Larkings and National Disability Insurance Agency

[2023] AATA 44

Larkings and National Disability Insurance Agency [2023] AATA 44 (24 January 2023)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2019/8271

Re:Ms Geraldine LARKINGS

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

Decision

Tribunal:Member T Bubutievski

Date:24 January 2023

Place:Sydney

The Tribunal affirms the decision under review pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).

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

Member T Bubutievski

Catchwords

NATIONAL DISABILITY INSURANCE SCHEME – access – plantar fasciitis – osteoarthritis – lower back pain – anxiety and depression – obsessive compulsive disorder - hoarding disorder – permanence - whether substantially reduced functional capacity – whether best funded by the NDIS – decision under review affirmed

Legislation

National Disability Insurance Scheme Act 2013 (Cth)

National Disability Insurance Scheme (Becoming a Participant) Rules 2016

National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Act 2022

Cases

National Disability Insurance Agency v Davis [2022] FCA 1002

Holmes and National Disability Insurance Agency [2017] AATA 2750
Mulligan v National Disability Insurance Agency [2015] FCA 544
Schwass and National Disability Insurance Agency [2019] AATA 28
Young and National Disability Insurance Agency [2014] AATA 401

REASONS FOR DECISION

Member T Bubutievski

BACKGROUND

1. This application is about whether Ms Geraldine Larkings (Ms Larkings) should be granted access to the National Disability Insurance Scheme (the NDIS). At the time of her application to become a participant, she was 64 years of age. In her application for access to the NDIS, Ms Larkings described her primary disability as chronic bilateral foot pain, and her other disabilities as “lower back” and depression.

2. Following her application to become a participant in June 2019, the National Disability Insurance Agency (NDIA or the Agency) decided, on 16 July 2019, that Ms Larkings was ineligible to access the NDIS. She sought internal review of this decision by the Agency and on 21 November 2019, an Agency decision maker affirmed the decision. It is this reviewable decision of the Agency which is the subject of Ms Larkings’ application to this Tribunal for external merits review under section 103 of the National Disability Insurance Scheme Act 2013 (Cth) (the Act).

3. Ms Larkings has bilateral plantar fasciitis.  This condition has impaired Ms Larkings’ ability to stand and walk.  She has required physiotherapy and assistance in the form of orthotics to support her feet. She has also been diagnosed with osteoarthritis affecting her knees and feet. Over time, Ms Larkings has also received a range of psychiatric diagnoses. The most recent, in May 2022, were hoarding disorder, obsessive compulsive disorder, generalised anxiety disorder, post-traumatic stress disorder and adjustment disorder with depressed mood.

4. Ms Larkings contends that she meets the access criteria under section 21 of the Act.

5. To gain access to the NDIS, under section 21 of the Act, Ms Larkings is required to meet:

   (a)the “age” access criteria;

   (b)the “residence” access criteria; and

   (c)either the “disability” access criteria or the “early intervention” access criteria.

6. The Agency accepts that Ms Larkings meets both the “age” and “residence” access criteria but contends that she does not meet the “disability” or “early intervention” access criteria.

   legislative FRAMEWORK

7. Before proceeding further, it is necessary to note that amendments to sections 24 and 25 of the Act came into effect on 1 July 2022. The Tribunal had not completed its review of Ms Larkings’ application by the time the amendments commenced. Both the original decision which the Agency made regarding Ms Larkings’ access request, and the Agency’s internal review decision, were made prior to those amendments. The Tribunal’s decision is made subsequent to those amendments.

8. At the time that the Agency made its internal review decision, a person met the disability requirements under section 24(1)(a) if:

   ‘the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or to one or more impairments attributable to a psychiatric condition.’

9. The amendments removed the reference to impairments attributable to a psychiatric condition and replaced them with the phrase ‘one or more impairments to which a psychosocial disability is attributable’. From 1 July 2022, a person meets the disability requirements under section 24(1)(a) if:

   ‘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.’

10. The transitional provisions at Schedule 2, Item 54 of the National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Act 2022 (Cth) provide that:

    (1)The amendments of sections 24 and 25 of the National Disability Insurance Scheme Act 2013 made by this Schedule apply in relation to the following:

    (a)an access request made on or after the commencement of this item;

    (b)an access request that was pending immediately before that commencement;

    (c)a revocation under section 30 of that Act made on or after that commencement.

11. As the decision under review relates to the determination of an access request under section 18 of the Act, it follows that the term ‘an access request that [is] pending immediately before” the commencement covers a decision under review, as in this review, that “has not been finalised prior to the commencement’. The Revised Explanatory Memorandum[1] provides, in relation to Schedule 3, Item 56 that the amendment would apply ‘if a decision on their request under section 18 of the Act has not been finalised prior to the commencement’.

    [1] 2019-2020-2021-2022, The Parliament of The Commonwealth of Australia – Senate: National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021 – Revised Explanatory Memorandum

12. Section 24 of the Act provides as follows:

    (1)A person meets the disability requirements if:

    (a)the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable; and

    (b)the impairment or impairments are, or are likely to be, permanent; and

    (c)the impairment or impairments result in substantially reduced functional capacity to undertake one or more of the following activities:

    (i)communication;

    (ii)social interaction;

    (iii)learning;

    (iv)mobility;

    (v)self-care;

    (vi)self-management; and

    (d)the impairment or impairments affect the person’s capacity for social or economic participation; and

    (e)the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime.

    (2)For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the variation.

13. The early intervention requirements are set out in section 25 of the Act:

    (1)A person meets the early intervention requirementsif:

    (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 developmentaldelay; and

    (b)the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person's future needs for supports in relation to disability; and

    (c)the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by:

    (i)mitigating or alleviating the impact of the person's impairment upon the functional capacity of the person to undertake communication, social interaction, learning, mobility, self-care or self-management; or

    (ii)preventing the deterioration of such functional capacity; or

    (iii)improving such functional capacity; or

    (iv)strengthening the sustainability of informal supports available to the person, including through building the capacity of the person's carer.

    Note: In certain circumstances, a person with a degenerative condition could meet the early intervention requirements and therefore become a participant.

    (1A) For the purposes of subparagraph (1)(a)(i) or (ii), an impairment or impairments that are episodic or fluctuating may be taken to be permanent despite the episodic or fluctuating nature of the impairments.

    (2)The CEO is taken to be satisfied as mentioned in paragraphs (1)(b) and (c) if one or more of the person's impairments are prescribed by the National Disability Insurance Scheme rules for the purposes of this subsection.

    (3)Despite subsections (1) and (2), the person does not meet the early intervention requirements if the CEO is satisfied that early intervention support for the person is not most appropriately funded or provided through the National Disability Insurance Scheme, and is more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or through systems of service delivery or support services offered:

    (a)as part of a universal service obligation; or

    (b)in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.

14. Section 27(a) of the Act provides that the NDIS rules may prescribe circumstances in which, or criteria to be applied in assessing whether one or more impairments are, or are likely to be, permanent for the purpose of section 24(1)(b) or section 25(1)(a)(i) or (ii) of the Act. Such rules have been prescribed, namely, the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (NDISAccess Rules). The Tribunal is bound to apply the legislation as enacted, including the NDIS Access Rules.

15. Specifically, rules 5.4 to 5.7 of the NDIS Access Rules explain when a condition can be assessed to be “permanent”:

    When is an impairment permanent or likely to be permanent for the disability requirements?

    5.4An 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.

    5.5An 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.

    5.6An 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).

16. Section 27(b) of the Act also provides that the NDIS rules may prescribe circumstances in which, or criteria to be applied in assessing whether one or more impairments result in ‘substantially reduced functional capacity’ of a person to undertake one or more activities for the purpose of subsection 24(1)(c) of the Act.

17. Specifically, rule 5.8 of the NDIS Access Rules elaborates upon when an impairment is taken to have resulted in a ‘substantially reduced functional capacity’ to undertake any one or more of the relevant activities in relation to subsection 24(1)(c) of the Act and provides as follows:

    5.8An 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. 

    [Paragraph 5.8 is made for the purposes of paragraph 27(b) of the Act.]

18. The objects of the Act are set out in section 3 of the Act. These include giving effect to international treaty obligations; supporting the independence and social and economic participation of people with a disability; and providing reasonable and necessary supports for participants. Section 4 sets out general principles guiding actions under the Act. These include that people with disability have the same right as other members of society to realise their potential and should be supported to participate in and contribute to social and economic life to the extent of their ability. They should also have certainty that they will receive the care and support that they need over their lifetime. The Tribunal has considered the objects and general principles of the Act in making its decision.

19. The NDIA has issued Operational Guidelines including in relation to the access criteria under the Act (Operational Guidelines). The Operational Guidelines are published on the NDIA’s website.[2] The way they are written has changed significantly over time to make them more user friendly for potential applicants to and participants in the NDIS, but the important parts of the content have not been greatly altered. The Tribunal also had regard to the Operational Guidelines in coming to its decision.

    [2] ‘Our Guidelines: How we make decisions’, 8 November 2022,

20. The Respondent lodged a combined hearing tender bundle on 19 August 2022 (HTB-1), comprising 332 pages.

21. Ms Larkings lodged a hearing tender bundle of 65 pages on 1 November 2022 (HTB-2). Ms Larkings also lodged a report by Mrs Debbie Graham of InsideOut Recovery dated 4 November 2022 (Exhibit 1) (seven pages); and a bundle of financial documents and bank statements on 9 November 2022 (Exhibit 2).

22. Ms Larkings called Dr Artin Jebejian (psychiatrist) and Mrs Debbie Graham (counsellor) as witnesses. The Respondent called Dr Mo Ali (independent expert podiatrist).

    ISSUES BEFORE THE TRIBUNAL

23. The Agency decided that Ms Larkings met the criteria in section 24(1)(a) of the Act, as having a disability attributable to “foot injury” and “anxiety/depression”[3].

    [3] HTB-1,H3, 30-37.

24. The Agency did not accept that Ms Larkings’ impairments were or were likely to be permanent. On internal review, the reviewer decided that ‘the evidence provided does not conclude that your impairments would not be amenable to further supports targeting at mitigating and perhaps alleviating the impacts of such impairments.’[4] Hence, the internal reviewer concluded that section 24(1)(b) of the Act were not met. In addition, the reviewer concluded that the criteria in section 24(1)(c) and (e) and section 25 were not met.[5]

    [4] Ibid.

    [5] Ibid.

25. It was common ground between the parties that Ms Larkings met the age requirements in section 22 and the residence requirements in section 24 at the time that she applied for access to the NDIS. At hearing the NDIA argued that:

    (a)Ms Larkings’ plantar fasciitis, osteoarthritis, and back pain are not permanent, or likely to be permanent – sections 24(1)(b), 25(1)(a) and (c);

    (b)These conditions do not cause a substantially reduced functional capacity in any of the relevant domains – section 24(1)(c);

    (c)There is insufficient evidence about Ms Larkings’ mental health conditions to allow the Tribunal to reach the requisite level of positive satisfaction that the requirements of the Act are established in relation to any of her diagnosis (as set out in Mulligan v National Disability Insurance Agency[6]  (Mulligan));

    (d)Ms Larkings is not likely to require the support of the NDIS for her lifetime – section 24(1)(e); and

    (e)support for Ms Larkings’ conditions is not most appropriately provided through the NDIS – section 25(3).

    [6] [2015] FCA 544.

26. Ms Larkings contended that all of her physical and psychological conditions were permanent and cause her to have a substantially reduced functional capacity in a number of domains including mobility, self-care, social interaction and self-management.

27. For the reasons set out below, the Tribunal is satisfied that the evidence does not establish that the bulk of Ms Larkings’ impairments are permanent, or likely to be permanent. This means that the requirements of section 24 of the Act for access to the NDIS are not met. The Tribunal is also satisfied that the early intervention requirements under section 25 of the Act are not met.

    FACTS

    Ms Larkings’ evidence – physical impairments

28. Ms Larkings gave evidence that she has suffered from chronic pain in her feet for over 30 years. It has been treated with physiotherapy, exercises, orthotics and attendance at a pain management program (the ADAPT program at Royal North Shore Hospital). She said that she was given some exercises which required her to go up and down with her heels, and that she still does these on the stairs at her house and on the treadmill at the gym.[7]

    [7] Transcript of proceedings, 14 November 2022, 6.

29. Ms Larkings said that orthotics from the public hospital ‘turned my feet out like a banana’ and created another problem. She has seen a lot of specialists and physiotherapists in her search for a solution to her problems, but she has had little real help or improvement.[8]

    [8] Ibid, 8.

30. It was put to Ms Larkings that the evidence before the Tribunal indicated that she had not been compliant with the requirements of the pain management program as she had missed program days and not recorded her efforts. Ms Larkings said that she could not recall being non-compliant, but she is not good at writing things down. She said that she thought that she offended the program provider because she suggested that they should set up a support group. Ms Larkings also denied having been non-compliant with physiotherapy. She said that one of the staff ‘yelled’ at her and she went ’into shutdown’.[9]

    [9] Ibid, 7.

31. Ms Larkings has seen A/Prof O’Neill, a rheumatologist, for her foot pain. She said that the last set of orthotics she had from him caused her intense pain in her right knee. They were adjusted twice but were still too hard. She said that A/Prof O’Neill told her that she could only get hard orthotics through the public health system, so she should consider treatment in the private system. Ms Larkings said that she did not wear the orthotics because they were too uncomfortable.[10]

    [10] Transcript of proceedings, 14 November 2022, 8.

1. Ms Larkings commenced to see Dr Michael Kinchington privately. He told her to buy shoes with gel and that she also needs shoes one size bigger to fit in her orthotics. She said that she had never been told this before and had been wearing shoes that were too small. She said that Dr Kitchington has made her temporary supports to lift her heels and arches and it ’feels so good‘. She said that she needs to go back to have them adjusted as she thinks that she requires more support through the metatarsals, but she has not done this yet. Once the temporary supports have been worked out properly, they will make a permanent version. Ms Larkings said that she is now much more comfortable but still cannot walk far. She said that she had been interested in a mobility scooter, but Dr Kinchington had said that she did not need one. She said that she had about 80 other pairs of supports or orthotics from other places, but Dr Kinchington had told her to throw them all away. He also recommended that she get turmeric capsules. She also bought turmeric cream and magnesium spray, which cost about $150 each.[11]

   [11] Ibid, 8-11.

2. Ms Larkings was referred to a physiotherapist and has seen him three times. She stopped seeing him because she had a sore ankle and then a virus. The only treatment she has been having is from Dr Kinchington and the physiotherapist. The physiotherapist has been helping her with some exercises because she cannot squat.[12]

   [12] Ibid, 10.

3. Ms Larkings said that her back pain impacts on her ability to participate in yoga and Pilates classes. She said that she cannot lie on her back or squat. She walks to a gym across the road from her home three or four times per week for classes, stretching, weights and the treadmill. She also uses resistance stretches with a belt to stretch her tight calves. She did not detail any specific treatment for her back pain other than a cobra stretch, which she said no longer seems to be helping. She has been attending this gym for about five years, since it opened, and prior to that she attended Fitness First.[13]

   [13] Ibid, 29-30.

4. Ms Larkings said that she did not recall if medication had been recommended for her pain by A/Prof O’Neill. She said that she takes a lot of Panadol and Nurofen and is not ‘anti’ medication. She said that she had been told that surgery is not an option for her. She agreed that she had asked for a referral to hydrotherapy, but that she had not commenced the course as it was difficult for her to get to the place she had been referred to by public transport. She had not investigated alternatives. She said that she had done aqua aerobics before, but not hydrotherapy.[14]

   [14] Transcript of proceedings, 14 November 2022, 13, 29-32.

5. Ms Larkings walks to a local supermarket, also across the road from her home, several times per week to buy small items. She cannot carry anything heavy as it increases her pain, particularly in her back, so she uses a trolley. Ms Larkings also attends a hoarding program in Gordon. She is able to catch public transport and walk from Wynyard Station to the MLC Centre (about 600 metres uphill) to see her physiotherapist. She also catches public transport every couple of weeks to visit a friend who has a market stall at Haymarket, although she needs to sit down while they talk as her feet hurt too much to stand. She goes to church every week, which is next to her house. During the lockdowns, she walked to a local park to get fresh air. Ms Larkings said that she would not go and do these things if she had to walk a long way.[15]

   [15] Ibid, page 21-22; pages 32-33.

6. A couple of times through the week, Ms Larkings will mop or sweep her floors. Ms Larkings advised that she only cooks simple meals because she cannot stand for long enough to cook a more complex meal, but she does wash up straight after eating as she does not like to have dishes in the sink. She does her own laundry, preferring to do a larger load less frequently. She dries her washing on the balcony. She has paid privately for cleaners to assist her with heavier tasks such as moving furniture and cleaning up the kitchen.[16]

   [16] Ibid, 22, 27-28.

7. Until 2019, Ms Larkings was the legal guardian for an elderly neighbour, and organised transport and social activities for her. She provides some assistance to her son and finds that he is only a minimal assistance to her as he is unreliable. Ms Larkings attends Al-Anon meetings from home via Zoom almost daily, and also attends Clutterers Anonymous meetings almost daily in the same way. She started attending Al-Anon over 30 years ago. Prior to the pandemic, she attended a meeting in Pitt Street on a Tuesday and another in Neutral Bay on the weekend.[17]

   [17] Transcript of proceedings, 14 November 2022, 33-38.

   The medical evidence – physical impairments

8. A discharge summary report from the ADAPT program by Dr Michael Nicholas, dated 22 August 2000, noted that Ms Larkings did not attend the assessment for the second stage of the program, so her improvements could not be measured. On self-reported psychometric questionnaires, Ms Larkings made no changes as a result of attending the program. Her overall compliance was poor:

   ‘… Firstly, she did not attend three days of the programme, attended for half the day on a separate occasion and frequently arrived late on the days she did attend. Similarly, her performance in the physical and psychological components of the programme was also inconsistent. Despite repeated discussions with programme staff Ms Larkings did not record or pace up her tolerances (e.g. tolerance of standing), or consistently keep records of, or set goals for the exercises, and persisted in performing some exercises inappropriately (e.g. repeatedly performing stretching exercises as though they were strengthening exercises). In the psychological component, she did not attempt the programme strategies in a regular and consistent manner, and did not maintain the records and plans designed to assist her to develop her pain management skills….’[18]

   [18] HTB-1, H26, 318-322

9. Dr Nicholas noted that Ms Larkings: “…reported a low level of pain-related disability both before and after the programme, but a significant level of depressive symptomatology…. it is more likely that Ms Larkings’ ongoing distress is related to difficulties coping with interpersonal relations and personal stressors…”[19]  Dr Nicholas suggests that Ms Larkings could benefit from a referral to a clinical psychologist or psychiatrist.

   [19] Ibid.

10. A/Prof Sean O’Neill, in a report of 10 February 2020, stated that Ms Larkings is reasonably physically active, but has flat feet with bilateral pain. He declined to assess Ms Larkings’ condition as permanent and referred her for x-ray, noting that she did not want to take medication, which would make pain management challenging.[20] On 7 September 2020, A/Prof O’Neill advised that he had referred Ms Larkings for an MRI and that she had been prescribed a toe separator and wider fitting shoes.[21] On 17 December 2020, he stated that Ms Larkings’ pain is intertwined with her mental health issues and she has had trouble complying with physiotherapy, instead asking for a referral for hydrotherapy.[22] A/Prof O’Neill has specifically noted that Ms Larkings was significantly late for two out of the three appointments he described.

    [20] HTB-1, H28, 324-325.

    [21] HTB-1,H30, 327-328.

    [22] HTB-1,H33, 332.

11. On 13 May 2019, Andrew Scown (podiatrist), reported that Ms Larkings’ foot pain was preventing her from exercising and dancing. He stated that she required prescription orthotics and supportive footwear and should see a physiotherapist for a strengthening program.[23]

    [23] HTB-1, H2, 22-29.

12. On 11 May 2022, Dr Michael Kinchington (sports medicine physician) reported that he has seen Ms Larkings twice and that she had made ’sterling progress‘.[24] He stated that osteoarthritis of the feet and knees was verified by x-ray in April 2022 and that Ms Larkings now had appropriately fitting footwear and modification of shoes with internal heel raises and skip lacing. He reports that Ms Larkings said that she is more comfortable, but there has not been time to collect quantitative data. He stated that she was a good candidate for customised orthotics and ‘…ongoing footwear recommendations to optimise foot mechanics and stabilise osteoarthritic feet. Other management yet to be utilised include arthritic medication and supplement based regimes, strength programs, and exercise modalities…The reason these treatments have not been pursued is Ms Larkings has only just commenced management. She has a history of poor advice given and her previous position requires a slow and methodical intervention…’[25] Dr Kinchington stated that he was optimistic that Ms Larkings’ condition could be improved from a comfort and function point of view with the ongoing medical intervention described, although noting that the underlying arthritis would still exist. He stated that Ms Larkings did not require personal assistance although she does need the aids of supportive footwear and orthotics.

    [24] HTB-1, H18, 189-192.

    [25] Ibid.

13. In his report of 3 December 2021, Dr Mo Ali diagnosed Ms Larkings with chronic plantar fasciitis of the midportion of the plantar fascia of the right foot. He noted that she has orthotics but does not wear them as they are not comfortable. His opinion was that Ms Larkings’ plantar fasciitis was:

    ‘due to extremely shortened gastrocnemius/soleal musculature in the posterior

    compartment of the lower leg. Ankle mobility is locked at 90 degrees, 20 - 30 degrees

    of dorsiflexion is required for normal function’.[26]

    Dr Ali was also of the opinion that the knee pain experienced by Ms Larkings was due to the maltracking of her patella, which is worsened by her pronation of the feet. He thought that the foot and leg immobility and muscle weakness may also be a factor in her back pain. Dr Ali’s prognosis was that Ms Larkings’ foot and knee condition could improve and she may be able to recover from the plantar fascia injury with appropriate treatment.[27]

    [26] HTB-1, H22, 206-207.

    [27] Ibid, 207.

14. Dr Ali gave the opinion that Ms Larkings’ current treatment was not appropriate because it was addressing the symptoms, but not the cause of the symptoms, being the ’…shortened musculature which is causing the misalignment of the skeleton and joints leading to injury of associated soft tissue and joint degeneration…’[28] He also felt that Ms Larkings was not engaged in her therapy due to depression and a ’general lack of positivity’ regarding the potential for improvement in her condition.[29]

    [28] Ibid.

    [29] Ibid.

15. Dr Ali’s recommended treatment was shockwave therapy and massage, along with a stretching protocol; custom made orthotics; a change in footwear; a strengthening program for the ankles and feet; and a generalised strengthening program under the supervision of an exercise physiologist.[30]

    [30] Ibid,209.  

16. In evidence before the Tribunal, Dr Ali explained that he had been practising as a podiatrist since 2006. He is a graduate of Western Sydney University and also spent a period of time lecturing at the University of Newcastle in sports medicine and biomechanical injury and treatment, as well as the manufacture of orthotics. Dr Ali now has a podiatry practice in Sydney, specialising in sports injury management for the lower limb.[31]

    [31] Transcript of proceedings, 14 November 2022, 62-63.

17. Dr Ali explained that plantar fasciitis is a ‘… chronic inflammation due to micro tears inside the plantar fascial ligament which is situated at the mid-foot … in the plantar section…’[32]  He described it as a ligamentous strain which can lead to the type of chronic inflammation and chronic pain being experienced by Ms Larkings.

    [32] Ibid, 63.

18. Dr Ali said that an unstable foot causes the body to compensate by internally rotating the shin and knee, leading to osteoarthritis in the patellofemoral joint which causes pain, and this can then progress up into the hip and cause lower back pain. Dr Ali said that Ms Larkings’ knee and back issues may have been caused by her feet, or may have been caused by her tight hamstrings affecting the muscles in both directions. It was not possible for him to determine causation.[33]

    [33] Ibid.

19. Dr Ali stated that his investigation and examination of Ms Larkings indicated that her plantar fasciitis was due to the gastrocnemius and the soleus muscles being ’…really, really tight causing a locking of the ankle joint, then the foot compensating for that and getting injured in the meantime…’[34]

    [34] Ibid, 64.

20. Dr Ali advised that he understood the treatment being received by Ms Larkings to be orthotics to stabilise her foot, which she was not wearing because she found them uncomfortable. He said that his assessment of that treatment was that it was inappropriate because Ms Larkings was unable to comply with it and she had not had any of the soft tissue work which he considered to be necessary for rehabilitation of her injury - shockwave therapy, massage and stretching.[35]

    [35] Ibid.

21. Dr Ali said that shockwave therapy uses percussion soundwaves. It reduces inflammation and has the side effect of reducing pain in that area as well. Dr Ali said that shockwave therapy is very effective for plantar fasciitis. He said that there have been a lot of studies done of its use in plantar fasciitis, which show lasting effects in 88% of the patients.[36]

    [36] Ibid, 64-65.

22. When asked how well such therapy could be expected to work in Ms Larkings’ case, Dr Ali said that given there appeared to be issues with Ms Larkings’ compliance with her treatment regimes, the therapist would need to discuss this with Ms Larkings and set benchmarks in terms of flexibility gains and program progressions and perhaps even a compliance contract. Dr Ali was of the opinion that the treatment would be quite effective, but that it may take 3 to 4 months of treatment for Ms Larkings to see a ’good effect’.[37]

    [37] Ibid, 65.

23. Dr Ali was of the opinion that an appropriate treatment plan would be for shockwave therapy twice a week for the first 4 to 6 weeks and then once a week for the next 4 to 6 weeks. He stated that massage therapy would be an adjunct to this and while it was not necessary, it would definitely help. He said that in his practice, a strengthening programme would also be included as part of the shockwave therapy and in his opinion a:

    ‘strengthening program is crucial to the recovery because with chronic plantar fasciitis, it tends to get very swollen, weaker, and it doesn’t recover, resting doesn’t really help, it helps with pain but to recover it properly you need to start loading it up over time and make it stronger, just like with any – most other tendinopathies, strengthening protocol is one of the most important parts of it’. [38]

    [38] Ibid, 66.

24. Dr Ali stated that in total, 12 to 14 sessions would be required at a cost of $150 per session ($2,100). They would be looking for a patient to be able to do 40kg in addition to their own body weight in calf raises and then move on to a metrics program. He said that if there was no pain at that stage, the plantar fasciitis would be assessed as “’fixed‘. Dr Ali said that Ms Larkings would be able to do the exercises in the strengthening program herself at home or at the gym.[39]

    [39] Ibid.

25. Dr Ali said that at the end of a 12-week treatment program ‘…you would expect the patient to be walking pain free...’.[40]

    [40] Ibid.

26. On questioning by the Tribunal, Dr Ali confirmed that it is his opinion that the locking of Ms Larkings’ ankle joint was a soft tissue restriction, not related to osteoarthritis, and he would expect that to improve with the treatment he had proposed. He also confirmed that although Ms Larkings’ condition is chronic, he would still expect her to be walking pain free after treatment, although the course of treatment may need to be slightly longer. He said that the academic studies and best practice indicate that the length of time a person has had the condition does not affect the treatment outcome.[41]

    [41] Ibid, 68.

27. Dr Ali confirmed that even if the proposed treatment for plantar fasciitis was successful, Ms Larkings would still require orthotics to address ’…the biomechanical overstretching of the plantar fascia’” which would require an orthotic consultation every 1 to 2 years. Dr Ali said that at his practice, such a consultation costs $105 and the custom-made orthotics cost between $650 and $800 a pair.

28. The Tribunal put to Dr Ali that Ms Larkings was being treated by Dr Kinchington, where she was trialling orthotics. Dr Ali said that, in his opinion, attempting stabilisation of the foot with orthotics without having done the soft tissue work can mean that the orthotics can be unsuccessful or uncomfortable, and that in his clinic the soft tissue work is always done first.[42]

    [42] Ibid.

29. The Tribunal asked Dr Ali about his opinion of the relationship between Ms Larkings’ osteoarthritis in her knees and feet and the functional impairment that she is experiencing. Dr Ali said that the pain experienced by Ms Larkings is mainly underneath her feet, in the plantar fascia, but her knee pain is ’definitely caused by osteoarthritis under the patella’.[43]

    [43] Ibid.

30. On cross-examination, Dr Ali said that plantar fasciitis was most commonly found in people over the age of 40. He said that in his clinical experience, Ms Larkings’ age would not be a barrier to her having a successful outcome from treatment. He said that he has had patients in their 70s who were treated successfully because the correct causative factors had been addressed. He confirmed his opinion that Ms Larkings is currently significantly affected by plantar fasciitis, and as a consequence, she is very limited in terms of her mobility and walking, compared to a normal person.[44]

    [44] Ibid, 69.

31. Dr Ali confirmed that it would be usual to set patient progress benchmarks during the course of treatment. If he was not seeing the type of results he was expecting after 3 to 4 weeks, he would look at modifying the program to add in more soft tissue work or massage, and to ensure the patient is doing exactly as he has specified. He said that sometimes patients have a reduction in their pain and feel that they can go back to their normal activities, which re-aggravates the issue. It was explained to Dr Ali that Ms Larkings currently attends the gym 3 to 4 times per week and does raises on her toes on a treadmill. Dr Ali was unable to say whether this was appropriate exercise for Ms Larkings, as it would depend on where she is in terms of her pain and capacity. Dr Ali said that what has been shown to work for plantar fasciitis is a heavy strengthening programme.[45]

    [45] Ibid, 70.

32. Dr Ali explained that if Ms Larkings was not to have success with the treatment program he proposed, the next option would be a cortisone injection, which could be successful. He said that while surgical intervention is very successful, he would not recommend it for someone of Ms Larkings’ age and with her existing osteoarthritis.[46]

    [46] Ibid, 71.

33. Dr Ali said that when he assessed Ms Larkings, he felt that she was unfocused and had given up on a lot of treatments because she had not had a result. He did feel that she was not really engaged in the treatment, was not listening and was not compliant because she had tried things and they had not worked. He said that she wanted to talk over him and lacked concentration. He had an impression that there may be other mental issues which he is ‘not qualified to diagnose or talk about’.[47]

    [47] Ibid, 72.

34. Dr Ali said that he had a positive attitude towards non-invasive treatment and in his clinical practice, he does get really good results with shockwave therapy:

    ‘once you address all the basics which is a stretching program, biomechanical adjustment, bio-orthotics, reduction in load or overuse … and also, a strengthening program’. [48]

    [48] Ibid.

35. His opinion was that Ms Larkings had a 70% chance of getting better from the plantar fasciitis and being able to walk pain free, even with her compliance issues. He noted that knee pain caused by patellofemoral syndrome was ’highly correlated with abnormal foot function or abnormal pronation‘, and that he would expect an improvement in her knee, hip and back pain as a result of fixing her feet, which would then flow into improvements in mobility and flexibility.[49]

    [49] Ibid.

    CONSIDERATION

    Are any of Ms Larkings’ physical impairments ’permanent’ or likely to be ‘permanent’ for the purpose of section 24 of the Act?

1. The evidence before the Tribunal indicates that Ms Larkings has the following impairments: plantar fasciitis; osteoarthritis of the feet and knees; and lower back pain.

2. Both Dr Kinchington and Dr Ali agree that Ms Larkings has not yet had the right treatment for her plantar fasciitis. Dr Kinchington declined to assess Ms Larkings’ plantar fasciitis as permanent and noted that although he had only seen her twice at the time of his report, Ms Larkings had made ’sterling progress’ with a change to her footwear and simple lacing techniques. He was hopeful of a significant functional improvement. Dr Ali is also hopeful of a significant functional improvement, and gave evidence that Ms Larkings had a 70% chance of complete remission of her symptoms with the correct treatment. Both Dr Kinchington and Dr Ali agreed that there are a number of medical treatments that Ms Larkings was yet to try. Rule 5.4 outlines that an impairment is only permanent, or likely to be permanent if there are ‘no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.’ In this case, there are a number of known, available and appropriate evidence-based treatments that are likely to remedy Ms Larkings’ plantar fasciitis.

3. Mr Robin argued that Dr Ali did not have the benefit of x-rays when forming his conclusion, and also did not have information about Ms Larkings’ mental health impairments, which may affect her ability to comply with any treatment regime. Ms Larkings’ position was that, if these were taken into account, Dr Ali may have formed a different view about the prospect of remedying her impairment. Further, Ms Larkings’ position was that orthotics are not a commonly used item and that she is significantly functionally impaired without them.

4. Mr Robin argued that the NDIS should be ’incentivised‘ to pick up the gaps in the mainstream treatment system. The Tribunal notes that this is avowedly not the purpose of the NDIS.

5. On behalf of Ms Larkings, Mr Robin argued that the treatments were not available to Ms Larkings due to their expense. Ms Larkings lives in a major city and is able to access appropriate treatments. Although she is in receipt of the disability support pension, her financial documents show that she has over $80,000 in savings and has in the past been willing to use these funds for treatments.[50] The Respondent submitted that the argument that treatment was not available to Ms Larkings for financial reasons does not arise in this case. Leaving aside the issue of the tension between the non-means tested nature of the NDIS and a consideration of a person’s means in issues of availability, the Tribunal agrees with the Respondent. The availability of treatment for Ms Larkings is not affected by her finances. The Tribunal finds that Ms Larkings’ plantar fasciitis is not permanent for the purpose of section 24(1)(b) of the Act.

   [50] Exhibit 2, ‘Interim Statement Accelerator’.

6. Even if the condition was considered to be permanent, the Tribunal could not find that this condition causes Ms Larkings a substantial functional impairment in mobility, as required by section 24(1)(c). The evidence presented is that Ms Larkings can still walk 600 metres at a slow pace even without her orthotics, and with plantar fasciitis. She can walk to the gym and shops and use public transport. Her capacity is much greater than in many other cases in which a substantial functional impairment has been found (such as in Holmes and National Disability Insurance Agency[51]).

   [51] [2017] AATA 2750.

7. While Ms Larkings is certainly impaired in her mobility and appears to walk more slowly than a normal person, the Tribunal could not be satisfied that the impairment causes a substantially reduced functional capacity, even when orthotics are not being worn. Ms Larkings is able to walk around her home without aids, walks around the community and uses public transport without orthotics. The test in Mulligan requiring the Tribunal to be positively satisfied about all the criteria in section 24 could not be fulfilled.

8. The evidence before the Tribunal is that appropriate treatment of Ms Larkings’ feet is likely to lead to improvements in function, mobility and pain in her knees and lower back. The Tribunal could not find that the osteoarthritis in Ms Larkings’ feet, knees, and her back pain are permanent conditions either. It follows that the Tribunal could not be satisfied that any of Ms Larkings’ physical impairments are permanent for the purpose of section 24(1)(b) of the Act.

   Ms Larkings’ evidence – psychological impairments

9. The Tribunal asked Ms Larkings about the circumstances of her admission to Gordon Private Hospital on 11 May 2022. Ms Larkings explained that she maintains private health insurance and this was a voluntary inpatient admission with the view of sorting out some of her issues around anxiety and sleep hygiene. Ms Larkings said that A/Prof O’Neill had told her that she needs to deal with her anxiety before he can assist her properly.[52]

   [52] Transcript of proceedings, 14 November 2022,16-17.

10. Ms Larkings was asked about the comments of a psychologist she saw in 2017, Ms Jane Randall, from One Door Mental Health, about her being difficult to engage and difficult to satisfy in terms of her appointment times and locations. Ms Larkings said that she did not recall being difficult, but she did recall that Ms Randall sat facing the computer with her back to Ms Larkings and Ms Larkings found this rude. Ms Larkings said that on other occasions, Ms Randall also bought a dog into the consultation and a student into the consultation and Ms Larkings did not feel like she could speak up and say that she was uncomfortable.[53]

    [53] Ibid, 14.

11. Ms Larkings confirmed that she is not presently under the care of a psychologist. She said that Ms Kristiina Jacobs was the last psychologist she saw (although the Agency’s file shows it to have been Ms Ebert). Ms Larkings said that her general practitioner has been prescribing psychological treatment for her for at least the last 10 years. Ms Larkings said that she takes no medication for her moods although she has a lot more clarity about why she feels the way that she does, as a result of the therapy she has undertaken. She did trial mirtazapine but did not like the way that it made her feel. She does take melatonin for sleep, and she has tried other agents for sleep.[54]

    [54] Transcript of proceedings, 14 November 2022, 16-17.

12. Ms Larkings said that she first did a hoarding program, “Buried in Treasure”, in 2009. She has now done it three times. She attends a hoarding support group in Gordon, but described it as just talking, not action, although they were expected to bring in one thing each week to throw out. She said that she was then meant to have 1:1 support from a psychologist, but she did not feel that she got the support she was meant to. She has done some telehealth appointments around hoarding.[55]

    [55] Ibid, 18-20.

13. Ms Larkings said that she finds it very difficult to work out what is most important in her life and so she is sometimes very busy paying bills and catching up on things that she has not prioritised. She said that she also has difficulty waking up to face her day. She said that she is not depressed, but she is very unhappy and that she would like to see a psychologist.[56]

    [56] Ibid, 23.

14. Her son is 36 years old. He sleeps in a van in her street and comes to see her to shower and have meals because her unit has been flooded from upstairs, and the bedroom in which he used to sleep is now affected by mould. He also has a dog now, which Ms Larkings does not like having in the house.[57]

    [57] Ibid, 25-16.

    Medical Evidence – psychological impairments

15. The evidence before the Tribunal is that Ms Larkings has been diagnosed with a number of mental health conditions over an extended period of time. In August 2000, Dr Nicholas attributed most of the functional impairment Ms Larkings experienced from her feet to be related to her psychological condition rather than her pain.[58]

    [58] HTB-1, H26, 318-322.

16. One Door Mental Health has reported that Ms Larkings was difficult to engage and was demanding as to the timing of her appointments.[59]

    [59] Ibid, H27, 323.

17. On 25 July 2018, Ms Kristiina Jacobs, registered psychologist, stated that Ms Larkings’ K-10 questionnaire indicated extremely severe symptoms.[60] On 4 October 2020, Ms Jacobs reported that Ms Larkings was overwhelmed and had recently commenced anti-depressant medication.[61] On 14 October 2020, she reports that she had seen Ms Larkings for six sessions and Ms Larkings was due for medical review. She stated that Ms Larkings was a compulsive cleaner and hoarder and her mental health had deteriorated.[62] On 16 December 2020, Ms Catherine Ebert (psychologist) described Ms Larkings as having constant low mood and severe depression for which she needs psychological therapy.[63]

    [60] Ibid, H7, 49-50.

    [61] Ibid, H31, 329.

    [62] Ibid.

    [63] Ibid, H32, 330-331.

18. Ms Larkings’ general practitioner, Dr Holliday, described Ms Larkings as having anxiety and depression and being a chronic hoarder on 16 July 2018.[64] On 16 September 2022, Dr Holliday stated that the mental health plans available to Ms Larkings within her financial capacity were not enough to remedy her impairment.[65]

    [64] Ibid, H6, 48.

    [65] HTB-2, 61.

19. Ms Debbie Graham, a counsellor and hoarding specialist with InsideOut Recovery, reported that she first had contact with Ms Larkings in August 2022.[66]

    [66] Exhibit 1.

    Dr Jebejian’s Evidence

20. Dr Artin Jebejian  (psychiatrist) treated Ms Larkings during a voluntary inpatient admission at Gordon Private Hospital in May 2022. His discharge summary describes Ms Larkings’ conditions as chronic and permanent. He diagnosed her with hoarding disorder, obsessive-compulsive disorder, generalised anxiety disorder, post-traumatic stress disorder, adjustment disorder with depressed mood, and cluster C. He stated that she was severely ill and had minimally improved as a result of her admission.[67]

    [67] HTB-2, 30-31.

21. Dr Jebejian was called as a witness before the Tribunal. He did his Masters in 1986 and the Irish Diploma of Psychiatric Medicine in 1993. He has worked in psychiatry since 1983. He treated Ms Larkings during her inpatient admission at Gordon Private Hospital between 11 and 20 May 2022. He said that during this time he saw her daily and had an exposure to her history. She showed him photos of her home. He has had no contact with her since this time and has not continued to treat her in any capacity.[68]

    [68] Transcript of proceedings, 14 November 2022, 43.

22. Dr Jebejian is of the opinion that Ms Larkings has severe generalised anxiety disorder, obsessive-compulsive disorder and a strong trauma history. He said that while she was in hospital she presented as very teary and in pain. He said that the only medication she would accept was melatonin for her sleep and she was “not keen” to have any psychotropic medications.[69]

    [69] Ibid, 44.

23. Dr Jebejian said that Ms Larkings has had significant losses and her hoarding and her son’s mental health impact on each other. He was of the opinion that Ms Larkings requires someone involved to help her get her home organised, and needs 1: 1 input to help her deal with the loss from trying to clean up the hoarding. He said that he understood the main reasons that she came into hospital to be her hoarding, anxiety and sleep. He said that he observed that her ability to function was impacted by pain each time he saw her. He said that to a certain extent, Ms Larkings engaged with treatment while she was an inpatient, but that he had been worried about what would happen post discharge. The hospital offers a dialectical behaviour therapy program for outpatients, but he was of the opinion that Ms Larkings requires cognitive behaviour therapy, which is not offered on an outpatient basis. He said that Ms Larkings attended some of the dialectical behaviour therapy program as an inpatient, and the outpatient program could have been offered to her, but that she did not find a connection with the therapy model. Dr Jebejian said that although Ms Larkings has had a lot of previous psychological therapy, he could not say whether or not that therapy has been targeted correctly.[70]

    [70] Ibid, 43-48.

24. Dr Jebejian confirmed that there are medications which can reduce the intensity of obsessive-compulsive disorder, but that there is ‘no straightforward response‘. The first treatment which is usually tried is fluvoxamine, at night. He said that he had recommended that Ms Larkings engage with a particular therapist post discharge, Mr Rocco Crino, who specialises in obsessive-compulsive disorder. Dr Jebejian said that his conclusions would have been based on his own observations and what Ms Larkings told him during her admission. He probably did not have any input from the previous psychologists who had treated her although he should have had a referral letter from her general practitioner.[71]

    [71] Transcript of proceedings, 14 November 2022, 46-47.

25. In his opinion, Ms Larkings requires both a psychologist and someone to help her get rid of things from her home. He described her hoarding behaviour as significant and accepted her report that it was getting worse, and that it had been significantly worse in the six months prior to her admission. Dr Jebejian’s view was that psychotherapy would definitely help Ms Larkings with her hoarding and that psychotherapy is more effective for obsessive-compulsive disorder than medication. Dr Jebejian said that Ms Larkings reported to him that her social interactions are affected by her physical pain and her self-care is affected by both physical limitations and her mental health.[72]

    [72] Ibid, 49.

26. Dr Jebejian said that if Ms Larkings has proper therapeutic involvement her prognosis would be okay, but that given her condition is now chronic it needs a proactive approach. While weekly psychotherapy is ideal, it is often hard in reality and Dr Jebejian said that psychotherapy every 2 to 3 weeks would be sufficient. Ms Larkings also requires a case manager. He said that some improvement could be expected in her condition conservatively within 6 to 12 months, depending how much her environment changes.[73]

    [73] Ibid.

27. The Tribunal asked Dr Jebejian about the “cluster C” he mentioned in his discharge summary. Dr Jebejian said that Ms Larkings displayed some dependent and some obsessional traits, but she does not have a personality disorder.[74] His opinion was that Ms Larkings’ obsessive-compulsive disorder could be a factor in her slowness with organising and attending appointments. He was of the view that Ms Larkings’sobsessive-compulsive disorder and anxiety would best respond to psychotherapy, although medication could be used.[75]

    [74] Ibid.

    [75] Transcript of proceedings, 14 November 2022, 49-50.

    Mrs Graham’s evidence

28. Mrs Debbie Graham was called as a witness before the Tribunal. Mrs Graham holds an associate degree in counselling and told the Tribunal that she has been working with hoarding disorder since 2016. At the time she gave evidence she was in London accepting an international award for her work.[76]

    [76] Transcript of proceedings, 15 November 2022, 78.

29. Mrs Graham said that she first came into contact with Ms Larkings when Ms Larkings attended a disability expo at Darling Harbour in Sydney in August 2022. Ms Larkings came to their stall and asked Mrs Graham if Mrs Graham would be prepared to see her. Mrs Graham said that she cannot diagnose psychiatric conditions, but that Ms Larkings told her that she had a diagnosis of hoarding disorder. Mrs Graham described Ms Larkings’ home as cluttered and dysfunctional.[77]

    [77] Ibid.

30. The major source of funding for Mrs Graham’s service is the NDIS. They also receive some funding from brokerage and south-western Sydney Local Health District. Mrs Graham said that she had one face-to-face meeting with Ms Larkings in August or September 2022, but her service has not been funded to provide Ms Larkings with any support.[78]

    [78] Ibid.

31. Mrs Graham explained that the service she provides includes counselling, psychosocial recovery coaching, decluttering coaching, support groups, therapy groups, cleaning and handyman services. She said that they aim to see their clients every week, but sometimes the client cannot commit to weekly appointments. She said that they determine whether or not a space is dysfunctional by seeing if a person can use the rooms in the home for their intended use or not. They also assess the safety of the residents on the basis of the clutter and level of squalor. Mrs Graham said that prior to providing her report to the Tribunal, she asked Ms Larkings to provide her with photos of her premises, as Ms Larkings had told her that the house was worse than when she had seen it. She received these photos in late October 2022. Mrs Graham was of the opinion that Ms Larkings’ home is in a worse state than when she saw it herself in September 2022, and that this might be indicative of Ms Larkings’ increasing mental health challenges.[79]

    [79] Transcript of proceedings, 15 November 2022, 79-80.

32. Mrs Graham said that the home had no hot running water, and the stove cannot be cooked on. She explained that due to the level of shame associated with the disorder, sufferers often will not let people in to conduct necessary repairs. Mrs Graham said that hoarding is a form of crisis which worsens over time and that Ms Larkings struggles to move around her home and is displaying signs of self-neglect in the lack of cooking and hot water. Mrs Graham said that for a lot of people with this disorder ‘… they feel like the stuff is in control of them.  So every decision they make is made of around the stuff, so you know, “Do I leave the house today?’’Do I do this, do I allow people in?’...”[80] She said that it is a secretive disorder in which the sufferer does not want other people to know how they are living. This often affects their ability to engage socially.[81]

    [80] Ibid, 80.

    [81] Ibid, 80-81.

33. Mrs Graham said that hallmarks of the disorder include excessive acquisition and distress with discarding objects. People with hoarding disorder are unable to de-clutter their home alone and then maintain the improved state. Mrs Graham said that the relapse rate is approximately 75% and that people are likely to relapse without ongoing support. Mrs Graham said that hoarding disorder is an addiction which has a relationship with mental health.[82]

    [82] Ibid, 81.

34. Mrs Graham said that she has had many telephone conversations with Ms Larkings and has observed her mental health deteriorating. She said that she is not surprised that the state of the home is worse, and she would expect that to be the case. She estimated that she had spoken to Ms Larkings between 15 and 20 times since her initial contact. She said that Ms Larkings had reported that she feels isolated, overwhelmed, and has a sense of escalation in her clutter. Mrs Graham said that it was fair to say that she did not delve into these issues as her service is not funded to provide 1:1 proper support to Ms Larkings.[83]

    [83] Ibid, 82-84.

35. On the universal clutter grading tool, Mrs Graham estimated that Ms Larkings’ home was probably a two or three in August 2022 and is now a four or five. She said that any score over four is clinical hoarding. Her opinion was that it would continue to worsen without intervention. Mrs Graham’s opinion was also that there are a lot of people involved with Ms Larkings, but they are all doing similar things. She said that her supports need to be streamlined as Ms Larkings is becoming overwhelmed with managing those supports, which is increasing her hoarding.[84]

    [84] Transcript of proceedings, 15 November 2022, 84-85.

36. Mrs Graham explained that some people with hoarding disorder do better with informal counselling, and some with a peer recovery coach. She was not sure which would best suit Ms Larkings. She noted that Ms Larkings’ participation in the “Buried in Treasure” program had been of limited success and that such programs are not enough for many clients because they cannot transition from completing the program to decluttering their own space. Mrs Graham confirmed that she had had no contact with that program in relation to Ms Larkings’ progress and support needs.[85]

    [85] Ibid, 85-88.

1. Mrs Graham said that managing the disorder is possible, and it requires early intervention and a program of between one and two years followed by a maintenance program. It is about maintaining ongoing functionality.[86]

   [86] Ibid, 87.

2. Mrs Graham explained that most people are not able to clean up their space before their first assessment visit, so they find that what they see on that first visit is representative of how they are living. Mrs Graham felt that Ms Larkings’ major focus on her social connections seemed to be on getting support for her issues.[87] Due to being in London, Mrs Graham did not have access to her case notes at the time she gave evidence.[88]

   [87] Ibid, 90.

   [88] Ibid.

   CONSIDERATION

   Are any of Ms Larkings’ psychological impairments “permanent” or likely to be “permanent” for the purpose of section 24 of the Act?

3. The evidence before the Tribunal indicates that Ms Larkings has the following diagnoses: hoarding disorder, obsessive-compulsive disorder, generalised anxiety disorder, post-traumatic stress disorder, and adjustment disorder with depressed mood. She also has some cluster C personality traits but not a personality disorder.

4. Ms Larkings has longstanding anxiety and depression. She has been noted to be a compulsive cleaner and hoarder since 2017. Her evidence to the Tribunal is that she first did the “Buried in Treasure” course in 2009. She has had multiple courses of psychology, with it being frequently noted that she had difficulty engaging with treatment and being compliant with treatment. For example, in 2016 she was noted not to have re-engaged with the psychologist, despite being encouraged to do so; to have had limited sessions; and not to have been fully assessed due to this and her communication style.[89] On 19 September 2019, Ms Jacobs noted that ’…Ms Larkings has been too stressed over the time I have seen her to benefit from treatment. This has been linked mainly to her son’s deterioration, as well as her financial and other stressors. She is unable to listen well in sessions and is often argumentative…’[90] On 16 December 2020, Ms Ebert reported that Ms Larkings was motivated to engage in psychotherapy.[91] In January 2021, Ms Ebert confirmed that six sessions had been completed, but there is no report of Ms Larkings’ progress.[92] GP Mental Health Plans were provided for the period from 2015 to 2020, with Ms Larkings always having a score of between 40 and 44 on the K-10 measure, regardless of how many sessions of psychology she has attended.[93] She has only ever trialled one medication for her psychological conditions.

   [89] HTB-2, 46.

   [90] Ibid, 53.

   [91] Ibid, 58.

   [92] Ibid, 60.

   [93] Ibid.

5. Ms Larkings told the Tribunal that she would like to have psychology, but she is not having any. Dr Jebejian told the Tribunal that he had specifically referred Ms Larkings to Rocco Crino for psychotherapy for obsessive-compulsive disorder after her discharge from Gordon Private Hospital, but, when asked, Ms Larkings had no recollection of this referral and had not done anything about it. Dr Jebejian’s evidence was that improvement could be expected with such psychotherapy. Both Dr Jebejian and Mrs Graham gave evidence that Ms Larkings’ hoarding could be improved with psychological treatment focused on this aspect of her behaviour.

6. Mr Robin argued that Ms Larkings’ mental health impairments were long-standing and that Mrs Graham had given evidence that hoarding disorder is not a condition that a person can recover from, only manage. It was argued that treatment is not likely to remedy her condition.

7. The Respondent said that Ms Larkings’ mental health impairments are opaque and have changed over time, including recently, and she has not yet been adequately treated. They also argued that she has not been compliant with the treatment that she has had, as evidenced by the psychological reports and the report from the pain management program. She has not availed herself of treatments which could be of assistance such as antidepressants. The Agency also took the view that hoarding disorder is not an impairment in itself, but at its highest is only a symptom of another mental health disorder. The Respondent noted that in giving his opinion, Dr Jebejian did not have access to evidence about the previous non-compliance of Ms Larkings. He also made certain assumptions about Ms Larkings being unable to leave her home, which are not consistent with her evidence. The Respondent was of the view that Ms Larkings will need to have treatment and be compliant with it before any improvement could be expected and before the permanence of her mental health conditions could be assessed.

8. The Respondent also noted that Mrs Graham acted as an advocate in the proceedings for Ms Larkings and has a vested interest in securing funding for her service to support Ms Larkings.

9. Although Dr Jebejian opined that obsessive-compulsive disorder could explain Ms Larkings’ slowness in engaging with treatment, the only explanation for the compliance issues seems to be that of Ms Jacobs - that Ms Larkings’ social and financial stressors were affecting her ability to engage and comply with treatment.[94] The compliance has not been explained by any aspect of Ms Larkings’ psychological disorders themselves, and Ms Larkings did not offer a compelling explanation. Although she went to the extent of a voluntary mental health admission in hospital, she did not engage in the recommended follow up. The Respondent drew the Tribunal’s attention to the reasoning in Schwass and National Disability Insurance Agency[95], and the Tribunal agrees that the situation is analogous. In that case, the Applicant had engaged in some treatments but had not been compliant and had not followed up, which had impacted on his level of impairment.

   [94]HTB-2, 55.

   [95] [2019] AATA 28.

10. Once again, the Tribunal cannot find that these impairments are permanent for the purpose of section 24 of the Act, having regard to Rule 5.4, although it acknowledges that they are of longstanding and clearly impact on Ms Larkings’ function. There are known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairments. While a complete remission is probably unlikely, it does seem likely that they could be stabilised at a higher functional level, such that the impact on Ms Larkings’ function would not be as great as it is now. Rule 5.6 outlines that 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. At best, this is where Ms Larkings’ psychological conditions lie – they may be permanent, but more medical treatment and review are required before that can be determined.

11. The Tribunal finds that Ms Larkings’ mental health impairments are not permanent for the purpose of sections 24(1)(b) of the Act. As she has no permanent impairments, she does not meet the disability requirements for access to the NDIS.

    Section 25 – Early Intervention Requirements

12. Section 25 of the Act sets out the requirements for access to the NDIS under the early intervention criteria. On behalf of Ms Larkings, Mr Robin argued that she may meet the access criteria on the basis that the treatment system has not managed to deal effectively with her impairments, and therefore the conditions are likely to be permanent without early intervention.

13. At the time the Agency made its internal review decision, a person met the early intervention requirements under section 25 (1)(a)(i) and (ii) if the person:

    (i) has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent; or

    (ii) has one or more identified impairments that are attributable to a psychiatric condition and are, or are likely to be, permanent…

14. In tandem with the amendment to section 24(1)(a) which removed the reference to an impairment attributable to a psychiatric condition, an amendment on 1 July 2022 to section 25(1)(a) did the same. The amendment removed the reference to impairments attributable to a psychiatric condition. From 1 July 2022, the person meets the disability requirements under section 24 (1)(a)(ii) if the person:

    (ii)has one or more identified impairments to which a psychosocial disability is attributable and that are, or are likely to be, permanent…

15. Section 2.5(b) of the NDIS Rules includes the following passage about the rationale for the early intervention requirements as an alternative to accessing the scheme through the disability requirements:

    ‘A person can access the NDIS through the early intervention requirements without having substantially reduced functional capacity. Instead, the early intervention requirements consider the likely trajectory and impact of a person’s impairment over time and the potential benefits of early intervention on the impact of the impairment on the person’s functional capacity.’

16. As already discussed and determined, Ms Larkings’ physical impairments and mental health impairments are not permanent. At best, they may be permanent. The Tribunal considered the types of supports Ms Larkings requires and came to the view that even if her impairments were considered likely to be permanent, she would not meet the early intervention requirements. Her conditions are long-standing, and it is agreed that the treatments Ms Larkings requires are for the clinical management of chronic medical and psychiatric conditions. Such clinical treatment is not the responsibility of the NDIS. The Tribunal accepts the evidence that the podiatry and mental health services accessed by Ms Larkings through the health system have not yet remedied her impairments and may be insufficient for her needs. The fact that she has not accessed adequate treatment through the health system so far, does not mean that the NDIS must fill that gap. In Young and National Disability Insurance Agency[96] the Tribunal noted:

    Whether or not funding is available through other general systems is not the test of whether it is most appropriately funded or provided through the NDIS.  The fact that the health system does not fund entirely, or even at all, what is essentially clinical treatment, or some other form of support that is more appropriately funded through the health system, does not make it the responsibility of the NDIS [at paragraph 41].

    [96] [2014] AATA 401.

17. The Tribunal finds that even if Ms Larkings’ impairments were found to be permanent or likely to be permanent she would not satisfy section 25(3) of the Act. Ms Larkings does not fulfil the early intervention requirements to enable her to become a participant of the NDIS.

    CONCLUSION

18. The Tribunal is satisfied that Ms Larkings does not meet any of the requirements to access the NDIS. The Agency’s decision on internal review dated 21 November 2019 was correct.

    DECISION

19. The decision under review is affirmed.

I certify that the preceding 121 (one hundred and twenty-one) paragraphs are a true copy of the reasons for the decision herein of Member T Bubutievski.

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

Associate

Dated: 24 January 2023

Date(s) of hearing:	14 and 15 November 2022
Advocate for the Applicant:	W. Robin of Primary and Community Care, Multicultural Disability Advocacy Association
Solicitors for the Respondent:	C. Slade of the National Disability Insurance Agency