Morris and National Disability Insurance Agency (NDIS)
[2024] ARTA 186
•27 November 2024
Morris and National Disability Insurance Agency (NDIS) [2024] ARTA 186 (27 November 2024)
Applicant:Michael John Morris
Respondent: National Disability Insurance Agency
Tribunal Number: 2022/4241
Tribunal:General Member J Toohey
Place:Brisbane
Date:27 November 2024
Decision:The Tribunal affirms the decision under review that the Applicant does not meet the access requirements in section 21 of the National Disability Insurance Scheme Act 2013 (Cth).
.................................[SGD]...................................
General Member Justin Toohey
Catchwords
National Disability Insurance Scheme – Access – Becoming a Participant Rules – Commencement of the Administrative Review Tribunal – Getting the NDIS Back on Track – Substantially Reduced Functional Capacity – Chronic Relapsing Disabling Fatigue Assessing Activities and Tasks – Mobility – Early Intervention – Appropriateness of Other Systems of Support – Aged Care – Applied Principles and Tables of Support to Determine the Responsibilities of the NDIS and other Service Systems (ATPOS) – Commonwealth Home Support Programme
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No.1) Act 2024 (Cth)
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)Cases
Beaumont and National Disability Insurance Agency [2024] AATA 891
Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250
JLZT and National Disability Insurance Agency [2022] AATA 541
Johnson and National Disability Insurance Agency [2023] AATA 1989
Madelaine and National Disability Insurance Agency [2020] AATA 4025
Mulligan v National Disability Insurance Agency [2015] FCA 544
National Disability Insurance Agency v Foster [2023] FCAFC 11
NRNK and National Disability Insurance Agency [2024] AATA 110Secondary Materials
Commonwealth Home Support Programme Program Manual 2024-2025 June 2024
Operational Guideline ‘Applying to the NDIS’ 1 February 2024The Applied Principles and Tables of Support to Determine the Responsibilities of the NDIS and other Service Systems 27 November 2015
Statement of Reasons
SUMMARY
I have decided that the Applicant does not meet the access requirements as set out in section 21 of the National Disability Insurance Scheme Act 2013 (Cth) for the following reasons.
INTRODUCTION
The issue before the Tribunal is whether the Applicant, Mr Morris, meets the access criteria to be a participant of the National Disability Insurance Scheme (‘NDIS’) in accordance with section 21 of the National Disability Insurance Scheme Act 2013 (Cth) (‘the NDIS Act’).
Mr Morris is a 67-year-old Aboriginal man. In November 2021, Mr Morris applied for access to the NDIS with supporting information from his General Practitioner, Dr Marion Lynn.[1] Dr Lynn advised that Mr Morris’ main disability was chronic fatigue, and his other disabilities were tongue cancer and sleep apnoea.
[1] T1F Access Request Form.
On 25 January 2022, a delegate of the Chief Executive Officer (‘CEO’) of the National Disability Insurance Agency (‘the Agency’) decided that the Applicant did not meet the criteria for access to the NDIS. On 20 April 2022, the Applicant requested an internal review of the delegate’s decision. On 6 May 2022, the Agency affirmed its original decision to refuse the Applicant access to the scheme. On 26 May 2022, Mr Morris applied for a review by the Administrative Appeals Tribunal (‘AAT’) under section 103 of the NDIS Act and section 25 of the AAT Act.
The Tribunal held a hearing by video on 2, 3 and 4 October 2024. The Applicant was assisted at the hearing by Disability Advocate, Michael Hampton, from Synapse Australia Ltd. The Agency was represented by Counsel, Nicole Maddocks.
Following the hearing, both parties were provided with the opportunity to make written submissions on the point-in-time in which the Tribunal would be assessing the appropriateness of other systems to provide supports to Mr Morris. Final submissions were received on 29 October 2024.
RECENT TRIBUNAL AND NDIS ACT AMENDMENTS
On 14 October 2024, the AAT became the Administrative Review Tribunal (‘the Tribunal’). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) (‘the Transitional Act’), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 (Cth) (‘Back on Track Act’) commenced on 3 October 2024 and made significant amendments to the NDIS Act. As Mr Morris’ request for access to the NDIS was made before 3 October 2024, section 126 of the Back on Track Act provides that the NDIS Act, Rules and Guidelines apply as they existed before commencement of the Back on Track Act.
ISSUES
The issues before the Tribunal are whether the Applicant meets:
·the disability requirements under section 24 of the NDIS Act, or
·the early intervention requirements under section 25 of the NDIS Act.
OVERVIEW OF THE NDIS DECISION-MAKING FRAMEWORK[2]
[2] I have used this overview in other matters dealing with access to the NDIS.
Chapter 1, Part 2 of the NDIS Act sets the Act objects and principles including, for example, that the NDIS Act is to support the independence and social and economic participation of people with disability,[3] and that decision-makers are to have regard to the need to ensure the financial sustainability of the scheme.[4] Section 21(1) of the Act sets out that a person meets the criteria to become a participant in the NDIS 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).[3] Section 3(1)(c).
[4] Section 3(3)(b).
A person meets the disability requirements in section 24(1) of the NDIS Act if:
(a) the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable; and
(b) the impairment or impairments are, or are likely to be, permanent; and
(c) the impairment or impairments result in substantially reduced functional capacity to undertake one or more of the following activities:
(i) communication;
(ii) social interaction;
(iii) learning;
(iv) mobility;
(v) self-care;
(vi) self-management; and
(d) the impairment or impairments affect the person’s capacity for social or economic participation; and
(e) the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime.
A person may become a participant by meeting the early intervention requirements in section 25 of the NDIS Act. Section 27 of the NDIS Act provides for the making of rules in relation to the disability requirements and the early intervention requirements. The relevant rules in respect of this review are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (‘Becoming a Participant Rules’).
The NDIS Operational Guidelines also assist in making decisions in accordance with the NDIS Act. Operational guidelines represent government policy and should be applied by the Tribunal unless there is good reason not to do so.[5] The relevant operational guideline is Applying to the NDIS.[6]
[5] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
[6] 1 February 2024.
SUMMARY OF EVIDENCE
The Tribunal was provided with a joint hearing bundle by the parties, and this was accepted into evidence at the hearing.[7] This large bundle of documents[8] included:
[7] The document numbering in the hearing bundle index is adopted throughout these reasons.
[8] 757 pages.
(a)The ‘T-documents’;[9]
(b)Letters from Mr Morris’ treaters related to a Disability Support Pension application in 2021;[10]
(c)Reports related to Mr Morris’ cancer treatment from 2017 to 2020;[11]
(d)Reports related to Mr Morris’ claim for total and permanent disability insurance and income protection benefits in 2019 and 2020;[12]
(e)Medical records produced under summons from Amiens Clinic, Toowong GP Super Clinic, Calvary Medical Group and Comboyn Medical Centre.
(f)Statements from Mr Morris and his spouse, Ms Rosi Buttula-Morris, dated 23 August 2022;[13]
(g)An independent medical assessment report from Dr David Gorman, Consultant General Physician, Pain Management Physician and Medical Oncologist, dated 20 March 2023;[14]
(h)A functional capacity assessment report from Christian Byrnes, Occupational Therapist, dated 17 July 2023;[15] and
(i)Reports from Mr Morris’ physiotherapist, Michael Foy, dated 12 September 2023 and 4 April 2024.[16]
[9] Which are all the records that the Agency considered when making the decision under review as required by section 37 of the AAT Act.
[10] T1B to T1E.
[11] T3, T4, T5, C5, C6 and C9.
[12] T5, T6, C7 and C8.
[13] C10 and C11.
[14] D15.
[15] D16.
[16] C12 and C13.
The Tribunal also had the benefit of written submissions from the parties and oral evidence from the Applicant, his spouse, Dr Lynn, Mr Foy, Mr Byrnes and Dr Gorman.
CONSIDERATION
Age and residence requirements[17]
[17] Sections 22 and 23 of the NDIS Act.
There is no dispute the Applicant satisfies the age and residence requirements. I am satisfied that these requirements are met. Mr Morris was 64 when he applied for access to the NDIS. While Mr Morris is now 67, section 22 of the NDIS Act makes it clear that a person meets the age requirement if the person was aged under 65 when the access request was made.
Disability requirements
I must consider whether the Applicant meets the disability requirements in section 24 of the NDIS Act.
Impairments, likely to be permanent, affecting social and economic participation
There is no dispute that Mr Morris has a disability attributable to impairments,[18] which are permanent,[19] and which affect his capacity for social and economic participation.[20] Based on the health professional reports, I am satisfied that the Applicant has a disability that is attributable to Chronic Relapsing Disabling Fatigue. This fatigue developed after radiotherapy and chemotherapy in 2018.[21] I am also satisfied, based on the reports, that the impairments are permanent and affect the Applicant’s capacity for social and economic participation.
[18] NDIS Act, section 24(1)(a). See the Agency’s Statement of Facts, Issues and Contentions, at paragraph 22.
[19] NDIS Act, section 24(1)(b). See the Agency’s Statement of Facts, Issues and Contentions, at paragraph 23.
[20] NDIS Act, section 24(1)(d). See the Agency’s Statement of Facts, Issues and Contentions, at paragraph 29.
[21] T5, report of Dr Girao, 12 August 2019.
Substantially reduced functional capacity
Rule 5.8 of the Becoming a Participant Rules states:
When does an impairment result in substantially reduced functional capacity to undertake relevant activities?
5.8 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.
The Federal Court in Mulligan held that it is sufficient for a person to have substantially reduced functional capacity in relation to one activity.[22] The Full Court in Foster found that it is not sufficient for a person to have substantially reduced functional capacity to undertake a single task within the bundle of tasks and actions that form part of an activity.[23]
[22] Mulligan v National Disability Insurance Agency [2015] FCA 44, [56].
[23] National Disability Insurance Agency v Foster [2023] FCAFC 11, [65].
Mobility
In closing submissions, the Applicant confirmed that he was only contending that he had a substantially reduced functional capacity in respect of mobility. The Applying to the NDIS Guideline describes the activity of mobility as:
Mobility, or moving around – how easily you move around your home and community, and how you get in and out of bed or a chair. We consider how you get out and about and use your arms or legs.
Good days and bad days
In relation to mobility, the Tribunal was assisted by the detailed functional capacity assessment conducted by Christian Bryne. This assessment was largely consistent with the Applicant’s oral evidence and the other expert reports. Mr Bryne said that the Applicant was having a ‘good day’ on the day of the assessment.[24] The Tribunal heard that the Applicant’s mobility was worst on ‘bad days’ on which he is only able to get out of bed to use the toilet.[25] The Applicant had bad days around one third of the time, or around two out of seven days.[26] On good days, the Applicant is able to:
(a)walk independently around the home, staying near to the walls to maintain his balance;
(b)transfer in and out of his bed once in 40 seconds, on and off a chair 5 times in in 36 seconds, and in and out of a vehicle once in 24 seconds;
(c)leave his home and use a walking stick, wheeled walker, or shopping trolley to move around the community or shops;
(d)walk on even ground 120 meters within 6 minutes, or for 15 to 30 minutes if using a wheeled walker;
(e)lift 2.5 kilograms from the floor to waist (holding on to a chair) and from his waist to overhead;
(f)drive for 90 minutes, and travel by plane with the use of a wheelchair in the airport; and
(g)go up and down four steps in a period of a minute.[27]
[24] D16, Report of Christian Byrnes, at paragraph 6.22.
[25] D16, at paragraph 6.26.
[26] D16, at paragraph 6.12.
[27] D16, at paragraphs 6.31 to 6.82.
In respect of fluctuating impairments, the Applying to the NDIS Guideline says:
Your needs might go up and down each day or each month. … We consider your ability over time, taking into account your ups and downs.
On Mr Morris’ bad days, I would consider that he has a substantially reduced functional capacity in respect of mobility. Being able to only move from his bed to the bathroom means that Mr Morris is unable to participate effectively in the activity of mobility for the purpose of Rule 5.8(a). However, as bad days are not most of Mr Morris’ days, I do not consider that this conclusion means that Mr Morris has a substantially reduced functional capacity when taking into account his ups and downs.
On good days, I accept that Mr Morris is most impacted with regards to walking and using steps. In his assessment, Mr Byrne had the Applicant complete a six-minute walking test. Mr Byrne included a comparison of the Applicant’s walking capacity on this test (being 120 metres) with norms for male subjects aged 61-80 years (being 687 meters).[28] In his oral evidence, Mr Byrne corrected this norm to be 572 metres for a male aged 60 to 69. Mr Byrne does not include an age norm for Mr Morris’ performance in relation to steps. Mr Foy performed a step test and concluded that Mr Morris was in the lowest 10th percentile for his age norm by completing 19 steps in 2 minutes.[29] In my view, the time taken for Mr Morris to walk 120 meters and to traverse steps, does mean that Mr Morris is unable to perform these actions ‘effectively’ within the meaning of Rule 5.8(a).
[28] D16, paragraphs 4.40 to 4.43.
[29] C12, at page 289.
More slowly or differently
In my view, the Tribunal’s decision in Madelaine[30] is no longer an authority for the proposition that undertaking a task more slowly or differently to others does not mean a person cannot participate effectively in an activity. This is because this proposition is a direct reference to the wording in the access guidelines which were published at that time. This wording is no longer included in the current version of the access guideline.
[30] Madelaine and National Disability Insurance Agency [2020] AATA 4025, [74] - [76].
Comparison with pre-disability function
Mr Foy included a table in his report comparing Mr Morris’ functioning pre and post disability and concludes:
One of the key features … that is representative of the decline of Mr Morris’ functional capacity is seen in the last row titled “Walking”. In the subsequent columns he refers to a capacity of gait endurance of 30km required for training and yet now refers to a disabled 3 minute self described capacity. There is no doubt or question that the most singular restriction that is consistent in all the reports and observations is that his ability to walk significantly has been profoundly compromised.[31]
[31] C12, at pages 290 and 291.
In this regard, I do agree with the conclusion in paragraph 109 of Madelaine that a comparison between what a person could do before the onset of their disability and their current functioning is “not the appropriate yardstick”. In saying this, I do not want to diminish the debilitating impacts of Mr Morris’ impairments. It was clear to me the Mr Morris had functioned at a very high level, achieved business success, and contributed much to improving the lives of others though his work with Fred Hollows and the Aboriginal and Torres Strait Islander Health Services. He continues to dedicate his energies to his Faith. It is correct however that, in the context of the NDIS, ‘substantially reduced’ does not refer to the reduction from an individual’s previous capacity.
Comparison with age norms
The statutory phrase ‘substantially reduced functional capacity’ does convey a need to measure a person’s reduction in functional capacity in comparison to some benchmark. In respect of functional assessments, the Federal Court in Mulligan, at paragraph 56 said:
… no arbitrary limits are placed on access to the NDIS. No decision-maker need be satisfied a person’s impairment is “serious”, or more serious than another person’s. No qualitative judgments in that sense are called for. Rather, the legislative scheme is based on a functional, practical assessment of what a person can and cannot do. Critically, the scheme makes detailed provision for that assessment, and it is sufficient for a person to have substantially reduced functional capacity in relation to one activity. That, in my opinion, recognises the spectrum of impairments which can be experienced by persons with disabilities, and accommodates different abilities within one person in terms of her or his daily activities. That is why a detailed functional assessment is so important.
In closing submissions, the Agency contended that it would be a contrary to Mulligan to compare walking distances for the Applicant with a person in a similar age demographic as this would be qualitative or subjective. I do not agree with this. A detailed functional assessment conducted by a suitable qualified professional which compares a person’s capacity with a demographic benchmark is both objective and quantitative. I consider that being able to walk 120 metres in six minutes, as compared to the norm for males of a similar age being able to walk 572 metres, amounts to a substantially reduced functional capacity for walking. I also consider that being in the lowest 10th percentile for his age norm is a substantially reduced functional capacity for Mr Morris’ use of steps.
Commonly used items
When accessing the community, Mr Morris evidence was that he usually requires a single point walking stick which has an integrated folding seat so it can be used as a stool (referred to as a “hunter’s stick”). Mr Morris said he also uses a four wheeled walker to get exercise, and leans on a trolley when moving around the shops. For Rule 5.8(a), I need to consider whether these are “assistive technology, equipment (other than commonly used items such as glasses)”. I agree with the analysis of the Tribunal in Beaumont[32] at paragraphs 116 and 117:
In the Tribunal’s view, the definition outlined in the Assistive Technology Operational Guideline and as applied in Foster, supports a conclusion that there is no inherent quality to assistive technology or equipment beyond the function to help people do things they normally can’t, or which are particularly difficult. Therefore, assistive technology or equipment does not, to our minds, necessarily need to be prescribed or purchased, for example, at significant cost.
Further, ‘commonly used items’, also not defined in the Act or Rules, should be interpreted using a plain reading of the text. Glasses are commonly used items because they are routinely used by a wide range and large number of people to improve vision. People do not commonly use walkers, nor do they commonly carry lightweight chairs to aid their walking beyond 100 metres.
[32] Beaumont and National Disability Insurance Agency [2024] AATA 891.
I do not consider that a hunter’s stick or a four wheeled walker are commonly used items. Mr Morris’ reliance on these items when accessing the community goes to demonstrating his need for assistive technology to maintain his balance and reduce fatigue. Clearly shopping trolleys are commonly used items in shops. No doubt it is difficult to manage both a walker and a trolley at the same time. A trolley will also be more useful than a walker for transporting shopping. I do not consider that Mr Morris’ use of a trolley means that he is able walk effectively without assistive technology.
Assistance required
Mr Byrnes considered that Mr Morris experienced falls or near misses around once per week resulting in minor soft-tissue injury but not requiring medical treatment.[33] There is some inconsistency between the expert reports and the reporting of Mr Morris his spouse with regards to the level of assistance required. In particular, Ms Buttula-Morris described staying just behind, or nearby, Mr Morris at almost all times to help prevent falls. While I do not doubt the evidence of Ms Buttula-Morris, I do not consider that this level of attention is required for Mr Morris on his good days. It may be that Ms Buttula-Morris is taking an understandable but overly cautious approach in staying as close to Mr Morris as reported. While very unsteady, it would appear from the expert reports that Mr Morris can safely move around his home on good days. Applying Rule 5.8(b), I am not satisfied that Mr Morris usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to perform tasks or actions in respect of mobility.
[33] D16, at paragraph 6.86 to 6.88.
Possible age and other factors
Both Mr Morris and Ms Buttula-Morris provided oral evidence that Mr Morris often missed simple tasks, such as placing a cup underneath the coffee dispenser. Mr Morris described sometimes getting ‘stuck’ midway through drying himself after the shower as another example. Mr Morris explained that repeatedly forgetting such tasks meant that it was unsafe for him to cook meals. Ms Buttula-Morris explained the impacts on her in relation to additional cleaning and cooking tasks. This issue is not well described in the medical and allied health reports. Dr Reid, Consultant Neuropsychologist, conducted a neuropsychological assessment of Mr Morris in September 2021.[34] Dr Reid concluded that:
Overall, from my examination Mr Morris presents with evidence of a decline in his non-verbal intellectual functions, ability to learn unstructured verbal material over repeated learning trials, visual memory and speed of information processing. The pattern of deficits shown on neuropsychological assessment cannot be completely explained by his fatigue yet there is evidence that when fatigued as seen in the second assessment this affects his speed of information processing.
[34] T7.
Dr Gorman deferred to Dr Reid’s assessment but added:
I must make the point however that in terms of any poor cognitive performance, this is more likely related to fatigue as I do not believe that he would get an “Acquired brain injury” or any other cerebral injury from his tumour or chemoradiation.
In his August 2023 report, Mr Foy highlighted a possible undiagnosed neurological condition:
In reference to the already stated concerns of chronic fatigue, poor sleep response, reduced memory and mental acuity as well as growing concern of near misses / falls and severe functional incapacity for his age norm I am led to conclude that there may in fact be a neurological disorder that remains yet identified by his current and prior medical team. It seems reasonable and even necessary to suspect that the chronic fatigue that Mr Morris is describing correlates highly with this additional neurological finding.[35]
… Altogether these represent to me an apparent critical weakness and neurological lag that reflects a substantially reduced functional capacity towards normal functional tasks. The nature and cause of the neurological decline is not specific to this report and is likely to be more conjectural than diagnostic but its presence based on my evaluation was evident and clearly impacting upon Mr Morris’ function and capacity. This poor neurological precision puts him in a higher falls category of concern. Additionally the potential for future neurological decline is more likely than not given his advanced age and deconditioning coupled with his impairment of motor control.[36]
[35] C12, at page 288.
[36] C12, at pages 289 and 290.
I do not doubt the evidence of Mr Morris and Ms Buttula-Morris. Both presented as highly reliable witnesses. There is however some uncertainty with regards to why Mr Morris is repeatedly forgetting simple tasks. This may be a cognitive impact of his fatigue. Potentially, there is some other underlying neurological issue. Therefore, there is a lack of clarity as to whether this impairment is secondary to Mr Morris’ permanent impairment of Chronic Relapsing Disabling Fatigue, or is related to an undiagnosed and untreated neurological condition.
There may also be age related factors. Each of the experts who provided oral evidence agreed that age was a factor impacting on Mr Morris’ functional capacity. Dr Lynn agreed that an aged care assessment would ‘definitely be worthwhile’. Mr Foy said that age was ‘definitely a factor’ but also suggested that the main impact of age was on motivation and the need to work harder to improve capacity. Mr Byrne said that the reduction in Mr Morris’ capacity could be related to fatigue, age or weakness. Dr Gorman confirmed his view that age would be a factor in the prognosis for Mr Morris being able to significantly improve his capacity. The extent of Mr Morris age as a factor continuing to his decline in functional capacity was not clear. The uncertainty regarding the impacts of age or other factors means that I am not satisfied that these factors are permanent impairments within the meaning of section 24.
Bundle of tasks in activity as a whole
Based on the above, on good days, I have assessed Mr Morris as being unable to effectively complete the tasks of walking and traversing steps as part of the mobility activity. However, I consider that Mr Morris can effectively complete other tasks within the activity of mobility. On good days, Mr Morris’ capacity for transfers, bending, lifting, driving, and moving around the community shows a level of reduced functioning, but not to a degree that I would consider to be substantial. Applying Foster, when considering the ‘bundle-of-tasks’ that make up the activity of mobility, I do not consider that, on good days, Mr Morris has a substantially reduced functional capacity in respect of the mobility activity as a whole.
Conclusion in relation to functional capacity
In the above analysis, in relation to the activity of mobility, I have concluded that Mr Morris:
(a)has a substantially reduced functional capacity on bad days, and that around one third of his days are bad days;
(b)is unable to effectively complete mobility tasks related to walking and using stairs, even on good days;
(c)is able to effectively complete other mobility tasks including bending, transfers, lifting, driving, and moving around the community;
(d)relies on assistive technology (other than ‘commonly used items’) to walk;
(e)does not usually require the assistance from others to mobilise;
(f)may have age related or other factors that are impacting on aspects of his functional capacity; and
(g)does not, on good days, have a substantially reduced functional capacity with respect to the ‘bundle-of-tasks’ that make up the activity of mobility.
For completeness, in respect of self-care, I also consider that Mr Morris has a substantially reduced functional capacity on bad days but not on good days. On good days, I would consider that Mr Morris is able to complete most self-care tasks independently. I also consider that age or other factors may be impacting on his capacity for self-care tasks such as cooking and cleaning. For the reasons outlined above, I do not consider that these age or other factors are permanent impairments.
Taken together, I am not satisfied that Mr Morris has a substantially reduced functional capacity in one or more of the activities set out in section 24 of the NDIS Act. I am therefore not satisfied that Mr Morris meets the disability requirements necessary to be granted access to the NDIS.
As section 24(1)(c) has not been met, it is not necessary to consider section 24(1)(e) with regards to whether Mr Morris is likely to require support under the scheme for his lifetime. I invited the parties to provide submissions regarding section 24(1)(e) and I have considered these submissions as relevant to section 25(3) as discussed below. If I am wrong about Mr Morris’ functional capacity, I would still consider that Mr Morris did not meet the disability requirements because I would not be satisfied that section 24(1)(e) was met given my conclusions about section 25(3).
Early intervention requirements
I am still required to consider whether the Applicant also meets the early intervention requirements in section 25 of the NDIS Act. Unlike the disability requirements, the early intervention requirements do not require a substantially reduced functional capacity. There are other requirements in section 25 relating to reducing future support needs, alleviating impacts, preventing deterioration, improving capacity, or strengthening the sustainability of informal supports.
I have decided to not go through these provisions in any depth. The evidence before the Tribunal indicates to me that the requirements in sections 25(1)(b) and (c) are met. In Dr Gorman’s report his opinion was that:[37]
At 65 years of age, and having had now symptoms for more than five years, unfortunately I am not certain that the intervention by way of cognitive behavioural therapy or exercise physiology may make a significant difference. There is no doubt that this would be the appropriate treatment but the prognosis after such treatment is uncertain.
[37] D15 at page 319.
During oral evidence, Dr Gorman clarified that, he considered that the cognitive behavioural therapy and exercise physiology were ‘likely’ to prevent deterioration, improve functional capacity, and strengthen the sustainability of the support provided by Ms Buttula-Morris. Mr Byrnes reached as similar conclusion in his report:[38]
Mr Morris would benefit from psychological counselling and exercise physiology developed exercise program (including cost to attend a gymnasium and hydrotherapy clinic).
[38] D16 at page 350.
I have chosen not to go through these requirements further as section 25(3) (as in force prior to commencement of the Back on Track Act) states that:
… the person does not meet the early intervention requirements if the CEO is satisfied that early intervention support for the person is not most appropriately funded or provided through the National Disability Insurance Scheme, and is more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or through systems of service delivery or support services offered:
(a) as part of a universal service obligation; or
(b) in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
Age requirement and appropriateness of aged care
As outlined above, Mr Morris was 64 when he applied for access and therefore met the age requirement. In my view, the assessment of whether the NDIS or other systems of support are most appropriate in section 25(3) is a separate step from considering the age requirement. Mr Morris is now 67 and this is relevant to considering the appropriate system for providing supports to him.
During closing submissions, the Tribunal asked the Agency for their view on the ‘temporal aspect’ of the decision-making with regards to the age of the Applicant. I referred the parties to the Tribunal’s reasoning in Johnson[39] in which the Tribunal found that a condition that only developed after an access application had been made (and after the Applicant had turned 65) could not be considered in respect of the Applicant’s impairments and functional capacity. Because section 20 of the NDIS Act requires the CEO to consider access requests within 21 days (or request further information), the Tribunal considered that this was the relevant point-in-time at which to assess the Applicant’s impairments.
[39] Johnson and National Disability Insurance Agency [2023] AATA 1989, [69] – [85].
In Johnson, the Tribunal referred to the High Court decision in Frugtniet[40] which held at paragraph 53 that:
The AAT has no jurisdiction to make a decision on the material before it taking into account a consideration which could not have been taken into account by the primary decision-maker in making the decision under review and which could not be taken into account by the primary decision-maker were the AAT to remit the matter to the primary decision-maker for reconsideration.
[40] Frugtniet v Australian Securities and Investments Commission [2019] HCA 16.
Applying this reasoning, the Tribunal considered that Mr Johnson’s condition, which did not manifest until after his access request, was not a matter that could have been taken into account by the primary or review decision-makers. I do not consider that Frugtniet applies in these circumstances. In Frugtniet, the decision-maker was expressly prohibited from taking into account spent convictions. There is no express prohibition in the NDIS Act in relation to impairments that developed after an access request was made.
I also agree with the Agency’s submission that the time constraints imposed on the CEO when making the original decision under section 20 of the NDIS Act do not apply to the Tribunal’s decision-making process. This is consistent with the conclusion reached on a similar issue when considered by the Tribunal (before another member) in JLTZ[41] which the Applicant’s advocate drew my attention to.
[41] JLZT and National Disability Insurance Agency [2022] AATA 541, [39] – [45].
However, for Mr Morris, this conclusion plays out in a less favourable way. In my view, I can consider that Mr Morris is now 67, even though Mr Morris was 64 at the time when the NDIA received his access application. While he met the age requirement because he was 64 when he applied, for the purpose of assessing whether the aged care system is the most appropriate system for providing support to Mr Morris, it is his age at the time of my decision that must be considered.
In doing so, it is appropriate for the Tribunal to have regard to The Applied Principles and Tables of Support to Determine the Responsibilities of the NDIS and other Service Systems (‘ATPOS’).[42] Principle 11 in ATPOS states that:
The aged care system will continue to be responsible for access to quality and affordable aged care and carer support services, including through subsidies and grants, industry assistance, training and regulation of the aged care sector, information assessment and referral mechanisms, needs-based planning arrangements and support for specific needs groups and carers.
[42] (published 27 November 2015).
According to the Commonwealth Home Support Programme Program Manual 2024-2025 this program:[43]
… provides entry-level support to help older people continue to live safely and independently at home and in their communities. It is available to people aged 65 years and over, and Aboriginal and or Torres Strait Islander people aged 50 years and over. The CHSP is suitable for people who can live independently at home but need small amounts of entry-level support to do so.
… clients can access a range of basic support services including domestic assistance, transport, meals, personal care, home maintenance, home modifications, social support, nursing, and allied health. Planned respite services are also available so that carers can take a break from their usual caring responsibilities. CHSP services may be accessed on a short-term, intermittent, or ongoing basis.
[43] at page 6.
In addition to these basic support services, following an assessment with an Aged Care Assessment Team (‘ACAT’), the aged care system may also provide Home Care Packages for those with greater or more complex care needs. As noted earlier, Dr Lynn indicated in oral evidence that an ACAT assessment would be recommended for Mr Morris.
I agree with the conclusion reached by the Tribunal in NRNK[44] that an applicant’s eligibility for assistance under the aged care system means that the aged care system is the appropriate system for providing support to the Applicant. As set out in Foster,[45] it is not correct to ask whether the aged care supports are comparable to what may be available under the NDIS. Similarly, I would also conclude that wait-times for aged care are not relevant to the decision as to which system is most appropriate to provide support.
[44] NRNK and National Disability Insurance Agency [2024] AATA 110, [137] – [147].
[45] At paragraph 95.
The parties drew my attention to matters in which the Tribunal has considered whether an applicant should demonstrate they have taken steps to access supports through other systems. I do not need to consider this issue here. It is the appropriateness of the aged care system, not Mr Morris’s eligibility for a specific program or the steps he has or taken to apply, that are most relevant here. I am satisfied that early intervention support is not most appropriately provided under the NDIS is more appropriately provided under the aged care system. I am therefore not satisfied that Mr Morris meets the early intervention requirements in section 25.
For completeness, I note that there was some discussion during the hearing in relation to Mr Morris being Aboriginal and therefore being eligible for aged care from the age of 50. I have not taken this into account in my decision as the NDIS Act does not include a different age requirement for Aboriginal Australians, and Mr Morris is now over 65.
However, I would encourage Mr Morris to look at supports that may be available for Aboriginal Australians under the aged care system, including culturally safe services in rural and remotes areas provided by the National Aboriginal and Torres Strait Islander Aged Care Program (‘NATSIFAC’).[46] I would also encourage Ms Buttula-Morris to look at the assistance that may be available through Carers NSW Australia.[47]
[46]
I am not satisfied that the Applicant meets the Disability or Early Intervention Requirements as set out in sections 24 and 25 of the NDIS Act. I am therefore not satisfied that the Applicant meets the access criteria in section 21. The Applicant is not eligible to become a participant of the NDIS. The decision of the Agency under review is affirmed.
Dates of hearing: 2, 3 and 4 October 2024 Date final submissions received: 29 October 2024 Representative for the Applicant: Michael Hampton (Synapse Australia) Solicitors for the Respondent:
Counsel for the Respondent:
Teagan Wood, Maddocks Lawyers
Nicole Maddocks
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