MKYV and National Disability Insurance Agency

MKYV and National Disability Insurance Agency [2022] AATA 115 (31 January 2022)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number: 2019/7932
Re:MKYV
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Member Buxton
Date:31 January 2022
Place:Brisbane

The Tribunal sets aside the decision under review and substitutes a decision that the Applicant meets the disability criteria in sections 24 of the National Disability Insurance Scheme Act 2013 (Cth).
.............................[SGD]....................................
Member Buxton
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – access criteria – whether applicant meets disability requirement – obesity – chronic pain – depression – degenerative conditions – whether impairments are, or are likely to be, permanent – whether impairments substantially reduce functional capacity – whether applicant likely to require support under the National Disability Insurance Scheme for lifetime – decision under review set aside and substituted.
Legislation
National Disability Insurance Scheme Act 2013 (Cth) ss 3, 4, 21, 22, 23 24, 25, 100, 209
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) rr 2.5, 5.4, 5.5, 5.6 5.7
Cases
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634
Mulligan v NDIA [2015] FCA 544; (2015) 233 FCR 201
Schwass and NDIA [2019] AATA 28
Secondary Materials
National Disability Insurance Agency, Access to the NDIS Operational Guidelines, (Web Page) < Chapters 1, 8
United Nations, Convention on the Rights of Persons with Disabilities, opened for signature (30 May 2007), [2008] ATS 12 (entered into force 3 May 2008).
REASONS FOR DECISION
Member Buxton
31 January 2022
BACKGROUND

In this application MKYV (‘the Applicant’) seeks review of a decision of the National Disability Insurance Agency (‘the Respondent’) declining his request for access to the National Disability Insurance Scheme (‘the NDIS’).
The Applicant is aged in his late 50’s and lives in regional Victoria with his wife. On 7 November 2018 the Applicant made a request to become a participant in the NDIS.[1] In his request for access form, the Applicant listed the following disabilities relied upon in support of his request for access to the NDIS: major depression, chronic pain (severe, ongoing), scoliosis spine, disc prolapse and degeneration, bilateral hip osteoarthritis, anxiety and diffuse idiopathic skeletal hyperostosis (‘DISH’).[2] In the course of this proceeding, the Applicant has indicated that he seeks access to the NDIS on the basis of his chronic pain and psychiatric condition.
[1] Exhibit 2, T-documents, T3.
[2] Ibid, Part F.
The Applicant’s access request was declined on 5 December 2018[3] and he sought internal review of that decision. Following a review under subsection 100(6) of the National Disability Insurance Scheme Act 2013 (Cth) (‘the Act’), a delegate affirmed the earlier decision on 16 September 2019.[4] On 28 November 2019 the Applicant applied to the Tribunal for review.[5] He required, and was granted, an extension of time within which to do so. The Applicant contends that he meets the access criteria prescribed under section 21 of the Act.
[3]     Ibid, T4.
[4]     Ibid, T2.
[5]     Ibid, T1.
The Respondent was satisfied that the Applicant has met the age and residency criteria outlined in sections 22 and 23 of the Act.[6] The issue arising in this case is whether the Applicant satisfies the “disability requirements” under section 24 of the Act. The Applicant does not submit that he meets the “early intervention requirements” under section 25 of the Act and it is not, therefore, necessary to further consider those provisions.
[6] National Disability Insurance Scheme Act 2013 (Cth), para 21(1)(a) and (b), ss 22 and 23.
There are five mandatory requirements that the Applicant must satisfy in order for him to meet the “disability requirements” as set out in paragraphs 24(1)(a) to (e) of the Act (reproduced below). The Respondent has conceded that the Applicant meets some, but not all, of the relevant criteria in relation to his chronic pain and psychiatric condition.[7] The Respondent accepts that those conditions are impairments to which his disability is attributable and therefore that the Applicant has met the requirements in paragraphs 24(1)(a) of the Act.[8] The Respondent further accept that those impairments affect the Applicant’s capacity for social or economic participation and that he has therefore met the requirements in paragraph 24(1)(d) of the Act.[9]
[7]     Exhibit 1, H1, para 44 and 45.
[8]     Ibid, para 44.
[9]     Ibid.
The Respondent did not make substantive submissions about the evidence relating to whether the Applicant’s impairments have resulted in substantially reduced functional capacity to undertake activities in a number of the domains set out in paragraph 24(1)(c) of the Act. This was identified by the Respondent as an “issue” for determination by the Tribunal[10] but the Respondent submitted during the hearing that findings under paragraphs 24(1)(c) and 24(1)(e) of the Act would “flow” or “follow” from the Tribunal’s findings with respect to permanence.[11]
[10] Ibid, para 44.2.
[11] Transcript P-6 to P-8; Transcript P-203, lines 10-20.
The Respondent contended that the Applicant did not satisfy the requirements as set out in paragraph 24(1)(b) of the Act as he has not demonstrated that his impairments are, or are likely to be, permanent.[12] The Respondent submitted that it follows that the Applicant has not met the criteria in paragraph 24(1)(e) of the Act for his impairments since, because they are not permanent, he has not demonstrated that he is likely to require support under the NDIS for his lifetime.[13]
[12] Exhibit 1, H1, para 44.1.
[13] Ibid, para 44.3.
The review application was heard by the Tribunal in Brisbane, utilising the electronic platform Microsoft Teams, across 6, 7 and 8 December 2021. During the hearing the Applicant was represented by Ms Dhanji of counsel and the Respondent was represented by Ms Dowsett of counsel. In arriving at a decision, the Tribunal has considered various documents, including reports from medical and allied health specialist, together with the evidence of the parties and their written submissions.
RELEVANT LEGISLATION
The objects and principles in sections 3 and 4 of the Act give guidance on the interpretation of the statute. In particular, the objects of the 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.[14] Paragraph 3(3)(b) of the 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.
[14] 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 Act. Relevant to this matter, the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (‘the Participant Rules’) form part of the legislative scheme. Operational Guidelines written by the CEO of the Respondent also assist staff to make decisions in accordance with the Act. Operational Guidelines represent government policy and should be applied by the Tribunal unless there is good reason not to do so.[15] The relevant Operational Guideline is the Operational Guideline – Access to the NDIS (‘the Access Operational Guidelines’). The stated purpose of the Access Operation Guidelines are to provide guidance in determining whether the access criteria are met and “to ensure that the NDIA focus is centered on people with disability living in Australia with the most unmet need intended to benefit from the support under the NDIS”.[16] Chapter 8 of the Access Operational Guidelines relates to the disability requirements.
[15] Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[1979] AATA 179; (1979) 2 ALD 634.
[16] Access Operation Guidelines, Chapter 1.
The access criteria
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 Act:
21 When a person meets the access criteria
(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).
As there is no dispute that the Applicant meets the age requirements in section 22 of the Act and the residence requirements in section 23 of the Act, and no contention that he meets the criteria in section 25 of the Act, the issue for determination by the Tribunal is whether the Applicant meets the access criteria that are set out in section 24 of the Act.
Section 24 of the Act states:
24 Disability requirements
(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 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:
(iii)   communication;
(iv)   social interaction;
(v)    learning;
(vi)   mobility;
(vii)     self‑care;
(viii)    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.
The criteria set out in each of subsections 24(1) of the Act are cumulative, meaning all of the requirements must be met in order for a person to become a participant in the NDIS.
THE APPLICANT’S CONTENTIONS
The Applicant submitted that he was a person who met the disability requirements under sections 24 of the Act.[17] The Applicant submitted that the collective impact of his disabilities upon his functional impairment led to the conclusion that he had impairments that were sufficiently significant, that were permanent, and for which he was likely to require lifetime support from the NDIS.[18]
[17] Exhibit 1, H2.
[18] Ibid, para 30.
The Applicant noted that the statutory test requires that an impairment is likely to be permanent.[19] The Applicant submitted that this is a lower threshold then a requirement that he establish that his condition is permanent.[20] The Applicant submitted that the task for the Tribunal is one of assessing permanence at a level of probability, as opposed to establishing permanence as a matter of certainty.[21]
[19]    Ibid, para 32.
[20]    Ibid.
[21]    Ibid.
The Applicant submitted that he has both chronic pain and a major depressive disorder and that either separately or together these impairments meet the section 24 criteria.[22] The Applicant submitted that he has been diagnosed with a major depressive disorder that is permanent.[23] The Applicant submitted that there is little or no prospect of an improvement in his pain condition or weight sufficient to remedy his mental health condition.[24] Given this was the only potential prospect for treatment that was identified that might remedy the Applicant’s impairment, the Applicant contends that his mental health condition should be considered permanent.[25]
[22]    Ibid, para 30.
[23]    Ibid, para 44.
[24]    Ibid.
[25]    Ibid.
The further Applicant contends that his chronic pain condition should be considered permanent, or likely to be permanent, on the basis that there is no treatment that, in the Applicant’s case, would be likely to remedy the impairment.[26]
[26] Ibid, para 49.
THE RESPONDENT’S CONTENTIONS
The Respondent submitted that the decision under review ought to be affirmed as the disability requirements had not been met in this case.
The Respondent accepted that the Applicant met the requirements of paragraph 24(1)(a) of the Act, as they accept that the Applicant has a disability attributable to the following impairments:[27]
(a)Chronic pain; and
(b)Psychiatric condition.
[27] Exhibit 1, H1, para 44 and 45.
Whilst there are two competing diagnoses of the Applicant’s psychiatric condition (either adjustment disorder with depressed mood or major depressive disorder), the Respondent submitted that it was relevant to consider the impairment (rather than the diagnosis)[28] and determine if it meets the statutory criteria for permanence. As to paragraph 24(1)(b) of the Act, the Respondent submitted that permanence of the Applicant’s impairments was the key or central issue before the Tribunal. In the Respondent’s opening statement, counsel submitted, “the issue … boils down to … are the impairments relied upon permanent”.[29]
[28] Transcript, P-183, lines 31-33.
[29] Ibid, P-12, lines 6-8.
Relevantly, the Participant Rules state:[30]
When is an impairment permanent or likely to be permanent for the disability requirements?
5.4 An 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.
5.6 An impairment may require medical treatment and review before a determination can be made about whether the impairment is permanent or likely to be permanent. The impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated (even though the impairment may continue to be treated and reviewed after this has been demonstrated).
5.7 If an impairment is of a degenerative nature, the impairment is, or is likely to be, permanent if medical or other treatment would not, or would be unlikely to, improve the condition.
[30] Participant Rules, rr 5.4-5.7.
The Respondent submitted that, accordingly, if there is any known, available and appropriate treatment available, the prospective participant should generally undergo that treatment before a determination is made on permanency.[31]
[31] Transcript, P-181, lines 15-19; P-184, lines 45-46; P-185, lines 1-6.
The nature of the relevant treatment contended for by the Respondent, before the Tribunal could be satisfied on the issue of permanence, is weight loss.[32] The Respondent does not expressly submit that the Applicant must first undertake surgery for weight reduction before his application for access to the scheme may proceed. Rather, the Respondent submits that the Applicant has received recommendations for various weight loss strategies which he has not adequately addressed and that he should first be assessed by a multi-disciplinary team to determine if he is a candidate for weight loss surgery.[33] The Tribunal understands the effect of the Respondent’s submission to be that, only when weight loss surgery has been excluded as a treatment for the Applicant, and he has fully explored all other weight loss recommendations, could his condition be determined to be permanent. Further, as the Applicant’s chronic pain is a symptom of degenerative conditions he suffers, the Tribunal cannot be positively satisfied that those degenerative conditions, and therefore the pain that they cause, are unlikely to improve with further medical or other treatment (namely, weight loss).[34] The Respondent submitted that the Tribunal must be positively satisfied that the criteria in section 24 of the Act are met.[35] The Respondent submitted that the available evidence does not support a conclusion that all known clinical, medical or other treatments for obesity have been considered and either meaningfully attempted or rejected as not appropriate for the Applicant.[36]
[32]    Ibid, P-183, lines 21-27; P-184, lines 3-32.
[33]    Ibid, P-201, lines 40-45.
[34]    Exhibit 1, H1, para 59.
[35]    Schwass and National Disability Insurance Agency (2019) 167 ALD 104, at [25], citing Mulligan v National Disability Insurance Agency (‘Mulligan’) (2015) 233 FCR 201, at [55].
[36]    Exhibit 1, H1, para 55.
The Respondent’s case is that there is insufficient evidence to establish that the Applicant meets the criteria in paragraph 24(1)(b) of the Act for permanency on the basis that there is insufficient evidence that all treatments have been explored and exhausted by the Applicant for each of his impairments having regard to paragraph 24(1)(b) of the Act and Participant Rules 5.4 and 5.7.
EVIDENCE
The Applicant’s evidence
The Applicant prepared a statement of his lived experience, dated 11 March 2021,[37] focussing largely on his functional impairment, which he affirmed during the hearing. He also gave oral evidence during the hearing.
[37] Exhibit 3, A28.
The Applicant provided substantial background history as to the aetiology of both his chronic pain and his depression. He reported a history of trauma from the age of eight years and the development of his first depressive episode at around age 20.[38]
[38] Transcript, P-33, lines 42-45.
The following are further key aspects of the Applicant’s evidence:
(a)The Applicant had a number of physical employment positions during his teens, 20’s and 30’s, including working for an auto parts supplier at various branches in Melbourne and Adelaide, at a bakery and undertaking plaster carting.[39] He then worked in sales, involving extensive driving and some door to door walking.[40]
(b)The Applicant keenly pursued weightlifting in his 20’s. He has, at times, also been a keen swimmer.[41]
(c)In his late 20’s the Applicant first experience an episode of pain following a squash game. He reported to the doctor who ordered x-rays. The doctor told him at the time that he had disc degeneration.[42]
(d)The Applicant later worked as a swimming instructor during his 30’s and then began working as a guitar teacher at aged 38 or 39.[43]
(e)The Applicant’s weight fluctuated during the entirety of this period, being sometimes as low as 80kg and sometimes as high as 120kg. He used exercised (swimming) to manage this weight at times.[44]
(f)The Applicant enjoyed working as a guitar teacher and did so for about a decade. However, he experienced increasing back pain as a result of sitting on small chairs and leaning over to teach. The Applicant was increasingly unreliable as he would not work when in pain. Eventually, he closed the business and ceased work.[45]
[39]    Ibid, P-15 to P-18.
[40]    Ibid, P-22, lines 24-26.
[41]    Ibid, P-18, lines 2-10; P-22 lines 35-44.
[42]    Ibid, P-18, lines 25-34; P19, lines 18-19.
[43]    Ibid, P-20, lines 35-40.
[44]    Ibid, P-24, lines 9-36.
[45]    Ibid, P-24, line 43; P-25, line 17.

The Applicant stated that his increased pain leading him to cease work was not the result of increased weight.[46] He gave evidence that he had pain in the past when had had been swimming, and that he had pain when he weighed 80kg.[47] He described the pain at the time he was teaching swimming as “like I had a brick in the middle of my back”.[48] Responding to whether he thought weight loss would assist him: “Probably, but it would have to be slowly. I think my biggest problem at the moment is my psychiatric…”[49].
[46]    Ibid , P-25, lines 46-47.
[47]    Ibid, P-26, lines 1-15.
[48]    Ibid, P-25, line 28; P-26, line 15.
[49]    Ibid, P-26, lines 40-41.
The Applicant was prepared to accept that his weight was 123kg when referred to hospital records from January 2009 and that it was 154kg when he had reported it to a physiotherapist at a specialist clinic for the management of Osteoarthritis at Eastern Health in July 2015.[50] The effect of his evidence was that he did not have a specific recall of his various weights at various times, but he did the best to recall these facts when asked.
[50] Ibid, P-35, line 35-47; P-36, lines 1-20.
The Applicant stated during the hearing that he understood that bariatric surgery was a procedure for weight loss.[51] He stated that he did not recall discussing the procedure with Dr Kumar, but he did recall discussions with different pain management doctors, including at Eastern Health.[52] The Applicant was emphatic in his rejection of the surgical option for him during cross examination: [53]
I don't plan to. I refuse to. I would rather, if I'm going to lose this weight, I'm going to lose it my way. So, I know how much pain I'm in and I can stop when I'm in that amount of pain. I know what I need to do, I've done it before and I refuse to go and have an operation for this that could put me in any jeopardy whatsoever. And also, with my weight, you can't tell me that it's a safe operation.
[51]    Ibid, P-45, lines 36-38.
[52]    Ibid, P-45, line 40-46.
[53]    Ibid, P-46, lines 29-35.
The Applicant provided a variety of reasons for his refusal to engage in bariatric surgery. He stated that his partner had undertaken lap-band surgery and suffered complications.[54] He also stated that he did not consider that the surgery would address his pain, and he hoped to be considered for other therapies in the future that may address the pain.[55] He considered that his barrier to weight loss was psychological.[56]
[54]    Ibid, P-46, lines 1-10.
[55]    Ibid, P-47, lines 16-24.
[56]    Ibid, P-48, lines 30-40.
Applicant’s wife
The Applicant’s wife prepared a carer statement dated 29 November 2021[57] and gave brief oral evidence consistent with her statement. Her evidence was mainly focussed on the functional impairments she had observed and the chronology of these. The Applicant’s wife also explained that she cares for the Applicant and has been assisting him, as best she can, with healthy eating and he attempts to walk regularly within the limits of his pain.
[57] Exhibit 12, H34.
The Tribunal notes that the Applicant’s wife suffers from a variety of medical conditions and accepts that the burden for the Applicant’s care has fallen almost exclusively to her.
Dr Song
Dr Song, Aged Care Registrar, saw the Applicant on 3 April 2012 at the chronic pain management clinic.[58] In a letter of the same date to Dr Murray, Dr Song noted that the Applicant had presented with chronic back pain and that he also had problems with his weight (146 kgs).[59] Dr Song noted that the Applicant had been attending the Yarra Ranges Health physiotherapy program but had missed a few appointments due to work commitments.[60] At that time, he was working part-time as a guitar teacher. Dr Song stated:[61]
… I have discussed with our pain management team here and we think [the Applicant] will need education in terms of opioid medications, and also the importance of attending his physio program regularly. If he agrees to have a trial of non-opioid analgesics and attend our program regularly, we will review him again in our clinic in about two to three months time to monitor his progress. …
[58]    Exhibit 3, A2.
[59]    Ibid.
[60]    Ibid.
[61]    Ibid.
Dr Kumar
The Applicant’s General Practitioner (‘GP’), Dr Kumar, prepared a report dated 30 September 2020[62] and gave evidence during the hearing. Various extracts from his notes were admitted into evidence. Dr Kumar has been the Applicant’s GP since 2014 and has access to the records of his previous GP from the same practice dating back to 2005. He gave evidence using a combination of his recall and accessing some information from his electronic records and where he did so he informed the Tribunal of this.
[62] Exhibit 3, A27.
The Tribunal considered that Dr Kumar was well-placed to provide opinion evidence within his general practice specialty and observed that he did so impartially and with careful regard to the recorded facts and his long-term understanding of the Applicant’s health issues. Where the medical evidence diverged, and so far as opinions were given by Dr Kumar within his area of specialty, the Tribunal found the opinions of Dr Kumar to be compelling, and of greater assistance to the Tribunal than evidence given following various assessments of the Applicant provided by various experts for the purpose of this review.
Dr Kumar gave oral evidence during the hearing to the effect that the Applicant’s chronic pain was caused by degenerative arthritis of the spine and degenerative osteoarthritis of the hips.[63] He has suffered a prolapsed disc and earlier x-rays showed degenerative disc disease of the cervical, thoracic and lumbar area.[64]
[63] Transcript, P-54, lines 20-24,
[64] Ibid, P-56, lines 16-23.
Dr Kumar confirmed that the Applicant’s medical history held by the GP practice has been as follows:
(a)Disc prolapse Oct 2005;[65]
(b)Osteoarthritis of the spine July 2008;[66] and
(c)Osteoarthritis of the hips, additionally to the spine October 2014.[67]
[65]    Ibid, P-56, lines 13-14.
[66]    Ibid, P-58, lines 20-22.
[67]    Ibid, P-58, lines 24-37.
Dr Kumar stated that these conditions manifested, for the Applicant, in chronic pain and limited mobility and are degenerative, in that they will continue to worsen.[68] Dr Kumar noted that the applicant also has depression and anxiety and is obese. He stated that these conditions can arise secondary to chronic pain.[69]
[68] Ibid, P-59, lines 31-40.
[69] Ibid, P-64, lines 41-47; P-65, lines 1-10.
Dr Kumar stated that the Applicant had tried all recommended treatments for his chronic pain including activity, anti-inflammatories, pain killers, muscle relaxants, physiotherapy and injections.[70] Dr Kumar stated that he was considered for surgery in about 2014 or 2015 and recalled that the Applicant was told he was not a good candidate for surgery.[71] Dr Kumar stated that the Applicant’s obesity, hypertension and asthma would have been contra-indicators for surgery.[72] He did not consider that the Applicant has received a formal diagnosis of DISH.[73]
[70]    Ibid, P-59, lines 46-47; P-60, lines 1-22.
[71]    Ibid, P-60, lines 24-30 and 42-46.
[72]    Ibid, P-60, lines 24-30 and 42-46.
[73]    Ibid, P-61, lines 20-27.
Dr Kumar considered that the Applicant’s chronic pain was permanent and that there were no treatments he had not yet tried that would substantially reduce his pain.[74] He noted that the Applicant had been referred to the Eastern Health Specialist Clinic, including to undertake a pain management programme, on a number of occasions.[75]
[74] Ibid, P-62, lines 23-39.
[75] Ibid, P-67.
The Applicant attended the Eastern Health Specialist Clinic on 21 July 2015.[76] In a letter to Dr Kumar following that attendance, Jason Wallis, APA Musculoskeletal Physiotherapist, noted that the Applicant presented with chronic spinal and hip related pain, noting:[77]
After long drives, guitar teaching for 2-3 hours increases back, buttock and leg pain levels to severe levels and days to settle. Difficulty walking – walks slowly. No aids. Pain levels worse with depression and anxiety.
[76] Exhibit 3, A4.
[77] Ibid.
Dr Kumar explained the Applicant’s pain relief regime over time and noted that he has increased his intake of both Endone and Panedine forte since 2019 and continues to take Valium and Kapanol.[78] He stated that he has, at times, checked the Applicants blood for any deficiencies or markers and continues to monitor this.
[78] Exhibit 3, A18; Transcript, P-66, lines 1-47; P-67, lines 1-5.
Dr Kumar opined that he did not consider the applicant to engage in avoidant behaviour. Over time, he had observed the Applicant to attempt a range of physical activities but he is genuinely limited in his pain and by the complexity of his other conditions.[79]
[79] Transcript, P-73, lines 35-47; P-74, lines 1-20.
Dr Kumar accepted only partially the proposition put to him that the weight a patient is carrying is a significant factor in orthopaedic issues. He stated: [80]
…so, there have been lots of studies done over the years which do show that if you've got weight issues you are going to have some pain. However, if you lose weight, you may - what I'm trying - so, if you lose weight, you may have some relief from pain but it's not going to be absolutely no pain. In terms of [the Applicant], he has got degenerative arthritis in his spine and in his hips. So, losing weight, it may improve his symptoms by 10 per cent, I would think. I mean if you look at the studies done - I can't recall off the top of my head but most of the studies would show that there have been some improvement in pain but it will not relieve his pain completely. Then he has got a background degenerative condition which is getting worse. So, I would believe that the pain will get worse, irrespective of whether his weight was less or more. If he did not have a degenerative condition, I would say, yes, the chances of him improving would probably be significantly higher. But in [the Applicant’s] case, I don't believe that is the case.
[80] Ibid, P-80, lines 6-23.
Dr Kumar noted the connection between pain, depression and obesity, but stated that the aetiology of the pain was relevant. Here, he stated, the Applicant’s pain predated his weight gain and he had a long history of anxiety and depression.[81] He stated:[82]
… while these three conditions are interlinked and it's a vicious cycle, I believe in terms of [the Applicant] the sequence of events would probably be more (1) degenerative arthritis which led him to - that limited his mobility, which would have made his obesity worse. Then as a consequence, because of the pain and obesity, his anxiety and depression got worse as well.
[81] Ibid, P-80, lines 20-38.
[82] Ibid, P-81, lines 10-15.
Dr Kumar noted that the Applicant’s depression has been treated with therapy from psychologists and, when available, a psychiatrist and through medication. He further noted that the Applicant has recently been diagnosed with diabetes.[83] Dr Kumar stated that osteoarthritis was the cause of the Applicant’s pain. He stated:[84]
So if I remember that he was still in pain when his weight was, I think, 115 or 120, and he still remains in chronic pain and his weight is now 160 plus - 169 on the last time. So while it will have an impact on - it may increase it a little bit, I do not believe that I can say that obesity is causing the pain.
[83] Ibid, P-65, lines 40-41.
[84] Ibid, P-85, lines 25-29.
Dr Kumar opined that neither the Applicant’s chronic pain nor his depression were caused by his obesity and that no treatments existed that were likely to remedy either condition.[85]
[85] Ibid, P-85, lines 24-36.
Mr Wallis
Mr Wallis, Physiotherapist, noted in his letter, that the Applicant was previously managed at Lilydale pain clinic although did not complete due to work commitments.[86] Mr Wallis outlined a management plan for the Applicant, which included exercise to increase lumbar flexibility and a gradual walking program starting at ten minutes per day, changing his chair, referral to a communication health service for appointments with a dietician and physiotherapist, consideration of pain management at Lilydale “but patient preference was Healesville only”.[87] A written management plan was provided.
[86] Exhibit 3, A4.
[87] Ibid.
Dr Muthusamy
The Applicant was seen by Dr Muthusamy, Pain Management Registrar, on 1 July 2016.[88] In a letter dated 6 July 2016, Dr Muthusamy noted that the Applicant described a quite significant limitation from pain. Dr Muthusamy provided a plan, which includes:[89]
He will be referred to the Pain Management Program at Yarra Ranges Health for Psychology, Physiotherapy and Occupational Therapy – while waiting for this, please refer him to Community Psychologist as part of his [mental health care plan].
[88] Exhibit 3, A5.
[89] Ibid.
A Care Plan dated 2 March 2017 contained suggested goals and proposed a program for the Applicant which included attendance at an eight week, two days per week, group pain management program, a regular walking program and consideration of attending a community psychologist with experience in pain management.[90]
[90] Exhibit 3, A8.
Dr Ooi
In a letter to Dr Kumar dated 16 March 2017, Dr Ooi, orthopaedic surgeon, reported upon a consultation with the Applicant. Dr Ooi stated:[91]
… I also advised him that the best intervention for him is to embark on weight loss therapy. I also acknowledge that this going to be a very difficult problem. On top of that, [the Applicant] is currently seeing the Pain Team and which they are really trying to help him out. He has also recently commenced physiotherapy exercises with the aim of strengthening his back muscles and I think that should give him some relief. I do not think that I have anything to offer in terms of intervention for his hips. I also have mentioned that he should probably have regular discussions with you on how to tackle his weight loss and this would likely involve a multidisciplinary approach including exercise, dietary advice and potentially consider bariatric surgery in the future.
[91] Exhibit 2, T-documents, T7D.
Dr Murphy
The Applicant was seen by Dr Murphy, Pain Registrar, on 1 August 2017.[92] In a letter to Dr Kumar of the same date, Dr Murphy noted that the Applicant gave a history of chronic pain for many years, a “flare up” of pain in December 2016 and a further exacerbation in March 2017 associated with the onset of cold weather “Since then he has been bed bound and “not coping” at all”.[93] Dr Murphy stated:[94]
[The Applicant] has marked functional limitation as a result of his back pain. He is bed bound for greater than ninety percent of the day. His partner, …, does all of the household chores. He has reduced capacity of his dADLs and pADLs. This has been the situation for greater than six months, but he says that the main difference between now and then is that he is "not coping" and he mobilises with a single point stick, SPS and has been reviewed by our physiotherapist Jacinta. he will continue to engage with Physiotherapy here as part of the Pain Management Program.
[92]    Exhibit 3, A11.
[93]    Ibid.
[94]    Ibid.
Dr Murphy reviewed the Applicant on 12 September 2017, and wrote to Dr Kumar on the same date, noting:[95]
[The Applicant] has had a lot of benefit through engaging with the Pain Management Program. He feels that his ability to manage his pain has overall improved. He commented that his partner feels he has also improved from this point of view. He is still quite medication focused. … I have reiterated that our focus should be on non-pharmacological coping strategies for his pain
[95] Exhibit 3, A12.
Dr Murphy provided various pain management plans for the Applicant.
Dr Huang
Dr Huang, Specialist Pain Medicine Physician, and Paul Beaton, Clinical Psychologist, reviewed the Applicant on 17 November 2017.[96] In a letter to Dr Kumar of the same date, Dr Huang outlined a management plan, which included the Applicant continuing his attempts at weight loss and his participation in the Pain Management Program.[97]
[96] Exhibit 3, A13.
[97] Ibid.
Ms Emerson
In a report dated 6 May 2019 Kellie Emmerson, Occupational Therapist, assessed the Applicant in his home.[98] In her report, Ms Emmerson recommended some interventions including the purchase of a long-handled sponge, long-handled reacher and bed stick, and contacting the landlord to enquire about the installation of a handheld shower hose.[99]
[98] Exhibit 3, A19.
[99] Ibid.
Dr Huan
The Applicant was reviewed by Dr Huan, Specialist Pain Medicine Physician, together with Sue Yencken, Health Psychologist, and Dr Gillet, on 31 May 2019.[100] In his letter to Dr Kumar, Dr Huan provided a management plan, which included potential ways of losing weight (Dr Huan noted a slight decrease in the Applicant’s waist circumference and observed that he may have lost some of his central obesity).[101]
[100] Exhibit 3, A20.
[101] Ibid.
Dr Soh
The Applicant was reviewed by Dr Soh, Rehabilitation Physician, and Sue Yencken, Psychologist, on 26 May 2020.[102] In her letter to Dr Kumar, Dr Soh noted that the Applicant weights 180kg and that his weight is reducing.[103] Dr Soh referred to Dr Huan's recommendation that the Applicant loses weight, stating that he was keen to do that, but found the "Fast 800" book too difficult to follow. Dr Soh stated:[104]
… I think if [the Applicant] reduces his weight it will make it a lot easier to move and the pain may also be better when he has less weight. … if you could also help [the Applicant] with his weight with a special diet such as “Optifast” may be beneficial for him.
[102] Exhibit 3, A22.
[103] Ibid.
[104] Ibid.
Dr Soh also supported Dr Kumar’s plan to reduce the Applicant’s opioids.[105]
[105] Ibid.
Dr Starke
In a file note of a psychiatry assessment on 19 June 2020 Dr Starke, Fellow in Clinical Psychiatry, noted the Applicant’s “longstanding difficulties with depression in association with chronic pain”,[106] and observed that the Applicant was “quite psychologically invested in the barriers to improved functioning which may be difficult to shift”.[107] However, he noted that the Applicant “appears able to engage psychologically”.[108]
[106] Exhibit 3, A24.
[107] Ibid.
[108] Ibid.
In a report to Dr Kumar, General Practitioner, dated 22 June 2020, Dr Starke noted that the Applicant described that “he felt he was making some good progress with a program of walking and gradual reduction of his pain medication since pain specialist review in 2019”, but had recently suffered a setback.[109]
[109] Exhibit 3, A25.
Under the heading ‘Impression’, Dr Starke stated:[110]
He will most benefit from a sustained focus on gradual functional recovery and reductions in his opioid medication load as well as psychological support, including stress management approaches.
[110] Ibid.
Dr Starke made recommendations and proposed three-month psychiatry reviews.[111]
[111] Ibid.
Dr Cidoni
Dr Cidoni, Consulting Psychiatrist, assessed the Applicant on 23 September 2020, and provided a report dated 10 October 2020.[112] Dr Cidoni relevantly diagnosed the Applicant as suffering from major depressive disorder and pain disorder.[113] Dr Cidoni expressed the view that the Applicant’s impairments were permanent.[114] Dr Cidoni was of the view that the documentation provided to him was consistent with the Applicant having undergone significant intervention without positive change.[115] Dr Cidoni described the Applicant’s functioning as substantially reduced in all areas. As to the Applicant’s obesity, Dr Cidoni stated:[116]
… In my opinion, the obesity is unlikely to substantially change due to the impact of his depression and chronic pain on it. Even if the obesity is regarded as not permanent due to the presence of available treatments, noting that previous interventions have failed, I do not believe that this has a bearing on the permanence of the major depressive or pain disorders.
[112] Exhibit 3, A26.
[113] Ibid.
[114] Ibid.
[115] Ibid.
[116] Ibid.

Dr Cidoni also gave oral evidence during the hearing. The key aspects of his evidence were:
(a)The Applicant’s symptoms met all, or almost all, of the nine criteria in the DSM 5 diagnostic manual for a major depressive disorder, where five of those nine criteria are needed in order to arrive at the diagnosis.[117] Therefore, it was not appropriate to diagnose him with a different disorder arising from his symptoms of depression.[118]
(b)The Applicant’s weight gain is a symptom of his depression:[119]
The weight - his weight gain, in my opinion, is connected with is depression, it's a symptom of his depression. In the setting of the depression not shifting and in the setting of the depression not getting better, than the symptom, as a symptom of the depression, I don't expect will improve. So obviously, there's always capacity to - for his weight to go up and down. It seems the pattern has been, over time, for the weight to be increasing. There might have been some periods where it's fluctuated. But certainly, at the state it's in now, you know, from my perspective, you know, and because it's connected with the depression, it's unlikely, in my opinion, to resolve.
(c)Weight loss can impact mood. Dr Cidoni accepted, as a general and uncontroversial proposition, that weight loss can lead to an improvement in “mood” but that this was “an individual thing”.[120] He also stated: [121]
I think once you've got and established a depressive condition which has caused weight gain and caused a lack of energy, a lack of motivation, a lack of interest in doing activities and thus, made the weight worse, then in that setting yes, the two can interact. There's no doubt about that. If the depression doesn't significantly improve, I can't expect that the weight will significantly improve. If the weight improves, then that will have a corresponding effect on the mood.
(d)The interrelationship between pain, depression and weight loss provided complexity and made less clear the likely impact of weight loss on the Applicant’s depression.[122]
[117] Transcript, P-89, lines41-47.
[118] Ibid, P-91, lines 8-11.
[119] Ibid, P-93, lines 9-18.
[120] Ibid, P-99, lines 1-34.
[121] Ibid, P-94, lines 5-20.
[122] Ibid, P-101 and P-102.
Associate Professor Khalid
Associate Professor (‘A/Prof’) Khalid, Consultant Psychiatrist, assessed the Applicant on 10 February 2021 at the request of Respondent’s solicitors and provided a report dated 19 February 2021.[123] A/Prof Khalid diagnosed the Applicant as suffering from chronic adjustment disorder with mixed anxiety and depressed mood secondary to chronic pain symptoms.[124] A/Prof Khalid was of the view that the Applicant’s adjustment disorder with mixed anxiety and depressed mood was “unlikely to improve with psychiatric or psychological treatment unless there is significant improvement in his pain symptoms”.[125] Adding, the “outcome of his chronic adjustment disorder with mixed anxiety and depressed mood is dependent upon the outcome of his physical condition”[126] and that it “is likely to improve once his pain improves with adequate multidisciplinary pain management program”[127]. A/Prof Khalid concluded “if he loses weight and his pain improves his symptoms of depression are unlikely to be permanent”.[128]
[123] Exhibit 5, H5.
[124] Ibid.
[125] Ibid.
[126] Ibid.
[127] Ibid.
[128] Ibid.
In a supplementary report dated 28 June 2021 A/Prof Khalid reiterated his opinion that improvement in the Applicant’s psychiatric condition was dependent upon weight loss and reduction in chronic pain.[129] A/Prof Khalid provided two research articles and an abstract to a third article addressing the relationship between chronic pain, obesity and weight loss.[130]
[129] Exhibit 9, H16.
[130] Exhibit 8, H12-H14.
A/Prof Khalid gave oral evidence to the effect that a more extensive and specialised pain management program may benefit the Applicant and accepted that was not likely to be available in the region in which the Applicant resided.[131]
[131] Transcript, P-139, lines 37-19; P-140, lines 24-31.
The following exchange took place during cross examination of A/Prof Khalid:[132]
Q:So it follows, then, that if he can't manage his chronic pain, then in your view, his psychiatric symptoms are unlikely to improve?
A:Yes, yes. It's all dependent on that. It's not going to improve unless his pain is relieved.
[132] Ibid, P-139, lines 23-35.
Later, A/Prof Khalid was questioned about weight loss and depression in the following exchange, and discussed the relevance of motivation to lose weight:[133]
Q: You would agree that [the Applicant] has a history of reported depression symptoms?
A:In the past, yes.
Q:And you'd agree, wouldn't you, that depression can become a barrier to functioning, for example, it can be a barrier to weight loss?
A:Depends on the severity of depression. If you are so severely depressed that there's lack of motivation, yes, absolutely no motivation to do anything, so that goes to that severity and, as I said, there's a demarcation of severity between major depressive disorder and an adjustment disorder.
[133] Ibid, P-144, lines 22-30.
Associate Professor Cherry
Associate Professor (‘A/Prof’) Cherry, Consultant Pain Medicine Physician, assessed the Applicant on 23 February 2021 at the request of the Respondent's solicitors and provided a report dated 26 February 2021.[134] Dr Cherry reported that the Applicant suffered from a range of conditions including chronic (meaning more than 3 months) pain, chronic adjustment disorder with mixed anxiety and depressed mood and morbid obesity.[135]
[134] Exhibit 6, H7.
[135] Ibid.
A/Prof Cherry noted that notwithstanding significant input from pain physicians and involvement in pain management programs, the Applicant’s "analgesic regimen is less than optimal, his weight is still excessive and his mood is poor".[136] A/Prof Cherry noted that the Applicant did not appear to have taken onboard the suggestions to which he had been exposed in past pain management programs. A/Prof Cherry observed that the Applicant’s "current pain management is very poor"[137] and made recommendations about how it may be improved. Noting A/Prof Khalid's opinion that weight loss would lead to a reduction in skeletal pain and an improvement in the Applicant’s level of depression, A/Prof Cherry expressed significant doubt that the Applicant would be able to lose weight.
[136] Ibid.
[137] Ibid.
In supplementary reports dated 18 March 2021 and 16 July 2021, A/Prof Cherry noted that he was unaware of any serious attempts that the Applicant had made at losing weight, noting any previous attempts had been unsuccessful.[138] While acknowledging the potential for significant improvement in the Applicant’s mood, chronic pain and possibly his mobility if he lost weight, A/Prof Cherry remained of the view that weight loss was unlikely in the Applicant’s case. A/Prof Cherry also expressed the view that bariatric surgery was contraindicated in the Applicant’s circumstances.
[138] Exhibit 6, H9; Exhibit 7, H11.
A/Prof Cherry gave evidence during the hearing in the following key respects:
(a)A/Prof Cherry considered that the Applicant’s pharmacological regime, particularly his pain management through opioids, was ill-advised.[139] A/Prof Cherry recommended the undertaking of baseline testing of his opioid sensitivity measured against the Applicant’s pain behaviour to determine whether his pain was opioid sensitive and stated that alternative pharmacological pathways should be adopted, depending on the outcome of that testing. If the Applicant’s pain was no longer opioid sensitive, he could be weaned from his opioid-based pain management regime and alternatives considered. If he remained opioid-sensitive his opioid should be limited to one slow-release medication to provide adequate pain relief;[140]
(b)A/Prof Cherry noted that the Applicant has been prescribed Valium, which is an anti-opioid (in that it can reduce the effect of opioid-based pain relief) and a mild patch that can also negate the effectiveness of opioid-based pain relief, leading to overuse of medications including (the oxycodone based) endone.[141] He described the Applicant’s combination of prescribed medications as a “crazy regime”;[142]
(c)A/Prof Cherry expressed the opinion that if his pharmacological regime were improved this may lead to better management of the Applicant’s pain;[143]
(d)A/Prof Cherry re-iterated that bariatric surgery was contraindicated due to the Applicant’s range of co-morbidities and post-operative risk and expressed his clear opinion that he doubted that the Applicant could achieve weight loss sufficiently significant to reduce his pain symptoms;[144]
(e)A/Prof Cherry stated that it was regarded as axiomatic by the medical profession that weight loss could reduce pain in patients when they are weight-bearing but accepted that it was possible that weigh loss may not result in significant relief of the Applicant’s chronic pain;[145] and
(f)In response to a proposition put to A/Prof Cherry, that it was possible that weight loss may not result in significant relief to his chronic pain, he accepted that, yes, that was possible.[146]
[139] Transcript, P-155, line 30.
[140] Ibid, P-152, lines 37-47; P-153, lines 1-32.
[141] Ibid, P-155, lines 40-47; P-156, lines 1-8.
[142] Ibid, P-155, line 38.
[143] Ibid, P-156, lines 10-14.
[144] Ibid, P-156, lines 17-24.
[145] Ibid, P-157, lines 15-27.
[146] Ibid, P-159, lines 6-7.
Ms Stephen
Bronwyn Stephen, Occupational Therapist, provided a report dated 27 May 2021.[147] In her report, Ms Stephen provided information in relation to a number of conditions suffered by the Applicant, including those upon which he relies in support of his request for access to the NDIS. Ms Stephen also provided details of the Applicant’s medication, social situation, previous social situation and intended goals for the NDIS. Ms Stephen noted the Applicant’s weight as 165kg.[148] Having assessed the Applicant’s functional capacity, Ms Stephen concluded that he was “totally unable to live alone [or] function independently”.[149]
[147] Exhibit 3, A29.
[148] Ibid.
[149] Ibid.
Dr Ahmed
In a report dated 29 September 2021 Dr Ahmed, Consultant General Surgeon, recommended weight loss surgery for the Applicant, either a gastric sleeve or a gastric bypass, but that he would need to be assessed at an appropriate obesity clinic regarding his suitability for such surgery.[150] He also stated that all the relevant specialists involved in the Applicant’s care would need to be in agreement that it was appropriate for him to undergo weight loss surgery.[151]
[150] Exhibit 10, H18.
[151] Ibid.
Dr Ahmed agreed with A/Prof Cherry that the Applicant had opportunities to lose weight, but that he needed more than just diet and exercise. Dr Ahmed suggested he should be considered for weight loss surgery. Dr Ahmed also agreed with A/Prof Khalid that if the Applicant lost weight, then it could improve his pain, which may then improve his psychiatric condition.
Dr Ahmed gave evidence during the hearing. He stated:
(a)About 40% of his practice involves undertaking bariatric surgery;[152]
(b)A patient will be considered appropriate for such surgery only following a consultation with a multi-disciplinary team including himself, a psychologist or psychiatrist, then a further surgical consultation before deciding to proceed.[153] The patient will be required to go on a low calorie diet to lose weight and manage liver function pre-operatively;[154]
(c)The typical candidate is highly motivated to have the surgery, and is a private patient, financially secure and has likely considered weight loss surgery for many years;[155] and
(d)A history of depression would be a relevant factor in considering the candidate for bariatric surgery and a patient with those symptoms would be referred for a psychological assessment of their mental health.[156]
[152] Transcript, P-164, lines 18-25.
[153] Ibid, P-165, lines 40-47.
[154] Ibid, P-166, lines 1-7.
[155] Ibid, P-179, lines 5-11.
[156] Ibid, P-172, lines 5-10.
A referral for bariatric surgery would come from the patient’s GP. Dr Ahmed described the GP as the “bastion” or “gatekeeper” of the patient and stated:[157]
If the GP has had a discussion with the patient and felt that the patient isn't suitable for weight loss surgery mainly because they don't believe in it or they would be noncompliant with attending visits or they have got a significant mental health issue, so therefore they're not psychologically or mentally ready to accept surgery, then the GP wouldn't have referred that patient on at all.
[157] Ibid, P-174, lines 8-22.
Mr Cini
Occupational Therapist, Mr Chris Cini, prepared a report dated 19 November 2021 and gave oral evidence during the hearing.[158] Mr Cini stated that he had made recommendations for the future treatment and care of the Applicant on the basis that, whether or not he lost weight in the future, his pain would continue to impact his mobility and his needs.[159]
[158] Exhibit 12, H37.
[159] Transcript, P-123, lines 16-25; P-124, lines 46-47; P-126, lines 22-35.
Mr Cini stated during the hearing that there would likely be an impact on the Applicant’s functional capacity were he to lose weight but was not sure to what degree.[160]
[160] Ibid, P-129, lines 4-11.
Reviews and Progress Reports
A radiology report of Dr Lui, dated 30 June 2008, noted multi-level spurs on the Applicant’s thoracic spine with mild disc narrowing which may indicate a compression fracture.[161] Further minimal traction spurs were noted on the Applicant’s lumbar spine.[162] The Applicant’s hip joints both demonstrated mild to moderate joint space narrowing with moderate osteophytes in keeping with degenerative changes.[163]
[161] Exhibit 3, A1.
[162] Ibid.
[163] Ibid.
A Physical/Functional Assessment was undertaken on 22 June 2017.[164] The assessment noted the Applicant’s weight at 154kg.[165] It also stated that he could walk 50-100m on a “good day” and RIB (presumably remain in bed) all day on a bad day.[166] He was able to travel in a car for 30 minutes on a good day, finding it easier to be the driver than the passenger.[167] The Applicant was “only getting out of home for GP appointments, 2º to depression + pain”.[168] An exercise/stretching plan was recommended for the Applicant.
[164] Exhibit 3, A10.
[165] Ibid.
[166] Ibid.
[167] Ibid.
[168] Ibid.
A Group Pain Program – Report dated 8 February 2018 outlined the aims of the program, the Applicant’s goals and progress towards goals.[169] The reported goals and progress included:[170]
To increase physical functioning: Doing the gym program in the group environment has been great. Still struggling with activities at home but am working on the principles of slow and steady wins the race.
To lose weight and improve diet: Has cut out sugar, stopped eating bread and working on healthy eating.
[169] Exhibit 2, T3B; Exhibit 3, A14.
[170] Ibid.
The report noted an improvement in the Applicant’s physical and functional tolerances. While the Applicant’s pain levels remained the same, his attitude and confidence in dealing with the pain improved. Lifestyle changes and improvements in the Applicant’s “Psychological Well Being” were noted/ As to Health and Fitness, the report noted:[171]
Since completing the program, [the Applicant] reports the following changes:
·   Improved diet and exercise at home (including some walking)
·   Working on weight loss and this is continuing
·   Improved posture and ability to walk stand and sit
·   Improved fitness and feeling healthier
·   Fell out of bed last year possibility related to medication.
[171] Ibid.
A further Group Pain Management Program – Report dated 19 April 2018 provides details of the Applicant’s third attempt to complete the program.[172] The Applicant was noted as having attended five and missed nine sessions. The Applicant’s attendance issues were ascribed to “health and pain related reasons”.[173]
[172] Exhibit 3, A15.
[173] Ibid.
Progress against goals was noted – including achieving ability to cook once per week, improvement in mood, feeling stronger generally, and engaging in exercise on the days he attended the program.[174] It was noted that the Applicant was "Currently not undertaking any exercise or walking in the garden due to increased pain".[175] The Applicant had lost weight during the program but regained that weight "[the Applicant] cites financial hardship as a significant contributor to his increased weight (due to not being able to select healthy food options)”.[176]
[174] Ibid.
[175] Ibid.
[176] Ibid.
A progress note dated 13 December 2018 recorded “limited goals achieved due to inability to engage in PMP, client withdrew from Program;”[177] and under the heading “Professional Diagnostic Statement, recorded: “Persistent low back pain complicated by multiple co-morbidities including obesity, high medication dependence, poor activity levels and significant psychosocial issues.”.[178]
[177] Exhibit 3, A16.
[178] Ibid.
On 6 March 2019 Dr Kumar referred the Applicant to Joann Melville-McGrath, a clinical social worker.[179] In a report dated 28 August 2019 Ms Melville-McGrath provided information in support the Applicant’s request for access to the NDIS, including details of a mental state examination and treatment undertaken.[180] Dr Kumar noted that the Applicant had “been under psychologist, Physio, etc, though pain management in the past”.[181]
[179] Exhibit 2, T-document, T7H.
[180] Exhibit 2, T-documents, T7B.
[181] Exhibit 3, A18.
A discharge note dated 26 February 2020 stated that the Applicant did not want to engage with the Ambulatory Pain Management Service at present, "[the Applicant] reports that he is coping better with pain at present and has a range of self-management strategies in place”.[182] He continued “to aim to reduce medication and lose weight”.[183]
[182] Exhibit 3, A21.
[183] Ibid.
CONSIDERATION
The medical evidence before the Tribunal establishes that the Applicant has been diagnosed with the following conditions:
(a)Depression (discussed further below); and
(b)Chronic Pain, arising from degenerative osteoarthritis.
The evidence as to the diagnosis of the Applicant’s medical condition arising from his depressive symptoms was inconsistent. A/Prof Khalid relevantly diagnosed the Applicant with an adjustment disorder with mixed anxiety and depressed mood secondary to his chronic pain. Dr Cidoni relevantly diagnosed the Applicant as suffering from major depressive disorder (and pain disorder). The Respondent submitted, and the Tribunal accepts, that the particular diagnoses is not determinative of the issue now before the Tribunal. The Respondent does not dispute that the evidence indicates that the Applicant meets the requisite level of reduction in his functional capacity arising from his impairments. The only question is whether his depressive symptoms are permanent.
The Tribunal finds that the available evidence is consistent with the Applicant’s chronic pain arising from the degenerative conditions of disc prolapse, osteoarthritis of the spine and osteoarthritis of the hips. The Respondent accepts that the osteoarthritis causes the pain and that this condition is degenerative. The Applicant has various other conditions, including hypertension and diabetes, which add to his medical and pharmacological needs. Although his weight has fluctuated during his life-time, he has been morbidly obese for many years.
The disability requirements
Paragraph 24(1)(a) of the Act – does the Applicant have a disability?
Paragraph 24(1)(a) of the Act requires that a 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’.

Consistent with Mortimer J’s decision in Mulligan v National Disability Insurance Agency (2015) 233 FCR 201 (‘Mulligan’),[184] the following guidance is outlined in chapter 8.1 of the Access Operational Guidelines:
For the purposes of becoming a participant in the NDIS the focus of ‘disability’ is on the reduction or loss of an ability to perform an activity which results from an impairment.
The term ‘impairment’ commonly refers to a loss of, or damage to, a physical, sensory or mental function.
The narrower definition of ‘disability’ employed by the NDIS seeks to target those people with disability who have a significant impairment to their functional capacity. This functional definition of disability focuses on outcomes for people with disability that are in the most need (Explanatory Statement to the Becoming a Participant Rules).
[emphasis added]
[184] at [15] – [16].
These paragraphs specify that for a person to have a disability within the meaning of paragraph 24(1)(a) of the Act, they must demonstrate that:
(a)they have an impairment, which is a loss of, or damage to, a physical, sensory or mental function; and
(b)their impairment must be the cause of their reduction or loss of ability to function.
The uncontroverted medical evidence demonstrates that the Applicant has a “disability” arising from his chronic pain and symptoms of depression and that each of these disabilities cause a reduction or loss of the Applicant’s ability to function.
I am satisfied the Applicant has a disability within the meaning of paragraph 24(1)(a) of the Act.
Paragraph 24(1)(b) of the Act – are the Applicant’s impairments permanent?
Paragraph 24(1)(b) of the Act requires that the applicant’s ‘impairment or impairments are, or are likely to be, permanent’. Subsection 24(2) of the Act further notes that ‘an impairment that varies in intensity may be permanent’.
The Participant Rules provide the following guidance in considering when an impairment is, or is likely to be, permanent:
5.4 An 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.
5.6 An impairment may require medical treatment and review before a determination can be made about whether the impairment is permanent or likely to be permanent. The impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated (even though the impairment may continue to be treated and reviewed after this has been demonstrated).
5.7 If an impairment is of a degenerative nature, the impairment is, or is likely to be, permanent if medical or other treatment would not, or would be unlikely to, improve the condition
[emphasis added]
I will now consider whether aspects of the Applicant’s impairments are, or are likely to be, permanent as required by paragraph 24(1)(b) of the Act and the Participant Rules.
Major Depressive Disorder/Adjustment Disorder
In considering whether the Applicant’s depressive symptoms lead to an impairment that is permanent, I have had particular regard to the psychiatric evidence.
Dr Cidoni was clear in his diagnosis of a permanent major depressive disorder. He accepted the general proposition that a connection may exist between weight loss and improved mood but stated that the circumstances of each individual needed to be considered. In the Applicant’s case, Dr Cidoni opined that, even if his obesity was regarded as not permanent due to the presence of available treatments (and noting that previous interventions have failed), he did not accept that this would have a bearing on the permanence of the major depressive or pain disorders he had diagnosed.
This evidence can be contrasted with that of A/Prof Khalid who diagnosed the Applicant as suffering from an adjustment disorder, which he described as less severe than a major depressive disorder. As to permanence, he considered this to be dependent upon the outcome of his physical condition and opined that it was “likely to improve once his pain improves”.[185]
[185] Exhibit 5, H5.
The diagnosis by A/Prof Khalid takes, as its starting point, the existence of pain. This is the condition to which, according to his report, the Applicant has developed an adjustment disorder.[186] However, the evidence establishes that the Applicant’s long history of depressive episodes pre-date his first experience of pain and were episodic at times when his weight was variable. Further, the evidence of Dr Cherry, pain specialist, (which was consistent with the evidence of the Applicant’s General Practitioner) was that the cause of the Applicant’s chronic pain was his degenerative back condition.
[186] Ibid.
The Respondent submitted, and the Tribunal accepts, that the particular diagnosis is not determinative of the statutory question whether the depressive symptoms are permanent. Therefore, I will refer to the Applicant’s condition as depression, noting the difference in the diagnoses of the two psychiatrists who gave evidence in the proceeding.
Having regard to the medical evidence when viewed together, the Tribunal considers that the evidentiary connection between the absence of pain and the likelihood of resolution of the Applicant’s depressive symptoms has not been established. That is not to say that the conditions of depression, chronic pain and obesity have not become interlinked in the Applicant’s case. Clearly, they have. However, the available evidence demonstrates that the Applicant’s low effect and lack of motivation arising from his depressive symptoms are a barrier in themselves to weight loss. Therefore, in the Applicant’s case, his obesity is more likely contributed to by his depression, and not the other way around. The Tribunal is not satisfied that, in the circumstances of this case and having regard to the Applicant’s unique circumstances, weight loss is an evidence-based clinical treatment that would be likely to remedy the Applicant’s psychological impairment.
The Tribunal notes that the evidence of the Applicant’s morbid obesity dates back at least to as early as April 2012, when his weight was recorded as 146kg by a pain management specialist who was referring the Applicant back to his GP. He was working at that time, and although the specialist noted he was experiencing “some stress” there is no indication that he was experiencing a severe depressive episode.[187] The Applicant was noted to have made attempts to lose weight at that stage. Later, in 2015, his weight was similar, at 154kg. The evidence is that his current episode of severe depression began around the same time, or about five years ago. Therefore, the evidence demonstrates that the Applicant has been morbidly obese both at times when he was, and when he was not, exhibiting acute symptoms of depression. Further, the evidence demonstrates extensive episodic history dating back almost 40 years.
[187] Exhibit 3, A2.
Despite the opinion of the esteemed A/Prof Khalid, the preponderance of the medical history and opinion favours the conclusion that the Applicant’s depressive disorder may produce acute and lengthy episodes independently of the Applicant’s obesity.
In any event, based on the evidence, I am satisfied the Applicant has engaged in evidence-based clinical, medical or other treatments as required by rule 5.4 of the Participant Rules. These treatments have included the Applicant taking recommended medications and participating in regular consultations with his treating GP, consulting psychologists and, when available, a psychiatrist. Further, the Applicant has attended and participated in multiple pain management programs. During these programs the Applicant has had access to multiple pain specialists and registrars, together with psychologists, a psychiatrist and various allied health specialists.
The evidence does not demonstrate that the Applicant has been referred on to a multi-disciplinary team for assessment of suitability for bariatric surgery either by a clinician at a pain management clinic or by his GP in the course of his treatment. There is a difference in the medical opinion available to the Tribunal as to whether the Applicant is a suitable candidate for the surgery. Dr Cherry stated, in his capacity as an anaesthetist, that he would not recommend bariatric surgery, and the GP, Dr Kumar, expressed the same view. Dr Cherry also noted that weight loss medications would not be indicated in the context of the Applicant's current medication regime, and Dr Kumar expressed the same view. In relation to bariatric surgery as a possible treatment for weight loss, Dr Cherry opined that the Applicant should not be reviewed by a gastric surgeon because he thought it was highly unlikely that a gastric surgeon would be persuaded to operate on him and in any event, as an anaesthetist, he would be unlikely to admit the Applicant to an elective procedure.
Dr Ahmed, who performs such surgery himself, was more optimistic about surgical risk for the Applicant. Indeed, it would be somewhat surprising if obesity were truly a contra-indicator for bariatric surgery as the majority of patients electing to have such surgery would likely face this issue. However, Dr Ahmed described a typical patient seeking bariatric surgery as highly motivated, financially secure and privately funded. The Applicant does not meet any of the criteria of a typical patient. He does not want to undertake this elective procedure and is not a private patient. The fact that the Applicant is not motivated to have the surgery makes it highly unlikely that he will be able to comply with the pre-surgical protocols described in Dr Ahmed’s evidence.[188] The available evidence demonstrates that there are clinical explanations for his lack of motivation, arising entirely from his depressive symptoms. Even if he was motivated, Dr Kumar stated that the likely waiting list for a public patient is between five and ten years, which certainly makes more remote the prospect that bariatric surgery is a treatment that is available to the Applicant. However, the determining, factor relevant to availability is the fact that his treating GP does not consider him a candidate and will not refer him. Dr Kumar is not alone in this view. The medical evidence from Dr Cherry was consistent with the conclusion arrived at by Dr Kumar. The Respondent has submitted that the Applicant has received recommendations for various weight loss strategies which he has not adequately addressed and that he should first be assessed by a multi-disciplinary team to determine if he is a candidate for weight loss surgery.[189] However, the Applicant has been assessed over the years by multiple treating specialists and his treating GP and during the course of these proceedings by various additional esteemed experts. The Tribunal understands the effect of the Respondent’s submission to be that, only when weight loss surgery has been excluded as a treatment for the Applicant, and he has fully explored all other weight loss recommendations, could his condition be determined to be permanent. The Tribunal is satisfied that the actions taken by the Applicant over the years to explore avenues for weight loss, and the additional assessments undertaken in the context of this proceeding, constitute more than sufficient action to exclude weight loss surgery as a suitable option for the Applicant.
[188] Transcript, P-166, lines 1-7.
[189] Ibid, P-201, lines 40-45.
Therefore, the Tribunal is satisfied that bariatric surgery is not available to the Applicant and not recommended by those who treat the Applicant. There is no basis to conclude that a further assessment by a multi-disciplinary team is needed to arrive at that conclusion, having regard to the evidence set out above. In any event, the Tribunal is not satisfied that such further investigation or treatment is likely to address the Applicant’s underlying depressive symptoms.
The Tribunal must be positively satisfied that there is no further treatment available that would be likely to remedy the Applicant’s impairment of depression. For the reasons expressed above, the Tribunal has reached that level of satisfaction.
The evidence demonstrates, on balance, that the Applicant’s impairment of depression is permanent within the meaning of paragraph 24(1)(b) of the Act, notwithstanding that the impairment may vary in intensity and the severity of its impact on the functional capacity of the Applicant may fluctuate.[190] For these reasons, the Tribunal finds that the Applicant’s impairment of depression is permanent within the meaning of paragraph 24(1)(b) of the Act.
Chronic Pain
[190] Participant Rules, r 5.5.
Based on the evidence, the Tribunal is satisfied that the Applicant’s pain arises from a degenerative condition, being severe osteoarthritis of the spine and hips and other degenerative changes to his spine. The Tribunal is further satisfied that this impairment is not likely to be improved by further medical or other treatment as identified in rule 5.7 of the Participant Rules. I note that a “permanent” impairment may continue to be treated and reviewed.
I have set out above the considerations relevant to whether further weight loss methods, including assessment for elective bariatric surgery, constitute evidence-based clinical, medical or other treatment available to the Applicant that would likely remedy his impairment arising from his depressive symptoms. However, the test for permanence prescribed by Participant Rule 5.7, that is relevant to the Applicant’s chronic pain, provides for that impairment to be unlikely to be improved by medical or other treatment. The concept that an impairment may “improve” differs significantly from the concept that it may be remedied (or substantially relieved).
In considering whether the Applicant’s chronic pain constitutes an impairment that is permanent, I have had particular regard to the evidence of the pain specialist, surgeon and treating GP. The only mechanism contended by the Respondent as likely to improve the Applicant’s chronic pain was weight loss. The relevant modalities included bariatric surgery (or at least an assessment for this), weight loss medication, diet, exercise and further clinics. There is no doubt that each of these modalities exist. I have already concluded that elective bariatric surgery is not likely to remedy the Applicant’s impairment of depression, and question whether it is “available” to the Applicant. However, Participant Rule 5.7 is silent on the availability or otherwise of the treatment. The focus must be on the likelihood of success of medical or other treatment.
Pain specialist A/Prof Cherry accepted that if the Applicant could lose a “significant” amount of weight then he will suffer less pain and be more mobile. However, he described the issue as “hypothetical” in the case of the Applicant as it was highly unlikely that he could achieve such weight loss.[191] In this regard he expressed two key views: that weight loss was unlikely in the Applicant’s case and that bariatric surgery was contraindicated in the Applicant’s circumstances. It follows from this evidence that further treatment for weight loss is unlikely to improve the Applicant’s chronic pain.
[191] Exhibit 6, H7.
There is ample evidence, particularly from A/Prof Cherry, to suggest that improvements could be made in the Applicant’s pain management regime, and in particular his reliance on opioid-based pain relief and the interplay with his other medications. As early as 2012 this was suggested by a pain clinician, Dr Song, and the Applicant has been reliant on his doctors to manage and assist with this course of action. The Applicant currently takes the medication he is prescribed. Changes and tweaks to this regime constitute the continuation of his medical treatment and management of his chronic pain, rather than treatment which is likely to improve his chronic pain condition and there was no evidence available to the Tribunal from which to conclude that the Applicant’s chronic pain was likely to improve, as opposed to being capable of better management, as a result of suggested changes to his pain relief regime. I note that no evidence was presented to the Tribunal about the impact of long-term opioid use, or on any dependencies arising from this, other than A/Prof Cherry’s genuine concerns about the undesirability of the current regime.
Dr Kumar considered it unlikely that the Applicant would achieve weight loss. He also opined that if he were able to do so, it may improve his pain by about 10% but his pain would remain chronic and continue to impact his functionality.[192]
[192] Transcript, P-80, lines 12-23.
The psychiatrists both noted the relationship between weight loss and pain reduction, and Dr Khalid stated that an improvement in pain could result if the Applicant successfully lost weight. However, he also noted and accepted the opinion of A/Prof Cherry that the Applicant had ample opportunity to better manage his pain and obesity and had failed to do so.[193] Dr Cidoni did not believe that the Applicant’s obesity should be viewed as temporary and stated that his obesity is unlikely to substantially change due to the impact of the chronic pain and depression.[194]
[193] Exhibit 9, H15.
[194] Exhibit 3, A26.
The Applicant weighed 146kg in 2012, 154kg in 2015 and 165kg in February of 2021. He reported his weight over time during his adult life as low as 80kg and as high as 180kg. Against this substantial and lengthy history of an upward trend in weight gain (with some fluctuations) he has continued to experience chronic pain of the same aetiology, that is, degenerative osteoarthritis. I have already noted that his depressive symptoms affect his capacity for weight loss as he is not motivated to do so. If his psychiatric condition were not preventing him from being a willing candidate for surgery, or a person likely to lose sufficient weight some other way, his pain may have better prospects of resolving, but the medical evidence clearly indicates that his pain, obesity and depression are now cyclical and interlinked. Dr Ahmed, consultant surgeon, noted that the Applicant’s co-morbidities including diabetes, high blood pressure and chronic back pain mixed with psychological and psychiatric issues had created a “complicated background that obviously has not helped [the Applicant] lose weight”.[195] Dr Ahmed stated it was difficult to quantify a reduction in the Applicant’s pain even if he was to lose weight although he “would not discount” improvement in pain.[196]
[195] Exhibit 10, H17.
[196] Ibid.
Mention was made by various medical witnesses during the hearing about the intertwining of symptoms of depression, obesity and chronic pain. The Tribunal finds that the evidence demonstrates not simply a cycle, but a progressive and accelerating downward spiral which has led to an end point for the Applicant from which his various symptoms are unlikely to improve.
There is insufficient evidence upon which the Tribunal could reach the level of satisfaction that the Applicant’s degenerative pain condition is likely to improve as a result of weight loss. This is not because there is no evidential connection between chronic pain and obesity. Rather, it is because of a two-stepped process which severs the connection, as explained in the medical evidence. The preponderance of the evidence, including from the Applicant’s GP and the specialists who have expressed a view about permanence of the Applicant’s chronic pain, favour these conclusions arising from this two-step process:
1.The Applicant has poor to no prospects of losing weight. He has already attempted to do so over many years and he has psychiatric overlay that complicates and impedes these attempts; and
2.Accordingly, his chronic pain is unlikely to improve as there is no medical or treatment likely to result in the circumstances (loss of weight) that would lead to an improvement in pain.

The Tribunal finds that, on balance, the evidence demonstrates that the Applicant’s impairment of chronic pain is not likely to improve with treatment. For these reasons, the Tribunal finds that the Applicant’s impairment of chronic pain is permanent within the meaning of paragraph 24(1)(b) of the Act.
Paragraph 24(1)(c) of the Act – do the Applicant’s impairments result in substantially reduced functional capacity to undertake communication, social interaction, mobility, self-care or self-management?
To meet the criteria in paragraph 24(1)(c) of the Act, the Applicant must demonstrate that his impairments result in substantially reduced functional capacity to undertake any one or more of the activities specified in paragraphs 24(1)(c) of the Act. The Applicant contended that the domains of social interaction, mobility, self-care and self-management were relevant. The Respondent (quite appropriately) submitted that, if the Tribunal were satisfied that the impairments were permanent, then findings would “flow” or “follow” as to the Applicant’s substantially reduced functional capacity in various domains as a result of the permanent impairments.
Application of the legislation requires:[197]
…a relatively high degree of precision by decision-makers (see, for example, the six activities in s 24(1)(c)) in assessing what a person can or cannot do). The assessment to be undertaken is avowedly functional and multi-faceted.
[197] Mulligan, at [55].
It is enough for a prospective participant to have substantially reduced functional capacity in relation to one activity: “If the outcome or effect is any of the outcomes or effects specified in r 5.8(a), (b) or (c), the deeming effect of r 5.8 operates”.[198]
[198] Ibid, at [67].
Rule 5.8 of the Participant Rules provides:
An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities – communication, social interaction, learning, mobility, self-care, self-management (see paragraph 5.1(c)) – if its result is that:
(a)the person is unable to participate effectively or completely in the activity, or to perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications; or
(b)the person usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in the activity or to perform tasks or actions required to undertake or participate in the activity; or
(c)the person is unable to participate in the activity or to perform tasks or actions required to undertake or participate in the activity, even with assistive technology, equipment, home modifications or assistance from another person.
[emphasis added]
Further, chapter 8.3.1 of the Access Operational Guidelines states:
The following information provides further guidance in relation to determining when an impairment results in substantially reduced functional capacity:
By itself, reliance on commonly used items will not result in a substantially reduced functional capacity to participate effectively or completely in an activity. Commonly used items include glasses, walking sticks, non-slip bath mats, bathroom grab rails, stair rails, age appropriate child safety locks, simple adapted kitchen utensils and dressing aids.
In considering the role played by assistive technology, home modifications and equipment, the NDIA will consider specific needs arising from the prospective participant’s impairment, and whether those needs are met (or need to be met) through the use of specialist disability aids and/or equipment.
Such items would generally be specifically designed to assist in increasing the functional capacity and participation of people with disability and be formally prescribed by a medical practitioner, specialist clinician or allied health professional such as an occupational therapist, physiotherapist or speech therapist.
When considering whether a person requires assistance from others to participate or perform tasks associated with an activity, the NDIA will have regard to whether a person’s need for assistance is consistent with normal expectations of a person of a similar age.
…
A person will be considered to be unable to participate effectively or completely in an activity if they cannot safely complete one or more of the tasks required to participate in an acceptable period of time. Undertaking a task more slowly or differently to others will not necessarily mean a person cannot participate effectively or completely in an activity.
When considering whether a fluctuating or episodic impairment results in substantially reduced functional capacity to undertake relevant activities, the NDIA will consider the impact on the person's ability to function in the periods between acute episodes.
I note that the Applicant submitted that his impairments result in a substantially reduced functional capacity to undertake activities only in the domains of social interaction, learning, self-care and mobility. I consider each of these in turn.
Subparagraph 24 (1)(c)(ii) of the Act – Social Interaction
Chapter 8.3 of the Access Operational Guidelines refers to social interaction as including:
…making and keeping friends (or playing with other children), interacting with the community, behaving within limits accepted by others, coping with feelings and emotions in a social context.
The Applicant’s oral evidence was that his social contact was substantially curtailed, and that he did not leave the house to socialise, nor did he socialise at home. The preponderance of the medical evidence supports the Applicant’s reporting.
The Tribunal accepts that the Applicant’s capacity for social interaction is substantially impeded by the interplay of his chronic pain and depressive symptoms.
While the Applicant’s capacity for social interaction may fluctuate from time to time because of his impairments, and in particular his depression, the Tribunal is satisfied that those limitations when considered together result in a substantially reduced functional capacity for social interaction within the meaning of subparagraph 24(1)(c)(ii) of the Act.
Subparagraph 24(1)(c)(iv) of the Act – Mobility
Chapter 8.3 of the Operational Guideline provides a definition of mobility:
This 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.
The anecdotal evidence, supported by Dr Kumar and various allied health specialists, establishes that the Applicant has substantially reduced functional capacity in mobility. He is unable to mobilise effectively as a result of his pain and is frequently bedridden.[199] He requires assistance with transfers within his home and faces barriers when outside the home including navigating stairs, walking for more than a very short distance without pain and lacking the stamina to do so.[200]
[199] Transcript, P-6, lines 8-9.
[200] Exhibit 3, A28.
The Tribunal is satisfied that the Applicant’s impairments have substantially reduced his functional capacity in mobility within the meaning of subparagraph 24(1)(c)(iv) of the Act.
Subparagraphs 24(1)(c)(v) and (vi) of the Act – Self-Care and Self-management
The Applicant contends that he has severely curtailed capacity in the activities of self-care and self-management.[201] This is consistent with the evidence given by the Applicant during the hearing as to his capacity to manage his self-care and his own affairs[202] and the evidence of Mr Cini as to the various strategies needed to assist in these domains of the Applicant’s activities.[203]
[201] Ibid.
[202] Transcript, P-38, lines 23-26; P-39, lines 17-19.
[203] Exhibit 12, H37.
The Tribunal finds that the Applicant’s impairments have substantially reduced his functional capacity in self-care and self-management within the meaning of subparagraphs 24(1)(c)(v) and (vi) of the Act.
Paragraph 24(1)(d) of the Act – do the Applicant’s impairments affect his capacity for social or economic participation?
Paragraph 24(1)(d) of the Act requires that the Applicant’s impairment or impairments affect his capacity for social or economic participation. There is no requirement that the affect be “substantial”, or otherwise significant. The Respondent accepted that this requirement had been met.[204]
[204] Exhibit 1, H1, para 44.
The Applicant’s oral evidence to the Tribunal was that he has been employed as a guitar teacher for many years but that he is no longer able to work due to his pain. The Tribunal accepts this evidence.
The Tribunal finds the requirement in paragraph 24(1)(d) of the Act is met because the Applicant’s impairments affect his capacity for economic participation.
Paragraph 24(1)(e) of the Act – is the Applicant likely to require support under the NDIS for his lifetime?
Chapter 8.5 of the Access Operational Guideline states the following:
8.5 When is a person likely to require support under the NDIS for their lifetime?
The NDIA must also be satisfied that the prospective participant is likely to require support under the NDIS for the rest of their lifetime (section 24(1)(e)).
If an impairment varies in intensity (for example, because the impairment is of a chronic episodic nature) the person may still be assessed as likely to require support under the NDIS for the person's lifetime, despite the variation (section 24(2)).
The NDIA is required to consider a prospective participant’s overall circumstances and conclude that the person will require support under the NDIS for their lifetime. The purpose of this requirement seems to be to distinguish that subset of people with serious and permanent disabilities who are intended to be the beneficiaries of funded supports (Mulligan and NDIA [2015] AATA 974 at [153]).
For example, if a person's support needs arise from a health condition and are most appropriately provided through another service system (i.e. the health system) then the person will not require support under the NDIS for their lifetime. Rather, the person will require support under the health system.
When considering this criterion, the NDIA does not need to be satisfied that the support/s required for the person's lifetime meet the reasonable and necessary criteria. The reasonable and necessary criteria are relevant to whether funding is provided, not whether a person meets the disability requirements (see Mulligan and NDIA [2014] AATA 374 at [53] and Mulligan and NDIA [2015] AATA 974 at [146]–[150]).
The Tribunal has concluded that the Applicant’s impairments result in him having substantially reduced functional capacity to undertake activities in the domains of social interaction, mobility, self-care and self-management. Having regard to the policy guidance set out in chapter 8.5 of the Access Operational Guidelines, I consider that it would be appropriate for the Tribunal to make a finding that a prospective participant is likely to require support under the NDIS for their lifetime in circumstances where the evidence shows they have a substantially reduced functional capacity to undertake activities in those domains.
As I am satisfied that the Applicant’s impairments result in substantially reduced functional capacity in the relevant domains as a result of an impairment that is permanent, the Tribunal finds that the Applicant will require assistance under the NDIS for his lifetime. Therefore, the Applicant meets the requirement of paragraph 24(1)(e) of the Act.
CONCLUSION
For the reasons set out above, the Tribunal finds that the Applicant meets the disability criteria in sections 24 of the NDIS Act.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision that the Applicant meets the disability criteria in sections 24 of the NDIS Act.
I certify that the preceding 151 (one hundred and fifty-one) paragraphs are a true copy of the reasons for decision of Member Buxton.
………………[SGD]……………………
Associate
Dated: 31 January 2022
Dates of the hearing:  6, 7 and 8 December 2021
Counsel for the Applicant:  Ms S. Dhanji
Solicitors for the Applicant:           Ms A. Baset
Counsel for the Respondent:  Ms C. Dowsett
Solicitors for the Respondent:                   Mr N. Nguyen

[2022] AATA 115

31 January 2022

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