LJQD and National Disability Insurance Agency

Case [2024] AATA 564

LJQD and National Disability Insurance Agency [2024] AATA 564 (2 April 2024)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number:          2020/8629

Re:LJQD

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Senior Member J Collins

Date:2 April 2024

Place:Brisbane

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

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

Senior Member J Collins

Catchwords

NATIONAL DISABILITY INSURANCE SCHEME – access criteria – s24(1)(c) – s24(1)(e) – s25 – whether applicant meets disability requirements – whether impairments permanent- whether impairments substantially reduce functional capacity – whether applicant meets early intervention requirements – whether likely to require support under National Disability Insurance Scheme for applicant’s lifetime – whether supports more appropriately funded through another service system.

Legislation

Administrative Appeals Tribunal Act 1975 (Cth) section 43
National Disability Insurance Scheme Act 2013 (Cth) sections 3, 4, 21, 22, 23, 24, 25, 27, 100, 103, 209

National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) rules 2.5, 5.4, 5.5, 5.6, 5.7, 5.8, 6.1

Cases

Coventry and National Disability Insurance Agency [2024] AATA 259
G v Minister for Home Affairs [2019] FCAFC 79
G v Minister for Immigration and Border Protection [2018] FCA 1229
Galea and National Disability Insurance Agency [2022] AATA 2263
Garcia Albiol and National Disability Insurance Agency [2024] AATA 496
National Disability Insurance Agency v Foster [2023] FCAFC 11
Mulligan v NDIA [2015] FCA 544; (2015) 233 FCR 201
Power and National Disability Insurance Agency [2023] AATA 3357
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] 24ALR 577
Re Schwass and National Disability Insurance Agency [2019] AATA 28
Rooney and National Disability Insurance Agency

Secondary Materials

NDIS - Applying to the NDIS guidelines, as of 1 February 2024.

NDIS - Assistive technology operational guidelines, as of 16 February 2023.

REASONS FOR DECISION

Senior Member J Collins

2 April 2024

BACKGROUND

  1. LJQD is a 68-year-old woman. On 11 September 2020 and shortly prior to her 65th birthday, LJQD applied to the National Disability Insurance Agency (‘the Agency’) for access to the National Disability Insurance Scheme (‘the scheme’). The basis of her application was stated to relate to osteoarthritis in her hands, back, left foot and also anxiety issues.[1]

    [1] BD8: T Documents, T8.

  2. On 12 October 2020 LJQD’s application was refused by the Agency. This refusal was on the basis the Agency considered that LJQD did not meet the ‘disability requirements’ in section 24(1) of the National disability Insurance Scheme Act 2013 (‘the NDIS Act’) or the ‘early intervention requirements’ under section 25(1) of the NDIS Act.[2] LJQD sought an internal review of this decision.[3]

    [2] BD8: T Documents, T1B.

    [3] BD8: T Documents, T1A.

  3. On 25 November 2020 the Agency affirmed its original decision to refuse LJQD access to the scheme (‘the decision under review’). Whilst a number of concessions were made by the Agency at that time regarding her impairments the Agency maintained…

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Details
AGLC
LJQD and National Disability Insurance Agency [2024] AATA 564
Case
[2024] AATA 564
Decision Date

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered an application by LJQD for review of a decision by the National Disability Insurance Agency (NDIA) to refuse her access to the National Disability Insurance Scheme (NDIS). The NDIA had affirmed its original decision, maintaining that LJQD did not satisfy the mandatory "disability requirements" under section 24(1) of the NDIS Act 2013 (Cth) or the "early intervention requirements" under section 25(1) of the Act. Specifically, the NDIA contended that LJQD failed to meet the criteria relating to the permanence of her impairments, the substantial reduction in her functional capacity, and the likelihood of requiring lifetime support from the scheme.

The central legal issues before the Tribunal were whether LJQD met the disability requirements as outlined in section 24(1) of the NDIS Act, or alternatively, the early intervention requirements under section 25(1) of the Act. These determinations were to be made in accordance with the provisions of the NDIS Act and associated legislative instruments. The Tribunal was required to assess whether LJQD's impairments were permanent or likely to be permanent, whether they resulted in a substantial reduction in her functional capacity across various domains, and whether she was likely to require NDIS support for her lifetime.

In its reasoning, the Tribunal considered evidence from an occupational therapist, Rebecca Thompson, who assessed LJQD's functional capacity. Ms. Thompson's evidence indicated that while LJQD could communicate effectively, interact socially, and learn, her mobility was limited by osteoarthritis, requiring a walking stick for outdoor use and on days of severe pain indoors. Her walking tolerance was estimated at approximately one kilometre, and she sometimes needed to rest when accessing the community. Ms. Thompson also noted that osteoarthritis is a degenerative condition likely to worsen over time. The Tribunal also had regard to the statutory definitions of "permanent" impairments, which include those that vary in intensity or are episodic or fluctuating.

The Tribunal ultimately found that LJQD did not meet the disability requirements under section 24(1) of the NDIS Act. This was primarily because her impairments, while impacting her functional capacity, did not result in a *substantial* reduction in her capacity to undertake the specified activities to the degree required by the legislation. Furthermore, the Tribunal was not satisfied that she was likely to require support from the NDIS for her lifetime, nor that her impairments met the permanence criteria for early intervention. Consequently, the Tribunal affirmed the NDIA's decision to refuse LJQD access to the scheme.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Dr Machart described LJQD as managing her self-care with great difficulty as a consequence of her physical symptoms. In this regard he referred to difficulties with cleaning, washing herself and shopping. Dr Machart suggested that ‘housework assistance would be useful’ as well as railings and hand supports which he stated would be best assessed by an occupational therapist.Evidence of Rebecca Thompson. Ms Thompson is an occupational therapist. She assessed LJQD by teleconference in November 2022 and provided a subsequent report.[45] Ms Thompson also provided oral evidence at the hearing. Likewise, part of her assessment was the review of LJQD’s extensive medical records.[45] BD6: Report of Rebecca Thompson dated 7 November 2022. Ms Thompson confirmed that there was no cure for osteoarthritis and that non-surgical treatment generally included a combination of an exercise program, aids and equipment to support mobility and participation in daily tasks, and pain management including pharmacological treatment and learning strategies in respect of reaction to pain.[46][46] BD6 at [3]. Ms Thompson explained that physiotherapy and a tailored exercise plan would assist with decreasing pain, fatigue and muscle tension. It would also assist with the prevention of further deterioration by strengthening the muscles that surround and support the joints affected by osteoarthritis.[47] [47] Transcript, page 84 lines 6-14. In relation to the six domains of activity referred to in section 24(1)(c) of the NDIS Act, Ms Thompson provided the following evidence in respect of LJQD’s functional capacity:·LJQD was able to communicate effectively with others;·LJQD was able to interact with others in social situations. Any limitations with accessing the community for social activities related to her mobility;·LQJD was able to able to learn new things and expressed to Ms Thompson a desire in the future to study a surveillance course; and·LQJD was able to mobilise on her own with the use of a walking stick. In this regard at the time of her assessment LJQD used a walking stick for outdoor mobility. For indoor mobility, LJQD was able to mobilise unaided however used a walking stick indoors on days when her pain was severe. Ms Thompson estimated LJQD’s walking tolerance to be approximately one kilometre. This estimation was based on the distance LJQD walked from a bus stop to her mother’s nursing home. Ms Thompson was informed by LJQD that this distance of mobility took her nearly 30 minutes. Ms Thompson explained that there were days when LJQD was unable to access the community due to her level of pain. Also, that at times when accessing the community LJQD was required to sit and rest for an extended period before being able to resume activity. Ms Thompson explained that osteoarthritis is a degenerative condition and will therefore be likely to become more severe over time as LJQD’s joints continue to degenerate. Ms Thompson’s opinion was that LJQD was independent of daily self-care tasks and did not require any physical support in this activity. Notwithstanding she stated that LJQD would benefit from some ‘small aids’, stating: ‘Ongoing provision of small aids will assist LJQD to remain independent with self-care tasks until such time as her osteoarthritis has degenerated to the point where she may require physical assistance with showering and dressing tasks.’[48] [48] BD6 at 5(d).

Decision

Reasons for decision

On 25 November 2020 the Agency affirmed its original decision to refuse LJQD access to the scheme (‘the decision under review’). Whilst a number of concessions were made by the Agency at that time regarding her impairments the Agency maintained that LJQD did not meet all of the mandatory ‘disability requirements’ in section 24(1) of the NDIS ACT or the ‘early intervention requirements’ in section 25(1) of the NDIS Act.[4] The Agency relied on the following as not being satisfied: [5]·Section 24(1)(b) – that LJQD’s disability was permanent or likely to be permanent;·Section 24(1)(c) - that LJQD’s disability resulted in a substantial reduction in her functional capacity;·Section 24(1)(e) - that LJQD was likely to require lifetime support from the scheme;·Section 25(1)(a) - that LJQD’s impairments were permanent or likely to be permanent; and·Section 25(3) - that early intervention supports are not more appropriately funded through other systems or service delivery or support services. [4] BD8: T Documents, T2.[5] BD8: T Documents, T1A; T1B; T1C; T2. On 24 December 2020 LJQD applied to the Administrative Appeals Tribunal (‘the Tribunal’) for review of the Agency decision under review’.[6] [6]BD8: T Documents, T1; Section 103, NDIS Act.ISSUES BEFORE THE TRIBUNAL The issues before the Tribunal are whether LJQD meets: ·the disability requirements under section 24(1) of the NDIS Act, or·the early intervention requirements under section 25(1) of the NDIS Act. Determination of these issues is made pursuant to the NDIS Act, and several other statutory instruments made under it.[7][7] National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth). At the hearing LJQD was self-represented. The Agency was represented by Ms Pieri, solicitor Minter Ellison. THE NATIONAL DISABILITY INSURANCE SCHEME ACT 2013 (CTH) The disability requirements are contained in section 24 of the NDIS Act provide 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.3.For the purposes of subsection (1), an impairment or impairments that are episodic or fluctuating may be taken to be permanent, and the person may be taken to be likely to require support under the National Disability Insurance Scheme for the person's lifetime, despite the episodic or fluctuating nature of the impairments.4.Subsection (3) does not limit subsection (2).

Ratio Decidendi

Legal Principle Established

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