Pearson and National Disability Insurance Agency

[2021] AATA 2730

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

Place:Brisbane

The Tribunal DIRECTS that, upon the Respondent providing at least five (5) business days’ notice to the Applicant, the Applicant participate in a telehealth 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 a psychiatrist and an occupational therapy – whether Tribunal has power to compel Applicant to participate in further assessments under section 33 of the Administrative Appeals Tribunal Act 1975 (Cth) – direction for occupational therapy assessment made – direction for psychiatric 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

BKQQ and National Disability Insurance Agency [2021] AATA 732.
Castledine and National Disability Insurance Agency [2019] AATA 4240.
Commissioner of Taxation v Cancer and Bowel Research Association [2013] FCAFC 140; 305 ALR 534.
FFVQ and National Disability Insurance Agency [2018] AATA 1968.
Jones and National Disability Insurance Agency [2021] AATA 852.
Liddle and National Disability Insurance Agency [2018] AATA 507.
MDCT and National Disability Insurance Agency [2020] AATA 6036.

PKVC and Minister for Home Affairs [2018] AATA 4045.

REASONS FOR DECISION

Member Buxton

1. On 11 January 2020, Ms Sarah Pearson (“the Applicant”) applied to the Tribunal for review of a decision of the National Disability Insurance Agency (“the Respondent”), dated 3 January 2020, relating to the Applicant’s statement of participant supports approved under section 33 of the National Disability Insurance Scheme Act (2013) Cth (“the NDIS Act”).

2. In the course of the review, the Respondent has requested the Applicant attend two assessments, to be undertaken using telehealth facilities, for the purpose of obtaining independent reports by a psychiatrist and an occupational therapist. The Applicant has not consented to participate in either assessment. The Respondent has applied, on an interlocutory basis, for a direction to be made compelling the Applicant’s participation in the assessments.

3. On 10 June 2021, a telephone directions hearing took place during which the parties made brief oral submissions with respect to the directions sought by the Respondent, although it was not certain at that time whether the Respondent would pursue the directions. The Respondent has subsequently clarified that it seeks the directions and has provided written submissions in support. The Applicant has provided written submissions inviting the Tribunal not to make the directions sought by the Respondent. The Tribunal has also considered, where relevant, submissions provided to the Tribunal in this review by both parties on prior occasions.

   BACKGROUND

4. 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.

5. 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.

6. 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[1] and will necessarily require the Tribunal to consider whether various supports are reasonable and necessary.[2]

   [1] NDIS Act, ss 33(2).

   [2] Ibid, ss 34.

7. The Respondent wishes to commission telehealth assessments by Dr Graham George, psychiatrist, and Dr Micah Perez, occupational therapist, with a view to the evidence of those witnesses assisting the Tribunal to determine whether the supports sought by the Applicant are reasonable and necessary. The Respondent has proposed that the assessments take place without delay, with both doctors available during August 2021. The Applicant does not consent to participating in the assessments and the Respondent seeks a direction to compel the Applicant’s participation in each assessment.

   CONSIDERATION

   Compellability

8. The Respondent applies to the Tribunal for directions to require participation by the Applicant in gathering of expert evidence, which the Respondent submits is likely to assist the Tribunal in the determination of the substantive review application.

9. Section 33 of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) is the source of the Tribunal’s power to direct that the Applicant to participate in an examination of the kind proposed by the Respondent. Section 33 relevantly provides that:

   (1)In a proceeding before the Tribunal:

   …

   (c) the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.

   …

   Types of directions

   (2A) Without limiting the operation of this section, a direction as to the procedure to be followed at or in connection with the hearing of a proceeding before the Tribunal may:

   (a) require any person who is a party to the proceeding to provide further information in relation to the proceeding;

   …

10. The Tribunal considered the scope of the power to make directions under section 33 of the AAT Act in MDCT and National Disability Insurance Agency (“MDCT”)[3]. The Tribunal summarised the statutory basis for the power to make evidence-gathering directions in the following way:[4]

    Section 2A of the AAT Act sets out the objective which the Tribunal must pursue in carrying out its functions. Expressly, that objective speaks to the mechanism of review, and the section mandates that mechanism to be, amongst other things, fair, just and proportionate to the importance and complexity of the matter and which promotes public trust and confidence in the decision-making of the Tribunal. Section 33 of the AAT Act details the way in which the Tribunal may control its process. Relevantly, subsection 33(1AB) of the AAT Act requires the parties to a review application, and any person representing such a party, to use their best endeavours to assist the Tribunal to fulfil the objective in section 2A of the AAT Act. The effect of that provision upon the Respondent’s obligations, when requesting an applicant to facilitate the provision of information or evidence, is that the requests must be reasonable and proportionate to the complexity of his or her case. The effect of that provision upon the response to a reasonable and proportionate request is to require an applicant to accede to such a request where it is made for the purpose of facilitating a review process that it fair and just. If a reasonable and proportionate request is made, and unreasonably refused, it is open to the Tribunal to control the review process by directing that an applicant meet such a request. To do so is consistent with the Tribunal’s objective to ensure that each party is given the opportunity to present their case, and that the review is conducted fairly and justly.

    [3] [2020] AATA 6036 (24 December 2020).

    [4] Ibid at [10].

11. The Tribunal’s power to make directions with respect to evidence-gathering was also considered in PKVC and Minister for Home Affairs (“PKVC”)[5] where Deputy President Rayment followed the reasoning of the Full Federal Court in Commissioner of Taxation v Cancer and Bowel Research Association[6] and in BKQQ and National Disability Insurance Agency (“BKQQ”).[7] In the decisions of PKVC, MDCT and BKQQ, the Tribunal determined that section 33 of the AAT Act conferred upon the Tribunal broad power to make directions consistent with the Tribunal’s statutory objectives identified in section 2A of the AAT Act.

    [5] [2018] AATA 4045 at [3].

    [6] [2013] FCAFC 140; (2013) 305 ALR 534.

    [7] [2021] AATA 732 (31 March 2021).

12. The Applicant has sought to draw a parallel between proposed legislative changes (not currently being progressed) to introduce independent assessments by the NDIA and the issuing by the Tribunal of a direction in a proceeding.[8] They are not the same, and the comparison does not assist. The Tribunal is unconcerned with proposed changes to legislation before they have been adopted into law. In any event, the Tribunal has various powers to control its own process that exist in addition to those in enabling legislation such as the NDIS Act, including through the making of directions under section 33 of the AAT Act that promote the objectives of that Act.

    [8] Applicant’s Submissions in Reply dated 12 July 2021 at [10] – [11].

13. 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 directions sought by the Respondent to facilitate the adducing of evidence from a psychiatrist and from an occupational therapist in this case, but that there is no automatic entitlement to such directions. 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.

    Exercise of Discretion

14. The effect of the Applicant’s submissions was that the discretion to make the directions should not be exercised in this case because the evidence sought to be adduced was not necessary.[9] The Applicant submitted that the legislative scheme with respect to funded supports did not require further evidence to be gathered with respect to her diagnoses.[10] The Applicant did not submit that the proposed examinations would cause her any identified harm or distress. However, she submitted that the proposed examinations were an unwelcome intrusion upon her right to exercise choice and control.

    [9] Ibid at [3].

    [10] Ibid at [6] and [13].

15. Different consideration arise when considering the purpose of the functional assessment by an occupational therapist and the purpose of the psychiatric assessment. I will therefore consider them separately.

    Functional Assessment

16. The Applicant has produced to the Tribunal a report from Ms Cregten, occupational therapist, dated 16 March 2020, and from Ms Thackwray, physiotherapist, dated 24 March 2020. In both reports, the prospect of further factual investigations and assessments are considered.

17. The Applicant submitted that a further functional assessment would not be of “benefit to anyone”.[11] As to the evidence already available to the Tribunal, the Applicant submitted:[12]

    The reports provided are from qualified professionals with relevant authority to perform the assessments and report recommendations. I hold the belief that this request is nothing more than another attempt to prevent the course of justice and I refer you to your obligations of the conciliation process and cite again the case of FFVQ and NDIA [2018] AATA 1968 (at paragraphs 30 and 31).

    [11] Applicant’s Submissions dated 30 April 2020 at [23].

    [12] Ibid.

18. In FFVQ and National Disability Insurance Agency (“FFVQ”)[13], the Tribunal observed that the NDIA had approached decision-making in a way that was “slow and difficult to interpret” in that case and described the decision-making approach as “haphazard”.[14] The Applicant submitted that a similar approach had been taken by the Respondent in this case and pointed to various delays in the progression of her case. In relation to the narrow question now before me, it is relevant to consider whether the assessments will cause prejudice to the Applicant as a result of any consequential delay in the progress of her application. It was open to the Respondent to seek the consent of the Applicant earlier in the proceedings, and there is no compelling explanation as to why the Applicant’s consent was not sought earlier. However, the Respondent has proposed a mechanism for assessment (through a telehealth appointment), and an assessor with availability to conduct the functional assessment without delay. Therefore, whilst it is desirable that evidence gathering steps be undertaken by the parties in a time-effective manner, I am not satisfied that any delay in this case by the Respondent is, of itself, determinative of the question whether the Tribunal should exercise the direction to make the direction sought.

    [13] [2018] AATA 1968 (2 July 2018).

    [14] Ibid at [30] – [31].

19. The Respondent submitted that a further functional assessment was beneficial in this case as the available evidence of Ms Thackwray and Ms Cregten recommend further investigation, assessment and engagement with allied health professionals.[15] The Respondent has prepared questions for Dr Perez that address many of the issues the Tribunal is required to consider in relation to the funding of reasonable and necessary supports.[16]

    [15] Respondent’s Outline of Submissions dated 25 June 2021 at [20] – [22].

    [16] Ibid at Annexure B.

20. In Liddle and National Disability Insurance Agency (“Liddle”)[17] Deputy President Constance made an interlocutory decision refusing to direct that the applicant participate in an assessment by an occupational therapist in circumstances where she had already provided one such report to the Respondent and to the Tribunal. The Tribunal was satisfied that the applicant was at a real risk of suffering physical injury if she were to undergo a second assessment. Deputy President Constance noted that:[18]

    In considering these reasons it should be clearly understood that the outcomes of applications such as the present depend on the particular facts and circumstances of the cases in which they arise. I do not intend to suggest, and should not be taken as suggesting, that the Tribunal will never direct an applicant to undergo a second occupational assessment.

    [17] [2018] AATA 5071.

    [18] Liddle at [7].

21. There is no evidence before the Tribunal of any specific risk of harm to the Applicant, were she to participate in the proposed telehealth assessment with Dr Perez. The Applicant has submitted that harm is being caused to her as a result of the Respondent’s continued refusal to fund her requested supports. That issue will be addressed by the Tribunal in the determination of the substantive review. The Applicant has submitted that she is suffering from significant increased anxiety arising from the lack of certainty caused by these proceedings not yet being resolved. However, the Applicant has not produced any medical evidence as to particular risks of harm to the Applicant if she were to participate in the assessment. The Tribunal acknowledges that the Applicant may be inconvenienced by having to participate in the assessment in that she will have to make herself available, in her home, on a particular day. However, the Tribunal notes that such inconvenience is minimised, to the extent possible, by the proposed method of examination.

22. 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.

23. The Applicant has submitted that the evidence of a treating practitioner should be preferred to that of an independent expert.[19] That submission will be open to the Applicant to make during the substantive hearing of her review application.

    [19] Applicant’s Submissions dated 30 April 2020 at [19] which cited Castledine and National Disability Insurance Agency [2019] AATA 4240 at [293].

24. In MDCT the Tribunal considered whether further evidence could be obtained from an occupational therapist where the Applicant had already produced reports from experts with the same specialty:[20]

    We accept that it will not be every case in which it is proper to exercise the available discretion to compel an applicant to participate in an evidence-gathering process. However, in circumstances where one party has had the opportunity to provide evidence that another party appropriately wishes to test, gathering further evidence of the same nature may provide assistance to the Tribunal, and is therefore justified.

    [20] MDCT at [19]

25. The Tribunal in MDCT concluded that if the request to submit to an assessment was reasonable, and the Applicant’s refusal unreasonable, because it was not consistent with the Applicant’s obligation to use best endeavours to assist the Tribunal to fulfill its objectives, then it was the proper exercise of the Tribunal’s discretion to direct that the independent assessment be facilitated. This case differs from MDCT in that a direction to facilitate a functional assessment of the person, not the premises, is sought. However, in this case it is proposed that the consultation of the Applicant take place by telephone, that the appropriate expert guidelines be followed, and there is no evidence of risk of harm to the Applicant.

26. It follows that the Tribunal is satisfied it is proper to facilitate the assessment by directing that the Applicant participate in the telehealth assessment with Dr Perez.

    Psychiatric Assessment

27. The Applicant submitted that a psychiatric assessment should not be facilitated in this case as the request by the Respondent amounted to an improper attempt, by the Respondent, to settle upon additional diagnoses of her conditions.[21] The Applicant submitted that, once a participant in the scheme, the statement of supports should include supports relevant to the whole person, and not be limited to supports for particular disabilities that were identified at the time of the grant of access.[22] She rejected the notion that her funded supports should be limited to the conditions identified in her application for access to the scheme. The Applicant stated:[23]

    When determining the reasonable and necessary supports for a participant, the NDIA Operational Guidelines state they will not fund a support that is not related to the person’s disability. But what is the person’s disability? The word “disability” is not defined in the NDIS Act. It has however been defined by a Federal Court Case which said that disability is “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.” The person must be seen as a whole person, and their supports determined based on the overall effect of their impairments. Planners are required to take a “whole of person” approach when considering supports that are reasonable and necessary. If your planner tells you otherwise, they are wrong.

    [21] Applicant’s Submissions in Reply dated 12 July 2021 at [3].

    [22] Ibid at [6].

    [23] Ibid.

1. There is an internal tension in this submission. On one hand, the Applicant accepts that a support will not be funded unless it is related to a person’s disability.[24] On the other hand, the Applicant resists the provision of further evidence from a psychiatrist, on the basis that her diagnosed disabilities should not be questioned.[25]

   [24] Applicant’s Submissions in Reply dated 12 July 2021 at [6].

   [25] Ibid.

2. In submissions prepared by the Respondent in June 2021 for the purpose of a directions hearing about summonsed material, the Respondent set out its concerns about the state of the evidence available to the Tribunal in this case, as follows:[26]

   13. The Respondent has ongoing concerns that the Applicant’s plan may have been formulated on an incomplete understanding of the Applicant’s functional impairments, due to a reliance on potentially inadequate diagnosis and medical supervision of her primary disability.

   14. Due to the limited information available in relation to the Applicant’s medical and treatment history, the Respondent considers the Tribunal would be assisted in making the correct and preferable decision with further information regarding diagnosis and treatment history being made available.

   15. Further information is also required to understand the Applicant’s support needs.

   16. The Respondent does not consider that the existing material demonstrates that requested supports satisfy the reasonable and necessary criteria in s34.

   [26] Respondent’s Outline of Submissions dated 25 June 2021 at [13] – [16].

3. Essentially, the Respondent asserts that, without a clear understanding of the Applicant’s underlying medical conditions (including any as yet undiagnosed), it is not possible to determine if the supports for which she seeks funding in her approved plan are reasonable and necessary. The Respondent submitted that the psychiatric assessment is likely to assist the Tribunal in the determination of the substantive application.[27] That may well be correct. The Respondent has prepared a number of questions that are proposed to be answered by Dr George following his assessment of the Applicant, including:[28]

   ·What are the Applicant’s psychiatric condition(s) and what are the resulting disabilities? Please detail any assessments performed.

   ·Based on the conditions you have identified above and current functional impact, what are the usual and effective supports that:

   (i)address the immediate support needs of the Applicant; and

   (ii)are needed to increase function and independence?

   [27] Ibid at [32].

   [28] Ibid at Annexure A.

4. The basis upon which the direction sought in relation to the psychiatric assessment differs materially from the direction sought with respect to the functional assessment because it addresses potential new evidence rather than the testing of existing evidence. The Tribunal notes that the functional analysis can be undertaken through the proposed assessment by Dr Perez, based on the evidence already available as to the Applicant’s diagnoses. The Tribunal accepts the Respondent’s submission that, without a further psychiatric assessment of the Applicant in this case, the Tribunal may not reach the level of satisfaction needed to conclude that certain requested supports are related to the Applicant’s disability. However, this will not disadvantage the Respondent or leave the Respondent without the opportunity to conduct its own case fairly. There is a forensic risk to the Applicant in proceeding without such evidence. The question for the Tribunal is whether to remedy that risk by directing that the Applicant participate in a further diagnostic assessment by a psychiatrist without her consent.

5. This forensic risk was noted in a similar setting in Jones and National Disability Insurance Agency (“Jones”),[29] where Senior Member Cameron considered an interlocutory application to revoke a direction made by the Tribunal which required the Applicant to participate in an independent assessment requested by the NDIA. The Tribunal was satisfied that it was appropriate for an earlier direction to be revoked as the risk of harm to the Applicant was outweighed by the benefit of obtaining the best evidence. In doing so, Senior Member Cameron noted that:[30]

   It may be, and the Tribunal cannot reach a conclusion on this question at this time, that it will limit the evidence before it in such a way that it will be unable to determine whether the supports that are sought by the Applicant should be included in his NDIS plan.

   [29] [2021] AATA 852 (13 April 2021).

   [30] Jones at [24].

6. The Applicant has clearly indicated that she does not consent to a diagnostic assessment from a psychiatrist where her psychiatric conditions are proposed to be considered afresh. She asserts that the giving of this consent should be her choice to make. In the circumstances of this case, and balancing the relevant factors, the Tribunal accepts that submission. The Applicant has elected to proceed with her substantive review application based on the psychiatric evidence to date, and the Respondent submits that the evidence does not support the Applicant’s case. Prior to the Tribunal’s determination of the substantive review Application, it is a matter for the Applicant to continue to weigh that any forensic risk against other factors relevant to her participation in a psychiatric assessment and to indicate to the Respondent if she elects to participate voluntarily. If not, the Tribunal will be left to make a decision about the Applicant’s reasonable and necessary supports in this case based on the psychiatric evidence produced by the Applicant to date.

7. For the reasons outlined above, the Tribunal refuses to direct that the Applicant participate in a telehealth psychiatric assessment and will direct that the Applicant submit to the proposed telehealth occupational therapy assessment.

   INTERLOCUTORY DECISION

8. The Tribunal DIRECTS that, upon the Respondent providing at least five (5) business days’ notice to the Applicant, the Applicant participate in a telehealth assessment by Dr Micah Perez,  Occupational Therapist.

36.     

37.     

38.     

39.     

40.     

41.     

42.     

43.     

I certify that the preceding 35 (thirty-five) paragraphs are a true copy of the reasons for the decision herein of Member K Buxton.

………………[SGD]………………..

Associate

Dated: 6 August 2021

Final Submissions Received:            12 July 2021

Counsel for the Respondent:             Philip Nolan

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