Mottley and National Disability Insurance Agency
[2022] AATA 4048
•29 November 2022
Mottley and National Disability Insurance Agency [2022] AATA 4048 (29 November 2022)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number: 2021/0133
Re:Tanya Mottley
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
Decision
Tribunal:Senior Member J Collins
Date:29 November 2022
Place:Brisbane
The Tribunal affirms the decision under review pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).
...............[SGD]..................
Senior Member J Collins
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – access criteria – whether Applicant’s disability meets disability requirements – consideration of section 24 National Disability Insurance Scheme Act 2013 (Cth) – whether impairment is permanent or likely to be permanent – permanence criteria not satisfied – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
Cases
Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 60
G v Minister for Immigration and Border Protection [2018] FCA 1229
Mulligan v National Disability Insurance Agency [2015] FCA 544
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Secondary Materials
National Disability Insurance Scheme (Becoming a Participant) Rules 2016
Access to the NDIS – Operational Guidelines
REASONS FOR DECISION
Senior Member J Collins
29 November 2022
This is a decision about whether Ms Tanya Mottley (“the Applicant”), a 53-year-old woman, meets the access requirements to be become a participant in the National Disability Insurance Scheme (“NDIS”).
For the reasons set out below, the Tribunal affirms the decision under review.
BACKGROUND
On 22 September 2020 the Applicant applied to the National Disability Insurance Agency (“the Respondent”) to become a participant in the NDIS. In her application, the Applicant stated that her impairments were bi-polar disorder (“BPAD”) with predominant anxiety and recurrent migraines.[1]
[1] Exhibit 2, Section 37 T Documents, T15, ‘NDIS Access Request – Supporting Evidence Form’.
On 12 October 2020 that application was refused by the Respondent on the basis that the Applicant did not meet the disability requirements necessary to access the NDIS.[2]
[2] Ibid, T19.
On 9 November 2020, the Applicant applied to the Respondent for a review of that decision.[3]
[3] Ibid, T20; see NDIS Act 2013 (Cth), section 100(2).
On 14 December 2020, that internal review decision (the “reviewable decision”) affirmed the original decision[4] on the basis that the delegate was not satisfied that:
[4] Ibid, T1A.
·The impairments are, or are likely to be, permanent pursuant to subsection 24(1)(b) of the National Disability Insurance Act 2012 (Cth) (“the Act”);
·The Applicant had a substantially reduced functional capacity, or psychosocial function, to undertake communication, social interaction, learning, mobility, self-care and/or self-management pursuant to subsection 24(1)(c) of the Act; and
·The Applicant would require lifetime support of the NDIS pursuant to subsection 24(1)(e) of the Act.[5]
[5] Ibid.
On 6 January 2020 the Applicant applied to the Administrative Appeals Tribunal (the “Tribunal”) for review of that internal review decision.[6]
[6] Ibid, T1; NDIS Act 2013 (Cth), section 13.
The application was heard by the Tribunal in the Brisbane Registry, utilising the electronic platform ‘MS Teams’ on 11 and 12 August 2022. The Applicant was assisted by Mr Jeffrey Finnimore, an Advocate from Co-ordinated Care Services. The Respondent was represented by Mr Justin Davidson of Counsel and was instructed by Ms Kate Gawidziel, a Senior Lawyer from Australian Government Solicitor.
legislative framework
National Disability Insurance Scheme Act 2013 (Cth)
The objects of the Act are set out in Part 2 of the Act. Section 3(1) relevantly they include the following objects:
“…
(c) support the independence and social and economic participation of people with disability; and
(d) provide reasonable and necessary supports, including early intervention supports, for participants in the National Disability Insurance Scheme; and
(e) enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports; and
(f) facilitate the development of a nationally consistent approach to the access to, and the planning and funding of, supports for people with disability; and
(g) promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the community; …”
Section 3(3) of the Act contains the proviso that in giving effect to the objects of the Act, regard must be had to the need to ensure the financial sustainability of the NDIS.
Section 4 of the Act sets out the general principles guiding the administration of the Act. They include the following:
“(1) People with disability have the same right as other members of Australian society to realise their potential for physical, social, emotional and intellectual development.
(2) People with disability should be supported to participate in and contribute to social and economic life to the extent of their ability.
…
(5) People with disability should be supported to receive reasonable and necessary supports, including early intervention supports.
...
(8) People with disability have the same right as other members of Australian society to be able to determine their own best interests, including the right to exercise choice and control, and to engage as equal partners in decisions that will affect their lives, to the full extent of their capacity.
...
(10) People with disability should have their privacy and dignity respected.
(11) Reasonable and necessary supports for people with disability should:
(a) support people with disability to pursue their goals and maximise their independence; and
(b) support people with disability to live independently and to be included in the community as fully participating citizens; and
(c) develop and support the capacity of people with disability to undertake activities that enable them to participate in the mainstream community and in employment.”
The criteria by which access is granted to the NDIS are set out in Part 1 of Chapter 3 of the Act (sections 21 through25, respectively). Section 21 of the Act provides that for a person to meet the access criteria, they must meet the age and residence requirements in addition to either the disability requirements (section 24 of the Act) OR the early intervention requirements (section 25 of the Act). The Respondent accepted that the Applicant meets both the age and residence requirements. The Applicant acknowledges and does not seek to rely on the early intervention requirements.[7] Accordingly, the only matter for determination by the Tribunal is whether the Applicant meets the disability requirements prescribed by section 24 of the Act.
[7] Transcript (12 August 2022), pages 21-22.
The Rules
Section 209(1) of Act provides that the Minister may make rules prescribing matters under the Act. Relevantly, section 27 of the Act states that the rules may prescribe circumstances in which, or criteria to be applied with respect to assessing whether, a person meets the disability requirements under section 24 of the Act. The rules relevant in this review are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (“the NDIS Access Rules”).
The relevant NDIS Access Rules with respect to the disability requirements provide as follows:
“5.1 The Act sets out when a person meets the disability requirements. The requirements are met 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 person’s impairment or impairments are, or are likely to be, permanent (see paragraphs 5.4 to 5.7); and
…
5.3 This Part sets out rules relating to some of the elements in paragraph 5.1 above, however, in order to meet the disability requirements, all of the requirements in that paragraph need to be satisfied.
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.
…
5.6 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)…”
Operational Guidelines
Operational Guidelines have also been issued in relation to the access criteria. There is however no power conferred by the Act to make Operational Guidelines, rather they are issued in an exercise of executive power.[8] The guidelines relevant in this review are the ‘Access to the NDIS – Operational Guidelines’ (“the NDIS Operational Guidelines”).
[8] G v Minister for Home Affairs [2019] FCAFC 79 at [18].
The Tribunal is not bound by any policy set out in the NDIS Operational Guidelines however, in Re Drake and Minister for Immigration and EthnicAffairs(No 2)[9] the Federal Court held that a Tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation. Further guidance for the proposition that the Tribunal is not bound by policy is found in G v Minister for Immigration and Border Protection[10] where Mortimer J held:
[9] [1979] AATA 179 (1979) 2 ALD 634.
[10] [2018] FCA 1229.
“Justice or injustice is not found within a policy. It is found by looking at the overall circumstances of an individual’s case with the principal focus bring on the purpose and context of the statutory power, not the executive policy framed to guide it …”[11]
[11] Ibid, at 171.
The relevant NDIS Operational Guidelines in effect at the time of the decision were as follows:
“8.1 What is a disability attributable to impairment?
...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.
...
For the purpose of determining access, the NDIS Act is not concerned with what caused a person's disability. All people with disabilities who meet the access criteria can be participants, whether the disability came about through birth, disease, injury or accident (see Mulligan and NDIA [2015] FCA 44 at [16]).
Whether a prospective participant has a disability attributable to an impairment is a question of fact to be determined on the balance of available evidence, including their diagnosis.
If a prospective participant has multiple impairments, the NDIA will consider all impairments together when considering whether the person satisfies this disability requirement.”These NDIS Operational Guidelines were updated on 1 July 2022. The Current NDIS Operational Guidelines provide as follows:
“When we consider your disability, we think about whether any reduction or loss in your ability to do things, across all life domains, is because of an impairment.
An impairment is a loss or significant change in at least one of:
your body’s functions
your body structure
how you think and learn.
To meet the disability requirements, we must have evidence your disability is caused by at least one of the impairments below
intellectual – such as how you speak and listen, read and write, solve problems, and process and remember information
cognitive – such as how you think, learn new things, use judgment to make decisions, and pay attention
neurological – such as how your body functions
sensory – such as how you see or hear
physical – such as the ability to move parts of your body.
You may also be eligible for the NDIS if you have a psychosocial disability. This means you have reduced capacity to do daily life activities and tasks due to your mental health.
It doesn’t matter what caused your impairment, for example if you’ve had it from birth, or acquired it from an injury, accident or health condition.
It also doesn’t matter if you have one impairment, or more than one impairment.
…
We need evidence that you’ll likely have your impairment for your whole life.
…
Generally, we’ll consider whether your impairment is likely to be permanent after all available and appropriate treatment options have been pursued.
…
Your impairment will likely be permanent if your treating professional gives us evidence that indicates there are no further treatments that could relieve or cure it.
Your treating professional will tell us or be asked to certify if there are medical, clinical or other treatments that are likely to remedy your impairment. We need to understand whether there are treatments which are:
known and available
appropriate for you and your impairment
evidence-based – that is, there’s proof they are likely to be effective.
…
If you’re still undergoing or have recently had treatment, we’ll need to wait until you know the outcome of the treatment before we can decide your impairment is likely to be permanent…”
The Disability Requirements – Section 24 of the Act
At the time of the decision under review section 24 of the Act provided as followed:
“(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:
(i) communication;
(ii) social interaction;
(iii) learning;
(iv) mobility;
(v) self-care;
(vi) self-management; and
(d) the impairment or impairments affect the person’s capacity for social or economic participation; and
(e) the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime.
(2) For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the variation.”
The term “disability” and “impairment” are not defined in the Act. In Mulligan v National Disability Insurance Agency[12] (“Mulligan”), Mortimer J commented as follows:
[12] [2015] FCA 544; (2015) 233 FCR 201.
“The term “disability” is used in the Act, and in s 24, as a descriptive concept for the overall effect of a person’s impairments on that person’s abilities to participate in all aspects of personal and community life. Threshold provisions such as s 24 operate not on the concept of disability, but on the concept of an impairment, which... is generally understood as involving the loss of or damage to a physical, sensory or mental function.”[13]
[13] Ibid, at [16].
the evidence before the tribunal
The present application involved a review and consideration of various documentary evidence, including reports from both medical and allied health specialists.[14] The Respondent called one expert to give oral evidence at the hearing, Dr Antonella Ventura a psychiatrist. At the conclusion of the hearing both the Applicant and Respondent provided written closing submissions which were also considered by the Tribunal.
[14] See Annexure A – Exhibit Register.
The Applicant elected not to call any witnesses or experts to give oral evidence at the hearing. Mindful that the Applicant was not legally represented, the Tribunal encouraged the Applicant to carefully consider this approach, in particular the forensic risk. The Tribunal referred the Applicant to the nature and purpose of examination in chief and cross-examination as an opportunity for each party to prove and test the expertise of the opinions presented to the Tribunal by an expert or witness, including the basis for any opinion.[15]
[15] Transcript (11 August 2022), page 8, lines 19-25; page 12, lines 20-26.
Notwithstanding the Tribunal’s encouragement, the Applicant chose to rely only on documentary evidence provided to the Tribunal. The Applicant’s submission was that there was ample documentary evidence from a wide range of clinicians before the Tribunal. Further, that a decision could easily made by the Tribunal without the need for the Applicant calling any witnesses whatsoever.[16] The Tribunal respected the Applicants election and the hearing proceeded on that basis.[17]
[16] Ibid, page 8, lines 15-17; and lines 28-29.
[17] Administrative Appeals Tribunal Act 1975 (Cth), section 33(1)(a).
The Applicant’s Evidence
The Applicant elected not to provide oral evidence at the hearing other than to informally indicate towards the end of the hearing that she had been prescribed topiramate medication as a treatment for her migraine headaches and BPAD.[18] It is of course a matter for the Applicant to conduct her case how she sees fit. The Tribunal respected the Applicant’s choice, notwithstanding the provision of evidence by an Applicant does often provide the Tribunal with an opportunity to assess the credibility of the Applicant and the reliability of the evidence they provide.
[18] Transcript (12 August 2022), pages 60-61.
The Applicant’s ‘NDIS Access Request – Supporting Evidence Form’ nominated the following impairments:
·BPAD;
·anxiety disorder; and
·migraines.[19]
[19] Exhibit 2, Section 37 T Documents, T15, ‘NDIS Access Request – Supporting Evidence Form’; Exhibit A7, Applicant’s closing submissions, at para [1].
In other documentation the Applicant provided evidence in relation to the effect these impairments had on her ability to participate in personal and community life. Some of these included difficulties with:
·interpersonal relationships;
·poor memory;
·regularly washing her hair;
·paying bills and attending the bank;
·anxiety when using public transport;
·high levels of anxiety including panic attacks;
·caring for her daughter;
·a fear of crowds;
·obtaining employment;
·shopping;
·remembering to take medication;
·voices in her head;
·social anxiety and reluctance to leave her home;
·paranoia and over-sensitivity;
·low self-esteem;
·prioritising tasks;
·organisational skills;
·confidence;
·learning new tasks;
·making decisions; and
·depression.[20]
[20] Exhibit 1, A2, ‘Applicant’s Statement of Lived Experience’; Exhibit 2, Section 37 T Documents, T15, ‘NDIS Access Request – Supporting Evidence Form’.
Dr Kavitha Seth
Dr Seth, a psychiatrist, and psychotherapist was not called to give oral evidence at the hearing.
Dr Seth’s documentary evidence is contained in three correspondences by Dr Seth to Dr Sunkaraneni, General Practitioner – dated 21 April 2020, 22 June 2020, and 22 September 2020 respectively.[21] Each correspondence relates to a ‘Comprehensive Mental Health Assessment’ (“CMHA”) of the Applicant undertaken by Dr Seth.
[21] Exhibit 2, Section 37 T Documents, T10; T12; and T16.
Relevantly, Dr Seth’s correspondences each contain the following caveat:
“Below are my notes of the Comprehensive Mental Health Assessment undertaken that form part of the electronic health record for your patient. This report is meant solely for clinical purposes and not for any legal purpose please.”[22]
[22] Ibid.
[Tribunal underline]
Dr Seth’s evidence provided a diagnosis of BPAD, anxiety disorder and chronic migraine.[23]
[23] Ibid.
In respect of the first CMHA in April 2020, Dr Seth states:
“…Fortunately, she has a likeable quality and with medications and psychology sessions, she will make some progress in her mental state… Her prognosis depends on adequate treatment of her mood and anxiety disorder and gaining healthy coping mechanisms in managing her psychosocial stressors in the future...”[24]
[24]Exhibit 1, A1.
At that time Dr Seth prescribed Topiramate and Seroquel medication with a plan for the Applicant to taper down her Endone medication if the Seroquel medication, “…is well tolerated.”[25]
[25] Exhibit 2, Section 37 T Documents, T12.
Dr Seth’s second CMHA in June 2020 refers to increasing the Applicant’s dosage of Topiramate medication. It also refers to Applicant continuing with her Endone medication and a recommendation to commence Seroquel medication if, “…very anxious.”[26]
Dr Seth’s third CMHA in September 2020 states that, “we agreed she has been stabilised as much as she can with medication…”.[27] Notwithstanding, Dr Seth further states, “May add Seroquel 12.5mg or 25mg PRN during the day if very anxious…”.[28]
Dr Seth’s assessments each state the Applicant’s, “… prognosis depends on adequate treatment of her mood and anxiety disorder and gaining healthy coping mechanisms in managing her psychosocial stressors…”. Dr Seth also made a strong recommendation that the Applicant see a psychologist for Cognitive Behavioural Therapy (“CBT”) to learn healthy coping mechanisms for dealing with psychosocial stressors.[29]
In respect of evidence in relation to the Applicant’s functioning, Dr Seth’s correspondences each state, “…unable to work” and, “…reasonable with ADL’s” (Activities of Daily Living).
Dr Sandeep Sunkaraneni
[26] Ibid, page 45.
[27] Ibid, T16, page 95.
[28] Ibid, page 96.
[29] Ibid, T3; T6; T18; and T23.
Dr Sunkaraneni, a general practitioner at the Queanbeyan GP Super Clinic was not called to give oral evidence at the hearing. His documentary evidence was contained in his medical records relating to the Applicant and various other documents.[30]
[30] Ibid, T3; T 6; T17; T18; and T23.
On 1 February 2021 Dr Sunkaraneni, completed a document titled 'Evidence of psychosocial disability form – NDIS’.[31] In this document he provided an opinion that the Applicant has a “mental health condition” which is comprised of a diagnosis of anxiety disorder, made in January 2017 and a diagnosis of BPAD, made in April 2020. Dr Sunkaraneni refers to a number of impairments consequent upon the Applicant’s mental health conditions which he describes as, “social severe anxiety, problems with concentration and focus, higher level problem solving/cognition and learning… struggles to make friends, social isolation, major problems with trust, paranoia at times.”[32] In completing this document Dr Sunkaraneni confirms by way of a, ‘tick box’ that the impairments caused by the Applicant’s mental health condition are permanent.[33] In this document Dr Sunkaraneni also refers to multiple difficulties arising as a consequence of the Applicant’s mental condition which include:
[31] Exhibit 1, A1.
[32]Ibid, page 2.
[33] Ibid, page 5.
·difficulties establishing and maintaining friendships;
·anxiety;
·self–organisation;
·shopping;
·managing finances and paying bills;
·processing tasks;
·problem solving;
·learning; and
·processing information and problem solving.[34]
[34] Ibid.
In the absence of Dr Sunkaraneni being called to give evidence, the Tribunal sought clarification in respect of the diagnoses referred to by Dr Sunkaraneni in his documentation. The Applicant was unable to verify whether Dr Sunkaraneni had made each of these diagnoses in January 2017 and April 2020, or whether in fact he was the Applicant’s treating doctor at these relevant times. Mr Finnimore submitted to the Tribunal that he suspected the diagnoses were made by Dr Seth, the Applicant’s psychiatrist.[35] In this regard Dr Sunkaraneni’s medical records only provide some limited assistance insofar as they indicate that the Applicant was under the care of Dr Sunkaraneni from at least 23 April 2016.[36] These records however refer to the Applicant attending with Dr Sunkaraneni predominately in respect of her migraine headaches. The Applicant only attended once in relation to an ‘anxiety disorder’.
[35] Transcript (12 August 2022), page 54, lines 27-33.
[36] Exhibit 2, Section 37 T Documents, T23.
Dr Sunkaraneni’s evidence also included a referral of the Applicant to Dr Sandeep Rajagopal on 23 September 2020 at the Canberra Dizziness Clinic for treatment of vertigo associated with migraine headaches. This referral contains a list of the Applicant’s medications. Notably, this list does not include Seroquel, which was the medication prescribed by Dr Seth on three occasions for treatment of the Applicant’s anxiety.[37]
[37] Ibid, T17.
Of relevance, Dr Sunkaraneni’s medical records on 29 September 2020 state that the Applicant, “has had [a] telehealth [consultation] with Dr Seth – Psychiatrist at Bondi Junction who has put her on topiramate………. Has seen Gonzalo Santiago – psychologist she prefers to see female (sic) psychologist.”[38]
[38] Ibid, T18.
Dr Sunkaraneni also completed a document titled ‘Evidence of psychosocial disability form' on 1 February 2021. In this form Dr Sunkaraneni provides detail in respect to the criteria contained in subsection 24(1)(c)(i) to (vi) of the Act, inclusively.[39]
[39] Exhibit 1, A1.
Ms Narelle Reed
Ms Reed, a psychologist at Grand Pacific Health, was not called to give oral evidence at the hearing. Several documents authored by Ms Reed in respect of her treatment of the Applicant were before the Tribunal as evidence.[40]
[40] Exhibit 2, Section 37 T Documents, T4; T5; T7; T13; T14; T22.
Ms Reed’s evidence referred to the diagnoses made by Dr Seth of BPAD and chronic migraine. It also refers to the Applicant’s participation in a course of CBT with Ms Reed and her assessment of the Applicant’s difficulties which include reading, writing, basic arithmetic, completing administrative tasks, anxiety accessing the community, communication with others and social isolation.[41]
[41] Ibid. T13.
Ms Gonzalo Santiago
Mr Santiago, also a psychologist, was likewise not called to give oral evidence at the hearing. His evidence was contained in an undated letter by him titled, “To whom it may concern”. Mr Santiago’s evidence was that the Applicant had been referred to him for psychotherapy sessions by Dr Sunkaraneni. Mr Santiago states:[42]
·“Miss Mottley reported having various and different diagnosis over time, including a psychotic condition. However, she expressed her dissatisfaction and frustration with the lack of clarity. She reported been (sic) diagnosed with a bipolar condition, following a recent ten-minute psychiatric session.”
·“I believe that her psychological distress is associated with her reaction to a traumatic event in the past.”
·“In my opinion Miss Mottley is experiencing a severe level of disturbance to her psychological health."
[42] Ibid, T21, page 118.
Ms Karen Skillman
Ms Skillman, a Mental Health Nurse at Grand Pacific Health was also not called to give oral evidence at the hearing. Ms Skillman’s evidence was provided in several documents[43] including a letter to Centrelink dated 10 February 2022. This letter referred to Dr Seth’s diagnosis of BPAD and anxiety disorder and states that this impairment is, “a lifelong illness for Tanya.”[44] Ms Skillman’s evidence is that the Applicant’s poor literacy and comprehension affects her anxiety disorder. Ms Skillman also completed an ‘NDIS Access Request – Supporting Evidence Form’ on 20 February 2020.[45] In this document she refers to a diagnosis BPAD with predominant anxiety as being made in 2016 after the Applicant was hospitalized for seven days.
[43] Ibid, T8; T9; T15; see also, Exhibit 6, Letter dated 10 February 2022 to Centrelink.
[44] Exhibit 6, Letter dated 10 February 2022 to Centrelink.
[45]Exhibit 2, Section 37 T Documents, T15.
Dr Antonella Ventura
The Respondent called Dr Antonella Ventura, a forensic psychiatrist with some 30 years’ experience, to give oral evidence at the hearing.[46] Dr Ventura examined the Applicant for one-hour by videoconference on 9 November 2021 and provided a report dated 18 November 2020.[47] Dr Ventura confirmed in her report and oral evidence that her clinical judgment supported the suitability of the technology-based consultation with the Applicant.[48] Dr Ventura also acknowledged her obligation to the Tribunal to provide impartial assistance on matters relevant to her area of knowledge and expertise.[49] The Tribunal found Dr Ventura to be a credible expert with appropriate psychiatric expertise.
[46] Transcript (12 August 2022), page 35, lines 35–40.
[47] Exhibit 1, R1, Report of Dr Antonella Ventura (dated 18 November 2021).
[48] Ibid; see also, Transcript (12 August 2022), page 39, lines 16-23.
[49] Ibid, page 35, lines 39-41; and page 36, line 6-7; see also, AAT Guidelines ’Person Giving Expert and Opinion Evidence’.
Dr Ventura described the Applicant as having a, “complex presentation.” Her evidence was that the Applicant did not have BPAD,[50] but did meet the DSM-5 criteria for a diagnosis of Generalised Anxiety Disorder (“GAD”). In her report Dr Ventura states that the Applicant, “…suffers from excessive anxiety and worry occurring more days than not for at least six months, about a number of events and activities… Ms Mottley’s anxiety condition can best be explained to be a consequence of past complex trauma and likely intellectual disability, which has not yet been formally assessed.”[51]
[50] Ibid, page 36, lines 23-32; Exhibit 1, R1, Report of Dr Antonella Ventura (dated 18 November 2021).
[51] Exhibit 1, R1, Report of Dr Antonella Ventura (dated 18 November 2021).
In her oral evidence, Dr Ventura confirmed that her diagnosis of GAD was a psychiatric condition.[52] Dr Ventura explained that for a diagnosis of BPAD to be made a patient must have a history of at least one episode of mania or hypermania, (irrespective of any depression).[53] Dr Ventura’s opinion was that in the absence of the Applicant having any history whatsoever of a persistent elevated mood, at any point in time, a diagnosis of BPAD simply could not be made. Dr Ventura stated, “... but most of all, the main point is that there was no evidence of persistent elevated mood. And you can’t diagnose bipolar affective disorder in the absence of no hypomania.”[54]
[52] Transcript (12 August 2022), page 44, line 8; lines 4-11.
[53] Ibid. page 36, lines 22-25.
[54] Ibid, lines 32-34.
Dr Ventura’s opinion was that the Applicant’s GAD was linked to her underlying intellectual difficulties. In her report she states that the Applicants, “…anxiety appears to be driven by her inability to understand things and get things done. In my view, this is a consequence of her not yet assessed, intellectual difficulties.”[55] Dr Ventura recommended the Applicant’s intellectual difficulties be properly assessed by a qualified specialist such as a neuropsychologist[56] and that the Applicant obtain psychiatric assistance to overcome her anxiety symptoms.[57]
[55] Exhibit 1, R1, Report of Dr Antonella Ventura (dated 18 November 2021), page 7.
[56] Ibid.
[57] Ibid.
In respect of the Applicant’s auditory and visual hallucinations, Dr Ventura’s evidence was that these hallucinations were not symptomatic of a mood disorder such as BPAD. Her opinion was that these symptoms were most likely attributable to an organic or underlying physical condition which required further investigation.[58]
[58] Ibid.
Dr Ventura’s evidence referred to the impact that the Applicant’s GAD had on her day-to-day functioning. She described the Applicant as being, “subjectively distressed” and explained that whilst being socially withdrawn the Applicant is not totally avoidant of leaving the house. Dr Ventura considered that despite her many problems, the Applicant was independent in the activities of daily living and did not have any problems with self-care or mobility.[59]
[59] Ibid, page 48.
Dr Ventura recommended an evidence based psychological treatment, tailored to the Applicants cognitive ability, for treatment of her anxiety symptoms. Dr Ventura’s evidence was that the Applicant may benefit from treatment with SSRI medication to decrease her anxiety and improve her social impairment. This recommendation was made in light of Dr Ventura’s review of the Applicant’s medical records which, in her opinion, indicated previous trials of SSRI medication had been erratic.[60]
[60] Ibid, page 42.
Issues
The Applicant relies on the following impairments for access to the scheme, pursuant to section 24(1)(a) of the Act:
·BPAD;
·anxiety disorder; and
·migraines.
In respect of section 24(1)(a) the Applicant submits that the Respondent should be required to “uphold” concessions previously made by the Respondent prior to the review by the Tribunal.[61] The Respondent however does not accept that the Applicant’s disability is attributable to the impairments nominated by the Applicant despite previous concessions.[62] The Respondent submits that it is a matter for determination by the Tribunal whether the Applicant satisfies the criteria in section 24(1)(a) of the Act.[63]
[61] Exhibit 2, Section 37 T Documents, T1A, Internal Review Decision (dated 14 December 2020); Exhibit 7, Applicant’s Closing Submissions, page 1.
[62] Exhibit 6, Respondent Closing submissions, page 7, para [19].
[63] Transcript (11 August 2022), page 3, line 42.
The Tribunal’s task in reviewing the present decision is to stand in the shoes of the original decision maker and make the correct or preferable decision on the material before it.[64] To perform this task requires consideration of all material before the original decision maker at the relevant time. The review process undertaken by the Tribunal however also affords both the Applicant and the Respondent with a further opportunity to:
·provide additional documentary evidence from both experts and witnesses;
·call experts and witnesses to provide oral evidence;
·re- consider their position, including in the context of any advice from Counsel or experts; and
·if appropriate make and withdraw a concession at any interval and prior to a decision by the Tribunal.
[64] Shi v Migration Agents Registration Authority (2008) 235 CLR 286, [37]-[38], [45]-[46] (Kirby J), [99] (Hayne and Heydon JJ), [140]-[143] (Kiefel J); Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60.
The Applicant’s submission in respect of section 24(1)(a) (and the concession previously made) is not accepted. To hold a Respondent or an Applicant in proceedings of this kind to a concession made prior to a review by the Tribunal would be detrimental to the operation and nature of the Tribunal’s “de novo” review process and its inquisitorial approach. The Tribunal’s present purpose is to reach the correct and preferable decision by considering and weighing the totality of the evidence before it, including, in this case, contemporaneous medical and lay evidence which postdates the previous Tribunal review.
considerations
Section 24(1)(a) – Whether the Applicant 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
For the reasons set out below the Tribunal finds that:
(a)The Applicant does not have an impairment attributable to the psychiatric condition of BPAD.
(b)There is insufficient information before it to determine whether the Applicant’s migraine headaches are a disability that can be accurately categorised as a neurological impairment.
(c)The Applicant has an impairment attributable to the psychiatric condition of GAD.
The Tribunal made the following considerations in respect of it’s a determination under section 24(1)(a) of the Act:
·The Tribunal accepts that both Dr Sunkaraneni and Dr Seth each as medical practitioners have the requisite expertise to assess and provide a diagnosis in respect of each of the impairments nominated by the Applicant for the purposes of seeking access to the NDIS. Their evidence was considered and was cautiously weighted in the absence of being tested under cross-examination.
·The Tribunal gave limited weight to the documentary evidence provided by Ms Reed, Ms Skillman and Mr Santiago in respect of any diagnosis of the Applicant. This was on the basis that each of their evidence simply referenced the diagnosis of BPAD as was made by Dr Seth and not themselves. This is certainly not a criticism of Ms Reed, Ms Skillman or Mr Santiago. Each of their referencing was made appropriately in the context of their respective role/s in the care and treatment of the Applicant and not in any diagnostic capacity.
·In respect of the evidence of Dr Seth, the Tribunal found it difficult to give her evidence substantial weight for numerous reasons. These included the clear caveat by Dr Seth herself that her reports were solely for ‘clinical purposes’ and not for any legal purpose (i.e., this Tribunal review). Also, the Applicant elected not to call Dr Seth to give oral evidence. Had Dr Seth been called, her diagnosis of BPAD could have been tested under cross examination and expanded upon. Further, Dr Seth’s views on Dr Ventura’s competing GAD diagnosis could also have been explored and tested.
·The Tribunal was likewise unable to give substantial weight to Dr Sunkaraneni’s evidence and subsequent BPAD diagnosis. This was primarily due to the lack of clarity around whether Dr Sunkaraneni had personally assessed and diagnosed the Applicant with BPAD or whether his report and reference to a diagnosis of BPAD was based on the opinion of another medical practitioner, such as Dr Seth.
·The Tribunal gave significant weight to the evidence of Dr Ventura. Dr Ventura’s evidence, both written and oral, was considered by the Tribunal as reasonable and persuasive. Her evidence helpfully explained the assessment process for a diagnosis of BPAD and persuaded the Tribunal to make a finding that the Applicant did not have BPAD. In contrast, in the absence of the cross examination of Dr Seth and Dr Sunkaraneni the Tribunal could have no insight into how the diagnosis of BPAD was reached by them, particularly in the absence of evidence confirming any episode of elevated mood of the Applicant.[65]
·Dr Ventura’s evidence explaining her diagnosis of GAD as a consequence, in part, of the Applicant’s undiagnosed intellectual disability was also highly persuasive to the Tribunal. This diagnosis of an undiagnosed intellectual disability was reinforced and corroborated by the volume of evidence from the Applicant which indicated: a long history of learning difficulties (to the extent the applicant who is 51 years of age cannot read or write), problems with comprehension, understanding and the ability to simply navigate and function in the outside world. It was on this basis the Tribunal accepted the opinion of Dr Ventura that the Applicant’s GAD is largely driven by an undiagnosed intellectual disability which needs to be formally assessed.
·In respect of the Applicant’s criticism of Dr Ventura’s evidence being based only on a one-hour consultation, this criticism was treated cautiously by the Tribunal. Firstly, it was balanced against the untested and undated evidence of Mr Santiago which stated the Applicant was, “diagnosed with bipolar condition, following a recent ten-minute psychiatrist session.”[66] Secondly, as stated in her report, Dr Ventura’s assessment was not just based on a one-hour consultation with the Applicant. Dr Ventura was briefed with the Applicant’s medical records and accompanying file data. Dr Ventura also reviewed and considered this material in addition to her attendance with the Applicant for the purposes of preparing her report.
·In addition to the weight given to Dr Ventura’s evidence and her diagnosis of GAD, the Tribunal’s finding of GAD was also assisted by the evidence of:
oDr Seth who referred to the Applicant having an anxiety disorder; and
oThe evidence of the Applicant herself which detailed high levels of anxiety including panic attacks and other difficulties engaging with the outside world such as attending the bank, utilising public transport, and understanding written material.[67]
[65] Transcript (11 August 2022), page 5, line 42.
[66] Exhibit 2, Section 37 T Documents, T21.
[67] See, for example, Transcript (11 August 2022), page 18.
In relation to the Applicant’s migraine headaches, the Tribunal accepts that the Applicant: had multiple attendances with Dr Sunkaraneni seeking migraine treatment, was referred to Dr Rajagopal for migraine treatment and gave uncorroborated oral evidence at the hearing that she was being prescribed topiramate medication as a treatment.[68] Notwithstanding, the Applicant provided no evidence whatsoever that the frequency or nature of her headaches constituted a neurological impairment. For this reason, the Tribunal is not satisfied that the Applicant’s migraine headaches could be attributed to neurological impairment for the purposed of s 24(1)(a).
67 Exhibit 8, Applicant’s Closing Submissions (dated 6 September 2022).
Having determined that the Applicant suffers from GAD, a psychiatric impairment, it is still necessary for the Tribunal to be satisfied there exists a disability or disabilities that are attributable to this impairment. The Operational Guidelines relevantly provide that, “whether a prospective participant has a disability attributable to an impairment is a question of fact to be determined on the balance of available evidence, including their diagnosis.”[69]
[69] NDIS Operational Guidelines 8.1.
In respect of the Applicant’s GAD, on the balance of evidence before it, the Tribunal is satisfied that this disorder is significant and has wide-ranging disabling impacts on the Applicant’s functional capacity to engage in personal and community life. The effect of this disorder without doubt results in high levels of anxiety for the Applicant, manifesting in the form of panic attacks. The Applicant, for the most part, struggles to function in any meaningful way within her own home and the outside world.
Sub-section 24(1)(b) – Are the Applicant’s impairment/s permanent or likely or likely to be permanent
For the purposes of section 24(1)(b) the Applicant is required to satisfy the Tribunal that her GAD is permanent, or likely to be permanent. Rule 5.4 assists in this determination and provides that an impairment is, or is likely, to be permanent only if there are no known, available, and appropriate evidence based clinical, medical, or other treatments that would be likely to remedy the impairment. Rule 5.6 also assists and provides that an impairment may require medical treatment and review before a determination can be made on its permanence or likely permanence. Further, that an impairment is, or 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.
The Operational Guidelines relevant to section 24(1)(b) provide that in circumstances where there is a possibility of medical treatment and such medical treatment has some prospect of success, a conclusion as to permanency should not be reached. The Guidelines propose in such circumstances that a decision in relation to the permanency ought not be made until the outcome of the relevant treatment is known.[70]
[70] See also Mulligan v NDIA [2015] AATA 974, at para [71].
To satisfy the criteria in respect of section 24(1)(b) the Applicant relies firstly on the evidence of Ms Skillman contained in her correspondence dated, 10 February 2022 which states, “The Bipolar illness and associated mood changes are a lifelong illness for Tanya”, and, “I hope the letter is accepted as evidence of a permanent and lifelong issues (sic) which are stable and for which there has been adequate treatment.”[71] The Tribunal is unable to give this evidence any significant weight on the basis that Ms Skillman’s opinion was based on an impairment due to BPAD, a condition which the Tribunal has found does not affect the Applicant.
[71] Exhibit 6, Letter dated 10 February 2022 to Centrelink.
The Applicant also relies on a document titled ‘Evidence of psychosocial disability form’ completed by Dr Sandeep Sunkaraneni, General Practitioner, on 1 February 2021, in which he nominates by way of a ‘tick box’ that the Applicant’s BPAD and anxiety disorder were, “likely to be permanent.”[72] The Tribunal was unable to give Dr Sunkaraneni’s evidence any weight as it relates to a diagnosis of BPAD for the same reason stated above.
[72] Exhibit 1, A1.
Turning to the diagnosis of GAD, which the Tribunal accepts. The Tribunal found the evidence of Dr Ventura to be reasonable and persuasive. The Tribunal accepts Dr Ventura’s opinion that the Applicant’s GAD is not permanent and that the Applicant requires long-term treatment to stabilise her anxiety, reduce her psychological distress and improve her social functioning. This involves the completion of the following outstanding actions:
·An assessment of the Applicant’s intellectual impairment by a suitably qualified specialist such as a neuropsychologist.
·Evidenced based psychological therapy tailored to the Applicant’s reduced cognitive ability.
·Investigation and treatment of the Applicant’s hallucinatory phenomena.
·Consideration of pharmacological treatment (i.e., an SSRI) under the supervision of a psychiatrist.[73]
[73] Ibid, R1, Report of Dr Antonella Ventura (dated 18 November 2021), page 8.
Dr Ventura’s recommendations were made in light of her opinion that the Applicant’s anxiety was, in part, a consequence of her intellectual difficulties which needed to be formally assessed.[74] Further, that the hallucinations experienced by the Applicant, whilst not consistent with an anxiety disorder, nevertheless impacted on the Applicant’s anxiety levels.
[74] Ibid, page 7.
The Tribunal is persuaded by the evidence of Dr Ventura that there remain numerous assessments and treatment that ought to be undertaken before a determination can be made as to whether the Applicant’s impairment associated with her GAD is permanent, or likely to be permanent. The Tribunal is also persuaded by the evidence of Dr Seth and Dr Sunkaraneni which indicates that the suggested treatment of the Applicant’s anxiety with Seroquel appears not to have been explored.
Therefore, on the balance of evidence and having regard to both the NDIS Access Rules and Operation Guidelines the finding of the Tribunal is that appropriate assessments and treatment options have not been fully undertaken and explored in relation to the Applicant’s GAD impairment. On this basis it is not possible for the Tribunal to be satisfied that the Applicant’s impairment is permanent, or likely to be permanent.
In relation to the Applicant’s migraines headaches, likewise as no evidence of permanency whatsoever was provided by the Applicant, the Tribunal is unable to be satisfied that this impairment is permanent or likely to be permanent.
conclusion
Section 24(1) of the Act is cumulative. Having failed to establish that the Applicant’s impairment is permanent, or likely to be permanent, pursuant to section 24(1)(b), the Tribunal must by operation of the Act affirm the decision under review. The Tribunal notes that the Applicant is presently 51 years of age and can re-apply to the Respondent for access to the NDIS. In any further application to the Tribunal, the importance of a detailed functional assessment and the nature of supporting evidence ought not be underestimated.[75]
[75] Mulligan v NDIA [2015] AATA 974, at para [56].
DECISION
It is for these reasons the Tribunal is not satisfied that the Applicant has met the access criteria pursuant to section 24 of the Act. Consequently, the Tribunal affirms the decision under review, pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).
| I certify that the preceding 72 (seventy-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member J Collins |
.................[SGD]....................
Associate
Dated: 29 November 2022
| Date of hearing: | 11 and 12 August 2022 |
| Applicant’s Representative: | Mr Jeffrey Finnimore (Coordinated Care Services) |
| Solicitor for the Respondent | Mr Justin Davidson (Counsel) Ms Kate Gawidziel (Australian Government Solicitors – instructing solicitor) |
ANNEXURE A – EXHIBIT REGISTER
| Exhibit Number | Description of Exhibit | Date of Document | Party | Filing Date |
| 1 | Hearing Bundle (A1-A5, R1, paged 1-35) | Various | R | 10 Aug 2022 |
| 2 | T-Documents (T1-T26, paged 1-238) | Various | R | 22 Jan 2021 |
| Other Documents | ||||
| 3 | Respondent Statement of Facts, Issue, Facts and Contention (paged 1-19) | 24 May 2022 | R | 24 May 2022 |
| 4 | Applicant Outline of Evidence (paged 1-2) | 12 Apr 2022 | A | 12 Apr 2022 |
| 5 | Respondent bundle of Authorities (1-6, paged 1-230) | Various | R | 10 Aug 2022 |
| 6 | Letter dated 10 February 2022 to Centrelink | 10 February 2022 | A | 11 Aug 2022 |
| 7 | Respondent’s Closing Submissions (paged 1-17) | 26 August 2022 | R | 26 August 2022 |
| 8 | Applicant’s Closing Submissions (paged 1-3) | 6 September 2022 | A | 7 September 2022 |
0
9
0