Lampard and National Disability Insurance Agency

[2024] AATA 3150

Lampard and National Disability Insurance Agency [2024] AATA 3150 (4 September 2024)

Division:GENERAL DIVISION

File Number:          2022/3510

Re:Carol Lampard

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Greg Melick AO SC, Deputy President

Date:04/09/2024

Place:Hobart

The Tribunal sets aside the decision under review pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) and decides in substitution that the Applicant meets the disability requirements for access to the National Disability Insurance Scheme as set out in section 24 of the National Disability Insurance Act 2013 (Cth).

...................................[signed].....................................

Greg Melick AO SC, Deputy President

Catchwords

NATIONAL DISABILITY INSURANCE SCHEME – access criteria – permanence – substantially reduced functional capacity – Anorexia and other conditions – early intervention requirements – disability requirements – functional capacity – self-care – whether the Applicant is to be granted access – decision under review set aside and substituted.

Legislation

National Disability Insurance Scheme Act 2013 (Cth)

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

Cases

Galea and National Disability Insurance Agency [2022] AATA 2263

Madelaine and National Disability Insurance Agency [2020] AATA 4025

McCutcheon and National Disability Insurance Agency [2015] AATA 624

MRLK and National Disability Insurance Agency [2021] AATA 3896

National Disability Insurance Agency v Davis [2022] FCA 1002

Rooney and National Disability Insurance Agency [2021] AATA 3523

Re Schwass and National Disability Insurance Agency [2019] AATA 28

Williams and National Disability Insurance Agency [2021] AATA 3383

Secondary Materials

Explanatory Memorandum to the National Disability Insurance Scheme Bill 2012 (Cth)

National Disability Insurance Scheme Guidelines, Becoming a Participant – Applying to the NDIS

REASONS FOR DECISION

Greg Melick AO SC, Deputy President

04/09/2024

BACKGROUND

1. The Applicant, Ms Carol Lampard, aged 67, seeks review of a decision made by the National Disability Insurance Agency (the Respondent) affirming an earlier decision to refuse her request for access to the National Disability Insurance Scheme (the NDIS) under provisions of the National Disability Insurance Scheme Act 2013 (Cth) (the Act).

2. The Applicant has been diagnosed with Anorexia Nervosa (‘Anorexia’), Major Depressive Disorder, Anxiety, and Compulsive Adjustment Disorder. The Applicant has also been diagnosed with numerous physical conditions, being: Chronic Obstructive Pulmonary Disorder (‘COPD’), Osteoporosis, Degenerative Disc Disease, Disc Bulge and Stenosis, Chronic Papillomavirus leading to incontinence, and Irritable Bowel Syndrome. She takes regular medication for the treatment of some of these conditions.

   The Applicant lodged her application for access to the NDIS on 16 September 2021. This was initially declined on 28 October 2021, with the Applicant lodging a subsequent request for an internal review of the decision.[1] The internal review affirmed the original decision to deny access on 23 March 2022, primarily on the grounds of permanence and substantially reduced functional capacity.[2]

   [1] Documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (‘TD’) T2 50.

   [2] Ibid.

3. The Applicant applied to the Tribunal for review of this internal review decision on 28 April 2022. A hearing was held on 14 and 15 December 2023. A further directions hearing was held on 10 April 2024 to determine issues of new evidence raised in closing written submissions.

ISSUES

1. The issue before the Tribunal is whether the Applicant meets the access criteria in s 21 of the Act. There is no dispute that the Applicant satisfies ss 21(1)(a) and (b) of the Act. The issues are confined to consideration of if the Applicant satisfies either ss 21(1)(c)(i) (‘disability requirements’) or (ii) (‘early access requirements’) of the Act.

LEGISLATION

1. To become a participant in the NDIS, the Applicant must satisfy the access criteria set out in subsection 21(1) of the Act, which provides as follows:

   A person meets the access criteria if:

   (a)the CEO is satisfied that the person meets the age requirements (see section 22); and

   (b)the CEO is satisfied that, at the time of considering the request, the person meets the residence requirements (see section 23); and

   (c)the CEO is satisfied that, at the time of considering the request:

   (i)     the person meets the disability requirements (see section 24); or

   (ii)    the person meets the early intervention requirements (see section 25).

2. There is no dispute the Applicant satisfies the age requirements and the residence requirements. Only the disability requirements and the early intervention requirements are contentious.

3. Section 24 of the Act states:

   1A 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.

   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.

4. Section 25 of the Act states:

   1A 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.

   …

5. The Minister may, under subsection 209(1) of the Act, make rules prescribing matters. The rules relevant to this matter are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (‘the Access Rules’), which form part of the legislation, and are set out in part below.

6. The Rules provide guidance about when an impairment is permanent or likely to be permanent. Rules 5.4 to 5.7 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.

7. Rule 5.8 relevantly provides that:

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

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

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

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

8. The NDIS Operational Guidelines also assist in making decisions in accordance with the Act. Operational Guidelines represent government policy and should be applied by the Tribunal unless there is good reason not to do so.[3] The relevant Operational Guideline is Our Guidelines – Becoming a Participant – Applying to the NDIS (Operational Guideline).[4]

   [3] Pomeroy and National Disability Insurance Agency [2018] AATA 387 at [10]; Re Drake and Minister for Immigration and Ethnic Affairs(No 2) [1979] AATA 179; (1979) 2 ALD 634; (1979) 2 ALD 60.

   [4] National Disability Insurance Scheme Guidelines, Becoming a participant – Applying to the NDIS, 1 February 2024 (‘Guidelines’).

EVIDENCE

Ms Carol Lampard

1. The Tribunal was assisted by a Statement of Lived Experience and a supplementary statement of Ms Lampard.

2. In her Statement of Lived experience Ms Lampard wrote that she struggles with constantly feeling tired, motivation to leave the house, as a result of her anxiety, walking to the shops and using public transport, and driving (as she is afraid of causing injury to someone else).

3. She also wrote that she finds it very difficult to interact with others and talk to strangers. She wrote that she is withdrawn and stressed by social situations, and requires the assistance of her sister. She wrote that often she will stay in her home from months at a time and finds it difficult to speak with people. She wrote that she does not attend events or family gatherings and only goes places with her sister.

4. She further wrote that she struggles with learning new things, such as instructions which give her stress, and that the medications she is on cause her mind to be foggy, leading to struggles with concentration.

5. She wrote that she struggles with caring for herself as she does not have the motivation nor the energy or ability to do these tasks. She wrote that she relies heavily on her sister for assistance, including with tasks such as bills and budgeting.

6. In her supplementary statement Ms Lampard wrote that she does not leave the house due to the embarrassment of her bowel issues. She also wrote that she is afraid of falls and that her back and leg pain cause her issues in this regard.

7. She also wrote further about the impact of her having to change her bedding and clothing due to her bowel incontinence, and that she requires her sister’s assistance for this as the task is physically taxing.

8. Ms Lampard also gave oral evidence at the hearing. On questions from the Respondent’s representative Mr Pleming, Ms Lampard told the Tribunal that in 2019 she was made redundant from her full-time employment and paid a redundancy. Following this, she sought Centrelink payments and was eventually granted Disability Support Pension (‘DSP’) in May 2021.

9. Ms Lampard told the Tribunal that she was employed in her previous role for approximately 13 years, undertaking administrative or office work. She went on to tell the Tribunal that seeking payments following her redundancy was an extremely stressful process.

10. When asked about her Anorexia, and a significant turn for the worse in 2018 that was noted in a medical report, Ms Lampard disagreed with the characterisation of her Anorexia as having been under control for a period by implication of the use of the word “relapse”.

11. Ms Lampard did not accept the characterisation of her Anorexia and other psychosocial conditions as having been significantly worsened by the period of stress before and around her redundancy. Rather she said that her conditions have always been with her and, while stress worsened them, it was not the sole cause.

12. She went on to describe the negative impact that successive rejections from DSP and other support payments had on her anxiety and Anorexia – leading to restricted eating at the time.  She further said that finally receiving DSP has not alleviated her anxiety about money given that DSP is “not a lot of money to pay your household expense and to live”.[5]

    [5] Transcript of Proceedings, Re Lampard and National Disability Insurance Agency (AAT, 14-15 December 2023) (‘Transcript’) 20.

13. When asked about specific coping strategies developed during psychological treatment to assist with such financial anxiety, Ms Lampard gave brief answers describing the benefits of the conversations with her psychologist.

14. Further questions were asked around dieticians and other psychological services, as well as an eating disorder plan that was prepared for Ms Lampard, however the Applicant stated that she did not have the funds to pursue these options any further.

15. She went on to say that she is prescribed regular medication for her anxiety and depression and that while she has a Mental Health Treatment Plan, she does not have the funds available to see practitioners beyond the yearly limit placed on such a plan. She also said that she has never seen an eating disorder specialist.

16. Further questions were then asked about her eating disorder plan. Ms Lampard and her representative Ms Swan told the tribunal that 40 sessions (with psychologists or dieticians) per year were available to Ms Lampard, with about 20 being utilised. However, not all 40 were immediately available, with each group of five sessions requiring an additional GP referral.

17. She further described that this plan does not cover the entirety of appointment expenses, and so financial constraints (with out-of-pocket expenses not covered by private health care) still prevented her utilising the entirety of the plan.

18. Ms Lampard then went on to describe the link between her Osteoporosis and Anorexia. She was formally diagnosed in 2013 following a bone density scan but may have had the condition before this period. She said that given her eating disorder can lead to vitamin deficiencies, it is possible that the Osteoporosis and Anorexia are linked.

19. She further told the Tribunal about ongoing physiotherapy that she has been undertaking, with prescribed exercises done at home, for the alleviation of her Osteoporosis. She also said she receives regular Prolia injections for the same condition.

20. In regard to her degenerative disc disease, Ms Lampard gave evidence that while she had seen a Physiotherapist for this condition, the cost was again prohibitive, and so she had been doing exercises of her own volition and to the best of her ability.

21. She further said that she has both a prescription of Endone and Amitriptyline for pain management of this condition, as well as some use of hot and cold packs during acute episodes. She also noted her reluctance to use Endone given the stomach problems it can cause her, as well as for fear of possible addiction.

22. When asked questions about her Chronic Obstructive Pulmonary Disease (‘COPD’), Ms Lampard said that while since her quitting smoking her breathing has improved, this has not come with an associated increase in energy levels. She further said that she has not been to, or been referred directly to a respiratory clinic, however a referral to one was available should it be needed upon consultation with her GP.

23. On questions regarding her functional capacity, Ms Lampard gave evidence that she did not consent to the undertaking of a Functional Capacity Assessment because she did not feel comfortable with someone coming to her home.

24. She said that she lives alone and has done so for 28 years. She said she lives in a single level house with some stairs at the front and rear entrances. Ms Lampard also said she has a garden area that she is unable to manage herself.

25. She conceded, counter to her written evidence that she does have the ability to walk some distances outside her house if such a thing was possible (i.e., if the shops were at the end of her street) however, she would need the assistance of a walker. Ms Lampard said that she tends to stay inside for weeks at a time for both physical and psychological reasons.

26. Ms Lampard also described how her neighbour will at times collect groceries for herself, and how they will on occasion check on each other’s health – however she was clear that they do not interact socially.

27. She further described difficulties she has with concentration, learning, and recollection as a side effect of her Prozac prescription. She said that this concentration deficiency can lead to her struggling to pay bills or paying them late.

28. In regard to questions about her ability to take care of herself, Ms Lampard said she can get in and out of the shower independently, with the assistance of a shower rail and a chair outside the shower.

29. She also said that she is able to fix herself simple meals – noting the difficulty this poses with her eating disorder.

30. When re-called on the second day of the hearing, and on questions from Ms Swan, Ms Lampard gave evidence that she has fallen and injured herself both on the steps at the entrances of her house as well as in the bathroom. She said that this had made her fearful of leaving the house and had led her to putting in place railings and an emergency monitoring watch at her own expense.

31. She further said that her private health insurance covers only $400 per year and does not cover psychiatrists.

    Ms S Fernandez

32. The Tribunal was assisted by the oral evidence of Ms Shirin Fernandez.

33. Ms Fernandez gave evidence that she has been seeing the Applicant in her capacity as a clinical psychologist since approximately 2017 or 2018, having seen her for eight sessions in the year of 2023 at the time of the hearing.

34. She gave evidence that she has been treating the Applicant for a re-emergence of her eating disorder and the anxiety associated, “trying to build up her health so that she would be able to develop that, I guess, use of her gut level again. And the psychological element of that was trying to get her into a reasonable routine to be able to kind of accept food, medication, connect with the dietitian as well to kind of, I guess, get her gut health back into order again.”[6]

    [6] Ibid 41.

1. When questioned about connecting Ms Lampard with a dietician, and the fact that this has not happened, Ms Fernandez said “…I think it is Ms Lampard’s difficulty with actually, you know, finding the belief to connect with people to then feel that she can actually do it…”[7]

   [7] Ibid.

2. When Ms Fernandez was asked if the Applicant’s depression and anxiety were symptoms of her eating disorder, rather than their own individual conditions, she said that her long-term eating disorder had contributed to biochemical deterioration in her brain that has led to these conditions, and that, given her advanced age, no significant improvement on these was likely, in contrast to someone who may suffer an eating disorder at a younger age.

3. Upon further questioning she went on to characterise the Applicant’s eating disorder during her working years (prior to 2018) not as in remission but to a degree more manageable, but that without her work, which was very important to her, the eating disorder became much less manageable.

4. She spoke of the strategies that she has been working on with the Applicant, trying to develop in her the sense that she has a strong support network and a reason to care for herself, and that her sessions included attempts to reduce the dependency of the Applicant on her sister for care, however noting that the link between the two is important and should not be broken entirely, else the Applicant would not be able to manage on her own.

5. She further noted the significance that any financial barriers to treatment pose to the Applicant in light of her considerable stress about finances.

6. She also gave evidence that, while not necessarily qualified in the area, the pharmacological intervention of Seroquel improving Ms Lampard’s sleep is likely to continue to have a positive impact on her eating disorder and other associated symptoms.

7. When asked about the further implementation of Ms Lampard’s eating disorder plan to see dieticians or psychiatrists, Ms Fernandez again noted the significant barrier that gap fees pose to the Applicant in the circumstances.[8] She further said that if these barriers were removed with further funding the Applicant’s symptoms may be alleviated to a degree, however the damage to her gut health is already significant.

   [8] Transcript (n5) 50.

8. She further said that sending the Applicant to an eating disorder clinic would not be beneficial and that Ms Lampard would not cope.

   Dr Ahmed

9. The Tribunal was assisted by the oral evidence of the Psychiatrist, Dr Ahmed.

10. In a report dated 27 February 2023 Dr. Ahmed reported:

    She is under the care of Psychiatrist, Dr Grover. She also sees her psychologist, Dr. Fernandez. I have seen the correspondence of both treating clinicians who report her having lifelong disorders in the form of Obsessive Compulsive Disorder, Eating Disorder, Anxiety Disorder, and a Major Depressive Disorder. I note there are other physical ailments including osteoporosis, Irritable Bowel Syndrome, and Human Papilloma virus as well. Irritable Bowel Syndrome has a strong overlap with Anxiety Disorders…[9]

    [9] ‘Joint Hearing Tender Bundle’, Submission in Re Lampard and National Disability Insurance Agency, (‘JHTB’) 902–908.

11. In regard to her treatment history, and on questions from Ms Pleming, Dr Ahmed said that, although Ms Lampard has received input from a range of practitioners over the years, including some psychologists and psychiatrists, she has generally struggled to afford frequent access to such treatment.

12. He further said that the Applicant’s difficultly in recent years of accessing such treatment has led to her becoming “more and more limited in her function,” and “more and more isolated”.[10]

    [10] Transcript (n 5) 69.

13. On questions about Ms Lampard’s compliance with treating practitioner recommendations, he said that Ms Lampard has been generally compliant with recommendations (including medication), but that resistance to change and avoidance are key symptoms of her conditions.

14. He further described the long-term nature of her conditions of Anorexia and associated Obsessive Compulsive Disorder, being that they are lifelong illnesses, however subject to periods of crisis.

15. He also described the nature of her condition as being one that is chronic, and that while there may be periods of remission, this would not be considered as a ‘cure’ but rather diagnostically Ms Lampard would still be considered to have Anorexia, but with her symptoms reduced to a degree. He said that it is unlikely at her advanced age that she would be able to enter any type of full remission of her condition.

16. On questions about further programs Ms Lampard may benefit from, Dr Ahmed said that while an eating disorder program may be difficult for Ms Lampard given her advanced age, some type of mood-based program may be more effective and could be pursued.

17. On questions from Ms Swan, Dr Ahmed gave evidence that while the symptoms of Ms Lampard’s condition may be improved with more consistent care, the need for long term input and oversight of health practitioners was clear.

18. He further said that he agreed with the insight that treatment of her underlying anxiety would lead to a substantial reduction of her depression, however, while the conditions are interlinked, resolution of one may not necessarily solve the others. He gave this same view on the interlinked nature of Ms Lampard’s anxiety and IBS – that resolution of one does not necessarily remove the other.

19. He further gave evidence that her long-term impairments may be modified by appropriate treatment. But he also said that the Applicant has generally reduced capacity in communication and social interaction resulting from her anxiety.

20. When asked by the Tribunal about the ongoing nature of her impairment, Dr Ahmed said, “The condition is ongoing. And yes, the condition is permanent. But it is a waxing and waning condition. All mental health disorders relapse and remit. So there’s a difference between having a permanent condition and necessarily having a permanent impairment if you like”.[11]

    [11] Transcript (n 5) 79.

CONSIDERATION

Disability Requirements

1. For access to be granted to the NDIS the following provisions must be satisfied:

Section 24(1)(a)

1. Section 24(1)(a) of the Act requires that a 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.”

2. Though initially contended for some conditions, agreement was reached between the parties that the Applicant met this criterion for all applicable conditions.[12] I accept the parties’ position that s24(1)(a) is satisfied in relation to all of the Applicant’s claimed conditions.

   [12] Transcript (n 5) 3; National Disability Insurance Agency, ‘Respondent’s Written Closing Submissions’, Submission in Re Lampard and National Disability Insurance Agency, 12 February 2024, [1].

Section 24(1)(b) – permanence.

1. Section 24(1)(b) provides that to meet the disability requirements a person must have an impairment that is, or likely to be, permanent.

2. Section 24(1)(b) is concerned with the permanence of the impairment, rather than the medical condition necessarily.[13]

   [13] Re Schwass and National Disability Insurance Agency [2019] AATA 28 [46]–[47]; National Disability Insurance Agency v Davis [2022] FCA 1002 [101].

3. It was eventually accepted by the Respondent that the Applicant meets the permanence requirements for her condition of Anorexia Nervosa.[14] It was also accepted that her Compulsive Adjustment Disorder was permanent for the purposes of the Act.[15]
   

   [14] National Disability Insurance Agency, ‘Respondent’s Written Closing Submissions’, Submission in Re Lampard and National Disability Insurance Agency, 12 February 2024, (‘Respondent’s Written Closing Submissions’) [1].

   [15] Transcript (n 5) 3; Respondent’s Written Closing Submissions (n14) [4].

   After considering the evidence, I consider the Respondent’s concession appropriate, and I find both of the two above conditions to be permanent.

4. The Respondent maintained that the Applicant does not meet the s 24(1)(b) requirements in relation to:

   (a)Major Depression Disorder;

   (b)Anxiety;

   (c)Chronic Obstructive Pulmonary Disease;

   (d)Osteoporosis;

   (e)Degenerative Disc Disease;

   (f)Disc Bulge and Stenosis;

   (g)Incontinence; and,

   (h)Irritable Bowel Syndrome.

Major Depression Disorder and Anxiety

1. In respect of the diagnosis of Major Depression Disorder and Anxiety, the Respondent submitted that the Applicant's engagement with psychological and psychiatric treatment is inadequate to satisfy the Tribunal that the Applicant's impairments are permanent, and that there is inadequate evidence that “all available and appropriate treatment options have been pursued”.[16]

   [16] Guidelines (n 4) 7.

2. The Respondent submitted that the ongoing psychological treatment of the Applicant by Ms Fernandez, under her EDP, has been modest in frequency. They submitted that the evidence of Ms Fernandez that the Applicant has attended only 8 sessions with herself should be preferred to that of the Applicant, stated as every three or four weeks.

3. Under her EDP, Ms Lampard was entitled to up to 40 sessions with clinicians, referred in groups of five sessions by her GP. Having only used eight of these sessions, the Applicant did not exhaust her entire referral of 10 sessions.

4. The Respondent further submitted that the Applicant’s evidence about her “psychological sessions with Ms Fernandez suggests that her sessions are rather casual, unstructured and unfocussed”.[17]

   [17] Respondent’s Written Closing Submissions (n 14) [9].

5. They submitted that:

   Absent from the Applicant's description was any reference to her actual clinical conditions (depression and anxiety) or to any concrete psychological strategies directed at their remediation. The Applicant's evidence also suggests that Ms Fernandez's treatment does not involve having the Applicant implement strategies independently outside of formal sessions.[18]

   [18] Ibid [12].

6. The Respondent submitted that Ms Fernandez's description of her psychological approach to treating the Applicant's stress was vague.[19]

   When asked in re-examination if "it might be a bit more beneficial for more of a long-term treatment with a psychiatrist from now on", Ms Fernandez answered:

   …I think it would be, because a psychiatrist would be able to recommend particular medications that might help with mood… if the psychiatrist could then potentially help up with medication for the depressed state, or to help with anxiety, that might be helpful as well.[20]

   [19] Ibid [19].

   [20] Transcript (n 5) 52.

7. On this basis, the Respondent submitted that the psychological and psychiatric treatment undertaken to date for the Applicant's depression and anxiety were not adequate to satisfy the Tribunal that there are "no known, available and appropriate evidence based clinical, medical or other treatments that would be likely to remedy the impairment".[21]

   [21] National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (‘Rules’) Rule 5.4.

8. They submitted that, rather, the evidence suggests that the Applicant's anxiety and depression have been addressed only incidentally during Ms Fernandez's attempts to treat her eating disorder by encouraging the Applicant to take better care of her physical health.

9. In response, the Applicant submitted that she had obtained reports from other mental health professionals, including Psychiatrists Dr Burgess Watson and Dr Anish Grover. She also referred to reports and letters from her general practitioner, Dr Sarah Lockley.

10. Dr Grover reported by letter dated 19 January 2022 that the Applicant had been a patient of hers for some time now and that she was being treated for a major depressive disorder and Anorexia Nervosa. She reported that the Applicant’s psychological problems were indefinite and would require lifetime support and treatment.

11. In a letter dated 12 January 2022, Dr Lockley advised that the Applicant was a regular patient who had exhausted all possible treatment options for all of her conditions and that her treated conditions were chronic and permanent. She had previously reported on an NDIS form dated 12 October 2021 that the Applicant’s impairment was likely to be lifelong.

12. The Respondent placed significant emphasis on the fact that the Applicant appeared to have only attended eight sessions with Ms Fernandez but in April, at a hearing after submissions had been received, the Applicant provided her Medicare claims history which showed an additional seven sessions under a Mental Health Treatment Plan which supported her contention of attending sessions about every three to four weeks.

13. I am concerned that the Applicant could have had more regular intervention and treatment and find that her failure to so do was a combination of lack of funds as well as avoidance and resistance to change.

14. However, Dr Ahmed noted that she had been generally compliant with recommendations, including her medications.

15. I note the Respondent’s comments about the shortfalls in the evidence of Ms Fernandez, relating the permanency of the Applicant’s mental health issues and balancing the competing submissions and evidence, I note the evidence of the Psychiatrists, Dr Ahmed and Dr Grover. Dr Ahmed described her condition as ongoing and permanent although waxing and waning, and gave evidence that her long-term impairments may be modified by appropriate treatment. He also said:

    “The condition is ongoing. And yes, the condition is permanent. But it is a waxing and waning condition. All mental health disorders relapse and remit. So there’s a difference between having a permanent condition and necessarily having a permanent impairment if you like.”[22]

    [22] Transcript (n 5) 79.

16. Dr Grover reported that the Applicant’s psychological problems were indefinite and would require lifetime support and treatment. I note that although the Applicant has a Mental Health Treatment Plan, she does not have the funds available to see mental health practitioners as often as required by the plan.

17. Balancing the above evidence and factors, including Dr Ahmed’s opinion that that her condition was waxing and waning, and may be modified by appropriate treatment, I am unable to be satisfied that the Applicant’s major depression and anxiety are permanent.

Osteoporosis

1. In respect of the Applicant’s Osteoporosis, the Respondent submitted that, while there is medical evidence from a bone scan in 2015, that the condition resulted in reduced bone density indicating moderate fracture risk, the most recent evidence from 2020 suggests that the Applicant's bone density had improved, and no fracture risk was identified.

2. The Respondent submitted that the medical evidence remains unclear as to the nature of the physical impairment to which this condition gives rise, including the severity of the physical impairment.

3. The Respondent further submitted in regard to the treating of Osteoporosis with Prolia injections that there is no evidence about the benefit or otherwise of these injections. They rely on an answer to the question under cross-examination "is it the case that you won’t know if [the Prolia] injections have been helping until you get this bone scan" where the Applicant said, "that's correct".[23]

   [23] Transcript (n 4) 33.

4. They also rely on a recommendation made in the context of a care plan in January 2022 that the Applicant see a Rheumatologist, where the Applicant was asked in cross-examination whether a review with a Rheumatologist ever occurred. The Applicant answered, "No it has not occurred."

5. They submitted that Rule 5.6 provides that "an impairment is likely to be permanent only if the impairment does not require further medical treatment or review in order for its permanency to be demonstrated." They said that Rule 5.6 precludes a finding of permanency because further review by a Rheumatologist has been recommended but has not occurred, and because the benefit or otherwise of the Prolia injections cannot be known prior to a bone density scan.

6. The Applicant disagreed and submitted that she is prescribed Prolia to enhance bone density and that she had biennial scans, funded by Medicare, to ascertain whether Prolia was assisting with her treatment.

7. The Applicant also clarified that the statement referring to the Rheumatologist was in her care plan under the term “PRN” which means “if and when required” but her GP had not so referred her as her GP had assessed that such a referral was not required.

8. The medical evidence suggests that as at 2020 the Applicant’s bone density had improved but there was no later evidence as to whether or not there had been further improvement. Without any current evidence as the effects of the treatment, I am unable to determine whether or not the impairment requires any further medical treatment or whether the Rule 5.6 provisions for permanency have been demonstrated.

9. In the absence of a review by a Rheumatologist and appropriate bone density scans, I am unable to find that the impairment is permanent.

Degenerative Disc Disease

1. In respect of the Applicant's degenerative disc disease, the Respondent submitted that the precise nature of the physical impairment that arises from this condition is not known on the evidence.

2. The Applicant gave evidence that she takes Endone and Amitriptyline as required for pain from this condition. She said that these medications address her pain but that she is "scared to use it because of the chasms that it could create as well".[24]

   [24] Transcript (n 4) 33.

3. The Respondent submitted that there is no evidence before the Tribunal of the side-effects of Endone or Amitriptyline, and no evidence of the Applicant having experienced any side-effects (as distinct from a fear of side-effects).

4. They further submitted that the Applicant has not attended any chronic pain counselling as recommended in the care plan of January 2022, nor the recommended physiotherapy.

5. The Applicant cited cost barriers as the reason that this has not occurred, however the Respondent submitted that there is no evidence before the Tribunal of such barriers.

6. Therefore, the Respondent submitted that it is not the case that "all available and appropriate treatment options have been pursued," and as such they say that the Tribunal cannot be satisfied that "there are no known, available, and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment."

7. The Applicant agreed with the Respondent’s submissions, except that she experienced physical pain and loss of sensation, including loss in strength in both legs, unsteady gait, numbness in her feet and cramps.

8. As noted at [97] above, in the absence of a review by a Rheumatologist and appropriate bone density scans I am unable to find that the impairment is permanent.

Irritable Bowel Syndrome (IBS) and Incontinence

1. The Respondent submitted that there is insufficient evidence to satisfy the Tribunal that "there are no known, available, and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairments"[25] associated with IBS and incontinence.

   [25] Rules (n 21) Rule 5.4.

2. They submitted that “the evidence of the Applicant and Ms Fernandez suggests that psychological treatment of the Applicant's stress has not been optimised. Equally, Ms Fernandez's evidence of attempts to build the Applicant's independence and capacity to care for her physical health is not adequate to satisfy the Tribunal that all options have been exhausted.”[26]

   [26] Respondent’s Written Closing Submission (n 16) [37].

3. They also submitted that the evidence of Ms Maree Taylor, dietician, recording that "less stress equals better appetite and less diarrhoea,"[27] suggests that reducing stress levels is a means of addressing at least one aspect of the Applicant's IBS and incontinence – namely, diarrhoea – and thus, not “all available and appropriate treatment options have been pursued”.[28]

   [27] JHTB (n 9) 30.

   [28] National Disability Insurance Scheme (Becoming a Participant) Rules 2016 Rule 5.4.

1. In response, the Applicant submitted that the testing done by Dr Yellapu evidenced by reports dated 15 March 2021 indicates deterioration of bowel muscle control resulting from multiple surgeries, and that this lack of bowel control is a permanent condition.

2. In regard to the comments of Ms Maree Taylor, dietician, that “less stress equals better appetite and less diarrhoea,” the Applicant submitted that a “Dietician is not a Mental Health Practitioner, and she is not treating the Applicant’s stress. The Dietician is not qualified to assess or comment on the Applicant’s IBS and Incontinence namely diarrhoea.”[29]

   [29] Carol Lampard, ‘Applicant’s Written Closing Submissions’, Submission in Re Lampard and National Disability Insurance Agency, 4 March 2024, (‘Applicant’s Written Closing Submissions’) [36].

3. The Applicant submitted further that reduction of stress has already been treated by a range of practitioners, and that this treatment has been identified as adequate for the management of her physical health. As such, they submit that that the Tribunal cannot be satisfied that there are further treatment options for this condition.

4. I note the Respondent’s submissions about the evidence of Ms Taylor, dietician, but in view of the deterioration of the Applicant’s bowel muscle control resulting from her multiple surgeries, I am satisfied that there are no known, available and appropriate medical or other treatments available to remedy the Applicant’s IBS and that the deeming provisions of Rule 5.8 are met.

5. Pursuant to s24(1)(c)(ii) I find that the Applicant has a substantially reduced functional capacity resulting from her IBS in relation to her social interaction because it causes her to be reluctant to leave her house and also to engage in social activities.

Chronic Obstructive Pulmonary Disease (COPD)

1. With respect to the Applicant's COPD, the Respondent submitted that there is very limited evidence available to the Tribunal to assist on the question of permanency.

2. The Applicant gave evidence that her breathing has been better since she quit smoking two and a half years ago.

3. In cross-examination, the Applicant was referred to a document suggesting that in 2021 she was referred to an "outpatient respiratory clinic to consider lung function test and pulmonary rehabilitation".[30]

   [30] JHTB (n 9) 666.

4. The Applicant said that she had not attended a respiratory clinic nor been referred to a respiratory clinic, explaining that a respiratory clinic had been provisionally indicated for treatment of her COPD on an 'as needed' basis.

5. Therefore, the Respondent submitted that there is no evidence of treatment having yet been attempted for the Applicant's COPD.

6. The Applicant submitted counter that “she was told by her GP and the Royal Hobart Hospital Medical Doctors treating her COPD is permanent and is a chronic disease and will only deteriorate over time”.[31]

   [31] Applicant’s Written Closing Submission (n 28) [40].

7. The Applicant submitted that all treatments recommended by her doctors have been pursued being: stopping smoking through Quit Line, Medications (prescribed puffers),and a Chronic Care Plan.

8. They Applicant submitted further that given the lack of referral for Pulmonary Rehabilitation, "all available and appropriate treatment options have been pursued."

9. In the absence of any testing or report from a respiratory clinic or treatment, I am unable to determine the true extent of the permanency of the Applicant’s COPD condition and find that the impairment is not permanent.

Section 24(1)(c) – substantially reduced functional capacity

1. Rule 5.8 provides that an impairment results in substantially reduced functional capacity of a person to undertake one or more of the following relevant activities; communication, social interaction, learning, mobility, self-care and self-management and it results in one or more of the matters set out at [11] above.

2. The Respondent’s general position was that while the Applicant’s functional capacity is somewhat reduced, this is a result of her advanced age rather than her conditions.[32] However, I consider that her conditions do affect her functional capacity, and accordingly I consider those affects below.

   [32] Respondent’s Written Closing Submission (n1 4) 46.

Mobility

1. The Respondent submitted that the Applicant does not have a substantially reduced functional capacity in respect of mobility. This position is based on evidence that the Applicant can mobilise in her home and the community without a walking aid.

2. The Guidelines state that mobility means “how easily you move around your home and community, and how you get in and out of bed or a chair. We consider how you get out and about and use your arms or legs”.[33]

   [33] Guidelines (n 4) 9.

3. The threshold requirements to achieve functional capacity in relation to activities of mobility are “relatively modest”; a person has functional capacity if they can, for example, move about their home, get in and out of beds and chairs, leave home, and mobilise in the community.[34]

   [34] MRLK and National Disability Insurance Agency [2021] AATA 3896 [150]–[154]; Madelaine and National Disability Insurance Agency [2020] AATA 4025 [104]–[106].

4. This Tribunal has previously found that there was no particular distance specified in the Guidelines as defining a substantially reduced functional capacity in mobility, but that it "seems reasonable to suggest that a person who can travel 50 m by herself has the capacity to do the things referred to in the Guidelines."[35]

   [35] Madelaine and NDIA [2020] AATA 4025 (‘Madelaine’) [87].

5. The Applicant confirmed she can move around her home, and may use the assistance of a walking stick or a walker. She also accepted that she had the physical capacity to leave her house, but "not for very far”.[36]

   [36] Transcript (n 5) 58.

6. Ms Lockley, the Applicant's general practitioner, states that the Applicant requires special equipment to participate in mobility, such as a shower chair, bath chair, handheld shower, rail at the back door, walking frame and walking stick.[37]

   [37] TD (n 1) 97.

7. In relation to these items, the Respondent contends these are 'commonly used items' and that the use of such items does not suggest that the Applicant has a substantial reduction of functional capacity in relation to the activity of Mobility. They refer to the indicia of commonly used items previously outlined by the Tribunal, which considers whether the item:

   (a) is generally accessible;

   (b) can be used without the need for complex or specialised customisation or installation;

   (c) is relatively simple to use; and

   (d) is relatively inexpensive.[38]

   [38] Rooney and National Disability Insurance Agency [2021] AATA 3523 [27].

8. The Applicant contended that she might be able to walk to the shops using mobility aids but her local shops were one to two kilometres away.

9. The Applicant also indicated that she had not walked to the end of the street for a long period of time, but it was not just her physical condition but her mental health condition that posed the barrier. She noted that she used a walking stick and four-wheel walker to assist her with stability as recommended by her GP, and to mitigate the risk of falling.

10. Although the Applicant experiences difficulty with mobility without the use of aids, the aids are relatively simple to use and are relatively inexpensive. I accept that the Applicant has difficulty with mobility but because she can achieve mobility with the use of inexpensive and easy to use aids, I find that the Applicant does not have substantially reduced functional capacity and respective mobility.

Self-care

1. This activity is defined as "personal care, hygiene, grooming, eating and drinking, and health. We consider how you get dressed, shower or bathe, eat or go to the toilet".[39]

   [39] Guidelines (n 4) 9.

2. Having a substantially reduced functional capacity in self-care "imports the idea that there are significant gaps in one's capacity to maintain personal health, safety and well-being."[40]

   [40] Madelaine (n 34) [121].

3. The question of self-care has been considered several times by The Tribunal as was noted by the Respondent in their Statement of Facts, Issues, and Contentions.

4. Having a substantially reduced functional capacity in self-care “imports the idea that there are significant gaps in one’s capacity to maintain personal health, safety and well-being".[41] By contrast, undertaking self-care tasks slowly, or in stages, or using pacing techniques, or doing a task differently to others does not necessarily mean that a person cannot participate effectively or completely in self-care tasks.[42]

   [41] Madelaine (n 34) [121].

   [42] Williams and National Disability Insurance Agency [2021] AATA 3383 [88]–[90].

5. In Galea and National Disability Insurance Agency,[43] the Tribunal found that the Applicant did not satisfy s24(1)(c) of the Act, despite evidence indicating that he required some assistance in the home to undertake self-care activities. At [117] the Tribunal found:

   Considered overall, while I accept the Applicant consults a podiatrist for foot care, requires assistance with heavier laundry and domestic cleaning, uses a shower chair, and infrequently has the assistance of a relative with self-care when his pain is severe, I am not satisfied this means he is not able to participate effectively or completely in self-care activities, or to perform tasks or actions required to undertake self-care activities, without assistive technology, equipment (other than the commonly used shower chair) or home modifications. I am not satisfied he requires a high level of support from other people to undertake self-care.

   (Emphasis added).

   [43] [2022] AATA 2263.

6. In respect of self-care, the Applicant gave evidence that she was able to shower independently with the use of a shower chair and hand rails. The Respondent submitted that these are commonly used items.

7. The Applicant gave further evidence that she was able to make herself simple meals, including "grilled meat or grilled chicken or something like that and a little bit of salad."[44]

   [44] Transcript (n 5) 8.

8. Dr Ahmed reported she was able to dress herself.[45]

   [45] JHTB (n 9) 507.

9. Based on this evidence, the Respondent submitted that the Applicant's capacity to maintain her personal health, safety and well-being are not significantly reduced as a result of her impairments.

10. The Applicant submitted that her Anorexia Nervosa and mental health evidence gave rise to a complete lack of self-care along with signs of not eating and weight loss.

11. The Applicant did not consent to the undertaking of a Functional Capacity Assessment because she did not feel comfortable with someone coming to her home. Such an assessment would have provided the Tribunal with an objective assessment in relation to this aspect without which it is very difficult to be satisfied that the requirements pursuant to the rules and guidelines have been met.

12. I am not satisfied that the Applicant requires a high level of support from others to undertake self-care. She lives alone and, whilst her sister tends to her daily, she does not require the continued presence of others to function, albeit at reduced levels.

13. The Guidelines describe what concepts self-care encompasses for the purposes of the deeming provision activities related to:

    personal care, hygiene, grooming, eating and drinking, and health. We consider how you get dressed, shower or bathe, eat or go to the toilet.[46]

    [46] Guidelines (n 4) 8.

14. I agree with the comments of DP Humphries at [121] of Madelaine and NDIA referred to by the Respondent:

    Extrapolating from this provision, it may be said that having a substantially reduced functional capacity to care for oneself imports the idea that there are significant gaps in one’s capacity to maintain personal health, safety and well-being.

15. I accept that the Applicant has reduced capacity in relation to self-care but in view of the evidence referred to at [143] - [145] above I am not satisfied that there are significant gaps in the Applicant’s capacity to maintain personal health, safety and wellbeing.

16. Accordingly, I find that the evidence relating to the Applicant’s impairments of Anorexia Nervosa, Compulsive Adjustment Disorder, and IBS does not demonstrate the Applicant is unable to participate effectively or completely in self-care, and hence, the deeming provisions of rule 5.8 are not met and nor do I find that the Applicant has otherwise a substantially reduced functional capacity in this activity.

Social interaction

1. This activity is defined as "how you make and keep friends, or interact with the community, or how a young child plays with other children. We also look at your behaviour, and how you cope with feelings and emotions in social situations".[47]

   [47] Guidelines (n 4) 9.

2. The Tribunal has previously held that "the criteria referred to in the Guideline are directed principally at personal skills needed for social interaction, and only marginally about opportunities to exercise those skills".[48]

   [48] Madelaine (n 34) [87].

3. The Respondent submitted that while the Applicant has limited opportunities to socialise, the evidence suggests she retains the personal skills needed for social interaction. They submitted that the evidence indicates the Applicant is able to keep and make friends, interact with her community, and interact appropriately in social situations.

4. The Applicant disagreed with the Respondent's submissions in that she submitted that she lives alone and will not leave her house most days. Her neighbour will get her groceries and drop them off at her front door while she stays behind closed doors, sometimes refusing entry to her carers. She maintains that she does not attend family events and does not contact her 95-year-old mother.

5. The Applicant maintained that she overstated her social connections and that although she said that she sometimes spoke on the phone to her best friend of 55 years there had only been four calls in the past two years. They had only got together for cheese and wine twice in the last two years.

6. Although at times assisted by her sister, the Applicant impressed me by being able to answer questions effectively. Once again, a Functional Capacity Assessment may have provided relevant information sufficient to satisfy me that the Applicant’s condition met the appropriate thresholds.

7. The Applicant seems to be able to interact effectively enough to have her 80-year-old neighbour do her grocery shopping and Dr Ahmed opined that the Applicant had a reduced capacity in social interaction.[49]

   [49] JHTB (n 9) 907.

8. A reduced capacity is not sufficient to demonstrate that the Applicant is unable to effectively or completely participate in social interaction. Accordingly, I do not find that the Applicant’s impairments of Anorexia Nervosa, and Compulsive Adjustive Disorder result in the Applicant having a substantially reduced functional capacity in the area of social integration.

9. However, I find that the Applicant’s impairment of IBS results in the Applicant having substantially reduced functional capacity in the area of social integration because it causes her to be reluctant to leave her house and engage in social activities. I accept her evidence to the effect that she does not leave the house for the embarrassment of her bowel issues, and the impact of her having to change her bedding and clothing due to her bowel incontinence.

Self-management

1. This activity is defined as "how you organise your life. We consider how you plan, make decisions, and look after yourself. This might include day-to-day tasks at home, how you solve problems, or manage your money. We consider your mental or cognitive ability to manage your life, not your physical ability to do these tasks".[50]

   [50] Guidelines (n 4) 9.

2. The Applicant gave evidence that she can pay her bills, albeit that it is effortful and takes time to organise. When describing difficulty paying bills in the following terms: “…I'm juggling finances. If you've got bills coming in left right and centre it's a bit hard to try and juggle your money sometimes…. I pay the bills, it's not that they don't get paid".[51]

   [51] Transcript (n 4) 61–62.

3. The Respondent submitted that any difficulty paying bills is related to the Applicant's finances rather than her impairments. They submitted that, although she may require additional time to pay bills, she is independent in the task, suggesting she has the capacity to make decisions and solve problems.

4. The Respondent submitted that the Applicant's reliance upon her sister does not evidence a substantial reduction in her functional capacity for self-management. They submitted that the evidence does not suggest that the Applicant is unable to make decisions and look after herself, but rather, that the evidence suggested that the Applicant finds it difficult to do so and is therefore guided by her sister.

5. The Applicant submitted that she had substantially reduced capacity for self-management and does not problem-solve. She maintained that she was unable to plan and had a complete lack of self-care.

6. She maintained that her mental state prevented her from leaving her home and that she has difficulty with finances, meaning that if her carer is sick or unable to attend, she does not pay the bills.

7. As noted at [17] above, the Applicant maintained that she struggled with caring for herself and that she does not have the motivation nor the energy or ability to do those tasks. She relies heavily on her sister for assistance including with things such as bills and budgeting.

8. When cross-examined about this aspect, she described the difficulty she had with concentration as a side-effect of the Prozac prescription. She said this concentration can lead to her struggling to pay bills or paying them late, but this fell short of her written evidence, which was that she could not pay the bills without assistance.

9. The Applicant’s written statement, which was adopted by her, was usually definitive as to what the Applicant could and could not do, but under cross-examination, she appropriately conceded that various situations were not so definitive.

10. Although she relies heavily upon her sister and finds it difficult to make decisions and look after herself, I am satisfied that the Applicant is not unable to do so if no assistance is available.

11. I accept that the Applicant finds it difficult to make decisions and look after herself and is often guided by her sister, but on the evidence before me, I am unable to find that the Applicant cannot make decisions or look after herself.

12. Accordingly, I do not find that the Applicant’s impairments of Anorexia Nervosa, Compulsive Adjustive Disorder and IBS result in the Applicant having a substantially reduced functional capacity in the area of self-management.

    Learning

13. This activity is defined as "how you learn, understand and remember new things, and practise and use new skills".[52]

    [52] Guidelines (n 4) 9.

14. The Respondent submitted that the Applicant does not have a substantially reduced capacity for learning on the basis that there is limited evidence of the Applicant's capacity for learning or any deficits she experiences in relation to the activity of learning.

15. They submitted that “while the Applicant states that her ability to do so is impacted due to her ability to concentrate, the evidence does not demonstrate that the Applicant is unable to 'participate effectively or completely' in learning (and hence the deeming provisions in Rule 5.8 are not met) or that the Applicant otherwise has a substantially reduced functional capacity in this domain”.[53]

    [53] National Disability Insurance Agency, ‘Statement of Facts, Issues, and Contentions’, Submission in Re Lampard and National Disability Insurance Agency, 29 August 2023, (‘Respondent’s SFIC’) [63].

16. In her impact statement dated 26 February 2023, the Applicant stated that she was not motivated to learn anything new because her concentration is very limited, and new things stress her. She noted that her head was foggy, and medication made a difference when starting any learning task because she felt tired and unable to feel the need to learn.

1. Dr Ahmed in his report dated 22 February 2023 noted that the Applicant is overwhelmed cognitively, and Dr Fernandez in her report dated 8 August 2020 stated that the Applicant did not have the physical strength, stamina or mental concentration which I infer reflected upon her ability to learn.

2. Once again, my task was made difficult by the absence of precise evidence and although I accept that the Applicant has difficulty when attempting to learn, there was not sufficient evidence before me to satisfy me that she was incapable of participating effectively or completely in learning. Accordingly, I do not find that the Applicant’s impairments of Anorexia Nervosa, Compulsive Adjustive Disorder, and IBS result in the Applicant having a substantially reduced functional capacity in the area of learning.

Communication

1. This activity is defined as "how you speak, write, or use sign language and gestures, to express yourself compared to other people your age. We also look at how well you understand people, and how others understand you".[54]

   [54] Guidelines (n 4) 9.

2. The Respondent submitted that, considering the Applicant's engagement during the hearing, she is independent in the activity of communication. In particular, she was able to adequately speak, be understood and understand others. She did not require any assistance to communicate.

3. The Applicant submitted that she can communicate, speak, understand and be understood but that her mental illness prevents her from communicating. She also submitted that she gets confused at times, and would shut down, which causes her to become cognitively overwhelmed.

4. During the hearing, the Applicant engaged quite well with the Tribunal. Although she occasionally had difficulty understanding questions or concepts, I was satisfied that she was able to speak appropriately, be understood, and understand others, particularly when answering questions under cross-examination.

5. Accordingly, I do not find that the Applicant’s impairments of Anorexia Nervosa, Compulsive Adjustive Disorder, and IBS result in the Applicant having a substantially reduced functional capacity in the area of communication.

Section 24(1)(d) – the impairment or impairments affect the persons capacity for social or economic participation

1. I have already found that the Applicant’s IBS is permanent, and impacts upon her social interaction. I find this impairment to be so severe that it causes the Applicant great embarrassment and severely restricts her ability to participate in social activities. I accept that the condition is so chronic as to cause her severe embarrassment and result in regular soiling of her clothes and bedding. Accordingly, I find that s24(1)(d) is satisfied in relation to the Applicant’s capacity for social participation.

Section 24(1)(e) – likely to require support under the NDIS for the person's lifetime.

1. In relation to the s 24(1)(e) requirements, the Respondent submitted that because, in their view, the Applicant does not have a substantially reduced functional capacity and therefore does not meet the threshold requirements for access to the NDIS, the Applicant is not likely to require support under the NDIS for her lifetime.

2. They also submitted that, should the Tribunal find that the Applicant does have a substantially reduced functional capacity, the Tribunal should not be satisfied that the NDIS is the most appropriate system of support for the Applicant. They said it is clear that the Applicant is primarily seeking treatments for her conditions rather than functional supports.

3. The Respondent submitted that: “The Applicant appears most concerned with the costs of accessing treatments such as psychiatric services and a dietician. To the extent that these services are sought for the purpose of treating the Applicant's conditions, the NDIS is not the appropriate provider.”[55]

   [55] Respondent’s Closing Written Submission (n 14) [85].

4. They further rely on the NDIS Operational Guidelines which provide that: "We don't fund supports to treat your impairment. Instead, the supports we fund can help you reduce or overcome the impact your impairment has on your daily life".[56]

   [56] Guidelines (n 4) 8.

5. The Applicant submitted that she was not seeking medical treatment services “as they are not covered by NDIS.” The services she is requesting are incontinence aids, physiotherapy for mobility, and psychological support services.

6. The Applicant noted that the available support through mainstream or private services are not accessible by her due to cost or access.

7. The issue that then arises in relation to the areas referred to above is: is the Applicant seeking treatment rather than functional support?

8. The Operational Guidelines state: “We don’t fund supports to treat your impairment. Instead, the supports we fund can help you reduce or overcome the impact your impairment has on your daily life”.[57]

   [57] Guidelines (n 4) 8.

9. There was limited evidence as to what functional support would be beneficial to the Applicant or was being requested by her.

10. As noted above, she was seeking very limited functional support in the form of continence aids, physiotherapy, and mental health services.

11. There was some relevant evidence from medical practitioners, including:

12. Ms. Fernandez opined at [54] that an eating disorder clinic would not be beneficial as the Applicant would not cope.

13. Dr. Ahmed opined at [63] that the symptoms of the Applicant’s condition may be improved with more consistent care, but the need for long term input and oversight of health practitioners was clear.

14. Dr. Lockley, in an NDIS Supporting Evidence Form dated 21 October 2021, stated that the Applicant needs assistance from other persons (including physical assistance, guidance, and supervision).[58]

    [58] TD (n 1) 96–98.

15. In the same form, Dr. Lockley stated that the Applicant needs a shower chair, hand-held shower, and bath chair.

16. In his report dated 27 February 2023 Dr Ahmed opined that a modest provision of NDIS services to help her get outside more often would give respite to her sister and improve her overall social function.

17. In the same report he opined that the Applicant’s prognosis was largely limited but that she was likely to have a better quality of life with ongoing psychiatric and psychological input.

18. The question then arises as to whether it is appropriate for such supports to be funded by the NDIS scheme or by some other means.

19. The NDIS website provides that:

    The support is most appropriately funded or provided through the NDIS, and is not more appropriately funded or provided through:

    ·other general systems of service delivery, or support services offered by a person, agency or body (for example, a State or Territory Statutory Scheme)

    ·systems of service delivery or support services offered as part of a universal service obligation (for example, the health or education system)

    ·systems of service delivery or support services offered in accordance with reasonable adjustments required under discrimination laws (for example, your employer, or the health or education system).

20. This question was considered by Senior Member Toohey at [92]–[100] in McCutcheon and National Disability Insurance Agency [2015] AATA 624 and I agree with his analysis as set out below:

    92.“The NDIS was based on the 2011 report of the Productivity Commission, Disability Care and Support, Report No 54, 31 July 2011 in which the Commission said it was:

    generally accepted that disability services should not replace mainstream or other specialist services available to the broader population, or be expected to meet all the needs of people with disability. Indeed, a key policy goal is to move away from primary reliance on specialist disability services to the use of mainstream services or at least a mix of the two.

    93.Further, the Commission said:

    Access to generic services, such as health and housing, can affect demand for NDIS-funded services, and vice-versa. It will be important for the [NDIS] not to respond to problems or shortfalls in mainstream services by providing its own substitute services. To do so would weaken the incentives by government to properly fund mainstream services for people with a disability, shifting the cost to another part of government (such as from a state government to the NDIS, or from one budget ‘silo’ to another). This ‘pass the parcel’ approach would undermine the sustainability of the scheme and the capacity of people with a disability to access mainstream services.

    94.These policy considerations are reflected in the Act, the Rules and relevant Operational Guideline.

    The Rules

    95.Schedule 1 to the Rules sets out considerations that must be taken into account when deciding whether a support is most appropriately funded through the NDIS and is not more appropriately funded through other general service systems such as the health, education, employment and housing systems. Clause 7.3 states that “[f]or the avoidance of doubt”, Schedule 1 “does not purport to impose any obligations on another service system to fund or provide particular supports”.

    96.In relation to health (excluding mental health) Schedule 1 states:

    7.4 The NDIS will be responsible for supports related to a person’s ongoing functional impairment and that enable the person to undertake activities of daily living, including maintenance supports delivered or supervised by clinically trained or qualified health practitioners where these are directly related to a functional impairment and integrally linked to the care and support a person requires to live in the community and participate in education and employment.

    7.5 The NDIS will not be responsible for:

    (a) the diagnosis and clinical treatment of health conditions, including ongoing or chronic health conditions; or

    (b) other activities that aim to improve the health status of Australians, including general practitioner services, medical specialist services, dental care, nursing, allied health services (including acute and post-acute services), preventive health, care in public and private hospitals and pharmaceuticals or other universal entitlements; or

    (c) funding time-limited, goal-oriented services and therapies:

    (i) where the predominant purpose is treatment directly related to the person’s health status; or

    (ii) provided after a recent medical or surgical event, with the aim of improving the person’s functional status, including rehabilitation or post-acute care; or

    (d) palliative care.

    Operational Guideline

    97.Further guidance is found in the Operational Guideline - Planning and Assessment - Supports in the Plan - Interface with Health which describes those health related supports that it is generally more appropriate for the NDIS to fund; those that, depending on their purpose, can be more appropriately funded by either the NDIS or other parties; and those that are generally more appropriately funded by other parties.

    98.“Other parties” includes government departments and agencies, independent organisations funded by governments to provide services, and individuals and families: cl.13.

    99.The relevant part of the Guideline states:

    2. Therapeutic support, including assistance by allied health professions such as speech and language pathology, physiotherapy, occupational therapy, audiology and therapy delivered by a therapy assistant under the supervision of the therapist:

    a.      NDIS:

    i.Maintenance care where the primary purpose is to provide ongoing support for a participant in order to maintain a level of functioning including long term therapy/support required to achieve small incremental gains or to prevent functional decline,

    ii. to improve functioning in an early intervention context

    b.  Other parties: where it is a time limited intervention to improve functioning following an acute event, medical treatment or accident (e.g. to improve functioning immediately following a stroke or acquired brain injury)

    100.The Guideline as to what is more appropriately funded through the NDIS reflects the language of Rule 7.4 above.”

21. In this matter, the Respondent failed to identify any particular agency or service from which the Applicant could obtain the modest support listed above at [193].

22. The Applicant’s sister and carer have provided some assistance in encouraging the Applicant to leave the house more often and also assist around the house.

23. However, I am satisfied that her sister has been fully extended and cannot provide all the necessary support in the above two areas. As she is drawing a carer’s allowance, I expect that she will continue to provide support and hence it is only additional support that is required. The Respondent has failed to satisfy me that such additional support would be more appropriately provided from another source or agency, and hence, I am satisfied that such support should be more appropriately funded by the NIDS and is not more appropriately funded through another system or agency.

Early Intervention Requirements

1. Ms Lampard will meet the “early intervention requirements” if she satisfies s 25(1)(a)-(c) of the Act.

2. The Respondent primarily contended that “the current evidence does not demonstrate that the Applicant has satisfied s 25(1)(b) of the Act as there is no evidence to suggest that the provision of early intervention supports would benefit the Applicant by reducing her need for future supports in relation to disability”.[59]

   [59] Respondent’s SFIC (n 53) [72].

3. The Respondent further submitted that “the provision of early intervention supports is not applicable to the Applicant's long-standing conditions”.[60]

   [60] Ibid.

4. They rely on the report of Dr Ahmed, who states that 'Early intervention is not applicable given she is over 65. She has struggled to access some of the treatment she may have benefitted from such as inpatient admissions'[61]

   [61] JHTB (n 9) 907.

5. The Respondent contended that the evidence does not demonstrate that the provision of early intervention supports would likely have a significant impact on the course taken by the Applicant's impairments, or have any of the benefits identified in s 25(1)(c)(i)–(iv). They submit this on the basis that Ms Lampard’s conditions/impairments are of a longstanding nature.

6. They submitted that evidence of the Applicant’s engagement with treatment for at least 20 years, coupled with Dr Ahmed's opinion that early intervention is not applicable, supports a finding that the provision of early intervention support is unlikely to benefit the Applicant.

7. The Respondent submitted further, that even if the Applicant were deemed to meet the criteria in s 25(1), the prohibition in s 25(3) would apply, in circumstances where:

   (a)“no early intervention supports have been identified as appropriate or relevant in the Applicant's case; and

   (b)other supports sought by the Applicant or proposed for her by others are more appropriately funded or provided through other service systems, including, for example, the health system.”[62]

   [62] Respondent’s SFIC (n 53) [75].

8. The Applicant submitted that she had met the criteria required for s24(1), s21 (1)(c)(1), s25(1) and s25(3).

9. She also submitted that she had satisfied all the criteria contained in s25(1)(a) to s25(1)(c).

10. The Explanatory Memorandum to the National Disability Insurance Scheme Bill 2012 (Cth) (‘the Bill’) states:

    Clause 25 [of the Bill] sets out the early intervention requirements a person must satisfy, as an alternative to satisfying the disability requirements, in order to become a participant in the NDIS launch. This clause recognises that a person may need support to help minimise the impact of a disability from its earliest appearance, and that the provision of support may improve the person's functioning or prevent the progression of their disability over their lifetime.

11. I consider it appropriate to have regard to the above Explanatory Memorandum and I also have had regard to the following in reaching a conclusion that the Applicant has not satisfied s25(1)(b) of the Act.

12. Although there is evidence that the Applicant would derive some benefit from ongoing input from a psychiatrist and psychologist her condition is chronic and is largely stable and is unlikely to be modified in any significant way.[63]

    [63] JHTB (n 9) 905.

13. There is insufficient evidence to satisfy me that the provision of early intervention supports would benefit the Applicant by reducing her need for future supports.

14. Dr. Ahmed stated that early intervention is not applicable given that she is over 65. She has struggled to access some of the treatment she may have benefited from such as inpatient admissions.[64]

    [64] Ibid 907.

15. The Applicant's conditions are of a long-standing nature many of which for she has received treatment, in some cases for at least 20 years.

16. There is insufficient evidence to satisfy me that early intervention would likely have a significant impact on the course taken by the Applicant’s impairments or have any of the benefits identified in s25(1)(c) (i)–(iv).

17. Even if I were to find that the Applicant met the s25(1) criteria, I do not consider the Applicant has overcome the prohibition set out in s25(3)(a) because no early intervention supports have been identified as being sufficiently appropriate or relevant for the Applicant.

CONCLUSION

1. I have found this to be a difficult case because I consider the Applicant to have been an honest witness but mistaken from time to time. Ms Lampard’s sister who assisted her was very impressive both in her presentation and dedication to the Applicant.

2. Unfortunately, on most of the areas there have been insufficient treatment and analysis to enable the Tribunal to be fully informed as to the numerous matters that the Act requires to be considered. I accept that this is partially because of the Applicant’s limited means and the expense often required for such treatments and analyses.

3. However, as set out above I am satisfied that the Applicant’s IBS is such as to qualify for assistance pursuant to the Act.

DECISION

1. The Tribunal sets aside the decision under review pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) and decides in substitution that the Applicant meets the disability requirements for access to the National Disability Insurance Scheme as set out in section 24 of the National Disability Insurance Act 2013 (Cth).

I certify that the preceding 229 (two hundred and twenty -nine) paragraphs are a true copy of the reasons for the decision herein of Greg Melick AO SC, Deputy President

.................................[sgn].....................................

Associate

Dated: 04/09/2024

Date(s) of hearing:	14, & 15 December 2023
Date final submissions received:	18 March 2024
Advocate for the Applicant:	Ms Kaye Swan
Counsel for the Respondent:	Mr Matthew Pleming
Solicitors for the Respondent:	Ms Kate Foster of HWL Ebsworth Lawyers

ANNEXURE

Exhibits

Statement of lived experience of Carol Anne Lampard

dated 26/08/22 together with Supplementary Statement     Exhibit 1

Hearing Bundle  Exhibit 2

Impact statement dated 18/09/23  Exhibit 3

Document headed ‘Ms Carol Anne Lampard NDIS

appeal claim due to commence august 2022’  Exhibit 4