ROBINSON and NATIONAL DISABILITY INSURANCE AGENCY DIVISION

ROBINSON and NATIONAL DISABILITY INSURANCE AGENCY DIVISION [2024] AATA 2380 (11 July 2024)
Division:NATIONAL DISABILITY INSURANCE AGENCY DIVISION
File Number: 2022/7165
Re:MARK ROBINSON
APPLICANT

NATIONAL DISABILITY INSURANCE AGENCYAnd
RESPONDENT

DECISION
Tribunal:Senior Member Katter
Date:11 July 2024
Place:Brisbane

The decision under review is set aside and it is decided in substitution that the Applicant “meets the access criteria” in section 21(1)(a), (b) and (c)(i) of the National Disability Insurance Scheme Act 2013 (Cth).
....................[SGD].........................
Senior Member Katter
CATCHWORDS
NATIONAL DISABILITY INSURANCE AGENCY – access criteria – multiple impairments – whether impairments are permanent – whether impairments result in substantially reduced functional capacity – decision under review set aside
LEGISLATION
Administrative Appeals Tribunals Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)
REASONS FOR DECISION
Senior Member Katter
11 July 2024

There is a form[1] by the Applicant ‘requesting to become a participant in the National Disability Scheme’[2] dated 27 October 2020.[3]
[1]           T3, S1, page 34.
[2]           T3, S1, page 34.
[3]           T3, S1, page 41.
At Part F (“Your disability, or need for early intervention supports”) of that form by the Applicant, as to the “Primary disability: This is the disability that has the most impact on your life”, it states: “A Tractor Slasher Accident Crushed & Chopped to pieces from ribs down & smashed back of head”.[4] As to “other disabilities” the form states: “Removal of left ear drum etc”.[5] A “professional” did not complete the remainder of Part F of that form.[6]
[4]           T3, S1, page 37.
[5]           T3, S1, page 37.
[6]           T3, S1, page 37-40.
There is an access request supporting evidence form completed by a General Practitioner, Dr Garlick,[7] dated on or about 18 May 2022.[8] On that form, as to the primary impairment it is stated:[9]
“… Severe lower limb and pelvic/spinal and associated chronic pain secondary to tractor accident 15/06/1999.
… How long has the person had this impairment? Since 1997
… Is the impairment likely to be lifelong? Yes
… Please provide a brief description of any relevant treatment undertaken (current and/or past) Previous major surgery and prolonged rehabilitation.
… Does the person have another impairment that has a significant impact? … Anxiety
… How long has the person had this impairment? Since tractor accident 1997
… Is the impairment likely to be lifelong? Yes
[7]           MBBS, FRACGP, T5, S1, page 45.
[8]           T5, S1, page 46.
[9]           T5, S1, page 48-50.
… Please provide a brief of any relevant treatment undertaken (current and/or past) Psychotherapy.”
At section 3 of that form as to details of the functional impact of the impairments it states:[10]
[10]          T5, S1, page 48.
“1. Mobility … Yes, needs special equipment … Medical grade supportive footwear …
2. Communication … Yes, needs special equipment … Hearing aid
3. Social interaction … No, does not need assistance
4. Learning … No, does not need assistance
5. Self-care … No, does not need assistance
6. Self-Management … No, does not need assistance …”
5.On 14 June 2022[11] the following was stated by a “delegate of the Chief Executive Officer” of the Respondent:[12]
[11]          T7, S1, page 52.
[12]          T7, S1, page 52-56.
“I have considered your application and based on the evidence provided, your circumstances do not meet the disability and early intervention requirements described in the National Disability Insurance Scheme 2013. This means, based on current information, you are not eligible for NDIS. …
I have confirmed that you meet the age and residence requirements. I have verified this through Centrelink with consent. …
Based on the available evidence, you do not meet the disability requirements as set out in Section 24 of the NDIS Act, specifically:
Does your permanent impairment substantially reduce your functional capacity,
Section 24(1)(c) …
The available evidence confirms that you have sensorineural hearing loss.
Your evidence indicates that you use disability-specific supports to communicate/socialise. However, it does not indicate that you cannot otherwise complete these tasks. …
Based on the available evidence, you do not meet the early intervention requirements as set out in Section 24 of the NDIS Act, specifically: …
From the available evidence, the recommended supports are not capacity building in nature, and are therefore not likely to reduce your future supports needs. …”
6.There was a ‘request for review of decision’ on 14 June 2022.[13]
7.By correspondence dated 12 August 2022[14] a “delegate of the Chief Executive Officer” of the Respondent stated:[15]
“After careful consideration of the evidence available, I have decided to confirm the earlier decision. This means that you will not be able to access the NDIS as a participant at this time.
The main reasons in considering your access to NDIS being the evidence provided does not demonstrate a substantial reduction in functional capacity for your sensorineural hearing loss. My full reasons are set out below …”
[13]          T8, S1, page 58.
[14]          T3, S1, page 20.
[15]          T3, S1, page 20.
The internal review reasons stated[16]:
[16] T2, S1, page 24-27.
“… impairments – … I am satisfied that this criteria has been met for physical impairments, anxiety, pain, vision and sensorineural hearing loss. …
Permanence – I am satisfied that this criteria has been met for sensorineural hearing loss. I am not satisfied that this criteria has been met for physical impairments.
It is acknowledged you have experienced long-standing symptoms and difficulties as a result of your diagnosed conditions. … the evidence provided by Dr … Garlick … states and recommends physiotherapy to improve physical function and reduce pain. … Evidence provided by yourself … advising “I have a screw to be removed from my ankle, knee replacement and maybe hip replacement in the future. … As the evidence indicates that you have not completed all available and recommended treatments, the likely permanency of your impairment cannot be determined at this time. … Without specialist evidence confirming that all available treatment options have been explored, completed, and that your impairments have been optimally treated and stabilised, your impairments cannot meet this criterion.
I am not satisfied that this criteria has been met for anxiety. …
I am not satisfied that this criteria has been met for pain. …
It is acknowledged that you have experienced long-standing symptoms and difficulties as a result of your conditions. However, information provided by Dr … Garlick … advises and recommends physiotherapy to improve physical function and reduce pain. …
I am not satisfied that this criteria has been met for vision.
Functional impact - …
I am not satisfied that this criteria has been met for sensorineural hearing loss. …
25(3) that the NDIS in the most appropriate support system …
I am not satisfied that this criteria has been met … ”
An application for review of decision form was filed in the Tribunal on 31 August 2022.[17] At section 3 of the application it states as to reasons for the application:[18] “ … I had a tractor slasher accident and have proven I am as high as 74% disabled. I just want help to fit into society and look after my daughters. I meet all criteria. … ”
[17] T1, S1, page 4.
[18] T1, S1, page 5.
SECTIONS 18-24
The Applicant made a request for access to the Respondent to become a participant in the NDIS.[19] That access request was in a form[20] of the Respondent.[21] The access request was accompanied by documents.[22]
[19]          National Disability Insurance Scheme Act 2013 (Cth) (the “Act”), s 18.
[20]          T3, S1, page 34.
[21]          The Act, s 19.
[22]          The Act, s 19(1)(b); T4-T6.
There is no indication that the Applicant has made another access request further to the access request made on 27 January 2020.[23]
[23] The Act, s 19(2).
Sub-section 21(1) of the Act states:
“(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).”
The Respondent does not submit that there is any age or residence issues as to the Applicant according to sections 22 and 23 of the Act.[24]
[24] Respondent’s submissions dated 28 March 2024, page 1.
Section 24 of the Act states:
“(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 InsuranceScheme 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).”
The Applicant did not at the hearing refer specifically to any other impairments beyond those referred to by the Respondent[25]: ‘physical impairments and associated pain, which involves his legs … and his feet … [that stems from a tractor/slasher accident years ago]. There is a second condition of anxiety. There is a third condition of vision loss and a fourth condition of sensorineural hearing loss.’
[25] Transcript, 16 February 2024, page 11.
As to section 24(1)(a), the Respondent submitted that:
“The weight of medical evidence supports a finding that the Applicant has a physical impairment arising from physical impairments (as a result of the tractor slashing accident) and pain relevant for the purposes of ss 24 and 25 of the Act:
(a) symptoms that result in a physical impairment:
(i) impaired lumbar spine mobility and pain;
(ii) impaired hip mobility and pain;
(iii) impaired foot and ankle mobility and pain;
(iv) impaired station, gait and decreased gait inefficiency, recurrent falls; and
(v) impaired skin integrity, impaired venous and lymphatic circulation.
The weight of medical evidence supports a finding that the Applicant has a sensory impairment arising from Sensorineural Hearing Loss for the purposes of ss 24 and 25 of the Act:
(a) symptoms that result in a sensory impairment:
(i) impaired hearing in the left ear; and
(ii) compensatory behaviour, such as lip reading.
The weight of medical evidence supports a finding that the Applicant has a sensory impairment arising from Vision Loss relevant for the purposes of ss 24 and 25 of the Act:
(a) symptoms that result in a sensory impairment:
(i) impaired vision; and
(ii) difficulty reading small print.
The weight of medical evidence supports a finding that the Applicant has a cognitive impairment arising from Anxiety relevant for the purposes of ss 24 and 25 of the Act:
(a) symptoms that result in a cognitive impairment:
(i) impaired mood;
(ii) anxiety; and
(iii) chronic pain-maladaptive features.”
It is found on the medical evidence that the Applicant has, as stated in section 24(1)(a) of the Act, 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.
Section 209 of the Act states that: “The Minister may, by legislative instrument, make rules called the National Disability Insurance Scheme rules prescribing matters: (a) required or permitted by this Act to be prescribed by the National Disability Insurance Scheme rules; or (b) necessary or convenient to be prescribed in order to carry out or give effect to this Act.” The National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (the “Rules”), rules 5.1 to 5.7 state:
“Part 5 When does a person meet the disability requirements?
5.1The Act sets out when a person meets the disability requirements. The requirements are met 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 person’s impairment or impairments are, or are likely to be, permanent (see paragraphs 5.4 to 5.7); 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: communication, social interaction, learning, mobility, self-care, self-management (see paragraph 5.8); and
(d)the impairment or impairments affect the person’s capacity for social and economic participation; and
(e)the person is likely to require support under the NDIS for the person’s lifetime.
5.2In relation to the above, an impairment that varies in intensity (for example because the impairment is of a chronic episodic nature) may be permanent, and the person is likely to require support under the NDIS for the person's lifetime, despite the variation.
Paragraphs 5.1 and 5.2 summarise section 24 of the Act.
5.3This Part sets out rules relating to some of the elements in paragraph 5.1 above, however, in order to meet the disability requirements, all of the requirements in that paragraph need to be satisfied.
When is an impairment permanent or likely to be permanent for the disability requirements?
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.
5.6 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).
5.7If 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.”
The Respondent submits that the physical impairment is permanent and that the sensorineural hearing loss is permanent, but that the sensory impairment arising from vision loss and the cognitive impairment arising from anxiety are not impairments that are, or are likely to be, permanent.[26]
[26] Transcript 16 February 2024, page 11 and 12.
The Respondent “accepts the evidence to support a finding that the Applicant has received a diagnosis of Sensorineural Hearing Loss … conditions that are likely to result in a permanent impairment … . It is found, on the evidence, that the Applicant’s sensory impairment arising from sensorineural hearing loss is or is likely to be permanent (section 24(1)(b) of the Act).
As to sensory impairment arising from vision loss, the Applicant referred at the hearing to further potential treatment for his eyes. Dr Diaz in the report dated 14 June 2023 also referred to further optometric assessment. It is found, having regard to rule 5.6 of the Rules that sensory impairment arising from vision loss is not permanent (section 24(1)(b)), in that the impairment does require further medical treatment or review in order for its permanency or likely permanency to be demonstrated.
As to the cognitive impairment arising from anxiety, there is not medical or other evidence filed or led as to there being no known, available and appropriate evidence-based treatments as to this impairment. According to rule 5.4 the cognitive impairment arising from anxiety is therefore not permanent.
The Respondent submits that the Tribunal would find the evidence of Dr Diaz to be ‘persuasive’ in terms of there being no known, available and appropriate evidence-based remedial treatments for the Applicant’s physical impairments arising from physical impairments (as a result of a tractor slasher accident) and pain. The Respondent further refers to the Applicant’s oral evidence at hearing, where there was no reference to surgical operations or interventions scheduled for the Applicant’s physical impairments. The Respondent also submitted that the Applicant referred at the hearing to using medicinal cannabis for pain management and to improve sleep quality, where there is no documents or medical evidence as to that being a treatment for the sensory and/or physical impairments. The Applicant stated that the medicinal cannabis was prescribed by doctors and that the Applicant was on the “register”.[27] It is found, having regard to the medical evidence, that the Applicant has a physical impairment arising from physical impairments (as a result of the tractor slashing accident) and pain that are, or are likely to be, permanent according to section 24(1)(b) of the Act.
[27] Transcript 16 February 2024, page 46.
Therefore, the impairments that are “permanent”, for the reasons above, are: physical impairment arising from physical impairments (as a result of the tractor slashing accident) and pain; and sensory impairment arising from sensorineural hearing loss.
The Applicant is only able to meet the disability requirements in section 24 of the Act if the impairments that are permanent result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the following activities: communication; social interaction; learning; mobility; self-care; self-management.[28]
[28] The Act, s 24(1)(c).
Rule 5.8 of the Rules states:
“When does an impairment result in substantially reduced functional capacity to undertake relevant activities?
5.8An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities—communication, social interaction, learning, mobility, self-care, self-management (see paragraph 5.1(c))—if its result is that:
(a)the person is unable to participate effectively or completely in the activity, or to perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications; or
(b) the person usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in the activity or to perform tasks or actions required to undertake or participate in the activity; or
(c) the person is unable to participate in the activity or to perform tasks or actions required to undertake or participate in the activity, even with assistive technology, equipment, home modifications or assistance from another person.”

The Respondent submits that the physical impairment arising from physical impairments (as a result of the tractor slashing accident) and pain and sensory impairment arising from sensorineural hearing loss do not result in “substantially reduced functional capacity to undertake or psychosocial functioning in undertaking the activities in sub-paragraphs 24(1)(c)(i)-(vi) of the Act.
The Applicant stated in relation to communication that he relies on “lip reading”.[29] The Applicant stated that he can’t hear himself, doesn’t hear different ranges of volume.[30] The Applicant was asked in cross-examination: “And you can’t write? Yes.”[31] The Access form states that it was completed in handwriting by the Applicant. Dr Diaz stated in oral evidence as to communication that Dr Diaz “couldn’t detect any impairment during assessment of the Applicant”[32] and stated: [The Applicant] has some hearing problems, long-standing, but those have been I think, in my opinion, adequately addressed with the support of the relevant specialist, ENT specialist, and I saw he already had an hearing aid. … He’s also developed the ability to do the lip reading, and I could see that during my interview with him.[33] … I have an accent and he was sometimes struggling to understand me so we went back and forth. … I couldn’t feel there was a barrier there.” As to communication, the Applicant understood questions asked at the hearing, but has to lip read, as referred to above. The specific impairment of sensorineural hearing loss does not result in “substantially reduced functional capacity to undertake or psychosocial functioning in undertaking “communication””.[34]
[29]          Transcript 16 February 2024, page 34.
[30]          Transcript 16 February 2024, page 34.
[31]          Transcript 16 February 2024, page 35.
[32]          Transcript 16 February 2024, page 51.
[33]          Transcript 16 February 2024, Page 51-52.
[34] The Act, s 24(1)(c)(i).
As to social interaction, the Applicant stated that he has friends, goes fishing with those friends, attends local shops and does school drop-offs, but stated further that “it hurts though”. It is found that the impairments do not therefore result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, social interaction.[35]
[35] The Act, s 24(1)(c)(ii).
As to learning,[36] the Applicant stated that “cognitive skills, I pass all them. Yes”. The Applicant could process questions and provide answers at the hearing. The impairments do not result in substantially reduced functional capacity to undertake or psychosocial functioning in undertaking learning.[37]
[36] The Act, s 24(1)(c)(iii)
[37] The Act, s 24(1)(c)(iii).
There is not, on the Applicant’s evidence, substantially reduced functional capacity as to self-care[38] and self-management.[39]
[38] The Act, s 24(1)(c)(v).
[39] The Act, s 24(1)(c)(vi).
As to mobility, Dr Diaz stated that the Applicant could stand for about 5-10 minutes, which the Applicant agreed with. The Applicant agreed that he had a sitting tolerance of 10 minutes.[40] The Applicant agreed that he could stand at a bench for a 10 to 15 minute period indoors, but disagreed that he could walk for 10 to 15 minutes. The Applicant disagreed that he was able to walk 500 metres.[41] The Applicant stated that he would walk 50 metres and be “burning”, that he disagreed with Dr Diaz as to being able to walk at a slower pace on level ground for 10 to 15 minutes.[42] The Applicant stated that he can only mobilise on stairs ‘with his arms’, that his knees don’t support him, his ankles don’t bend and he relies on the railings and the walls, using his shoulders to support him.[43] The Applicant referred to previously volunteering at his daughters’ school in the past and ‘crawling around on his hands’ when sitting, at the school field. The Applicant stated that he used the trolley at the supermarket as a ‘walker’, having parked in a disabled park. The Applicant stated that he “falls all the time, hurts things all the time, breaks bones all the time”.[44] It is found that the physical impairment arising from physical impairments (as a result of the tractor slashing accident) and pain does result in ‘substantially reduced functional capacity to undertake mobility’.[45]
[40]          Transcript 16 February 2024, page 36.
[41]          Transcript 16 February 2024, page 36.
[42]          Transcript 16 February 2024, page 36.
[43]          Transcript 16 February 2024, page 38.
[44]          Transcript 16 February 2024, page 41.
[45] The Act, s 24(1)(c)(iv).
The Applicant stated that he was able to walk less than 200 metres and that he can’t go to the shops without his daughters behind him.[46] The Applicant ‘usually does require assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in mobility or to perform tasks or actions required to undertake or participate in mobility.[47]
[46] Transcript 16 February 2024, page 39.
[47]The Rules, r 5.8(b).
The Applicant is able to take the trolley at the shops out to the car, but cannot move any items/bags from the trolley to the car and relies upon his daughters.[48] The ‘result’ is that the Applicant is ‘unable to participate in mobility or to perform tasks or actions required to undertake or participate in mobility without assistive technology, equipment, home modifications or assistance from another person.’[49]
[48] Transcript 16 February 2024, page 25.
[49] The Rules, r 5.8(c).
Rules 5.8(b) and (c) therefore indicate that the impairments of the Applicant result in substantially reduced functional capacity to undertake one or more of the relevant activities.[50]
[50] The Act, s 24(1)(c).
The physical impairment arising from physical impairments (as a result of the tractor slashing accident) and pain and sensory impairment arising from sensorineural hearing loss do result in substantially reduced functional capacity to undertake or psychosocial functioning in undertaking the activity of mobility in sub-paragraph 24(1)(c)(iv) of the Act.
The Respondent submitted that if section 24(1)(a), (b) and (c) are ‘satisfied’, then (d) and (e) would be ‘met’.[51] The Applicant has, for the reasons above, a permanent impairment that results in substantially reduced functional capacity to undertake mobility. The Applicant “meets” the disability requirements in section 24(1). There is satisfaction that, at the time of considering the request, the Applicant “meets the disability requirements”. The Applicant therefore “meets the access criteria” in section 21(1).
[51] Transcript, page 16 (line 45) and page 17 (line 6).
DECISION
The decision of the Respondent of 12 August 2022[52] is set aside and it is decided in substitution that the Applicant “meets the access criteria” in section 21(1)(a), (b) and (c)(i) of the National Disability Insurance Scheme Act 2013 (Cth).
[52] T3, S1, page 20.

I certify that the preceding 38 (thirty eight) paragraphs are a true copy of the reasons for the decision

...............................[SGD]........................................
Associate
Dated: 11 July 2024
Dates of Hearing:  16 February 2024
Date of final submissions:              28 March 2024
Applicant:  Mr Mark Robinson
Solicitor for the Respondent:         Mr Peter Crethary, HWL Ebsworth

[2024] AATA 2380

11 July 2024

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