Re Schwass and National Disability Insurance Agency
[2019] AATA 28
•17 January 2019
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
RespondentDIRECTION
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 387Secondary 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
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.
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
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.
Section 21 of the Act provides:
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)…
To meet the disability requirements, an applicant must satisfy the provisions of s 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.
The early intervention requirements are set out in s 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.
ISSUES BEFORE THE TRIBUNAL
Mr Schwass sought access to the NDIS for his primary disabilities, being morbid obesity and osteoarthritis. He also suffers from cellulitis and lymphoedema, which his counsel described as physical manifestations of his morbid obesity.
It was common ground between the parties that Mr Schwass meets the age requirements in s 22 and the residence requirements in s 24. However, the NDIA contended that Mr Schwass does not meet the disability requirements set out in s 24, or the early intervention requirements set out in s 25. In particular, it argued that:
(a)Mr Schwass’s morbid obesity is not an impairment for the purposes of the Act – s 24(1)(a)-(d);
(b)Mr Schwass’s osteoarthritis and morbid obesity are not permanent, or likely to be permanent – s 24(1)(b), s 25(1)(a) and (c);
(c)Mr Schwass is not likely to require the support of the NDIS for his lifetime – s 24(1)(e);
(d)support for Mr Schwass’s conditions is not most appropriately provided through the NDIS – s 25(3).
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.
FACTS
Mr 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 Interaction
Mr 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.
Under cross-examination, Dr Mirpuri indicated that Mr Schwass had told him that he did continue to attend the obesity clinic at Calvary Hospital because he found… to be unsuccessful the reduced-calorie meal program the clinic established for him.
Dr Yeong Joe Lau, orthopaedic surgeon, also gave evidence. His report to Dr Mirpuri dated 17 November 2016 was tendered. In it he diagnosed Mr Schwass with severe arthritis in his left ankle, early arthritis in his left hip and his left knee. He noted that Dr Mirpuri had been discussing the option of an ankle fusion with Mr Schwass, and that Mr Schwass was not too keen about it. Dr Lau considered that this surgery would be worth doing if Mr Schwass’ pain was debilitating enough, and noted that Mr Schwass’ arthritis is not likely to improve.
However, Dr Lau modified his position in a letter dated 19 October 2017, again to Dr Mirpuri. In it he opined that, in relation to the option of surgery on his ankle, the risks would be extremely high. He told the Tribunal that it was not until his second consultation in October 2017 that he appreciated how swollen Mr Schwass’s leg was. He said surgery in these circumstances was probably not in his best interests. Lymphoedema and an inability to mobilise were contributing to this problem, he said. He agreed under cross-examination that significant weight loss would moderate the risk associated with this surgery. Weight loss may, he thought, reduce his leg swelling and lymphoedema, making surgery on his ankle a more viable option.
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).
Counsel for Mr Schwass pointed to the decision in Pomeroy and National Disability Insurance Agency [2018] AATA 387. That case, like the present one, concerned an applicant with morbid obesity and osteoarthritis. There the Tribunal found, at [35]-[36]:
35. 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.
36. 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.
Counsel also referred to the decision of the Federal Court in Mulligan, where Mortimer J made these observations (at [55]-[56]):
Using the concept of impairment enables assessment of the severity and permanency of a person’s condition, and of the effects of that condition through not only the evidence of an applicant, but also medical and clinical evidence. The legislative scheme contemplates a relatively high degree of precision by decision-makers (see, for example, the six activities in s 24(1)(c)) in assessing what a person can or cannot do. The assessment to be undertaken is avowedly functional, and multi-faceted.
That being the case, no arbitrary limits are placed on access to the NDIS. No decision-maker need be satisfied a person’s impairment is “serious“, or more serious than another person’s. No qualitative judgments in that sense are called for. Rather, the legislative scheme is based on a functional, practical assessment of what a person can and cannot do. Critically, the scheme makes detailed provision for that assessment, and it is sufficient for a person to have substantially reduced functional capacity in relation to one activity. That, in my opinion, recognises the spectrum of impairments which can be experienced by persons with disabilities, and accommodates different abilities within one person in terms of her or his daily activities. That is why a detailed functional assessment is so important.
Counsel for Mr Schwass contended that this analysis places emphasis on an applicant’s loss of function rather than the reasons for that loss of function. The disability flowing from severe obesity may be as serious as those flowing from, say, the loss of a leg.
The Tribunal’s attention was also drawn to the World Health Organization’s International Classification of Functioning, Disability and Health,[1] where the meaning of impairment is analysed. Section 4.1 states:
[1] Although the WHO document is not part of the legislative scheme of the NDIS, the Explanatory Statement to the National Disability Insurance Scheme (Becoming a Participant) Rules 2013 makes it clear that the Rules have drawn upon the document for the purposes of determining eligibility and assessment of need. Counsel for the Agency described the document as a conceptual tool.
4.1 Body Functions and Structures and impairments
Definitions: Body functions are the physiological functions of body systems (including psychological functions).
Body structures are anatomical parts of the body such as organs, limbs and their components.
Impairments are problems in body function or structure as a significant deviation or loss.
(1)Body functions and body structures are classified in two different sections. These two classifications are designed for use in parallel. For example, body functions include basic human senses such as “seeing functions” and their structural correlates exist in the form of “eye and related structures”.
(2)“Body” refers to the human organism as a whole; hence, it includes the brain and its functions, i.e. the mind. Mental (or psychological) functions are therefore subsumed under body functions.
(3)Body functions and structures are classified according to body systems; consequently, body structures are not considered as organs.
(4)Impairments of structure can involve an anomaly, defect, loss or other significant deviation in body structures. Impairments have been conceptualized in congruence with biological knowledge at the level of tissues or cells and at the subcellular or molecular level. For practical reasons, however, these levels are not listed. The biological foundations of impairments have guided the classification and there may be room for expanding the classification at the cellular or molecular levels. For medical users, it should be noted that impairments are not the same as the underlying pathology, but are the manifestations of that pathology.
(5)Impairments represent a deviation from certain generally accepted population standards in the biomedical status of the body and its functions, and definition of their constituents is undertaken primarily by those qualified to judge physical and mental functioning according to these standards.
(6)Impairments can be temporary or permanent; progressive, regressive or static; intermittent or continuous. The deviation from the population norm may be slight or severe and may fluctuate over time. These characteristics are captured in further descriptions, mainly in the codes, by means of qualifiers after the point.
(7)Impairments are not contingent on etiology or how they are developed; for example, loss of vision or a limb may arise from a genetic abnormality or an injury. The presence of an impairment necessarily implies a cause; however, the cause may not be sufficient to explain the resulting impairment. Also, when there is an impairment, there is a dysfunction in body functions or structures, but this may be related to any of the various diseases, disorders or physiological states.
(8)Impairments may be part or an expression of a health condition, but do not necessarily indicate that a disease is present or that the individual should be regarded as sick.
(9)Impairments are broader and more inclusive in scope than disorders or diseases; for example, the loss of a leg is an impairment of body structure, but not a disorder or a disease.
(10)Impairments may result in other impairments; for example, a lack of muscle power may impair movement functions, heart functions may relate to deficit in respiratory functions, and impaired perception may relate to thought functions. (Footnotes omitted).
It was put to the Tribunal that this articulation of impairment emphasises that impairment is not to be conflated with something with a diagnostic label. Morbid obesity can indeed, it was said, be considered a deviation from certain generally accepted population standards in the biomedical status of the body… (4.1(5)), and can also be an impairment despite being temporary (4.1(6)). An impairment is not dependent on a particular cause or aetiology to be so defined (4.1(7)). The effect on function, rather than the origin of the effect, is what is important.
Support was lent to this proposition, it was argued, by the Macquarie Dictionary definition of -impaired, meaning denoting that the human function specified or implied is damaged or reduced in capacity.
Consideration
The respective positions of the parties here present the Tribunal with a binary choice: for the purposes of s 24(1)(a), either an impairment manifests as a loss of, or damage to, a physical, sensory or mental function of a person (the Agency’s position), or it manifests merely as a reduction in that person’s capacity to do things which an unimpaired person would be able to do (Mr Schwass’s position).
On careful reflection, I think that the Agency’s position must be preferred. I accept the argument of the Agency that to define impairment as the loss of capacity or functionality assumes a redundancy in the structure of s 24, which requires both that there is an impairment and that there is a substantial reduction in functional capacity as preconditions of access to the Scheme. The separation of the concepts into different parts of the section presupposes that they have different roles to perform. Moreover, impairment is clearly a seminal concept underpinning the operation of the section; each of the disability requirements referred to in paragraphs (a), (b), (c) and (d) is defined by reference to a person’s impairment or impairments. However, Mr Schwass’s definition of impairment seems ill suited to play this critical role. Conditions such as fatigue, hunger or distress, say, might well lead to substantially reduced functional capacity to undertake certain activities, but would scarcely be thought of as the kind of impairments the section contemplates.
I am also not persuaded that the discussions about impairment to which Mr Schwass’s counsel directed me add any significant weight to his argument, and may even be examples of selective quotation. Mortimer J in Mulligan, for example, noted that the Tribunal below correctly observed that impairment is generally understood as involving the loss of or damage to a physical, sensory or mental function (at [51]). The WHO Classification document can be interpreted as lending weight, at various points, to either of the postulated interpretations of impairment; it is, in any case, not part of the legislative scheme. I also accept the submission of Counsel for the NDIA that the Tribunal’s finding in Pomeroy – that obesity is an impairment within the meaning of s 24(1)(a) – appears to have been based on the erroneous logic that because obesity produced a reduction in functional capacity under paragraph (c) then it must therefore be an impairment under paragraph (a).
If it is accepted, then, that impairment generally implies a loss of, or damage to, a physical, sensory or mental function, how is morbid obesity to be assessed in this context? There is no evidence that a diagnosis of morbid obesity necessarily entails a loss of, or damage to, a physical, sensory or mental function. Such a diagnosis is made when an individual’s weight falls within a particular range. This of itself is not reflective of any loss of or damage to the body’s function; it is simply a term that is used to describe a particular state of the body, a state which may be temporary.[2] Morbid obesity could itself be a symptom of an impairment, but there is no evidence in Mr Schwass’s case that his obesity is caused by some other condition which might be described as an impairment. The obesity results in a disability within paragraph (a), but is not itself an impairment, nor is it caused by an impairment.
[2] it is a term used to describe an individual of a particular weight: extreme or morbid obesity is typically defined as a Body Mass Index (BMI) of more than 40 kg/m2
Counsel for Mr Schwass argued that the lymphoedema arising, on Dr Mirpuri’s evidence, from his obesity could be considered an impairment for the purposes of paragraph (a). However, it is difficult to see how a condition arising out of a state which does not entail the loss of, or damage to, a physical function – and which is merely a physical manifestation of that state, as counsel for Mr Schwass conceded – could itself be said to entail the loss of, or damage to, a physical function.
The Tribunal finds that Mr Schwass’s morbid obesity does not satisfy s 24(1)(a).
Is Mr Schwass’s morbid obesity or osteoarthritis permanent?
The NDIA argued that neither the morbid obesity nor the osteoarthritis suffered by Mr Schwass could be considered permanent within s 24(1)(b). It contended that his morbid obesity is not permanent, or likely to be permanent, because:
(a)The evidence suggests he has not undertaken all known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment;
(b)Further medical treatment and review is required before a determination can be made about whether the impairment is permanent or likely to be permanent; and
(c)Medical or other treatment, including continued dietary treatment and/or bariatric surgery, may cure or substantially relieve the condition.
In support of this position it referred to the National Disability Insurance Scheme (Becoming a Participant) Rules 2013 (the Rules), which state at paragraphs 5.4-5.6:
5.4An 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.
5.5An 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.
5.6An 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).[3]
[3] The 2016 version of these rules in fact govern Mr Schwass’s application. Paragraphs 5.4-5.6 are identical to those in the 2013 rules.
Consideration
At the outset, it should be observed that, on the evidence before the Tribunal, Mr Schwass’s osteoarthritis could not be considered permanent if his morbid obesity is not considered permanent. This is because the medical evidence supported the view that Mr Schwass’s osteoarthritis may well be alleviated with ankle surgery, surgery which could only be undertaken if Mr Schwass lost a substantial amount of weight. Dr Lau, the orthopaedic surgeon, considered that ankle fusion surgery was inadvisable while Mr Schwass was at his current weight but was more likely to be successful if he lost a substantial amount of weight. If the Tribunal accepts this evidence, as it does, and finds that the morbid obesity condition is not permanent, then it follows that osteoarthritis cannot be permanent either.
Unfortunately for Mr Schwass, the evidence tends to suggest that there are two possible avenues by which his weight might be substantially reduced, avenues which cannot be said to have been fully explored by him. The first of these is through dietary or other strategies undertaken through a sustained engagement with an obesity management program. Mr Schwass did engage with such a program following surgery in 2015, and engagement which led to the loss of approximately 4kgs. However, it is not apparent that he continued to engage with the program for more than a few months following discharge. His GP, Dr Mirpuri, told the Tribunal he was not sure why his patient had not continued to engage with the obesity clinic at Calvary Hospital, except to say that he did not find the reduced-calorie meal program successful. Mr Schwass himself was vague as to what affect the clinic’s program had had on his weight, but told the Tribunal he did not continue to attend because of difficulties getting to the clinic.
I am not satisfied that Mr Schwass has adequately explained the reasons for his disengagement with the obesity clinic program. There was evidence that the clinic had offered to prepare an obesity management plan for him, including designing a very low energy diet. Mr Schwass told the Tribunal he did not recall any discussions about the plan or following through on it. He could not recall any details of the dietary strategies suggested for him by the clinic, nor of the effects of the strategies when (or if) he employed them.
This is not to say that an onus falls on Mr Schwass to demonstrate that an obesity management program did not, or would not have, alleviated his condition. However, as already mentioned, the Tribunal must be positively satisfied on the evidence that the disability requirement of his condition being permanent is met. The unsatisfactory state of the evidence in this respect does not work in Mr Schwass’s favour.
In any case, the Rules make clear that an impairment is permanent only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment. I do not regard the fact that Mr Schwass had difficulty arranging transport to the clinic as establishing that the program there was not available to him.
The second avenue not fully explored, in the Tribunal’s opinion, by Mr Schwass was bariatric surgery. Counsel for Mr Schwass suggested that bariatric surgery was not available to him, pursuant to paragraph 5.4 of the Rules, because it was not funded in the public health system and it was not affordable to him in the private sector. I cannot accept this submission. I consider that available in this context has the meaning of accessible or within reach; had the drafter intended it to mean affordable it would have been a simple matter to indicate that.
There was some suggestion in the evidence that bariatric surgery might not be available to him because his weight would put him at risk of infection while bedridden post-surgery. Dr Mirpuri gave evidence to this effect but admitted that he had no experience of the protocols pertaining to bariatric surgery. I accept that treatment which might impose a serious risk to a person’s health is not treatment which the Rules would require him or her to undertake lest the permanence of the condition not be established. However I do not accept that the evidence here establishes a risk of this kind. In any case, the suggestion seems difficult to accept given that every candidate for bariatric surgery is likely to be severely overweight, and therefore presumably at such risk, yet bariatric surgery is regularly conducted in the health system, with apparent success. The absence of any evidence from a bariatric surgeon on this question is unfortunate. Accordingly, I am not satisfied that this disability requirement has been met.
I note that the Tribunal in Pomeroy, faced with a very similar set of facts to the present case, considered that there may be treatments to remedy the applicant’s impairments of osteoarthritis and morbid obesity, and that therefore the impairments were not permanent pursuant to s 24(1)(b) (at [40]).
As already indicated, if Mr Schwass’s morbid obesity cannot be regarded as permanent, then neither can his osteoarthritis.
It was conceded by the Agency, and the Tribunal accepts, that Mr Schwass’s impairments substantially reduce his functional capacity to undertake certain activities, in particular mobility and self-care (s 24(1)(c)), and that his osteoarthritis affects his capacity for social or economic participation: s 24(1)(d). The Tribunal also agrees with the Agency’s submission that Mr Schwass does not satisfy s 24(1)(e), though, given its findings with respect to paragraphs (a) and (b), it is unnecessary to set out its reasons for this conclusion.
Section 25 – Early Intervention Requirements
It was conceded by both parties that if Mr Schwass’s impairments were not permanent for the purposes of s 24(1)(b), then they could not be regarded as satisfying the permanency requirements in s 25(1)(a):
(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…
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.
I certify that the preceding 55 (fifty-five) paragraphs are a true copy of the reasons for the decision herein of Deputy President Gary Humphries
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Associate
Dated: 17 January 2019
Date(s) of hearing: 10-11 December 2018 Date final submissions received: 11 December 2018 Counsel for the Applicant: Mr Jamie Ronald
Solicitors for the Applicant:
Counsel for the Respondent:
Legal Aid ACT
Mr Karwan Eskerie
Solicitors for the Respondent:
Sparke Helmore
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