded on the evidence before it that Ms Khassouk’s widespread musculoskeletal pain and fatigue impact her ability to mobilise and function, and that she does therefore have a disability that is attributable to physical impairments for the purposes of s 24(1)(a).
Both Dr Aloe (2022) and Dr Reiter (2023) reported that consistent with her diagnosis of Sjogren’s Syndrome, Ms Khassouk also experiences dry eyes and mouth (sicca symptoms). The Tribunal accepts that symptomology involves damage to Ms Khassouk’s physical function and is a physical impairment for the purposes of s 24(1)(a).
Dr Richards (2018), Dr Winkler (2021), Dr Aloe (2021), Dr Needs (2022 and 2024) and Dr Reiter (2023) also reported that Ms Khassouk experiences headaches. However, the evidence leaves to inference whether Ms Khassouk’s headaches involve the loss or damage to a physical, sensory or mental function. Accordingly, whilst accepting that Ms Khassouk does experience headaches, the Tribunal is not persuaded on the evidence before it those headaches could be construed as an impairment for the purposes of s 24(1)(a).
The Tribunal shares the Respondent’s view that the evidence does not demonstrate that Ms Khassouk experiences any loss or damage to a physical, sensory or mental function arising from anaemia or osteoporosis with associated bone fractures and finds those conditions do not give rise to any impairment for the purposes of s 24(1)(a). In making this finding, the Tribunal has also given weight to Dr Reiter’s oral evidence that a patient can have asymptomatic fractures in their thoracic spine.
For the reasons as outlined above, the Tribunal is satisfied Ms Khassouk has a disability that is attributable to physical impairments and the requirement in s 24(1)(a) is met.
Is the impairment or impairments likely to be permanent?
For the purposes of s 24(1)(b), the Tribunal must be satisfied that the impairment or impairments are, or are likely to be, permanent.
Paragraphs 5.4 to 5.7 of the Access Rules 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.
5.6 An impairment may require medical treatment and review before a determination can be made about whether the impairment is permanent or likely to be permanent. The impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated (even though the impairment may continue to be treated and reviewed after this has been demonstrated).
5.7 If an impairment is of a degenerative nature, the impairment is, or is likely to be, permanent if medical or other treatment would not, or would be unlikely to, improve the condition.
The Access Guideline states:
We need evidence that you’ll likely have your impairment for your whole life.
You might have some periods in your life where there is a smaller impact on your daily life, because your impairment may be episodic or fluctuate in intensity. Your impairment can still be permanent due to the overall impact on your life, and the likelihood that you will be impacted across your lifetime.
Even when your condition or diagnosis is permanent, we’ll check if your impairment is permanent too. For example, you may not be eligible if your impairment is temporary, still being treated, or if there are remaining treatment options.
Generally, we’ll consider whether your impairment is likely to be permanent after all available and appropriate treatment options have been pursued. …
… 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.
In some situations, it may be clear your impairment is likely to be permanent while you’re still undergoing treatment or rehabilitation. For example, you may still need treatment and rehabilitation for a spinal cord injury, but it’s clear you’ll have a permanent impairment.
You might still have a permanent impairment, even if its effects may change over time. For degenerative impairments, or those that get worse over time, we consider them permanent if treatment isn’t likely to help or improve the impairment’s effects.
Within the context of s 24(1)(b), a permanent impairment is an impairment which is of an enduring nature.[105] In National Disability Insurance Agency v Davis (Davis) Mortimer J considered the meaning of ‘known, appropriate and available’ within the context of Rule 5.4 and explained the word ‘known’ means a treatment which can be identified by an Australian medical professional as suitable for a person’s particular impairment;[106] the word ‘available’ means available to a particular individual;[107] and the word ‘appropriate’ means a treatment which has a capacity to ‘remedy’ the impairment and is suitable for the particular individual to undergo.[108] Mortimer J further explained that the word ‘remedy’ in Rule 5.4 means something approaching a removal or cure.[109]
[105] Davis, [85], [130].
[106] Davis, [137].
[107] Davis, [138].
[108] Davis, [137].
[109] Davis, [136].
It is in contest between the parties whether Ms Khassouk’s physical impairments are, or are likely to be, permanent. The Respondent contends that physical impairments associated with SLE are not permanent, or are not likely to be permanent, as they are currently being managed through treatment.[110] With respect to impairments experienced by Ms Khassouk as a result of Sjogren’s Syndrome or HLH, the Respondent contends it is unclear whether those impairments are not addressed by the treatment Ms Khassouk has been receiving for SLE.
[110] RSFIC, [26]-[28].
The Respondent contends that the widespread pain Ms Khassouk is experiencing is related to fibromyalgia, and that any impairments arising from fibromyalgia are not, or are not likely to be permanent.[111] The Respondent further contends that there is insufficient evidence for the Tribunal to be satisfied that there is no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy any impairment associated with fibromyalgia.[112]
[111] RSFIC, [30]-[31].
[112] RSFIC, [32].
Based on Ms Khassouk’s sicca symptoms, pain and fatigue, the Tribunal was satisfied Ms Khassouk has a disability attributable to physical impairments. The issue arising from that is whether those physical impairments are permanent.
With respect to Ms Khassouk’s sicca symptoms, the Tribunal notes Dr Aloe’s record regarding Ms Khassouk’s treatments included various eye drops and Nilstat for dry mouth. In November 2023, Dr Reiter recorded Ms Khassouk’s current treatment includes Nilstat as required.[113] There is no evidence to suggest those treatments are ineffective, and in those circumstances, the Tribunal considers they remedy Ms Khassouk’s sicca symptoms. On this basis, the Tribunal finds Ms Khassouk’s sicca symptoms are not permanent for the purposes of s 24(1)(b).
[113] E1, 257.
The Tribunal needs to consider whether there are any known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy Ms Khassouk’s pain and fatigue (physical impairments).[114] The Tribunal has found that Ms Khassouk’s SLE is inactive and asymptomatic, she has had no symptoms of HLH since being discharged from RPA in November 2020, her anaemia is stable, and her physical impairments are due to fibromyalgia. Dr Reiter’s evidence is that Ms Khassouk’s fibromyalgia has not been treated, and she would recommend she be treated with NSAIDS, simple analgesics, moderate analgesics, Tricyclic anti-depressants, anti-depressants, anti-epileptics, gentle exercise, hydrotherapy and naloxone. Dr Reiter gave evidence to the effect that it is important these treatments are introduced one at a time, and that dosages of particular medications are gradually increased over time, to determine the effectiveness of the recommended treatment.
[114] Access Rules, r 5.4.
In September 2023, Dr Winkler reported she had discussed with Ms Khassouk techniques for managing her joint pain, however the details of those techniques are left to inference. In June 2021, Dr Needs reported that panadeine forte helped Ms Khassouk’s fibromyalgia symptoms. In June 2023, Dr Needs reported that he had reviewed Ms Khassouk in relation to the ongoing management of her chronic conditions of SLE and fibromyalgia. He noted she is on long term panadeine forte, however he did not expressly state whether that is to treat Ms Khassouk’s fibromyalgia. In August 2024, Dr Needs reported that Ms Khassouk’s diffuse musculoskeletal pain classified as fibromyalgia had been unresponsive to all measures used, and that unfortunately some of the usual treatments for this condition are not able to be retried because of adverse reactions, especially excessive daytime sedation. Unfortunately, Dr Needs does not particularise what treatments had been tried, what those trials involved (for example the dosage of particular medications), which treatments were tolerated but ineffective, and which treatments had adverse reactions.
When asked at the hearing what specific treatment Ms Khassouk has had for fibromyalgia, Dr Aloe suggested that treatment had included simple analgesics, NSAIDS, antidepressants, Lyrica, physiotherapy and hydrotherapy. In evidence is a list of medications Dr Aloe prescribed Ms Khassouk between 30 November 2006 and 5 July 2024. That list suggests Ms Khassouk was prescribed Lyrica on 28 November 2023 and 26 March 2024, and on each of those occasions the dosage was 75 milligrams twice a day;[115] however, it does corroborate Dr Aloe’s oral evidence that each and every one of those treatments has been tried, nor tried in the way recommended by Dr Reiter.
[115] E1, 252.
There is evidence Ms Khassouk received physiotherapy following her hospitalisation in 2020 to address generalised deconditioning on a background of SLE/Sjogren’s Syndrome and fibromyalgia; and that she has been referred on a number of occasions for hydrotherapy.[116] Ms Khassouk’s evidence is that she cannot afford hydrotherapy on a DSP, and her reliance on Ms Haj to get to and from hydrotherapy would place further pressure on Ms Haj who already does so much for her.
[116] E1, 112, 340.
On the basis of evidence as outlined at paragraphs [65] to [67], the Tribunal finds that contrary to Dr Reiter’s evidence that Ms Khassouk has not had any treatment for fibromyalgia, she had in fact had some albeit that the particulars of that are unclear. The Tribunal gives some weight to Dr Needs evidence that Ms Khassouk’s diffuse musculoskeletal pain classified as fibromyalgia has been unresponsive to all measures used, and that some of the usual treatments for fibromyalgia are unable to be retried because of adverse reactions.
However, in the absence of further particulars as referred to at paragraph [65] in relation to the treatment Ms Khassouk has in fact received for fibromyalgia, the Tribunal is persuaded by and gives significant weight to Dr Reiter’s evidence that the treatment referred to in her report dated November 2023 for fibromyalgia, administered in the way she described in oral evidence, could improve Ms Khassouk’s day to day functioning and allow her to be independent in her activities of daily living; and Ms Khassouk requires treatment before Dr Reiter could determine or offer an opinion on whether the treatment she has recommended would be likely to remedy Ms Khassouk’s impairment or improve the underlying condition. For these reasons, the Tribunal is not persuaded there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy Ms Khassouk’s physical impairments;[117] and the Tribunal finds Ms Khassouk’s physical impairments require medical treatment and review before a determination can be made about whether those impairments are permanent or likely to be permanent.[118] Accordingly, the Tribunal is not satisfied that Ms Khassouk’s physical impairments are, or are likely to be, permanent and the requirement in s 24(1)(b) is not met. It follows that Ms Khassouk does not meet the disability requirements in s 24(1).
[117] Access Rules, r 5.4.
[118] Access Rules, r 5.6.
Does Ms Khassouk meet the early intervention requirements?
Section 25(1)(a) requires that the person has one or more identified intellectual, cognitive neurological, sensory or physical impairments that are, or are likely to be, permanent; or has one or more identified impairments to which a psychosocial disability is attributable and that are, or are likely to be permanent; or is a child who has developmental delay.
As has already been noted, Ms Khassouk does not rely on an impairment to which a psychosocial disability is attributable for access to the NDIS.[119] Nor is Ms Khassouk a child.[120]
[119] s 25(1)(a)(ii).
[120] s 25(1)(a)(iii).
The meaning of ‘permanent’ in s 25(1)(a)(i) is consistent with that in s 24(1)(b). The Tribunal has already determined that Ms Khassouk’s physical impairments are not permanent for the purpose of s 24(1)(b). For the same reasons provide in relation to that determination, the Tribunal is not satisfied Ms Khassouk meets the requirement in s 25(1)(a)(i). It follows that Ms Khassouk does not meet the early intervention requirements in s 25.
In circumstances where Ms Khassouk does not meet the disability requirements in s 24 or the early intervention requirements in s 25, the Tribunal finds Ms Khassouk doe not meet the access criteria to become a participant of the NDIS.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding seventy-four (74)
paragraphs are a true copy of the reasons
for the decision herein of General Member L Proske
……[SGND]………………………..
Associate
Dated: 20 November 2024
Date of hearing: 17, 18, 20 September 2024
Advocate for the Applicant: Ms Fatima Haj
Counsel for the Respondent: Ms Amy Douglas-Baker
Counsel
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