MKYV and National Disability Insurance Agency - [2022] AATA 115

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading MKYV and National Disability Insurance Agency

Details

AGLC: MKYV and National Disability Insurance Agency [2022] AATA 115
Case: [2022] AATA 115
Decision Date: 31 January 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of MKYV (the Applicant) and the National Disability Insurance Agency (the Respondent). The dispute concerned whether the Applicant met the disability requirements for access to the National Disability Insurance Scheme (NDIS). The Applicant’s impairments included obesity, chronic pain stemming from degenerative conditions, and depression.

The primary legal issue before the Tribunal was whether the Applicant’s impairments were permanent, as required by section 24(1)(b) of the NDIS Act 2013 (Cth). This involved determining if the Applicant’s impairments were, or were likely to be, permanent, and if they substantially reduced his functional capacity. The Respondent argued that there was insufficient evidence to establish permanency, particularly regarding the exhaustion of all available treatments.

The Tribunal reasoned that the NDIS Act defines disability by reference to a significant reduction in functional capacity resulting from an impairment. The medical evidence established that the Applicant suffered from chronic pain due to degenerative osteoarthritis and also had depressive symptoms. While the precise diagnosis of the depressive condition varied, the Respondent did not dispute that the Applicant's impairments substantially reduced his functional capacity. The Tribunal found the evidence consistent with the Applicant's chronic pain arising from degenerative conditions of the spine and hips, which the Respondent accepted as degenerative. The Tribunal also noted that the Applicant had self-management strategies for his pain and aimed to reduce medication and lose weight, but this did not negate the permanency of his underlying degenerative conditions.

The Tribunal set aside the decision under review and substituted a decision that the Applicant meets the disability criteria in section 24 of the NDIS Act.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The 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.EVIDENCEThe 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.

Decision

Reasons for decision

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]……………………AssociateDated: 31 January 2022Dates of the hearing: 6, 7 and 8 December 2021 Counsel for the Applicant: Ms S. DhanjiSolicitors for the Applicant: Ms A. BasetCounsel for the Respondent: Ms C. Dowsett Solicitors for the Respondent: Mr N. Nguyen

Ratio Decidendi

Legal Principle Established

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].