McLeod and National Disability Insurance Agency

[2023] AATA 3380

McLeod and National Disability Insurance Agency [2023] AATA 3380 (20 October 2023)

Division:                  National Disability Insurance Scheme Division

File Number(s):      2021/4668

Re:Jennifer McLeod

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Member P Smith

Date:20 October 2023

Place:Sydney

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

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

Member P Smith

CATCHWORDS

NATIONAL DISABILITY INSURANCE SCHEME – Application to review a decision made by the National Disability Insurance Agency under subsection 20(1)(a) of the National Disability Insurance Scheme Act 2013 (Cth) that a person does not meet the access criteria as set out in section 21 of the NDIS Act to become a participant in the National Disability Insurance Scheme (NDIS) – whether the Applicant is a person who meets the access criteria as set out in section 21 of the NDIS Act to become a participant in the NDIS - where the Applicant seeks to become a participant in the NDIS on the basis of four diagnosed conditions, namely, Post Phlebitis Syndrome, recurring cellulitis, chronic asthma, and obesity – whether the Applicant is a person who meets either the disability requirements in section 24 of the NDIS Act or the early intervention requirements in section 25 of the NDIS Act – whether the Applicant’s chronic asthma is a disability within the meaning of subsection 24(1)(a) of the NDIS Act – consideration of the term ‘remedy’ in the context of rule 5.4 of the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 – hearing dispensed with under section 34J of the Administrative Appeals Tribunal Act 1975 (Cth) on the basis that the issues for determination on the review of the Respondent’s decision can be adequately determined by the Tribunal in the absence of the parties by considering the documents or other material lodged with or provided to the Tribunal and without holding a hearing – decision under review affirmed.

LEGISLATION

National Disability Insurance Scheme Act 2013 (Cth), ss.9, 18, 19, 20, 21, 22, 23, 24, 25, 100(6)(a), 209(1).

Administrative Appeals Tribunal Act 1975 (Cth), ss. 34A, 34J, 37, 43(1)(a).

CASES

FBJV and National Disability Insurance Agency [2021] AATA 913.

Mulligan v National Disability Insurance Agency [2015] FCA 544.
Madelaine & National Disability Insurance Agency [2020] AATA 4025.
National Disability Insurance Agency v Davis [2022] FCA 1002.

SECONDARY MATERIALS

National Disability Insurance Scheme (Becoming a Participant) Rules 2016, rr. 2.2, 2.4, 5.4, 5.5, 5.6, 5.7, 5.8.

National Disability Insurance Scheme – Operational Guidelines – Access.

REASONS FOR DECISION

Member P Smith

20 October 2023

INTRODUCTION

1. This is an application to review[1] a decision made by a reviewer of the National Disability Insurance Agency (the Respondent) dated 4 June 2021[2] to confirm[3] a decision made by a delegate of the Chief Executive Officer (the CEO) of the Respondent on 29 March 2021 under subsection 20(1)(a) of the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act) that a person does not meet the access criteria as set out in section 21 of the NDIS Act to become a participant in the National Disability Insurance Scheme (the NDIS).

   [1] The Applicant sent her application for review to the Sydney Registry of the Administrative Appeals Tribunal (the Tribunal) by post. The Tribunal received the application on 8 July 2021. A copy of the Applicant’s application is at T1 of the T-documents.

   [2] See T1C and T2 of the T-documents.

   [3] See subsection 100(6)(a) of the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act).

2. On 12 December 2020[4], the Applicant, Jennifer McLeod, made an access request[5], in the form approved by the CEO[6], to the Agency to become a participant in the NDIS[7]. The Applicant is seeking to become a participant in the NDIS on the basis of four diagnosed conditions, namely Post Phlebitis Syndrome (PPS), recurring cellulitis, chronic asthma, and obesity[8]. The Tribunal notes from the material that is before the Tribunal that the Applicant has a multitude of other diagnosed medical conditions[9]. However, the Tribunal understands that for the purpose of this review, the Applicant is seeking only to become a participant in the NDIS on the basis of her PPS, recurring cellulitis, chronic asthma, and obesity.

   [4] The Applicant made the access request to the National Disability Insurance Agency (the NDIA or the Agency) on 12 December 2020. This was confirmed via email to the Tribunal on 11 September 2023 by Shenelle Egbert, solicitor, HWL Ebsworth Lawyers. The Tribunal requested this information because it was not included with the Tribunal documents that were lodged with the Tribunal on 5 August 2021 under section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act).

   [5] Section 9 of the NDIS Act states that in the NDIS Act, an access request has the meaning given by section 18 of the NDIS Act.

   [6] See subsection 19(1)(a) of the NDIS Act.

   [7] For completeness, the Applicant also made an access request to the Agency in 2019. That request was considered and decided by a delegate of the Chief Executive Officer (the CEO) of the NDIA on 25 November 2019. The delegate decided on 25 November 2019 under subsection 20(1)(a) of the NDIS Act that the Applicant is not a person who meets the access criteria as set out in section 21 of the NDIS Act to become a participant in the National Disability Insurance Scheme (NDIS). The Applicant did not seek an internal review of that decision. A copy of this decision is at T3 of the T-documents.

   [8] These four diagnosed medical conditions are confirmed in the various letters that have been prepared by the Applicant’s General Practitioners, Dr Freddy Azar, and Dr Christopher Soo as well as other medical specialists whom the Applicant has attended on for assessment.

   [9] These several other diagnosed medical conditions are confirmed in the various letters that have been prepared by the Applicant’s General Practitioners, Dr Freddy Azar, and Dr Christopher Soo. These letters are included in the Agreed Joint Tender Bundle that the Respondent lodged with the Tribunal via email on 5 May 2023 in compliance with the directions given by me at the Directions Hearing by telephone on 4 April 2023.

3. The Applicant’s access request was considered and decided by a delegate of the CEO of the Respondent on 29 March 2021. The delegate considered the Applicant’s access request and the information that accompanied the request against the access criteria as set out in section 21 of the NDIS Act.

4. For the purpose of subsection 21(1)(a) of the NDIS Act, the delegate was satisfied on the evidence that the Applicant is a person who meets the age requirements in section 22 of the NDIS Act[10]. For the purpose of subsection 21(1)(b) of the NDIS Act, the delegate was satisfied on the evidence that at the time of considering the request, the Applicant is a person who meets the residence requirements in section 23 of the NDIS Act.

   [10] See subsection 21(1)(a) of the NDIS Act.

5. For the purpose of subsection 21(1)(c)(i) of the NDIS Act, the delegate was not satisfied on the evidence that at the time of considering the request, the Applicant is a person who meets the disability requirements in section 24 of the NDIS Act[11]. For the purpose of subsection 21(1)(c)(ii) of the NDIS Act, the delegate was not satisfied on the evidence that at the time of considering the request, the Applicant is a person who meets the early intervention requirements in section 25 of the NDIS Act[12]. Accordingly, the delegate decided under subsection 20(1)(a) of the NDIS Act that the Applicant is not a person who meets the access criteria as set out in section 21 of the NDIS Act to become a participant in the NDIS.

   [11] See subsection 21(1)(c)(i) of the NDIS Act.

   [12] See subsection 21(1)(c)(ii) of the NDIS Act.

6. On 13 April 2021[13], the Applicant received written notice of the decision made by a delegate of the CEO on 29 March 2021[14] under subsection 20(1)(a) of the NDIS Act that the Applicant is not a person who meets the access criteria as set out in section 21 of the NDIS Act to become a participant in the NDIS.

   [13] This is stated by the Applicant in her letter to the NDIA, received on 16 April 2021. This letter is at T7 of the T-documents.

   [14] A copy of the decision made by a delegate of the CEO of the NDIA on 29 March 2021 was provided to the Tribunal via email on 11 September 2023 by Shenelle Egbert, solicitor, HWL Ebsworth Lawyers. The Tribunal requested that the Respondent provide a copy of their decision of 29 March 2021 because it was not included with the Tribunal documents that were lodged with the Tribunal on 5 August 2021 under section 37 of the AAT Act.

7. On 16 April 2021[15], the Respondent received a letter from the Applicant requesting that the Respondent reconsider the decision made by a delegate of the CEO on 29 March 2021 under subsection 20(1)(a) of the NDIS Act that the Applicant is not a person who meets the access criteria as set out in section 21 of the NDIS Act to become a participant in the NDIS.

   [15] See T7 of the T-documents.

8. The Applicant’s access request was reconsidered and redecided by a reviewer of the Respondent on internal review on 4 June 2021. The reviewer reconsidered the Applicant’s access request along with the information that accompanied the request and the new information that was provided by the Applicant with her internal review request. Following the completion of the internal review, the reviewer confirmed[16] the decision made by a delegate of the CEO on 29 March 2021 under subsection 20(1)(a) of the NDIS Act that the Applicant is not a person who meets the access criteria as set out in section 21 of the NDIS Act to become a participant in the NDIS.

   [16] The reviewer confirmed the decision made by a delegate of the CEO of the NDIA under subsection 100(6)(a) of the NDIS Act.

9. On 11 June 2021[17], the Applicant received written notice of the decision made by a reviewer of the Respondent on 4 June 2021 to confirm the decision made by a delegate of the CEO on 29 March 2021 under subsection 20(1)(a) of the NDIS Act that the Applicant is not a person who meets the access criteria as set out in section 21 of the NDIS Act to become a participant in the NDIS.

   [17] See the second page to the Applicant’s application for review at T1 of the T-documents where she stated that she received notice of the Respondent’s Internal Review Decision on 11 June 2021.

10. On 8 July 2021, the Tribunal received a signed application for review from the Applicant dated 2 July 2021 in which she sought that the Tribunal conduct a review of the decision that was made on 4 June 2021 by a reviewer of the Respondent under subsection 100(6)(a) of the NDIS Act to confirm the decision made by a delegate of the CEO on 29 March 2021 under subsection 20(1)(a) of the NDIS Act that the Applicant is not a person who meets the access criteria as set out in section 21 of the NDIS Act to become a participant in the NDIS.

    THE TRIBUNAL PROCEEDING

11. As the parties were unable to resolve the issue on review, namely whether the Applicant is a person who meets the access criteria as set out in section 21 of the NDIS Act to become a participant in the NDIS by way of agreement through an Alternative Dispute Resolution process of the Tribunal[18], on 28 September 2022, Conference Registrar Shepherd gave directions for the application to be timetabled to hearing. Conference Registrar Shepherd directed that on or before 9 December 2022 the Applicant give to the Respondent and to the Tribunal any further evidence or submissions on which she sought to rely in this proceeding. Conference Registrar Shepherd directed that on or before 3 February 2023 the Respondent give to the Applicant and to the Tribunal a Statement of Facts, Issues and Contentions and any further evidence on which they sought to rely on in this proceeding. Conference Registrar Shepherd directed that on or before 17 February 2023 the Applicant and the Respondent lodge with the Tribunal and exchange Hearing Certificates for a hearing between March and May 2023 so that the Tribunal could determine whether the Applicant is a person who meets the access criteria as set out in the NDIS Act to become a participant in the NDIS.

    [18] Shortly after the Applicant’s application for review was received at the Tribunal, the proceeding was referred to an Alternative Dispute Resolution process of the Tribunal pursuant to section 34A of the AAT Act.

12. On 10 March 2023, before the application had been listed for a hearing, I was informed by the Divisional Registrar of the NDIS Division that the parties had contacted the Tribunal to request that the review of the Respondent’s decision be determined by the Tribunal without holding a hearing. I was also informed by the Divisional Registrar that the parties to the proceeding consented to the review of the Respondent’s decision being determined by the Tribunal without holding a hearing under subsection 34J of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act).

13. Relevantly, section 34J of the AAT Act provides for circumstances in which a hearing before the Tribunal may be dispensed with[19]. The power under section 34J of the AAT Act to dispense with a hearing in a proceeding before the Tribunal is a discretionary power that the Tribunal may exercise if it appears to the Tribunal that the issues for determination on the review of the Respondent’s decision can be adequately determined in the absence of the parties[20] and, moreover, if the parties to the proceeding consent to the review of the Respondent’s decision being determined without holding a hearing[21]. If the Tribunal decides, under section 34J of the AAT Act, to dispense with a hearing, it may review the Respondent’s decision by considering the documents or other material that the parties have lodged with or provided to the Tribunal, without holding a hearing[22].

    [19] See section 34J of the AAT Act.

    [20] See subsection 34J(1)(a) of the AAT Act.

    [21] For completeness, subsection 34J(2) of the AAT Act provides that for the purpose of subsection (1), the consent of the agency party to a proceeding in the Social Services and Child Support Division is not required.

    [22] See subsection 34J(1) of the AAT Act..

14. A Directions Hearing was held in this proceeding on 4 April 2023 so that the Tribunal and the parties and their representatives could discuss the manner in which the issue on review should be determined by the Tribunal. The Applicant appeared at the Directions Hearing by telephone as did her Advocate, Natalie Ross (Ms Ross). Both the Applicant and Ms Ross addressed the Tribunal on the manner in which the issue on review should be determined. Together they confirmed that the Applicant gave her consent for the review being determined by the Tribunal without holding a hearing. Loretta Houlihan (Ms Houlihan), the Respondent’s legal representative also appeared at the Directions Hearing by telephone, to address the Tribunal on the manner in which the issue on review should be determined. Ms Houlihan, acting as the Respondent’s legal representative, confirmed at the Directions Hearing that the Respondent also gave their consent to the review being determined by the Tribunal without holding a hearing.

15. After considering the submissions made for the parties at the Directions Hearing on the manner in which the issue on review should be determined by the Tribunal, I was satisfied that it was appropriate to make an order to dispense with a hearing in this proceeding pursuant to section 34J of the AAT Act.

16. I have determined the issue of whether the Applicant is a person who meets the access criteria as set out in section 21 of NDIS Act by considering the Agreed Joint Tender Bundle of evidence the Respondent lodged with the Tribunal via email on 5 May 2023. I have also considered the material documents the Respondent lodged with the Tribunal via email on 5 August 2021 under section 37 of the AAT Act.

    RELEVANT LEGISLATION

17. As the Applicant is seeking to become a participant in the NDIS, she must meet the access criteria as set out in section 21 of the NDIS Act. Section 21 of the NDIS Act provides as follows:

    (1)A person meets the access criteria if:

    (a)the CEO is satisfied that the person meets the age requirements (see section 22); and

    (b)the CEO is satisfied that, at the time of considering the request, the person meets the residence requirements (see section 23); and

    (c)the CEO is satisfied that, at the time of considering the request:

    (i)     the person meets the disability requirements (see section 24); or

    (ii)    the person meets the early intervention requirements (see section 25).

18. The Respondent accepts that the Applicant meets the age requirements in section 22 of the NDIS Act and the residence requirements in section 23 of the NDIS Act. The Respondent does not, however, accept that the Applicant meets either the disability requirements in section 24 of the NDIS Act or the early intervention requirements in section 25 of the NDIS Act to become a participant in the NDIS.

19. The first task for this Tribunal is to consider whether on the evidence the Applicant is a person who meets the disability requirements as set out in section 24 of the NDIS Act to become a participant in the NDIS.

20. Section 24 of the NDIS Act provides as follows:

    (1)A person meets the disability requirements if:

    (a)the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable; and

    (b)the impairment or impairments are, or are likely to be, permanent; and

    (c)the impairment or impairments result in substantially reduced functional capacity to undertake one or more of the following activities:

    (i)     communication;

    (ii)    social interaction;

    (iii)   learning;

    (iv)   mobility;

    (v)    self care;

    (vi)   self management; and

    (d)the impairment or impairments affect the person’s capacity for social or economic participation; and

    (e)the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime.

    (2)For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the variation.

21. In the event that the Tribunal finds that the Applicant does not meet the disability requirements as set out in section 24 of the NDIS Act, the Tribunal must consider whether the Applicant meets the early intervention requirements as set out in section 25 of the NDIS Act.

22. Section 25 of the NDIS Act provides as follows:

    (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 developmental delay; and

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

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

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

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

    (iii)   improving such functional capacity; or

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

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

1. The NDIS Act is supplemented by legislative instruments called the National Disability Insurance Scheme Rules (the NDIS Rules). The Minister may, by legislative instrument, make NDIS Rules[23] prescribing matters required or permitted by the NDIS Act to be prescribed by the NDIS Rules[24] or necessary or convenient to be prescribed in order to carry out or give effect to the NDIS Act[25].

   [23] See subsection 209(1) of the NDIS Act.

   [24] See subsection 209(1)(a) of the NDIS Act.

   [25] See subsection 209(1)(b) of the NDIS Act.

2. Relevantly, the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (the Becoming a Participant Rules) were made under subsection 209(1) of the NDIS Act to assist the CEO to determine who becomes a participant in the NDIS[26]. The Becoming a Participant Rules contain a number of key provisions including when a person meets the access criteria as set out in section 21 of the NDIS Act to become a participant in the NDIS[27] and when a person meets either the disability requirements as set out in section 24 of the NDIS Act[28] or the early intervention requirements as set out in section 25 of the NDIS Act[29].

   [26] See Part 2.2 of the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (the Becoming a Participant Rules).

   [27] See Part 2.4 of the Rules.

   [28] See Part 5 of the Rules.

   [29] See Part 6 of the Rules.

3. The NDIS Act is also supplemented by the Agency’s National Disability Insurance Scheme Operational Guidelines (the Operational Guidelines). The Agency has established Operational Guidelines to provide guidance to the CEO when making decisions under the NDIS Act. Relevantly, the Agency has established the National Disability Insurance Scheme Operational Guidelines – Access (the Access Guidelines)[30] to provide guidance to the CEO when deciding and considering whether or not a person who makes an access request to the Agency to become a participant in the NDIS meets the access criteria as set out in section 21 of the NDIS Act.

   [30] See T10 of the T-documents.

   CONSIDERATION OF THE DISABILITY REQUIREMENTS

   Whether the Applicant has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory, or physical impairments

4. The Tribunal must be satisfied under subsection 24(1)(a) of the NDIS Act that the Applicant has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory, or physical impairments.

5. As has been established the Applicant is seeking to become a participant in the NDIS on the basis of the four diagnosed conditions mentioned above in paragraph [2]. The Respondent accepts on the evidence that the Applicant meets the requirements in subsection 24(1)(a) of the NDIS in respect of her PPS, recurring cellulitis, and obesity. Therefore, the Applicant meets the requirements under subsection 24(1)(a) of the NDIS Act in respect of her PPS, recurring cellulitis and obesity.

6. The Respondent does not, however, accept that the Applicant meets the requirements in subsection 24(1)(a) of the NDIS Act in respect of her chronic asthma. It was contended for the Respondent that the Applicant cannot meet the requirements of subsection 24(1)(a) of the NDIS Act in respect of her chronic asthma because asthma is not a disability but rather a chronic respiratory health condition.

7. The Tribunal has considered whether the Applicant meets the requirements in subsection 24(1)(a) of the NDIS Act in respect of her chronic asthma. In particular, the Tribunal has considered whether the Applicant’s chronic asthma is a disability that is attributable to one or more of the impairments specified in subsection 24(1)(a) of the NDIS Act.

8. The Tribunal does not consider that the Applicant’s chronic asthma meets one or more of the impairment requirements as set out in subsection 24(1)(a) of the NDIS Act. This is because there is no causal link between the Applicant’s chronic asthma and any of the listed impairments, namely intellectual, cognitive, neurological, sensory, or physical. Thus, the Tribunal finds on the evidence the Applicant does not meet the requirements in subsection 24(1)(a) of the NDIS Act in regard to her chronic asthma.

   Whether the Applicant’s impairments are, or are likely to be, permanent

9. The Tribunal must be satisfied under subsection 24(1)(b) of the NDIS Act that the Applicant’s impairments are, or are likely to be, permanent. The term ‘permanent’ is not defined in the NDIS Act.

10. The Tribunal must consider the following rules in determining whether or not the Applicant’s PPS, recurring cellulitis, and obesity are permanent impairments, or are likely to be, permanent. The specific rules applicable to the present case on determining whether or not the Applicant’s PPS, recurring cellulitis, and obesity are permanent impairments, or are likely to be, permanent, include rules 5.4, 5.5, 5.6 and 5.7 of the Becoming a Participant Rules.

11. In relation to rule 5.4 of the Becoming a Participant Rules it is set out that an impairment is considered to be permanent, or likely to be permanent only if there are no known, available, and appropriate evidence-based clinical, medical, or other treatments that would be likely to remedy the impairment.

12. In relation to rule 5.5 of the Becoming a Participant Rules it is set out that an impairment may be permanent notwithstanding that the severity of its impact on the functional capacity of the person may fluctuate or there are prospects that the severity of the impact of the impairment on the person's functional capacity, including their psychosocial functioning, may improve.

13. In relation to rule 5.6 of the Becoming a Participant Rules it is set out that an impairment may require medical treatment and review before a determination can be made about whether the impairment is permanent or likely to be permanent. The impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated (even though the impairment may continue to be treated and reviewed after this has been demonstrated).

14. In relation to rule 5.7 of the Becoming a Participant Rules it is set out that if an impairment is of a degenerative nature, the impairment is, or is likely to be, permanent if medical or other treatment would not, or would be unlikely to, improve the condition.

15. While the Tribunal accepts that the term ‘remedy’ in the context of rule 5.4 of the Becoming a Participant Rules can include treatment to clinically cure an impairment, the Tribunal also accepts that the term ‘remedy’, in the context of rule 5.4, may also apply to impairments which are ameliorated through or by medical treatments. The is the position taken by Member Frost in the case of FBJV and National Disability Insurance Agency[31] (FBJV). In the case of FBJV, Member Frost considered, amongst other things, the term ‘remedy’ in the context of rule 5.4 of the Becoming a Participant Rules. Member Frost said that the term could be based on the definition found in the Macquarie Dictionary, namely that ‘remedy’ is “something that cures or relieves a disease or bodily disorder; a healing medicine, application, or treatment”. Furthermore, Member Frost goes onto define the term ‘relieve’ which he said includes to “ease or alleviate” (pain, distress, anxiety, need, etc). Finally, in the case of FBJV, Member Frost gave reference to the NDIA Operational Guidelines, in regard to subsection 24(1)(b) of the NDIS Act, which has now been amended by removing the term ‘substantially’ as a framework for making decisions in regard to impairments. Thus, this enables decision-makers to give regard where there are no clinical or medical or other treatments that can either clinically cure or substantially ameliorate an impairment(s). Furthermore, there is the need as a consequence from the amendments to the NDIS Operational Guidelines for decision-makers to consider remedy as an overarching concept, which can be applied to a wider spectrum of impairments.

    [31] [2021] AATA 913 at [117].

16. In the case of National Disability Insurance Agency v Davis[32] (Davis), Mortimer CJ considered the term ‘remedy’ in the context of rule 5.4. This included the requirement that treatment would be likely to remedy an impairment. Her Honour reached the conclusion that the term ‘remedy’ in the context of rule 5.4 of the Becoming a Participant Rules, encompasses a wider spectrum or scope than the mere definition as understood in general terms. At paragraph [136], Mortimer CJ stated as follows:

    The chosen descriptors must also be construed consistently with the other language used in this section of the rules, and in r 5.4 in particular, including the requirement that the treatment “would be likely to remedy the impairment”. In this context, “remedy” should be understood to mean more than just relieve or improve. That is because r 5.5 recognises that an impairment may be permanent notwithstanding the severity of its impact on a person may fluctuate, or there are prospects for improvement. These changes in the impacts of an impairment may occur because of, amongst other matters, treatment. Therefore, in r 5.4 the word “remedy” should be understood to mean something approaching a removal or cure of the impairment. That is consistent with the meaning I consider should be given to the statutory phrase “permanent impairment”, as an impairment which is enduring and, while its impacts on a person from time to time might fluctuate, is not an impairment which is likely to be removed or cured.

    [32] [2022] FCA 1002.

17. The observations made by Mortimer CJ in the case of Davis requires the Tribunal to consider the terms ‘cure’ and ‘relieve’ as synchronous and not exclusively based on a curative model when assessing a disability where the impairment(s) is permanent. This is in order for the Tribunal to be able to consider and weigh up whether there are no known, available, and appropriate evidence-based clinical, medical, or other treatments that would be likely to remedy the impairment(s). It is noted by Mortimer CJ in the case of Davis that not all impairments are permanent but still may affect a person’s functionality in a more minimal way than a permanent impairment would.

18. In his letter of 10 March 2021[33] in support of the Applicant’s access request to the Agency, Dr Freddy Azar (Dr Azar), a General Practitioner, gives details regarding the Applicant’s diagnosis of PPS and her recurring cellulitis. Dr Azar stated that the Applicant’s PPS causes pain and swelling to the Applicant’s legs below her knees. She is unable to walk or stand more than 15 minutes as this causes increased pain and swelling. Dr Azar stated that the Applicant has chronic skin changes and is prone to leg ulceration and recurrent cellulitis. He stated further that the Applicant’s PPS and recurring cellulitis are permanent and there is no curative treatment.

    [33] See page 546 of the Agreed Joint Tender Bundle.

19. The Tribunal has considered the medical evidence of Dr Tom Daly (Dr Daly), a Vascular and Endovascular Surgeon. In his letter of 5 May 2022[34], Dr Daly records the current treatments available to the Applicant to treat her PPS and recurring cellulitis. Dr Daly concluded that compression therapy was the mainstay treatment for these impairments. Moreover, he noted that when the Applicant wears compression stockings, they are effective. Dr Daly stated that the current treatment for the Applicant’s PPS and recurring cellulitis are adequate. Indeed, he stated that there is no other medical treatments or medications available that are able to treat the Applicant’s PPS and recurring cellulitis. Dr Daly stated that over time if the Applicant wears compression stockings that this will also minimise skin trauma and reduce the development of hemosiderosis and chronic venous changes and she will reduce the chances of developing ulcers or similar problems in the long term. He stated that the use of compression therapy will slow the progression of the Applicant’s condition, including her mobility, which should not be too badly affected given that most of the discomfort she has is related to her swelling[35].

    [34] See page 3 of the Agreed Joint Tender Bundle.

    [35] See page 4 of the Agreed Joint Tender Bundle.

20. The Tribunal, however, notes that there is no evidence regarding the complicity of the Applicant with the treatments prescribed and recommended by Dr Daly.

21. Based on the medical evidence of Dr Daly, it is apparent to the Tribunal that there are known, available, and appropriate evidence-based clinical, medical, or other treatments that would be likely to remedy the Applicant’s PPS and recurring cellulitis. The Tribunal notes that whilst there is no cure, there is however the capacity for improvements if the Applicant complies with the sole treatment available, namely compression stockings. Thus, the Tribunal finds on the evidence that the Applicant does not meet the requirements of permanence in subsection 24(1)(b) of the NDIS Act with regard to her PPS and recurring cellulitis.

22. Giving regard to the Applicant’s obesity, the Tribunal has considered the medical evidence provided to the Tribunal by Dr Timothy Dinihan (Dr Dinihan), a Respiratory and Sleep Physician. In his letter to Dr Azar dated 1 April 2022[36], Dr Dinihan recommended that the Applicant lose weight in order to remedy her obesity. In another letter dated 16 December 2022, Dr Dinihan stated that given the Applicant’s blood tests and recent lung function testing there were no other options to optimise her asthma really apart from assisting her in engaging in weight loss and further exercise, which he noted was difficult due to her complex comorbidities of health conditions[37]. 

    [36] See page 603 of the Agreed Joint Tender Bundle.

    [37] See page 599 of the Agreed Joint Tender Bundle.

23. The Tribunal, however, notes that there is no evidence regarding the complicity of the Applicant with the treatments prescribed and recommended by Dr Dinihan.

24. Based on the medical evidence of Dr Dinihan, it is apparent to the Tribunal that there are known, available, and appropriate evidence-based clinical, medical, or other treatments that would be likely to remedy the Applicant’s obesity. The Tribunal notes that obesity is a curable condition through available treatments, including exercising as recommended and prescribed by Dr Dinihan. Thus, the Tribunal finds on the evidence that the Applicant does not meet the requirements of permanence in subsection 24(1)(b) of the NDIS Act with regard to her obesity.

25. For completeness, as the Applicant’s chronic asthma is considered by the Tribunal not to be a disability for the purpose of subsection 24(1)(a) of the NDIS Act, the Tribunal finds on the evidence that the Applicant cannot meet the requirements of permanence with respect to her chronic asthma as required by subsection 24(1)(b) of the NDIS Act.

    Whether the Applicant’s impairments result in substantially reduced functional capacity to undertake one or more of the activities that involve communication, social interaction, learning, mobility, self-care, and self-management

26. The Tribunal must be satisfied under subsection 24(1)(c) of the NDIS Act that the Applicant’s PPS, recurring cellulitis, and obesity result in substantially reduced functional capacity to undertake one or more of the activities that involve communication, social interaction, learning, mobility, self-care, and self-management.

27. The Tribunal must also consider rule 5.8 of the Becoming a Participant Rules in determining whether or not the Applicant’s PPS, recurring cellulitis, and obesity result in substantially reduced functional capacity to undertake one or more of the activities that involve communication, social interaction, learning, mobility, self-care, and self-management. Importantly, the purpose of rule 5.8 of the Becoming a Participant Rules is to provide guidance to decision-makers on when a person’s impairment results in substantially reduced functional capacity to undertake one or more of the activities that involve communication, social interaction, learning, mobility, self-care, and self-management.

28. Rule 5.8 of the Becoming a Participant Rules states as follows:

    An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities—communication, social interaction, learning, mobility, self-care, self-management (see paragraph 5.1(c))—if its result is that:

    (2)the person is unable to participate effectively or completely in the activity, or to perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications; or

    (3)the person usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in the activity or to perform tasks or actions required to undertake or participate in the activity; or

    (4)the person is unable to participate in the activity or to perform tasks or actions required to undertake or participate in the activity, even with assistive technology, equipment, home modifications or assistance from another person. 

29. The rule in 5.8 of the Becoming a Participant Rules does not, however, negate the statutory task that the Tribunal must engage with under subsection 24(1)(c) of the NDIS Act when determining whether or not a person’s impairment(s) result in substantially reduced functional capacity to undertake one or more of the activities that involve communication, social interaction, learning, mobility, self-care, and self-management. This is the position Mortimer CJ took in the case of Mulligan v National Disability Insurance Agency[38] (Mulligan). At [77] of her judgment, her Honour observed as follows:

    I note that the Tribunal appears to have approached the concept of “substantially reduced functional capacity” in s 24(1)(c) as if it is exhaustively defined by r 5.8. That is not necessarily the case. As a deeming provision, r 5.8 has the effect of mandatorily including some people in the category of persons with substantially reduced functional capacity if the criteria in r 5.8(a), (b) or (c) are met. In that sense, a decision-maker must turn his or her mind to whether an applicant falls within the deeming effect of r 5.8. That is not necessarily the end of the exercise in terms of s 24(1)(c). The statutory task remains to consider whether a person’s functional capacity is substantially reduced in any of the six specified areas. Whether or not this constitutes a separate error by the Tribunal need not be determined, for it is clear that even within the terms of r 5.8, the Tribunal only examined para (a) and not para (b), although they were both relevant and relied upon by Mr Mulligan.

    [38] [2015] FCA 544 at [77].

30. Furthermore, in the case of Mulligan, Mortimer CJ, took the view that the fundamental role for decision-makers on determining whether or not a person’s impairments result in substantially reduced functional capacity to undertake one or more of the activities that involve communication, social interaction, learning, mobility, self-care, and self-management is to make an assessment about the level of impairment rather than in regard to the feasibility of improvement, when and if, assistance is given[39].

    [39] Ibid, at [55] to [56].

31. The Tribunal in the present case takes the view that the measurement of the Applicant’s functional capacity to undertake one or more of the activities that involve communication, social interaction, learning, mobility, self-care, and self-management should not be limited to her more difficult days. This is because there is a need for the Tribunal to take a balanced approach also giving regard to periods of more positive health. This is the position taken by Deputy President Humphries (DP Humphries) in the case of Madelaine & National Disability Insurance Agency[40] (Madelaine).

    [40] [2020] AATA 4025 at [76].

1. Reference to clause 8.3 of the Access Guidelines[41] is consistent with what the Tribunal must consider, i.e., whether any permanent impairment, or permanent impairments when considered together, result in substantially reduced functional capacity to undertake one or more of the activities as outlined in subsection 24(1)(c) of the NDIS Act.

   [41] See page 93 of the Access Guidelines at T10.

2. I now propose to determine whether or not the Applicant’s impairment(s) result in substantially reduced capacity to undertake one or more of the six activities that are specified in subsection 24(1)(c) of the NDIS Act.

   Communication

3. In clause 8.3 of the Access Guidelines, it is stated that communication includes being understood in spoken, written or sign language, understanding others and expressing needs and wants by gesture, speech or context appropriate to age. In the case of Madelaine, DP Humphries observed[42] that the activity of an individual’s communication functional capacity referred to in the Access Guideline is not considered to be exceptional or high level.

   [42] [2020] AATA 4025 at [79].

4. The Tribunal notes that the Applicant does not report any deficits in her verbal communication, and although the Applicant reported some difficulties in her written communication, she has developed strategies to assist her when she is unable to understand something that she has read or when she does not know how to spell a word.

5. The Tribunal notes that Karol Petrovska (Ms Petrovska), Occupational Therapist, records in her report of 5 August 2022[43] that the Applicant did not report to her any deficits in regard to her capacity to undertake activities that involve communication.

   [43] See page 73 of the Agreed Joint Tender Bundle.

6. Based on the expert evidence of Ms Petrovska and the evidence of the Applicant in regard to her functional capacity to undertake communication activities, the Tribunal finds on the evidence that the Applicant’s PPS, recurring cellulitis, chronic asthma, and obesity do not on the evidence result in a substantially reduced functional capacity within the meaning of subsection 24(1)(c)(i) of the NDIS Act.

   Social interaction

7. In clause 8.3 of the Access Guidelines, it is stated that social interaction includes making and keeping friends (or playing with children), interacting with the community, behaving within limits accepted by others, coping with feelings and emotions in a social context.

8. In her Impact Statement dated 9 December 2020[44], the Applicant stated that she sees her daughter at least once per week. She stated that her daughter usually visits her at her home and provides informal support by helping the Applicant with cleaning tasks and bringing shopping. The Applicant stated that she has a friend who visits her every second day in order to check on her welfare. Further, the Applicant stated that she attends church fortnightly and also goes camping and driving with her friends on a monthly basis. The Applicant stated that she also goes to larger shopping centres with friends.

   [44] See page 43 of the Agreed Joint Tender Bundle.

9. Despite some limitations to interact socially, it appears to the Tribunal that in regard to the Applicant’s functional capacity to undertake activities that involve social interaction, the Applicant’s PPS, recurring cellulitis, chronic asthma, and obesity do not on the evidence result in a substantially reduced functional capacity within the meaning of subsection 24(1)(c)(ii) of the NDIS Act.

   Learning

10. In clause 8.3 of the Access Guidelines, it is stated that learning includes understanding and remembering information, learning new things, practicing and using new skills. In the context of learning, the Access Guidelines foreshadow the cognitive capacity to absorb and apply new skills[45].

    [45] [2020] AATA 4025 at [93].

11. In her Impact Statement, the Applicant stated that she finished school at the age of 15 and then commenced working. She stated that she has not undertaken any further education since that time. The Applicant stated that she is usually able to solve any problems that may arise by asking for help.

12. The Tribunal notes that Ms Petrovska records in her report that there were no deficits in the regarding the Applicant’s capacity to learn. She observed that while the effects of low activity tolerance and fatigue could impact the Applicant’s concentration levels, there was no indication that she experienced any specific cognitive deficits, and she demonstrated a clear understanding throughout the assessment. She sustained concentration sufficiently through the duration of the assessment (1.5 hours) with no requirement for specific assistance.

13. Based on the expert evidence of Ms Petrovska and the evidence of the Applicant in regard to her functional capacity to undertake learning activities, the Tribunal finds on the evidence that the Applicant’s PPS, recurring cellulitis, chronic asthma, and obesity do not result in a substantially reduced functional capacity within the meaning of subsection 24(1)(c)(iii) of the NDIS Act.

    Mobility

14. In clause 8.3 of the Access Guidelines, it is stated that mobility means the ability of a person to move around the home (crawling/walking) to undertake ordinary activities of daily living, getting in and out of bed or a chair, leaving the home, moving about in the community, and performing other tasks requiring the use of limbs. As was observed in the case of Madelaine, the threshold requirement regarding mobility includes that a person has functional capacity where they are able to move around their home, get in and out of bed or a chair and mobilise around the community[46].

    [46] [2020] AATA 4025 at [104] to [106].

15. In her Impact Statement the Applicant stated that she is not able to walk to the shops due to shortness of breath, chronic arthritis in both knees which causes her pain. When at the shops, the Applicant stated that she needed to hold onto the trolley for support. The closest shops to the Applicant’s home are approximately 200 metres away up a hill. The Applicant stated that she has to drive her car to these shops because she is unable to walk the distance. She stated that she is able to walk to her letterbox which she estimates is approximately five metres from her front door.

16. The Applicant stated that she rates her knee pain as 8/10 at all times. She stated that she is not able to access her back or front yard due to the slope.

17. The Applicant stated that she does driver her car and has a disability parking sticker in order to park closer to the shops.

18. The Applicant stated that she has pain in her right leg whilst driving, which is due to a blood clot in her right leg. Thus, the Applicant will drive directly to her appointments and then directly home, without stopping for any reason.

19. The Applicant stated that she tends to stay at home rather than engaging in social/leisure activities which she attributes to pain. Furthermore, she stated that she stays at home in order to elevate her legs due to the pain in her groin caused by the clot. In her Impact Statement the Applicant stated that this pain prevents her from doing activities she enjoys, such as shopping, driving for leisure, sightseeing, visiting the beach for a swim and driving to the mountains for a meal as well as social gatherings. The Applicant stated that when she misses out on these social activities it makes her feel isolated.

20. The Applicant stated that she is able to catch a bus but once she gets off the bus, she finds it very difficult to walk to the shops.

21. The Applicant stated that she is able to walk around her house without the use of a walking aid. However, she stated that she has buzzing in her ear and difficulties with balance. The Applicant stated that she is unable to complete home maintenance tasks such as painting and cleaning.

22. The Applicant stated that she can get in and out of bed independently. She stated that she can get on and off the dining chairs at her home, however she has difficulty getting on and off her low lounge.

23. The Applicant stated that due to her limited mobility, pain and shortness of breath, her capacity to exercise is limited. However, she does try to visit the pool and has ambitions to engage in hydrotherapy sessions using the Chronic Disease Management Plan from her General Practitioner.

24. The Tribunal notes that Ms Petrovska records in her report that she observed the Applicant walking around her home and also her garden. The Applicant accessed both the front and rear entrances to her home. There was one step at the front and backdoor which the Applicant negotiated without difficulty. Furthermore, the Applicant did not use any walking aids during the assessment and stated to Ms Petrovska that she did not use any form of walking aids for any periods when mobilising inside or outside of her home.

25. The Tribunal notes that Ms Petrovska records in her report that the Applicant demonstrated the ability to reach shelves of the wall mounted cupboards in the kitchen. Moreover, she was able to reach into the lower shelf of the free-standing oven.

26. In terms of transfers the Tribunal notes that Ms Petrovska records in her report the completing chair transfers and bed transfers independently and without the assistance of another person. However, Ms Petrovska also noted in her report that the Applicant had hired a recliner chair which she uses as her sitting chair. She had also hired an electric adjustable high bed for additional height for easier, safer transfer. In addition, the Applicant demonstrated independent toilet transfers (using a door handle for support), shower transfers (using a shower screen for support) and car transfers.

27. The Tribunal notes that Ms Petrovska records in her report that the Applicant reported to her a walking tolerance of five to 10 minutes at a time before she required a postural break due to shortness of breath. The Applicant also reported trying to build up her physical tolerance to exercise, insofar as she has attempted a 30-minute walk in the area around her home.

28. The Tribunal notes that Ms Petrovska records in her report that although the Applicant did not use a walking aid, she stated to Ms Petrovska that she obtained a trolley when she visits shopping centres for support and to protect herself from crowds.

29. Given her driving and walking tolerance, the Tribunal notes that Ms Petrovska concluded in her report that the Applicant was able to access all essential community services including medical and community services, supermarket and for the purpose of visiting friends.

30. In conclusion, the Tribunal notes that Ms Petrovska records in her report that the Applicant has capacity to drive a motor vehicle and, moreover was able to access the local community which provided her with access to all essential local services and for the purposes of leisure (albeit the Applicant had a disability parking permit).

31. Whilst the Tribunal finds that there are limitations due to the Applicant’s PPS, recurring cellulitis, chronic asthma, and obesity, the Tribunal finds on the evidence that these do not result in a substantially reduced functional capacity within the meaning of subsection 24(1)(c)(iv) of the NDIS Act.

    Self-care

32. In clause 8.3 of the Access Guidelines, it is stated that self-care means activities related to personal care, hygiene, grooming, and feeding oneself, including showering, bathing, dressing, eating, toileting, grooming, caring for own health care needs.

33. In her Impact Statement, the Applicant stated that she does her own cooking and washing. She stated that her daughter does all of house cleaning due to the cleaning products exacerbating the symptoms of the Applicant’s asthma.

34. The Applicant stated that she arranges for someone else to mow her front and back lawns and a friend puts the sprinkler on.

    88.The Applicant stated that her shower has a tile hob and is fairly small. She finds it hard to stand in the shower because she gets shortness of breath. When she washes her hair, she sits on the shower hob to catch her breath, which she finds difficult to get back up due to knee pain. I hold the wall and shower screen for support to get up. The Applicant stated that this is dangerous because the surface is slippery. She stated that she has placed a shower chair in her shower recess but due to the limited space, she has had to position the chair with her back to the taps, which makes it hard to control the water. The Applicant stated that she has to stand up to turn the water on and off.

    89.The Tribunal notes that Ms Petrovska records in her report that the Applicant can complete independent toilet transfers (albeit she relies on the door handle to come to standing) and was regarded by the Occupational Therapist as independent in toileting.

    90.The Tribunal notes that Ms Petrovska records in her report that the Applicant reportedly receives some assistance for personal care tasks on days where she was feeling fatigued or unwell but demonstrated the ability to transfer to and from the shower recess (albeit she relied on the glass shower screen) when stepping in to sit on the rented shower stool.

    91.The Tribunal notes that Ms Petrovska records in her report that the Applicant was independent in dressing and undressing herself and had modified her dressing technique to include loose fitted clothing.

    92.The Tribunal notes that Ms Petrovska records in her report that the Applicant was independent in cleaning her teeth, washing her face and brushing her hair.

    93.The Tribunal notes that Ms Petrovska records in her report that the Applicant’s capacity for meal preparation reportedly varied according to her pain levels which were usually worse by the end of the day. She used pre-prepared frozen meals from the supermarket to cut down on meal preparation time but was considered independent in her ability to prepare a meal and her access to a nutritious diet by Ms Petrovska.

    94.The Tribunal notes that Ms Petrovska records in her report that the Applicant completed her grocery shopping independently but receives some assistance from a carer with the loading and unloading of shopping bags.

    95.The Tribunal notes that Ms Petrovska records in her report that the Applicant was regarded by Ms Petrovska as independent in light laundry tasks. She demonstrated access to the washing machine during the assessment and stated that her carer assisted with carrying wet laundry out to the clothesline, to assist with hanging.

    96.The Tribunal notes that Ms Petrovska records in her report that the Applicant was independent in terms of washing up and kitchen cleaning.

    97.The Tribunal notes that Ms Petrovska records in her report that the Applicant received assistance with heavier house cleaning from her carer and self-funded lawn mowing and yard care.

    98.While the evidence shows the Applicant does not clean her house by herself, and there are some limitations in her capacity to undertake self-care, it was contended for the Respondent that the Tribunal would find that the Applicant has some reduced functional capacity with respect to self-care, but that the limitations, falls short of the requisite substantially reduced functional capacity. In making this contention, the Respondent relies on the position reached by DP Humphries in the case of Madelaine. In the case of Madelaine, the Applicant engaged the services of an external provider to undertake heavy cleaning.

    99.Furthermore, in the case of FBJV, Member Frost held that a person may not be deemed to have a substantially reduced functional capacity if they can shower, dress, toilet, groom and feed themselves independently, even if they sometimes need assistance or use adaptive techniques[47].

    [47] [2021] AATA 913 at [154].

    100.Whilst the Tribunal finds that there are limitations to the Applicant’s capacity to undertake cleaning and self-care activities as a result of her PPS, recurring cellulitis, chronic asthma, and obesity, the Tribunal finds on the evidence that these do not result in a substantially reduced functional capacity within the meaning of subsection 24(1)(c)(v) of the NDIS Act.

    Self-management

    101.In clause 8.3 of the Access Guidelines, it is stated that self-management means the cognitive capacity to organise one’s life, to plan and make decisions, and to take responsibility for oneself, including completing daily tasks, making decisions, problem solving and managing finances.

    102.In her Impact Statement, the Applicant started that she has the capacity to manage her own finances, i.e. through paying her own bills and managing a bank account. Also, she has the capacity to remember to take her medications and make decisions about her life.

    103.The Tribunal notes that Ms Petrovska reached the conclusion in her report that the Applicant did not have any specific limitations with her planning, problem solving or making decisions. However, Ms Petrovska also noted that the Applicant did have reduced concentration levels and experienced severe fatigue. Notwithstanding this, the Applicant was able to make arrangements in regard to her own health and wellbeing as required. The Tribunal notes that in the report of Ms Petrovska that the Applicant had no deficits in this domain.

    104.Whilst the Tribunal finds that there are some limitations to the Applicant’s capacity to undertake self-management activities as a result of her PPS, recurring cellulitis, chronic asthma, and obesity, the Tribunal finds on the evidence that these do not result in a substantially reduced functional capacity within the meaning of subsection 24(1)(c)(vi) of the NDIS Act.

    Whether the impairments affect the Applicant’s capacity for social or economic participation

35. There is no evidence before the Tribunal that the Applicant’s impairments affect her capacity for social or economic participation. Thus, the Tribunal finds that the Applicant does not meet the requirements in subsection 24(1)(d) of the NDIS Act.

    Whether the Applicant is likely to require the support under the National Disability Insurance Scheme for her lifetime

36. As the Tribunal has found above that the Applicant’s PPS, recurring cellulitis, chronic asthma, and obesity do not result in a substantially reduced functional capacity to undertake any of the activities specified in subsection 24(1)(c) of the NDIS Act, the Tribunal does not consider that the Applicant is likely to require support under the NDIS for her lifetime for the purpose of subsection 24(1)(e) of the NDIS Act.

37. In any event, the Applicant’s support needs arise out her health conditions. The management and treatment of these conditions are most effectively provided through the health system. The Tribunal notes that local area co-ordinators are available to assist individuals who are not eligible for the NDIS linked with health system. The Tribunal further notes that the Applicant is already receiving some assistance from the WSLHD Integrated and Community Health in Blacktown.

    CONSIDERATION OF THE EARLY INTERVENTION REQUIREMENTS

38. As I have found that the Applicant is not a person who meets the disability requirements as set out in section 24 of the NDIS Act to become a participant in the NDIS, I must consider whether the Applicant can become a participant in the NDIS on the basis that she is a person who meets the early intervention requirements as set out in section 25 of the NDIS Act.

    Whether the Applicant’s impairments are permanent or are likely to be permanent

39. The Tribunal must be satisfied that the Applicant has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent as set out in subsection 25(1)(a) of the NDIS Act.

40. For the reasons outlined above, the Tribunal is not satisfied that the Applicant’s PPS, recurring cellulitis, chronic asthma, and obesity are permanent impairments, or are likely to be permanent, the Applicant cannot meet the early intervention requirements as set out in subsection 25(1)(a) of the NDIS Act.

    Whether the provision of early intervention supports for the Applicant is likely to benefit the Applicant by reducing her future needs for supports in relation to disability

1. The Tribunal must be satisfied that the provision of early intervention supports for the Applicant is likely to benefit her by reducing the person's future needs for supports in relation to disability as set out in subsection 25(1)(b) and (c) of the NDIS Act.

2. Whilst the Applicant’s disabilities are clearly complex and long and extensive, they do not meet the criteria in section 25 of the NDIS Act or fall within the criteria for early intervention. This is because the early intervention must provide amelioration at the earliest possible stage. In the Applicant’s case her disability is longstanding and thus any intervention cannot possibly be regarded as early intervention or beneficial.

3. Therefore, the Tribunal finds on the evidence that the Applicant’s disabilities do not meet the requirements of subsection 25(1)(b) and (c) of the NDIS Act.

   Whether the early intervention support for the Applicant is not appropriately funded or provided through the National Disability Insurance Scheme

4. The Tribunal must be satisfied that early intervention support for the Applicant us not most appropriately funded or provided through the NDIS as set out in subsection 25(3) of the NDIS Act.

5. As the Tribunal has found that the Applicant does not meet the requirements of subsection 25(1)(b) and (c) of the NDIS Act that this in turn demonstrates that the Applicant cannot meet the requirements of subsection 25(3) of the NDIS Act and therefore there is no possible pathway to early intervention. This is because the Applicant is unable to show how early intervention is an appropriate mechanism of support.

   CONCLUSION

6. As the Tribunal has concluded that the Applicant is not a person who meets the access criteria as set out in section 21 of the NDIS Act to become a participant in the NDIS, the Tribunal must affirm the decision under review pursuant to subsection 43(1)(a) of the AAT Act.

   DECISION

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

I certify that the preceding one hundred and seventeen (117) paragraphs are a true copy of the reasons for the decision herein of Member P Smith

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

Associate

Dated: 20 October 2023

Date(s) of hearing:	Hearing on the papers
Date final submissions received:	5 May 2023
Advocate for the Applicant:	Ms N Ross, non-legal advocate
Solicitor for the Respondent:	Ms L Houlihan, HWL Ebsworth Lawyers