Pearson and National Disability Insurance Agency

[2021] AATA 2843

Pearson and National Disability Insurance Agency [2021] AATA 2843 (13 August 2021)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2020/0217

Re:Sarah Pearson

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Member Buxton

Date:13 August 2021

Place:Brisbane

The Tribunal refuses to direct that the Applicant participate in an in-person assessment by Dr Micah Perez,  Occupational Therapist.

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

Member Buxton

Catchwords

PRACTICE AND PROCEDURE – National Disability Insurance Scheme Act 2013 (Cth) – application for review of decision to approve statement of supports in participant plan – interlocutory application for direction that Applicant participate in an assessment with an occupational therapist – mode of assessment - direction for in-person occupational therapy assessment not made.

Legislation

Administrative Appeals Tribunal Act 1975 (Cth): ss 2A and 33.
National Disability Insurance Scheme Act 2013 (Cth): ss 33, 34, 36 and 100.

Cases

Pearson and National Disability Insurance Agency [2021] AATA 2730 (6 August 2021)

REASONS FOR DECISION

Member Buxton

1. On 6 August 2021 I made a decision and published reasons in relation to requests made by the Respondent that the Tribunal direct the Applicant in these proceedings to attend assessments for the purpose of obtaining independent reports by a psychiatrist and an occupational therapist: Pearson and National Disability Insurance Agency (“Pearson (No 1)”).[1] The Applicant was directed to participate in a telehealth assessment by Dr Perez, occupational therapist (upon notice being given by the Respondent), but not a telehealth assessment by Dr George, psychiatrist. Relevant background to the proceedings and the Respondent’s requests for directions is set out in Pearson (No 1) and it is unnecessary to repeat that here.

   [1] [2021] AATA 2730 (6 August 2021)

2. A directions hearing had taken place, by telephone, on 10 June 2021 in which Ms Pearson represented herself and the Respondent was represented by Mr Nolan of counsel. It was during this directions hearing that the Respondent foreshadowed the likelihood that an interlocutory application would be made seeking directions that the Applicant participate in two medical assessments. The Respondent was directed to give any such application, together with written submissions in support, to the Applicant and the Tribunal by 25 June 2021. The Respondent did not comply with this timetable, but on 28 June 2021 the Respondent lodged written submissions asking for certain directions to be made. The Tribunal considered the request for directions contained within those written submissions despite the non-compliance by the Respondent. The Respondent did not provide an interlocutory application or draft orders (which would have set out the directions that the Respondent was requesting be made by the Tribunal). Instead, the nature of the directions requested by the Respondent can be found in the Respondent’s written submissions. After the decision in Pearson (No 1), the Respondent communicated with the Registry to request that I deal, specifically, with a request for a direction the Applicant participate in an in-home assessment (rather than by telehealth). The Respondent quite correctly pointed out that, in the Respondent’s written submissions dated 28 June 2021, it sought a direction that the proposed functional assessment take place in the Applicant’s home, and not using telehealth facilities. I had not identified the different mode of hearing sought with respect to the function assessment. Therefore, the Tribunal has not yet considered the mode of functional assessment preferred by the Respondent, being an in-home assessment of the Applicant.

3. Two issues arise from this. First, I have made a direction in these proceedings that was not expressly sought by the Respondent in its written submissions. For the reasons set out in Pearson No 1, I am (and remain) of the view that a functional assessment of the Applicant using telehealth facilities is appropriate in this case and therefore do not intend to change that direction. I have issued a brief corrigendum to those reasons to correct the description of the direction sought by the Respondent.

4. Secondly, I did not expressly consider the request by the Respondent for a direction that the Applicant be compelled to participate in an in-person functional assessment. I have now done so, and for the reasons that follow I decline to make the direction sought.

5. Therefore, it remains a matter for the Respondent whether to avail itself of the direction already made in these proceeding that the Applicant participate in a functional assessment using telehealth facilities on the giving to the Applicant the required notice.

   CONSIDERATION

6. The Applicant is 37 years of age and lives with her four children. She became a participant in the National Disability Insurance Scheme in August 2019. She has been diagnosed by her treating Psychiatrist, Dr Bird, with various conditions, including Attention Deficit Hyperactivity Disorder in 2011 and Autism Spectrum Disorder (ASD), Level II in June 2019. Dr Bird later noted that her symptoms were consistent with generalised anxiety disorder and the Applicant would meet the criteria for Level III (severe impairment) Autism Spectrum Disorder. The Applicant has various other medical issues for which she requires support.

7. On 30 August 2019, the Respondent approved the Applicant’s first statement of participant supports which included supports to be funded in the Applicant’s participant plan. The approved supports did not include certain funding that the Applicant considered to be reasonable and necessary. The Applicant sought internal review of that decision, under section 100 of the NDIS Act, seeking additional supports to be funded as part of the Applicant’s participant plan. On 3 January 2020, a reviewer satisfied that some, but not all, of the substantial additional supports requested were reasonable and necessary and the Applicant’s approved statement of participant supports was replaced with a plan including the approved additional supports. The Applicant remained dissatisfied with the decision and applied to the Tribunal for review.

8. Determination of the substantive review application will require the Tribunal to form the correct or preferable decision in relation to the approved statement of participant supports[2] and will necessarily require the Tribunal to consider whether various supports are reasonable and necessary.[3]

   [2] National Disability Insurance Scheme Act 2013 (Cth), ss 33(2).

   [3] Ibid, ss 34.

9. The Respondent wishes to commission an in-person functional assessment of the Applicant by Dr Micah Perez, occupational therapist, with a view to the evidence of that witness assisting the Tribunal to determine whether the supports sought by the Applicant are reasonable and necessary. The Respondent has proposed that an assessment take place without delay. The Applicant does not consent to participating in the assessment and the Respondent seeks a direction to compel the Applicant’s participation in each assessment.

10. For the reasons set out in Pearson (No 1), the Tribunal is satisfied that the directions-making power in section 33 of the AAT Act is sufficiently broad to allow for the Tribunal to make the direction sought by the Respondent to facilitate the adducing of evidence from a an occupational therapist in this case, but that there is no automatic entitlement to the direction. The question whether the Tribunal ought to do so is to be answered by the proper exercise of its discretion having regard to the particular circumstances of this case. Each case is different and will be decided on the basis of the relevant facts. I have determined, in Pearson (No 1), that an assessment by an occupational therapist using telehealth facilities is a reasonable request. In those reasons, I stated:[4]

    The information sought in the draft questions provided by the Respondent is directly relevant to the Applicant’s contentions in the review application. Answers to those questions, from an independent occupational therapist, may therefore assist the Tribunal. It seems relatively uncontroversial that an up-to-date functional assessment funded by the Respondent would be undertaken in circumstances where the only other available evidence is from allied specialists engaged by the Applicant, where further investigation is recommended by those specialists and where there is disagreement between the parties in relation to a range of supports for which an Applicant seeks funding base on her current level of functional impairment.

    [4] At [22].

11. I remain satisfied that there is benefit in gathering evidence in that way. The only question which remains is whether to also exercise the Tribunal’s discretion to direct that the Applicant participant in an in-person functional assessment by an occupational therapist.

12. As noted in Pearson (No 1), the Respondent had not explained why the request for this direction has occurred so many months after the review application was initiated. Whilst I was not satisfied that any delay occasioned by a telehealth assessment would cause prejudice to the Applicant, the considerations differ with an in-home assessment. When I wrote Pearson (No 1), South East Queensland was in lockdown due to the COVID-19 pandemic. Whilst that is no longer the case a week later there is still a real, and not remote, risk that restrictions may again be applied in the near future. Those restrictions would prevent an in-home assessment and, in turn, the efficient gathering of evidence in this case.

13. Further, the evidence before the Tribunal as to the Applicant’s diagnosed conditions and mental state contra-indicate further physical assessments. The Applicant has not identified these risks herself. However, they are made plain enough by the reports provided by her medical and allied health specialists.

14. The Tribunal is to provide a mechanism of review that is fair but is also required to ensure that mechanism is proportionate to the complexity of each matter. Whilst the Applicant has stated that she has physical limitations, and she does not seek to exclude these from consideration in her substantive review, she is seeking further funded supports primarily as a result of her primary diagnoses (set out in paragraph 6 above). The Respondent’s submissions do not explain why an assessment from an occupational therapist, directed at seeking answers to the draft questions provided by the Respondent, cannot take place effectively by utilising telehealth facilities. Whilst this may not be as effective for the assessor as an in-person assessment, a balance of all relevant consideration must be struck. It is open to the Respondent to make requests of the Applicant for photographs or floor plans, if needed, and for video contact between the Applicant and the proposed assessor.

15. It follows that the Tribunal is satisfied it is not necessary to facilitate the assessment by directing that the Applicant participate in an in-home assessment with Dr Perez. The Respondent may request that she participate in the telehealth assessment with Dr Perez that is the subject of the direction made by the Tribunal in the earlier decision of Pearson (No 1).

    INTERLOCUTORY DECISION

16. The Tribunal refuses to direct that the Applicant participate in an in-person assessment by Dr Micah Perez, Occupational Therapist.

I certify that the preceding 16 (sixteen) paragraphs are a true copy of the reasons for the decision herein of Member K Buxton.

…………………[SGD]………………..

Associate

Dated: 12 August 2021

Final Submissions Received:            6 August 2021

Counsel for the Respondent:             Philip Nolan

Representative for the Respondent: Jasmin Douglas, National Disability Insurance Agency