Madelaine & National Disability Insurance Agency

Case [2020] AATA 4025

Madelaine and National Disability Insurance Agency [2020] AATA 4025 (13 October 2020)

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL  )
  )     No: 2019/2399
NATIONAL DISABILITY INSURANCE SCHEME DIVISION         )

Re: Teena Madelaine
Applicant

And: National Disability Insurance Agency
Respondent

DIRECTION

TRIBUNAL:  Deputy President Gary Humphries AO

DATE OF CORRIGENDUM:            21 October 2020

PLACE:           Canberra

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:

1.The name of the solicitors for the Respondent on page 41 be changed from ‘NDIA’ to ‘Christopher Bilboe’.

...................................................................

Deputy President Gary Humphries AO

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2019/2399

Re:Teena Madelaine

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Deputy President Gary Humphries AO

Date:13 October 2020

Place:Canberra

The Tribunal affirms the reviewable decision of the National Disability Insurance Agency dated 13 March 2019.

........................................................................

Deputy President Gary Humphries AO

Catchwords

NATIONAL DISABILITY INSURANCE SCHEME – access to the scheme – disability requirements – rheumatoid arthritis – chronic regional pain syndrome – left eye visual impairments – whether the applicant’s impairments result in substantially reduced functional capacity to undertake one or more of the activities listed in s 24(1)(c) of the National Disability Insurance Scheme Act (the NDIS Act) – where inconsistency between the NDIS Act and the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 – decision under review affirmed

Legislation

National Disability Insurance Agency Act 2013

Cases

Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Holmes and National Disability Insurance Agency [2017] AATA 2750

MHZQ and National Disability Insurance Agency [2019] AATA 810

Mulligan and National Disability Insurance Agency [2015] FCA 544

Secondary Materials

Concise Oxford Dictionary
National Disability Insurance Scheme (Becoming a Participant) Rules 2016

NDIS Operational Guideline

REASONS FOR DECISION

Deputy President Gary Humphries AO

13 October 2020

INTRODUCTION

  1. Ms Teena Madelaine was born in 1967 and now lives on the far south coast of New South Wales. She was once a fit and active person, but in recent years has been afflicted by a range of conditions, including rheumatoid arthritis and chronic regional pain syndrome. As a result, she suffers impairments which have significantly reduced her quality of life.

  2. In 2017 she applied to become a participant in the National Disability Insurance Scheme (NDIS or the Scheme), but on 13 March 2019 her application was refused on the basis that, according to the National Disability Insurance Agency (NDIA or the Agency), she did not satisfy the access criteria in the National Disability Insurance Scheme Act 2013 (the Act). Ms Madelaine applied to this Tribunal for merits review of the Agency’s reviewable decision, made under s 100 of the Act.

  3. A hearing of this application was heard on 23-24 July 2020. Pursuant to protocols enacted following the coronavirus pandemic, the hearing was conducted by videoconference. Ms Madelaine and an occupational therapist, Ms Deirdre…

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AGLC
Madelaine & National Disability Insurance Agency [2020] AATA 4025
Case
[2020] AATA 4025
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by Ms Madelaine against a decision of the National Disability Insurance Agency (NDIA) to refuse her access to the National Disability Insurance Scheme. The core dispute revolved around whether Ms Madelaine’s impairments, comprising rheumatoid arthritis, chronic regional pain syndrome, and left eye visual impairment, resulted in a substantially reduced functional capacity to undertake one or more of the activities listed in section 24(1)(c) of the National Disability Insurance Scheme Act 2013 (Cth). The Tribunal was required to determine if Ms Madelaine met the disability requirements for access to the Scheme.

The Tribunal's reasoning focused on assessing Ms Madelaine's functional capacity in light of her impairments. While acknowledging Ms Madelaine's significant pain and the considerable difficulties she experienced in performing daily activities, the Tribunal found that her capacity, even with workarounds and aids, did not reach the threshold of "substantially reduced" as required by the NDIS Act. The Tribunal noted that Ms Madelaine could still perform many activities, albeit with increased time, effort, compromise, or assistance, and that the mere need for support did not automatically qualify her for the NDIS. The Tribunal also considered Ms Madelaine's evidence with caution due to her tendency towards exaggeration, idiosyncratic interpretation of events, and memory issues, particularly where it conflicted with other evidence.

Ultimately, the Tribunal concluded that Ms Madelaine's reduced functional capacity for self-care fell short of being substantially reduced, and therefore she did not satisfy the criterion in section 24(1)(c)(v). Consequently, the Tribunal affirmed the NDIA's decision to refuse Ms Madelaine access to the Scheme.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The effect of all these concessions was that only one issue was ultimately before the Tribunal: did Ms Madelaine’s impairments (rheumatoid arthritis, CRPS and left eye visual impairment) result in substantially reduced functional capacity to undertake one or more of the activities listed in s 24(1)(c)? If they did, she would be entitled to access to the NDIS, but she should be refused access if they did not.MS MADELAINE’S EVIDENCE Ms Madelaine told the Tribunal that she had had a very active life before her disabling conditions had set in. Now, she said, there’s not a moment when I’m not in pain.[1] She experiences tremors in her arms or legs on a random basis. As a result, her life is now built around her home – her safe place – and she spends most of her time there. She said I can’t look in the mirror without seeing my disfigurements. She said that there were many things which the Scheme could provide that would make my life so much easier, for example, a railing in her shower recess.[1] In this decision, italicised text generally indicates a direct quotation. She is still able to drive her car, though only within a 10-15 minute range of her home. This included Pambula, the nearest town. However, she was often unable to commit to activities outside the home – doctors’ appointments, social engagements – because her conditions made her unreliable. She often does not answer her telephone because I just can’t cope. She is unable to shoot a gun, which she might have needed to do when wild dogs were attacking her sheep. When her property had been threatened by bushfires, she had needed assistance to flee. Her disabilities impaired her ease of movement, and put her at greater risk, she said. She cannot walk on a sandy beach. She spoke about the difficulties of taking a shower. She said she felt unsafe doing so. On a good day, if someone is here, I will have a quick shower. On other days she might take a sponge bath, a bath in a bag. On occasions she has scalded her legs with hot water in the shower. Bad days, when she might not be able to get out of bed, might occur once or twice a month for two to three days in a row. Her rheumatoid arthritis affects every bone in my body. A penetration injury of her left eye when she was young has left her blind in that eye; she relies on her right eye, but it is affected by continuing ulcer growth. Ms Madelaine said:I can still function. I can still get out of bed. I may not swing out of bed and pop up, glad to see the sun every morning, but after 15, 20 minutes I can get the legs over and I can actually do it. It’s not without risk and it’s never without pain. Ms Madelaine said that, on a bad day, she is unable to participate in any activity outside the home, and activities inside the home are also severely affected. She has a lightweight wheelchair, but cannot propel herself in it without assistance. In this context, she said that such days arise two to three times a month, for several days’ duration.

Decision

Reasons for decision

The Tribunal finds that Ms Madelaine does have a reduced functional capacity for self-care, but this falls short of being a substantially reduced capacity. Accordingly, she does not satisfy the criterion in s 24(1)(c)(v).CONCLUSION As Mortimer J made clear in Mulligan, the essential inquiry before the Tribunal entails an assessment of what Ms Madelaine can and cannot do in the face of her impairments. Applying this benchmark, the gist of Ms Madelaine’s evidence on what she could and could not do was captured in testimony such as this:I can still function. I can still get out of bed. I may not swing out of bed and pop up, glad to see the sun every morning, but after 15, 20 minutes I can get the legs over and I can actually do it. It’s not without risk and it’s never without pain.Ms Madelaine described many difficulties associated with the activities of daily living – how long they took to accomplish, how she had to devise compromises and workarounds, how doing this sometimes embarrassed or upset her – but there was, ultimately, very little in this range of activities that she could not actually do, particularly if assisted with commonly available aids such as a walking stick, handrails or enlarged print on her mobile phone or computer. On this basis, it is difficult to see how she reaches any of the thresholds for substantially reduced functional capacity listed in s 24(1)(c), quite apart from the deeming provisions in the Rules. The NDIA acknowledged that Ms Madelaine requires some support as a result of her impairments. But, as the Guideline indicates, the mere need for support does not qualify her for support through the NDIS, much less lifetime NDIS support. Support may be provided through another service system (e.g. health or mainstream services); indeed, she currently receives support of that kind from local government. It should also be noted that her capacity to engage in some of the relevant activities appears to be on a downward trajectory, and on that basis she may qualify for access to the Scheme in the future. But for the moment, she clearly does not. On this basis, the Tribunal affirms the reviewable decision of 13 March 2019 under s 20 refusing Ms Madelaine access to the Scheme.

Ratio Decidendi

Legal Principle Established

Accordingly, Ms Madelaine does not meet the functional impact criterion in section 24(1)(c) and therefore does not meet the disability requirements, the Agency contended.CONSIDERATION A number of difficulties confronted Ms Madelaine in presenting her case to the Tribunal. A disability advocate who had assisted her in the preliminary stages of these proceedings did not appear at the hearing itself, and this development apparently took Ms Madelaine by surprise. She was evidently disadvantaged by the unanticipated withdrawal of her support person. Additionally, Ms Madelaine did not lodge prior to the hearing (despite being ordered by the Tribunal to do so) a response to the NDIA’s Statement of Facts, Issues and Contentions. In consequence, the Tribunal had some difficulty determining the precise basis for her claim that the reviewable decision should be set aside. Indeed, at the end of the first day of hearing the Tribunal required that she prepare overnight a short document setting out those activities (as described in s 24(1)(c)) that she could not do effectively or completely on account of her impairments. This document was duly lodged and provided some assistance in clarifying her contentions. A large number of documents were tendered by her, although very little use was made by her of them in the course of the hearing and their relevance was not generally made clear. In her report of 25 October 2019 Ms Richards described Ms Madelaine as verbose and tangential at times, with intermittent loss of her train of thought during her examination. The same observation was made by the Tribunal during the hearing, making it sometimes very difficult to determine with precision exactly what evidence she was giving with respect to issues such as her functional capacity. Notwithstanding these difficulties, the Tribunal is confident that Ms Madelaine succeeded in conveying a comprehensive picture of her lived experience, and that her contentions were reasonably clear. The Tribunal saw Ms Madelaine as, essentially, a truthful witness, but it also notes that her expression tended towards the idiosyncratic and circumlocutory, and to be salted with occasional exaggeration. An example of the former is when it was put to her that her statement that she was unable to access the community on my own was inconsistent with the evidence that she could drive her own car within that community and mobilise for short distances with a walking stick or wheeled walker. She responded by saying that she had meant by this that she was unable to access the community as freely and as often as she desired. An example of exaggeration is when she claimed her handwritten notes were unreadable; on being taken to those notes specifically she agreed that none of them met that description. A further basis for approaching her evidence with caution is that she told the Tribunal her memory was not good and that she often could not remember things that happened even very recently. For example, Ms Richards reported that Ms Madelaine demonstrated how she got into and out of the shower; Ms Madelaine denied that she would have done this, but admitted she had no recollection of much of what had transpired on the day Ms Richards had done her assessment. Ms Richards’ account is corroborated by Ms Madelaine’s own Statement of Lived Experience, written just a few days before, where Ms Madelaine reports [g]etting in and out of the shower as a daily activity. The upshot of these concerns is that the Tribunal is inclined to treat with caution the evidence by Ms Madelaine of her functional capacity where it is in conflict with other evidence, such as the report of what Ms Richards saw Ms Madelaine do or was told by Ms Madelaine she could do or not do. Again, it should be noted that this does not reflect wilful falsity on Ms Madelaine’s part, so much as an idiosyncratic approach to interpreting events in her life and a poor memory.