Re Schwass and National Disability Insurance Agency

Case [2019] AATA 28

Schwass and National Disability Insurance Agency [2019] AATA 28 (17 January 2019)

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL    )
  )           No: 2017/4338
GENERAL DIVISION  )

Re: Larry Schwass
Applicant

And: National Disability Insurance Agency
Respondent

DIRECTION

TRIBUNAL: Deputy President Gary Humphries
DATE of CORRIGENDUM: 22 January 2019
PLACE: Canberra

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:

1.       ‘s 24’, appearing in the second line of paragraph 8, is changed to ‘s 23’.

……………………………..

Deputy President Gary Humphries

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2017/4338

Re:Larry Schwass

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Deputy President Gary Humphries

Date:17 January 2019

Place:Canberra

The Tribunal affirms the National Disability Insurance Agency’s reviewable decision dated 26 June 2017.

........................................................

Deputy President Gary Humphries

Catchwords

NATIONAL DISABILITY INSURANCE AGENCY – access criteria set out in ss 21-25 of the National Disability Insurance Scheme Act 2013 (the Act) – whether morbid obesity is an impairment for the purposes of the Act – whether morbid obesity and osteoarthritis are permanent or likely to be permanent – impairment generally implies a loss of, or damage to, a physical, sensory or mental function – morbid obesity not an impairment – morbid obesity and osteoarthritis not permanent – access criteria not met – reviewable decision affirmed.

Legislation

National Disability Insurance Scheme Act 2013 ss 21, 22, 23, 24, 25

Cases

Mulligan v National Disability Insurance Agency [2015] FCA 544
Pomeroy and National Disability Insurance Agency [2018] AATA 387

Secondary Materials

National Disability Insurance Agency, Operational Guidelines
National Disability Insurance Scheme (Becoming a Participant) Rules 2013 (Cth)
Susan Butler (ed), Macquarie Dictionary (Macquarie Dictionary Publishers, 7th ed, 2017)
World Health Organization, International Classification of Functioning, Disability and Health (2001)

REASONS FOR DECISION

Deputy President Gary Humphries

17 January 2019

INTRODUCTION

  1. Mr Larry Schwass, the applicant in these proceedings, is aged 64 and suffers from morbid obesity and osteoarthritis. He seeks access to the National Disability Insurance Scheme (the NDIS or the Scheme) on account of these conditions.

  2. However, following his application to become a participant in the Scheme in October 2016, the National Disability Insurance Agency (NDIA or the Agency) decided, on 30 November 2016, that he was ineligible to access the Scheme. He sought internal review of this decision by the Agency on 9 March 2017, but on 26 June 2017 it made a determination upholding its refusal. It is this reviewable decision of the Agency that is the subject of Mr Schwass’s application before the Tribunal for merits review.

    LEGISLATION

  3. The criteria by which access is granted to the NDIS are set out in ss 21 to 25 of the National Disability Insurance Scheme Act 2013 (the Act). It is convenient here to set out some of those provisions.

  4. Section 21 of the Act provides:

    When a person meets the access criteria

    (1)A…

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Re Schwass and National Disability Insurance Agency [2019] AATA 28
Case
[2019] AATA 28
Decision Date

CaseChat Overview and Summary

This matter concerned an application by Mr Schwass for access to the National Disability Insurance Scheme (NDIS). The National Disability Insurance Agency (NDIA) had refused his application, and Mr Schwass sought a review of this decision. The Administrative Appeals Tribunal (AAT) was required to determine whether Mr Schwass met the access criteria for the NDIS, specifically whether his conditions constituted a "disability" as defined by the *National Disability Insurance Scheme Act 2013* (the Act).

The primary legal issues before the Tribunal were whether morbid obesity constitutes an "impairment" for the purposes of the Act, and whether Mr Schwass's morbid obesity and osteoarthritis were permanent or likely to be permanent. The Act requires that a person have a disability attributable to one or more intellectual, cognitive, neurological, sensory, or physical impairments, or to a psychiatric condition, and that this disability must be permanent or likely to be permanent.

The Tribunal reasoned that the term "impairment" commonly refers to a loss of, or damage to, a physical, sensory, or mental function. Applying this definition, the Tribunal concluded that morbid obesity, in itself, was not an impairment under the Act, although it accepted that osteoarthritis was. Furthermore, the Tribunal found that neither Mr Schwass's morbid obesity nor his osteoarthritis were permanent or likely to be permanent, noting evidence of attempts at weight management and the potential for improvement. Consequently, Mr Schwass did not meet the disability requirements under section 24 of the Act.

As Mr Schwass failed to meet the disability requirements, the Tribunal found it unnecessary to consider whether he met the early intervention requirements under section 25 of the Act. Accordingly, the Tribunal affirmed the NDIA's decision that Mr Schwass did not meet the access criteria for the NDIS.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

For the reasons set out below, the Tribunal is persuaded that morbid obesity is not an impairment for the purposes of the Act, and Mr Schwass’s morbid obesity and osteoarthritis are not permanent, or likely to be permanent. In light of this finding, it is unnecessary to determine whether Mr Schwass meets the other criteria in ss 24 and 25.FACTSMr Schwass’s evidence Mr Schwass made submissions to the Tribunal, and gave oral evidence. He was involved in a car accident in 1973, resulting in significant lower limb fractures which led to ongoing leg and hip problems. He has chronic issues with osteoarthritis in his hip, knee, ankle and upper limbs. He also has problems with fluid retention/lymphoedema within his lower limbs and scrotum which have resulted in multiple infections and admissions to hospital. The Tribunal was also told that he suffers from Bilateral Carpal Tunnel Syndrome. Additionally, Mr Schwass suffers from recurring cellulitis in his lower limbs. He is not employed and receives the Disability Support Pension, and lives with his wife and father-in-law. He described the Tribunal how he and his wife get up in the early hours of the morning to prepare him for the day ahead. She helps him wrap his legs in compression wraps and with toileting. She also prepares his meals for the day. Mr Schwass described his dietary regime to the Tribunal. At one point he attempted to substitute shakes for meals, particularly the evening meals, for a period of perhaps six months. He said he did not recall losing any weight as a result of this. He no longer drinks alcohol or coffee. He has severely limited mobility but can travel short distances, including to the doctor, on his motorised scooter. For longer distances, he told the Tribunal he needed to get his wife to take the day off and drive him to appointments. He said he cannot use buses or taxis, because they cannot accommodate his scooter which he needs for mobility once at his destination. It was to this lack of mobility that he attributed discontinuing his participation in an obesity clinic at Calvary Hospital in Belconnen, ACT. He said it was too hard to get there. He said that, in any case, the clinic merely talked about strategies for reducing weight, including modifying his diet. He did not recall that these strategies, to the extent that he had attempted them, had been successful. A letter from Dr Himali Suwandarathne, a staff specialist at the Obesity Management Service and dated 9 September 2015, was tendered. In it Dr Suwandarathne described how the service would prepare an obesity management plan for Mr Schwass, including attempting a very low energy diet. Mr Schwass told the Tribunal he did not recall any discussions about the plan or following through on it. Mr Schwass told the Tribunal he had never consulted a bariatric surgeon.The medical evidence Dr Mohan Mirpuri has been Mr Schwass’s GP since September 2005. Dr Mirpuri provided a report dated 22 January 2017 in support of Mr Schwass’s request for internal review by the NDIA. In it he confirmed the diagnoses of Osteoarthritis, primarily affecting his left ankle, left knee and left hip… Chronic Pain, and morbid obesity. He described Mr Schwass’s conditions as persistent, severe, and debilitating, and added the following descriptive comment: 1. Mobility…Mr Schwass is unable to walk unassisted for any length greater than approximately 15-20 metres at a time, after which he becomes fatigued. He also has very poor balance, and is unsteady on his feet at all times, making him vulnerable to injuries from falls. He has chronic arthritis in his ankle and hips due to his morbid obesity (his weight is over 200 kg, and BMl of ~58.1). This will affect his balance, as he is unable to walk w/o an aid…Mr Schwass cannot self transfer from his scooter to a bus or car seat, and thus requires the assistance of a support worker or other assistive technology to achieve such transfers safely.Whilst in his home, Mr Schwass mobilises with the assistance of an office chair with wheels, which pose safety risks to Larry, as well as his wife and grandchildren who frequently visit his home … He is unable to get out of bed without the assistance of his wife, and l understand that he needs an appropriate bed and hoist to ensure both his and his wife’s safety during transfers. Mr Schwass also will require a shower seat. 2. Social InteractionMr Schwass advises that his main support and social Interaction is with his partner Ms Trudy Schwass. Ms Schwass works full time hours as a government cleaner, in addition to being Mr Schwass’ full time carer…3. Self-care Due to his disability described above, Mr Schwass is totally incapable of attending to house work, showering, dressing, laundry, grooming, and is reliant upon the assistance of his wife Ms Schwass.4. Self-Management As a result of his disability, Mr Schwass has ceased his employment and has, regrettably, become increasingly withdrawn and isolated, which has ramifications for his mental health.

Evidence

Evidence Before The Court

Mr Schwass told the Tribunal he had never consulted a bariatric surgeon.The medical evidence Dr Mohan Mirpuri has been Mr Schwass’s GP since September 2005. Dr Mirpuri provided a report dated 22 January 2017 in support of Mr Schwass’s request for internal review by the NDIA. In it he confirmed the diagnoses of Osteoarthritis, primarily affecting his left ankle, left knee and left hip… Chronic Pain, and morbid obesity. He described Mr Schwass’s conditions as persistent, severe, and debilitating, and added the following descriptive comment: 1. Mobility…Mr Schwass is unable to walk unassisted for any length greater than approximately 15-20 metres at a time, after which he becomes fatigued. He also has very poor balance, and is unsteady on his feet at all times, making him vulnerable to injuries from falls. He has chronic arthritis in his ankle and hips due to his morbid obesity (his weight is over 200 kg, and BMl of ~58.1). This will affect his balance, as he is unable to walk w/o an aid…Mr Schwass cannot self transfer from his scooter to a bus or car seat, and thus requires the assistance of a support worker or other assistive technology to achieve such transfers safely.Whilst in his home, Mr Schwass mobilises with the assistance of an office chair with wheels, which pose safety risks to Larry, as well as his wife and grandchildren who frequently visit his home … He is unable to get out of bed without the assistance of his wife, and l understand that he needs an appropriate bed and hoist to ensure both his and his wife’s safety during transfers. Mr Schwass also will require a shower seat. 2. Social InteractionMr Schwass advises that his main support and social Interaction is with his partner Ms Trudy Schwass. Ms Schwass works full time hours as a government cleaner, in addition to being Mr Schwass’ full time carer…3. Self-care Due to his disability described above, Mr Schwass is totally incapable of attending to house work, showering, dressing, laundry, grooming, and is reliant upon the assistance of his wife Ms Schwass.4. Self-Management As a result of his disability, Mr Schwass has ceased his employment and has, regrettably, become increasingly withdrawn and isolated, which has ramifications for his mental health. Dr Mirpuri wrote a report (undated but which he told the Tribunal during live evidence he had written in October 2017) in which he recorded that Mr Schwass has a BMI of over 58 and a weight of over 210 kg. He considered osteoarthritis to be the principal contributor to his inability to walk. He also considered that Mr Schwass’s cellulitis and lymphoedema were products of his obesity. Dr Mirpuri noted that Mr Schwass had been referred to the obesity clinic at Calvary Hospital, but that this referral had been unsuccessful. He said that, in light of this, the only possibility available to him to lose weight would be bariatric surgery, but that this is not available in the public health system and Larry is not able to afford the private fees. He also told the Tribunal that, due to his obesity, Mr Schwass would be at risk of developing chest infections, including pneumonia, if he was bedridden following surgery.

Decision

Reasons for decision

The Tribunal agrees. In those circumstances it is unnecessary to consider whether Mr Schwass meets the other early intervention requirements in s 25.CONCLUSION For the reasons provided above, Mr Schwass does not meet the disability requirements (s 24) or the early intervention requirements (s 25). It follows that he cannot meet the access criteria set out in s 21(1) and is not eligible to become a participant in the NDIS. Accordingly, the Tribunal affirms the NDIA’s reviewable decision dated 26 June 2017.

Ratio Decidendi

Legal Principle Established

The report of Dr Suwandarathne of 9 September 2015, referred to above, included the following observations: In regards to Larry’s diet, he reports eating unhealthy food in big portions prior to June this year. During his recent hospitalisation with cellulites (sic), he was advised to decrease his carbohydrate intake and portion sizes. Currently his meal choices seem to be healthy and portion sizes seem to be reasonable. He has been able to lose about 4kg since his discharge from hospital. Exercise-wise, he tries to walk outside most days of the week in his wheelie walker…In summary, Larry has Class III Obesity complicated by severe, chronic bilateral lymphoedema with recurrent cellulites (sic). He also has stable atrial flutter and is on anticoagulants. In regard to Larry’s obesity management we will work closely with Larry to prepare an obesity management plan, which will be sent to you in due course. In my opinion, it is worthwhile trying a very low energy diet (VLED) in order to obtain rapid weight loss which will in turn improve his lymphoedema and recurrent cellulitis as well as his physical fitness, followed by a low-calorie diet and regular physical exercise to maintain that weight loss. However, due to affordability issues Larry is going to discuss this with his wife and let us know later about his opinion.I will organise a follow up for Larry in 6-8 months’ time.CONSIDERATION As previously indicated, to access the Scheme Mr Schwass must satisfy, inter alia, either the disability requirements of s 24 or the early intervention requirements of s 25. The Tribunal must be positively satisfied on the evidence that each of the requirements is met in relation to an applicant. The assessment of whether the disability requirements, in particular, are met requires a relatively high degree of precision by decision-makers (Mulligan v National Disability Insurance Agency [2015] FCA 544 at [55] per Mortimer J). Is morbid obesity an impairment? The NDIA contends that Mr Schwass’s morbid obesity does not meet the disability requirement set out in s 24(1)(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; While the Agency accepts that Mr Schwass’s osteoarthritis is an impairment for the purposes of the paragraph, it contends that morbid obesity is not. In support of this position it cites the Agency’s Operational Guidelines (the Guidelines) which set out the following in Chapter 8.1 – What is a disability attributable to impairment?The term ‘impairment’ commonly refers to a loss of, or damage to, a physical, sensory or mental function (Mulligan and NDIA [2014] AATA 374 at [19]).The term 'disability' is described in Article 1 of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) as follows: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.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).