Kirgiz and National Disability Insurance Agency

[2023] AATA 3540

Kirgiz and National Disability Insurance Agency [2023] AATA 3540 (26 October 2023)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number:          2020/4796

Re:SERIF KIRGIZ  

APPLICANT

NATIONAL DISABILITY INSURANCE AGENCYAnd  

RESPONDENT

DECISION

Tribunal:Senior Member Katter

Date:26 October 2023

Place:Brisbane

The decision under review is set aside and it is decided in substitution that the Applicant meets the access criteria in section 21(1)(a), (b) and (c)(i) of the National Disability Insurance Scheme Act 2013 (Cth).

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

Senior Member Katter

CATCHWORDS

NATIONAL DISABILITY INSURANCE AGENCY – access criteria – impairments –permanent impairments – whether impairments result in substantially reduced functional capacity – decision under review set aside

LEGISLATION

Administrative Appeals Tribunals Act 1975 (Cth)

National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)

CASE
National Disability Insurance Agency v Foster [2023] FCAFC 11

REASONS FOR DECISION

APPLICATION

1. This is an application for review[1] of a decision regarding ‘access’[2] to the National Disability Insurance Scheme. 

   BACKGROUND

   [1]           T1, pages 1-7.

   [2]           T1, page 11.

   2.There is an access request form[3], which states on the final page that it was signed on 1 March 2019.[4]  At part F of that form it has the heading, “Your disability, or need for early intervention supports”[5] and a “professional”, Dr S. Saban,[6] stated on the form:[7]

   [3]           T1, page 54.

   [4]           T1, page 61.

   [5]           T1, page 57.

   [6]           MD, MRCP(UK).

   [7]           T1, page 58.

   “Length of time you have known or treated the person making the request?  Since 11-6-96
   Primary disability and any second disabilities:  Coronary artery disease.  Had acute Myocardial infraction
   Congestive heart failure
   Had heart transplant
   Current treatment (if any):  Under Cardiology and Heart transplant unit 5 at Alfred Hospital on multiple medications …
   Also has lumbar disc hernia causing constant lower back and leg pain
   Also has chronic neck pains.
   Does the person require assistance to be mobile because of their disability?
   Yes …
   Has very poor exercise tolerance due to heart failure and lumbar disc hernia – needs help from other person for mobility
   Does the person require assistance to interact socially because of their disability?
   … Has anxiety & depression with unstable emotions and feeling …
   Does the person require assistance with self-care because of their disability?  Needs assistance from a person due to constant low back pains caused by lumbar disc-hernia” 

   3.By correspondence dated 17 June 2020[8] a “delegate of the Chief Executive Officer” of the Respondent stated:[9]

   “I am writing to let you know the outcome of your request to access the National Disability Insurance Scheme … . Unfortunately, based on the information provided you do not meet the access requirements set out in the National Disability insurance Scheme Act 2013 … to become a participant of the NDIS. …
   Section 24 of the NDIS Act outlines specific disability requirements to access the NDIS. Based on the information provided, you do not meet these requirements.
   More specifically, the requirement in:
   

   [8]           T1, page 78.

   [9]           Ibid.

   Section 24(1)(b) of the NDIS Act, which requires that you must have an impairment which is permanent, or likely to be permanent.”

   4.There is a letter from the Applicant requesting review dated 8 July 2020:[10]

   “To date, I have submitted multiple documents referenced by my specialists and GP providing a detailed outline of my current conditions I would like to address these below in point form as I believe there may have been a misunderstanding on part of NDIS assessor who stated that my disability is not permanent in nature, even though the detailed reports clearly demonstrate that I am unable to perform usual daily tasks

   1   I suffered multiple heart attacks in 2012 leading to heart failure, which was the turning point in my ability to take care of my self and perform normal daily activities I had been noted as permanently disabled from this point on

   2   In 2014, after 2 years of treatment for heart failure, I was lucky enough to have gained enough strength, remain stable and be apart of the Alfred Hospital’s heart transplant service that identified a suitable heart to replace mine I successfully underwent this significant procedure in April 2014

   3   Since 2014 I have been through many treatments, scans/tests, hospital visits and a lot of rehabilitation All of which were frequent in nature and continue to be in order to maintain my health and review medication to ensure quality of life within means

   4   Although grateful for my second chance of life, the surgeries/procedures, medication and ongoing rehabilitation have only been able to bring me to a certain point in my recovery I am only able to complete daily tasks while experiencing constant tiredness/fatigue, limited movement etcetera because of what I have been through and continue to go through to maintain my current ‘recovered’ state

   5   Further to my heart condition, my sciatica adds to my limited movement and ability to perform”

   [10]          T1, page 80.

   5.By a letter dated 28 July 2020 a “Delegate of [the] Chief Executive Officer” of the Respondent stated:[11]

   “I am writing in response to your request received on 21 July 2020, that we review our earlier decision (under section 100 of the NDIS Act 2013) made on 17 June 2020 that you did not meet the access criteria to become a participant of the National Disability Insurance Scheme … (section 20 of the NDIS Act 2013). …
   

   [11]          T1, pages 42 and 43.

   After careful consideration of your review request and the evidence you have provided, I have decided to confirm the earlier decision.  This means that you will not be able to access the NDIS at this time.  As discussed over the phone with Akkiz Dursun (Authorised Representative on your record) on 27 July 2020 the main issues with your application are the criteria for permanency, substantially reduced functional capacity and whether the supports you require are most appropriately funded by the NDIS.” 

   6.The Applicant made application to the Tribunal on 10 August 2020.[12]  The Applicant states 28 July 2020 as the date the Applicant received the decision the Applicant ‘wants’ reviewed.[13]  As to why the Applicant ‘claimed the decision is wrong’, the application states:[14] 

   “Serif applied for the … NDIS for her permanent disability she is currently suffering from.  It is strongly believed that the decision or rejection made by NDIS should be reviewed once again as Serif is in high needs of the support it has to offer.
   Serif has been diagnosed with severe canal encroachment at L4/5.  Moderate Canal Stenosis at T 12/L1 and L5/S. 
   Severe narrowing of bilateral L5 foramen with neural impingement.  This causes weakness in her left leg resulting in difficulties in walking and often her knee will give in resulting her to instantly fall.  This is a high risk for Serif and needs supervision and support at all times. 
   Together with these, Serif also suffers from depression due to her known medical conditions limiting her time spent in the community and social gatherings.  Serif can not complete self care tasks at once, she needs to pace herself.  For example, if she was to shower, she will have to rest and get dried and dressed in almost an hour due to the pain levels she will be facing.  She can not clean or cook for herself, she can not do grocery shopping or attend the community without assistance and support of another.  Her medical conditions are life long and permanent, getting worse by day, putting her life on delay due to being constantly dependent on other people. 
   

   [12]          T1, page 1.

   [13]          T1, page 5.

   [14]          T1, page 6.

   Taking all of the above into consideration, we are in need of this application to be reviewed again to be able to support Serif with therapy services including Occupational Therapy, Physiotherapy and Psychology together with support workers to assist in self care and community participation.”   

   7.There was a hearing on 17 and 18 July 2023.[15]  The Applicant filed submissions on 7 August 2023.  The Respondent then filed submissions on 29 August 2023.  On 30 August 2023 the Applicant stated that there was not a ‘need to further respond to the [Respondent’s] submissions’. 

   [15]          Transcript, 17 July 2023.

   DISABILITY REQUIREMENTS

2. The Applicant made on or about 22 February 2019 an access request,[16] as required by section 18 of the National Disability Insurance Scheme Act 2013 (Cth) (the “Act”).

   [16]          T1, page 54.

3. The parties did not submit that there cannot be ‘satisfaction’ as to age and residence of the Applicant, according to section 21(1)(a) and (b) of the Act.

4. The parties submitted that the issue in contention was whether there was ‘satisfaction’, as required by section 21(1)(c)(i) of the Act, that the Applicant meets the disability requirements in section 24 of the Act.

5. The Applicant did not submit that the Applicant met the early intervention requirements in section 25 of the Act and evidence was not led by the Applicant particularly as to section 25.[17] 

   [17]          Transcript, 17 July 2023, page 7 lines 8-10.

6. The Respondent submitted that the Applicant has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory, or physical impairments, or has one or more impairments to which a psychosocial disability is attributable: ischaemic cardiomyopathy (and resultant heart transplant), chronic lower back and left leg pain, chronic neck pain and right femoral nerve injury.  The Applicant referred also to coronary artery disease, type-2 diabetes (steroid induced), bi-polar disorder, depression and anxiety and thalassemia, but submitted that the “main disability is [the Applicant’s] chronic low back pain” and that “whilst [the] main condition is … lower back pain, … other disabilities may result in future impairments”.  The Respondent submitted that there is insufficient evidence that the Applicant experiences any disability attributable to the diagnoses of thalassemia, coronary artery disease and type-2 diabetes. 

7. Section 24(2) states that for the purposes of sub-section 24(1), impairments that vary in intensity may be permanent. The Applicant submitted that the impairments attributable to chronic lower back pain, left leg pain and chronic neck pain are permanent according to section 24(1)(b) of the Act. As to the requirement in section 24(1)(b) of the Act, that the impairment or impairments are or likely to be, permanent, the Respondent submitted that the Applicant’s physical impairments attributable to chronic lower back and left leg pain and chronic neck pain are permanent.

8. As to whether the impairment or impairments that are not in contention (chronic lower back pain, left leg pain and chronic neck pain) result in substantially reduced functional capacity to undertake one or more of the activities, the Applicant submitted that the Applicant has substantially reduced functional capacity, particularly in relation to mobility.  The Applicant stated:[18]

   [18]          Transcript, 17 July 2023, page 15 line 35 to P-16 line 21.

   “I can’t do my housework.  I can’t do my cleaning.  I can’t do shopping.  …  I had troubles to go and see my doctors.  My friend take me sometimes, but I can’t go by myself to go and see the doctor.   When my pain is bad, all I can do is take medication and stay in bed.  I can’t do anything when I’m having a bad pain day.  It’s not only my back pain; I also have problem with my heart.  And suddenly I get tired very suddenly.  I pass out  … .  I have a constant pain right here in my chest, and I can’t do much with my hands because I get tired very quickly and it just and it just like stops me.  I can’t go for a walk.  I can’t do things like that because of this pain.  I am alone at home.  I don’t have anyone.  When I have these things, I can’t do anything about them.  Just lie down and do nothing. … The chest problems started after the operation nine year ago, but my back problem and the leg problem has been going on for a long time.  And whenever that happens, I can’t do anything.  We called the ambulance quite a few times.  It’s been going on long, long time. … It’s been minimum 10 years.  But in the last four, five years, it just became worse.  It just became, you know, I have more pain.  Because of this pain, I can’t even sleep properly.  I can’t lie on my left side because of all the problem with heart problem.  I can’t lie on my back because I can’t breath properly, and because I’ve been lying on my right side all the time, my right side is getting problems.  Because of all this problems, pains, and not being able to do anything, it’s … in me and gives me anxiety.  And then when I think about these things or whenever I wonder things, I started shaking and I had to put my hands under my armpits to calm myself down … .  If it is a bad day, I just stay in bed.  If I have pains, I just take my medications, stay in bed.  If I am feeling a little better, I make something for myself to eat.  A lot of times it is frozen foods; I just heat them … If I am feeling really good, I might go outside if it is a sunny day sit in the garden or in front of the house, and I might go for a 5-10 minute walk because I can’t do any more because of my – I get very tired very easily.  I have shortness of breath.”

9. The Respondent submitted that the Applicant’s back and leg pain fluctuated in severity, and on a ‘bad day’ the Applicant remained in her bed or on the couch, and on a ‘good day’ was able to walk in front of the house on the footpath using a frame for 5-10 minutes.  The Applicant stated that she ‘experiences a bad day 3-5 days a week’.  Ms Houston, the occupational therapist, stated that the Applicant’s fatigue from over-exertion required a period to rest.  The accepted impairments, as referred to above, do result in a reduced functional capacity to undertake the activity of mobility, although the impairments do not result in substantially reduced functional capacity as to mobility.

   16.In the Applicant’s application to the Tribunal of 10 August 2020,[19] as referred to above, where the Applicant referred to ‘why the decision is wrong’ there are references to ‘self-care’ particularly.  As to whether the particular impairments (chronic lower back pain, left leg pain and chronic neck pain) result in substantially reduced functional capacity to undertake self-care, the Applicant’s physiotherapist stated that whilst the Applicant can shower herself independently, the Applicant needs to rest and is unable to get dressed straight away owing to tiredness, weakness and numbness as well as intense pain.  Doctor Drnda stated that ‘self-care is possible with significant difficulties’.  Ms Houston, the occupational therapist, stated that the Applicant is independent, but that the Applicant’s self-care is ‘slow and modified’, where the Applicant ‘would be better off at a home that did not have stairs’.[20]  The Applicant referred to using a shower chair, to heating and preparing some foods and to doing lower, ‘lighter’ cleaning tasks.  The Respondent submitted that:[21]

   [19]          T1, page 1.

   [20]          Transcript, 17 July 2023, page 44 lines 42-46.

   [21]          Submissions of the Respondent, filed 29 August 2023, paragraph 36.

   “The Respondent accepts the Applicant experiences a reduction in functional capacity to perform heavy duty cleaning and laundry tasks.  The Respondent submits the Applicant’s impairment in all other tasks fall within self-care, or be it she may complete certain tasks in a modified or slower manner.  In applying Foster at [65], the Tribunal must consider a bundle of tasks that make up the activity in assessing whether an Applicant has a substantial reduction in functional capacity in considering what task the Applicant can and cannot do, the Respondent submits that the Applicant’s inability to effectively complete an aspect of the task of cleaning and laundry, does not demonstrate a substantial reduction in functional capacity in the activity of self-care.”

10. The application form to the Tribunal, as referred to above, stated that the Applicant:  “ … can not complete self care tasks at once, she needs to pace herself.  For example, if she was to shower, she will have to rest and get dried and dressed in almost an hour due to the pain levels she will be facing.  She can not clean or cook for herself, she can not do grocery shopping or attend the community without assistance and support of another.’  As also referred to above, the Applicant stated that the Applicant cannot do housework, cleaning, shopping and cannot go to the Doctors by herself.  The Applicant stated that the Applicant ‘tries to do stuff around the house but can’t’.  That is, if it is a ‘bad day’, the Applicant ‘just stays in bed’.  ‘That by reason of the lumbar disc being injured, which is causing back and leg pain, sometimes when the Applicant is walking, the Applicant’s knee gives way and the Applicant stumbles’.  The Applicant stated that the left leg is weak and painful and that underneath the left foot one side is always numb and the side of the leg from the knee to the ankle is very numb and sometimes the Applicant feels nothing.  Further, that the nerve damage has caused problems with going to the toilet and that there is pain all the time. 

11. Ms Houston, the occupational therapist, stated that the Applicant reported that when the pain is higher, the Applicant has to crawl on the stairs because of the fear of falling and her leg giving way.[22]  Ms Houston stated that the Applicant was able to walk for very short distances, but that is when holding onto the walls or furniture.[23]  That when the Applicant does go shopping the Applicant is able to walk with a small amount of shopping in one hand and uses the shopping rail, but ‘the rest of it is what her son would do when he comes and visits to bring the rest of the shopping up’.[24]  That the Applicant ‘effectively does not do anything if her pain is high for her and stays in bed’.[25] Ms Houston stated that the Applicant self-reported that when she does her shopping she can walk up the stairs carrying a grocery bag in one hand and support herself with the other,[26] and that she “obviously has come up with an adaptive method of still going up and down the stairs when she is probably not feeling as safe by crawling or sitting and just ‘bum-walking’ similar to that aspect of whether she is actually not having to take a step but using other ways of mobilising up and down the stairs safely.”[27]  Ms Houston further referred to a chair-lift, which is a mechanical device to get to the top of the stairs, with that only potentially being used when the Applicant is really in pain, but being preferable to crawling up the stairs.[28]  Ms Houston in response to the question whether the Applicant needs assistance, particularly from her son, stated “yes, I know.”[29]

    [22]          Transcript, 17 July 2023, page 35 lines 30-32.

    [23]          Transcript, 17 July 2023, page 35 lines 44-46.

    [24]          Transcript, 17 July 2023, page 36 lines 6-10.

    [25]          Transcript, 17 July 2023, Page 36 lines 32-35.

    [26]          Transcript, 17 July 2023, page 38 lines 32-35.

    [27]          Transcript, 17 July 2023, page 38 lines 35-39.

    [28]          Transcript, 17 July 2023, page 39 lines 22-25.

    [29]          Transcript, 17 July 2023, page 53 line 36.

12. The impairments accepted by the Respondent, as referred to above, do result, when considered as a ‘bundle of tasks’ that make up the activity, in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, the activity of self-care. The Applicant’s impairments, chronic lower back and left leg pain and chronic neck pain, do result in substantially reduced functional capacity to undertake self-care, as stated in s 24(1)(c)(v) of the Act.

1. Where the Applicant has a disability that is attributable to one or more physical impairments, where those impairments are, or are likely to be permanent and where the impairments result in substantially reduced functional capacity to undertake self-care, the impairments affect the Applicant’s capacity for social or economic participation. The impairments of chronic lower back and left leg pain and chronic neck pain do affect the Applicant’s capacity for social and economic participation, having regard to all the evidence referred to above, according to s 24(1)(d) of the Act.

2. The Respondent submitted that whether section 24(1)(e) of the Act is satisfied depends on whether the support is required in respect of substantially reduced functional capacity to participate in an activity as assessed in accordance with section 24(1)(c), referring to Foster at [93].[30] The Respondent submitted that the Applicant does not satisfy section 24(1)(c) of the Act and therefore is not likely to require support under the scheme for the person’s life-time as required by section 24(1)(e). As referred to above, the pain has been with the Applicant for ten years and in the last four to five years it has become worse, although as referred to above, it varies in intensity.[31] Section 24(2) of the Act states that for the purposes of subsection 24(1), impairments that vary in intensity may be permanent, and the person is likely to require support under the scheme for the person’s lifetime, despite the variation. The Applicant is likely to require support under the scheme for the Applicant’s lifetime, as stated in s 24(1)(e) of the Act.

   [30]          National Disability Insurance Agency v Foster [2023] FCAFC 11.

   [31]          Transcript, 17 July 2023, page 15 line 35 to page 16 line 21.

3. The Applicant does therefore meet the disability requirements in section 24(1)(a)-(e) of the Act. The Applicant therefore meets the access criteria in section 21(1)(c)(i) of the Act.

   DECISION

4. The decision of the Respondent of 28 July 2020 is set aside and it is decided in substitution that the Applicant meets the access criteria in section 21(1)(a), (b) and (c)(i) of the National Disability Insurance Scheme Act 2013 (Cth).[32] 

   [32]          Administrative Appeals Tribunal Act1975 (Cth), section 43(1)(c)(i).

I certify that the preceding 23 (twenty-three) paragraphs are a true copy of the reasons for the decision

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

Associate

Dated:   26 October 2023

Dates of Hearing:     17 and 18 July 2023

Applicant:                Mr G. Wells, Victoria Legal Aid

Respondent:             Ms T. Weir, HWL Ebsworth