Powell and National Disability Insurance Agency - [2023] AATA 3677

Powell and National Disability Insurance Agency [2023] AATA 3677 (10 November 2023)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s):2022/7430
Re:Patrick Powell
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

Tribunal:Member P Smith
Date:10 November 2023
Place:Sydney

DECISION
The Tribunal affirms the decision under review pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).
.............................[SGD]...........................................
Member P Smith
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – Application to review a decision made by a reviewer of the National Disability Insurance Agency under subsection 100(6)(a) of the National Disability Insurance Scheme Act 2013 (Cth) to confirm a decision made by a delegate of the Chief Executive Officer of the NDIA under subsection 20(1)(a) of the NDIS Act that a person does not meet the access criteria as set out in section 21 of the NDIS Act to become a participant in the National Disability Insurance Scheme (NDIS) – whether the Applicant is a person who meets the access criteria as set out in section 21 of the NDIS Act to become a participant in the NDIS - where the Applicant seeks to become a participant in the NDIS on the basis of physical impairments arising from his post-poliomyelitis syndrome diagnosis – whether the Applicant is a person who meets the disability requirements as set out in section 24 of the NDIS Act or whether the Applicant is a person who meets the early intervention requirements as set out in section 25 of the NDIS Act – whether the Applicant’s physical impairments result in substantially reduced functional capacity to undertake one or more activities that involve communication, social interaction, learning, mobility, self-care, and self-management as required by subsection 24(1)(c) of the NDIS Act – whether the Applicant’s impairments affect his capacity for social or economic participation as required by subsection 24(1)(d) of the NDIS Act – whether the Applicant is likely to require the support under the NDIS for his lifetime as required by subsection 24(1)(e) of the NDIS Act – whether the provision of early intervention supports for the Applicant is likely to benefit him by reducing his future needs for supports in relation to his disability as required by subsections 25(1)(b) and (c) of the NDIS Act – whether early intervention supports for the Applicant is not most appropriately funded or provided through the NDIS as required by subsection 25(3) of the NDIS Act - decision under review affirmed
LEGISLATION
National Disability Insurance Scheme Act 2013 (Cth), ss.9, 18, 19, 20, 21, 22, 23, 24, 25, 26, 100(6)(a), 209(1).
Administrative Appeals Tribunal Act 1975 (Cth), ss. 37, 43(1)(a).
CASES
Mulligan v National Disability Insurance Agency [2015] FCA 544.
Williams and National Disability Insurance Agency [2021] AATA 3383.
National Disability Insurance Agency v Foster [2023] FCAFC 11.
Madelaine & National Disability Insurance Agency [2020] AATA 4025.
SECONDARY MATERIALS
National Disability Insurance Scheme (Becoming a Participant) Rules 2016
National Disability Insurance Scheme – Operational Guidelines – Access
REASONS FOR DECISION
Member P Smith
10…

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 Powell and National Disability Insurance Agency

Details

AGLC: Powell and National Disability Insurance Agency [2023] AATA 3677
Case: [2023] AATA 3677
Decision Date: 10 November 2023

CaseChat Overview and Summary

This matter concerned an application to review a decision made by a reviewer of the National Disability Insurance Agency (NDIA). The reviewer had affirmed a delegate's decision that the applicant did not meet the access criteria to become a participant in the National Disability Insurance Scheme (NDIS). The applicant sought to become a participant based on physical impairments arising from a post-poliomyelitis syndrome (PPS) diagnosis.

The court was required to determine whether the applicant met the disability requirements under section 24 of the NDIS Act 2013 (Cth) or the early intervention requirements under section 25 of the Act. Specifically, the court considered whether the applicant's physical impairments resulted in a substantially reduced functional capacity to undertake activities related to communication, social interaction, learning, mobility, self-care, and self-management, and whether these impairments affected his capacity for social or economic participation, and if he was likely to require NDIS support for his lifetime. Alternatively, the court examined whether early intervention supports would likely benefit the applicant by reducing future needs and whether such supports were not most appropriately funded or provided through the NDIS.

The court noted that the NDIS Act is supplemented by Operational Guidelines, including Access Guidelines, which provide guidance for decision-makers. The applicant, aged 66, lives with his partner and daughters, who provide informal support. He was diagnosed with polio as a child, leading to PPS primarily affecting his right upper limb, with recent degenerative changes to his hip and spine attributed to the long-standing biomechanical effects of PPS. The applicant sought NDIS participation to fund physiotherapy and other allied health therapies to maintain his mobility and slow the reduction in his functional capacity for daily activities.

The decision under review was affirmed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The NDIS Act is also supplemented by National Disability Insurance Scheme Operational Guidelines (the Operational Guidelines). The Operational Guidelines have been established by the Agency to provide guidance to the CEO when making decisions under the NDIS Act. Relevantly, the Agency has established the National Disability Insurance Scheme Operational Guidelines – Access (the Access Guidelines).[24] The Access Guidelines provide guidance to the CEO when deciding and considering whether or not a person who makes an access request to the Agency to become a participant in the NDIS meets the access criteria as set out in section 21 of the NDIS Act. [24] See T15 of the T-documents.THE EVIDENCE The Applicant (aged 66) lives with his partner of 17 years and their three adult daughters in a privately rented four-bedroom single storey home[25] The Applicant’s daughters work and study full-time. His partner is in full-time employment working as an Accountant in a carpentry company.[26] The Applicant’s partner and their daughters provide informal support to the Applicant. [25] See page 208 of R2 of the Tender Bundle for the Occupational Therapy Functional Capacity Assessment Report of Melissa Sale, Occupational Therapist, dated 8 February 2023.[26] See page 209 of R2 of the Tender Bundle for the Occupational Therapy Functional Capacity Assessment Report of Melissa Sale, Occupational Therapist, dated 8 February 2023. The Applicant was diagnosed with polio when he was two years old.[27] Since this time, the Applicant has developed PPS primarily affecting his right upper limb[28]. The Applicant’s PPS was diagnosed in the last five years[29]. PPS is a progressive neuromuscular disorder characterised by worsening disability over time[30]. More specific to the Applicant, he has developed degenerative changes to his hip and spine. These changes, according to A/P Burrell are caused by the long-standing biomechanical effects of PPS[31]. [27] See page 204 of R2 of the Tender Bundle for the Occupational Therapy Functional Capacity Assessment Report of Melissa Sale, Occupational Therapist, dated 8 February 2023 and page 56 of T3 of the T-documents.[28] See the additional notes made on the access request form at page 29 of T1A of the T-documents by Associate Professor James Burrell, a Clinical Associate Professor and Behavioural Neurologist.[29] See the Statement of Lived Experience made by the Applicant on 28 October 2022 at A1 of the Tender Bundle.[30] See the letter prepared by Associate Professor James Burrell, a Clinical Associate Professor, and a Behavioural Neurologist, dated 27 July 2022 at T12 of the T-documents.[31] See T12 of the T-documents. The Applicant reiterated in his evidence that he is seeking to become a participant in the NDIS on the basis of physical impairments arising from his PPS. This is so given that the Applicant can be funded under the NDIS for weekly recurring physiotherapy treatment and possibly other allied health therapies, including exercise physiology. The Applicant said that physiotherapy treatment would enable him to maintain his current level of mobility and slow down the substantial reduction in his functional capacity to undertake daily activities.