Richards and National Disability Insurance Agency

[2024] AATA 2708

Richards and National Disability Insurance Agency [2024] AATA 2708 (2 August 2024)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number:           2023/7678

Re:Amy Richards

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Senior Member J Collins

Date:2 August 2024

Place:Brisbane

DECISION

Pursuant to section 43(1)(a) of the Administrative Appeals Act 1975 (Cth), the Tribunal affirms the decision under review.

.............................[SGD]..............................

Senior Member J Collins

Catchwords

NATIONAL DISABILITY INSURANCE SCHEME – access – chronic back pain- anxiety and depression- whether applicant meets disability requirements – NDIS Act s24(1)(c) - whether impairments are permanent- whether impairments substantially reduce functional capacity – whether NDIS required for lifetime – whether supports most appropriately funded through NDIS - Queensland Community Support Scheme – NDIS Act s25 – whether meets the early intervention requirements- decision under review affirmed.

Legislation

Administrative Appeals Tribunal Act 1975(Cth) s43
National Disability Insurance Scheme Act 2013 (Cth) sections

National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)

Cases

G v Minister for Home Affairs [2019] FCAFC 79
G v Minister for Immigration and Border Protection [2018] FCA 1229
National Disability Insurance Agency v Foster [2023] FCAFC 11
Mulligan v NDIA [2015] FCA 544; (2015) 233 FCR 201
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] 24 ALR 577

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

Secondary Materials
NDIS - Applying to the NDIS access guidelines, as of 26 June 2023
NDIS - Assistive technology operational guidelines, as of 16 February 2023

Productivity Commission Inquiry Report: Disability Care and Support, Report No 54.

REASONS FOR DECISION

Senior Member J Collins

2 August 2024

1. Mrs Richards is a 45-year-old woman who has chronic and severe back pain.

2. On 13 June 2023 Mrs Richards applied to the National Disability Insurance Agency (‘the Agency’) for access to the National Disability Insurance Scheme (‘the scheme’) so that she could receive supports in relation to her disability.

3. Mrs Richards’ application was refused by the Agency at first instance[1] and again upon internal review. Mrs Richards now applies to the Administrative Appeals Tribunal (‘the Tribunal’) for review of the Agency’s internal review decision (‘the decision under review’).[2]

   [1] T Documents, T1: Application for Review dated 11 October 2023; T1B: Internal Review dated 14 September 2023.

   [2]T Documents, T1; Section 103 NDIS Act.

4. At the hearing Mrs Richards was self-represented. The Agency was represented by Mr Arron Hartnett of Counsel instructed by Maddocks Lawyers.

5. For the reasons set out below, the Tribunal affirms the decision under review and finds that Mrs Richards does not satisfy the requirements of the National Disability Insurance Scheme Act 2013 (‘the NDIS Act’) as follows:

   ·the disability requirements under section 24 of the NDIS Act; and

   ·the early intervention requirements under section 25 of the NDIS Act.

   BACKGROUND TO THE APPLICATION TO THE AGENCY

6. In affirming its original decision on 14 September 2023 in respect of the ‘disability requirements’ the Agency was satisfied that Mrs Richards had a disability attributable to:

   ·a physical impairment due to chronic pain; and

   ·a psychosocial impairment due to depression and anxiety.[3]

   [3] Section 24(1)(a) NDIS Act; T Documents: T3: Report of Dr Cargile dated 30 December 2019; T4: Report of Dr Jones dated 29 January 2020; T5: Letter of Mr Brayden Vo dated 2 May 2020.

7. The Agency was not however satisfied having regard to the remaining requirements of section 24 of the NDIS Act that Mrs Richards’ impairments:

   ·are, or are likely to be permanent;

   ·result in a substantially reduced functional capacity to undertake communication, social interaction, learning, mobility, self-care and/or self-management;

   ·affect her capacity for social and economic participation; and

   ·are likely to require the lifetime support of the Scheme.

8. Having not met this criterion the Agency determined that Mrs Richards did not satisfy the ‘disability requirements’ in section 24 of the NDIS Act.[4]

   [4] T Documents, T1B.

9. In respect of the ‘early intervention requirements’ the Agency, on the basis that the Agency was not satisfied that Mrs Richards’ impairments are permanent or likely to be permanent[5] also determined that Mrs Richards was unable to satisfy the ‘early intervention requirements’ in section 25 of the NDIS Act.[6]

   [5] T Documents, T1B; Section 25(1)(a) NDIS Act.

   [6] T Documents, T1B.

   ISSUES

10. The issues before the Tribunal are whether Mrs Richards meets:

    ·the disability requirements under section 24 of the NDIS Act, and

    ·the early intervention requirements under section 25 of the NDIS Act.

11. Determination of these issues is made pursuant to the National Disability Insurance Scheme Act 2013 (Cth) and the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth).

    THE NATIONAL DISABILITY INSURANCE SCHEME ACT 2013 (CTH)

12. The disability requirements are contained in section 24 of the NDIS Act and provide as follows:

    (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 the person has one or more impairments to which a psychosocial disability is attributable; 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 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.

    (3)  For the purposes of subsection   (1), an impairment or impairments that are episodic or fluctuating may be taken to be permanent, and the person may be taken to be likely to require support under the National Disability Insurance Scheme for the person's lifetime, despite the episodic or fluctuating nature of the impairments.

    (4)  Subsection   (3) does not limit subsection   (2).

13. The requirements of section 24 of the NDIS Act are cumulative and all criteria must be met.

14. The early intervention requirements are contained in section 25 of the NDIS Act and provide as follows:

    1.A person meets the early intervention requirementsif:

    (a)the person:

    (i)has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent;

    (ii)has one or more identified impairments to which a psychosocial disability is attributable and that are, or are likely to be, permanent; social interaction;

    (iii)is a child who has developmentaldelay; 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.

15. Likewise, the requirements of section 25 of the NDIS Act are cumulative and all criteria must be met.

16. Section 27 of the NDIS Act provides for the making of rules in relation to the disability requirements and the early intervention requirements. The relevant rules in respect of this review are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (‘the Access Rules’).

17. The Agency also issues Operational Guidelines in relation to the assessment of whether a person meets the disability requirements. The relevant guidelines in this review are the Becoming a Participant - Applying to the NDIS guidelines (‘the Access Guidelines’).[7]

    [7]  Ourguidelines.ndis.gov.au: Applying to the NDIS, as of 1 February 2024.

18. There is no power conferred by the NDIS Act to make Operational Guidelines, and they are issued in an exercise of executive power.[8] The Tribunal is therefore not bound by any policy set out in the Agency’s Operational Guidelines; however, in Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[9] the Federal Court held that a Tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation. Further guidance for the proposition that the Tribunal is not bound by policy is found in G v Minister for Immigration and Border Protection[10] where Mortimer J (as her Honour then was) held:[11]

    ‘Justice or injustice is not found within a policy. It is found by looking at the overall circumstances of an individual’s case with the principal focus being on the purpose and context of the statutory power, not the executive policy framed to guide it …’

    [8] G v Minister for Home Affairs [2019] FCAFC 79 at [18].

    [9] [1979] 24 ALR 577 at [590].

    [10] [2018] FCA 1229.

    [11] Ibid, at [171].

19. Therefore, unless the Access Guidelines are inconsistent with the provisions or objects of the legislation, they should be considered in any determination of whether Mrs Richards meets the disability requirements or the early intervention requirements.

20. Whether Mrs Richards meets the disability requirements or the early intervention requirements is a question of fact to be determined on the balance of available evidence. The Tribunal is required to undertake a ‘fact-finding task’[12] with a relatively high degree of precision and be positively satisfied.[13] 

    [12] National Disability Insurance Agency v Davis [2022] FCA 1002 at [42].

    [13] Mulligan v National Disability Insurance Agency (2015) 233 FCR 201 at [55] cited in Re Schwass and National Disability Insurance Agency [2019] AATA 28 at [29]; National Disability Insurance Agency v Davis [2022] FCA 1002 at [61].

    MRS RICHARDS’ CONTENTIONS

21. Mrs Richards contends that she satisfies both the disability requirements and the early intervention requirements.

22. Mrs Richards relies upon her physical impairment arising from her back injury which includes chronic pain. Mrs Richards also relies upon a psychosocial impairment due to depression and anxiety.[14]

    [14] Transcript, page 6 lines 1-7.

    THE AGENCY’S POSITION

23. The Agency’s position in relation to the disability requirements was confirmed at the hearing and is as follows:

    ·The Agency accepts that Mrs Richards has a has a physical disability due to chronic pain and a psychosocial disability due to anxiety and depression within the meaning of section 24(1)(a) of the NDIS Act;[15] and

    ·The Agency does not accept that Mrs Richards’ impairments:

    oare permanent or likely to be permanent within the meaning of section 24(1)(b) of the NDIS Act;

    oresult in a substantially reduced functional capacity for her to undertake one or more of the activities within the meaning of section 24(1)(c) of the NDIS Act;

    oaffect her capacity for social and economic participation within the meaning of section 24(1)(d) of the NDIS Act; and

    oare likely to require support under the scheme for her lifetime, within the meaning of section 24(1)(e) of the NDIS Act.[16]

    [15] Transcript: Respondent’s closing submissions, page 143 lines 8-10.

    [16] Transcript: Respondent’s closing submissions, page 148 lines 36-38; page 150 lines 33-37; page 150 lines 40-47; page 151 lines 11-25.

24. The Agency’s position in relation to the early intervention requirements was as follows:

    ·The Agency does not accept that Mrs Richards’ impairments are:

    opermanent or likely to be permanent within the meaning of section 25(1)(a) of the NDIS Act;

    olikely to benefit Mrs Richards by reducing her need for supports within the meaning of section 25(1)(b) of the NDIS Act; and

    olikely to mitigate or alleviate the impact of Mrs Richards’ impairments, or prevent the deterioration of her functional capacity, or improve her functional capacity or strengthen the sustainability of informal supports available to her within the meaning of section 25(1)(c) of the NDIS Act;[17] and

    ·The Agency also contends that any early intervention support is more appropriately funded or provided though other general systems of service delivery.[18]  

    [17] Transcript: Respondent’s closing submissions, page 151 lines 29-43.

    [18] Transcript: Respondent’s closing submissions, page 152 lines 8-20.

    Evidence about Mrs Richards

25. Mrs Richards has chronic pain in her lower back and limbs, depression and anxiety.[19] She described herself as ‘incredibly disabled’.[20]

    [19] T Documents, T20: Access Request Form to the Agency dated 8 May 2023.

    [20] Transcript: Evidence of Ms Richards, page 32 lines 28-29.

26. In June 2011 Mrs Richards had a motor vehicle accident which was a workplace injury.[21]

    [21] T Documents, T20; Transcript, page 9 lines 9-24.

27. In 2012 she underwent L4-L5-SI spinal fusion surgery, which was performed by Dr Albeitz, spinal surgeon.[22] The operation occurred in the context of a ‘shooting pain’ down her back into her left leg and left foot. A program of rehabilitation followed this surgery which included hydrotherapy, exercise physiology, physiotherapy and psychology.[23] Mrs Richards considered that the operation provided her with some relief but that she remained with residual pain.[24] She referred to subsequent ‘flareups’ but stated that ‘I just got on with it’.[25]

    [22] T Documents, T10; Transcript, page 10 lines 35-36.

    [23] T Documents, T33: Applicant’s Statement of lived experience dated 14 September 2023; Transcript: Evidence of Ms Richards, page 11 lines 19-21.

    [24] Transcript, page 11 lines 25-26.

    [25] T Documents, T15: Report of Ms Michelle O’Brian; Transcript: Cross-examination of Ms Richards, page 64 line 46.

28. In December 2019 Mrs Richards began to again experience severe back pain. Since December 2019 Mrs Richards has not been ‘pain free’.[26] She has continued since 2019 with what she now describes as chronic pain. In Mrs Richards’ application for access to the Scheme she referred to ‘debilitating pain radiating from lumbar spine down the left and right leg, numbness in both feet and toes’.[27]

    [26] T Documents, T15.

    [27] T Documents, T20, page 89.

29. By 2020 Mrs Richards was no longer able to manage her pain and she ceased work as a part-time nanny. It was on or about this time that she experienced depression and anxiety on the basis that she was no longer able to do what she had normally done.[28]

    [28] Transcript, page 12 lines 4-7.

30. Mrs Richards has therefore not worked since 2020 and her husband has been the sole income earner for the family since that time. The couple do however discuss their finances which includes budgeting for food, car expenses, insurances, medication and electricity. Mrs Richards explained that ‘we talk about bills and things, because he’s really good with helping me pay all the bills.‘[29]

    [29] Transcript, page 55 lines 44-45.

31. Over the years, and in relation to the treatment and management of her chronic pain, Mrs Richards identified the following treatments and activities that she has undertaken:

    ·guided facet joint injections on both the left and right sides of her back which did not provide relief;[30]

    [30] T Documents, T15, page 50.

    ·a caudal epidural injection, which was recommended by Dr Homan and did not provide any relief;[31]

    [31] Transcript, page 100 lines 37-41.

    ·hydrotherapy with a physiotherapist;

    ·physiotherapy with a Tier 6 physiotherapist;

    ·psychology and psychiatry which has included CBT in an effort to learn how to distract her brain from pain;[32]

    ·weight loss surgery in 2021 which did not improve pain;[33]

    ·remedial massage with a masseuse of at least 10 years’ experience;

    ·reading a book titled ‘Explain Pain’;

    ·hot chair yoga;

    ·TENS machine;

    ·Pilates; and

    ·heat packs.[34]

    [32] Transcript, page 97 lines 35-44.

    [33] Transcript, page 16 lines 3-7.

    [34] Transcript, page 17 lines 4-6.

32. In March 2024 Mrs Richard and her husband moved from Caboolture to a house in Toowoomba (‘the Toowoomba home’) which is owned by their self-managed superannuation fund (‘the Richards SMSF’). Recently renovations have been undertaken on the Toowoomba home and some of these renovations have been to accommodate Mrs Richards’ disability. Mrs Richards together with her husband was involved in various decisions relating to these renovations.[35]

    [35] Transcript, page 57 lines 42-46.

33. While Mrs Richards was living in Caboolture she engaged in regular swimming at a local pool. She explained that this swimming activity involved using a kickboard and a modified gentle breaststroke which she was able to undertake for an approximate 30-minute period.[36] Mrs Richards has not swum since moving to Toowoomba. She explained that the Toowoomba pool was not ‘very well heated’. Another nearby pool at Baillie Henderson is well heated although she has not yet accessed this facility. Mrs Richards explained also that the Toowoomba home has a full-length bath. She described this bath as ‘brilliant’, stating that she is able to get into this bath and fully submerge.[37]

    [36] Transcript, page 15 line 28 – page 16 line 1.

    [37] Transcript, page 99 lines 15 – page 100 line 4.

34. In 2012 Mrs Richards sought treatment for her anxiety and depression from a psychologist who taught her CBT to manage her anxiety. Recently Mrs Richards saw another psychologist at the Toowoomba hospital who advised her that she also had post-traumatic stress disorder (PTSD). Mrs Richards has also seen a psychiatrist in the context of a recent self-harm attempt.[38]

    [38] Transcript, page 18 line 20 - page 19 line 24; page 96 lines 17-22.

35. Mrs Richards’ GP prescribes her with medication to assist with her depression and anxiety and nerve pain.[39]

    [39] Transcript, page 18 lines 9-30.

36. Mrs Richards stated that she has been advised by Dr Homan that her back pain is permanent.[40] She confirmed that she has not however received any advice from a medical practitioner that her anxiety, depression and PTSD are permanent.[41]

    [40] Transcript, page 19 lines 2-5.

    [41] Transcript, page 19 lines 9-10.

37. Mrs Richards contended that she struggles to communicate. Prior to her workplace injury she described herself as a gregarious, outgoing and positive person. Nowadays she does not go out socially and has not done so for the last 12 months. She talks only to her husband and occasionally to her father when he telephones her. Mrs Richards stated that she finds it difficult to communicate in the context of managing pain and also to concentrate on what people are saying to her.[42]

    [42] Transcript, page 19 line 44 – page 20 line 27.

38. Mrs Richards is able to use a telephone. She is also able to use the services of telehealth when consulting with her doctor.[43] Mrs Richards speaks with a former schoolfriend on the telephone generally every few weeks and a former neighbour generally each week. She also speaks on the telephone to her husband regularly and to her father when he telephones her.[44]

    [43] Transcript, page 20 lines 43-47.

    [44] Transcript, page 28 lines 27-38.

1. Mrs Richards stated that she does not drive and that this is by choice, She referred to difficulties to turn and look at traffic, concerns regarding safety in the context of her medication and also that it is easier for her to stay at home with her ‘creature comforts’.[45] She relies on her husband to drive her to places and also to pick up her medications from a local pharmacy.[46]

   [45] Transcript, page 98 lines 25-28; line 42 – page 99 line 5.

   [46] Transcript, page 30 lines 2-4.

2. Mrs Richard sleeps in a ‘hospital bed’ on a latex mattress with a pillow between her knees. She sleeps only for a few hours each night. In order to get out of her bed she will use a modified technique and roll onto her side and push up to get out of the bed. She finds this difficult but is eventually able to get out of bed. Mrs Richards is able to get out of bed to go to the toilet and will often utilise walls to assist with walking.[47] Mrs Richards is able to stand from a lounge chair by pushing up with her arms.[48]

   [47] Transcript, page 22 lines 1-6.

   [48] C1: Functional Capacity Assessment Report of Ms Catherine Cummins dated 4 March 2024, page 172.

3. Mrs Richards is able to toilet independently. She has installed a ‘disabled toilet’ as part of the recent renovation to the Toowoomba home which has a raised seat and is easier to sit on. An installed shower rail provides further support.[49]

   [49] Transcript, page 22 lines 8-28.

4. Mrs Richards uses wet wipes to manage her continence hygiene. Mrs Richards uses a bath-shower facility. She is able to step over the bath into the shower using a handrail installed in her bathroom.[50]

   [50] Transcript, page 22 lines 38-47.

5. Mrs Richards showers once a day. She finds it a difficult to wash herself but is able to do so slowly and using a ‘process’ with a washer which helps her.[51] Mrs Richards washes her hair once a week. She stated that she has not been able to shave her legs in months.[52] Mrs Richards had not considered purchasing a bath sponge or a dressing stick as was recommended by Ms Cummins.[53]

   [51] Transcript, page 22 line 45 – page 23 line 5; page 95 line 14.

   [52] Transcript, page 31 lines 6-7.

   [53]Transcript, page 95 lines 11-18.

6. Mrs Richards manages her own medication and makes her own health care appointments.[54] Her husband manages their finances however Mrs Richards is able to manage day-to-day expenses.[55]

   [54]C1, page 193; Transcript, page 30 lines 3-4.

   [55] C1 Transcript, page 28 lines 24-25

7. Mrs Richards brushes her teeth once a day.[56] She is also able to brush her hair, cut her toenails and wash her face.[57]

   [56] Transcript, page 32 lines 31-32.

   [57] C1, page 175.

8. Mrs Richards is able to dress herself and wears pull-up pants with an elastic waist. She states they are ‘easy enough to pull up’.[58] She finds it hard to put on her shoes but is able to do so. She wears either runners with elastic laces or slip-on shoes.[59]

   [58] Transcript, page 23 lines 23-31.

   [59] C1; Transcript, page 30 line 12.

9. Mrs Richards sets herself a goal each day of doing four hours of household activities. These activities include preparing an evening meal, putting on a load of washing, using the dryer and ironing a shirt for her husband.[60] Mrs Richards is able to stand in the kitchen to prepare meals. In relation to preparing an evening meal Mrs Richards takes breaks and uses a slow cooker.[61] Mrs Richards is able prepare breakfast for her husband of either cereal or an omelette

   [60] Transcript, page 23 line 46 – page 24 line 10; page 105 lines 12-13.

   [61] Transcript, page 95 lines 17-18.

10. Mrs Richards finds that doing a few things during the day is ‘enough’ and in the afternoons she will rest due to pain. She stated that she does not go out and in the last three months has only left the house when her husband drives her to a medical appointment.[62]

    [62] Transcript, page 25 lines 9-13; page 98 lines 36-38.

11. Mrs Richards is unable to carry a full clothes basket to her backyard clothesline. She is however able to carry a few items to the clothesline and hang them on the line.[63] Mrs Richards has a front-loader washing machine and she is able to manage the laundry by doing only small loads of washing on a regular basis.[64] She is also able to load and unload the washing machine and the dishwasher, albeit very slowly using pacing strategies.

    [63] Transcript, page 24 lines 2-17.

    [64] Transcript, page 24 line 17.

12. Mrs Richards does online grocery shopping by using her phone whilst sitting on a heat mat. Mrs Richards’ groceries are delivered to her home and placed inside for her. Her husband assists with moving the bags and then putting away the heavier items. Mrs Richards has a limit of being able to lift a 3-litre bottle of milk.[65]

    [65] Transcript, page 24 lines 21-41.

13. Mrs Richards enjoys growing herbs. She has a herb garden in her backyard with raised garden beds that she had specially built. Mrs Richards is able to water these herbs every few days without having to bend.[66]

    [66] Transcript, page 25 line 37 – page 26 line 12.

14. Mrs Richards listens to YouTube cooking videos during the day whilst cooking a meal as part of grounding and distraction techniques that she has been taught in the context of pain. Mrs Richards has her dinner in the evenings whilst watching a television show with her husband and seated on a recliner chair with a heat pad.  She explained that there are some days when her pain is so severe, she will stay in bed all day. On those occasions she will watch streaming services on her phone.[67]

    [67] Transcript, page 26 lines 17-22; 36-43.

15. Mrs Richards struggles to do housework. She is able to operate a stick vacuum cleaner[68]  on her floors every few weeks. She is also able to do spot mopping every few weeks with a lightweight mop.[69] She described cleaning the bathtub as the ‘hardest task’ and explained that she had only done this once since moving to Toowoomba.[70] Mrs Richards is able to wipe benches.[71]  She finds however changing the bedsheets difficult. She is able to pull the bedsheets off the bed however in order to remake the bed she must crawl onto the bed and gently pull the elasticised fitted sheet over the mattress.[72]

    [68] C1, page 159; Transcript, page 27 lines 4-16.

    [69] Transcript, page 27 lines 26-36.

    [70] Transcript, page 27 lines 38-40.

    [71] C1, page 176.

    [72] Transcript, page 31 lines 10-24.

16. Mrs Richards does not use a four-wheeled walker. Her evidence was that she could not afford one.[73] Under cross-examination, when referred to the recommendation of a four-wheeled walker by Ms Cummins Mrs Richards indicated that she had intended to purchase this item although had not done so on the basis she had been waiting for the AAT process to be completed. Mrs Richards confirmed that she had trialled a four-wheeled walker with a physiotherapist at Caboolture. She stated that she found it was comfortable and easy to use. It also provided her with support and balance.[74] Mrs Richards accepted that the use of a four-wheeled walker would give her more confidence with her mobility.[75]

    [73] Transcript, page 30 line 40 – page 31 line 3.

    [74] Transcript, page 94 lines 1-2.

    [75] Transcript, page 99 lines 7-11.

17. Mrs Richards was also referred to the report of Dr Michelle O’Brien, a pain medicine specialist, and the recommendations provided by Dr O’Brien. Mrs Richards was asked during the hearing to review these recommendations and conceded that it was ‘the first time I’ve really read it and taken it in because, as I said, like I didn’t feel that she was able to assist me’.[76]

    [76] Transcript, page 71 lines 31-38.

18. Mrs Richards has not seen a dietician as was recommended by Dr O’Brien. Recently Mrs Richards has been referred by Dr Oliveira to Dr Paul Frank who is a pain specialist. An appointment has been sought with Dr Frank. She has also been referred by Dr Oliveira to the Royal Brisbane and Women’s Hospital (‘RBWH’) pain management clinic and is on the ‘waiting list’.[77]

    [77] Transcript, page 77 lines 33-39.

19. Recently Mrs Richards has been referred by the Toowoomba Hospital to a community-based support program known as ‘Hospital to Home’. Mrs Richards’ evidence was that Hospital to Home had contacted her in regard to organising an assessment for funding, although that she was not sure if she felt ‘up to it’. [78]

    [78] Transcript, page 18 lines 41-44; page 96 lines 9-15.

20. Mrs Richards has a ‘care plan’ which provides the services of a psychologist. Ms Richards has accessed an in-person session in Toowoomba which she found ‘very helpful’ however stated that she has been in too much pain to continue attending the clinic. Ms Richards confirmed that she could access these services by phone ‘if I wanted to’ although that she would still be out of pocket for $40 and ‘it’s just not something that I have the ability to put money into.’[79]

    [79] Transcript, page 98 lines 1-10.

21. Since moving to Toowoomba Mrs Richards has groomed her dog on one occasion using the facilities at pet barn which have a ‘raised dog bath’.[80]

    [80] Transcript, page 100 lines 6-29.

22. Mrs Richards identified that she is seeking physiotherapy, hydrotherapy, regular housecleaning, deep housecleaning, psychology and assistance with household cleaning as supports from the Scheme.[81]

    [81] Transcript, page 29 lines 24-43.

    Evidence of Dr Virginia Oliveira

23. Dr Oliveira has been Mrs Richards’ general practitioner since January 2020. She completed Mrs Richards’ Access Request form to the Agency and provided two reports to the Tribunal.[82] She also gave oral evidence at the hearing.  I found Dr Oliveira’s evidence to be helpful, truthful and in accordance with her obligations to the Tribunal.

    [82] T Documents, T1C: Letter of Dr Virginia Oliveira dated 10 October 2023; T20: Access Request form; B1: Report of Dr Oliveira dated 5 March 2024; C2: Targeted Questions to Dr Oliveira by the Agency dated 22 December 2022.

24. Dr Oliveira’s evidence was that Mrs Richards has severe neuropathic and musculoskeletal symptoms which have been present since a workplace injury in 2011.  Dr Oliveira described Mrs Richards’ symptoms as ‘permanent’ despite having had surgery.

25. Dr Oliveira stated that Mrs Richards had been seen by multiple neurosurgeons. Also, that she had had received multiple spinal and facet joint injections,[83] none of which had relieved her symptoms. Dr Oliveira explained that Mrs Richards had been advised that further surgery would not assist in the alleviation of her symptoms.

    [83] Transcript, page 128 lines 45-47; page 129 lines 10-14.

26. Dr Oliveira confirmed that Mrs Richards was ‘on maximal medication’ for the treatment of her symptoms of pain and that Mrs Richards had not experienced a ‘pain free’ day since her workplace injury.

27. In Mrs Richards’ Access Request form, Dr Oliveira stated ‘She would definitely benefit from ongoing physiotherapy, Psychology, occupational therapy, hydrotherapy’.[84]

    [84] T Documents, T20.

28. In her correspondence dated 5 March 2024, Dr Oliveira detailed Mrs Richards’ functional difficulties. This correspondence also referred to the following:

    ·Mrs Richards’ inability to afford treatments including physiotherapy, psychology and hydrotherapy;[85]

    ·Mrs Richards’ inability to afford ‘the gap’ in the neurosurgeon consultation fee in respect of a ‘nerve cord stimulator’ procedure, stating that this procedure is not available in the public sector;[86]

    ·Mrs Richards having a caudal epidural injection in 2023 as recommended by Dr Homan however that the ‘injection made no difference to the pain’; and

    ·Various changes to Mrs Richards medications including a trial of Palexia for pain which had not helped with pain relief.

    [85] B1, page 146.

    [86] B1, page 147.

29. Dr Oliveira described Mrs Richards as very compliant with all recommended treatments.[87]

    [87] Transcript, page 131 lines 40-46.

30. Dr Oliveira stated she felt certain she had provided a copy of the report of Dr Michelle O’Brien to Mrs Richards as this was her usual practice. In terms of Dr O’Brien’s recommendation for a referral to a pain management program including ‘multi-disciplinary supports’ Dr Oliveira indicated that she agreed with this approach ‘100 per cent’ on the basis that ‘it really does help.’[88] Dr Oliveira confirmed that it was on Dr O’Brien’s recommendation that she had referred Mrs Richards to the pain management clinic at the RBWH.[89] Also that she referred Mrs Richards to Dr Frank.

    [88] Transcript, page 133 lines 4-31.

    [89] B1, page 148.

31. Dr Oliveira’s evidence indicated that she had used the best endeavours to assist and treat Mrs Richards’ pain. She stated that Mrs Richards would need ‘lifelong medication’ and she was now of the view that ‘I really feel we need we need a specialist to help us with the medication.’[90]

    [90] Transcript, page 135 lines 27-32.

32. Dr Oliveira confirmed the advice of Mrs Richards’ treating neurosurgeons to date was that ‘Surgery not an option. Look at the medication. Conservative management.’ [91] Dr Oliveira stated that she really hoped that the pain specialist and the RBWH pain management clinic could help Mrs Richards and considered that, in the context of treatment options ‘They could offer other things’.[92]

    [91] Transcript, page 135 lines 41-45.

    [92] Transcript, page 137 lines 16-27.

33. Dr Oliveira’s opinion was that Mrs Richards’ anxiety and depression was a consequence of her years of pain. She stated that Mrs Richards was in pain 24 hours a day and that it would be ‘enough to depress anyone’.[93]

    [93] Transcript, page 137 lines 3-4.

    Evidence of Dr John Albietz

34. Dr Albietz is a spinal surgeon. His report was provided to the Tribunal.[94] He did not give oral evidence at the hearing.

    [94] T Documents, T10: Report of Dr John Albietz dated 16 October 2020.

35. Dr Albietz performed a L4-L5-S1 posterior fusion, decompression and interbody fusion on Mrs Richards in 2012. 

36. He again reviewed Mrs Richards on 16 October 2020 which included the review of her more recent spinal imaging. In his October 2020 report Dr Albeitz stated:

    ’I recommend Amy trial bilateral CT guided L3/4 facet joint injections. If this provided short term relief then ablation of the joints would be worth trialling. Extending the fusion to the L3/4 remains an option though not recommended with such mild degeneration’.

    Evidence of Dr Martin Wood

37. Dr Wood is a neurosurgeon. He reviewed Mrs Richards on 5 June 2020 following a referral by Dr Oliveira.

38. Dr Wood provided a number of reports to the Tribunal.[95] He did not provide oral evidence at the hearing.

    [95] T Documents, T6 dated 6 June 2020; T7 dated 8 June 2020; T8 dated 10 June 2020.

39. Dr Wood’s opinion was that Mrs Richards was affected by ‘symptomatic dysfunction of the left sacroiliac joint’. He explained this to be a common occurrence in patients who have had a lumbosacral fusion in the past.

40. Dr Wood recommended that Mrs Richards have a CT-guided left sacroiliac joint injection with a review at a later one-month interval. He stated, ‘She may then be a candidate for radiofrequency neurotomy of the SI joint if the injection helps’.[96]

    [96] T Documents, T6, page 37.

41. On 8 June 2020 Dr Wood had a subsequent telephone consultation with Mrs Richards in which Mrs Richards had expressed reluctance to have sacroiliac facets joint injections (‘SFJI’) due to previous experiences of facet joint injections in 2011 which were quite painful. 

42. Dr Wood stated in his correspondence of the same day that any decision to have SFJIs is the choice of Mrs Richards, but that such a procedure would assist in establishing the origin of her ongoing pain. Further, that in the context of a positive response to ‘the blocks’ this ‘would then potentially open up further therapeutic options such as radiofrequency neurotomy’. Dr Wood also stated that if Mrs Richards elected not to undergo SFJIs then ‘…she will be no further on in understanding the origin of her ongoing pain, or how best to manage it’.[97]

    [97] T Documents, T7, page 39.

    Evidence of Dr Leong Tan

43. Dr Tan is neurosurgeon and he reviewed Mrs Richards in August 2020. He provided a report to the Tribunal.[98] He did not give evidence at the hearing.

    [98] T Documents, T9: Report of Dr Leong Tan dated 10 August 2020.

44. Having conducted a clinical assessment of Mrs Richards which included review of her medical records Dr Tan stated:

    ‘The only conclusion we can come to is that the pain down her legs is associated with scarring of the nerve root. Unfortunately, surgical intervention is very unlikely to be an option for pain associated with nerve root scarring. Besides, all the neural foramen on both sides (right L4/5, right L5/S1. left L4/5, left L5/S1) are capacious without evidence of nerve root compression so surgery is very unlikely to be an option.

    Unfortunately, management is conservative and Amy may need to go back to a pain specialist for further advice and management.’

    Evidence of Dr George Hopkins

45. Dr Hopkins is a laparoscopic gastrointestinal surgeon.

46. Dr Hopkins provided two reports to the Tribunal.[99] He did not give evidence at the hearing.

    [99] T Documents, T12: Report of Dr Hopkins dated 23 March 2021; T13, Report dated 1 June 2021.

47. Dr Hopkins reviewed Mrs Richards in March 2021 and discussed weight loss surgical options in the context of Mrs Richards’ debilitating back pain and a body mass index (BMI) of 47. Dr Hopkins recommended to Mrs Richards a gastric bypass.

48. Dr Hopkins’ further correspondence[100] indicates that Mrs Richards underwent gastric bypass surgery in late May 2021.

    [100] T Documents, T13, page 47.

    Evidence of Brandon Vo

49. Mr Vo is a physiotherapist. He provided two reports to the Tribunal.[101]

    [101] T Documents, T5: Report of Mr Vo dated 2 May 2020; T11, Report dated 31 January 2021.

50. In May 2020 Mr Vo advised in his correspondence that physiotherapy had been a ‘successful treatment’ in managing Mrs Richards’ pain levels.[102]

    [102] T Documents, T5, page 36.

51. In in his January 2021 correspondence to Dr Oliveira, Mr Vo stated that Mrs Richards ‘presents with symptoms that are becoming progressively more difficult to manage’.[103]

    [103] T Documents, T11, page 44.

52. Mr Vo also stated that to date, physiotherapy treatments have primarily consisted of manual therapy he would however provide Mrs Richards with education in relation to appropriate rehabilitative and general exercise.

    Evidence of Mr Leo Figueroa

53. Mr Figueroa is a physiotherapist. He provided a report to the Tribunal.[104]

    [104] B2: Report of Mr Figueroa dated 8 March 2024.

54. Mr Figueroa referred to a variety of treatments being provided to Mrs Richards which included massage, mobilisation of lumbar and thoracic spine, ultrasound therapy, Thermotherapy (heat packs) and proprioceptive neuromuscular facilitation. Mrs Richards was also provided with an exercise program (including pool exercises), postural education and basic Pilates exercises.

55. Mr Figueroa confirmed that, despite Mrs Richards’ consistent willingness to engage in these treatments her pain levels had posed a ‘significant impediment to maintaining regular attendance at appointments. Additionally, she has articulated on multiple occasions the challenges stemming from inadequate funding and resources, which hinder her ability to fully adhere to the recommended treatment regimen.’

56. Mr Figueroa’s opinion was that it was ‘crucial’ that Mrs Richards’ condition be thoroughly assessed to ensure that she receive comprehensive and effective treatment. On this basis he stated:[105]

    ‘I highly recommend further evaluation by a pain specialist. This additional review can provide valuable insights and strategies tailored specifically to manage Amy's pain and holistically improve her overall well-being’

    (Tribunal emphasis)

    [105] B2, page 151.

    Evidence of Dr Michelle O’Brien

57. Dr O’Brien is pain medicine specialist. Dr Oliveira asked Dr O’Brien to review Mrs Richards for an opinion on the management of her chronic lower back pain.

58. Dr O’Brien’s report dated 19 July 2022 was provided to the Tribunal.[106]  She did not give oral evidence at the hearing.

    [106] T Documents, T15.

59. Dr O’Brien’s opinion was that Mrs Richards’ pain represented a combination of nociceptive, nociplastic and neuropathic pain. She considered that other sociopsychobiomedical factors were also likely to be a contributor factor to Mrs Richards’ current clinical picture. Some of these factors included:

    ·Sleep issues;

    ·Opioid and benzodiazepine dependence;

    ·Deconditioning;

    ·Chronic lower back pain;

    ·Oesophageal reflux; and

    ·Anxiety.

1. Dr O’Brien referred to the importance of firstly developing a therapeutic alliance with Mrs Richards, with a view to developing a ‘prioritised initial action plan’ so as to start working through options within a multi-disciplinary team setting.[107]

   [107] T Documents, T15 page 54.

2. Dr O’Brien emphasised the importance of a multi-disciplinary approach to the management of Ms Richards’ chronic pain. In the context of being aware of Mrs Richards’ previous treatments including spinal surgery, facet joint injections and a caudal epidural Dr O’Brien provided a detailed management plan. This management plan included the following further strategies, investigations, reviews and treatments:

   ·Education. Dr O’Brien provided Mrs Richards with written information regarding her pain management suggestions;

   ·Dr O’Brien considered that disturbed and disordered sleep was likely to be ‘contributing’ to Mrs Richards’ pain. She recommended ‘screening for whether a sleep study might be indicated.’ She also suggested to Mrs Richards basic approaches to improving her sleep which included the use of relaxation and settling techniques;

   ·Dr O’Brien identified that Mrs Richards was currently taking the equivalent of approximately 130mg of Morphine per day. Dr O’Brien’s opinion was that Mrs Richards’ pain was opioid resistant, and also that Mrs Richards had a significant ‘tolerance’ to her Targin medication. Dr O’Brien stated:

   ‘Longer term opioids are poorly evidenced for benefit in the setting of chronic pain, and well evidenced for harm. Ideally opioids are to be avoided in chronic pain and I have suggested that we need to reduce opioid use, and hopefully cease them. The aim will be to introduce other therapies (pharmacological and others) to reduce the pain so opioids can be more successfully weaned’.

   ·Dr O’Brien also stated that opioid-induced ‘hyperalgesia’ was a ‘real’ and ‘likely’ issue for Mrs Richards. Hyperalgesia is an ‘abnormally increased nociception (pain sense)’;[108]

   [108] Dorland’s Illustrated Medical Dictionary (9 June 2011).

   ·Baseline pathology screening and pituitary screening;

   ·The use of a tricyclic antidepressant on the basis that this class of antidepressants is ‘well evidenced for benefit in chronic pain’;

   ·The exploration of other pain relief pharmacology including paracetamol. Dr O’Brien also provided Mrs Richards with a script for Palexia;

   ·Psychology. Dr O’Brien stated that psychology was central ‘for addressing resilience, pain management strategies, addressing fear avoidance, and sleep’. Dr O’Brien recommended referral of Mrs Richards to Dr Amy Underwood, a specialist chronic pain psychologist;

   ·Avoidance of ‘boom/bust’-type behaviours with an emphasis on ‘pacing’ techniques;

   ·Physiotherapy;

   ·Hydrotherapy;

   ·Review by a dietician;

   ·Participation in a Pain Management Program (PMP). In this regard Dr O’Brien referred Mrs Richards to ‘MindSpot’ a free PMP website, as well as a number of other PMP providers; and

   ·Further medical imaging with the possibility of interventional procedures. Dr O’Brien provided Mrs Richards with a referral for MRI imaging of her lumbosacral spine and sacroiliac joints.

3. Having provided this management plan to Dr Oliveira, Dr O’Brien recommended review of Mrs Richards in 4 to 6 weeks to discuss relevant results and thereafter ‘determine how to proceed’.

   Evidence of Dr Richard Kahler

4. Dr Kahler is a neurosurgeon with a specialty in spinal surgery. Mrs Richards was referred to Dr Kahler by Dr Oliveira. In his correspondence Dr Kahler advised that Mrs Richards cancelled her appointment with him, scheduled for 17 March 2023.[109]

   [109] T Documents, T18: Letter of Dr Richard Kahler dated 7 March 2023.

   Evidence of Dr Chris Homan

5. Dr Homan is a general practitioner specialising in chronic musculoskeletal pain. He reviewed Mrs Richards in March 2023 upon the referral of Dr Oliveira.

6. Dr Homan provided two reports to the Tribunal.[110] He did not give oral evidence at the hearing.

   [110] T Documents, T19: Report of Dr Chris Homan dated 29 March 2023; T24: Report dated 27 June 2023.

7. Following a clinical assessment of Mrs Richards Dr Homan recommended that Mrs Richards have a ‘caudal epidural injection’ on the basis that such treatment would ‘help calm things down’. Dr Homan also considered that ‘Amy might eventually be a good candidate for a spinal nerve stimulator.’

   Evidence of Catherine Cummins

8. Ms Cummins is an occupational therapist with 20 years’ experience.

9. Ms Cummins assessed Mrs Richards on 9 February 2024 whilst she was still residing in Caboolture. She provided a report to the Tribunal[111] and gave oral evidence at the hearing. 

   [111] C1.

10. Ms Cummins’ opinion was that Mrs Richards did not have any functional impairments relating to her ability to communicate[112] or learn.[113] Recommendations in relation to Mrs Richards’ ability to engage in the activities of social interaction, mobility, self-care and self-management were however provided by Ms Cummins. These recommendations included the following:

    [112] Section 24(1)(c)(i) NDIS Act.

    [113] Section 24(1)(c)(iii) NDIS Act.

    ·Access to a psychologist to improve her current relationships and learn skills to maintain new friendships in the context of chronic pain;

    ·Access to psychological support to address low mood;

    ·Access to a relationship specialist with experience in chronic pain to support Mrs Richards’ intimate relationship with her husband;

    ·Physiotherapy including assessment in respect of a suitable mobility aid and a graded exercise program to maintain strength and mobility;

    ·A mobility aid such as a four-wheeled walker;

    ·Transport assistance to medical appointments when her husband is unavailable;

    ·An over-toilet frame;

    ·A shower stool;

    ·A long-handled sponge;

    ·A dressing stick;

    ·A spray mop;

    ·Washing machine stand;

    ·Kitchen stool;

    ·A terry towel robe;

    ·Combined washer and dryer;

    ·Minor home modifications such as grab rail; and

    ·Assistance with household cleaning and gardening.

11. Relevantly, Ms Cummins identified a number of community-based supports and services that she considered were relevant to Mrs Richards’ needs. Some of these included the following:

    ·The Queensland Community Support Scheme (QCSS) for assistance in relation to the following:

    oShopping;

    oRecreational activities;

    oAttendance at medical or other health professional appointments;

    oMeal preparation;

    oCleaning and household chores;

    oPersonal care including showering and dressing; and

    oBasic home maintenance;

    ·The Queensland Community Transport Program;

    ·Taxi Subsidy scheme and lift payment;

    ·Crisis Assessment and Treatment Team; and

    ·Mind-Australia for psychological services.

12. Ms Cummins identified that Mrs Richards was subject to a boom/bust cycle of chronic pain. She identified Mrs Richards as having a routine of attending to most of her activities at the beginning of each day. Mrs Richards would then experience ‘a bit of a crash’ around lunchtime and have to rest for the remainder of the day in order to recover.[114]

    [114] Transcript, page 105 lines 1-19.

13. Ms Cummins’ suggestion was that Mrs Richards structure her day differently by ‘pacing’ her activities. She gave an example of making breakfast for her husband in the morning and then ironing his shirt later in the afternoon. Ms Cummins emphasised the need for Mrs Richards to spread her activities out throughout the day so as to avoid the boom/bust cycle.

14. Ms Cummins stated that the use of a four-wheeled walker would give Mrs Richards greater mobility particularly in the community. Ms Cummins indicated that a basic model four-wheeled walker would meet Mrs Richards’ needs and could be self-purchased at a mobility aids store and would also readily available at many pharmacies. Ms Cummins estimated the cost of a suitable four-wheeled walker as $170.00.

15. Mrs Cummins agreed that an occupational therapist would have a role in a multi-disciplinary approach adopted by a pain management clinic. She explained that the role of the OT would be to look at exacerbating features such as painful movements, and thereafter consider compensatory strategies including assistive technology equipment for the home environment and also pacing strategies in the context of activities of day-to-day living that would reduce the boom/bust pain cycle.[115]

    [115] Transcript, page 107 lines 27-44.

    Evidence of Matthew Richards

16. Mr Richards is Mrs Richards’ husband. He gave oral evidence at the hearing and I consider he was entirely truthful and honest.

17. Mr Richards is also an accountant. He gave evidence into the family assets’ financial structure which includes the proposed purchase by Mr and Mrs Richards of the Toowoomba home (in which they currently reside) from the Richards’ SMSF.

18. Mr Richards confirmed that he was the sole income earner for the family in receipt of a gross salary of approximately $90,000 plus superannuation together with a net income of approximately $10,000.00 to $12,000.00 per year from a small accountancy services business that he operates as a sole trader.

19. Mr Richards’ evidence also referred to the assistance he provides to Mrs Richards which included unpacking and putting away delivered groceries, driving to the pharmacy to obtain prescriptions for Mrs Richards and walking the family dog.[116]

    [116] Transcript, page 119 lines 14-37; page 120 lines 35-37.

20. Mr Richard stated that his wife had not left the home since they moved to Toowoomba in March 2024 on the basis of her chronic state of elevated pain. Mr Richards confirmed his observation was that his wife’s pain levels were higher in the afternoon than in the morning.[117]

    [117] Transcript, page 120 lines 13-19.

    SECTION 24: THE DISABILITY REQUIREMENTS

    Section 24(1)(a): Does Mrs Richards have 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 psychosocial disability?

21. The Agency accepts that Mrs Richards has:

    ·A physical impairment due to her chronic pain condition; and

    ·A psychosocial impairment due to anxiety and depression.[118]

    [118] C4: Respondent’s Statement of Facts, Issues and Contentions dated 19 June 2024 at [15].

22. At the hearing it was clearly apparent that Mrs Richards experiences significant and severe pain. Dr Oliveira in her evidence confirmed her treatment of Mrs Richards for anxiety and depression.

23. Based on the evidence I am satisfied that the Agency’s concession is reasonable and proper.[119] 

    [119] Transcript page 136 line 45 – page 137 line 12; C1; T Documents, T6, T7, T8, T9, T10, T11, T15, T24.

24. Section 24(1)(a) of the NDIS Act is satisfied.

    Section 24(1(b): Are Mrs Richards’s impairments permanent or likely to be permanent?

25. The Agency contends that Mrs Richards impairments are not permanent or likely to be permanent for the purposes of s24(1)(b) of the NDIS Act.

26. In Mulligan v National Disability Insurance Agency (‘Mulligan’) Mortimer J (as her Honour then was) considered generally the access criteria in Chapter 3 of the NDIS Act, including the issue of permanency, and provided the following commentary:[120]

    ‘The access criteria in Ch 3 of the Act are an essential component of the NDIS as conceived. They are designed to impose a number of thresholds on access to the NDIS…………………………………………………………………………………………

    ...access to the NDIS, and the supports, funding and autonomy it is intended to deliver, is reserved for a subcategory of persons with disabilities. One of the issues which this appeal presents is the height of the thresholds set, and the focus of the thresholds, at least through the operation of s 24(1). 

    ………………………………………………………………………………………………..

    Although an impairment may, in general terms …………………….be responsible for or related to a disability, the threshold in s 24 revolves around the severity and permanency of the effects of the impairments experienced by a person, so as to justify the provision of the “reasonable and necessary supports” to which participants may be entitled, after assessment in accordance with Pt 2 of Ch 3 of the Act.

    ………………………………………………………………………………………………..

    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.’

    (Tribunal emphasis)

    [120] Mulligan at [50]; [52] and [55].

27. The NDIS Act does not define ‘permanent’.

28. The Macquarie dictionary defines ‘permanent’as ‘lasting or intended to last indefinitely; remaining unchanged; not temporary; enduring; abiding’.[121]

    [121] ​Macquarie Dictionary (online at 1 August 2024) ‘permanent’ (def 1).

29. The meaning of ‘permanent’ within section 24(1)(b) of the NDIS Act was also considered by Mortimer J in National Disability Insurance Agency v Davis (‘Davis’). Mortimer J considered ‘permanent’ as referring to ‘enduring’ and that such a meaning reflected the purpose and context of the legislative scheme, as a scheme intended to deliver lifelong support to persons with disability.[122] Her Honour stated:[123]

    ‘The phrase “permanent impairment” in s 24(1)(b) means an impairment which is of an enduring nature.’

    [122] Davis at [85].

    [123] Ibid at [130].

30. The Macquarie dictionary defines ‘enduring’as ‘lasting: permanent’.[124]

    [124] Macquarie Dictionary (online at 1 August 2024) ‘enduring’ (def 1).

31. Pursuant to section 27(a) of the NDIS Act the Access Rules prescribe the circumstances in which, or the criteria to be applied in assessing whether an impairment is permanent or likely to be permanent for the purposes of section 24(1)(b) of the NDIS Act. Rules 5.4 to 5.7 provide as follows:

    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. (Tribunal emphasis)

32. The Agency relies on the operation of Rules 5.4 and 5.6 of the Access Rules.[125] In Davis, Mortimer J explained specifically the interrelationship between the NDIS Act and rules 5.4 and 5.6 as follows:[126]

    ‘…r 5.4 and r 5.6 prescribe circumstances where, if the repository of the power is satisfied on the evidence of the applicability of either of those rules, a person’s impairment will be excluded from meeting s 24(1)(b)’.

    [125] C4 at [26] and [28]; Transcript: Respondent’s closing submissions, page 148 lines 6-15.

    [126] At [131].

33. In Davis Mortimer J further considered the interpretation of Rule 5.4 of the Access Rules with the following observation:[127]

    ‘As a general observation, in my opinion each of the adjectives must be construed as referring to circumstances in Australia. In r 5.4, the word “known” connotes a treatment which can be identified by Australian medical practitioners as a suitable treatment for the person’s particular impairment. The word “appropriate” connotes a treatment which has a capacity to “remedy” the impairment and is suitable for the particular individual concerned to undergo. The capacity of individuals with an impairment to undergo certain treatments may vary depending on their physical and psychological capabilities, other aspects of their physical and mental health, on their personal circumstances in terms of where they live and who they live with, and who cares for them.

    The word “available” should be understood as meaning available to a particular individual. If it were to be construed as meaning “exists in Australia”, then it would have little different work to do from the word “known”. The Macquarie Dictionary defines “available” as meaning:

    adjective 1. suitable or ready for use; at hand; of use or service …

    Assuming as I do the validity of r 5.4, and on the premise any given treatment is “known” and “appropriate” as I have explained those terms, in my opinion the adjective “available” should be understood as directed at what treatments an individual can, in reality, access.’

    [127] [2022] FCA 1002 at [137-139].

34. The word ‘remedy’ is also not defined in the NDIS Act or in the Access Rules.

35. In Davis, Mortimer J considered that the word ‘remedy’ should be understood to mean more than just ‘relieve or improve’ and that correctly understood refers to ‘something approaching a removal or cure of the impairment.’[128] Her Honour explained her reasoning as follows:

    In this context, “remedy” should be understood to mean more than just relieve or improve. That is because r 5.5 recognises that an impairment may be permanent notwithstanding the severity of its impact on a person may fluctuate, or there are prospects for improvement. These changes in the impacts of an impairment may occur because of, amongst other matters, treatment. Therefore, in r 5.4 the word “remedy” should be understood to mean something approaching a removal or cure of the impairment. That is consistent with the meaning I consider should be given to the statutory phrase “permanent impairment”, as an impairment which is enduring and, while its impacts on a person from time to time might fluctuate, is not an impairment which is likely to be removed or cured.

    (Tribunal emphasis)

    [128] Davis at [136].

36. The Access Guidelines also provide guidance for assessing whether an impairment is ‘likely’ to be permanent. Relevantly they provide as follows:

    Is your impairment likely to be permanent?

    We need evidence that you’ll likely have your impairment for your whole life.

    You might have some periods in your life where there is a smaller impact on your daily life, because your impairment may be episodic or fluctuate in intensity. Your impairment can still be permanent due to the overall impact on your life, and the likelihood that you will be impacted across your lifetime.

    Even when your condition or diagnosis is permanent, we’ll check if your impairment is permanent too. For example, you may not be eligible if your impairment is temporary, still being treated, or if there are remaining treatment options.

    Generally, we’ll consider whether your impairment is likely to be permanent after all available and appropriate treatment options have been pursued.

    If you give us evidence you have been diagnosed with a condition on List B, we’ll likely decide your disability is from an impairment that’s likely to be permanent.

    Is there any medical treatment for your impairment?

    We don’t fund supports to treat your impairment.

    Instead, the supports we fund can help you reduce or overcome the impact your impairment has on your daily life. They can also help you increase your functional capacity, independence, and your ability to work, study or take part in social life.

    Your impairment will likely be permanent if your treating professional gives us evidence that indicates there are no further treatments that could relieve or cure it.

    (Tribunal emphasis)

1. The principles contained in the Access Guidelines in respect of likely permanency therefore refer to the following:

   ·A positive satisfaction that all available and appropriate treatment options have been pursued; and

   ·an opinion from a treating professional that indicates there are no further treatments that could relieve or cure the impairment.

   (Tribunal emphasis)

2. The Agency submits that the Tribunal cannot be positively satisfied that:

   ·there are no known, available, and appropriate evidence-based clinical, medical, or other treatments that would be likely to remedy Mrs Richards’ impairments;[129] and

   ·no further medical treatment and review is required before a determination can be made about whether Mrs Richards’ impairment is permanent or likely to be permanent.[130]

   [129] Rule 5.4 Access Rules.

   [130] Rule 5.6 Access Rules.

3. Therefore in this review the Tribunal’s task in its consideration of whether the effects of the impairment are permanent, or are likely to be permanent under section 24(1)(b) of the NDIS Act for the purposes of Rule 5.4 of the Access Rules requires the following:

   ·Firstly, consideration of the circumstances and criteria prescribed by the operation of Rule 5.4 of the Access Rules, which refer to the existence of outstanding treatment which is likely to ‘remedy’ the impairment;

   ·Secondly, consideration of the circumstances and criteria prescribed by the operation of Rule 5.6 of the Access Rules and whether Mrs Richards requires medical treatment and review before a determination can be made about whether her impairment is permanent or likely to be permanent;

   ·Thirdly, consideration of the Access Guidelines which require satisfaction that all available and appropriate treatment options have been pursued that could relieve or cure her impairment such that a determination can be made about whether her impairment is permanent or likely to be permanent; and

   ·Fourthly, a reconciliation of these considerations in light of the commentary of Mortimer J in Davis, as an authority which requires an impairment be of an ‘enduring nature’ and there being no known, available and appropriate evidence-based clinical, medical or other treatments that are approaching a removal or cure of the impairment.

   (Tribunal emphasis)

4. In using the words ‘relieve or cure’ I do not consider that the Access Guidelines are inconsistent with the provision or objects of the legislation or the commentary in Davis.

5. The test in Davis refers to ‘something approaching a removal or cure of the impairment’.

6. By the use of the adjective ‘approaching’, the test in Davis does not require that the impairment be removed or cured in absolute. The test does however requires a high threshold such that there must exist appropriate and available treatment that has a high likelihood of ‘substantially relieving’ the degree of severity and permanency of the effects of the impairment.

7. I therefore consider that the appropriate test as to whether Mrs Richards’ impairments are permanent or likely to be permanent for the purposes of section 24(1)(b) of the NDIS Act is whether all known, appropriate and reasonably available evidence-based clinical, medical or other treatments, that would be likely to approach a removal or cure of her impairment or substantially relieve the effects of her impairment, have been pursued.

8. I do not consider that Mrs Richards has pursued such a course.

9. I consider that Mrs Richards requires further medical treatment and review before a determination can be made about whether her impairments are permanent or likely to be permanent.[131]

   [131] Rule 5.7 Access Rules.

10. My considerations in this regard are as follows:

    ·I consider that there exists further evidence-based medical and allied health treatment, using a multidisciplinary approach (‘recommended treatment’) which are available to Mrs Richards in respect of the management of her chronic pain;

    ·That the recommended treatment is ‘available’ to Ms Richards in the context of her financial circumstances;

    ·That the recommended treatment is yet to be pursued;

    ·The report of Dr O’Brien was highly persuasive. Mrs Richards in her evidence indicated her clear dissatisfaction in relation to the assessment by Dr O’Brien. It is of course open to Mrs Richards to form an opinion in respect of Dr O’Brien which includes an unwillingness to pursue treatment with her in her capacity as a pain specialist. Such a decision does not draw a conclusion that treatment with another pain specialist, including in the context of a pain management clinic should not be pursued; and

    ·Mrs Richards referred to Dr O’Brien’s assessment being brief and Dr O’Brien not taking the time to get to know her during the appointment. Mrs Richards stated ‘I didn’t have any confidence in anything thereafter that was discussed’[132] in relation to the assessment. Notwithstanding under cross-examination Mrs Richards accepted that she had not read or considered the Dr O’Brien’s report dated 4 August 2022 and the recommendations it referred to.[133]

    [132] Transcript: Applicant’s closing submissions, page 153 line 23.

    [133] Transcript, page 67 lines 39-42.

11. I am of the view that Mrs Richards’ criticisms of Dr O’Brien’s assessment to a large extent are misguided. In the context of her being self-represented this is to some extent understandable. In reality Dr O’Brien’s opinion was however based on several considerations other than her assessment of Mrs Richards at the appointment. In addition to an assessment of Mrs Richard’s clinical and mental state during the appointment Dr O’Brien’s opinion was provided in the context of:

    ·a review of a comprehensive referral provided by Dr Oliveira;

    ·a review of a pain questionnaire completed by Mrs Richards; and

    ·her consideration of Mrs Richards’ history including medical imaging, current and past treatments and current and past medications.

12. In the context of this multi-factorial assessment Dr O’Brien provided a comprehensive report in which Dr O’Brien recommended developing ‘a prioritised initial action pan to start working through options together within a multi-disciplinary team setting.’

• This plan is referred to at [99] above. Many of the recommendations made by Dr O’Brien have to date not been undertaken or even considered by Mrs Richards. Of particular relevance are the following matters:

  ·Dr O’Brien has identified that Mrs Richards’ pain is most likely opioid-resistant. She stated that opioids should be avoided in circumstances of chronic pain, and that Mrs Richards’ current opioid use should be reduced and eventually ceased. Dr O’Brien also recommended review and gradual changes to Mrs Richards’ other medications including both pain and antidepressant medications; 

  ·Dr Oliveira in her evidence agreed with Dr O’Brien that a review and specialist opinion in respect of Mrs Richards’ medications was a priority. On that basis she has agreed to refer Mrs Richards to Dr Paul Franks, another pain specialist;

  ·Mrs Richards’ evidence is that she is currently organising an appointment with Dr Frank and is yet to attend with him;

  ·Mrs Richards’ physiotherapist, Mr Leo Figueroa, considers Mrs Richards’ further evaluation by a pain specialist is ‘crucial’;

  ·Dr O’Brien recommends engagement in a pain management program. Dr Oliveira agrees with Dr O’Brien’s recommendation and has referred Mrs Richards to the pain management clinic at the RBWH. The Agency has identified Dr Oliveira’s referral as being to the Tess Crammond Pain and Research Centre (TCPRC) which provides an assessment and management service for people with chronic pain in a multi-disciplinary setting. The TCPRC utilises allied health services including psychology, physiotherapy and occupational therapy. The TCPRC also engages medical specialists from a range of disciplines including pain medicine, anaesthesia, psychiatry, rehabilitation medicine and addiction medicine.[134] Mrs Richards is on the waiting list for this service.

  [134] See of the allied health services recommended by Dr O’Brien are available to Mrs Richards through the TCPRC. This includes physiotherapy which Dr O’Brien recommended for Mrs Richards so as to facilitate a graded general exercise program in conjunction with problem-specific approaches for the management of her chronic pain;

  ·The recommendation for further physiotherapy is also endorsed by Mr Figueroa who stated ‘Several papers and reviews have established the advantages of exercising in the context of chronic pain. However, exercise needs to be prescribed according to Amy’s needs, systematically and progressively, under constant supervision of a physiotherapist or exercise physiologist.’[135]

  [135] B2, page 150.

  ·Dr O’Brien recommended the services of a dietician to ensure Mrs Richards’ nutrition is optimised and deficiencies are avoided. Mrs Richards has not seen a dietician for such a review;

  ·The treatments recommended by Dr O’Brien as ‘known’ for the purposes of Rule 5.4 of the Access Rules. They have been identified and recommended by Dr O’Brien in her capacity as an Australian Medical Practitioner with a speciality in pain medicine;

  ·Dr O’Brien’s opinion is that this treatment is appropriate for Mrs Richards and that she is suitable for such treatment;[136]

  [136] Rule 5.4 Access Rules.

  ·Treatment at the RBWH through the TCPRC is ‘available’ to Mrs Richards subject to a waiting list and would provide a vast number of services and treatments as recommended by Dr O’Brien at no cost to Mrs Richards;

  ·The services of the TCPRC are provided through Queensland Health and are free of charge. Her financial circumstances are therefore an irrelevant consideration;

  ·The services of Dr Frank can be obtained through a Medicare rebate with an out-of-pocket gap fee although private health insurance is not required;[137] and

  ·Dr O’Brien’s evidence is that recommended treatments will enable Mrs Richards to reduce and manage her chronic pain. Dr O’Brien referred to the following:

  oimproved sleep hygiene. Dr O’Brien’s states that disturbed and disordered sleep is a likely contributor to Mrs Richards’ chronic pain;

  oa review and change in medications. Dr O’Brien’s opinion is that Mrs Richards is now opioid-resistant and she is therefore being treated with ineffective medications. Dr O’Brien identified that there remains a number of pharmacological options for Mrs Richards in respect of both her chronic pain and choice of anti-depressants;

  oDr O’Brien’s opinion is that treatment through a pain management program is likely to provide Mrs Richards with ‘significant benefit’;

  ono evidence was provided that Mrs Richards’ conditions of anxiety and depression are permanent;

  othe evidence supports that there is a direct relationship, at least in part between Mrs Richards’ physical impairments and psychosocial impairments.[138] As such, in the event of a reduction in the impact of Mrs Richards’ physical impairment her psychosocial impairments may also be reduced; and

  othat until such time as Mrs Richards undertakes this medical and allied health treatment and is subsequently reviewed a determination cannot be made about whether her impairments are permanent or likely to be permanent.[139]

  [137] Transcript, page 134 lines 12-20.

  [138] Transcript, page 137 lines 3-12.

  [139] Rule 5.6 Access Rules.

1. In summary I am not positively satisfied that there are no known, available, and appropriate evidence-based clinical, medical, or other treatments that would be likely to remedy Mrs Richards’ impairments.[140] I am positively satisfied that Mrs Richards requires further treatment and review before a determination can be made about whether her physical or psychosocial impairments are permanent or likely to be permanent.[141]

   [140] Rule 5.4 Access Rules.

   [141] Rule 5.6 Access Rules.

2. Section 24(1)(b) is not satisfied with respect to Mrs Richards’ physical and psychosocial impairments.

3. As stated, the disability requirements in section 24 of the NDIS Act are cumulative. As Mrs Richards does not satisfy section 24(1)(b) of the NDIS Act she does not meet the disability requirements. I am not required to consider the remaining criteria.

   SECTION 25: THE EARLY INTERVENTION REQUIREMENTS

4. On the basis that I am not satisfied that Mrs Richard’s impairments are permanent or likely be permanent for the reasons already provided in paragraphs [123] to [149] above I am also not satisfied that Mrs Richards satisfies section 25(1)(a) of the NDIS Act in relation to the early intervention requirements.

5. Likewise, the early intervention requirements in section 25 of the NDIS Act are cumulative. As Mrs Richards does not satisfy subsection 25(1)(a) of the NDIS Act she does not meet the early intervention requirements. I am not required to consider the remaining criteria.

6. Despite not satisfying the threshold of either the disability requirements or the early intervention requirements I accept that Mrs Richards is disabled. It is on that basis that I make the following comments.

7. The correct approach in relation to whether Mrs Richards is likely to require support under the Scheme for her lifetime was recently considered in Foster with the following observation:[142]

   ‘The focus of s24(1)(e) is on whether a prospective participant is likely to require support under the NDIS, or whether those support needs are most appropriately met by other systems.’

   [142] [2023] FCAFC 11 at [93].

8. Having assessed Mrs Richards, Ms Cummins made a number of recommendations for supports for her. Ms Cummins’ opinion is that these supports would assist Mrs Richards with a number of daily activities including in relation to her mobility, self-care, socialisation and self-management. These recommendations are referred to at paragraphs [107] and [108].

9. A number of Ms Cummins’ recommendations, including physiotherapy and psychology were also made by Dr O’Brien.[143] Likewise, a recommendation for physiotherapy was made by Mr Figueroa.

   [143] T Documents, T15 page 54.

10. Ms Cummins has been referred to the pain management clinic at the TCPRC operated through the Queensland public health care system. This clinic will provide her with access to many of the services recommended by Dr O’Brien, Ms Cummins and Mr Figueroa which include psychology, physiotherapy and occupational therapy.

11. Mrs Richards also has neither enquired nor applied for access to any of the community-based supports and services in Queensland identified by Ms Cummins that may also be available to her to meet her needs. It would be in her interests to make the relevant enquiries and applications to these other service providers. This is particularly so in relation to the Queensland Community Support Scheme where eligibility is contingent upon a person’s ineligibility to the Scheme.

    Conclusion

12. Mrs Richards does not meet either the disability requirements or the early intervention requirements to become a participant in the Scheme.

13. Pursuant to section 43(1)(a) of the Administrative Appeals Act 1975 (Cth) the decision under review is affirmed.

    I certify that the preceding  158 (one hundred and fifty- eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member J Collins

    ………………….[SGD]……………………..

    2 August 2024

    Associate

Dates of hearing:	3 and 4 July 2024
Applicant:	Ms Amy Richards (Self-represented)
Solicitor for the Respondent:	Mr Jack Watts (Maddocks Lawyers)
Counsel for the Respondent:	Mr Arron Hartnett