Morris and National Disability Insurance Agency (NDIS)

Case [2024] ARTA 186

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 110

Secondary Materials
Commonwealth Home Support Programme Program Manual 2024-2025 June 2024
Operational Guideline ‘Applying to the NDIS’ 1 February 2024

The Applied Principles and Tables of Support to Determine the Responsibilities of the NDIS and other Service Systems 27 November 2015

Statement of Reasons

SUMMARY

  1. 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

  2. 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’).

  3. 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.

  4. 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,…

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Details
AGLC
Morris and National Disability Insurance Agency (NDIS) [2024] ARTA 186
Case
[2024] ARTA 186
Decision Date

CaseChat Overview and Summary

In Morris and National Disability Insurance Agency (NDIS), the applicant sought a review of the decision to deny his access to the NDIS. The applicant contended that his Chronic Relapsing Disabling Fatigue, which developed after cancer treatment, resulted in substantially reduced functional capacity. The primary legal issues were whether the applicant met the disability requirements under section 24 of the NDIS Act, or the early intervention requirements under section 25. The Tribunal examined the applicant’s medical history, functional capacity assessments, and the implications of his disability on his ability to participate in relevant activities such as communication, social interaction, learning, mobility, self-care, and self-management. The applicant's evidence included reports from medical professionals, statements from the applicant and his spouse, and an independent medical assessment.

The Tribunal found that the applicant had a disability attributable to Chronic Relapsing Disabling Fatigue, which was permanent and affected his capacity for social and economic participation. The Tribunal concluded that the applicant’s impairments resulted in substantially reduced functional capacity, as defined by the Becoming a Participant Rules. The applicant met the criteria for disability under section 24 of the NDIS Act, thus making him eligible for NDIS support. The Tribunal noted that the applicant's evidence sufficiently demonstrated the impact of his disability on his daily life, thereby justifying a reversal of the NDIS's decision to deny access.

The Tribunal ordered that the decision to deny the applicant access to the NDIS be set aside. It directed the NDIS to review the applicant’s application for access under the National Disability Insurance Scheme, considering the findings that the applicant met the disability requirements.

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 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.CONSIDERATIONAge 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

Decision

Reasons for decision

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[3] Section 3(1)(c).[4] Section 3(3)(b).(ii) the person meets the early intervention requirements (see section 25). 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.

Ratio Decidendi

Legal Principle Established

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.CONSIDERATIONAge 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.