Moxham and Chief Executive Officer, of the National Disability Insurance Agency (NDIS)

Case [2025] ARTA 290

Moxham and Chief Executive Officer, of the National Disability Insurance Agency (NDIS) [2025] ARTA 290 (1 April 2025)

Applicant/s:  Mr Peter Thomas Anthony Moxham

Respondent:  Chief Executive Officer, of the National Disability Insurance Agency

Tribunal Number:                2023/3234

Tribunal:General Member S Smith

Place:Brisbane

Date:1 April 2025

Decision:The Tribunal affirms the decision under review pursuant to section 105(a) of the Administrative Review Tribunal Act2024 (Cth).

...........................................

General Member S Smith

Catchwords

NATIONAL DISABILITY INSURANCE SCHEME – request for access – spinal degeneration – bilateral shoulder arthropathy – osteoarthritis – chronic pain – depression – whether the effects of an impairment are permanent – whether there are known, available and appropriate treatments likely to remedy an impairment – available treatment – substantially reduced functional capacity criteria not met – decision under review affirmed

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

FBJV and NDIA [2021] AATA 913
Garcia Albiol and National Disability Insurance Agency [2024] AATA 496
Jourfian and NDIA [2020] AATA 1883

Kelly v National Disability Insurance Agency [2024] FCA 1462

Madelaine and National Disability Insurance Agency [2020] AATA 4025

Mulligan v NDIA [2015] FCA 544

National Disability Insurance Agency v Davis [2022] FCA 1002

National Disability Insurance Agency v Foster [2023] FCAFC 11

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] 24 ALR 577

Rooney and National Disability Insurance Agency [2021] AATA 3523

Secondary Materials

National Disability Insurance Scheme - Operational Guidelines – Applying to the NDIS (updated 14 October 2024)

National Disability Insurance Scheme - Operational Guidelines – Becoming a participant (updated 1 February 2024)

Statement of Reasons

INTRODUCTION

  1. Mr Moxham is a 66-year-old man who lives alone in his three-bedroom house in southern Queensland. Unfortunately, Mr Moxham’s wife passed away in early 2020.[1] Mr Moxham has received the Disability Support Pension (‘DSP’) since November 2002.[2]

    [1] EB1, B26, page 75.

    [2] EB 1, page 27. Mr Moxham provided an updated DSP card.

  2. On 9 March 2023 Mr Moxham applied to the National Disability Insurance Agency (‘Agency’) to become a participant of the National Disability Insurance Scheme (‘Scheme’) on the basis of six conditions: [3]

    ·Spinal degeneration;

    ·Bilateral shoulder arthropathy;

    ·Osteoarthritis;

    ·Chronic pain;

    ·Sleep apnoea; and

    ·Depression.

    [3] EB 1, B16, page 55-58.

  3. On 20 April 2023 a delegate of the Chief Executive Officer (‘CEO’) of the Agency decided not to grant Mr Moxham access to the Scheme. A ‘reviewer’ under section 100(6) of the National Disability Insurance Scheme Act2013 (Cth) (‘NDIS Act’) confirmed the decision.[4] Mr Moxham now seeks review of this decision.[5]

    [4] 10 May 2023.

    [5] Mr Moxham filed an application for review on 11 May 2023.

  4. On 14 October 2024, the Administrative Appeals Tribunal (‘AAT’)…

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AGLC
Moxham and Chief Executive Officer, of the National Disability Insurance Agency (NDIS) [2025] ARTA 290
Case
[2025] ARTA 290
Decision Date

CaseChat Overview and Summary

In the case of Moxham and Chief Executive Officer of the National Disability Insurance Agency (NDIS), the primary focus was on whether Mr Moxham qualified for access to the NDIS based on his impairments and functional capacity. The dispute was heard and decided by the Administrative Appeals Tribunal (AAT). The Tribunal was tasked with determining whether Mr Moxham's impairments met the criteria outlined in the NDIS Act and whether there were available treatments that could remedy or significantly alleviate his conditions. The decision hinged on whether Mr Moxham's impairments were permanent, whether known treatments were likely to remedy these impairments, and whether he met the substantially reduced functional capacity criteria.

The court examined the evidence provided by Mr Moxham, which included extensive medical records and personal statements detailing his history of injuries and ongoing symptoms. Mr Moxham argued that he had been misrepresented by the NDIS in their presentation of his evidence, and he provided counter-evidence to challenge the Agency's assessment. The Tribunal considered Mr Moxham's reported pain, fatigue, and functional limitations, as well as the assessment conducted by the registered occupational therapist, Mr O’Dowd. The Tribunal found that while Mr Moxham experienced significant impairments, the level of support he required did not meet the threshold for NDIS access. The Tribunal affirmed the reviewable decision of the NDIS Agency, concluding that Mr Moxham did not satisfy the disability requirements as per section 21 of the NDIS Act.

The reasoning behind the Tribunal's decision was grounded in the assessment of Mr Moxham's functional capacity across various domains, as well as the consideration of available treatments for his impairments. The Tribunal accepted that Mr Moxham lived with significant impairments but found that these did not result in a level of functional impairment that met the NDIS criteria. The Tribunal highlighted that while Mr Moxham's impairments were severe, they did not reach the level of substantial reduction in functional capacity required for NDIS support. Consequently, the Tribunal affirmed the decision of the NDIS Agency, maintaining that Mr Moxham did not qualify for NDIS access based on the evidence presented.

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

I summarise what I consider to be most relevant below. Evidence of Mr Moxham Mr Moxham produced evidence of medical records, invoices and forms that dated between 1987[17] until the February 2025 hearing.[18] Mr Moxham gave oral evidence at the hearing and stated, ‘most documents misquote me.’[19][17] EB1, B31, page 125. B10, [18] EB1, pages 29-63. EB1, B22, pages 65-95. EB1, B40, pages 158-159.[19] Oral evidence of Mr Moxham. Mr Moxham reported that he ‘felt discriminated [against], powerless and deprived of my rights’ throughout the proceedings. Mr Moxham contended that he was ‘intentionally misrepresented’ in the Agency’s presentation of his evidence to the Tribunal,[20] and that he ‘dealt with reams of outright lies, misrepresentations and intentional errors presented by the Respondent.’ [21] [20] Closing submissions of Mr Moxham [5].[21] Closing submissions of Mr Moxham [8]. Mr Moxham reported the following history:[22]·In 1985 he was injured whilst riding a motorcycle in an accident with a semi-trailer. Mr Moxham sustained a ‘broken neck, injured right shoulder and right hand’;·In 1987 he required a cervical spinal fusion;[23] ·Around 1999 and 2001 he sustained two workplace injuries to his back;·Around 2014 he was ‘run off the road and assaulted requiring hospital admission’;·In July 2014, he underwent a right shoulder reconstruction; ·In February 2015 he injured his left shoulder whilst repairing his motorcycle;[24]·Around 6 December 2017 he had an elective admission for shoulder surgery. Mr Moxham was advised to continue with occupational therapist and physiotherapist exercises. [25][22] Oral evidence of Mr Moxham. EB1, B23, pages 67-71. Second part statement of lived experience April 2024, page 1/13.[23] EB1, B26, page 74.[24] EB1, pages 36-37. Mr Moxham produced a letter from 25 February 2015 signed by Dr Jonsson-Lear, General Practitioner (GP).[25] EB1, B10. EB1, B12, page 43. EB1, B12, pages 45-46. I refer to Mr Moxham’s statement of lived experience in its entirety[26] and his written dispute of the Agency’s evidence in its entirety.[27][26] EB1, [27] EB1, B22 -B27, pages 65 – 93. Closing submissions of Mr Moxham [8]-[12]. Mr Moxham reported that he experiences:[28][28] EB1, B22, page 65.·Strong pain in ‘moving and lifting my arms, sharp pain walking in my upper legs and back,’[29] and increased fatigue which results in:[29] Oral evidence of Mr Moxham.oShort term memory loss;o‘Losing his temper’ due to aggravating pain;oNeck cramps and also cramps in other areas;[30] and oSleep disruptions both falling and staying asleep.·Reduced strength, endurance, and tolerance which results in:odecreased frequency of riding his bicycle due to difficulty in transporting his bicycle to the local bicycle riding track;[31]o‘limited contact with people’ as he goes out fortnightly to pay bills, and buy groceries and obtain pharmacy requirements;ousing ‘trolleys to support me at the grocery store’; and odifficulties cleaning his home. Mr Moxham reported that he no longer uses the Queensland government community services and that he ‘used them 2–3 days per week, but the government cancelled the service. I could not afford the $35 per hour.’[32][30] T1, page 8.[31] EB1, B26, pages 73. EB1m B27, page 91.[32] EB1, B27, page 92.

Decision

Reasons for decision

Mr Moxham did not contend, nor did he provide evidence, that he satisfied the early intervention requirements. Therefore, as the disability requirements are also not satisfied, Mr Moxham does not meet the access criteria in section 21 of the NDIS Act.DECISION The Tribunal affirms the reviewable decision pursuant to section 105(a) of the ART Act.

Ratio Decidendi

Legal Principle Established

The LADLA identified Mr Moxham’s level of function across eight domains, which are: ability to use telephone, shopping, food preparation, housekeeping, laundry, mode of transportation, responsibility for own medications and ability to handle finances. Mr Moxham scored an 8/8 or a high‑functioning level that indicated he required ‘mild’ levels of support and ‘meets the criteria for independent living as defined by the assessment tool’.[52] However, Mr O’Dowd indicated the following considerations for Mr Moxham:·‘Financial constraints limit the frequency and extent to which Mr Moxham can complete these tasks…[and] can cause difficulties with shopping and meal preparation’; and·‘In a real-world application Mr Moxham requires assistance with housekeeping.’[52] EB1, C1, pages 178-179.CONSIDERATION I am satisfied that Mr Moxham explained his lived experience and clearly articulated his contentions. I accept that Mr Moxham lives with impairments that have impacted on his quality of life and that Mr Moxham was honest, forthright, and sincere in giving his evidence. I acknowledge Mr Moxham’s closing submissions where he stated his opinion that he felt ‘discriminated, powerless and deprived of my rights of fair representation’ and that the Agency relied on material of ‘outright lies, misrepresentations and intentional errors’ regarding his application.[53][53] Closing submissions of Mr Moxham [8]. I acknowledge that Mr Moxham disagreed with and questioned the account of events in Mr O’Dowd’s report, and also questioned the timeline of injuries that were reported.[54] [54] Closing submissions of Mr Moxham [3], [55], [62]–[75], [79], [82]–[95]. I accept Mr O’Dowd’s observations (as a registered occupational therapist) of Mr Moxham in and around his home and, as to the events described where it factually differs to Mr Moxham, I am satisfied that Mr O’Dowd’s evidence:·Was provided as a professional, registered occupational therapist;[55]·Explained his ‘general practice of undertaking assessments’[56] even though this differed from Mr Moxham’s recollection of the timing of assessments;·Explained his habit of using his smart watch to ‘time the duration of all of his assessments’;[57]·Clarified that if the chronology of Mr Moxham’s injuries recounted by Mr O’Dowd in his report had errors, that the errors as to the ‘timing or mechanism of the injury would not impact his opinion contained in the balance;’[58] and·Provided an assessment of Mr Moxham in December 2023. I note that there was no evidence provided to contend there had been any deterioration in Mr Moxham’s function since that time. In contrast, Mr Moxham described a typical day in a consistent manner to what was described in Mr O’Dowd’s written and oral evidence.Section 24(1): the disability requirements[55] Mr O’Dowd stated he prepares reports across different contexts such as in Tribunal applications, workplace injury and Compulsory Third-Party assessments.[56] Oral evidence of Mr O’Dowd.[57] Oral evidence of Mr O’Dowd. EB1, page 165.[58] Agency’s closing submissions at [28].Whether or not Mr Moxham has a disability attributable to an impairment?