Richardson and National Disability Insurance Agency - [2024] AATA 3505

Richardson and National Disability Insurance Agency [2024] AATA 3505 (2 October 2024)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2022/7096
Re:Mark Richardson
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Member K Bean
Date:2 October 2024
Place:Sydney

The Tribunal affirms the decision under review pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).
.............[SGD]..................................
Member K Bean
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – access – access criteria – chronic back pain related to lumber spondylosis – whether the Applicant’s impairments are permanent – where the Applicant’s current treatment is likely to improve his degenerative back condition – whether the Applicant meets the disability requirements or the early intervention requirements – decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)
CASES
Beezley v Repatriation Commission (2015) FCAFC 165
Mulligan v National Disability Insurance Agency [2015] FCA 544
National Disability Insurance Agency v Davis [2022] FCA 1002
National Disability Insurance Agency v Foster [2023] FCAFC 11
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634
XMFS and National Disability Insurance Agency [2022] AATA 568
SECONDARY MATERIALS
Our Guidelines – Becoming a participant – Applying to the NDIS, 1 February 2024
REASONS FOR DECISION
Member K Bean
2 October 2024
INTRODUCTION

The issue before the Tribunal is whether the Applicant, Mr Richardson, meets the access criteria to be a participant of the National Disability Insurance Scheme (‘the NDIS’ or ‘the scheme’) in accordance with section 21 of the National Disability Insurance Act 2013 (Cth) (‘the NDIS Act’ or ‘the Act’).
Mr Richardson is currently 60 years old and suffers from significant back pain which has a big impact on his daily life. In March 2022, he applied for access to the NDIS on the basis of three disabilities, identified by his General Practitioner, Dr Campbell, as “bulging disc and compressed nerve”, “soft tissue injury” and “arthritis”[1].
[1] T7, p 86.
On or about 25 March 2022, a delegate on behalf of the National Disability Insurance Agency decided that although Mr Richardson satisfied the age and residency access criteria, he did not meet the disability requirements under section 24 or the early intervention requirements under section 25 of the Act[2].
[2] T1B, p 8 and T11, p 87.
Mr Richardson sought internal review of the original decision pursuant to section 100 of the NDIS Act. On 8 August 2022[3], the Respondent affirmed the original decision. Mr Richardson then sought review of the internal review decision by this Tribunal pursuant to section 103 of the NDIS Act on 29 September 2022.
[3] T2.
The Tribunal held a hearing by video on 20 and 21 August 2024. The Applicant was represented at the hearing by Mr William Robin. The Agency was represented by counsel, Mr Bird.
In arriving at its decision, the Tribunal has considered the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Richardson and National Disability Insurance Agency

Details

AGLC: Richardson and National Disability Insurance Agency [2024] AATA 3505
Case: [2024] AATA 3505
Decision Date: 2 October 2024

CaseChat Overview and Summary

This matter concerned an application by Mr Richardson for review of a decision by the National Disability Insurance Agency (NDIA) to refuse him access to the National Disability Insurance Scheme (NDIS). The dispute centred on whether Mr Richardson's impairments, arising from chronic back pain related to lumbar spondylosis, were permanent and whether he met the disability or early intervention requirements for NDIS access. The Administrative Appeals Tribunal (AAT) was required to determine these issues.

The Tribunal was tasked with assessing whether Mr Richardson's impairments were permanent, as defined by the NDIS legislation, and whether he met the criteria for either disability access or early intervention access. Specifically, the Tribunal had to consider the available medical evidence regarding the potential for treatment to improve Mr Richardson's condition and reduce his level of impairment.

Member K Bean, in her decision, considered medical evidence from Mr Richardson's treating neurosurgeon, Dr Cook, and his General Practitioner, Dr Campbell, as well as expert evidence from Pain Management & Rehabilitation Specialist, Dr David Gorman. While Mr Richardson contended that no further treatment options were available to him, the medical evidence indicated that participation in a comprehensive multidisciplinary pain clinic program, such as the one at Royal North Shore Hospital, was likely to reduce his impairment. Dr Gorman, in particular, stated that such a program was precisely what Mr Richardson needed, despite Mr Richardson's initial reluctance. The Tribunal concluded that Mr Richardson did not meet the disability requirements under s 24 of the Act, nor the early intervention requirements under s 25.

Consequently, the Tribunal affirmed the NDIA's decision that Mr Richardson did not currently qualify for access to the NDIS.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Mr Richardson also submits there are no remaining treatment options available to him as he is not considered a suitable candidate for surgery[19]. He says he has already accessed and implemented the other treatment options available to him.[19] T12, p 113. The Medical Evidence However, some of the medical evidence before the Tribunal suggests that there is further treatment available to Mr Richardson. In particular, there is a significant body of evidence to suggest that Mr Richardson’s current level of impairment is likely to be reduced by participation in a comprehensive pain clinic program. In a report of 21 February 2023, Mr Richardson’s treating neurosurgeon, Dr Cook, confirmed an MRI scan had shown disc degeneration at the L4/5 and 5/1 levels, without significant neural compression or active arthritis. He also stated as follows:“So, my assessment is that this man has a chronic pain syndrome. From the medical point of view, I think one of the pain clinics would be probably his best option….There may be some pain specialist options that have yet to be pursued and the RNSH Pain Clinic would be the clinic to review that.”[20][20] Joint Hearing Bundle, Tab 7, p 119. In her answers to targeted questions provided to her, Mr Richardson’s General Practitioner, Dr Campbell, also confirmed that in accordance with this recommendation, Mr Richardson was referred to a pain management clinic in 2022, though her understanding was no appointment had yet been made[21].[21] Joint Hearing Bundle, Tab 10, p 129. The most detailed evidence on this topic has been provided by Dr David Gorman, a Pain Management & Rehabilitation Specialist, who has provided a report dated 31 January 2024[22] at the request of the Respondent and also gave oral evidence at the hearing. [22] Joint Hearing Bundle, Tab 11, p 132. In his report, Dr Gorman gave a diagnosis consistent with that of Dr Cook, namely “multilevel lumbar spondylosis resulting in chronic back pain and symptoms in the lower limbs of spinal canal stenosis”[23]. With respect to available treatment, he stated:[23] Joint Hearing Bundle, Tab 11,p 137.[24] Joint Hearing Bundle, Tab 11, p 138.“The ideal treatment would be a multidisciplinary pain program. He is deconditioned and “fear avoidant”. He needs a self-directed exercise program.”[24] Dr Gorman also noted Mr Richardson was reluctant to participate in a pain clinic program as it did not involve “hands on” physiotherapy, but stated “However, a program such as at RNSH is exactly what he needs”[25]. He also specified in his report that what Mr Richardson required was a pain program over 10 weeks or 3 months with input from an exercise physiologist[26].[25] Joint Hearing Bundle, Tab 11, p 138.[26] Joint Hearing Bundle, Tab 11,p 142. During his oral evidence, it was explained to Dr Gorman that Mr Richardson had now been referred to the Royal North Shore Hospital Pain Clinic (RNSH Pain Clinic) and had indicated in his oral evidence he had recently attended a first an appointment at the clinic. Dr Richardson confirmed this was precisely the form of treatment he considered Mr Richardson required and Mr Richardson was fortunate to have access to “the best pain unit in Australia”.

Decision

Reasons for decision

As I have concluded Mr Richardson does not meet either the disability requirements contained in s 24 of the Act, or the early intervention requirements specified by s 25, I have also concluded he does not currently qualify for access to the NDIS and the decision under review should be affirmed.DECISION The Tribunal affirms the decision under review pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).

Ratio Decidendi

Legal Principle Established

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