Pomeroy and National Disability Insurance Agency - [2018] AATA 387

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Pomeroy and National Disability Insurance Agency

Details

AGLC: Pomeroy and National Disability Insurance Agency [2018] AATA 387
Case: [2018] AATA 387
Decision Date: 6 March 2018

CaseChat Overview and Summary

Ms Pomeroy, the applicant, sought review of a decision by the National Disability Insurance Agency (NDIA) to refuse her mother access to the National Disability Insurance Scheme (NDIS). The applicant sought access for her mother to fund home modifications and support for dietary and physiotherapy services. The Administrative Appeals Tribunal (AAT) considered whether the applicant's mother met the NDIS access criteria.

The primary legal issues before the Tribunal were whether the applicant's mother met the disability requirements under section 24(1) of the National Disability Insurance Scheme Act 2013 (Cth). This involved determining whether she had a disability, whether her impairments were permanent, whether these impairments resulted in a substantially reduced functional capacity in key activities, and whether her impairments affected her capacity for social or economic participation, and if she was likely to require NDIS support for her lifetime. The Tribunal also considered the alternative access criteria.

The Tribunal had regard to medical evidence and the applicant's oral evidence. The NDIA conceded that chronic osteoarthritis was a disability under the Act but argued that morbid obesity was not an impairment. However, the Tribunal found that the medical evidence demonstrated that the applicant's morbid obesity, in conjunction with her osteoarthritis, substantially reduced her physical function, particularly in her ability to mobilise and undertake self-care. The Tribunal was satisfied that these conditions constituted a disability within the meaning of the Act. The Tribunal also considered the criteria for permanency of impairment, noting that an impairment is permanent if there are no known, available, and appropriate evidence-based treatments likely to remedy it.

Ultimately, the Tribunal found that the applicant did not meet either the primary or alternative access criteria for the NDIS. Consequently, the Tribunal affirmed the NDIA's internal review decision.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 admission2. 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 wheelchair4. 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

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.