PRLT and National Disability Insurance Agency - [2021] AATA 3148

PRLT and National Disability Insurance Agency [2021] AATA 3148 (2 September 2021)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2020/0198
Re:PRLT
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

INTERLOCUTORY DECISION
Tribunal:Deputy President F Meagher
Date:2 September 2021
Place:Brisbane

The direction made on 29 April 2021 that, unless the Applicant has reasonable grounds for not so doing, she shall attend and engage in an assessment by Mr McBride, clinical psychologist, as arranged by the Respondent, is revoked.
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Deputy President F Meagher
Catchwords
PRACTICE AND PROCEDURE – National Disability Insurance Scheme Act 2013 (Cth) – application for review of decision to approve statement of supports – interlocutory application to revoke direction involving Applicant undertaking clinical psychologist assessment – risk of harm to the Applicant – direction revoked – application granted
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) s 33
National Disability Insurance Scheme Act 2013 (Cth)
Cases
Jones and National Disability Insurance Agency [2021] AATA 852
MDCT and National Disability Insurance Agency [2020] AATA 6036
REASONS FOR INTERLOCUTORY DECISION
Deputy President F Meagher

PRLT (the Applicant) is a participant in the National Disability Insurance Scheme (NDIS). She has been diagnosed with a number of conditions including generalised anxiety and major depression. She applied to the Tribunal on 8 January 2020 seeking review of supports she claims are reasonable and necessary pursuant to the National Disability Insurance Scheme Act 2013 (the NDIS Act).[1]
[1] The Application for Review was filed on 13 January 2021.
The National Disability Insurance Agency (the Respondent) approved a statement of participant supports on 21 May 2019 in respect of which the Applicant was dissatisfied. Accordingly, the Applicant sought internal review of that statement of supports seeking a number of additional supports. The Respondent made a decision in regards to the internal review on 19 December 2019. The Applicant remained dissatisfied with the Respondent’s decision and hence sought review before the Tribunal.
On 29 April 2021, following a directions hearing conducted by telephone on 28 April 2021, the Tribunal (differently constituted) made a direction that:
It is directed that, unless the Applicant has reasonable grounds for not doing so, the Applicant shall attend and engage in an appointment for assessment by Mr McBride, clinical psychologist, as arranged by the Respondent.
On 28 April 2021 the Applicant’s representative wrote to the Respondent seeking answers to the following questions:
1If [the Applicant] elects not to participate in the assessment, what are the alternative options available to her?
2What standardised assessment tools is the proposed assessor planning on using?
3Can additional options be put forward to as potential assessors? Additional options were put forward last time, and the NDIA have rejected [the Applicant’s] suggestion.
4Is the applicant [sic] questioning [the Applicant’s] eligibility for the scheme?
5Has the recent evidence (submitted on 9 April 2021) been considered – and given this evidence is the agency willing to consider increasing [the Applicant’s] support? If so, what supports are they open to considering?
On 13 May 2021 the Respondent’s representative wrote to the Applicant responding to the questions above as follows:
1.If [the Applicant] elects not to participate in the assessment, what are the alternative options for her?
DP Constance has directed that the applicant attend the assessment to be arranged by the respondent. Therefore, subject to any variation of this direction, [the Applicant] is required to attend the assessment. Should she refuse to attend the assessment, and should the Tribunal consider that there was no reasonable basis for her refusal, the Tribunal is likely to conclude she has failed to comply with the Tribunal’s direction and it may list the matter to address whether the application should be dismissed.
2.What standardised assessment tools is the proposed assessor planning on using?
Mr McBride has advised that for [the Applicant’s] assessment, he would plan to conduct a clinical interview / assessment that is comprehensive and will take one to two hours. The neurocognitive assessment measures he administers depend slightly on her performance and capacity. He would plan to administer the following measures - possibly adding or deleting some assessment measures as he proceeds.
Delis-Kaplan Executive Function System (D-KEFS)
WAIS-IV Wechsler Adult Intelligence Scale 4th Edition (WAIS-IV)
Complex Figure Test
Auditory Verbal Learning Test
Controlled Oral Word Association Test (COWAT)
Trail Making Test
Global Assessment of Functioning (GAF)
Social and Occupational Functioning Assessment Scale (SOFAS)
Depression Inventory
3.Can additional options be put forward as potential assessors? Additional options were put forward last time, and the NDIA have rejected [the Applicant’s] suggestion.
The Agency has identified Mr Richard McBride as the appropriate independent expert to conduct the assessment based on his qualifications and experience. As you are aware, the Tribunal has now made a direction that [the Applicant] attend an assessment to be arranged by the respondent with Mr McBride.
4.Is the Agency questioning [the Applicant’s] eligibility for the scheme?
The Agency is not questioning [the Applicant’s] eligibility for the scheme but rather is assessing the appropriate level of support she requires in relation to her disability.
5.Has the recent evidence (submitted on 9 April 2021) been considered – and given this evidence – is the agency willing to consider increasing [the Applicant’s] support? If so, what supports are they open to considering?
The recent evidence submitted on 9 April 2021 is being considered by the Agency. In relation to the additional supports sought by [the Applicant], we note the Tribunal cannot consider supports which were not previously considered by the Agency and DP Constance has already made this clear during the last directions hearing. Any additional support claims will need
Applicants request for revocation and submissions
On 26 May 2021 the Applicant requested revocation of the direction to attend and engage in the assessment with Mr Richard McBride (Mr McBride), clinical psychologist. The request for revocation was accompanied by a letter from the Applicant’s general practitioner, Dr John Tsingos (Dr Tsingos) dated 18 May 2021 and a copy of the Tribunal’s decision in Jones and National Disability Insurance Agency [2021] AATA 852 (Jones).
The letter from the Applicant’s representative contained submissions supporting the revocation of the direction made on 28 April 2021, including that the letter of Dr Tsingos contained the following opinions:
·That a forced assessment by an unknown practitioner will result in further deterioration of [the Applicant’s] condition
·Concern that the assessment’s validity will be compromised due to [the Applicant] being unable to engage in the assessment, and due to the assessment being unlikely to capture the full extent of [the Applicant’s] CFS/PEM symptoms
·That there would be more validity in an assessment undertaken by a long-term practitioner, if it were appropriate to undertake an assessment at all
·That the forced nature of the assessment defies trauma informed care principles
·That the assessment could have a “catastrophic” impact on [the Applicant’s] overall condition and wellbeing, causing likely irreparable harm
The Applicant’s representative’s submissions went on to state:
It is the applicant’s view that Dr Tsingos’s letter contains evidence of reasonable grounds against the proposed assessment. It is further the applicant’s view that a decision made in Jones and National Disability Insurance Agency [2021] (‘Jones’), also attached, should be considered by the tribunal when making the decision around whether or not the assessment is appropriate.
Similar to the evidence presented by Dr John Tsingos, that requiring [the Applicant] engage in a “forced neuropsychological assessment” can “cause catastrophic with likely irreparable harm to [the Applicant’s] overall condition and wellbeing”; Dr Coldwell in the case of Jones expressed concerns that the applicant would be traumatised by the direction to engage in an assessment by an occupational therapist as arranged by the respondent and that he would become suicidal or experience suicidal ideation. Dr Tsingos in [the Applicant’s] case has expressed similar concerns that [the Applicant’s] fragile “emotional state will be pushed into a severe depression that may even result in her taking her life if the assessment was to go ahead” (emphasis added).
While the Tribunal in Jones acknowledged the right of the Respondent to properly test the Applicant’s evidence, it concluded at [23] that it cannot be satisfied that the risk of suicide or suicidal ideation is outweighed by the benefits to be obtained by such an assessment being undertaken. “This includes the benefits of perhaps the best evidence, or expert opinions, that would enable it to reach the correct and preferrable decision” (at [23]). In relation to the Respondent’s arguments that it would be denied procedural fairness if this assessment did not proceed, the Tribunal held that these issues can be ventilated “with full force and effect at the final hearing of this application”.
Given the significant risks identified by Dr Tsingos in [the Applicant’s ] case, the Tribunal should take the same precautions taken at [27] by the Tribunal in Jones and revoke the Order of 29 April 2021 that [the Applicant] attend and engage in an assessment by Mr McBride (clinical psychologist) as arranged by the respondent. It is submitted that the risks outlined by Dr Tsingos constitute reasonable grounds for this order to be revoked.
[Emphasis in original]
The Applicant’s representative’s submissions also referred to a submission made by ME/CFS Australia on 31 March 2021 regarding the suitability of independent assessments for people living with ME/CFS. The Applicant submits that the issues raised by the submission of ME/CFS reflect the concerns raised by Dr Tsingos and seek to summarise the submission, insofar as they support the letter of Dr Tsingos, as follows:
·That “the vulnerability of people who have ME/CFS and the high risk that IA’s represent to their health, should be justification for allowing such persons to opt out of participating in an Independent Assessment” – (page 4)
·That “given the existence of persons who are housebound or bedbound with ME/CFS, they should be given the option to opt out of the IAs to protect their health - (page 4)
·“The Victorian Ombudsman issued reports in 2016 and 2009 that demonstrated the broadscale misuse of Independent Assessments by agents to terminate claims, as well as significant assessor bias” (page 6)
·That “subjecting... [people with ME/CFS] to unqualified assessors who are not independent (because of their financial dependence on the repeat business of the NDIS), who do not understand the condition will cause trauma” (page 13-14)
·“ME/CFS Australia is of the view that there are a significant percentage of people with the condition who will be severely impacted by attending such assessment. Stressors, be they physical or psychological, are an exacerbator to the condition. It is well established that exacerbation causes a decline in the condition…. The decline arising from harms is often not reversable. ME/CFS Australia submits that there should be an option for participants to opt out of IAs by way of the exceptional circumstances option to prevent harms.” – (page 53)
The submission by ME/CFS Australia puts forward a range of additional arguments against the suitability of independent assessments for people with ME/CFS. It would be appreciated if this document could be reviewed thoroughly to support your decision-making around the request to revoke the order made on 29 April 2021.
A further directions hearing was heard by video on 21 June 2021 before this Tribunal. At that hearing the Applicant was accompanied by an advocate/support person who made further oral submissions in relation to the request that the direction that an assessment be undertaken by Mr McBride be revoked. The advocate’s submissions included that:
·an assessment by an unfamiliar practitioner would cause the Applicant harm and to deteriorate further;[2]
·that it would be unlikely to capture the full extent of her condition;[3]
·that there is less validity in an assessment undertaken by someone not familiar with the Applicant;[4] and
·that such an assessment is inconsistent with trauma-informed care principles.[5]
[2] Transcript page 2 lines 34 – 38.
[3] Transcript page 2 lines 38 – 39.
[4] Transcript page 2 lines 41 – 42.
[5] Transcript page 2 lines 42 – 43.
The Applicant submitted in addition, that her general practitioner had stated that she is not medically fit to undertake the assessment.[6] The Applicant also submitted that there had been a number of neuropsychological assessments undertaken by her historically since 2011 and as recently as in 2020.[7] After some discussion between the Tribunal and the parties it became clear that the Applicant had not yet provided copies of those assessments to the Tribunal or the Respondent.[8]
[6] Transcript page 3 lines 4 – 5.
[7] Transcript page 4 lines 37 – 39.
[8] See for example transcript page 5 lines 19 – 24, page 6 lines 34 – 36.
Respondent’s submissions
The Respondent’s representative advised the Tribunal that the Respondent was not formally opposing that the direction that the Applicant attend an assessment with Mr McBride be revoked, and that it considered in the circumstances of the risks referred to in Dr Tsingos’ report that it be left to the Tribunal to make a decision in that regard.[9]
[9] Transcript page 3 lines 17 – 22.
The Respondent however submitted that it did not accept the Applicant’s submission that a report from Mr McBride would not produce a benefit for the Tribunal.[10]
[10] Transcript page 3 lines 24 – 28.
The Respondent’s representative also brought to the attention of the Tribunal the remarks of Senior Member Cameron in Jones where he refers to the ‘benefits of perhaps the best evidence, or expert opinions, that would enable it to reach the correct and preferable decision’.[11]
[11] Transcript page 3 line 43 – page 4 line 2; Jones at [23].
The Respondent’s representative also referred to the further remarks of Senior Member Cameron in Jones as follows:
[24] This is a risk that the Applicant and those advising him must take into account and presumably will make a professional judgement call on. It may be, and the Tribunal cannot reach a conclusion on this question at this time, that it will limit the evidence before it in such a way that it will be unable to determine whether the supports that are sought by the Applicant should be included in his NDIS plan.
Further evidence
On 5 July 2021, the Applicant provided further information to the Tribunal including an email setting out the approximate dates upon which she had historically undertaken neuropsychology testing and the surrounding circumstances she thought relevant to that testing. The email also attached a report from Dr M Antoinette Redoblado Hodge referencing an evaluation undertaken on 22 February 2020 entitled ‘Report of Neuropsychological Evaluation’.
The Applicant’s email of 5 July relevantly concluded with the following assertions:
…reiterates that if this clearance were to be given, she is willing to undertake an assessment with Dr M Antoinette Redoblado Hodge, as Dr Hodge has:
a. Assessed [the Applicant] in the past in a manner and environment that is safe and considerate
b. Has multiple reports that represent the fact that Dr Hodge is independent and provides critical assessments
c. Is able to appropriately represent analysis between a new assessment and a pre-existing assessment (and the tools that have been used)
Consideration
As set out in Jones, to which the Applicant has referred, the Tribunal has the power to direct a party to undertake an assessment by an expert. This power arises from section 33 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) which relevantly provides that:
33 Procedure of Tribunal
(1) In a proceeding before the Tribunal:
…
(c) the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.
…
Types of directions
(2A) Without limiting the operation of this section, a direction as to the procedure to be followed at or in connection with the hearing of a proceeding before the Tribunal may:
(a) require any person who is a party to the proceeding to provide further information in relation to the proceeding;
The power conferred by section 33 of the AAT Act was relevantly discussed in MDCT and National Disability Insurance Agency [2020] AATA 6036 (MDCT) as follows:
[10] Section 2A of the AAT Act sets out the objective which the Tribunal must pursue in carrying out its functions. Expressly, that objective speaks to the mechanism of review, and the section mandates that mechanism to be, amongst other things, fair, just and proportionate to the importance and complexity of the matter and which promotes public trust and confidence in the decision-making of the Tribunal. Section 33 of the AAT Act details the way in which the Tribunal may control its process. Relevantly, subsection 33(1AB) requires the parties to a review application, and any person representing such a party, to use their best endeavours to assist the Tribunal to fulfil the objective in section 2A of the AAT Act. The effect of that provision upon the Respondent’s obligations, when requesting an applicant to facilitate the provision of information or evidence, is that the requests must be reasonable and proportionate to the complexity of his or her case. The effect of that provision upon the response to a reasonable and proportionate request is to require an applicant to accede to such a request where it is made for the purpose of facilitating a review process that it fair and just. If a reasonable and proportionate request is made, and unreasonably refused, it is open to the Tribunal to control the review process by directing that an applicant meet such a request. To do so is consistent with the Tribunal’s objective to ensure that each party is given the opportunity to present their case, and that the review is conducted fairly and justly.
[Footnotes omitted]
The possible consequences of refusing to submit to a request for further information in relation to supports to be included in a participant’s plan made under the NDIS were also relevantly discussed in MDCT as follows:
[25] A request under section 36 of the NDIS Act is made for the purpose of gathering information about matters to be included in the participant’s plan. An unsurprising natural consequence of refusing a request to gather further such information may be that, in some cases, the decision-maker will conclude that it does not have sufficient information to approve particular supports sought by the participant be included in the plan. On review, the consequence of an applicant continuing to refuse to consent to the gathering of certain evidence may lead the Tribunal to conclude that it does not have sufficient information to determine that particular supports sought to be included in the plan are reasonable and necessary and should be funded by the NDIS. It may therefore be in the interests of an applicant for review to participate in the gathering of any relevant evidence

The possible consequences of refusing to engage in an appointment for assessment by Mr McBride are matters to which the Applicant has, presumably, had regard given they were canvassed at the hearing by the Respondent, by reference to the relevant paragraphs of Jones.[12]
[12] Transcript page 4 lines 14 – 22.
The evidence of Dr Tsingos which is before me is comprehensive and compelling. Dr Tsingos relevantly opines as follows:[13]
I stress any decrease in [the Applicant’s] quality of life will have a negative impact on her mental health conditions. This will further purpurate the cycle of decreased function leading to decreased mental health she experiences. I believe that [the Applicant’s] fragile emotional statement will be pushed into a severe depression that may even result in her taking her life if the assessment was to go ahead.
[13] Letter from Dr Tsingos dated 18 May 2021 (filed 26 May 2021), 3.
In light of this evidence I consider it appropriate to revoke the direction of Deputy President Constance of 29 April 2021.
As to the submission provided by ME/CFS Australia I place no weight upon it. It was not prepared in light of the Applicant’s specific circumstances and was prepared for a purpose unrelated to these proceedings.
For the reasons set out above, the direction made on 29 April 2021 that, unless the Applicant has reasonable grounds for not so doing, she shall attend and engage in an assessment by Mr McBride, clinical psychologist, as arranged by the Respondent, is revoked.

I certify that the preceding 25
(twenty-five) paragraphs are a true copy of the reasons for the decision herein of Deputy President F Meagher

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Associate
Dated: 2 September 2021

Dates of Hearing:
21 June 2021

Final Submissions Received:

Representative for the Applicant:

5 July 2021

Ms A Piper, People with Disability Australia

Counsel for the Respondent: Ms P Heffernan, Australian Government Solicitor