NATIONAL DISABILITY INSURANCE SCHEME – request for motorised scooter – crutches – orthotics – commonly used item – substantially reduced functional capacity – early intervention requirements – whether the Applicant requires NDIS support for life – decision under review affirmed
Ditchfield and National Disability Insurance Agency, Re [2019] AATA 2121
Madelaine and National Disability Insurance Agency, Re [2020] AATA 4025
Secondary Materials
Explanatory Memorandum to the National Disability Insurance Scheme Bill 2013
REASONS FOR DECISION
R Cameron, Senior Member
1 October 2021
INTRODUCTION
The Applicant seeks review of a decision made on 30 June 2020 following an internal review under section 100 of the National Disability Insurance Scheme Act 2013 (“the Act”) which decided that he did not meet the applicable access criteria[1] (“the reviewable decision”).
[1] The reviewable decision is Document T2 of the T-Documents.
The Applicant injured his right knee in March 2019 when he fell in a stormwater ditch whilst walking home on a darkened road in Bali. He suffered a wound which quickly became infected. He was operated on in Bali before being transported back to Australia one week later as an emergency patient. Upon his return he was admitted to the John Fawkner Hospital on 3 April 2019 for treatment for sepsis. This required a number of procedures including four operations in a week. Amongst the procedures were wound debridement, attempted tendon and skin grafts, and manipulation under anaesthetic which led to scar failure and further infection. Initially, the Applicant was treated at the John Fawkner Hospital and then subsequently, particularly for the purposes of rehabilitation, was at the Brunswick Private Hospital. He was in hospital for 11 weeks.
Rehabilitation commenced at approximately the end of May, early June 2019 whilst he was still in hospital. This rehabilitation took place twice a week and usually involved a session with the physiotherapist manipulating and massaging the leg concerned. Additional therapy was undertaken through an exercise physiologist who gave the Applicant exercises to improve his strength and balance. He also undertook therapy in a swimming pool.
On 2 June 2020 the Applicant made an Access Request to become a participant in the National Disability Insurance Scheme (“NDIS”). The assistance he sought was the purchase of a mobility scooter which was said would enable him to travel, shop and play golf again.[2]
[2] The Access Request Form was completed by the Applicant's physiotherapist and signed by him on 2 June 2020.
On 24 June 2020 the Respondent declined the Applicant access to participation in the NDIS. The Applicant then sought internal review of…
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.
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Details
AGLC
Rooney and National Disability Insurance Agency [2021] AATA 3523
Case
[2021] AATA 3523
Decision Date
CaseChat Overview and Summary
This matter concerned an application by the Applicant, Mr Rooney, for review of a decision made by the National Disability Insurance Agency (NDIA). The dispute centred on whether the Applicant required support from the National Disability Insurance Scheme (NDIS) for a motorised scooter, crutches, and orthotics. The decision under review had affirmed the NDIA's refusal to fund these items. The case was heard by Senior Member R Cameron of the Tribunal.
The primary legal issue before the Tribunal was whether the proposed interventions, specifically the motorised scooter, crutches, and orthotics, met the criteria for NDIS support as outlined in section 25(1)(c) of the *National Disability Insurance Scheme Act 2013* (Cth). This required determining whether these items were necessary to address the Applicant's substantially reduced functional capacity and whether they were likely to improve his condition or prevent further deterioration. The Tribunal also considered the weight to be given to the evidence provided by various medical and allied health professionals.
The Tribunal preferred the opinions of Dr Haynes and Dr Love, who were described as vastly experienced and qualified medical specialists, over the evidence of Mr McCann, a physiotherapist, and Mr Harmes, a podiatrist. The Tribunal noted that Dr Haynes and Dr Love gave their evidence from the witness box, which was considered an advantage over the other professionals. The Tribunal found that the evidence of Dr Haynes and Dr Love indicated that the proposed interventions were unlikely to improve the Applicant's knee condition or prevent its deterioration to the extent required by section 25(1)(c) of the Act.
Consequently, the Tribunal affirmed the reviewable decision.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
The Tribunal prefers the opinions expressed by Dr Haynes and Dr Love. It had the benefit of their evidence from the witness box unlike that of Mr McCann, a physiotherapist, or Mr Harmes, a podiatrist, both of whom are not medical specialists. Dr Haynes and Dr Love are vastly experienced and qualified medical specialists. They gave their evidence in a fair and impartial way. The upshot of that evidence is that the proposed interventions sought by the Applicant are unlikely to improve the condition of his knee or prevent it deteriorating further so as to satisfy the criteria contained in section 25 (1)(c) of the Act.CONCLUSION By reason of the foregoing matters the reviewable decision will be affirmed.