Lavers and National Disability Insurance Agency - [2024] AATA 84

Lavers and National Disability Insurance Agency [2024] AATA 84 (25 January 2024)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s):2021/7291
Re:Scott Lavers
APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION
Tribunal:The Honourable Pru Goward AO, Senior Member
Date:25 January 2024
Place:Sydney

Pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision under review of the Respondent made on 7 September 2021.
................................[SGD].......................................
The Honourable Pru Goward AO, Senior Member
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME - access criteria - whether the Applicant meets disability requirements – whether the Applicant meets early intervention requirements - obsessive compulsive disorder - whether impairments substantially reduce functional capacity - social and economic participation - decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 43 (1)(a)
National Disability Insurance Scheme (NDIS) Act 2013 (Cth) ss 24, 25
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)
CASES
Beezley v Repatriation Commission [2015] FCAFC 165
Madelaine and National Disability Insurance Agency [2020] AATA 4025
Rooney and National Disability Insurance Agency [2021] AATA 3523
SECONDARY MATERIALS
National Disability Insurance Agency, Our Guidelines – Becoming a participant – Applying to the NDIS, (Web Page) < English Dictionary (2nd ed, 1989)
REASONS FOR DECISION
The Honourable Pru Goward AO, Senior Member
25 January 2024
INTRODUCTION

Scott Lavers (the Applicant) is a 43-year-old man who sought to become a participant in the National Disability Insurance Scheme (the Scheme) on the basis of impairments resulting from his Obsessive Compulsive Disorder. The Applicant claimed to be substantially impaired in his mobility, communication, social interaction, self-management and learning.
On 17 May 2021, a delegate of the National Disability Insurance Agency (the Respondent) made a decision under s 20 of the Act to refuse the Applicant access to the Scheme. The Applicant requested an internal review of the reviewable decision under s 99 of the National Disability Insurance Scheme Act 2013, (the Act), and on 7 September 2021, another delegate of the Chief Executive Officer (CEO) of the Respondent made the Internal Review Decision under s 100(6) confirming the original reviewable decision of 17 May 2021.
On 6 October 2021, the Applicant applied to the Administrative Appeals Tribunal (the Tribunal) for review of the internal review decision.
RELEVANT LEGISLATION
In order to become a participant in the Scheme, the Applicant must satisfy the access criteria set out in subsection 21(1) of the Act, which provides as follows:
(1) 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).
It is not disputed that the Applicant satisfies the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Lavers and National Disability Insurance Agency

Details

AGLC: Lavers and National Disability Insurance Agency [2024] AATA 84
Case: [2024] AATA 84
Decision Date: 25 January 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of Lavers and the National Disability Insurance Agency. The applicant sought access to the National Disability Insurance Scheme, contending that his obsessive compulsive disorder (OCD) met the disability requirements. The respondent agency had previously affirmed its decision to refuse access.

The primary legal issues before the Tribunal were whether the applicant met the disability requirements under section 24(1)(c) of the National Disability Insurance Scheme Act 2013 (Cth), specifically whether his impairments substantially reduced his functional capacity in key areas, and whether he met the early intervention requirements under section 25 of the Act. The respondent argued that the applicant was not substantially impaired in communication, self-care, self-management, mobility, or social interaction.

The Tribunal had regard to an occupational therapy report which, while acknowledging the applicant's independence in many daily tasks and his ability to communicate and manage self-care, noted that the time-consuming nature of his ritualistic behaviours significantly impacted his capacity to learn new things, engage in community activities, and maintain employment. The report also indicated that past psychological interventions had been effective in reducing the impact of his habits. However, the Tribunal found that the evidence did not demonstrate a substantial reduction in functional capacity across the specified domains to meet the threshold for the disability requirements. Furthermore, the Tribunal concluded that there was insufficient evidence to demonstrate that early intervention supports would significantly assist the applicant or that such supports could not be more appropriately sourced from other service systems, thus failing to meet the section 25 requirements.

Consequently, the Tribunal affirmed the decision of the National Disability Insurance Agency to refuse the applicant's access to the Scheme.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The Tribunal has had regard to various material before it, including:(a)Respondent's Statement of Facts, Issues and Contentions dated 11 October 2023 (b)Joint Hearing Tender Bundle (filed on 11 October 2023), including:·T-Documents ((T1 - T19) pp.1-194) filed on 17 November 2021·Applicant's statement of lived experience (dated 18 March 2022) ·Applicant's additional statement regarding functional capacity (dated 17 September 2023)·Letter of support from Aukse Lavers (dated 17 September 2023)·Functional capacity report from Mr Glen Dwyer (dated 7 December 2022BACKGROUND The Applicant was first diagnosed with obsessive compulsive disorder in March 1995 and although he engaged with psychology sessions from 2011 to 2017, he currently relies upon his general practitioner as needed, but otherwise not with other regular medical or therapeutic treatments. The Applicant is married with two children and is currently employed as a truck driver. His wife describes a family life of conflict between him and the rest of the family, particularly his demands for order in the house and his unwillingness to engage in social activities, which she attributes to his disorder. The Applicant is primarily disadvantaged by the time-consuming impact of the many rituals he performs throughout the day and the frustration and anxiety he experiences if these are disrupted. The OT Glen Dwyer, who assessed him, described the Applicant’s obsessive-compulsive disorder as influencing all aspects of his life. The OT said he would constantly have intrusive thoughts and compulsions, ritualistically applied strict rules, patterns and sequences to his daily activities and recommence tasks which had not been completed to his satisfaction. The Applicant has an extensive history of drug and alcohol abuse, which is also associated with a criminal history, including periods of incarceration. This is now reported to be in remission, following treatment. The Applicant favours the number four and accordingly will do certain rituals or actions four times and store or arrange items in groups of four. The Applicant lives in a house with areas of extreme neatness, maintained by him, and areas of untidiness, managed by other members of his family. There are also other areas within the house where his strict order and numbering requirements do not apply, described as “cheat” areas. In photographs provided in the OT’s Report, the kitchen, dining and living areas were immaculately tidy and the pantry contained neatly arranged rows of food items consumed by him, in groups of four. Similarly, the Applicant’s clothes, shoes and books were neatly arranged. He shares a bathroom with his children, where his items are kept neatly and the children’s are disordered. His towel is in a nominated location and must not be moved by his family. The Applicant is physically mobile and independent with household and personal tasks.CONSIDERATIONS The Respondent contended that the Applicant is not substantially impaired in any of communication, self-care, self-management, mobility and social interaction, so not meeting the requirements of s 24 (1) (c) and relies upon the occupational therapy assessment conducted by Glen Dwyer. The OT report concluded that the Applicant is mobile, able to communicate clearly and to understand others, behaves within limits accepted by others, able to understand and remember information, is competent with self-care and able to independently mobilise, either on foot, car, public transport or truck. However, Mr Dwyer noted in his report that the amount of time the Applicant required to perform many functions of daily living impacted upon his ability to learn new things and his capacity for community access. The OT also noted that the Applicant’s loss of time over each day in repeating ritualised behaviours considerably hampered his capacity to engage in other activities.

Evidence

Evidence Before The Court

In order to determine if the Applicant has met the early intervention requirements of s 25, the issue for the Tribunal is whether there is sufficient evidence to demonstrate that early intervention supports would significantly assist the Applicant and, if there were, whether they would more appropriately be sourced from another service system.EVIDENCE RELIED UPON The Tribunal has had regard to various material before it, including:(a)Respondent's Statement of Facts, Issues and Contentions dated 11 October 2023 (b)Joint Hearing Tender Bundle (filed on 11 October 2023), including:·T-Documents ((T1 - T19) pp.1-194) filed on 17 November 2021·Applicant's statement of lived experience (dated 18 March 2022) ·Applicant's additional statement regarding functional capacity (dated 17 September 2023)·Letter of support from Aukse Lavers (dated 17 September 2023)·Functional capacity report from Mr Glen Dwyer (dated 7 December 2022BACKGROUND The Applicant was first diagnosed with obsessive compulsive disorder in March 1995 and although he engaged with psychology sessions from 2011 to 2017, he currently relies upon his general practitioner as needed, but otherwise not with other regular medical or therapeutic treatments. The Applicant is married with two children and is currently employed as a truck driver. His wife describes a family life of conflict between him and the rest of the family, particularly his demands for order in the house and his unwillingness to engage in social activities, which she attributes to his disorder. The Applicant is primarily disadvantaged by the time-consuming impact of the many rituals he performs throughout the day and the frustration and anxiety he experiences if these are disrupted. The OT Glen Dwyer, who assessed him, described the Applicant’s obsessive-compulsive disorder as influencing all aspects of his life. The OT said he would constantly have intrusive thoughts and compulsions, ritualistically applied strict rules, patterns and sequences to his daily activities and recommence tasks which had not been completed to his satisfaction. The Applicant has an extensive history of drug and alcohol abuse, which is also associated with a criminal history, including periods of incarceration. This is now reported to be in remission, following treatment. The Applicant favours the number four and accordingly will do certain rituals or actions four times and store or arrange items in groups of four. The Applicant lives in a house with areas of extreme neatness, maintained by him, and areas of untidiness, managed by other members of his family. There are also other areas within the house where his strict order and numbering requirements do not apply, described as “cheat” areas. In photographs provided in the OT’s Report, the kitchen, dining and living areas were immaculately tidy and the pantry contained neatly arranged rows of food items consumed by him, in groups of four. Similarly, the Applicant’s clothes, shoes and books were neatly arranged. He shares a bathroom with his children, where his items are kept neatly and the children’s are disordered. His towel is in a nominated location and must not be moved by his family.

Decision

Reasons for decision

The Tribunal also concludes that early intervention supports would not benefit this Applicant and the requirements of s 25 are therefore not met for acceptance into the Scheme.DECISION Pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision under review of the Respondent dated 7 September 2021.

Ratio Decidendi

Legal Principle Established

The Applicant is physically mobile and independent with household and personal tasks.CONSIDERATIONS The Respondent contended that the Applicant is not substantially impaired in any of communication, self-care, self-management, mobility and social interaction, so not meeting the requirements of s 24 (1) (c) and relies upon the occupational therapy assessment conducted by Glen Dwyer. The OT report concluded that the Applicant is mobile, able to communicate clearly and to understand others, behaves within limits accepted by others, able to understand and remember information, is competent with self-care and able to independently mobilise, either on foot, car, public transport or truck. However, Mr Dwyer noted in his report that the amount of time the Applicant required to perform many functions of daily living impacted upon his ability to learn new things and his capacity for community access. The OT also noted that the Applicant’s loss of time over each day in repeating ritualised behaviours considerably hampered his capacity to engage in other activities. The OT Report, which is the most significant source of independent evidence about the Applicant’s functionality, also observed that while the Applicant held a driving licence class MC (multi-combination) he was unable to tolerate accidents and detours and would:“prefer to sit at the road closure until the road re-opens- such delays have cost him jobs in the past”. The Tribunal recognises that the Applicant’s hold on employment is more precarious because of his impairment, but no evidence was provided about the frequency of disruptions to his work timetable or the impact these incidents may have had on his employment. The OT report confirmed the Applicant’s stated preference for public transport because services followed regular schedules. The OT considers the Applicant’s need for organising and storing his clothing is: not compatible with his wife’s haphazard routine and messiness, and therefore he stores the majority of his clothes in the spare room…[the Applicant] manages all grooming tasks by way of a set routine. Overall, the OT report, which largely confirms the descriptions provided by the Applicant’s wife and the Applicant himself, describes an Applicant who is capable and independent in all functional domains, but who may be unable to complete the tasks, or make effective use of his day, because of his ritualised behaviours. The OT has recommended further medical/psychological intervention to:facilitate a reduction of the impact of his ritualistic habits…noting past treatment has been effective in reducing the effects of his habits.The OT also properly noted that specific recommendations were beyond the scope of his report. Regarding social interaction and communication, again, evidence was scarce. The Applicant claimed that he had:“no social interaction with anyone…I do not have any friends” which was confirmed by his wife. However, the OT Report referenced the Applicant as having two to three main friends and keeping in touch with friends, mainly by telephone. According to the OT, the Applicant: “stated his ability to catch up with his friends face-to-face is primarily impacted by his current work arrangement”This statement was not disputed by the Applicant in his submissions.