Pomeroy and National Disability Insurance Agency
[2018] AATA 387
•6 March 2018
Pomeroy and National Disability Insurance Agency [2018] AATA 387 (6 March 2018)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number:2017/4349
Re:Vira Pomeroy
APPLICANT
National Disability Insurance AgencyAnd
RESPONDENT
DECISION
Tribunal:Dr L Bygrave, Member
Date:6 March 2018
Place:Sydney
The decision under review is affirmed.
.....................[sgd] ...................................................
Dr L Bygrave, Member
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – access – whether applicant meets access criteria – whether applicant meets the disability requirements – whether applicant meets the early intervention requirements – whether applicant meets the alternative access criteria – morbid obesity – osteoarthritis – whether applicant’s condition is an impairment for the purposes of the Act – whether applicant’s impairments permanent – whether impairments result in substantially reduced functional capacity in one or more relevant activities – whether applicant’s impairments affect capacity for social or economic participation – whether applicant likely to require support under the NDIS for her lifetime – decision under review affirmed
LEGISLATION
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Supports for Participants) Rules 2013
National Disability Insurance Scheme (Prescribed Programs – New South Wales) Rules 2016
CASES
Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634.
SECONDARY MATERIALS
Operational Guideline – Access to the NDIS
REASONS FOR DECISION
6 March 2018
INTRODUCTION
The applicant, Mrs Vira Pomeroy, lodged an access request form to become a participant in the National Disability Insurance Scheme (NDIS) on 3 May 2017. Dr Jim Xu (staff specialist) completed the form, which listed the applicant’s disabilities as:
Inability to mobilise a few meters without assistance of another person and walking aid
Severe bilateral osteoarthritis of knee and severe low back pain
Morbid obesity[1]
[1] Exhibit T4.
On 29 May 2017, a delegate of the Chief Executive Officer (CEO) of the National Disability Insurance Agency (NDIA) determined that the applicant does not meet the access criteria specified in sections 21–25 of the National Disability Insurance Scheme Act 2013 (Cth) (the Act).
The applicant requested an internal review of this decision and on 19 July 2017, an internal review officer of the NDIA affirmed the decision.
The applicant lodged an application for review to the NDIS Division of the Administrative Appeals Tribunal (the Tribunal).
The matter was heard in Sydney on 8 February 2018. The applicant was represented by her daughter and carer, Ms Sherree Pomeroy. The applicant and Ms Pomeroy attended the Tribunal hearing and gave evidence by conference telephone because the applicant is currently hospitalised.
LEGISLATION
The NDIS legislative framework
The Parliament of Australia expressly provided objects and principles in the Act to give guidance on the interpretation of the statute. The objects of the Act are set out in section 3 and 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); and
·supporting the independence and social and economic participation of people with disability; and
·enabling people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports; and
·facilitating the development of a nationally consistent approach to the access to, and the planning and funding of, supports for people with disability.
Section 3(3)(b) of the Act also notes that, in giving effect to the objects of the Act, regard is to be had to the need to ensure the financial sustainability of the NDIS.
Section 4 sets out the general principles guiding actions under the Act. These principles include affirming that people with disability should be supported to exercise choice in the pursuit of their goals and the planning and delivery of their supports; and acknowledging and respecting the role of families, carers and other significant persons in the lives of people with disability.
Under section 209(1) of the Act, the Minister may make rules prescribing matters under the Act. Relevant to this matter are the National Disability Insurance Scheme (Becoming a Participant) Rules 2013 (Cth) (the Rules), which form part of the legislation.
The CEO of the NDIA has also written Operational Guidelines to assist staff in making decisions and performing other functions under the Act. The Operational Guidelines represent government policy and should be applied by the Tribunal unless there is good reason not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[1979] AATA 179; (1979) 2 ALD 634.
The access criteria
To become a participant in the NDIS, the applicant must satisfy the access criteria. The primary access criteria are summarised in section 21(1) of the Act:
21 When a person meets the access criteria
(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).
The NDIA accepts the applicant meets the age requirements in section 22 of the Act and the residence requirements in section 23 of the Act. Therefore, the applicant will meet the access criteria if she meets either the disability requirements set out in section 24 of the Act or the early intervention requirements provided in section 25 of the Act.
Sections 24 and 25 of the Act state:
24 Disability requirements
(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 to one or more impairments attributable to a psychiatric condition; 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, or psychosocial functioning in undertaking, 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.
25 Early intervention requirements
(1) A person meets the early intervention requirements if:
(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 developmental delay; 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.
(2) The 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.
(3) Despite 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.
The relevant operational guidelines are the Operational Guideline – Access to the NDIS (the Access Operational Guideline); chapter 8 of the Access Operational Guideline is titled ‘The Disability Requirements’ and chapter 9 is titled ‘The Early Intervention Requirements’. The Access Operational Guideline is referred to later in this decision.
Alternative access criteria to the NDIS are set out in section 21(2) of the Act, which provides that:
(2) … the person meets the access criteria if the CEO is satisfied of the following:
(a)at the time of considering the request, the person satisfies the requirements in relation to residence prescribed as mentioned in subsection 23(3) (whether or not the person also satisfies the requirements mentioned in subsection 23(1));
(b)the person:
(i) was receiving supports at the time of considering the request or, if another time is prescribed by the National Disability Insurance Scheme rules for the purposes of this subparagraph, at that other time; and
(ii) received the supports throughout the period (if any) prescribed by the National Disability Insurance Scheme rules for the purposes of this subparagraph; and
(iii) received the supports under a program prescribed by the National Disability Insurance Scheme rules for the purposes of this subparagraph;
(c)if the person becomes a participant, the person would not be entitled to receive the supports referred to in paragraph (b), or equivalent supports.
These criteria are supplemented by the National Disability Insurance Scheme (Prescribed Programs – New South Wales) Rules 2016 (the Prescribed Programs Rules). In applying the alternative access criteria, I am not required to address the disability requirements of the early intervention requirements but must address the detailed requirements set out in section 21(2) of the Act and the Prescribed Programs Rules.
EVIDENCE
In considering whether the applicant meets the primary access criteria or the alternative access criteria, I have had regard to the medical evidence and the oral evidence of Ms Pomeroy at the Tribunal hearing.
Medical evidence
In the access request form completed on 3 May 2017, Dr Xu described the applicant’s disabilities as severe bilateral osteoarthritis of the knee, severe low back pain and morbid obesity. He reported that the applicant’s current treatment was a strict medical supervised weight reduction diet, and responded that gastric surgery was a ‘treatment that is likely to remedy the impairment’. Dr Xu noted that the applicant requires assistance from other persons to be mobile, and assistance with self-care in the areas of showering/bathing, toileting and dressing. The applicant does not require assistance with communication, social interaction, learning or self-management.
Dr Charbel Karam (RMO colorectal surgery) completed a hospital discharge referral dated 9 May 2017.[2] Dr Karam noted that the applicant presented to hospital on 9 March 2017 in relation to abdominal pain and was diagnosed with a small bowel obstruction. He outlined that the applicant has the following co-morbidities: morbid obesity, bilateral knee arthritis, scoliosis, bowel obstruction in 2016, and ventral hernia. Dr Karam described the progress/issues of these co-morbidities as follows:
[2] Exhibit T5.
1. Small bowel obstruction
- CT abdomen was suggestive of SBO due to complex hernias
- resolved after 2 days of non-operative management
- upgraded to a normal diet
- will continue to be a high risk for future bowel obstruction if she is unable to lose her weight
- nil subsequent obstructive symptoms throughout admission
2. Morbid obesity
- Commenced on an intense weight loss regime of Optifast x 4 shakes/day and clear fluids with ongoing dietician review
…
- Consulted the metabolic clinic at RPA -> phone consulted. Will be happy for referral once patient more mobile
- Rehab were consulted -> suggested 2-4 week trial before taking over care
- Rehab team established plan for trial of rehabilitation if patient responsive to weight reduction
…
- Patient was educated on importance for gastric surgery under Dr Michael Talbot (St George) in view of complex morbid obesity
- Patient decided to follow up with Dr Jameison at Westmead metabolic clinic on 18/05/2017
- Patient to please continue intensive weight loss program on Optifast and weekly weight measurements
…
3. Mobility
- Mobility declining secondary to obesity and OA
- required intensive physio intervention
- Received ongoing physiotherapy and rehab for optimization of mobility
…
- Mobility improved at the end of admission at baseline: 1x Standby assist with bariatric 4WW and wheelchair
4. Osteoarthritis
- Severe right knee pain
- Commenced on targin 10.5mg
…
- GP to please refer patient to Rheumatologist for further investigation and management of knee OA.
…
7. Allied health issues
- Ongoing SW input throughout admission. Carere [sic] support was offered and carere [sic] respite refferal [sic] amde [sic] prior to discharge
- Ongoing dietician reveiw [sic] for wieght [sic] reduction
- Patient was cleared after extensive physio input at baseline
- Seen by OT and cleared with established equipment. Cleared for discharge
A medical report by Dr Mutasim Saddiq (general practitioner) on 26 May 2017 confirmed that the applicant is being treated for morbid obesity and chronic disabling osteoarthritis; and requires full time assistance with daily activities of bathing and showering, toileting, dressing and grooming, and transportation.[3]
[3] Exhibit T6.
An occupational therapy assessment completed by Ms Abi Gebhardt (occupational therapist) on 8 June 2017 reported that the applicant mobilises around the house using a wheeled walker, and receives assistance from her daughter for self-care and domestic tasks.[4] Ms Gebhardt noted that the applicant had the following current concerns:
·difficulties transferring in and out of bed;
·inability to adjust her seated position in her utility chair due to the height of the chair; and
·her pressure care mattress is compressing and has exceeded the usage timeframe, increasing the applicant’s risk of pressure injuries.
[4] Exhibit T9.
Ms Gebhardt also mentioned that the applicant was relocating to a new private rental property, which has steps at the entrance and a bathroom that is small and has a large hob to access the shower recess. She stated that the applicant is ‘unable to mobilise on steps or transfer over a hob’.
Prior to the hearing, Ms Pomeroy filed three further reports with the Tribunal.
A report by Ms Rohinika Sharma (social worker, Liverpool Hospital) dated 23 January 2018 noted that the applicant was admitted to hospital on 5 January 2018 due to abdominal pain.[5] The report noted that the applicant was seen by the rehabilitation team at the hospital on 16 January 2018 and was not considered a suitable candidate for rehabilitation as she has been bedbound for the past eight months. Ms Sharma concluded that the applicant remains an inpatient at hospital due to the lack of services that are necessary to support her to live an ordinary life.
[5] Exhibit A1.
A physiotherapy functional report by Ms Cathy Tieu (physiotherapist) dated 23 January 2018 explained that the applicant’s current property is not accessible and she has been housebound due to her inability to negotiate stairs. Ms Tieu stated that the applicant:
…demonstrates a pattern of functional decline; she improves while in hospital, but is unable to maintain this once discharged home. This has happened several times and carry through of the multidisciplinary teams recommendations has been poor thus perpetuating the cycle.[6]
[6] Exhibit A2.
Ms Megan Smyth (senior occupational therapist) provided an occupational therapy report on 24 January 2018. She noted that the applicant ‘has had extensive assessment and intervention provided in the community’; however, she does not have any services in place and her daughter is her primary carer.[7] Ms Smyth outlined that the applicant requires care for 24 hours per day, seven days a week. In particular, she now requires the assistance of two to three people with sling hoist transfers to get her from her bed to a wheelchair and needs an attendant prepared wheelchair for functional mobility. She noted that the applicant requires the assistance of one to two people for all personal care tasks including showering, dressing, toileting and grooming. The applicant also has pressure injuries and requires a high level of pressure area care. Ms Smyth advised that, because the applicant is currently unable to access the community to attend medical and social appointments due to her functional and environmental limitations, her current care needs may be best met by increased services in the community or in a facility which can provide her with 24 hour care.
[7] Exhibit A3.
Ms Pomeroy’s evidence
At the Tribunal hearing, Ms Pomeroy provided extensive oral evidence about her mother’s medical conditions, past treatment and care requirements. Ms Pomeroy explained that her mother began a weight-loss program of Optifast shakes while in hospital from March to May 2017. Her mother continued the program for approximately three months and is now on a low-fat diet. Ms Pomeroy stated that her mother had an appointment with Dr Jamieson after she was discharged from hospital in May 2017, as noted in Dr Karam’s discharge referral; she said that Dr Jamieson advised that gastric surgery would be very difficult for the applicant because she has multiple hernias and her weight was too high. Ms Pomeroy explained that her mother has not been able to either attend a metabolic clinic or visit Dr Talbot regarding gastric surgery or see a rheumatologist. This is because she is physically unable to get her mother to medical and health appointments in the community and her mother’s bariatric wheelchair does not fit in any transport vehicle except for a bariatric ambulance.
Ms Pomeroy told the Tribunal her mother has now been advised by doctors that she is unsuitable for either a rehabilitation program or for surgery to treat her osteoarthritis in her knees because she is unable to walk and her weight is too high. In terms of health and medical care received at home, Ms Pomeroy said that her mother received visits from a general practitioner and monthly visits from a physiotherapist; she also had a single visit from a dietician, who checked her mother’s diet and confirmed she should continue on a low-fat diet.
Ms Pomeroy stated that her mother is in receipt of the disability support pension and she receives both carer payment and carer allowance to provide care for her mother. She is seeking access for her mother to the NDIS to provide home modifications to the bathroom and entry at their current residence, and to support her mother to receive assistance from a dietician and physiotherapist.
CONSIDERATION
Under section 103 of the Act, the Tribunal has jurisdiction to review the internal review decision dated 19 July 2017 as it was made pursuant to section 100(6)(a) of the Act.
The disability requirements
Section 24(1) of the Act is satisfied if the applicant meets all five requirements specified in paragraphs (a) to (e) of this provision. I now consider each of these requirements.
Does the applicant have a disability within the meaning of section 24(1)(a)?
Chapter 8.1 of the Access Operational Guideline includes the following paragraphs:
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 term ‘impairment’ commonly refers to a loss of, or damage to, a physical, sensory or mental function.
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 Becoming a Participant Rules).
The NDIA accepts that the applicant suffers from the conditions of morbid obesity and chronic osteoarthritis; and concedes that chronic osteoarthritis is a disability within the meaning of the Act.
Relying on chapter 8.1 of the Access Operational Guideline, the NDIA provided submissions that the applicant’s condition of morbid obesity is not an impairment for the purposes of the Act because a diagnosis of morbid obesity ‘is made when an individual’s weight falls within a particular range’ which is ‘typically defined as a Body Mass Index (BMI) of more than 40 kg/m2’.[8]
[8] Respondent’s Statement of Position dated 31 January 2018, paragraph 4.10.
While I accept that a diagnosis of morbid obesity describes a person’s weight, I am satisfied that the medical evidence shows the applicant’s morbid obesity is an impairment because it substantially reduces her physical function in terms of her ability to mobilise and to undertake self-care.
Based on the evidence, I am satisfied that the applicant’s conditions of morbid obesity and chronic arthritis are a disability within the meaning of this provision.
Are the applicant’s impairments permanent within the meaning of section 24(1)(b)?
The Rules set out the following paragraphs regarding when an impairment is permanent or likely to be permanent:
5.4 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.
5.5 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.
5.6 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).
5.7 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.
The medical evidence regarding the applicant’s impairment of osteoarthritis in her knees shows the condition is treated with physiotherapy and pain medication. However, Ms Pomeroy gave evidence that the recommendation by Dr Karam for her mother to see a rheumatologist for further investigation and management of her osteoarthritis did not occur. She further explained that she has been advised surgery is not an option given her mother’s current weight.
The applicant’s morbid obesity was treated with a strict supervised weight reduction diet of Optifast shakes for three months in 2017. There is minimal medical evidence before the Tribunal regarding the potential for the applicant to undertake gastric surgery, although I note Ms Pomeroy’s evidence was that any surgery would have significant risks given the complexity of her mother’s current weight and hernias. There is no evidence of the applicant continuing any dietary treatment.
The medical evidence shows there may be treatments to remedy the applicant’s impairments of osteoarthritis and morbid obesity. I am not satisfied either of these impairments are permanent within the meaning of section 24(1)(b) of the Act.
Do the applicant’s impairments result in substantially reduced functional capacity to undertake one or more of the following activities, communication, social interaction, learning, mobility, self-care and self-management within the meaning of section 24(1)(c)?
To comply with section 24(1)(c) of the Act, the applicant must demonstrate that her impairments result in substantially reduced functional capacity to undertake any one of the activities specified in subparagraphs (i) to (vi).
Paragraph 5.8 of the Rules provides:
5.8 An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities – communication, social interaction, learning, mobility, self-care, self-management (see paragraph 5.1(c) – if its result is that:
(a)the person is unable to participate effectively or completely in the activity, or to perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications; or
(b)the person usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in the activity or to perform tasks or actions required to undertake or participate in the activity; or
(c)the person is unable to participate in the activity or to perform tasks or actions required to undertake or participate in the activity, even with assistive technology, equipment, home modifications or assistance from another person.
Further guidance is set out in chapter 8.3.1 of the Access Operational Guideline:
The following information provides further guidance in relation to determining when an impairment results in substantially reduced functional capacity:
By itself, reliance on commonly used items will not result in a substantially reduced functional capacity to participate effectively or completely in an activity. Commonly used items include glasses, walking sticks, non-slip bath mats, bathroom grab rails, stair rails, age appropriate child safety locks, simple adapted kitchen utensils and dressing aids.
In considering the role played by assistive technology, home modifications and equipment, the NDIA will consider specific needs arising from the prospective participant's impairment, and whether those needs are met (or need to be met) through the use of specialist disability aids and/or equipment.
Such items would generally be specifically designed to assist in increasing the functional capacity and participation of people with disability and be formally prescribed by a medical practitioner, specialist clinician or allied health professional such as an occupational therapist, physiotherapist or speech therapist.
When considering whether a person requires assistance from others to participate or perform tasks associated with an activity, the NDIA will have regard to whether a person's need for assistance is consistent with normal expectations of a person of a similar age.
…
A person will be considered to be unable to participate effectively or completely in an activity if they cannot safely complete one or more of the tasks required to participate in an acceptable period of time. Undertaking a task more slowly or differently to others will not necessarily mean a person cannot participate effectively or completely in an activity.
When considering whether a fluctuating or episodic impairment results in substantially reduced functional capacity to undertake relevant activities, the NDIA will consider the impact on the person's ability to function in the periods between acute episodes. [emphasis in original]
The reports of Dr Xu and Dr Saddiq suggest that the applicant has a substantial reduction in functional capacity in the areas of mobility and self-care. This evidence is corroborated by the reports of Ms Smyth, which set out the applicant requires care and assistance to transfer between her bed and a wheelchair and undertake self-care such as showering, grooming and toileting.
While I note the medical evidence does not clearly extrapolate which of the applicant’s impairments affect her functional capacity, I am satisfied on the basis of Ms Pomeroy’s evidence that her mother’s morbid obesity reduces her functional capacity for both mobility and self-care, and her osteoarthritis in her knees reduces her capacity for mobility.
In relation to the activities set out in section 24(1)(c) of the Act, I find that the applicant’s impairments result in substantially reduced functional capacity to undertake mobility and self-care.
Do the applicant’s impairments affect her capacity for social or economic participation within the meaning of section 24(1)(d)?
The evidence clearly demonstrates that the applicant’s impairments of morbid obesity and osteoarthritis in her knees affect her capacity for social and economic participation. The evidence of Ms Sharma, Ms Smyth and Ms Pomeroy is that the applicant is unable to leave her home and requires care for 24 hours a day, seven days a week. She is unable to engage in social activities or employment.
I am satisfied that the applicant meets the requirement in section 24(1)(d) of the Act.
Is the applicant likely to require support under the NDIS for her lifetime within the meaning of section 24(1)(e)?
Chapter 8.5 of the Access Operational Guideline states the following:
8.5 When is a person likely to require support under the NDIS for their lifetime?
The NDIA must also be satisfied that the prospective participant is likely to require support under the NDIS for the rest of their lifetime (section 24(1)(e)).
If an impairment varies in intensity (for example, because the impairment is of a chronic episodic nature) the person may still be assessed as likely to require support under the NDIS for the person's lifetime, despite the variation (section 24(2)).
The NDIA is required to consider a prospective participant’s overall circumstances and conclude that the person will require support under the NDIS for their lifetime. The purpose of this requirement seems to be to distinguish that subset of people with serious and permanent disabilities who are intended to be the beneficiaries of funded supports (Mulligan and NDIA [2015] AATA 974 at [153]).
For example, if a person's support needs arise from a health condition and are most appropriately provided through another service system (i.e. the health system) then the person will not require support under the NDIS for their lifetime. Rather, the person will require support under the health system.
When considering this criterion, the NDIA does not need to be satisfied that the support/s required for the person's lifetime meet the reasonable and necessary criteria. The reasonable and necessary criteria are relevant to whether funding is provided, not whether a person meets the disability requirements (see Mulligan and NDIA [2014] AATA 374 at [53] and Mulligan and NDIA [2015] AATA 974 at [146]–[150]).
Based on the reports of Dr Karram and Dr Saddiq, I am satisfied that the applicant’s impairments are health conditions that are most appropriately treated and provided for through the health system. Consequently, I find that the applicant will not require assistance under the NDIS for her lifetime and does not meet the requirement of section 24(1)(e) of the Act.
The early intervention requirements
The early intervention requirements are set out in section 25 of the Act. Chapter 9 of the Access Operational Guideline explains the purposes of the early intervention requirements as follows:
Early intervention support is available to both children and adults who meet the early intervention requirements. The intention of early intervention is to alleviate the impact of a person’s impairment upon their functional capacity by providing support at the earliest possible stage. Early intervention support is also intended to benefit a person by reducing their future needs for supports.
I now consider whether the applicant meets the early intervention requirements.
Does the applicant have a permanent impairment as set out in section 25(1)(a)?
As set out in paragraph 40 of my reasons, I am not satisfied that the applicant’s conditions of morbid obesity and chronic osteoarthritis are permanent. It follows that I find the requirement in section 25(1)(a) is not met.
Will the provision of early intervention support benefit the applicant as provided in section 25(1)(b) and (c)?
Paragraphs (b) and (c) require the CEO of the NDIA to be ‘satisfied that provision of early intervention supports for the person is likely to benefit the person’ in various ways. Paragraph (b) requires a state of satisfaction that the provision of early intervention supports is likely to benefit the person by reducing the person’s future needs for supports in relation to disability. Paragraph (c) requires a state of satisfaction that the provision of early intervention supports is likely to benefit the person by mitigating or alleviating the impact of the person’s impairment, preventing the deterioration of functional capacity, improving functional capacity, or strengthening the sustainability of informal supports available to the person.
Paragraph 6.9 of the Rules set out the issues the CEO of the NDIA consider in relation to whether the provision of early intervention supports is likely to benefit a person under section 25(1)(b) and (c) of the Act:
6.9 In deciding whether provision of early intervention supports is likely to benefit the person in the ways mentioned in paragraphs 6.2(b) and (c) above, it is expected that the CEO would consider:
(a)the likely trajectory and impact of the person’s impairment over time; and
(b)the potential benefits of early intervention on the impact of the impairment on the person's functional capacity and in reducing their future needs for supports; and
(c)evidence from a range of sources, such as information provided by the person with disability or their family members or carers. The CEO may also in some cases seek expert opinion.
The Access Operational Guideline at paragraph 9.3 states:
9.3 Determining whether early intervention supports are likely to benefit the person
The NDIA must be satisfied that the provision of early intervention supports (except for children with developmental delay) is likely to benefit the prospective participant by:
· reducing the person's future needs for supports in relation to disability (section 25(1)(b)); and
· achieving one or more of the following four outcomes:
(i) mitigating or alleviating the impact of the person's impairment upon the functional capacity of the person to undertake one or more activities (section 25(1)(c)(i)); or
(ii) preventing the deterioration of such functional capacity (section 25(1)(c)(ii));
(iii) improving such functional capacity (section 25(1)(c)(iii); or
(iv) strengthening the sustainability of informal supports available to the person, including through building the capacity of the person's carer (section 25(1)(c)(iv)).
When considering whether the provision of early intervention supports is likely to benefit the person, the NDIA should consider:
· the likely trajectory and impact of the person's impairment over time (rule 6.9(a) of the Becoming a Participant Rules); and
· the potential benefits of early intervention on the impact of the impairment on the person's functional capacity and in reducing their future needs for supports (rule 6.9(b) of the Becoming a Participant Rules); and
· evidence from a range of sources, such as information provided by the prospective participant or their family members or carers. The NDIA may also in some cases seek expert opinion (rule 6.9(c) of the Becoming a Participant Rules).
When considering if a person is likely to benefit from early intervention supports, the NDIA may consider factors such as the time elapsed since the onset or diagnosis of the disability and whether there has been a recent, or impending, significant change in the person's impairment or disability.
There is no medical evidence before the Tribunal concerning potential benefits of early intervention on the impact of the applicant’s impairments on her functional capacity and reducing her future needs for supports. I find that there is insufficient evidence to be satisfied that early intervention supports will be likely to benefit the applicant in the ways specified in section 25(1)(b) and (c) of the Act.
Is early intervention support most appropriately funded or provided through the NDIS in accordance with section 25(3)?
Section 25(3) operates in circumstances where, even if the applicant meets sections 25(1) and (2) of the Act, the applicant may not meet the requirements of early intervention support because the support is not most appropriately funded or provided through the NDIS and is more appropriately funded or provided through other general systems of service delivery or support services, such as through the health system.
As set out in paragraph 50, I find the applicant’s impairments of chronic osteoarthritis and morbid obesity are health conditions that do not satisfy the disability requirements under the Act.
I accept Ms Pomeroy’s submissions to the Tribunal that her mother is not receiving adequate treatment and support through the health system to manage her impairments. However, it does not follow that the NDIS should assume responsibility for the applicant’s psychotherapy support simply because she does not receive adequate treatment and support through the health system. In particular, I refer to the decision in Young and National Disability Insurance Agency in which the Tribunal decided:
Whether or not funding is available through other general systems is not the test of whether it is most appropriately funded or provided through the NDIS. The fact that the health system does not fund entirely, or even at all, what is essentially clinical treatment, or some other form of support that is more appropriately funded through the health system, does not make it the responsibility of the NDIS.[9]
[9] [2014] AATA 401 at 41.
Accordingly, I find that the applicant does not fulfil the early intervention requirements to enable her to become a participant in the NDIS.
The alternative access criteria
The applicant may qualify as a participant in the NDIS if she meets the alternative access criteria as set out in section 21(2) of the Act and supplemented by the Prescribed Programs Rules. Described simply, section 21(2) provides that a person may be able to access the NDIS if they were receiving supports from a ‘qualifying program’ during the relevant ‘qualifying period’.
Ms Pomeroy provided information to the NDIA that her mother received supports from a qualifying program but did not receive these supports throughout the qualifying period.
Based on the evidence, I am satisfied that the applicant does not meet the alternative access criteria as set out in section 21(2) of the Act.
CONCLUSION
As I am satisfied that the applicant does not meet either the primary access criteria or the alternative access criteria, I find the decision of the internal review officer dated 19 July 2017 is correct.
DECISION
The decision under review is affirmed.
I certify that the preceding 65 (sixty-five) paragraphs are a true copy of the reasons for the decision herein of
..........................[sgd]..............................................
Associate
Dated: 6 March 2018
Date(s) of hearing: 8 February 2018 Advocate for the Applicant: Ms S Pomeroy Solicitors for the Respondent: Mr K Eskerie, Sparke Helmore
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