Pearson and National Disability Insurance Agency

[2019] AATA 2120

Pearson and National Disability Insurance Agency [2019] AATA 2120 (19 July 2019)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2018/0969

Re:Gwynena Pearson

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

Decision

Tribunal:Mrs J C Kelly, Senior Member


Date:19 July 2019

The reviewable decision is affirmed.

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

Mrs J C Kelly, Senior Member

Catchwords

NATIONAL DISABILITY INSURANCE AGENCY – whether the correct or preferable decision is to revoke the Applicant’s access to the National Disability Insurance Scheme - whether Applicant meets requirements under s 24 or s 25 of the National Disability Insurance Scheme Act 2013 (Cth) – whether Applicant's conditions are impairments – whether impairments are permanent or likely to be permanent – whether impairment(s) result in substantially reduced functioning as set out in s 24(1)(c) of the Act - Applicant's permanent impairment does not result in reduced functioning - s 24 requirements not met – whether Applicant meets early intervention requirements under s 25 of the Act – long standing conditions - interventions sought unlikely to benefit Applicant - s 25 requirements not met - reviewable decision affirmed.

Legislation

National Disability Insurance Scheme Act 2013 (Cth) ss 3(1)(a), 9, 23, 24(1)(a), 24(1)(b), 24(1)(c), 25(1)(a)(i), 25(1)(b), 30(1)(b)

Cases

Mulligan and National Disability Insurance Agency [2014] AATA 374

Schwass and National Disability Insurance Agency [2019] AATA 28

Secondary Materials

Australia’s obligations under the Convention on the Rights of Persons [2008] ATS 12 Article 1

Operational Guideline – Access to the NDIS chs 8.1, 9

National Disability Insurance Scheme (Becoming a Participant) Rules 2016 rr 5.4, 5.5, 5.6, 5.7, 6.4, 6.5, 6.6, 6.7

REASONS FOR DECISION

Mrs J C Kelly, Senior Member

19 July 2019

Overview

1. 1.        Mrs Pearson has applied for review of a decision made by the National Disability Insurance Agency (the Agency) to revoke her status as a participant in the National Disability Insurance Scheme (the Scheme). 

2. 2. The reviewable decision is an internal review decision dated 31 January 2018. It affirmed a decision dated 10 August 2017 which revoked her status as a participant pursuant to s 30(1)(b) of the National Disability Insurance Scheme Act 2013 (Cth) (the Act) because she did not meet the disability requirements set out in s 24 of the Act.

3. 3.        The Agency had advised Mrs Pearson that she met the requirements for access to the Scheme in a letter dated 14 September 2015.  A two year plan commenced on 4 November 2015.

4. 4.        For the reasons set out below, the reviewable decision is affirmed.

   2.       The issue in the proceedings

5. 5.        The issue in this review is whether the correct or preferable decision is to revoke Mrs Pearson’s access to the Scheme under s 30 of the Act because she does not satisfy the disability requirements set out in s 24 of the Act, or the early intervention requirements section out in s 25 of the Act.

6. 6.        Mr McClintock, who appeared for Mrs Pearson, did not press the argument that the use of the word “may” in s 30 of the Act confers a discretion on the decision-maker not to revoke a person’s status as a participant in the Scheme even if the person did not satisfy a requirement for participation under s 23 (the residence requirements), s 24 or s 25.

   3.        

   4.       The evidence

7. 7.        The evidence before the Tribunal included written and oral evidence from Mrs Pearson, her treating General Practitioner, Dr Gibbs, and Dr Mitchell, Occupational Physician.  There were also in evidence various medical and hospital records and reports from 2006 onwards, and a written statement from Mrs Pearson’s husband.  Some of the copies of medical records were very difficult to read.

8. 8.        Dr Gibbs said the following during his oral evidence.  He has 15 minute appointments with Mrs Pearson and discusses the “issues on the day”, and had discussed her general health in other conversations since taking over her treatment in 2015. She has been attending the practice since about 2000.  He sees her every month or every two months.   It is for a patient to decide whether a therapy is affordable.  He would defer to the opinions of an Occupational Physician.

   3.       The regulatory context

9. 9.        The disability requirements set out in s 24(1) of the Act are:

   a.(a)       whether Mrs Pearson has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments, or to one or more impairments attributable to a psychiatric condition; and 

   b.(b)       whether the impairment(s) are, or are likely to be, permanent; and

   c.(c)       whether the impairment(s) result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the following activities:

   (i)        communication;

   (ii)       social interaction;

   (iii)       learning

   (iv)      mobility;

   (v)       self-care; or

   (vi)      self-management; and

   a.(d)       whether the impairment(s) affect Mrs Pearson’s capacity for social or economic participation; and

   b.(e)       whether she is likely to require support from the NDIS for her lifetime.

c.       10.      Neither “impairment” nor “disability” is defined in the Act.

d.       11.      The objects of the Act include giving effect to Australia’s obligations under the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006 ([2008] ATS 12).   Article 1 of that Convention provides:

Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.

a.       12.      Section 9 provides that a “participant’s impairment” is “an impairment in relation to which the participant meets the disability requirements, or the early intervention requirements, to any extent.” Section 9 also gives the phrase “meets the disability requirements” the meaning set out in s 24.

b.       13.      Chapter 8.1 of the OG restates the effect of the Act:

For the purposes of becoming a participant in the NDIS the focus of ‘disability’ is on the reduction or loss of an ability to perform an activity which results from an impairment.  …

The narrower definition of ‘disability’ employed by the NDIS seeks to target those people with disability who have a significant impairment to their functional capacity.  This functional definition of disability focuses on outcomes for people with disability that are in the most need (Explanatory Statement to the Become a Participant Rules).

a.       14.      In Mulligan v National Disability Insurance Agency [2015] FCA 544 at [16], Mortimer J said:

… The link between “disability” and “impairment” is not explained in the Act.  The use of both the term “disability” and the term “impairment” in their context indicates that one matter the Act is not concerned with, at least in terms of access to the NDIS as a participant, is how a person came to have a disability.  Whether it be through birth, disease, injury or accident, all persons with disabilities who meet the access criteria can be participants, and all persons with disabilities may be otherwise assisted in the way contemplated by Ch 2 of the Act.

a.       15.      At [51], her Honour said:

… The term “disability” is used in the Act, and in s 24, as a descriptive concept for the overall effect of a person’s impairments on the person’s abilities to participate in all aspects of personal and community life.  Threshold provisions such as s 24 operate not on the concept of disability, but on the concept of impairment, which, as the Tribunal correctly observed at [19] of its reasons, is generally understood as involving the loss of or damage to a physical, sensory or mental function. 

a.       16.      Mrs Pearson’s legal representative criticised the Agency’s decision-making process.  As this is merits review, it is unnecessary to address those criticisms, although the Tribunal bears them in mind in undertaking its decision-making.

2.       Does Mrs Pearson satisfy s 24(1)(a) of the Act?

1. 17.      Mrs Pearson is 59 years old. The evidence suggests that she currently suffers from a number of medical conditions: 

   1.            type 2 diabetes

   2.            asthma

   3.            severe chronic obstructive pulmonary disorder (COPD)

   4.            severe obstructive sleep apnoea (OSA)

   5.            osteoarthritis

   6.            lower limb lymphoedema, vascular disease, and ulcers

   7.            severe lower limb peripheral neuropathy

   8.            morbid obesity

   9.            abdominal hernia.

2. 18.      By the end of the hearing, Mrs Pearson’s case relied on the conditions of Lower Limb lymphoedema, neuropathy, and COPD as being impairments which satisfied s 24 of the Act. During submissions in reply, Mrs Pearson’s legal representative stated that he did not press morbid obesity as an impairment.  

   2.Lower limb lymphoedema, vascular disease, leg ulcers and cellulitis

3. 19.      The Tribunal has dealt with the above conditions together because the medical evidence does not allow consideration of lymphoedema and vascular disease separately.  Those conditions cause the leg ulcers and result in cellulitis from time to time. It is how Dr Mitchell dealt with this aspect of Mrs Pearson’s lower limb conditions. 

4. 20.      Dr Gibbs included “Chronic leg ulcers” as a condition or disability in the Evidence of Disability form completed on 22 July 2015 and as a chronic and severely impacting condition in his report dated 7 November 2017.  

5. 21.      During his oral evidence, he said that Mrs Pearson was taking a diuretic which was alleviating the oedema in her lower limbs but was also for blood pressure control. He said that oedema was caused by immobility and venous insufficiency. Immobility contributes to poor blood flow. He suspected that Mrs Pearson’s leg ulcers were because of poor circulation but there was not a firm diagnosis. They were often caused by poor venous blood flow, which was very difficult to remedy because of Mrs Pearson’s immobility and weight. Her healing may improve and the frequency of her leg ulcers would reduce if Mrs Pearson lost weight. If surgery were considered for the venous issue, it would be conducted under a private arrangement. Tests for venous sufficiency are separate from tests for neuropathy.

6. 22.      Dr Mitchell said that Mrs Pearson’s lymphoedema was caused primarily by her obesity and to a lesser degree by the varicosities in her legs and if her obesity “goes away” the lymphoedema would be less troublesome.

7. 23.      Mrs Pearson was admitted to hospital on 3 August 2014 suffering from cellulitis to the right leg and with poor glycaemic control and treated.  Mrs Pearson attended hospital on 20 April 2015 for dressing of bilateral lower leg ulceration.  She had a four year history of lower leg ulcers.  The Nursing Assessment Summary reported “Client Goals as agreed with health professional:  To achieve normal skin integrity Weight loss increase mobility”.   Chronic lower limb ulcers were noted on the records for Mrs Pearson’s admission on 1 October 2016.

8. 24.      Mrs Pearson did not give evidence that lymphoedema or leg ulcers caused her pain or affected her functioning.  She just said she took medication for it and her diabetes.

9. 25.      Mrs Pearson’s legal representative argued as follows.  Whether Mrs Pearson’s weight has caused the lympheodema, does not alter the fact it is a condition which does entail loss or damage to a physical function and is therefore an impairment for the purpose of s 24(1) of the Act. There is swelling and loss of function of the lymphatic system. He relied on a document on lymphoedema published by the World Health Organisation.  He argued that the reasoning of Deputy President in Schwass and National Disability Insurance Agency [2019] AATA 28 at paragraph [38] was wrong.

10. 26.      In Schwass, Deputy President Humphries held that morbid obesity was not an impairment because the diagnosis does not entail a “loss of, or damage to, a physical, sensory or mental function”. He held that it was “difficult to see” how, lymphoedema, “a condition arising from morbid obesity which does not entail the loss of, or damage to, a physical function – and which is merely a physical manifestation of that state, … could itself be said to entail the loss of, or damage, to a physical function”.

11. 27.      The Agency submitted that the consideration of lymphoedema in Schwass be treated with caution.  It also relied on the supplementary report of Dr Mitchell to argue that Mrs Pearson’s leg ulcers are well managed through medication and/or are not disabling. 

12. 28.      In his first report, Dr Mitchell listed “Bilateral leg varicosities and lymphoedema together with regular breakdown in the integrity of the skin in the lower limbs” as the second of three “significant medical conditions which impact on (Mrs Pearson’s) capacity to manage physical activities … in descending order of importance”.  The Tribunal does not accept that Dr Mitchell changed his position in his supplementary report or oral evidence.

13. 29.      Based on Dr Mitchell’s evidence, the Tribunal finds that in this case the condition of “Bilateral leg varicosities and lymphoedema together with regular breakdown of the integrity of the skin of the lower limb” is an impairment because it involves the loss of a physical function.  Mrs Pearson’s disability is a reduced capacity to manage physical activities, which is attributable in part to this impairment. 

14. 30.      While Mrs Pearson did not attribute reduced function to this condition, she is not a medical practitioner and suffers a number of conditions which affect her lower limb function.  The Tribunal therefore prefers to rely on Dr Mitchell’s evidence.

    15.Peripheral neuropathy of the lower limbs

15. 31.      In his report dated 7 November 2017,  Dr Gibbs’ stated that:

    (Mrs Pearson) has a disability of a sensory and physical impairment.  She is wheelchair bound she has severe lower limb peripheral neuropathy.

16. 32.      He had not included lower limb peripheral neuropathy in his list of “chronic and severely impacting conditions” that affected Mrs Pearson, listed in the previous paragraph of that report.

17. 33.      During his oral evidence, Dr Gibbs said the following.  He had talked about referring Mrs Pearson in respect of her feet and legs and neuropathy but nothing had been done, including formal nerve conduction studies.  He was unable to find in the records any diagnosis of that condition made by a specialist.  This condition was a result of brittle diabetes.  There was no record of when the diagnosis had been made but it was prior to his caring for Mrs Pearson. He had not always discussed the ins and outs of treatment.  He was trying to get Mrs Pearson’s diabetes under control.  Neuropathy cannot be reversed. He was trying to make the best of chronic conditions.

18. 34.      In his supplementary report, Dr Mitchell wrote that peripheral neuropathy of the lower limbs is presumably secondary to her diabetes and is usually permanent, however, it is not disabling for at least short periods of light physical activity and function.

19. 35.      During his oral evidence, Dr Mitchell said that the diagnosis was based on the symptoms described. He did not consider that it was a significant problem or directly affected function, although discomfort may lead to a person not doing as much. He said that it was commonly associated with diabetes and that weight loss was not strongly related to improvement.  Controlling diabetes would stop it progressing and there may be some small improvement in the condition.

20. 36.      Mrs Pearson said that if she did too much walking, her legs play up.  Her legs and feet get really cold and she has numbness, mainly in her feet, but also in her calf muscles if she does too much. Having no feeling in them makes it hard to get up and do anything in the house.  She cannot stand for too long.  She takes Panadol or Panamax if she is in pain. Because of her legs, it is difficult to exercise.

21. 37.      The Agency argued that there had been no formal diagnosis of lower limb neuropathy.  The Tribunal does not accept that a specialist such as a neurologist has to diagnose this condition. The Tribunal finds that the evidence of both Doctors Gibbs and Mitchell supports the finding that Mrs Pearson suffers from lower limb neuropathy which is an impairment because it involves the loss of or damage to a physical or sensory function.  Mrs Pearson’s disability is a reduced capacity to manage physical activities, including walking, which is attributable in part to this impairment. 

    7.Respiratory conditions

22. 38.      Mrs Pearson’s case was put on the basis of COPD.  She has also been diagnosed with and treated for asthma and severe OSA which the evidence show are reasonably well managed. 

23. 39.      In his report of 7 November 2017, Dr Gibbs included severe COPD in his list of chronic and “severely impacting” conditions affecting Mrs Pearson.  During his oral evidence, he said that he had taken that diagnosis from Mrs Pearson’s history and did not recall seeing any diagnosis from a respiratory physician, and that Mrs Pearson’s lung conditions would remain the same if she lost weight.

24. 40.      When listing Mrs Pearson’s medications for asthma, he said that she had three puffers for chronic pulmonary disease and mentioned emphysema which he said is a progressive disease and you do not recover. That was the first time that diagnosis had been mentioned.

25. 41.      The records of Mrs Pearson’s hospitalisation from 1 to 4 October 2016 show that she was using Seretide, Spiriva and Ventolin for her asthma.   

26. 42.      Dr Mitchell said that he only mentioned COPD in his first report because it was indicated from a record he had seen. He said that it would only impact on Mrs Pearson if she undertook arduous physical activity which she had not done recently and was not likely to in the future.  He said that he walked with her to do a test and she was quite able to mobilise for 20 to 25 metres without shortness of breath.  If it were severe, Dr Mitchell said it would have been obvious clinically, which it was not.

27. 43.      In his supplementary report, Dr Mitchell noted that various hospital discharge summaries indicated that clinical investigations of Mrs Pearson’s respiratory function were undertaken at times she attended hospital with acute asthma without indicating any significant chronic obstructive airways disease.  He also stated that there were no significant symptoms to indicate the severe obstructive airways disease mentioned in Dr Gibbs’s letters and she did not present clinically with severe chronic obstructive airways disease when he saw her.     

28. 44.      In his first report, Dr Mitchell listed three groups of “significant medical conditions which impact on (Mrs Pearson’s) capacity to manage physical activities” in “descending order of importance”. The first group was:

    1.            Obesity, asthma and possible obstructive airways disease resulting in a reduced physical tolerance for activity and also shortness of breath.

29. 45.      Dr Arnold, Respiratory, Sleep and General Physician saw Mrs Pearson on 14 October 2014.  He reported a “background of asthma which is under control, diabetes and osteoarthritis”.   Dr Arnold diagnosed severe OSA, recommended a trial of a Continuous Positive Airway Pressure (CPAP), and advised Mrs Pearson to lose weight, which he noted is the main treatment for sleep apnoea.

30. 46.      Records of Mrs Pearson’s admission to hospital on 16 November 2015 stated that she had presented to hospital with shortness of breath “on a background of asthma and OSA”.  Those records show that she did not proceed with the CPAP trial in 2014. She saw Dr Arnold again on 19 February 2016 when he wrote a report supporting her application for funding for CPAP. 

1. 47.      An Occupational Therapist reported that Mrs Pearson was using a CPAP machine as of February 2016.

2. 48.      The evidence does not persuade the Tribunal that Mrs Pearson has been investigated for and diagnosed with or is being treated for COPD, as a condition that is distinct from asthma. The Tribunal does not accept that COPD is an impairment pursuant to s 24(1)(a) of the Act.

   5.       Is either or both of Mrs Pearson’s impairments permanent?

3. 49.      The National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (the Rules) at 5.4 to 5.7 provide: 

   1.            An impairment is, or is likely to be, permanent (see paragraph 5.1(b)) only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.

   2.            An impairment may be permanent notwithstanding that the severity of its impact on the functional capacity of the person may fluctuate or there are prospects that the severity of the impact of the impairment on the person's functional capacity, including their psychosocial functioning, may improve.

   3.            An impairment may require medical treatment and review before a determination can be made about whether the impairment is permanent or likely to be permanent. The impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated (even though the impairment may continue to be treated and reviewed after this has been demonstrated).

   4.            If 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.

4. 50.      The evidence is clear that the impairment bilateral leg varicosities and lymphoedema together with regular breakdown in the integrity of the skin in the lower limbs are a consequence substantially of Mrs Pearson’s morbid obesity. 

5. 51.      When asked about bariatric surgery not proceeding when Mrs Pearson’s former general practitioner, Dr Blackford, was treating her, Dr Gibbs said the following.  It did not proceed because of the risks involved. There is always a risk with abdominal surgery and if a patient’s health is compromised, that is a risk to recovery.  Mrs Pearson’s diabetes, weight, lungs and other conditions would all impact on her recovery from a general anaesthetic.    

6. 52.      Mrs Pearson maintains that surgery is unreasonable because a general anaesthetic is risky and her diabetes makes healing difficult. She has not seen a specialist.  She said that she last saw a dietician at Dr Gibbs’s surgery a year ago before the dietician had a baby, and will have to get back to her.  She tries to eat small portions but has good and bad months.  Mrs Pearson said that her weight makes it difficult to exercise and get around. 

7. 53.      Dr Mitchell said that her major risk at surgery is her obesity.

8. 54.      Mrs Pearson has not consulted appropriate specialists about having bariatric surgery, such as a bariatric surgeon, a respiratory physician and an anaesthetist. The Tribunal is not satisfied that Mrs Pearson’s morbid obesity is permanent and therefore is not satisfied that the consequential impairment, bilateral leg varicosities and lymphoedema together with regular breakdown in the integrity of the skin in the lower limbs, is permanent. 

9. 55.      The impairment, severe lower limb peripheral neuropathy, is permanent.  At best, according to Dr Mitchell, better control of Mrs Pearson’s diabetes, such as by weight loss, would stop it progressing and there may be some small improvement in the condition.

   7.       Does Mrs Pearson’s permanent impairment satisfy s 24(1)(c) of the Act?

10. 56.      Dr Mitchell’s evidence is the most helpful evidence on the question of whether Severe lower limb peripheral neuropathy results in substantially reduced functional capacity to undertake one or more of the specified activities in s 24(1)(c).

11. 57.      For the reasons stated above, the Tribunal prefers Dr Mitchell’s expert evidence to Mrs Pearson’s evidence about the functional impact of this impairment. 

12. 58.      In his first report, Dr Mitchell listed obesity, asthma and possible obstructive airways disease as the most important of three groupings of significant medical conditions which impact on Mrs Pearson’s capacity to manage physical activities.  He stated that the first grouping resulted in reduced physical tolerance for activity and shortness of breath. He listed bilateral leg varicosities and lymphoedema together with regular breakdown in the integrity of the skin in the lower limbs as the second condition. 

13. 59.      Dr Mitchell addressed lower limb peripheral neuropathy in his supplementary report and in oral evidence. He did not consider that it was a significant problem or directly affected function, although discomfort may lead to a person not doing as much. He also said that morbid obesity and diabetes are Mrs Pearson’s major problems and if she managed diabetes effectively and weight loss, any remaining medical conditions would not have a material impact on her functionality.

14. 60.      This impairment does not result in substantially reduced functional capacity to undertake any one or more of the activities specified in s 24(1)(c).

15. 61.      Mrs Pearson does not satisfy the disability requirements of s 24(1) of the Act.

    14.     Does Mrs Pearson satisfy Section 25 of the Act?

16. 62.      During oral submissions, Mrs Pearson’s legal representative relied on the early intervention requirements set out in s 25 of the Act.  He referred to Dr Gibbs’s evidence about possibly referring Mrs Pearson to an exercise physiologist or for hydrotherapy which would help her obesity and venous insufficiency.  He referred to Dr Mitchell’s evidence in general terms, that is, all activity is therapeutic, although Mrs Pearson cannot maintain arduous activities. The legal representative said that seeing an exercise physiologist would assist Mrs Pearson’s obesity which impacts on her breathing, lymphoedema, and neuropathy.

17. 63.      Rules 6.4 to 6.7 of the Rules are to similar effect to rules 5.4 to 5.7 considered above.  For the reasons given above, Mrs Pearson has one sensory or physical impairment that is or is likely to be permanent, lower limb peripheral neuropathy, and therefore satisfies s 25(1)(a)(i) of the Act. 

18. 64.      The next requirement is that the CEO is satisfied that provision of early intervention supports is likely to benefit the person by reducing the person’s future needs for supports in relation to disability. 

19. 65.      Mrs Pearson has suffered from lower limb peripheral neuropathy since at least 2014 according to Dr Gibbs.  It is caused by her diabetes which she has suffered for about 12 years.  She has been morbidly obese for many years as shown by the various hospital and other medical records.  Her diabetes would be improved if she lost weight. At best, weight loss and a consequential improvement in her diabetes would stop the lower limb peripheral neuropathy from progressing and there may be some small improvement in the condition.

20. 66.      The medical evidence did not address the extent to which the condition would progress or what the impact would be on Mrs Pearson’s functional capacity if it did.  It is therefore not possible for the Tribunal to determine the potential benefits of the foreshadowed early interventions on the impact of the impairment on Mrs Pearson’s functional capacity and whether they would reduce her future needs for supports. 

21. 67.      The NDIA Planning Conversation Tool apparently used to make the “Reasonable and Necessary decision dated 26 November 2015 included under the heading “Participant Statement”, a list of goals.  The first was “To improve health” and the second “To get out to a gym 3 days a week. Lose Weight.” 

22. 68.      Mrs Pearson did not go to the gym three days a week or lose weight to any significant extent.  

23. 69.      In her statement dated 11 September 2018, Mrs Pearson listed the benefits she received from the NDIS in 2015.  They included:

    1.            assistance with cleaning 3 days a week;

    2.            assistance to access the community 2 days a week;

    3.            a support worker pushing her wheelchair when she played Hoi and assistance to access the toilet.

24. 70.      She also listed what she would like from the NDIS:

    1.            the supports for cleaning and access to the community she had had;

    2.            home renovation to facilitate getting her mobility scooter out of the house and a shed for its storage;

    3.            ongoing maintenance costs for the mobility scooter and wheelchair;

    4.            a pet and support keeping a pet;

    5.            personal care including assistance with showering.

25. 71.      Dr Mitchell’s evidence was that morbid obesity and diabetes are Mrs Pearson’s major problems and if she managed diabetes effectively and weight loss, any remaining medical conditions would not have a material impact on her functionality.  He said that doing nothing and sitting down all day, not being active, is far more harmful that doing something.

26. 72.      The assistance Mrs Pearson now seeks from the Scheme is not going to assist her morbid obesity or diabetes and the consequential medical conditions from which she suffers. 

27. 73.      It is unlikely that Mrs Pearson would utilise the early intervention supports mentioned by her legal representative, to attend an exercise physiologist or hydrotherapy.  She has not pursued her goals of attending a gym three days a week and losing weight since November 2015.

28. 74.      The Tribunal is not satisfied that the provision of early intervention supports is likely to benefit Mrs Pearson by reducing her future needs for supports in relation to disability.

29. 75.      Chapter 9 of the OGs provides:

    The intention of the early intervention is to alleviate the impact of a person’s impairment upon their functional capacity by providing support at the earliest possible stage.

30. 76.      The Tribunal does not consider that the proposed early intervention supports are consistent with that intention.  Mrs Pearson’s diabetes and obesity are longstanding conditions which have resulted in various medical conditions, including lower limb peripheral neuropathy from which she has suffered for at least four years.  

31. 77.      The Tribunal is not satisfied that Mrs Pearson satisfies the early intervention requirements set out in s 25 of the Act.

    3.       Decision

32. 78.      The reviewable decision is affirmed.

    5.        

I certify that the preceding 78 (seventy – eight) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

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

Associate

Dated: 19 July 2019

Date(s) of hearing:	24 January 2019
Solicitors for the Applicant:	Mr J McClintock, Legal Aid NSW
Counsel for the Respondent:	Mr K Eskerie, Sparke Helmore Lawyers
Solicitors for the Respondent:	Ms C Halls, Sparke Helmore Lawyers