Patterson and National Disability Insurance Agency

[2024] AATA 3053

Patterson and National Disability Insurance Agency [2024] AATA 3053 (28 August 2024)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2021/4379

Re:GORDON PATTERSON

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:M P HUNTER

Date: 28 August 2024

Place:Sydney

The Tribunal affirms the decision under review pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).

CATCHWORDS

NATIONAL DISABILITY INSURANCE SCHEME – access request – multifactorial shortness of breath – heart failure – morbid obesity-whether there is substantially reduced capacity – access refused – decision affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

National Disability Insurance Scheme Act 2013 (Cth)

National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)

CASES

National Disability Insurance Agency v Foster [2023] FCAFC 11

National Disability Insurance Agency v Davis [2022] FCA 1002

Mulligan v National Disability Insurance Agency [2015] FCA 544

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634; (1979) 2 ALD 60.
Schwass and National Disability Insurance Agency [2019] AATA 28

SECONDARY MATERIALS

National Disability Insurance Agency, Our Guidelines: Applying to the NDIS

REASONS FOR DECISION

1. Mr Patterson (the Applicant) is a 62-year-old male, who on 20 November 2020 made a request for access to the National Disability Insurance Scheme (NDIS), on the basis of the following diagnoses:

   (a)Multifactorial shortness of breath and dyspnoea;

   (b)Peripheral neuropathy; and

   (c)Severe obesity.

2. On 22 February 2021, a delegate of the Chief Executive Officer (‘the CEO’) of the Respondent determined the Applicant did not meet the access criteria set out in the Act because the delegate was not satisfied  his impairments resulted in substantially reduced functional capacity. An internal reviewer confirmed the decision on 17 June 2021.

3. On 1 July 2021, the Applicant applied to the Administrative Appeals Tribunal (‘the Tribunal’) for review of the internal review decision.

   LEGISLATION

   The access criteria

4. The criteria by which access is granted to the NDIS are set out in sections 21 to 25 of the National Disability Insurance Scheme Act 2013 (Cth) (the Act).

5. Firstly, subsection 21(1) of the Act, provides as follows:

   (1)A person meets the access criteria 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).

6. To meet the disability requirements, an applicant must satisfy the provisions of section 24 of the Act which states:

   (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 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.

   (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.

7. If the Applicant does not meet the disability requirements, they may nevertheless meet the early intervention requirements set out in section 25 of the Act, which state as follows:

   1A person meets the early intervention requirementsif:

   (a)the person:

   (i)     has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent; or

   (ii)    has one or more identified impairments that are attributable to a psychiatric condition and are, or are likely to be, permanent; or

   (iii)   is a child who has developmentaldelay; and

   (b)the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person's future needs for supports in relation to disability; and

   (c)the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by:

   (i)     mitigating or alleviating the impact of the person's impairment upon the functional capacity of the person to undertake communication, social interaction, learning, mobility, self-care or self-management; or

   (ii)    preventing the deterioration of such functional capacity; or

   (iii)   improving such functional capacity; or

   (iv)   strengthening the sustainability of informal supports available to the person, including through building the capacity of the person's carer.

   Note:          In certain circumstances, a person with a degenerative condition could meet the early intervention requirements and therefore become a participant.

   2The CEO is taken to be satisfied as mentioned in paragraphs (1)(b) and (c) if one or more of the person's impairments are prescribed by the National Disability Insurance Scheme rules for the purposes of this subsection.

   3Despite subsections (1) and (2), 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.

8. The Minister may, under subsection 209(1) of the Act, make rules prescribing matters. The rules relevant to this matter are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (the Access Rules), which form part of the legislation.

9. The NDIS Operational Guidelines also assist in making decisions in accordance with the Act. Operational Guidelines represent government policy and should be applied by the Tribunal unless there is good reason not to do so.[1] The relevant Operational Guideline is Our Guidelines – Becoming a participant – Applying to the NDIS (‘the Operational Guideline’).[2]

   [1] Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[1979] AATA 179; (1979) 2 ALD 634; (1979) 2 ALD 60.

   [2] National Disability Insurance Agency, Our Guidelines – Becoming a participant – Applying to the NDIS, (1 August 2022) (Web Page) <>

   The Applicant has sought access to the NDIS for his primary disabilities being multifactorial shortness of breath and dyspnoea. He also suffers from peripheral neuropathy and obesity.

10. It is common ground between the parties that the Applicant meets the age requirements in section 22 and the residence requirements in section 24 of the Act.

11. The Respondent has contended that the Applicant does not meet the disability requirements set out in section 24 or the early intervention requirements set out in section 25 of the Act. In particular, the Respondent has argued:

    (a)That the Applicant’s impairment is not permanent or likely to be permanent for the purposes of subsection 24(1)(b) and subsections 25(1)(a) and (c);

    (b)That the Applicant is not likely to require support from the NDIS for his lifetime (section 24(1)(e)).

12. For the reasons set out below, the Tribunal is not satisfied that the Applicant’s conditions are permanent or likely to be permanent. In light of this finding, it is unnecessary for the Tribunal to determine whether the Applicant meets the other criteria in sections 24 and 25 of the Act.

    EVIDENCE BEFORE THE TRIBUNAL

13. The Tribunal was provided with a tender bundle (JTB 1) and supplementary tender bundle (JTB 2), which incorporated the material filed before the Tribunal, the T-Documents and other relevant documents (including the parties Statement of Issues Facts and Contentions, the Applicant’s answers to targeted questions, material produced on summons by Central West Hospital and Health Services, Longreach Family Medical Centre, the Prince Charles Hospital and the Princess Alexandra Hospital). The Respondent also sought to rely on responses to targeted questions by Dr Pervez dated 30 May 2024, which was also admitted into evidence at the commencement of the hearing (R3).

14. The Tribunal held a hearing by video on 3 June 2024. The Applicant was self-represented, and the Respondent was represented by Ms Sarah Love of counsel. The Tribunal also heard evidence from the Applicant’s wife, Mrs Rhonda Patterson, and his stepdaughter, Ms Megan Ellison. Dr Michael Mar Fan gave expert evidence.

15. There is no dispute the Applicant satisfies the age requirements and the residence requirements. The Tribunal must decide whether the Applicant satisfies the access criteria in section 24 (‘the disability requirements’) or section 25 (‘the early intervention requirements’) of the Act.

    The Applicant

16. The Applicant made submissions and gave oral evidence. He said that he has had diabetes for 35 years. He said that the conditions that most impacted upon him were his conditions that caused his shortness of breath. He could not walk far, and needed a right hip and a right knee replacement. He said that he cannot lose weight because he cannot exercise.

17. The Applicant said that initially he was knocked back by the Queensland Statewide Bariatric Surgery Initiative surgery team. Then he was told that he met the guidelines for a consultation with a specialist. His appointments kept being postponed due to the COVID-19 pandemic but eventually he went to the Queen Elizabeth II Hospital and had a video consultation. The Applicant did not remember the date, but it was at least 12 months prior to the Tribunal hearing. He said that at the consultation the man he spoke to told him that he would not do the surgery upon the him as he had too many problems and that he was likely to die on the table. He does not remember the name of the man, whether he was a doctor or his area of speciality and he is not aware that any of his treating doctors have received a report to this effect. He has asked and no one can find any information about it.

18. The Applicant said that no one had taken further steps to organise any bariatric surgery for him. He is not aware that he can meet the criteria as a public patient. The Applicant said that he sees a lot of doctors for different things, and they all say that losing weight would assist many of his conditions. They have not said that it would cure him or fix his shortness of breath. The Applicant said that he had lost weight, when he first started to use Ozempic about 3 years earlier, he was down from 155 kilograms to 140/142 kilograms. This was not enough. It did not improve his breathing, mobility, or tiredness. He said that he is still required to use the CPAP machine and relies on the walking stick when mobilising.

19. The Applicant was asked at hearing if he was offered bariatric surgery whether he would undergo the operation. He responded that it was very hard to think about, it scared the hell out of him when the doctor he saw by video told him he may not make it off the table. He also said that he had no one to look after him while recovering from the surgery as his wife was ill herself.

20. The Applicant confirmed that he had discussed bariatric surgery with his current GP Dr Pervez, but he was unsure of his eligibility for the surgery to be publicly funded . Through the private health system, the Applicant understood there to be a cost for bariatric surgery in the sum of $10,000. He said he did not have these funds and claimed to live from payday to payday on his pension, and his rent kept going up. Under questioning, the Applicant said that Dr Pervez had not expressed any concerns to him about undergoing bariatric surgery, and he thought it would be good for him. Dr Pervez has not referred him to anyone and has not discussed a referral to a bariatric surgeon with him.

21. He has engaged in dietary treatment aimed at weight loss. He was referred to the diabetes dietician by Dr Ikram and he said he stopped eating rubbish. His wife does all the cooking, and they only eat fish and chicken with salad. He no longer eats big meals. He also has seen an exercise physiologist and physiotherapist which gave him a small set of exercises to do around the home.

22. When questioned about exercise, the Applicant said that he was currently only able to walk about 40 metres, then he has to stop. His joints and legs ache and he had to sit down. He uses a 4 wheeled walker if he has to walk any distance and around the house, he will use a walking stick. When he was in hospital at Longreach in the past, he was asked to do a 6-minute walk and they had to stop it because of his heart. He understands that he has some blockages on the right side of his heart.

23. He said that he tried going to the pool to exercise but kept getting infections on his legs. He occasionally gets infections if he bumps his legs and takes the skin off. The bandages he had to use to draw out the infection were expensive and difficult for him to afford. He is supposed to wear compression bandages on his legs. He had some organised, but they did not fit. He was now looking at some Velcro bandages but was unsure when they would be available. He has poor blood circulation in his legs and recently had some treatment to the veins in his leg.

24. In addition to the above restrictions on his mobility, the Applicant confirmed that his right leg was shorter than his left leg, so he walks with a limp. His said his standing limitation is about 5 minutes. He can drive himself to the shops and his medical appointments. It takes him a while to get out of the car, but he can manage the transfer. When he gets up out of bed it can take a while as he has pain in his legs. He cannot walk up and down stairs.

25. As to activities of daily living, the Applicant said that he would sit on a shower chair to shower, and he had a rail installed in the shower. His wife would help him wash his back. He has at times fallen when he bends over, he is not sure whether he loses his balance or blacks out. He can do his own teeth and brush his hair. He has rails that he uses to get on and off the toilet. His wife would help him to dry himself after a shower and with putting pants on. He now experiences incontinence; it may be caused by his fluid tablets but he is not certain. It has occurred since he moved from Longreach to Caboolture. He can make basic food such as a sandwich or a coffee in the kitchen, but his wife generally prepares all his meals. At times he has difficulty swallowing, he has been given some thickener to put in liquids. He was not sure if it was working, he said that he may have to get back to his specialist. If he had a high stool to sit on when accessing the kitchen benches, he said that he may be able to prepare food.

26. The Applicant has the assistance of the cleaner to undertake heavy cleaning. This was provided under the care package granted to his wife. His wife still did light cleaning. He believed that he would struggle badly without the assistance of his wife.

27. The Applicant confirmed that he had no issues with communication or learning. He said that he relied on the assistance of Megan to manage his finances, but he thought he could probably learn to do this himself. Megan also manages all his appointments. He relies on text messages for reminders of his appointments. He said that he always takes his wife with him to appointments as he can forget what they say.

    Rhonda Patterson

28. Mrs Rhonda Patterson, the Applicant’s wife, provided a statement of lived experience, dated 30 March 2022,[3] in which she claimed that she had to help the Applicant with his showering. She also had to dry and dress the Applicant. Particularly his lower body and his shoes and socks. She claimed that the Applicant was very restricted with exercised due to his COPD and asthma, and she had to do all housework, washing and ironing. Further, they had to rely on friends and family to help with the mowing and cleaning of their yard.

    [3]Exhibit JTB1 H13.

29. At the hearing, she confirmed that she continues to provide the above assistance. She said that she believed that the Applicant’s conditions were getting worse. She said it was hard to watch when the Applicant use to be active and go to work, and now he was barely able to get around. Together with the Applicant, they will do their own grocery shopping. Her health was also deteriorating, she suffers from COPD and claimed to be under the care of a palliative care team. Once a week she has assistance from Anglicare to clean the house and they also come to assist her personally with her own showering.

30. Mrs Patterson confirmed that she accompanied the Applicant to all his medical appointments. She said that the Applicant was told when they had a video consult with a surgeon that because of his problems he would probably not make it through the surgery. She is also unsure of the who the man was, they could not find out any further details about who they saw.

31. She confirmed that the Applicant had been to see dieticians, he has also consulted physiotherapists. She said that even if the Applicant lost weight he would still have balance issues with his leg being shorter than the other. He needed another knee and hip replacement.

    Megan Ellison

32. Ms Ellison said that she helps her parents with their health appointments and their finances. She does online banking for them and pays their bill. As she works at a pharmacist, she collects their medication. In addition to this, she said that she was on call for anything that they needed. For example, she recently had to organise a new shower chair for the Applicant and she communicates with Anglicare regarding the cleaning.

33. She visits her parents frequently to see their needs are met. She will buy food for them when they are sick. However, she had her own young children, was working and studying. She did not have to the time to provide all the care they needed. Her mother’s illness made it difficult for her to take care of the Applicant. The Applicant did not yet qualify for any assistance under the Aged Care System. She did not know what else was available and publicly funded to provide them with assistance.

34. While she acknowledged that the Applicant’s conditions would be improved if he lost weight, it would not fix him. She said he still required a hip and knee replacement. He would still have COPD and his breathing issues.

    Dr Tiffany Cover

35. Dr Cover was a general practitioner (GP) who treated the Applicant at Longreach Family Medical Centre. In a letter completed by her on 23 March 2021,[4] she reported that the Applicant has severe shortness of breath on minimal exertion which is a consequence of his restrictive lung disease, asthma, heart failure and morbid obesity. The Applicant’s medical history includes poorly controlled type 2 diabetes with associated peripheral neuropathy and nephropathy. The Applicant’s other co-morbidities include restrictive lung disease secondary to his morbid obesity and asthma, hypertension (well-managed on medications), hyperlipidaemia and obstructive sleep apnoea (managed with a CPAP machine).

    [4] JTB1 H4, T Documents T1.

1. She further stated that the Applicant’s conditions were at the time optimally managed through pharmacological intervention, regular GP engagement and specialist review. Despite this, the Applicant’s conditions have been slowly deteriorating over the last few years. She assessed that the Applicant’s symptoms were not expected to improve beyond his current level of function, and stated that she believed his conditions were life-long and permanent.

   Summons Material Longreach Family Medical Practice

2. At the time he applied for access to the NDIS, the Applicant was living in Longreach and under the care of Longreach Family Medical Practice. Pursuant to a summons for production on 15 November 2015, documents in respect of the Applicant were produced to the Tribunal.[5]

   [5] JTB1 H31.

3. In correspondence to Dr Anish Menon, at the Princess Alexandra Hospital, dated 3 May 2019, Dr Paul Adams, GP, requested that the Applicant’s suitability for bariatric surgery be reconsidered. It was further set out that since his last review of the Applicant, a multidisciplinary case conference (five in attendance) agreed that bariatric surgery was considered essential to preventing inevitable clinical deterioration.

   Lisa Lloyd

4. Ms Lloyd is an occupational therapist consulted by the Applicant who undertook an assessment in his home on 30 June 2020. In her report[6] she states that his complex medical history and diagnosis are directly impacting on the Applicant’s ability to be independent in his daily life.

   [6] JTB1 H4, T Documents.

5. Ms Lloyd reports that the Applicant is only able to mobilise short distances – 50 metres before requiring a break. During his last admission to hospital, the Applicant was unable to complete a 6-minute walk test conducted by the physiotherapist. The test had to be stopped at 2.5 minutes due to a spike in heart rate shortness of breath and fatigue. This is due to a combination of the applicant’s diagnosis and co-morbidities. When in the community, he uses a 4-wheeled walker so that he can sit down when needed.

   Summons Material Prince Charles Hospital        

6. The Applicant is under the care of cardiologists and the Sleep Disorder Centre at the Prince Charles Memorial Hospital. Documents from the Hospital were delivered to the Tribunal under a summons requiring production by 15 November 2021.[7]

   [7]JTB1 H28 & H29.

7. On 19 May 2019, Dr Scott McKenzie, cardiologist, commented that from a cardiology perspective that applicant was safe to proceed with surgery without further cardiac risk stratification tests. Further, Dr McKenzie comments that he would strongly support the role of weight loss surgery in view of the reality that all of the Applicant’s diseases (except his calculi) are driven by his obesity, yet collectively prevent him from engaging in exercise to assist with weight loss.

8. On 24 March 2021, Dr Alex Dashwood, consultant cardiologist, reported that the Applicant was at the time a person with multiple co-morbidities and an extremely poor baseline of health and frailty. The Applicant had multiple issues contribution to his health status. Underlying this is the need to improve the Applicant’s weight, general fitness and his other comorbidities, and this will be a big challenge.

9. Upon review on 31 August 2021, Dr Scott McKenzie, cardiologist, wrote that in addition to listed medication, the plan of treatment for the Applicant was to continue weight loss, it was considered that the Applicant’s exercise limitation was unlikely to be resolved in the future. Dr McKenzie, further commented that the Applicant remained extremely limited by his comorbidities and he did not see how the Applicant would be able to get on top of them in the foreseeable future (rendering them effectively not reversible).

10. Dr Luke Gaske, Thoracic and Sleep physician, commented in a letter dictated on 24 August 2017, that a sleep study undertaken by the Applicant showed quite profound obstructive sleep apnoea with profound nocturnal hypoxia. Following a consultation on 17 April 2020, Dr Thomas Skinner, Thoracic and Sleep fellow, assessed the Applicant as symptomatically stable, with the download from his CPAP showing excellent usage. Following a consultation on 26 October 2020, Dr Skinner, commented that the Applicant’s CPAP continued to manage his obstructive sleep apnoea excellently. Dr Skinner commented that the Applicant’s weight was elevated, though stable, at 150kgs and he discussed with the Applicant the importance of pursuing weight loss.

    Summons Material Princess Alexandria Hospital           

11. For his diabetes management, the Applicant is under the care of endocrinologists at the Princess Alexandria Hospital. Documents from the Hospital were delivered to the Tribunal under a summons requiring production by 15 November 2021.[8]

    [8] JTB1 H30 & H31

12. In correspondence dictated on 27 March 2019, Dr Anish Menon, Endocrine Consultant, assessed the Applicant for bariatric surgery in the context of his diabetes. At this time, he said that the Applicant’s diabetes management was excellent but on a background of increasing weight. At that time given his glycaemia management he did not meet the referral criteria. In later correspondence dictated on 24 September 2020, Dr Menon assessed that the Applicant’s diabetes management had worsened on a background of increasing weight. The Applicant was reported at the time to meet the bariatric surgery referral criteria.

13. In correspondence dictated on 16 March 2021, Dr Pieter Jansen, Endocrinologist, assessed that the Applicant had been previously referred for bariatric surgery, but this was declined because of too good control. This has now changed, and the Applicant was keen to be considered. He further reported that the Applicant would be a high-risk patient in light of his comorbidities.

14. This material also contained letters from the Metro South Health Referral Hub on behalf of the Queensland Statewide Bariatric Surgery Initiative. In a letter dated 13 December 2019, it was reported that they were unable to offer the Applicant an appointment as he did not meet the assessment criteria. In correspondence dated 18 March 2021, it was stated that the Applicant currently did not meet the minimum reference criteria to be seen by a clinical specialist. In a letter dated 6 October 2021, it was stated that the Applicant met the revised threshold, and he would be offered an appointment to discuss whether bariatric surgery would be a suitable treatment option.

    Dr Iqram Pervez

15. Dr Pervez is the Applicant’s current treating GP since he moved to Caboolture. He first treated the Applicant on 11 January 2023. Since May 2023, Dr Pervez had seen the Applicant in person 22 times and has had four telephone consultations with him. The Respondent sent to Dr Pervez a list of targeted questions in anticipation of the Tribunal hearing. Dr Pervez’s response, dated 30 May 2024, was admitted into evidence at the hearing.[9] Dr Pervez was not called to give evidence.

    [9] Exhibit R3.

16. When asked to comment in writing whether there were any barriers to the Applicant accessing evidence-based treatments, Dr Pervez has written that currently the Applicant did not qualify for bariatric surgery for weight loss through the public health system. Further, he recommended that further weight loss surgery may be helpful. He further commented that the weight loss surgery was the only unexplored option for the Applicant. Dr Pervez further commented that the fact that the Applicant had other medical conditions may make him unfit for the surgical procedure.

    Dr Michael Mar Fan

17. Dr Mar Fan is a general and colorectal surgeon. He was engaged by the Respondent to provide an independent medical assessment of the Applicant, which was undertaken in person on 17 January 2024. He reported on 14 February 2024,[10] that the Applicant had the conditions of multifactorial, shortness of breath contributed to by a long history of asthma and Chronic Obstructive Pulmonary Disease (COPD, morbid obesity, elements of cardiac dysfunction, including congestive cardiac failure, obstructive sleep apnoea and chronic kidney issues related to his type 2 diabetes. In addition, the Applicant also has arthritis, as illustrated by a left total hip replacement in 2014 and left total knee replacement in 2013. He also has peripheral vascular disease, venous hypertension, hypertension, hyperlipidaemia and peripheral neuropathy from the diabetes. He considered that all of the Applicant’s underlying conditions were comorbidities, they were all simultaneously present in the Applicant and different medical conditions.

    [10] JTB1 H15.

18. In his report, Dr Mar Fan commented that the conditions of shortness of breath, diabetes, arthritis, congestive cardia failure, venous hypertension, hypertension, hyperlipidaemia and obstructive sleep apnoea were all linked to the applicant’s overweightness. From these conditions the major impairment experienced by the Applicant was poor mobility and shortness of breath. Dr Mar Fan assessed in his report that the likely treatment for shortness of breath was medication including inhalation, weight loss and exercise. Additionally, the Applicant’s poor mobility could be treated by exercise, diet, medication to suppress appetite, or bariatric surgery to reduce his high BMI. Dr Mar Fan further reported that in his opinion, the Applicant was an appropriate candidate for bariatric surgery given his comorbidities including high BMI and poorly controlled diabetes.

19. Dr Mar Fan gave evidence in person at the hearing, he further set out his professional experience and that he had practiced colorectal and general surgery for the last 24 years. He treated mainly colorectal patients. However, he has seen patients who have undergone bariatric surgery and he was referred patients for bariatric surgery. He  was familiar with current guidelines and recommendations for the referral of patients for bariatric surgery.

20. Dr Mar Fan confirmed in his evidence at the hearing that from his examination of the Applicant in January 2024 that he was well within the indication for bariatric surgery. When asked whether the co-morbidities of the Applicant were too high-risk for bariatric surgery, Dr Mar Fan said that he did not think that they were contraindicated for bariatric surgery. The only issue he identified was whether the Applicant had an inability to undergo a general anaesthesia. If the Applicant was suitable for general anaesthetic, it would follow that he would be suitable for bariatric surgery. He stated that most of the Applicant’s co-morbidities would benefit from bariatric surgery.

21. Dr Mar Fan acknowledged in his evidence that there were risks associated with bariatric surgery. Particularly, he said it was a major surgery so required a general anaesthetic. There was also a risk of an infection developing, also afterwards some patients also have issues with malabsorption and are required to have iron and B12 supplements. A few patients also develop reflux, but some patients have the opposite result. He said that however, most patients do well and enjoy long term results if they can keep the weight off.

22. Dr Mar Fan confirmed that when he took a history of the Applicant, he discussed other weight loss alternatives. He acknowledged that the Applicant did not have the capacity to exercise effectively. He acknowledged that the Applicant had tried dieting and also Ozempic without much luck. He said that the Applicant would need to lose 28% of his weight to get within a health weight range which was too much to expect from medication such as Ozempic alone.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Does the Applicant have a disability that is attributable to one of more intellectual, cognitive, neurological, sensory or physical impairments, or one or more impairments to which a psychological disability is attributable?

23. The Tribunal notes that in Mulligan[11] Mortimer J held that the legislation requires “a relatively high degree of precision by decision-makers… in assessing what a person can or cannot do. The assessment to be undertaken is avowedly functional and multifaceted.”[12] The Full Federal Court in Foster[13] explained that the legislation requires that it is based on a functional, practical assessment of what a person can and cannot do.[14]

    [11]Mulligan v National Disability Insurance Agency [2015] FCA 544.

    [12]Ibid, [55].

    [13]National Disability Insurance Agency v Foster [2023] FCAFC 11

    [14] Ibid, [36].

24. The Respondent accepts that the Applicant has a physical impairment arising from his multifactorial shortness of breath and dyspnoea, peripheral neuropathy and severe obesity.

25. The Tribunal, however, must make its own assessment. Reviewing the medical evidence, the Tribunal is satisfied that the Applicant’s conditions of multifactorial shortness of breath and dyspnoea, peripheral neuropathy and severe obesity, give rise to a physical impairment. This includes severe shortness of breath, impaired and difficult mobility and fatigue. On a review of the evidence his physical impairment is also impacted by the reported conditions of arthritis of his right hip and knee, diabetes and heart failure.

26. The Applicant has not claimed, nor does the evidence suggest that he has a psychological impairment.

27. The Tribunal is satisfied that the Applicant’s physical impairment causes a reduction or loss of the Applicant’s ability to function. It follows that the Applicant has a disability within the meaning of paragraph 24(1)(a) of the Act.

    Are the Applicant’s impairments permanent or likely to be permanent?

28. The Tribunal next considered whether the evidence demonstrated that the Applicant’s impairments are permanent within the requirements of paragraph 24(1)(b) of the Act.

29. In assessing whether an impairment is permanent, the Tribunal is to have regard to the Access Rules. Particularly relevant to the present matter are rules 5.4, 5.6 and 5.7, which provide as follows:

    5.4An 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.

    5.6An 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).

    5.7If an impairment is of a degenerative nature, the impairment is, or is likely to be, permanent if medical or other treatment would not, or would be unlikely to, improve the condition.

30. The Applicant claims that it is the opinion of his former GP, Dr Tiffany Cover, that his conditions were permanent and lifelong.

31. The Respondent disputes that the Applicant’s impairments are permanent for the purposes of the Act. It contends that the specialist evidence suggests that the Applicant’s overweightness is causative of his diagnoses  and consequently, the physical impairments which he suffers. It has also argued that if the Applicant’s overweightness is medically addressed, his physical impairments arising from his conditions would be removed, cured or substantially relieved. The Respondent has submitted that the following are known, available and appropriate evidence-based treatments:

    (a)  dietary control aimed at weight loss;

    (b)  increased exercise aimed at weight loss;

    (c)   lifestyle modifications tailored to weight loss; and

    (d)  bariatric surgery.[15]

    [15]Amended Respondents Statement of Facts, Issues and Contentions dated 6 March 2024 Exhibit JTB 1 H2.

32. On reviewing the evidence of the Applicant’s specialists and his treating GPs, and Dr Mar Fan, the Tribunal accepts that his conditions are comorbid. The Tribunal notes particularly the assessment of Dr McKenzie in May 2019, that in reality all the Applicant’s conditions (except his renal calculi) are driven by his obesity.

33. The Applicant accepted in his evidence at hearing that all his treating doctors and specialists told him that if he lost weight, it would be good for his conditions. He claimed that it would not however fix his COPD or his arthritis in his right hip and knee. On the evidence however, it would appear that if the Applicant’s lost weight his exercise tolerance would improve as would his shortness of breath. As to his osteoarthritis, it is evidence that the pain consequent on movement that the Applicant experiences would be impacted if the load on his joints was reduced. The Applicant claims that he cannot undergo a knee or hip replacement, which he is in need because of his shortness of breath. If this is the case, the specialist medical evidence to support the contention is not before the Tribunal.

34. The Tribunal has therefore considered the known, available, and recommended treatment for the Applicant’s obesity. The Tribunal accepts that the Applicant has undergone pharmacological intervention for the treatment of his conditions including weight loss. The evidence is that he is currently prescribed Ozempic for his diabetes. This has also assisted him to lose weight initially, but the results did not continue. Dr Mar Fan acknowledged that the amount of weight that the Applicant would need to lose could not be achieved through pharmacological intervention alone.

35. The evidence is that the Applicant has engaged in dietary control aimed at weight loss. Counsel for the Respondent submitted that there was no evidence that the Applicant had undergone a review by a nutritionist. The Applicant also did not remember consulting a nutritionist in the past. He also stated that he did not believe he had ever been referred to one, and he had generally acted on the referrals of his treating doctors and specialists. The Tribunal notes that Ms Susan Thomas comments in March 2021 that she had educated the Applicant on calorie intake and portion control. The material produced on summons by Longreach Family Medical Centre, documents that the Applicant has engaged with a dietician for weight loss purposes from 2017 to 2020. Dr Pervez in his response to targeted questions reported that the Applicant had been following a healthy diet but his weight had remained stable, and that the Applicant was seen by a dietician in the past and is following their advice.[16] The Tribunal accepts the evidence of the Applicant at hearing that he has abided by this advice, he has reduced his portions and engages in a low calorie diet. The Tribunal is satisfied that the Applicant has engaged in dietary control aimed at weight loss.

    [16] Exhibit R3.

36. As to the Applicant’s ability to exercise, the material produced on summons from Longreach Family Medical Centre[17] corroborates the evidence of the Applicant that he has in the past engaged with an exercise physiologist. He claims that his limited mobility prevents him from undertaking routine exercise. In the past, while living at Longreach, he attempted to exercise in the pool, but developed infections on the sores on his legs which led to further health complications. It is noted when admitted to hospital in January 2020, a 6-minute walk test was terminated after 2.5 minutes due to the Applicant’s fatigue and chest lightness.[18] Dr McKenzie, cardiologist, on 14 May 2019, comments that all of the Applicant’s conditions prevent him from engaging in exercise to assist weigh loss. The Tribunal is satisfied that past attempts by the Applicant in an exercise regime aimed at weight loss were not successful and that given his current comorbidities it is not a treatment available to him to remedy his overweightness.

    [17]Exhibit JTB H27.

    [18]Exhibit JTB H26.

37. With respect to bariatric surgery, the Tribunal has considered the evidence of the Applicant that he consulted with a doctor from the Queensland Statewide Bariatric Surgery Initiative, and he was told he was not eligible. The Applicant gave evidence that he was told that it would not “fix his conditions and he would likely die on the table”. There is considerable difficulty for the Tribunal relying upon this as expert evidence. The evidence of the Applicant and Mrs Patterson as to whom they consulted, and their level of speciality is not available. The Tribunal accepts that at some time between 2021 and 2023, the Applicant underwent a video consultation with a medical professional from the Statewide Bariatric Surgery Initiative. It also accepts that after this consultation Applicant did not have any further appointments, the Applicant’s referral to this program did not progress further. According to the Applicant, none of his treating or referral professionals have been provided with as reason as to why this occurred. The Tribunal is not satisfied on the evidence that it is demonstrated the Applicant is not he suitable for bariatric surgery or that this would not assist the Applicant with weight loss and his underlying conditions. This conclusion is not a finding that is supported by the current medical evidence before the Tribunal.

1. Rather, Dr McKenzie has reported from a cardiac perspective that the Applicant is suitable and that he is supportive of the Applicant pursuing this treatment.[19] Dr Adams from Longreach Family Medical Centre and other treating medical professionals (which according to the summons material included an exercise physiologist, a dietician, physiotherapist and practice nurse) supported the surgery.[20] The correspondence of Dr Anish Menon, endocrine consultant, on 17 October 2020, 24 September 2020 and 27 February 2020 consistently documents her consideration for bariatric surgery.[21] Dr Pieter Jansen, endocrinologist, on 16 March 2021 provided the successful referral to the Statewide Bariatric Service Initiative.[22] The Applicant’s current GP, Dr Pervez, lists bariatric surgery as the current only unexplored option in response to targeted questions.[23]

   [19]Exhibit JTB1 H28.

   [20]Exhibit JTB1 H27.

   [21] Exhibit JTB1 H30.

   [22] Exhibit JTB1 H30.

   [23] Exhibit R3.

2. At best the evidence is that the Applicant did not, when last referred, was not offered further consultations for  the surgery with the publicly funded Statewide Bariatric Surgery Initiative. The Applicant conceded in his evidence that this was also his understanding of his situation. The summons material from Princess Alexandria Hospital sets out that an initial inclusion for a referral for a consultation with the Statewide Bariatric Surgery Initiative may not proceed to an outpatient appointment and surgery, and that the team engaged prioritised patients likely to receive the most clinical benefit. The evidence is unclear whether this impacted the Applicant’s selection by the  Statewide Bariatric Surgery Initiative or whether it was restrictions associated with the COVID-19 pandemic, or whether it was the comorbidities of the Applicant. It remains that the Applicant’s ineligibility to have the surgery publicly funded has not been ruled out on the evidence.

3. As to whether the Applicant could undergo bariatric surgery in the private system. the Applicant is on a disability support pension and he claims he is unable to afford the costs of treatment in the private system. The Respondent has not disputed this. As the evidence has not established whether the Applicant is ineligible under the public health system the Tribunal has not had to considered whether bariatric surgery not currently being available to the Applicant under the public health system and being unaffordable to him in the private sector means that it is not available within the meaning of rule 5.4 of the Access Rules. The Tribunal does however note the decision of DP Humphries in Schwass[24], where the DP considered that available in this context has the meaning of accessible or within reach; had the drafter intended it to mean affordable it would have been a simple matter to indicate that.[25] The Tribunal has also considered the decision of NDIA v Davis,[26] this set aside an earlier decision where the Senior Member found that certain treatments were not available to Mrs Davis within the meaning of rule 5.4 on account of her financial position.[27]  Mortimer J did not expressly consider make a finding as to whether on its proper construction Rule 5.4 does not required or permit an enquiry into the financial means of a person when deciding treatment is ‘known, available and appropriate”, although he did comment that he accepted that there may be some potential disconformity in introducing considerations of affordability into the determination of the criterion in section 24(1)(b). 

   [24]Schwass and National Disability Insurance Agency [2019] AATA 28.

   [25] Ibid at [48].

   [26]National Disability Insurance Agency v Davis [2022] FCA 1002

   [27] Ibid at [133]

4. The Tribunal has also considered whether the Applicant would be prepared to undergo bariatric surgery, and it this sense whether is an appropriate treatment. It is recognised that this is a personal decision for the Applicant. The evidence is that in the past this is something that he has pursued. At hearing the Applicant said that he was not sure. He highlighted several concerns firstly the risk of infection, secondly the previous advice he had received from the unknown doctor that he was not suitable, and finally his concerns that his wife would not be able to care for him post-surgery due to her medical conditions. Mrs Patterson spoke about a family member who had complications after the surgery. The Applicant said that he would have to think about it but conceded he would be guided by the advice of his doctors. Dr Mar Fan also gave evidence of  the risks of bariatric surgery and this did include the risk of infection following surgery, the risks associated with a general anaesthetic and possible future malabsorption. His expert opinion was however that many of the Applicant’s comorbidities are regularly successfully managed by a bariatric surgery team. The Tribunal acknowledges the comments of Dr Perves, GP, that the Applicant’s other conditions may make him ineligible for surgery, and of Dr Dashwood, cardiologist, that the Applicant has a poor baseline of health. However, there is no evidence from a bariatric surgery specialist or a member of a multidisciplinary team involved in such surgery to demonstrate to the Tribunal that this is not available to the Applicant or that it would not remedy his impairments. In making its decision, the Tribunal is informed by the facts available and expert evidence before it. As a practical matter, it is the Applicant who is to provide evidence and information sufficient to meet the statutory requirements and satisfy the Tribunal that the criteria are met.[28]

   [28] Beezley v Reparation Commission [2015] FCAFC 165 [68].

5. On the material before the Tribunal the evidence of the Applicant’s treating GP and specialists and that of Dr Mar Fan, qualified as an expert surgeon, is that bariatric surgery is a known, available and appropriate evidence-based treatment which would be likely to remedy the physical impairments of the Applicant.

6. The Tribunal does acknowledge that if the Applicant reduced his overweightness all his conditions would not be cured. This is not the requirement for an impairment to be considered permanent under the Access Rules. Rather, as set out in the Access Rules, the relevant consideration is likely to remedy. In Davis, Mortimer J, considered further the phrase ‘permanent impairment” and whether the impairments have an enduring quality so as to require supports funded under the Act on an ongoing basis.[29] On the evidence some of the Applicant’s conditions such as his diabetes may be remedies, other conditions would be substantially relieved such that his physical impairments would be improved, the extent of his disability would not endure and his capacity to undertake relevant activities for the purposes of s 24(1)(c) of the Act.

   [29]National Disability Insurance Agency v Davis [2022] FCA 1002 [130]

7. As the evidence indicates that the Applicant’s conditions and consequently his physical impairments will be improved or remedied if his overweightness is addressed and the evidence indicates that the Applicant’s obesity can be treated, the Tribunal finds on the evidence before it that the Applicant’s impairments are not permanent for the purposes of paragraph 24(1)(b) of the Act.

8. Should the Applicant obtain further specialist evidence that demonstrates due to his current comorbidities, treatment by way of bariatric surgery is not available or appropriate, or that it would not improve the Applicant’s underlying impairment, it is open to him to make a further application for access to the NDIS in the future.

9. Having made the finding that the Applicant’s does not meet the disability requirement, it is not necessary for the Tribunal to make definitive findings as to whether the Applicant has a substantial functional impairment under section 24(1)(c) as the requirements for access under the Act are cumulative.

   Does the Applicant meet the early intervention requirements?

10. As the Tribunal has found that the Applicant does not meet the disability requirement it has considered whether she meets the early intervention requirements.

11. Under subsections 25(1)(a)(i)(ii) of the Act a person meets the early intervention requirements if their identified intellectual, cognitive, neurological, sensory, physical impairments or psychosocial disability are or are likely to be permanent.

12. The findings of the Tribunal as set out above are that the Applicant’s impairments are not demonstrated to meet the criteria of permanence under the Act. It follows that the Applicant does not meet the early intervention requirements.

13. Further on the material before the Tribunal, the evidence further is not consistent that the provision of early intervention supports are likely to, by mitigating or alleviating the impact of his  impairment upon his functional capacity to undertake the activities set out in section 24(1)(c) of the Act; or by preventing the deterioration of such functional capacity; or by improving such functional capacity; or by strengthening the sustainability of informal supports available to him.

14. The Tribunal is not satisfied the Applicant meets the early intervention requirements to enable him to become a participant of the NDIS under section 25 of the Act.

    Conclusion

15. The Tribunal finds that the Applicant does not meet the disability requirements in section 24 of the Act, nor the early intervention requirements in section 25 of the Act, to access the NDIS. Therefore, the Respondent’s internal review decision is correct.

    DECISION

16. 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 89 (eighty-nine) paragraphs are a true copy of the reasons for the decision herein of M P Hunter.

................................[SGD]........................................

Associate

Dated:

Date(s) of hearing:	3 June 2024
Applicant:	MS Teams
Counsel for the Respondent:	Ms Sarah Love