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.

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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

1. 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. 

2. 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.

3. On 6 October 2021, the Applicant applied to the Administrative Appeals Tribunal (the Tribunal) for review of the internal review decision.

   RELEVANT LEGISLATION

4. 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).

5. It is not disputed that the Applicant satisfies the age and residency requirements, in accordance with s 21 (1) (a) and (b) of the Act. Therefore, the Tribunal must decide whether the Applicant meets the disability and early intervention requirements.

6. The parties relied upon section 24 (1) of the Act, the disability requirements which are, for completion:

   (a)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; 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, or psychosocial functioning in undertaking, one or more of the following activities:

   (i) communication;

   (ii) social interaction;

   (iii) learning;

   (iv) mobility;

   (v) self-care; and

   (vi) self-management; and

   (vii) 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.

7. The Parties relied upon section 25 of the Act, the early intervention requirements, which are, for completion, that 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) is a child who has developmental delay; and

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

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

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

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

   (iii) improving such functional capacity; or

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

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

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

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

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

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

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

8. Section 24 (1) (c) is read with Rule 5.8 of the (Becoming a Participant) Rules which deems that:

   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.

9. Section 25 of the Act, Early Intervention, is to be read with part 6 of the Rules. For completion, this part is consistent with the Rules in Part 5 and states:

   6.1 A person does not meet the early intervention requirements if the CEO is satisfied that early intervention support for the person is more appropriately funded or provided through another service system (service systems is defined in paragraph 8.4) rather than the NDIS.

   6.2 However, a person meets the early intervention requirements if:

   (a) the person:

   (i) has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent (see paragraphs 6.4 to 6.7); or

   (ii) has one or more identified impairments that are attributable to a psychiatric condition and are, or are likely to be, permanent (see paragraphs 6.4 to 6.7); 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 (see paragraphs 6.8 to 6.11); 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 (see paragraphs 6.8 to 6.11).

   6.3 This Part sets out rules relating to some of the elements in paragraph 6.2 above, however, to meet the early intervention requirements, all of the requirements in that paragraph need to be satisfied.

10. Determining whether an impairment is permanent or likely to be permanent for the early intervention requirements relies upon Rules 6.4-6.7. For completion, these stipulate:

    6.4 An impairment is, or is likely to be, permanent (see paragraphs 6.2(a)(i) and (ii)) only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.

    6.5 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 may improve.

    6.6 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).

    6.7 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.

    CONTENTIONS

11. The Tribunal notes the Respondent accepted that the Applicant had an impairment to which a psychosocial disability is attributable, such that the requirements of s 24 (1) (a) were met for his obsessive-compulsive disorder, and that the impairments were permanent, so satisfying the requirements of s 24 (1) (b).  These are not in contention.

12. The Respondent contended that the impairments suffered by the Applicant did not result in substantially reduced functional capacity in any of the activities identified in s 24 (1) (c) of the Act; communication, mobility, social interaction, self-care, learning and self-management. The Applicant contended that he suffered substantially reduced functionality in all these activities.

13. The Respondent contended that the Applicant had not satisfied s 24 (1) (d) on the basis his capacity for social and economic participation was not affected by his impairments, which had not met the threshold required in s 24 (1) (c). The Applicant contended he had reduced capacity for social participation and that his work, or economic participation, was made precarious by his impairments.

14. The Respondent contended that s 24 (1) (e) was not met because, in addition to the Applicant not satisfying s 24 (1) (c), the Applicant was therefore unlikely to require support under the Scheme for the person’s lifetime. The Applicant did not address these contentions but made the general point that with support from the NDIS he would “have the correct networks in place”.

15. The Respondent contended that the Applicant did not meet the early intervention requirements. The Respondent accepted the Applicant’s impairments were permanent but contended the evidence did not demonstrate that early intervention supports would have a significant impact on the course taken by those impairments or have any of the benefits identified in s 25 (1). The Respondent also contended that if the Applicant was deemed to have met the requirements of s 25 (1), no early intervention supports had been identified as appropriate or relevant by his treating specialists and the supports sought were more appropriately funded by other service systems, that the exclusions in s 25 (3) would apply.

    THE ISSUES

16. Although it is accepted that the Applicant has permanent impairments arising from his obsessive-compulsive disorder, the Applicant is also required to demonstrate that the impact of those impairments on any of his functional capacities of communication, mobility, self-care, social interaction and self-management is substantial. This has not been demonstrated to the satisfaction of the Respondent and the issue for the Tribunal is whether, in accordance with s 24 (1) (c), the impairments of functionality are substantial.

17. In the event the Applicant is determined to have substantial impairment in any of the functions identified in s 24 (1) (c), consequent issues for the Tribunal are the Applicant’s social and economic participation, satisfying the requirements of s 24 (1) (d) and whether the assistance he requires could be more appropriately provided by another service system, pursuant to s 24 (1) (e).

18. 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

19. 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 2022

    BACKGROUND

20. 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.

21. 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.

22. 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.

23. 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.

24. 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.

25. 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.

26. 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.

27. The Applicant is physically mobile and independent with household and personal tasks.

    CONSIDERATIONS

28. 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.  

29. 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”.

30. 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.

31. The OT report confirmed the Applicant’s stated preference for public transport because services followed regular schedules.

32. 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.

33. 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.

1. 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.

2. 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.

3. The OT Report found that the Applicant used modified techniques to manage anxiety which might occur when interacting with the community (or performing other tasks of daily living) and that these techniques, such as sitting in his car for hours until he could backtrack his movements, imposed significant time penalties. The OT observed that his social interaction had “no reported or observed deficits”. The OT also reported that while the Applicant’s rituals impacted on his ability to achieve his routine, they did not adversely affect other people, other than his immediate family in the home environment. The Tribunal appreciates that since interactions with his immediate family make up a significant part of the Applicant’s life, his social connectedness may be more limited, but as found in Madelaine and National Disability Insurance Agency [2020] AATA 4025 (‘Madelaine’):

   The criteria referred to in the Guideline are directed principally at personal skills (emphasis added) needed for social interaction, and only marginally about opportunities to exercise those skills… Difficulties associated with … social outings do not take away from the fact that they do nonetheless sometimes occur.

4. On this basis, the Tribunal finds there is insufficient evidence that the Applicant has substantial impairment in social interactions. The Tribunal considers that although there have been family conflicts about standards of tidiness, the Applicant has presented as a person with some insight and while his disorder may affect the opportunities he has for social interaction, they have not impacted upon his social skills, consistent with Madelaine.

5. The Applicant claimed to be substantially impaired in learning and self-management, stating that he struggled to remember information if he was uncomfortable, and his wife submitted that he had not finished an online course. However, as the Respondent submitted, the Applicant attained bachelor’s degrees and learnt new skills in order to become a truck driver.

6. Although the Applicant submitted he was unable to plan his life, make decisions and complete daily tasks, his wife submitted that he planned “all the time” and the OT considered that he “over plans”. There was no evidence provided by the Applicant of his alleged difficulties in self-management.

7. The Tribunal finds there is insufficient evidence provided to determine that the Applicant has a substantial reduction in learning and self-management.

8. In the Tribunal’s view, the OT correctly identified that the issue for this Applicant is not his functional capacity, in the sense of his physical ability to perform the tasks of daily living, but the time the Applicant takes to perform those tasks and the consequent impact on his ability to perform other tasks. His wife also noted the number of unfinished tasks. The friction this causes within his family, while clearly distressing for both him and his wife, does not impact upon his functional capacity but is another consequence of his struggle with time management.

9. Accordingly, the Tribunal considers it necessary address the question of the time the Applicant takes to complete tasks and the Applicant’s inability to complete tasks of daily living, as asserted by the Applicant. The case law has established that completing tasks more slowly or differently (within reasonable limits) does not necessarily mean there is substantial impairment. Similarly, the NDIS Guidelines, (Applying to the NDIS), specify that an impairment substantially reduces functional capacity if disability-specific supports are needed:

   “to participate in or complete” tasks (emphasis added).

10. On the other hand, the NDIS (Becoming a Participant) Rules 2016, 5.8, refer to the person being unable to participate effectively or completely, or not being able to participate in the activity despite receiving assistance (Emphasis added).

11. The use of the word “completely” in Rule 5.8 has received considerable attention in case law. It has been seen by some as an impossible standard to reach and therefore as setting a very low bar to entry to the Scheme. Undoubtedly there is some unresolved confusion about the meaning of the word “completely” and the purpose of including it in the legislation. The Respondent’s Guidelines appear to have accommodated this by narrowing its meaning to the completion of tasks. Complete here is used as a verb, with the Oxford Dictionary defining this as “finish”.

12. In the case of this Applicant, there are assertions made by the Applicant and his wife of many tasks being uncompleted by the Applicant, such as being unable to finish his truck run if a detour has been imposed upon his route, or tasks abandoned altogether, such as study projects, or halted and recommenced, such as teeth cleaning or meal preparation, if the accompanying ritual is in some way disturbed. The Tribunal is open to the argument that a substantial loss of function in self-care, mobility and self-management may be suffered by this Applicant because of his inability to complete associated and necessary tasks, despite the Respondent’s contention in the Statement of Facts, Issues and Contentions (‘SOFIC’) that the Applicant is not substantially impaired, relying upon evidence that:

    The Applicant is employed, drives and has the capacity to independently complete all personal and domestic activities of daily living.

13. The Respondent relies upon Beezley v Repatriation Commission [2015] FCAFC 165 (‘Beezley’) to contend that the onus of proof requires:

    Evidence and information sufficient to satisfy or persuade the Tribunal

    And, as expanded in Rooney and National Disability Insurance Agency [2021] AATA 3523 (‘Rooney’):

    The Act contemplates a relatively high degree of precision by decision-makers and involves a detailed “functional, practical “assessment”.

14. The Tribunal accepts that the Applicant was required to provide independent evidence of his time management difficulties. The Applicant, while referring to his struggles to complete a task, and the Applicant’s wife, who also referred to uncompleted tasks or projects, provided no evidence of the frequency of these uncompletions or even the severity of their consequences. The exception would be the reference in the OT Report to job losses suffered by the Applicant because he could not complete professional driving tasks, but again, no independent evidence was provided to confirm that this had happened, or how often.

15. The Tribunal finds, based on the evidence provided, that there is insufficient evidence the Applicant is unable to complete tasks of daily living and consequently suffers from a substantial impairment in any of mobility, communication, self-care, self-management or social interaction, and so does not meet the requirements of s 24 (1) (c) of the Act.

16. It is not necessary to satisfy the provisions of s 24 (1) (d) and (e) since s 24(1) (c) is not satisfied and so the Tribunal has not considered evidence with respect to these provisions. The Tribunal also notes that the Applicant has not continued to engage with a psychiatrist or psychologist, despite some evidence that this had previously assisted him with strategies for coping with his impairments and the OT has referenced the need for further engagement with the health system, consistent with the exclusions of s 24 (1) (e).

    EARLY INTERVENTION

17. Section 25 (1) of the Act permits entry to the Scheme if early intervention supports are demonstrated to be likely to benefit the Applicant. In this case, the Applicant submitted to the Tribunal that:

    if I do not receive the support I need, I fear that I will unfortunately become a very lonely person who is misunderstood…my disability wins and takes over my life completely.

    This is a very general claim by the Applicant and lacks probative detail in the form of a specialist psychiatric or medical assessment.

18. The Applicant also provided no evidence from his doctor of the supports that would be required. However, the OT identified other supports, such as specialist medical treatments, which might assist the Applicant but that these were available through the health system. There were no OT supports identified as being of benefit to this Applicant.

19. The Respondent submitted that no early intervention supports had been identified which might assist the Applicant and those supports that had been identified were appropriately provided by the health system. Further, that there was no evidence that the provision of early intervention supports would be likely to significantly impact on the future course taken by his impairments, considering the:

    Long standing and stable nature of the Applicant’s impairments

20. Overall, the Tribunal finds there is insufficient evidence that early intervention would assist the Applicant. As a result, the requirements of s 25, Early Intervention, are not met.

    CONCLUSION

21. The Tribunal concludes that although the Applicant has a permanent and disabling impairment, he is not substantially impaired in any of his daily living activities, being mobility, social interaction, self-management and self-care, and accordingly does not satisfy the requirements of s 24 (1) for acceptance into the Scheme.

22. 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

23. 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.

I certify that the preceding 56 (fifty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member P Goward

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Associate

Dated:  25 January 2024