LPRK and National Disability Insurance Agency - [2022] AATA 4428

LPRK and National Disability Insurance Agency [2022] AATA 4428 (20 December 2022)
NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number: 2020/5711
Re:LPRK
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

Decision

Tribunal:Senior Member K Buxton
Date:20 December 2022
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 K Buxton
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME - Access Criteria - Applicant not having met the disability and early intervention requirements of the Act - Section 24 disability requirements not met by Applicant - Early intervention supports unlikely to benefit the Applicant - Subsection 25(1)(b) and (c) of the Act not satisfied - Decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) s 43
National Disability Insurance Scheme Act 2013 (Cth) ss 3, 4, 21, 22, 23, 24, 25, 27, 100
National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Act 2022 (Cth) Schedule 2, Item 54
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) rr 2.5, 5.4, 5.5, 5.7, 5.8
Cases
FBJV and National Disability Insurance Agency [2021] AATA 913
Foster and National Disability Insurance Agency [2021] AATA 4738
JLZT v National Disability Insurance Agency [2022] AATA 541
Mulligan v National Disability Insurance Agency [2015] 233 FCR 201
National Disability Insurance Agency v Davis [2022] FCA 1002
QDKH v National Disability Insurance Agency [2021] FCAFC 189
Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 60
Re Schwass v National Disability Insurance Agency [2019] AATA 28
TMVJ and National Disability Insurance Agency [2022] AATA 2053
Secondary Materials
Explanatory Memorandum, National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021 (Cth)
National Disability Insurance Agency, Our Guidelines – Applying to the NDIS, (Web Page) < (‘The Access Operational Guidelines’)
REASONS FOR DECISION
Senior Member K Buxton
20 December 2022
BACKground

This review relates to a request by the Applicant, a woman in her early sixties currently residing in far north Queensland, made in January 2020, to become a participant in the National Disability Insurance Scheme (‘NDIS’).[1]
[1] Hearing Book, T-documents, T12, Access Request – Supporting Evidence Form, Dr Jamie Crowe (General Practitioner), page 47.
The Applicant’s request for access to the NDIS was refused by a delegate of the CEO of the Respondent on 28 May 2020.[2] The Respondent was not satisfied that the Applicant met the required disability requirements under section 24 of the National Disability Insurance SchemeAct 2013 (Cth) (‘the NDIS Act’),[3] specifically that the Applicant did not have an impairment which is permanent or likely to be permanent.[4] On 30 June 2020, the Applicant requested in writing that this original decision be internally reviewed.[5] Following a review under subsection 100(6) of the NDIS Act, a delegate of the Chief Executive Officer (‘CEO’) affirmed the earlier decision on 14 July 2020.[6] On 17 September 2020 the Applicant applied to the Tribunal for review[7] pursuant to section 100 of the NDIS Act.[8] The Applicant contends that she meets the access criteria prescribed in the NDIS Act.[9]
[2] T15, Original Decision – Access, page 59; H1, Respondent’s Statement of Facts, Issues and Contentions (‘SFIC’) dated 27 June 2022, at [6].
[3] Ibid.
[4] Ibid.
[5] T17, Letter, Applicant, Request for Review of a Reviewable Decision, page 65; Respondents’ SFIC dated 27 June 2022, at [7].
[6] T2, Internal Review Decision, page 25.
[7] T1, Respondent’s SOFIC dated 27 February 2022, page 5.
[8] T-documents, T2, Internal Review Decision, page 25.
[9] Ibid.
The Applicant has been diagnosed with the following relevant conditions:[10]
a)       posttraumatic stress disorder;
b)       anxiety;
c)       depression;
d)       osteoarthritis in the right wrist;
e)       lumbar facet joint dysfunction; and
f)        right subacromial bursitis.
[10] Ibid; Respondent’s SFIC dated 27 June 2022, at [4].
A hearing of the review application was conducted by the Tribunal on 1 September 2022 by telephone. Following the hearing the parties produced written submissions[11]. In arriving at its decision, the Tribunal has considered these together with the tendered documents and the oral evidence given at the hearing.
[11] On 8 September 2022 (Respondent), 24 October 2022 (Applicant) and 31 October 2022 (Respondent, reply).
On 24 October 2022 the Applicant submitted new evidence in the form of a further written statement about her current health and a report from Dr Favier, a general practitioner. Although the Respondent did not object to the Tribunal accepting the new evidence, and the Tribunal has accepted this as part of the material in this review, the Tribunal was invited by the Respondent to give little weight to the new evidence as the Applicant has not been cross-examined in relation to it.
The Respondent accepted, and it is not in dispute, that:
a) the Applicants meets the age and residency requirements in sections 22 and 23 of the NDIS Act.[12]
b) with respect to the conditions listed above, the Applicant satisfies both subsection 24(1)(a) and (d) of the NDIS Act.[13]
[12] H1, Respondents’ SFIC dated 27 June 2022, at [16].
[13] H1, Respondents’ SFIC dated 27 June 2022, at [18] and [21].
The Respondent approached the review on the basis that the Applicant did not contend that she meets the early intervention requirements in section 25 of the NDIS Act.[14] The Tribunal notes that the Applicant did not make any submissions to the effect that she met the access criteria through section 25, but has considered this aspect of the Access Criteria, nonetheless.
[14] H1, Respondents’ SFIC dated 27 June 2022, at [17].
The issue before the Tribunal is whether the Applicant meets the disability requirements in section 24 of the Act.[15]
[15] when read with Part 5 of the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (‘Access Rules’).
For access to the NDIS to be granted a prospective participant must satisfy all the criteria set out in section 24 of the NDIS Act in order to meet the disability requirement as required by subsection 21(1)(c)(i) of the Act. The Respondent contends that the Applicant does not meet all criteria in section 24 of the NDIS Act, therefore cannot be granted access to the NDIS and the decision under review should be affirmed.[16]
[16] H1, Respondent’s SFIC dated 27 June 2022, at [23] and [24].
For the reasons that follow, the Tribunal has not reached the requisite level of satisfaction, in this case, that the Applicant has met the access criteria in either section 24 (or section 25) of the NDIS Act.
THE ACCESS CRITERIA
The Tribunal has considered this review application based on the provisions of the Act as amended from 1 July 2022.[17] The references to the NDIS Act are to the provisions as amended, where relevant. However, for the reasons set out below, the outcome of the review would be the same whether or not those amended provisions apply in this case.
[17] National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Act 2022 (Cth), Schedule 2, Item 54(1)(b).
To become a participant in the NDIS, a prospective participant must satisfy the access criteria, which are set out in subsection 21(1) of the NDIS Act:
21 When a person meets the access criteria
1A 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).
There is no dispute, and the Tribunal accepts, that the Applicant met the age and residency criteria outlined in sections 22 and 23 of the NDIS Act[18] and the evidence supports such a finding. The issues arising in this case are whether the Applicant has satisfied the “disability requirements” under section 24 of the NDIS Act or whether she meets the “early intervention requirements” under section 25 of the NDIS Act.
[18] Exhibit 1, H2, Application for Review of Decision attaching: A. Letter of Support, Annabel McLisky (Psychologist) & B. Internal Review Decision, page 14; Respondent’s SFIC dated 27 June 2022, at [5]; National Disability Insurance Scheme Act 2013 (Cth), s 21(1)(a) and (b), ss 22 and 23.
The Disability Requirements
There are five mandatory requirements that the Applicant must satisfy in order for her to meet the “disability requirements” as set out in subsection 24(1)(a) to (e) of the NDIS Act (reproduced below).
At the time of the Applicant’s request for access, Section 24 of the Act provided:
24 Disability requirements
1A person meets the disability requirements if:
(a)the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or 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;
(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.
2For 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.
With effect from 1 July 2022, section 24 has been amended so that Section 24(1) of the NDIS Act now reads:
1A person meets the disability requirements if:
(a)the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable. (underlining added)
A consequential amendment to section 27(b) has removed the reference to “psychosocial functioning” in the assessment of reduced functional capacity in subsection 24(1)(c). Therefore, rather than describing psychosocial functioning as a facet of functional capacity, subsections 24(1)(a) and 27(b), when read together, have the effect of including impairment to which a psychosocial disability is attributable as an impairment that will satisfy the first aspect of the disability requirements in subsection 24(1)(a) of the NDIS Act. The explanatory memorandum[19] to the bill introducing these amendments confirms that this interpretation is consistent with the legislative intent.
[19] Explanatory Memorandum, National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021 (Cth).
In this case the Respondent has accepted, and the Tribunal finds, that the Applicant’s psychosocial impairments would fall within subsection 24(1)(a) under both the previous and current versions of that subsection. For these reasons, the 1 July 2022 amendments would not lead to a different result in this case.
The objects and principles in sections 3 and 4 of the NDIS Act give guidance on the interpretation of the statute. In particular, the objects of the NDIS Act relevantly include giving effect to Australia’s obligations under the Convention on the Rights of Persons with Disabilities established at the UN Headquarters in New York on December 2006.[20] Subsection 3(3)(b) of the NDIS Act provides that regard is to be had to the need to ensure the financial sustainability of the NDIS in giving effect to the objects of the Act.
[20] NDIS Act, s 3(1)(a); Convention on the Rights of Persons with Disabilities, opened for signature 30 May 2007, [2008] ATS 12 (entered into force 3 May 2008).
The Minister may make rules prescribing matters pursuant to subsection 209(1) of the NDIS Act. Relevant to this matter, the Access Rules form part of the legislative scheme. Operational Guidelines written by the Chief Executive Officer of the Respondent also assist staff to make decisions in accordance with the NDIS Act. Operational Guidelines represent government policy and should be considered by the Tribunal unless there is good reason not to do so.[21] The relevant Operational Guideline is the Our Guidelines – becoming a participant (‘the Access Operational Guidelines’)[22] published in May 2022.
[21] Re Drake and Minister for Immigration and Ethnic Affairs (No 2)(1979) 2 ALD 634.
[22] National Disability Insurance Agency, Our Guidelines – Applying to the NDIS, (Web Page) < (‘The Access Operational Guidelines’).
The concept of an “impairment” as it is to be considered in section 24 of the NDIS Act “is generally understood as involving the loss of or damage to a physical, sensory or mental function”.[23] It is “not merely...a reduction in [a] person’s capacity to do things which an unimpaired person would be able to do”.[24]
[23] Mulligan v National Disability Insurance Agency [2015] 233 FCR 201, [51].
[24] Re Schwass and NDIA [2019] AATA 28, [34]-[35].
The Access Rules provide guidance about when an impairment is permanent or likely to be permanent as is required by paragraph 24(1)(b) of the NDIS Act. Rules 5.4 to 5.7 provide as follows:
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).
5.7If 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.
These provisions are concerned with the permanence of the “impairment” rather than the condition necessarily.[25] Difficulty accessing treatment, including its affordability, does not necessarily mean that the treatment is unavailable for the purposes of rule 5.4 of the Access Rules.[26] In National Disability Insurance Agency v Davis (‘Davis’)[27], Mortimer J stated that, whilst affordability was not the only feature determining whether a treatment was “available”, but was a relevant consideration in determining whether the treatments as available to a particular individual,[28] and “whether a person can afford a treatment will form part of the factual circumstance a decision-maker may need to examine in deciding if a treatment is one that an individual can in reality access.”[29]
[25] Re Schwass and NDIA [2019] AATA 28, [32], [35].
[26] Ibid, [46]-[47].
[27] [2022] FCA 1002.
[28] Ibid, [138].
[29] Ibid, [139].
Rule 5.4 of the Access Rules requires a person to undertake only “appropriate” treatment so a treatment which might, for example, impose a serious risk to a person’s health is not an appropriate treatment.[30] Rule 5.4 of the Access Rules requires the Tribunal to be positively satisfied of a negative before it can be satisfied of permanency. In other words, there must be evidence before the Tribunal that positively demonstrates that there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.[31]
[30] Re Schwass and NDIA [2019] AATA 28, [48].
[31] National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth), r 5.4.
The Respondent contends that not all of the Applicant’s impairments satisfy the criteria of permanency in subsection 24(1)(b), and that the Applicant does not satisfy the requirements as set out in subsection 24(1)(c) of the NDIS Act as she has not demonstrated that her permanent impairments gave rise to a level of functional impairment that was substantial.[32] The Respondent submits that the Applicant has not met the criteria in subsection 24(1)(e) of the NDIS Act for her impairments, because she may improve her level of functionality if she sought further treatment and therefore has not demonstrated that she is likely to require support under the NDIS for her lifetime.[33]
[32] Respondent’s Closing Submissions, 7 September 2022, [33].
[33] H1, Respondents’ SFIC dated 27 June 2022, [20] and [22].
The early intervention requirements
Section 25 of the NDIS Act states:
25 Early intervention requirements
(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 that are attributable to a psychiatric condition and 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.
(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 requirementsif 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.

The criteria set out in each of sections 24(1) or 25(1) of the Act are cumulative. All of the requirements in either sections 24(1) or 25(1) of the Act must be met for a person to become a participant in the NDIS.
EVIDENCE
The evidence before the Tribunal includes the following:
·Written statements of lived experience of the Applicant, who also gave oral evidence during the hearing;[34]
[34] H27, Applicant Statement of Lived Experience, page 205.
·A written statement from carer and friend, Mr M;[35]
[35] H14, Carer Statement, Mr M, page 58.
·letters and reports from medical and allied health practitioners who have treated or assessed the Applicant, namely:
oMs Amber Overton, Occupational therapist, who also gave oral evidence during the hearing;[36]
[36] H28, Functional Capacity Assessment and Report, Amber Overton (Occupational Therapist), page 214.
oMs Annabel McLisky, Psychologist;[37]
[37] H4, Letter, Annabel McLisky (Psychologist), page 34; H24, Annabel McLisky (Psychologist), Response to Respondent’s Questions, page 194.
oMr Derek Johns, Psychiatrist;[38]
oDr Jeremy Loveridge, Orthopaedic Surgeon;[39]
oDr Abelson, Respiratory and Sleep Physician;[40]
oDr Heng Chin Chiam, Director of Surgery;[41]
oDr Jamie Crowe, General Practitioner; and[42]
oDr Kim Favier, General Practitioner.[43]
·various hospital and other medical notes, radiology results and correspondence and older reports which provided background, rather than current information about LPRK’s impairments.[44]
[38] H5, Application for Review of Decision, attaching: A. Letter of Support, Annabel McLisky (Psychologist) & B. Internal Review Decision, page 14.
[39] H26, Dr Jeremy Loveridge (Orthopaedic Surgeon), Report to Dr Ubaida Beigh (GP), page 200.
[40] H33, Summonsed Records, Tully Medical Centre, page 308.
[41] Ibid.
[42] H13, Access Request – Supporting Evidence Form, Dr Jamie Crowe (General Practitioner), page 47; H33, Summonsed Records, Town C Medical Centre, page 308.
[43] Attached to Applicant’s submission dated 24 October 2022.
[44] H6, Bone Mineral Densitometry Report, Dr Roger Burgess (Radiologist), page 37; H7, X Ray Report, Dr Warwick Herbert (Radiologist), page 39; H8, Progress / Clinical Notes, NSW health, page 40; H9, Nursing Progress Notes, Paul Pattinson (Physiotherapist), page 43; H10, Letter, Paul Pattinson (Physiotherapist), page 44; H11, Allied Health Progress Notes, Helen Craig (Occupational Therapist), page 45; H12, CT Report, Dr Peter Meyer (Radiologist), page 46; H15, Letter, Applicant (Listed in IRD as 02.06.20), page 59; H17, Medical Imaging Report, Dr Kevin Daynes (Radiologist), page 63; H25, Dr Venus Hedayati (Radiologist), MRI Right Wrist, page 197; H31, Letter, Dr Robert.S. Lodge (Consultant Physician, Bangalow Consulting Centre), page 305; H32, Letter, Dr Robert S. Lodge (Consultant Physician, Bangalow Consulting Centre), page 307.
Evidence of the Applicant
The Applicant provided a statement of lived experience, dated 29 January 2021[45] and gave oral evidence during the hearing. She has provided other insights, indirectly, through her reporting to medical and allied health professionals as reflected in various letters and reports.
[45] H27, Applicant Statement of Lived Experience, page 205.
In summary, the statement of lived experience set out the impairments that the Applicant experiences, provided details of the onset of her right wrist pain, anxiety and mental health conditions and outlined how her impairments impacted upon her daily life. At the time of the statement, the Applicant was receiving some assistance from Mr M.[46] During the hearing the Applicant stated that, whilst she wished to rely on that statement, her condition had degenerated further since.
[46] Ibid.
The Applicant stated in her oral evidence that she has very little local support but had previously received some assistance from Mr M in the past.[47] As he was now receiving cancer treatment himself, and his wife was unwell, this was no longer sustainable.[48]
[47] Transcript, P 31, lines 16 – 40.
[48] Ibid.
The Applicant stated that she had consultations with Ms McLisky, psychologist, until she retired and was not seeing a psychologist now, although had recently tried a new psychologist she was unsure about a few weeks prior to hearing.[49] She stated she was estranged from services since her move to Town A some years prior.[50] During cross-examination, the Applicant accepted that she was also unhappy as she did not have friends locally, there was no public transport and she had problems with her neighbours. She regretted moving and stated that there was a financial element to that decision, but it was a bad decision.[51]
[49] Transcript P12, lines 17-46.
[50] Transcript P17, lines 5-9.
[51] Transcript, P17, lines 5-13.
As to her mobility, the Applicant gave oral evidence that she “can’t get anywhere”[52], that her car hasn’t been going for six months, and that she has very limited driving ability. She also stated that she hated being on hills and on highway and that this had been a long term issue.[53] The Applicant accepted that she had travelled from Town A to Town Bon a number of occasions on her own, having been given a lift to the airport.[54] LPRK stated that she had a car which required repair but that she had decided, instead, to sell.[55] LPRK stated that she was able to walk into town but did not as she had nobody to go with and as it was a “bitchy little town”.[56]
[52] Transcript, P12, line 35.
[53] Transcript, P13, lines 23-25.
[54] Transcript, P18, line 28 to P19, line 36.
[55] Transcript P27, lines 35-47.
[56] Transcript P29, lines 11-13.
LPRK was able to explain how she attended to grocery shopping, including by making some adjustments for her physical impairments such as leaving her basket at the end of each aisle rather than carrying it when full. She was able to make a list of required items and use a checkout to pay.[57]
[57] Transcript, P30, lines 1-14.
LPKR stated that she was able to attend to various executive functions such as applying for the DSP (although this seems to have taken place many years ago), to arrange her medical appointments, create and keep a budget, arrange transport when needed, arrange to move home, including selling her house, arranging for removalists, and keeping a diary and calendar. The Tribunal notes that LPRK presented as an articulate woman and this is reflected in her evidence that she used to have letters published when she previously lived in Town B.[58] LPRK indicated on a number of occasions during the hearing that she wished to rely on the information she had provided to Ms Overton, Occupational Therapist, and upon her report, in support of her review application.
[58] Transcript, P32 line 21 to P33 line 31
LPRK stated that her alcohol use had been misstated by her doctor,[59] and estimated she currently consumed about six to eight drinks per week.
[59] Transcript, P27, lines 1 -33.
After the hearing, the Applicant produced submissions which included some factual statements about her current condition. The Tribunal was invited by the Respondent to give this evidence little weight as no opportunity has arisen for cross-examination with respect to the new evidence. LPRK stated in her October closing statement that she had undertaken a recent CT scan of her thoracolumbar spine on 23 September 2022. She also stated that she had undertaken steroid injection that had offered her absolutely no relief. She was not cross-examined on this issue but, without conflicting evidence, the Tribunal accepts that to be the case. LPRK also stated that she currently could not rollover in bed, had difficulty getting in and out of bed, lifting, including opening and shutting louvres, using remotes, using keypads, with meal preparation, gardening and cleaning. This was a slightly more expansive version of similar evidence given during the hearing as to tasks she found difficult.
Mr M
Mr M l did not give oral evidence at the hearing. In his written statement[60] he said that he had been working around LPRK’s house, assisting the Applicant in various tasks, but that this could not be a long-term commitment due to his commitments as carer for his wife.[61] He had noted that the Applicant’s home required modifications due to her chronic pain,[62] and that she had PTSD which manifested in various ways and exacerbated her need for help.[63] She could not attend appointments outside her home town without assistance.[64]
[60] H14, Carer Statement, Mr M, page 58; statement date 4 March 2020.
[61] Ibid.
[62] Ibid.
[63] Ibid.
[64] Ibid.
Ms Overton
Ms Amber Overton, Occupational therapist, prepared a report dated 26 April 2022[65] and gave oral evidence during the hearing. Following an assessment over two days, 28 March 2022 and 21 April 2022,[66] Ms Overton prepared a functional capacity assessment report that was submitted jointly by both the Applicant and Respondent.
[65] H28.
[66] H28, Functional Capacity Assessment and Report, Amber Overton (Occupational Therapist), page 214.
Ms Overton noted that the Applicant had the following psychosocial impairments: Post Traumatic Stress Disorder (PTSD), anxiety and depression,[67] and that she also has a number of physical impairments including, mild obstructive sleep apnoea, osteoarthritis in her right wrist, lumbar facet joint dysfunction and right sub acromial bursitis.[68] Ms Overton observed that the Applicant:
a)Did not have access to formal or informal supports or to public transport;[69]
b)Was able to buy limited groceries from the shop a ten-minute walk away;[70]
c)Was required to travel by car for 35 minutes to see her GP, and one hour (to Innisfail) or two hours (to Cairns) to see medical specialists and had not been regularly accessing health services due to a lack of transport.[71]
[67] Ibid p 216.
[68] Ibid.
[69] Ibid, p 218.
[70] Ibid.
[71] Ibid.
Ms Overton provided the following key conclusions in relation to the Applicant:[72]
“[LPRK] would benefit from support to improve her participation in self-care and domestic tasks as well as social, leisure and community activities. [LPRK] would also benefit from support for transport to attend health and medical appointments, in particular psychology, which could have a direct positive effect on her psychosocial impairments and symptoms. [LPRK] would love to attain work as a wildlife carer and contribute to her local community, but would need support to continue this process. [LPRK] would like to again participate in activities she enjoys and that in the past have helped her manage her psychosocial conditions, such as painting, writing, reading and cooking. [LPRK] is at risk of further psychological decline if she does not receive support to improve her functional capacity and would likely need increased support in the future if she is not provided with the support she needs now.”
[72] Ibid, p 231.
During the hearing, Ms Overton gave the following oral evidence:
a)During her assessment, LPRK’s mood differentiated on the two occasions.[73] First was unremarkable, second mood was poor.[74] This was based on what Ms Overton observed and as reported by LPRK and per the information in the medical reports provided;
[73] Transcript, P 37, lines 21 – 25.
[74] Ibid.
b)LPRK was observed mobilising the stairs of her high-set home and using the ramp at the rear of her property.[75] LPRK was also observed moving through various areas of the house, and LPRK reported pain in her wrists and shoulder.[76] LPRK performed a number of tasks including opening the fridge and preparing a drink.[77] She demonstrated difficulty opening items, such as the lid to her drink, because of pain in her wrist and limitation in using right upper limb for meal preparation and other tasks.[78] She mobilised independently but required support when getting to the shower due to difficulty stepping in and out.[79] LPRK’s shower has a glass screen but no grab rails, and has a small hob to step over which causes difficulty as there is nothing to hold onto for support as well as a fear of falling.[80] There are limited areas where a rail could be placed.[81] If the shower had no hob, and grab rails were installed, LPRK would be able to shower with reduced risk of falling and would be much easier, and may also address the anxiety of falling.[82] LPRK had difficulty with all bilateral tasks when using her left and right hand, and reported that she only carries small laundry items rather than large and had difficulty sweeping and mopping the floor.[83]
[75] Transcript, P 38, lines 1 – 4.
[76] Ibid, lines 4 – 9.
[77] Ibid, lines 9 – 11.
[78] Ibid, lines 15 – 17.
[79] Ibid, lines 18 – 20.
[80] Ibid, lines 46 – 47; Ibid, P 39, lines 1 -7.
[81] Ibid.
[82] Ibid, P 39, lines 11 – 17.
[83] Ibid, P 38, lines 21 – 26.
c)LPRK was dependent on her left upper limb for lifting and carrying as she finds it difficult and painful to lift things using her right arm.[84] Where both sides are required, she needs to modify how she does the task, by either reducing how heavy and item is, or relying more on her left arm.[85] Bottles and jars are difficult to open due to reduced function (weakness and pain) in right wrist.[86] Because LPRK cannot turn lids off with her right hand, she would tuck the bottle under her right arm and use her left arm to open the bottle or put a lid on.[87] This process takes a long time.[88] LPRK was not observed cutting up food, but it was reported that she would need to try to cut the food with her left hand which was difficult as she is right-hand dominant,[89] and was sometimes unable to hold the food item firm enough due to the weakness in her right wrist.[90] LPKR uses her left hand to turn on a tap as she cannot do a twisting motion with her right wrist.[91] LPRK does not otherwise perform kitchen tasks.[92]
[84] Transcript, P 39, lines 32 -39.
[85] Ibid, lines 39 – 41.
[86] Ibid, P 40, lines 1 – 8.
[87] Ibid, lines 8 – 11.
[88] Ibid, line 16.
[89] Ibid, lines 22 – 32.
[90] Ibid, lines 32 – 34.
[91] Ibid, lines 21 – 24.
[92] Ibid, lines 35 – 36.
d)LPRK was not observed dressing, but it was reported that when dressing and doing bilateral tasks such as holding buttons or using a zipper, it caused pain for her and she has weakness as a result of the functionality of her left wrist.[93] She was wearing loose clothing, pants and a loose-fitting top when assessed by Ms Overton.[94]
[93] Transcript, P 40, lines 39 – 47.
[94] Ibid, P 44, lines 39 – 41.
e)LPRK’s sleeping was not observed, but it was reported that her sleeping pattern affects her energy levels and daily activities, and her attention and concentration levels were observed which result from her poor sleep.[95] Ms Overton noted that she was aware that LPRK has obstructive sleep apnoea which would affect her sleep.[96]
[95] Ibid, P 41, lines 9 – 16.
[96] Ibid, P 43, lines 11 – 18.
f)Ms Overton observed that there were limited domestic tasks that had been completed in the home – the kitchen and most of the home was cluttered, the fridge was full with old items and there was little organisation throughout the home.[97]
[97] Ibid, P 42, lines 17 – 36.
g)LPRK depends on others to access the shops and purchase items.[98] She has occasionally had informal support from neighbours or acquaintances who would purchase items for her,[99] but otherwise has difficulty going to and from the supermarket and has reduced upper limb function which causes difficulty in purchasing too many items.[100] She would only purchase a small amount of items as she would be unable to carry them herself.[101]
[98] Ibid, lines 40 – 43.
[99] Ibid, lines 43 – 44.
[100] Ibid, lines 45 – 47; Ibid, P 43, lines 1-2.
[101] Ibid.
h)Ms Overton undertook the Standardised Mini Mental State Examination (‘SMMSE’) which is a cognitive screen widely indicating if someone potentially has cognitive impairments.[102] If someone scores 24 or less it indicates that there is a likely cognitive impairment and would recommend further testing is done to identify the particular areas of cognition that are of concern.[103] LPRK scored 27, which would generally indicate that there is no cognitive impairment of concern.[104] Ms Overton notes that during the test, LPRK demonstrated difficulty in concentrating and became tangential during the assessment,[105] and although LPRK’s score does not suggest cognitive impairment, her performance in the assessment indicates that there are some issues around LPRK’s attention and ability to maintain tasks and concentrate.[106]
[102] Transcript, P 45, lines 32 – 34.
[103] Ibid, lines 37 – 41.
[104] Ibid, P 46, lines 13 – 14.
[105] Ibid, lines 15 -17.
[106] Ibid, lines 17 – 21.
i)Ms Overton explained the clock drawing test which is used in conjunction with the SMMSE, which explores the executive functioning in relation to a common item that most people are able to identify.[107] LPRK’s score was 3,[108] which indicates a cognitive deficit.[109] Ms Overton notes that LPRK had difficulty completing the task,[110] and got quite upset that she was unable to complete the task successfully as well as the length of time it took to complete,[111] which indicated that there was some difficulty with her visual-spatial awareness which indicate higher executive functioning deficits.[112]
[107] Ibid, lines 29 – 47.
[108] Ibid, line 23.
[109] Ibid, line 24.
[110] Ibid, 25.
[111] Ibid, lines 26 – 27.
[112] Ibid, lines 28 -29.
j)LPRK has difficulty managing written communication at all times, but does the bare minimum of what she needs to do,[113] such as participating in the hearing.[114] Ms Overton notes that LPRK can function with things like managing her home and communicating with the NDIA and other health providers,[115] but does not know how well she communicates when her mental state is poor and hypothesises that she would not be able to manage basic written communication for financial management, health management and other related tasks.[116]
k)LPRK can manage basic transactional conversations verbally and independently, depending on her mood and mental state.[117] Social interactions are dependent on LPRK’s mood and mental state,[118] and conversations required a lot of prompting and guidance to remain on task.[119]
l)Ms Overton reports in her experience and observations as to LPRK’s communication, is that she was very tangential, required a lot of being brought back to task, and took longer than usual.[120]
m)Regarding social interaction, the only observation was between Ms Overton and LPRK during assessments, and all other information is self-reported by LPRK.[121] LPRK presented friendly and respectful during the assessments,[122] and conversation-wise was reluctant initially to speak about personal issues but after time she opened up more and was able to talk about personal or painful experiences.[123] When having a conversation, LPRK would get up and move around doing something else or move to an unrelated topic and required re-direction back to the topic.[124] Topics she introduces could be tangential,[125] and having a back and forth discussion was difficult as she talked rather than give and take as is usual social conversation.[126]
n)Ms Overton stated that engaging with psychological services would assist anyone with her mental health conditions, and she should be engaging with a psychologist.[127] LPRK has not accessed or been able to access psychological services for some time,[128] and during acute episodes, psychological support would assist, and also provide her with ongoing support to prevent more acute episodes.[129]
o)Ms Overton assumed that if LPRK engaged with psychological services, her functional capacity may improve with good mental health,[130] but noted that LPRK has had support over period of her life and has experienced a lot of trauma,[131] and was unable to say whether psychology support would significantly improve all of her mental health conditions.[132] Ms Overton reported that if LPRK’s mental state improved, there may be an improvement in her ability to manage daily activities and reducing anxiety would improve sleep.[133]
p)Fatigue has a huge impact on her life and managing anxiety would improve her sleep and would potentially improve her ability to access her community[134]
q)Ms Overton noted that it was difficult to explicitly say that LPRK required particular support or assistance where an assessment has not been done and she has never had that support or assistance.[135] Ms Overton did seek to qualify the recommendations given in her report, where she stated that the Applicant “would benefit from” assistance by saying that such assistance was required.[136]
r)LPRK had a vehicle which is no longer driveable, [137] and even if it was in workable order, LPRK was reluctant to drive due to anxiety attacks.[138]
s)There is no public transcript in LPRK’s location, and she is required to drive significant distance – between 30 minutes to an hour and a half – to access other services.
[113] Transcript, P 47, lines 7 – 8.
[114] Ibid, line 9.
[115] Ibid, lines 14 – 16.
[116] Ibid, lines 16 – 21.
[117] Ibid, lines 32 – 35.
[118] Ibid, lines 38 – 39.
[119] Ibid, lines 40 – 43.
[120] Transcript, P 47, lines 40 – 45.
[121] Ibid, P 48, lines 6 – 9.
[122] Ibid, lines 11 – 13.
[123] Ibid, lines 13 – 18.
[124] Ibid, lines 20 -23.
[125] Ibid, lines 23 – 24.
[126] Ibid, lines 26 – 30.
[127] Ibid, P 49, lines 1 – 4.
[128] Ibid, lines 4 – 5.
[129] Ibid, lines 5 – 9.
[130] Transcript, P 49, lines 20 -22.
[131] Ibid, lines 22 – 24.
[132] Ibid, lines 24 – 26.
[133] Ibid, lines 28 – 38.
[134] Ibid, lines 36 – 41.
[135] Ibid, P 50, lines 30 – 34.
[136] Ibid, P50, line 37-41.
[137] Ibid, P51, lines 3 – 8.
[138] Ibid, lines 6 – 17.
Dr Derek Johns

Dr Johns is a consultant psychiatrist who prepared a letter dated 26 September 2012[139] in relation to the Applicant’s psycho-social condition and noting her diagnosis of Chronic PTSD. In that letter he stated:[140]
“[LPRK] has suffered both physical and emotional injuries as the result of exposure to repeated significant personal violence. As a result, she suffers from depression, anxiety, panic attacks, insomnia, agitation, poor appetite, and mood swings. She is also extremely sensitive to noise and she is socially phobic. These symptoms are due to the Chronic Post Traumatic Stress Disorder from which she now suffers.”
[139] H5.
[140] Ibid.
Dr Johns also noted that the Applicant then had a profound lack of confidence, insomnia, inability to trust others, panic attacks and a negative attitude towards relationships and sexuality.[141]
[141] Ibid.
Ms McLisky
Ms Annabel McLisky, Psychologist, was the Applicant’s treating psychologist and prepared various reports, including one dated 18 January 2021.[142] At that time, Ms McLisky was providing telephone consultations as the Applicant had moved from the Town B area, where Ms McLisky was located, to a new home in Town A.[143] Ms McLisky stated that she had been treating the Applicant for 15 years, since 2006.[144]
[142] H24, Letter, Annabel McLisky (Psychologist), dated 18 January 2021, page 34.
[143] Ibid, p 194.
[144] Ibid.
The treatments provided to the Applicant for PTSD, Anxiety and Depression were described by Ms McLisky as:[145]
“Cognitive Behavioural Therapy and Acceptance Commitment Therapy for anxiety and depression, Psycho-education re PTSD, Emotional Freedom Technique, Breathing practices to assist in invoking Parasympathetic Nervous System response, Relaxation, Yoga. Counselling re managing PTSD resulting from domestic violence and abuse in a dysfunctional relationship and difficult living conditions in social housing. unemployment, social isolation and chronic health conditions: in particular with her lungs (chronic obstructive pulmonary disorder), and her eyes (deteriorating eye sight),chronic (sic) insomnia, a lack of self confidence, lowered self esteem, and self medication with alcohol in the evening and nicotine.”
[145] Ibid.
Ms McLisky provided the following key conclusions as to the Applicant’s function:[146]
a.communication: when depressed [LPRK] can self-isolate and not ask for
the help she needs, if anxious she can be easily frustrated and quick to anger. Both responses inhibit the possibility to communicate clearly and calmly with others.
b.social interaction: [LPRK] reports that she has limited contact with others since moving to Town A.
c.learning: [LPRK] 's compromised eyesight makes reading difficult and she finds it difficult to concentrate. However, she does seem to have the ability to take in new information.
d.mobility: she has recently reported having had several falls implying that her mobility is compromised.
e.self-care: [LPRK] is not managing to maintain order in her living space and consequently finds it hard to locate the documents and papers related to her history.
f.self-management: [LPRK] 's beloved old dog Tiger died on 24th December and she is currently overwhelmed with grief and the loss of her previously constant companion. These feelings have contributed to her being less than able to manage daily life.
[146] H25, Dr Venus Hedayati (Radiologist), MRI Right Wrist, page 195.
Similar views were expressed in Ms McLisky’s letter dated 31 August 2021[147] and background can be gleaned from her letter date 7 October 2009 which detailed physical and mental trauma endured by the Applicant in an abusive relationship.[148]
[147] H2, Application for Review of Decision, attaching: A. Letter of Support, Annabel McLisky (Psychologist) & B. Internal Review Decision, page 14.
[148] H4, Letter, Annabel McLisky (Psychologist), page 34.
Dr Loveridge
Dr Jeremy Loveridge, Orthopaedic Surgeon prepared a report dated 28 May 2021[149] which related to an injury to the Applicant’s right wrist from 2015. He concluded:[150]
“She has failed to fully settle following this despite initial imaging confirming no fracture. She also had a CT confirming the same. She localises the pain to mostly at the dorsum of the right wrist around the central aspect to the ulnar aspect of the radiocarpal joint. She has a mildly reduced range of motion, her distal radioulnar joint is stable but she is uncomfortable in the full pronation and supination. Her MRI scan has shown abnormalities in the lunate, the central aspect of the TFCC and oedema in the ulnar aspect of the lunate. This looks like ulnar impaction despite there not being significant positive ulnar variants. I also note that she has a large radiocarpal ganglion but this is not where she is symptomatic.
I suggested a steroid injection under ultrasound into the wrist to see if we can settle her wrist symptoms down. If this fails to settle I will reassess her for ulnar variants with 90/90 wrist views and, in some cases, ulnar shortening osteotomy and debridement of the TFCC may be required. I will see her back in 6 weeks following her injections.”
[149] H26, Dr Jeremy Loveridge (Orthopaedic Surgeon), Report to Dr Ubaida Beigh (GP), page 200.
[150] Ibid.
Dr Abelson
The Applicant participated in a sleep study on 17 September 2020 and Dr Abelson, Respiratory and Sleep Physician, prepared a report of the results.[151]
[151] H33
Dr Chiam
Dr Chiam, Director of Surgery, assessed the Applicant’s cataracts.[152] In October 2018, Dr Chiam noted that the Applicant’s vision was deteriorating.[153] The Applicant subsequently had cataract surgery, according to her medical records.
[152] H33
[153] Ibid.
Dr Crowe, General Practitioner
Dr Crowe completed the Applicant’s request for access form in 2020, noting her primary disability as PTSD and depressive anxiety disorder, but also noting alcohol abuse. He further noted wrist joint pain, shoulder and back pain.
In terms of the Applicant’s functional capacity, Dr Crowe noted:[154]
a)    Mobility: needs assistance with ADLs due to pain and disability
b)    Communication: need assistance with difficulty communicating at times due to PTSD, depressive anxiety, alcohol abuse;
c)    Social interaction: needs assistance as very socially isolated in Town A. Unable to drive outside local area. Issues behaving within accepted limits and coping with feelings and emotions;
d)    Learning: requires coaching, prompting and supervision to plan and organise activities and with planning. Needs assistance with complex decision-making;
e)    Self-Care: Needs assistance and education to establish an adequate diet;
f)     Self-Management: Needs assistance with budgeting and maintaining home management practices.
[154] H13, T12, Access Request – Supporting Evidence Form, Dr Jamie Crowe (General Practitioner), page 47.
Notes produced by treating GP, Dr Crowe, were consistent with the issues raised by the Applicant in her request for access. The notes for 6 March 2020 indicate that LPRK had contacted Dr Crowe to advise she was not happy with information he had provided on her NDIS paperwork. The notes reflect that the wording on the NDIS forms was changed on

17 March 2020. LPRK was not cross-examined specifically about this request, but she did volunteer that she had been unhappy about the way her alcohol use has been recorded in writing by her doctor,[155] which may well be a reference to the access request form.
[155] Transcript P26, Lines 36 – 43.
The notes identify refusals of anti-depressant medication from time to time. In a referral to Ms McLisky in August 2020, Dr Crowe noted the main diagnoses to be depressive anxiety disorder, PTSD and EtOH (alcohol) issues at time. He noted she smoked 20 cigarettes daily and consumed 7-9 units of alcohol 4 or more times per week. A review of this treatment on

23 February 2021 noted that the goal of improved mental health had been partially met and six further sessions were recommended.
Dr Favier, General Practitioner.
After the hearing had taken place, the Applicant produced a letter dated 11 October 2022 from Dr Kim Favier, a General Practitioner within her local practice that she had consulted recently, containing the following information:
“[LPRK] has significant back pain and a CT scan showing multilevel lumbar spondylosis. Her back condition is expected to deteriorate with time. She would likely benefit from physiotherapy, exercise physiology and hydrotherapy which unfortunately are not accessible financially for her. Her psychological stress and PTSD is affecting her coping strategies and likely is escalating her pain.”
The Applicant was not cross-examined on this evidence and the Respondent submitted that little weight should be given to this report.
Consideration
The parties accept, and the Tribunal is satisfied based on the evidence, that the Applicant meets the age requirements pursuant to section 22 of the NDIS Act and the residence requirements pursuant to section 23 of the NDIS Act.
The Respondent submitted that the Applicant applied to become a participant in the NDIS in respect of:4
(a) post-traumatic stress disorder
(b) anxiety
(c) depression
(d) osteoarthritis of the right wrist
(e) lumbar facet joint dysfunction; and
(f) right subacromial bursitis.
That is not, strictly, correct. The Applicant has identified these conditions as relevant to her access request. However, the Applicant did not seek access “in respect of” any particular impairment, and neither does the NDIS Act require her to do so. The NDIS Act does not require that the CEO, or the Tribunal in its shoes, determine an access request in a way which is qualified or limited to any particular identified impairment(s). Rather, the Tribunal is required to address the same statutory question as the original decision-maker and, in this case, that is whether the Applicant meets the access criteria, by reference to the requirements of sections of Chapter 3, Part 1 of the NDIS Act and having regard to the available evidence. In this regard, I respectfully adopt the following reasoning of Member Webb in JLZT and National Disability Insurance Agency: [156]
“…the statutory question requires, inter alia, assessment of the person’s impairment or impairments. The requirements for an access request are set out in s 19. These do not require the person to specify any impairments, rather the requirement is in respect of information or documents the person possesses. When assessing if the person meets the access criteria, under s 26 the CEO has powers to request further information from or about the person, and to request the person to undergo an assessment or a medical, psychiatric, psychological or other examination. The existence and character of any impairment is a matter for assessment on the relevant information.
…Just as a reviewer under s 100 is not confined to consider supports put before them and a participant is not required to identify the particular supports sought on review,[157] so, too, a reviewer is not confined to consider only impairments placed before them and a prospective participant is not required to identify impairments in an access request or when seeking review.”
[156] [2022] AATA 541 (25 March 2022).
[157] QDKH v NDIA [2021] FCAFC 189 at [7].
The Respondent submitted that the Tribunal should ignore incapacity arising from the Applicant’s history of cannabis use, alcohol abuse and smoking[158] because the Tribunal must consider only the incapacities for which access to the NDIS is “claimed”.[159] An Applicant may elect not to focus on particular health issues, disabilities or impairment and, as a result, the evidence available to the Tribunal with respect to those may be insufficient to determine whether they give rise to impairment that meet the disability criteria. However, there is no requirement on a prospective participant to lodge a “claim” that particularises the way in which the disability criteria is met, and no basis upon which the Tribunal, exercising review jurisdiction, can ignore evidence before it that is relevant to the question whether the access criteria is met merely because an impairment demonstrated by that evidence has not been identified by the Applicant. In this case, the Applicant’s evidence is that she does not drink to excess, but she asserts that she suffers from COPD and sleep apnoea, which may well have been causative of having been a smoker. She did not give evidence about current cannabis use. The Tribunal will consider the broad factual matrix arising from the available evidence to determine whether the access criteria are met in this case. The Tribunal notes that evidence as to the Applicant’s past issues with alcohol are to be tempered against her sworn evidence that she does not drink excessively and there is no evidence of any cannabis-related impairment. Whilst there may be a link between the Applicant’s COPD and her fatigue, there is very little medical evidence connecting the condition to her current impairments.
[158] Respondent’s submissions dated 8 September 2022 at [51], and the medical evidence there identified.
[159] Respondent’s submissions dated 8 September 2022 at [36].
There is no dispute, and the Tribunal finds, that the Applicant has satisfied subsection 24(1)(a) in that her physical conditions are disabilities attributable to one or physical impairments and/or she has one or more impairments to which a psychosocial disability is attributable. The Tribunal notes, consistent with this finding, that the late material provided by the Applicant after the hearing included Dr Favier’s finding that she had multilevel lumbar spondylosis and that this back condition was expected to deteriorate with time. There is also no dispute that those impairments affect the Applicant’s capacity for social or economic participation under section 24(1)(d) of the NDIS Act. The Applicant’s evidence, and that of Ms Overton, support that conclusion.
Findings of fact
The Tribunal has arrived at the following factual findings based on the available evidence:
a)The Applicant has lived with Post Traumatic Stress Disorder for some years. She also has anxiety and a depressive disorder.
b)Together, these conditions seem to have been well-managed until the Applicant moved to far-north Queensland. Since then, she has disconnected from psychologist services since the retirement of Ms McLisky who had treated the Applicant since 2006. Even as recently as 2021, after the Applicant’s relocation, the notes from her general practitioner show some improvement in her mental state when she was receiving regular treatment from Ms McLisky through a Mental Health Plan.
c)The Applicant’s evidence demonstrates that she is currently disconnected from the community, does not socialise with anyone locally and has difficulties getting around. She also stated that her conditions are degenerating.
d)The Applicant lives with physical conditions giving rise to impairment in her right (dominant) wrist, lumbar facet joint dysfunction (most recently described by her GP a multi-level spondylosis and subacromial bursitis affecting the right shoulder;
e)The Applicant experiences anxiety and depression. Her medical records reveal that the severity of her symptoms is not always the same and she has presented to her GP at times with more severe symptoms suggestive of an episodic condition. The Applicant has, for many years, lived with PTSD which has manifested itself in panic attacks, sensitivity to noises, being on hills and freeways and is relieved by peace and quiet.[160]
f)The Applicant’s choice to move to Town A, and lack of engagement with the health system, has made more difficult her ability to get around locally, engage in a familiar community and stay in touch with trusted services, in particular health care.
[160] Transcript P13. line 18-29; P30 line 32-38; See also H5, Letter, Dr Derek A. Johns (Consultant Psychiatrist), page 36.
The Tribunal notes that it was difficult to reconcile the evidence of Ms Overton, that the Applicant “requires” various supports to complete observed tasks, with her observation that the Applicant was undertaking those tasks, albeit with some difficulty. The Tribunal also notes the language of her written report suggesting that the Applicant “would benefit from” such supports. To the extent that her written and oral evidence conflict, the Tribunal prefers the wording adopted in Ms Overton’s written report that was prepared shortly after her observations and outside the more stressful setting of a hearing. The Tribunal does not doubt that Ms Overton was doing her best to assist the Applicant in “softening” her language. However, it is Ms Overton’s task to assist the Tribunal in reaching an understanding of her area of expertise and the Tribunal finds it is more satisfactorily assisted by the content of Ms Overton’s report than by her attempts to “soften” those findings during the hearing. This is particularly so as Ms Overton also expressed the view that she could not be certain that supports were required if they had not been trialled and found to be useful.
The Tribunal notes that the Access form prepared by Dr Crowe stated that the Applicant “required assistance” with the specific tasks identified in that form. However, to the extent that the Applicant has given sworn evidence that she has been performing such tasks, without such assistance, the Tribunal is not satisfied that the Applicant requires assistance to do so.
Permanency and lifelong support
With respect to subsection 24(1)(b) of the NDIS Act, the Respondent submitted that the Applicant’s psychosocial impairments are likely to be permanent but contended that there was insufficient evidence as to whether the Applicant’s physical conditions are likely to be permanent.[161] Furthermore, the Respondent contended that subsection 24(1)(c) and (e) are not met.[162]
[161] H1, Respondent’s Statement of Facts, Issues and Contentions (‘SFIC’) dated 27 June 2022 at [19].
[162] H1, Respondent’s Statement of Facts, Issues and Contentions (‘SFIC’) dated 27 June 2022 at [20] and [22].
There is an obvious interaction between sections 24(1)(b) and 24(1)(e) of the access requirements. If an impairment is not likely to be permanent, it is difficult to conceptualise how a prospective participant could demonstrate that lifelong support under the NDIS is likely to be require for her impairments. Conversely, it will not be possible to demonstrate that lifelong support from the NDIS is likely to be required for impairments that can, or are likely to be, remedied and are not, therefore, permanent.
Subsection 24(1)(b) asks if the impairment(s) “are, or are likely to be, permanent”. It is correct to interpret the word “permanent” in subsection 24(1)(b) as “enduring”.[163] Permanent does not mean “irreversible”, “untreatable”, or “long-term”.[164] An impairment might be permanent despite “variation in intensity” or its episodic or fluctuating nature (subsection 24(2)-(3) of the NDIS Act). As explained by Mortimer J in Davis[165] the question for the Tribunal is whether the impairment(s) experienced by an individual has or have an enduring quality so as to require supports funded and/or provided under the NDIS Act on an ongoing basis for the person’s lifetime.[166]
[163] National Disability Insurance Agency v Davis [2022] FCA 1002 at [85].
[164] National Disability Insurance Agency v Davis [2022] FCA 1002 at [77], [81].
[165] [2022] FCA 1002 at [82]-[86] and [103].
[166] Respondent’s submissions dated 8 September 2022 at [16].
The Tribunal considers, based on the evidence, that the while the Applicant has adduced evidence as to the existence of various conditions, the evidence from which the Tribunal could be satisfied as to the permanency of the physical and psychosocial impairments from those conditions is inconsistent and unclear.
When having regard to possible treatment of impairments, under subsection 24(1)(b) and Rule 5.4, it is not necessary that a cure be likely. Rather, the Tribunal must be satisfied that there are no treatments that would be likely to alleviate the Applicant’s impairments or ease their severity or impact.[167] The evidence as to the Applicant’s diagnosis of post-traumatic stress disorder is accepted by the Tribunal. It is unclear whether the Applicant’s psychosocial impairment arising from the disorder would be enduring following regular and genuine engagement with treatment. There is no suggestion that this condition can be cured, but it may be possible to treat the symptoms in order the provide relief from their severity and, thus, to reduce or remove the existence of the impairment (as opposed to the existence of the diagnosis, or condition).
[167] FBJV and National Disability Insurance Agency [2021] AATA 913 (19 April 2021) at [117]; TMVJ and National Disability Insurance Agency [2022] AATA 2053 (30 June 2022) at [35].

Before her move from northern New South Wales the Applicant regularly saw a psychologist. However, the Applicant has not been seeing a psychiatrist for some time, or a psychologist since early 2021, for her psychological conditions. She does not take medications for her psychological conditions.[168] Both Ms Overton and the Applicant’s former treating psychologist, Ms McLisky, noted that the Applicant would benefit from on-going psychology services. Ms Overton stated that such care could have a direct positive effect on her psychosocial impairments and symptoms.[169] Ms Overton said that if the Applicant engaged with mental health services, and her mental health improved, then her functional capacity would also likely improve, but it was difficult to predict what her functional capacity would be with precision. Ms Overton also assumed (rather than opined, appropriately, given her qualifications as an occupational therapist not a psychologist) that the Applicant’s mental health would improve with treatment.
[168] H33, Summonsed Records, Town C Medical Centre, page 353, 333, 321 (Consultation Notes, 16 October 2018, 8 November 2019, and 12 June 2020).
[169] Transcript, P 49, lines 1 – 9; H28, Functional Capacity Assessment and Report, Amber Overton (Occupational Therapist) p 231.
It is unclear precisely what outcomes would be achieved if the Applicant were to engage in such treatments. Her PTSD, for example, may well be enduring. However, the evidence of both Ms McLisky and Ms Overton in this regard aligns with a commonsense approach and is persuasive. The Applicant stated that she has found it difficult to connect with services where she now lives. Any exacerbation of her symptoms as a result of her choice of home is not related to her impairments, but to her election to live in a place where those services are difficult to maintain and the choices she has made about engaging with appropriate treatment.
As to her physical impairments, the Applicant consulted Dr Loveridge, orthopaedic surgeon, in May 2021 in relation to her wrist. Dr Loveridge recommended ultrasound-guided steroid injection to her wrist and noted that in some cases, ulnar shortening osteotomy and debridement of the TFCC may be required. At the time of the hearing there was no evidence before the Tribunal to demonstrate whether the Applicant had undertaken that recommended treatment, or any other treatment, such as physiotherapy, for her wrist condition. However, LPRK’s post-hearing statement contained her assertion that she had now received an injection but with no positive effect, but no follow-up medical evidence has been made available to the Tribunal. Although the Tribunal has accepted LPRK’s post-hearing statement that she did not benefit from the injection, it is not clear what further treatment might be proposed. No application was made to re-open the evidence in this case and, had it been, it would have been difficult for the Tribunal to reach a level of satisfaction that it was in the interests of justice to do so given that a prospective, but unsuccessful, participant may lodge a further access request in the future. This course is open to LPRK, with the option to provide evidence of any further engagement she may have with various services and treatments as part of a subsequent request.
The Applicant’s GP, when asked, has nominated LPRK’s physical conditions as permanent but there is insufficient evidence from which the Tribunal could conclude that no appropriate, available treatments are likely to remedy the Applicant’s physical impairments. Dr Favier noted that the Applicant would likely benefit from physiotherapy, exercise physiology and hydrotherapy. It is unclear to what extent she has engaged with these services and what impact this may have upon the Applicant’s physical impairment. The Tribunal further notes that regular medication and household aids can assist the sufferers of back pain, osteoarthritis, joint dysfunction and bursitis. The care of both a general practitioner and relevant specialist physicians may assist. Such treatment would ordinarily be provided by the health care system. In the absence of evidence that there are no appropriate and available treatments that could remedy the Applicant’s physical impairments, and without an understanding of how the Applicant’s conditions may respond to such treatments, the Tribunal is not satisfied that those impairments are permanent as that word is to be understood in subsection 24(1)(b) of the NDIS Act
With respect to the Applicant’s psycho-social impairments, it may be that it is not yet be appropriate to assess the Applicant’s functional impairment because the Tribunal cannot now be positively satisfied that there are no known, available, and appropriate evidence-based clinical, medical, or other treatments that would be likely to remedy those impairments. It is therefore open to the Tribunal to find that the Applicant’s psychosocial impairments do not meet the criteria in paragraph 24(1)(b) of the NDIS Act as the Tribunal is not satisfied that they are permanent. However, for the reasons set out below, it is not essential to the outcome of this review that the Tribunal make that finding.
There is a natural interplay between subsections 24(1)(b) and 24(1)(e) of the NDIS Act in the present circumstances. The Applicant may not require support under the NDIS for her lifetime as the impact upon her of accessing and engaging with various physical, psychological and general medical treatment is not yet known. Even if the Applicant’s psychosocial impairments, or aspects of them (in particular, her PTSD diagnosed may years ago), satisfy the test in subsection 24(1)(b) of the NDIS Act, in that they are enduring, where the Applicant either is declining or not seeking treatment, or has placed herself in a situation where local barriers to such treatment require a genuine commitment to overcome, it is not appropriate to proceed to an analysis of substantial functional impairment because that level of impairment may improve in the future.
The Tribunal is not satisfied, having regard to the available evidence, that the Applicant would be likely to require support under the NDIS for her lifetime, as required by paragraph 24(1)(e) of the NDIS Act, particularly in circumstances where the outcome of further treatment and health care is not yet known. Even in respect of impairments that are permanent, if those impairments are not being managed or treated appropriately the Applicant’s current functional capacity may be more “substantial” than it might otherwise be. In those circumstances, the Tribunal finds that, on the current state of the evidence, the Tribunal cannot confidently arrive at the conclusion that the Applicant is likely to satisfy subsection 24(1)(b), or to maintain current functional impairment to be assessed under subsection 24(1)(c) indefinitely, such as to require support under the NDIS for her lifetime as is required in subsection 24(1)(e) of the NDIS Act.
Substantial functional impairment
Where the impairments of a prospective participant may not be permanent or result in a need for lifetime support under the scheme, it would be premature to consider whether those impairments result in substantially reduced functional capacity to undertake any of the activities of communication, social interaction, learning, mobility, self-care and self-management for the purposes of s 24(1)(c) of the NDIS Act. This is because, with further treatment or changes in circumstances, levels of functional impairment may change.
The Tribunal observes that much of the Applicant’s evidence about her day-to-day functional incapacity is related to her sense of isolation from supports and from community. The Applicant gave sworn evidence that this isolation became significant when she voluntarily re-located from her previous home in northern New South Wales to her current home in a small north-Queensland town. The Applicant regrets moving. Any negative consequence of her move away from supports and infrastructure, and decrease in function as a result, is not referable to her impairments and cannot, therefore, be taken into account in determining whether the Applicant meets the access criteria. That is not to say that her living arrangements and circumstances are to be ignored – she is to be assessed and considered in her current circumstance. However, the Tribunal can consider functional incapacity to the extent that results from a prospective participant’s impairments, but not to the extent that it results from, or is caused by, other factors.
The evidence as to the Applicant’s functional capacity in the relevant domains intermingled these concepts to some extent. Both the Applicant and Ms Overton said that the LPRK’s support structures were now compromised but neither attributed that compromise directly to a physical or psychosocial impairment. The Applicant accepted that his had occurred as a result of a house move she now regrets.
In any event, the Tribunal observes that the evidence as to functional incapacity does not go so far as to demonstrate a substantial reduction in functional capacity that was related to her impairments in any of the domains in subsection 24(1)(c) of the NDIS Act. The Applicant was able to communicate with the Tribunal and with Ms Overton. The Applicant was able to interact socially but had reduced capacity to do so since moving from her previous home, community and support structure. The Applicant was able to represent herself in the Tribunal proceedings and navigate her new life in far north Queensland. She was able to learn new things and manage her daily life. The Applicant could mobilise within and outside her home, including on local trips and interstate. The Applicant lives alone and, whilst her self-care and self-management were impaired, and she could have benefitted from assistance in these aspects of her life, the evidence did not meet the threshold of a substantial functional impairment in any of the six domains identified in s24(1)(c) of the NDIS Act.
The Tribunal considers that more would be required for the Tribunal to reach a level of satisfaction that the Applicant’s functional capacity was substantially reduced in any relevant domain.
The deeming provisions in Rule 5.8 provide guidance as the satisfaction of section 24(1)(c) of the NDIS Act in circumstances where, as a result of the impairment, a person cannot complete an activity within the prescribed domains either at all, or without assistive technology (neither of which are the case here), or where the person usually requires assistance to perform such tasks. The evidence in this case goes no higher than that the Applicant would benefit from such assistance but does not establish that such assistance is required for any of the six areas of functionality identified in subsection 24(1)(c) of the NDIS Act or any one defined task within those areas. The evidence available to the Tribunal does not demonstrate that she meets this deeming provision because it is insufficient evidence of need for, as opposed to benefit from, assistance to perform daily task. The Applicant undertakes some of her tasks with difficulty, and it would be easier for her with help, but that does not meet the threshold for Rule 5.8(b). It is not, therefore, necessary to resolve the question presently before the Federal Court for consideration in the appeal from the Tribunal’s decision in Foster and National Disability Insurance Agency [170] despite invitation from the Respondent to do so.
[170] [2021] AATA 4738; QUD9/2022.
There is no doubt that the Applicant has physical ailments and finds that her low back condition and painful right (dominant) wrist are making life difficult. Bursitis in her right shoulder would contribute to her discomfort. She would benefit from assistance with various physical tasks. She lives, each day, with these physical ailments together with the psychosocial overlay of long-term PTSD and episodic anxiety and depression. The frustrations expressed by LPRK during the hearing are understandable. Her GP has supported her request for access to the NDIS and LPRK wanted the Tribunal to “just get on with it”, by setting aside the Decision under review and determining that the access criteria had been met. However, the state of the available evidence is not sufficient to support a finding of substantial functional impairment in any relevant domain. The Tribunal is satisfied that the Applicant is able to manage independently without supports in the relevant domains, or that she could do so with the assistance of commonly used household items to aid her physically. The Tribunal is also satisfied that the Applicant would be assisted in her functional capacities by engaging fully and appropriately with the health care system to support both her physical and psycho-social needs. In doing so, LPRK may well find relief from her symptoms, and improvement in functional capacity, and it is therefore not open to the Tribunal to find that she will require the support of the scheme for her lifetime.
The Tribunal has found that the disability requirements in section 24 of the NDIS Act have not been met.
The Early intervention requirements
Section 25 of the NDIS Act states:
25   Early intervention requirements
(1) 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; or
(ii)    has one or more identified impairments that are attributable to a psychiatric condition and 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 purpose 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.
The Applicant did not make any submissions, expressly, that she met the early intervention requirements. The Tribunal has considered the relevant evidence and determined that she does not meet the early intervention requirements because:
(a)the available evidence does not demonstrate the provision of early intervention supports that would likely benefit the Applicant by reducing her future needs for support. The evidence does not address the early intervention supports that the Applicant requires and outcomes to be achieved in relation to her functional capacity, as required under subsection 25(1)(b) of the NDIS Act.
(b)the evidence provided does not indicate the early intervention supports are likely to benefit the Applicant by achieving one or more of the outcomes listed in s25(1)(c) of the NDIS Act.
Rule 2.5(b) of the Access Rules provides the following general outline of these 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. The CEO may consider a range of evidence in deciding the potential benefit of early intervention on a person's impairment. “
[emphasis added]
In addition, the Tribunal notes the requirement of paragraph 25(1)(b) of the NDIS Act that:
“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.”
It is common ground that the Applicant has exhibited most of her impairments for many years and that those have been aggravated since her relocation for far north Queensland. In those circumstances, and having regard to the available evidence, it is not clear how supports rendered now could be considered “early” and it has not been demonstrated that providing supports now could reduce the Applicant’s need for supports in relation to her impairments in the future.
The Tribunal is not satisfied, based on the available evidence, that early intervention supports are likely to benefit the Applicant in a functional sense by achieving the stated outcomes in paragraph 25(1)(c)(i) to (iii) of the NDIS Act. The Tribunal has found that the requirements in sections 25(1)(b) are not satisfied in this case. The early intervention requirements are cumulative and failure to meet any one of the requirements must lead to the conclusion that the early intervention requirements are not met.
conclusion
For the reasons set out above, the Tribunal finds that the Applicant does not meet the access criteria in sections 24 or 25 of the NDIS Act.
decision
The Tribunal affirms the decision under review pursuant to paragraph 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).
I certify that the preceding 93 (ninety-three) paragraphs are a true copy of the reasons for decision of Senior Member Buxton.
………………[SGD].……………………
Associate
Dated: 20 December 2022
Date of the hearing:      1 September 2022
Date of final submissions:                  31 October 2022
Applicant:  By phone
Solicitor for the Respondent:             Ms. S. Minhas
Counsel for the Respondent:            Mr. J. Sproule