Rossow and National Disability Insurance Agency
[2024] AATA 1004
•8 May 2024
Rossow and National Disability Insurance Agency [2024] AATA 1004 (8 May 2024)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number: 2022/5380
Re:Deborah Rossow
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Member S Smith
Date:8 May 2024
Place:Brisbane
Pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision under review.
.............................[SGD]............................
Member S Smith
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – request for access – functional neurological disease – major depressive disorder – fibromyalgia/chronic pain syndrome – post-traumatic – stress-disorder – whether impairments result in substantially reduced functional capacity – decision under review affirmed.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act2013 (Cth)
National Disability Insurance Scheme (Becoming a Participant) Rules 2016Cases
Coventry and National Disability Insurance Agency [2024] AATA 259
Galea and National Disability Insurance Agency [2022] AATA 2263
Mulligan v National Disability Insurance Agency [2015] FCA 544
Madelaine and National Disability Insurance Agency [2020] AATA 4025
National Disability Insurance Agency v Davis [2022] FCA 1002
National Disability Insurance Scheme v Foster [2023] FCAFC 11
Nika and National Disability Insurance Agency [2021] AATA 2127
Re Schwass and National Disability Insurance Agency [2019] AATA 28
Rooney and National Disability Insurance Agency [2021] AATA 3523Secondary Materials
National Disability Insurance Scheme - Operational Guidelines – Access (updated 01 February 2024)
NDIS - Operational guidelines - Assistive technology (updated 16 February 2023)
REASONS FOR DECISION
Member S Smith
8 May 2024
INTRODUCTION
Ms Deborah Rossow is 65 years old. Ms Rossow has earned a Doctor of Philosophy and previously worked as a lecturer at a university. She has two sons and lives with her youngest son, Mr Lee Rossow.
On 16 December 2021, Ms Rossow applied to the National Disability Insurance Agency (the Agency) to become a participant of the National Disability Insurance Scheme (the Scheme).[1]
[1] A5: Respondent’s Statement of Facts, Issues and Contentions dated 23 February 2024 at [2].
Ms Rossow applied to the Agency on the basis of her established diagnoses of Functional Neurological Disease (FND), fibromyalgia, Major Depressive Disorder (MDD) and Post-Traumatic Stress Disorder (PTSD).[2]
[2] T Documents, T1A: Internal Review Decision dated 16 May 2022.
On 4 January 2022, a delegate of the Chief Executive Officer (CEO) of the Agency decided not to grant Ms Rossow access on the basis that she failed to meet the statutory access criteria.[3] Ms Rossow subsequently applied for an internal review of that decision.[4]
[3] T Documents, T11: Access Not Met (Original Decision) dated 4 January 2022.
[4] T Documents, T15: Request for a Review or Reviewable Decision dated 21 March 2022.
On 16 May 2022 the delegate, under section 100(6) of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) notified Ms Rossow that the Agency affirmed its earlier decision to refuse access (the decision under review).[5]
[5] T Documents, T1A.
On 24 June 2022, Ms Rossow applied to the Administrative Appeals Tribunal (the Tribunal) for review of the decision under review.[6]
[6] T Documents, T1: AAT Application for Review of Decision dated 24 June 2022.
At the hearing Ms Rossow was self-represented. Mr Lee Rossow attended in support and at times represented Ms Rossow when she asked him to do so. The Agency was represented by Ms Genevieve Yates of Counsel instructed by Makinson d’Apice Lawyers.
For the reasons set out below, the Tribunal affirms the decision under review and finds that Ms Rossow does not satisfy the ‘disability requirements’ under section 24 of the NDIS Act or the ‘early intervention’ requirements under section 25 of the NDIS Act.
ISSUES BEFORE THE TRIBUNAL
To access the Scheme Ms Rossow must satisfy the mandatory criteria prescribed in section 21 of the NDIS Act. Firstly, Ms Rossow must meet the age requirements[7] and secondly the residence requirements.[8] The third requirement is that Ms Rossow must meet either the disability requirements[9] or the early intervention requirements.[10]
[7] Section 22 NDIS Act.
[8] Section 23 NDIS Act.
[9] Section 24 NDIS Act.
[10] Section 25 NDIS Act.
The Agency accepts that Ms Rossow meets both the age and the residence requirements.
The issue I must consider is therefore whether Ms Rossow satisfies the following:
·the disability requirement under section 24 of the NDIS Act; and
·the early intervention requirement under section 25 of the NDIS Act.
THE LEGAL FRAMEWORK
The disability requirements are contained in section 24 of the NDIS Act 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 (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 requirements of section 24 of the NDIS Act are cumulative and all criteria must be met.
The early intervention requirements in section 25 of the NDIS Act 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;
…….
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.
Likewise, the requirements of section 25 of the NDIS Act are cumulative and all criteria must be met.
An impairment is generally understood to mean ‘the loss of or damage to a physical, sensory or mental function.’[11] The assessment of impairments is ‘functional and multi-faceted’ and requires a relatively high degree of precision.[12]
[11] Mulligan v National Disability Insurance Agency [2015] FCA 544 (Mulligan) at [51].
[12] Mulligan at [55]
Under section 209 of the NDIS Act the Minister for the NDIA may make rules prescribing matters that are required to carry out and give effect to the NDIS Act. Section 27 of the NDIS Act provides for the making of rules in relation to the requirements under section 24 and 25. The relevant rules in respect of this review are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (the access rules).
Relevant to the criteria around the disability requirements is rule 5.8 of the access rules which provides as follows:
When does an impairment result in substantially reduced functional capacity to undertake relevant activities?
5.8 An 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.
Relevant to the criteria around the early intervention requirements is rule 2.5 of the access rules which provides as follows:
Generally speaking:
(a) a person will meet the disability requirements if they have a disability that is attributable to an impairment that is permanent or likely to be permanent and that results in substantially reduced functional capacity;
(b) alternatively, a person can access the NDIS through the early intervention requirements without having substantially reduced functional capacity. Instead, the early intervention requirements consider the likely trajectory and impact of a person's impairment over time and the potential benefits of early intervention on the impact of the impairment on the person's functional capacity. The CEO may consider a range of evidence in deciding the potential benefit of early intervention on a person's impairment. The CEO may consider existing evidence or information from an individual or their family or carer. Where a young child has an impairment resulting in developmental delay or resulting from a condition on a list published by the CEO for which the benefits of early intervention have already been established, no further evidence of the benefit of early intervention supports to the child is required to meet the early intervention requirements. A young child or other person can still meet the early intervention requirements without having one of these conditions, provided there is evidence that the requirements are satisfied.
Also, rules 6.8 and 6.9 of the access rules:
6.8 Where paragraph 6.2(a) applies to a person, the main way in which the CEO can determine whether the provision of early intervention supports is likely to benefit the person in the ways set out in paragraphs 6.2(b) and (c) above is to consider evidence going to those matters, as indicated in paragraph 6.9 below. However, young children who have an impairment resulting in developmental delay (see paragraph 6.10) or resulting from a particular condition (see paragraph 6.11) will not need to provide further evidence of the matters in paragraphs 6.2(b) and (c).
Where evidence is required
6.9 In deciding whether provision of early intervention supports is likely to benefit the person in the ways mentioned in paragraphs 6.2(b) and (c) above, it is expected that the CEO would consider:
(a) the likely trajectory and impact of the person's impairment over time; and
(b) the potential benefits of early intervention on the impact of the impairment on the person's functional capacity and in reducing their future needs for supports; and
(c) evidence from a range of sources, such as information provided by the person with disability or their family members or carers. The CEO may also in some cases seek expert opinion.
The Agency also issues operational guidelines in relation to dealing with the assessment of whether Ms Rossow meets the disability or the early intervention requirements. The relevant guidelines in this review are the NDIS - Applying to the NDIS Guidelines (the access guidelines).[13]
[13] Ourguidelines.ndis.gov.au: Applying to the NDIS.
There is no legislative power conferred by the NDIS Act to make operational guidelines, and they are issued in an exercise of executive power.[14] The Tribunal is not bound by the Agency’s documented policy that is set out in operational guidelines. However, 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.[15] There is further guidance that the Tribunal is not bound by policy, where Mortimer J held:[16]
‘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’.
[14] G v Minister for Home Affairs [2019] FCAFC 79 at [18].
[15] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] 24 ALR 577 at [590]
[16] G v Minister for Immigration and Border Protection [2018} FCA 1229 at [171].
Provided that the access guidelines are consistent with the objects of the legislation, they should be considered when deciding whether Ms Rossow satisfies the disability requirements or the early intervention requirements. The Agency correctly highlighted this point in its closing submissions.[17]
[17] Respondent’s Closing Submissions filed 5 April 2024 at [7].
The question of whether Ms Rossow meets the legislative requirements is a question of fact that must be determined on the balance of the available evidence. The Tribunal must undertake a precise ‘fact finding task’[18] and be positively satisfied[19] that Ms Rossow meets either the disability requirements or the early intervention requirements.
[18] National Disability Insurance Agency v Davis [2022] FCA 1002 (Davis) at [42]
[19] Mulligan at [55]. Also cited in Re Schwass and NDIA [2019] AATA at [29] and Davis [at 61].
CONTENTIONS
Ms Rossow gave evidence orally and in writing that her disability was attributable to the impairments that arose because of her four conditions: FND, fibromyalgia, MDD and PTSD (the conditions). Ms Rossow contends that she meets both the disability requirements and the early intervention requirements.
The Agency is satisfied that Ms Rossow has a disability attributable to neurological, physical, and psychosocial impairments within the meaning of section 24(1)(a) of the NDIS Act.[20]
[20] A5 at [16].
The Agency is satisfied that there are no further treatments for Ms Rossow’s conditions and therefore that Ms Rossow’s impairments, as a consequence of these conditions are permanent within the meaning of section 24(1)(b) and 25(1)(a) of the NDIS Act.[21]
[21] A5 at [23]; [27]; [31].
The Agency is also satisfied that Ms Rossow’s permanent impairments affect her capacity for social or economic participation within the meaning of section 24(1)(d) of the NDIS Act.[22]
[22] A5 at [60].
The Agency however is not satisfied that:
·Ms Rossow’s impairments result in a substantial reduction in her functional capacity under section 24(1)(c) of the NDIS Act; and
·Ms Rossow is likely to require lifetime support under the Scheme under section 24(1)(e).
With respect to the early intervention requirements, the Agency was satisfied that Ms Rossow’s impairments are likely to be permanent within the meaning of section 25(1)(a).
The Agency is not satisfied that:[23]
·early intervention supports are likely to benefit Ms Rossow for the purposes of section 25(1)(b) and 25(1)(c) of the NDIS Act; and
·early intervention supports for Ms Rossow are not most appropriately funded or provided through the Scheme under section 25(3).
[23] A5 at [63]-[68].
EVIDENCE
Ms Rossow and the Agency have submitted a substantial number of medical documents, and also various submissions detailing their evidence and contentions in this review. I have considered all the evidence in detail and summarise as I consider to be relevant below.
Evidence of Ms Deborah Rossow
Ms Rossow was diagnosed with FND in July of 2021 although she submits that this condition has affected her since the age of 20[24] when she became bed-bound for 2.5 years due to symptoms of left-sided weakness, gross motor function impairments, extreme pain and fatigue.[25]
[24] T Documents, T1B: Supporting Evidence Form dated 1 June 2022, page 23; T8: Access Request Form dated 16 December 2021, page 73.
[25] T Documents, T17: Medical History of Ms Rossow, page 119.
In early August and again in December of 2021 Ms Rossow received a Covid vaccination. She thereafter began to experience an exacerbation in her symptoms of FND, leading to a ‘significant decline in her overall psychosocial functional needs’.[26]
[26] T Documents, T1D: Letter of Ms Frances Turner dated 12 June 2022, page 34; B6: Report of Dr Joshua Barton dated 13 January 2022.
Ms Rossow ceased her work as a self-employed tutor and came into receipt of the disability support pension since 17 December 2021.[27]
[27] T Documents, T1C: Letter of Services Australia dated 3 June 2022.
In her evidence Ms Rossow stated that it has been difficult for her to access the appropriate treatments and supports she requires for her condition of FND and referred to the outdated knowledge and inaccurate assumptions of medical personnel.[28]
[28] C9: Applicant’s Statement.
Ms Rossow considered that she has been proactive in seeking the treatments required for each of her conditions and stated that she regularly conducts online research in order to be up to date with knowledge of these conditions and their respective treatments. She has participated in an online Chronic Conditions course through Macquarie University as well as several university-operated research projects.[29]
[29] C18, page 11.
On 21 April 2023 Ms Rossow was referred by the Agency for an independent functional capacity assessment by Ms Tiffany Hayes, occupational therapist. Subsequent to reading Ms Hayes’ report Ms Rossow prepared a document filed with the Tribunal titled ‘Response to OT Report by Tiffany Hayes’ addressing ‘some clarifications and corrections to misinformation’.[30]
[30] Applicant’s Response to OT report by Tiffany Hayes, undated, filed 9 June 2023; C18: Applicant Response, undated, filed 9 March 2024.
In regard to what Ms Hayes reported as her functioning on a ‘typical’ day, Ms Rossow explained, ‘the only thing typical about living with FND and other health issues is that my functioning capacity is unpredictable and inconsistent and varies from moment to moment throughout the day.’[31]
[31] Applicant’s Response to OT report; Applicant’s Closing Submissions, filed 19 April 2024 at [26]
In November of 2023 Ms Rossow was approved for an aged care support package to provide her with fortnightly assistance with domestic assistance including vacuuming, mopping and bathroom cleaning, social assistance and in-home respite.[32]
[32] Applicant’s Submissions - Aged Care dated 16 November 2023, page 2.
Ms Rossow gave detailed evidence of ‘functional seizures’ or ‘micro-seizures’ also known as dissociative events that she experiences on a daily basis.[33] During these ‘functional seizures’ Ms Rossow explained that she can become ‘frozen’ and it can become ‘impossible to talk’.[34]
[33] Transcript, page 32 lines 14-15.
[34] Transcript, page 29 line 46; line 32 line 15.
Ms Rossow described other symptoms from FND and her other impairments as follows:[35]
[35] Applicant’s Response to OT report.
·Motor mobility problems, or gait disorder which Ms Rossow described as ‘wonky walking’;
·Weakness in her limbs;
·Facial spasms, tremors and uncontrolled ‘tic’ movements, myoclonus, and dystonia;
·Bowel and bladder control problems;
·‘Computer glitching’ where the brain and body do not communicate as required or expected;
·Vision problems;
·Speech and swallowing symptoms;
·Chronic fatigue;
·Cognitive issues; described as ‘brain fog, memory loss, and loss of mental clarity’;
·Pain symptoms; and
·Functional sensory symptoms.
Ms Rossow’s evidence is that her impairments cause her a substantially reduced functional capacity in the functional domains of communication, social interaction and mobility under section 24(1)(c)(i), (ii) and (iv) of the NDIS Act (the functional domains).[36]
[36] Applicant’s Closing Submissions at [62]-[65] and [72]-[73].
With respect to communication Ms Rossow stated that she experiences:
·‘Difficulties with speaking’, including ‘suffering from a stutter and slurred speech;’[37]
·Involuntary movements that impact upon the quality of both her handwriting and typing; and
·Unpredictable ‘functional seizures’ which can make it impossible for her to talk.[38]
[37] C18, page 6.
[38] Transcript, page 32 lines 14-15.
With respect to social interaction Ms Rossow’s evidence was that:
·She has had no friendship connections in her local area since moving to Brisbane over a year ago as a consequence of spending most days in bed or moving between the bed and the loungeroom;[39]
·She is no longer able to attend art classes since June of 2023 due to a lack of assistance with transport and also difficulties with hand control;[40]
·She is an active member of online FND support groups and attends face-to-face FND support group meetings once a month.[41] Ms Rossow stated that the meetings vary in opportunity to socialise however that she enjoyed ‘mixing with people’;[42]
·She will video chat and call her friends in the Sunshine Coast and the Gold Coast on a weekly basis and also to regularly check Facebook using her smartphone. [43] However in Ms Rossow’s closing submissions she stated that is no longer the case and that she has in fact not had contact with several of her friends for months;[44]
·She reads books, watches streamed television and controls her choice of viewing through her iPad and smartphone;[45]
·She is unable to attend the movies or a theatre due to her sensitivity to the flashing lights and noise levels;[46]
·Her mobility impairments and chronic fatigue are barriers to her ability to participate in activities of social interaction without support;[47]
·She is unable to drive her mobility scooter outside to explore her local area and ‘enjoy nature’ like she used to because of ‘the rainy and the hot weather’ and also that she had been unwell;’[48]
·She receives two hours of social assistance each fortnight through her aged care package that has used to be driven to Bunnings, a garden centre and a shopping centre where Ms Rossow can go for a walk and purchase items she needs or ‘just get sushi to eat.’[49]
[39] C18, page 11; Transcript, page 36 line 12; Applicant’s Closing Submissions at [55].
[40] Transcript, page 36 lines 15-33.
[41] C9, page 11.
[42] Transcript, page 36 line 11.
[43] Transcript, page 39 lines 4-22.
[44] Applicant’s Closing Submissions at [52].
[45] Transcript, page 37 line 40 – page 38 line 30.
[46] Applicant’s Response to OT report, page 5; Transcript page 32 lines 41-44.
[47] C18, page 11.
[48] Transcript page 19 line 42; page 31 lines 22-35.
[49] Transcript, page 52 lines 3-5.
With respect to mobility, Ms Rossow’s evidence was that:
·She has a motor vehicle although she no longer is able to drive since December 2021 due to an increase in functional seizures. Ms Rossow is however able to drive a large electric scooter;[50]
[50] Transcript, page 20 lines 27-28.
·She uses her scooter to drive approximately 300 metres to pick up medications from her local pharmacy ‘once or sometimes twice a week’. Ms Rossow can also drive to medical appointments at her GP and her psychologist, and to attend a local park with her grandson;[51]
[51] Transcript, page 22 lines 12-14; page 27 lines 27-28; page 33 lines 1-6; page 55 lines 21-23.
·She will walk to her letter box, walk around shops and around the park across the sand using her hiking poles.[52] At the hearing Ms Rossow confirmed that her hiking poles are primarily to assist her balance;[53]
·Also with the assistance of hiking poles, she can walk for 1.5 to 2 kilometres on a flat surface and will do so ‘about once a week or fortnight’;[54]
·Inside her home she will mobilise without her hiking poles ‘using furniture and walls to lean on’[55] or with a wheeled walker;[56]
·She is able to fold laundry when seated or leaning against a bench standing up.[57] Ms Rossow will unload the clothes drier using her right arm however she is unable to do ironing or hang items on a clothesline;[58]
·She is unable to vacuum, sweep or attend to garden work due to ‘uncoordinated body and arm movements, fatigue, balance issues and pain’;[59]
·She is able to stand unsupported for approximately five minutes;[60]
·She is able to get out of bed at night to use the toilet, and also if her two cats require feeding which involves Ms Rossow lifting a small bag of cat food that weighs less than one kilogram;[61]
·She is able to walk to the toilet and transfer with the assistance of an over-toilet seat;[62]
·She is able to mobilise on stairs although Ms Rossow explained that she must move slowly and employ strategies to ensure she that does not fall; and[63]
·She is unable to use public transport because of physical difficulties.[64]
[52] Transcript, page 20 lines 30-31; page 21 lines 31-32; page 26 lines 42-43.
[53] Transcript, page 18 lines 42-43.
[54] Applicant’s Response to OT report, page 6.
[55] Transcript, page 12 line 34.
[56] C10, page 2.
[57] Transcript, page 21 lines 23-26.
[58] Applicant’s Response to OT report, pages 8-9.
[59] Applicant’s Response to OT report, page 8.
[60] Transcript, page 20 lines 20-21.
[61] Transcript, page 18 line 8.
[62] Transcript, page 13 lines 13-14.
[63] Transcript, page 49 lines 15-18.
[64] C10, page 2.
With respect to the ‘early intervention’ requirements Ms Rossow stated that:
·She is no longer able to traverse up and down a flight of approximately 8 steps. The fact that she used to be able to do this and cannot anymore is, in Ms Rossow’s submission, a direct result of the Agency delaying her access to supports and early intervention strategies;[65]
·She is also now unable, on most occasions, to prepare meals safely;[66]
·She is financially struggling to meet the treatment and transport costs required to enable her to maintain her functioning and prevent further decline, having had exhausted the available public and private health offerings;[67]
·She requires ongoing, lifelong support to maintain her current level of functioning and reduce the potential for her functioning to further decline;[68] and
·With access to early intervention strategies through the scheme, this will dramatically increase her chances of sustained life and a quality of life that she currently struggles to maintain or experience.[69]
[65] Applicant’s Closing Submissions at [39].
[66] Applicant’s Closing Submissions at [32].
[67] C18, page 12.
[68] C18, page 14.
[69] Applicant’s Closing Submissions at [74].
Evidence of Mr Lee Rossow
Mr Rossow has lived with his mother since February 2023. Mr Rossow’s 5-year-old son lives in the same house for a week at a time on a fortnightly basis and attends school.[70]
[70] Transcript, page 8 lines 23-35.
Mr Rossow explained that he moved in with his mother on the basis that ‘she got to the point where that wasn’t safe anymore, so we both had to leave the homes that we had and come together so that she had some support, because we couldn’t get any anywhere else.’[71]
[71] Transcript, page 8 lines 23-25.
Mr Rossow works full-time. At the hearing Mr Rossow explained that, when he is available he assists his mother by doing the shopping ‘most of the time’. At other times he will drive Ms Rossow to the shops or she will be driven by a privately engaged support worker.[72]
[72] Transcript, page 9 lines 36-40.
Evidence of Dr Katherine Gill
Dr Katherine Gill, occupational therapist, assessed Ms Rossow via telehealth on 25 and 26 November 2021, and prepared a subsequent report dated 28 November 2021 for the purposes of determining Ms Rossow’s care needs in relation to her application to the Agency.[73]
[73] C13: Report of Dr Gill dated 28 November 2021.
Dr Gill did not give oral evidence at the hearing however Ms Rossow relied on Dr Gill’s written evidence in her contentions that she requires support under the Scheme for her lifetime and that she meets the early intervention requirements.[74]
[74] Applicant’s Closing Submissions at [79]; [83]; [90]; [92] and [93].
Dr Gill recommended that Ms Rossow access the National Disability Insurance Scheme as a participant on the basis of having a permanent and severe disability and that her disability needs are best met through the Scheme.
In making her recommendation Dr Gill conducted the following assessments:
·World Health Organisation Disability Assessment Schedule (WHODAS) 2.0;
·Care And Needs Scale (CANS); and
·Lower Extremity Functional Scale (LEFS).
In the WHODAS domains of communication, social interaction and mobility Ms Rossow was found to have ‘moderate difficulty’.
In her CANS result Ms Rossow scored a level of 4.3 indicating she would need ‘up to 11 hours per day’ of support, supervision and monitoring by informal supports or specialised paid carers.
In the LEFS, Ms Rossow was scored 15/80, where a lower score correlates to a greater level of disability. Dr Gill stated that Ms Rossow was unable to do certain tasks including standing for an hour, performing heavy-lifting activities around the home, walking two blocks and participating in her usual hobbies and recreational activities.
In her report Dr Gill referred to Ms Rossow’s goals of being able to:[75]
·Live independently with assistance with domestic tasks;
·Attend therapies to reduce functional decline and manage symptom severity;
·Work part-time as an educator;
·Participate in art and craft groups;
·Have an assessment for Assistive Technology (AT); and
·Improve her memory.
[75] C13, page 23.
Dr Gill considered that Ms Rossow required disability funded supports in Core, Capacity Building and Assistive Technology to meet her goals of maintaining functional capacity, managing her pain and symptoms, and maintaining her safety and independence in the home and community.
Evidence of Dr Paavi Davidson
Dr Davidson, general practitioner was Ms Rossow’s treating GP for over seven years. In December 2021 Dr Davidson completed Ms Rossow’s access request form to the Agency.[76]
[76] T Documents, T8 dated 16 December 2021.
In the access request form Dr Davidson stated that Ms Rossow had disabilities of FND and fibromyalgia and that these conditions were not degenerative in nature or likely to be relieved with treatment. Dr Davidson considered that early intervention supports were not likely to reduce Ms Rossow’s future support needs.
Dr Davidson’s evidence was that Ms Rossow had a substantially reduced functional capacity in all functional domains and required assistance in the following activities:
·For communication:
oAssistance from other persons in regard to difficulties with speech, swallowing and auditory processing;
·For social interaction:
oAssistance from others to initiate social interaction and manage sensory issues, and;
oAssessment for a wheelchair to access community;
·For mobility:
oAssistance from others to manage pain and fatigue and access community;
oAssessment for a wheelchair to access community; and
oAssessment for home modifications for safe mobilising in home.
Evidence of Dr Joshua Barton
Dr Joshua Barton, neurologist, diagnosed Ms Rossow with FND in July of 2021 and stated that she had ‘an entrenched FND diagnosis on a background of longstanding fluctuating symptoms since her 20s.’[77]
[77] T Documents, T6: Letter of Dr Barton dated 6 July 2021.
Dr Barton was thereafter consulted by Ms Rossow on a number of occasions in regard to the exacerbation of her FND symptoms following her Covid vaccinations.
In his report of 12 January 2022 Dr Barton stated that he had examined Ms Rossow and had observed her to have a stutter which was ‘variable’ with periods of normal speech.[78] Further that Ms Rossow had ‘atypical movements’ although noted that she was able to catch a cooler thrown to her.
[78] T Documents, T12: Letter of Dr Barton dated 12 January 2022.
Dr Barton considered that Ms Rossow’s symptoms were a manifestation of her FND and recommended treatment for her of ongoing physiotherapy and psychotherapy.
Evidence of Ms Jessica Hetherington
Ms Jessica Hetherington, neurological physiotherapist, first reviewed Ms Rossow on 8 February 2022.
On the same day of 8 February 2022 Ms Hetherington completed a supporting evidence form in support of Ms Rossow’s access request to the Agency.[79] In this form Ms Hetherington stated that Ms Rossow had a primary impairment of:
·severe neurological weakness in upper/lower limbs;
·severe neurological pain;
·severe neurological fatigue;
·reduced balance;
·high risk of falls;
·intermittent myoclonic jerking/spasms; and
·sensory sensitivity (including reduced tolerance to loud noise, movement and light.
[79] T Documents, T14, dated 8 February 2022.
Also that Ms Rossow had another impairment with significant impact as follows:
·functional speech difficulties;
·severe neurological fatigue;
·reduced balance;
·intermittent myoclonic jerking/spasms;
·sensory sensitivity (including reduced tolerance to loud noise, movement and light.
On 11 May 2022 Ms Hetherington wrote to Dr Davidson to confirm that Ms Rossow had attended five sessions accessed through her Enhanced Primary Care (EPC) plan. Ms Hetherington stated that Ms Rossow had been very motivated and dedicated with her therapy plan.
Ms Hetherington described the outcome of these sessions as follows:
·Ms Rossow was provided with Nordiac Walking poles to use in the community to improve her confidence with mobility. These were found to be the most suitable aid to use as they specifically improved her balance when mobilising without altering the weight shift/loading;
·Strategies were introduced to assist Ms Rossow's functional presentation (including pacing strategies); and
·Mobility and functional based-activities were completed in clinic and community.
On 1 June 2022 Ms Hetherington completed a second supporting evidence form for Ms Rossow, stating that she had attended a 30-minute weekly appointment since February 2022.[80] In regard to Ms Rossow’s functional capacity Ms Hetherington stated in both of her supporting evidence forms that Ms Rossow required assistance in all functional domains.
[80] T Documents, T1B, dated 1 June 2022.
With respect to whether Ms Rossow would benefit from early intervention supports Ms Hetherington considered it likely that, without therapy and supports Ms Rossow would have a further deterioration in her mobility and community access.
In her two supporting evidence forms Ms Hetherington referred to the findings in the report of Dr Gill of November 2021 and Dr Barton’s report of July 2021.
Evidence of Ms Tiffany Hayes
In March 2023 the Agency sent a letter of instruction to Ms Tiffany Hayes, occupational therapist, requesting a full functional capacity assessment of Ms Rossow in the context of her review application.[81]
[81] D19: Report of Ms Tiffany Hayes dated 10 May 2023, page 3.
On 21 April 2023 Ms Hayes assessed Ms Rossow at her home and prepared a written report with her findings dated 10 May 2023. Ms Hayes also provided oral evidence at the hearing.
In her report Ms Hayes stated that she has seven years’ experience in the areas of physical, cognitive, and psycho-social disabilities.[82] Also that she has worked for three years as a planner within the Agency and therefore is ‘highly competent in interpreting NDIS legislation’.
[82] D19, page 4.
Ms Hayes concluded that Ms Rossow did have a substantially reduced functional capacity in the following functional domains:
(i)Mobility - considered unable to participate effectively or completely in long-distance mobility and outdoor mobility without assistive technology;
(ii)Social interaction - considered to usually require assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in social interaction; and
(iii)Self-management - considered to usually require assistance (including physical assistance, guidance, supervision or prompting) from other people to complete self-management tasks.
With regard to mobility Ms Hayes observed that Ms Rossow: [83]
·was able to stand unsupported and fold laundry for five minutes;
·walked short distances without aids both inside and outside her home including across an uneven grass terrain;
·did not walk in a straight line due to irregular foot placement with uncoordinated upper and lower limbs;
·became significantly more unsteady as a result of the noise made by a power tool being used nearby, and was able to return to her previous level of mobility by utilising her noise-reducing earbuds;
·could drive her mobility scooter in a three-kilometre radius from her home to attend her GP, her pharmacy or to spend time outside in nature;[84]
·could remain in a seated position for around 30 minutes;[85]
·was able to confidently use the two front steps to access her home using her hiking poles; and
·transferred independently on and off a chair and her bed.
[83] D19, pages 12-16.
[84] D19, page 9.
[85] D19, pages 5 and 12.
With respect to social interaction, Ms Hayes considered that fatigue and pain were particularly found to impact the frequency in which Ms Rossow can engage in social interactions and restrict her ability to access the community to engage in social participation through an inability to drive or regularly operate her scooter. Ms Rossow reported that she was limited in telephoning friends because of her ‘need to be mindful of her speech clarity’.[86]
[86] D19, page 10.
With respect to self-management, Ms Hayes reported that Ms Rossow was able to independently plan and structure her day, make simple decisions, remember to attend appointments, manage her finances, manage her medications and manage her sleep routine.[87] However Ms Hayes considered that due to pain, fatigue, a functional movement disorder and irregular dissociative events Ms Rossow’s safety was impacted in undertaking self-management activities of food preparation, cleaning and yard maintenance.
[87] D19, pages 22-24.
Ms Hayes was satisfied that Ms Rossow did not have a substantially reduced functional capacity for communication on the basis that, over the course of the three-hour assessment there were minimal times when she required Ms Rossow to repeat herself.
Ms Hayes’ oral evidence
At the hearing Ms Hayes was asked to confirm if her opinion as set out in her report remained true and correct to the best of her knowledge and belief.[88]
[88] Transcript, page 64 lines 7-8.
Ms Hayes stated that since her report of May 2023 she had read a public document released by the Tribunal which contained information that led her to question whether she agreed with her previous statement, that Ms Rossow met the substantial impairment threshold within three domains.[89]
[89] Transcript, page 64 lines 8-13.
This document was the Tribunal decision of Madelaine and NDIA [2020] AATA 4025 (Madelaine).
Ms Hayes restated her observations made of Ms Rossow in her functional capacity assessment in respect of activities that Ms Rossow could do and not do and confirmed that these remained the same as in her report.[90]
[90] Transcript, page 69 lines 22-25.
However Ms Hayes’ evidence in regard to Ms Rossow’s functional capacity was that she no longer was of the opinion that Ms Rossow had a substantial reduction in any of the domains at section 24(1)(c) of the NDIS Act.
Ms Hayes considered that, in light of reading Madelaine and also the Agency’s operational guidelines that she had perhaps not applied the right criteria in forming her opinion with respect to Ms Rossow’s functional capacity in the activities of mobility, social-interaction, and self-management.
Ms Hayes’ assessment of Ms Rossow’s functional capacity at the hearing was as follows:
(i)Mobility – she considered whether Ms Rossow was able to move about in shops or a park once she had reached them, rather than if she could move about in the community for the purpose of accessing services;[91]
(ii)Social interaction – she considered Ms Rossow’s personal skills for social interaction as well as opportunities to exercise those skills. In her report she had relied on her understanding of the barriers Ms Rossow faced in accessing the community to engage in social interactions;[92] and
(iii)Self-management – she considered Ms Rossow’s mental and cognitive ability to manage her life, rather than solely focus on her physical ability to undertake self-management tasks.[93]
[91] Transcript, page 65 lines 11-20.
[92] Transcript, page 65 lines 29-38.
[93] Transcript, page 76 lines 28-47.
During cross-examination Ms Hayes stated that the significance and relationship between Madelaine and Ms Rossow’s application was that Madelaine provided further qualification on how to interpret the definition of the functional domains of mobility, social interaction and self-management.
Ms Hayes confirmed that Madelaine had provided further clarification to her in interpreting the access rules. She maintained that she was ‘purely speaking as an occupational therapist, however in reading some public material it’s just helped shape and form my opinion.’[94]
[94] Transcript, page 76 lines 36-38.
Evidence of Dr Jules Begg, psychiatrist
In December 2023 Dr Jules Begg conducted an assessment via video of Ms Rossow at the request of the Agency to assess Ms Rossow with respect to her conditions of MDD and PTSD, and produced a subsequent report dated 14 December 2023.[95]
[95] D20: Report of Dr Jules Begg dated 14 December 2023.
Dr Begg stated in his report that Ms Rossow had a lifelong history of PTSD with episodes of depression becoming more evident and increasing exacerbations of PTSD over the past 11 years.
During his assessment Dr Begg observed that Ms Rossow:
·spoke slowly with a mild stutter she was able to hold back;
·was able to concentrate well and give a good history with clarity;
·remained seated throughout the length of the interview; and
·was alert and oriented and did not get confused.
Dr Begg further observed that Ms Rossow predominantly expressed her psychological distress in somatic manners such as functional neurological disorder, which he considered to be due to a failure to correctly separate mind and body symptoms.
Dr Begg explained that somatisation is the mechanism by which mental symptoms are expressed physically. Therefore, when Ms Rossow experiences physical symptoms arising due to a physical pathological process, symptoms such as pain will manifest and result in physical treatments.
In considering whether a relationship existed between Ms Rossow’s conditions of MDD and PTSD, and FND and fibromyalgia, Dr Begg stated that he conceptualised Ms Rossow as ‘having a basic deficit in personality development that gives rise to her conversion disorder (FND), PTSD and associated major depressive disorder and fibromyalgia.’
Dr Begg recommended cognitive behavioural and meditation techniques for Ms Rossow stating that even where there are physical symptoms that ‘the focus should be on psychological treatments.’
CONSIDERATION
I am satisfied that Ms Rossow has conveyed a comprehensive picture of her lived experience and clearly expressed her contentions. Ms Rossow’s evidence demonstrates that she lives with impairments which have affected her quality of life. I consider that Ms Rossow and her son Mr Rossow gave truthful and reliable evidence.
In considering the evidence of Ms Hayes I note that Ms Hayes had the opportunity to assess Ms Rossow in person. I also consider her to be suitably qualified to have assessed Ms Rossow in her capacity as an occupational therapist and to subsequently report accurate observations of Ms Rossow in undertaking functional movements and activities.
However Ms Hayes was not provided any materials regarding the case of Madelaine in her instructions by the Agency and, whilst this case is publicly available Ms Hayes referred to a ‘document/report’ that was not produced to the Tribunal.
I refer to the Tribunal guidelines[96] at 4.7 as follows:
If a person who has prepared a report:
a) becomes aware of a material error or omission relating to a factual matter in a report; or
(b) changes his or her opinion on a material matter for any reason;
the party who engaged the person must be notified of this in writing. If the report has been, or is subsequently, lodged with the AAT then the party must notify the AAT and the other party or parties of the material error or omission or the change in opinion without delay.
[96] AAT Guideline: Persons giving expert and opinion evidence; aat.gov.au
It is not clear when Ms Hayes changed her opinion regarding Ms Rossow’s functional capacity. The Agency did however provide a copy of the case of Madelaine to Ms Rossow at the hearing and I am satisfied that Ms Rossow has been afforded sufficient opportunity to respond to Ms Hayes’ oral evidence and indeed did so in her closing submissions.[97]
[97] The Applicant’s Closing Submissions were filed on 19 April 2024, four weeks after the hearing.
I consider Ms Hayes’ observations of Ms Rossow in her home, which Ms Hayes has maintained in both her report and oral evidence of greater assistance to the Tribunal, as contrasted to Dr Gill’s functional capacity assessment which was conducted online and some 19 months earlier in time.
I acknowledge that Ms Rossow has made submissions disputing several observations made by Ms Hayes in her documented response, oral evidence and closing submissions.[98]
[98] Applicant’s Closing Submissions at [9](i).
I do not consider Ms Hayes’ conclusions of Ms Rossow’s functional capacity with regard to the NDIS Rules and relevant case law, in written or oral evidence, of particular assistance to the Tribunal.
Section 24(1): the disability requirements
I accept that Ms Rossow has both physical and psychosocial impairments arising from her conditions. I consider the evidence of Dr Begg and find that her impairments, in combination lead to symptoms of:
·Functional seizures;
·Pain;
·Fatigue;
·Decrease in muscular endurance;
·Issues with fine and gross motor difficulties;
·Neurological pain;
·Myoclonic jerks;
·Bladder and bowel urge incontinence;
·Vomiting;
·Anxiety;
·Sensory sensitivities;
·Problems with concentration and focus; and
·Brain fog.
Section 24(1)(a) of the NDIS Act is satisfied.
I am satisfied that the impairments experienced by Ms Rossow have an enduring quality[99] and that there are no known, available, and appropriate evidence based clinical, medical or other treatments that would be likely to remedy Ms Rossow’s impairments.[100]
[99] National Disability Insurance Agency v Davis [2022] FCA 1002 (Davis).
[100] Davis at [137]-[139].
Section 24(1)(b) of the NDIS Act is satisfied.
Section 24(1)(c): the functional domains
Consideration of whether Ms Rossow has a substantially reduced functional capacity in any of the functional domains[101] requires regard to rule 5.8 which explains the threshold of ‘substantially reduced’.[102]
[101] Ms Rossow contends she satisfies s24(1)(c)(i), (ii) and (iv)
[102] See [18] above.
On application of rule 5.8 the question of Ms Rossow’s functional capacity for the purposes of section 24(1)(c) is whether she requires assistive technology, equipment (other than commonly used items), home modifications or assistance from other persons as described in rule 5.8(a), (b) and (c).
Mobility
The access guidelines describe mobility as:
how easily you move around your home and community, and how you get in and out of bed or a chair...how you get out and about and use your arms or legs.
In Madelaine the Tribunal described the threshold requirement for mobility as:[103]
‘relatively modest. A person has functional capacity if they can move about their home, get in and out of a bed or a chair and mobilise in the community…implicit in this concept is that the distances involved will be relatively short. And whether a person can move about in shops or a park once they have reached them, say by car or public transport.’
[103] Madelaine at [104].
Ms Rossow explained that she can mobilise with assistance by using:
·walls and furniture, to move around her home;
·hiking poles, to walk outside up to two kilometres and to navigate steps;
·a manual wheelchair pushed by her son, for longer distances;
·her son, to drive her to shops;
·an electric scooter;
·an over-toilet seat; and
·noise-reducing earbuds.
Ms Rossow was provided her hiking poles around May 2022 on recommendation by Ms Hetherington ‘to improve her confidence in mobility’.[104] Ms Rossow described the benefit of using the hiking poles as primarily to assist her balance and prevent her arms from going ‘everywhere’. Ms Rossow used these hiking poles to mobilise in and out of the hearing room.
[104] B6: Report of Ms Hetherington dated 11 May 2022, page 1.
In 2022 Ms Rossow purchased a second-hand mobility scooter which she reported using once to twice a week to travel the 300-metre distance to her local pharmacy and GP.[105] Ms Rossow also gave evidence that she has often and also recently transported her grandson to her local park on the mobility scooter.
[105] D19, page 8.
Also in 2022 Ms Rossow purchased a second-hand manual wheelchair. Ms Rossow’s evidence was that the manual wheelchair is seldom used. Ms Rossow did use the wheelchair in January 2023 when she holidayed in Sydney with her son.[106]
[106] D19, page 9.
With regard to whether Ms Rossow is able to participate ‘completely or effectively’ in a functional domain clause 8.3.1 of the access guideline states:
A person will be considered to be unable to participate effectively or completely in an activity if they cannot safely complete one or more of the tasks required to participate in an acceptable period of time.
Ms Rossow gave evidence that she has experienced falls in her garden when not using her hiking poles or any other walking aid.[107] I consider that, without using her hiking poles Ms Rossow is unable to participate ‘effectively or completely’ and safely mobilise in tasks of mobility including walking and using stairs.
[107] Transcript, page 18 lines 16-26.
I further consider that to assist in her safe and independent mobility Ms Rossow requires noise-reducing earbuds to walk around the shopping centre and inside a supermarket, and also an requires an over-toilet seat to perform transfers.
I do not consider that Ms Rossow requires her mobility scooter and wheelchair for mobility and refer to Madelaine as follows:[108]
‘To define mobility by the ability to reach local services would be to make it a function of where one lived. A better application of the concept is to ask whether a person can move about in shops or a park once they have reached them, say by car or public transport.’
[108] At [105].
The evidence is that Ms Rossow is able to access shops, her GP and local park by mobility scooter or be driven by her son or a support worker. She will then use her hiking poles to mobilise around these areas including walking around the shops and the park.
In regard to Ms Rossow’s hiking poles, noise-reducing earbuds and over-toilet seat I am satisfied that these are all ‘commonly used items’ for the purpose of rule 5.8 of the NDIS Rules. I refer to the access guidelines and the indicia noted in Rooney and NDIA [2021] AATA 3523 and note the following:[109]
·the items are all easily accessible without any referral from a health practitioner;[110]
·the items do not require Ms Rossow to have any ‘particular customisation or prescription’;[111]
·Ms Rossow’s commonly used items are relatively simple to use;[112] and
·Ms Rossow’s items were purchased commercially and were relatively inexpensive.[113]
[109] At [27]; See also clause 8.3 access guidelines – ‘other examples of commonly used items’.
[110] D19, page 34; See also Coventry and National Disability Insurance Agency [2024] AATA 259 at [107]-[109].
[111] D19, page 34; Galea and National Disability Insurance Agency [2022] AATA 2263 at [91]
[112] D19, page 35.
[113] Power and National Disability Insurance Agency [2023] AATA 3357 at [47] and [71].
Ms Rossow gave evidence that she uses her hiking poles, noise-reducing earbuds and over-toilet seat to help her with tasks of daily living in such a way that she can perform these tasks on her own, even though she may do the tasks in a slower or modified manner because of her involuntary movements and fatigue.
The access guidelines state that:
undertaking a task more slowly or differently to others will not necessarily mean a person cannot participate effectively or completely in an activity.
Ms Rossow’s functional capacity to undertake activities of mobility in the context of what she can or cannot do, demonstrates that despite some limitations she is still able to independently undertake daily living activities with the assistance of commonly used items.
Ms Rossow does not have a substantially reduced functional capacity for mobility.
Social interaction
The access guidelines describe social interaction as:
how you make and keep friends or interact with the community. We also look at your behaviour, and how you cope with feelings and emotions in social situations.
As was identified in Madelaine, socialisation is ‘about personal skills needed for social interaction, and only marginally about opportunities to exercise those skills.’[114]
[114] Respondent’s Closing Submissions at [70]; Madelaine at [87].
Ms Rossow’s evidence at the hearing was that she is able to:
·participate in research projects in regard to FND;
·participate in FND support group meetings;
·converse with other attendees at the support group about FND research and other matters;
·communicate with her friends and family including via phone, video call and social media;[115] and
·maintain friendships with people including regular phone contact with friends from her previous residential areas.[116]
[115] D19, page 37.
[116] Applicant’s Submissions - Aged Care, page 2.
During the hearing Ms Rossow was supported by her friend being in attendance both days.
In closing submissions Ms Rossow qualified that she has only attended three FND meetings in the almost 14 months of residing in the Brisbane area, simply due to her inability to function effectively on the day. This inability in these cases has been both from a mobility and social interaction perspective.[117]
[117] At [53].
Further, that there are days she is able to participate in social interaction but this is not the common occurrence for her anymore. Most days consist of limited social interaction ‘to rest and recuperate’.[118] Ms Rossow has identified that her chronic pain disrupts her life to the greatest degree within the domain of social activity.[119]
[118] Applicant’s Closing Submissions at [55].
[119] D19, page 10.
I accept that Ms Rossow has experienced a limited ability to interact and make friends in her community due to pain and fatigue preventing her, at times, to access such opportunities. I note Ms Rossow’s evidence that when her son is unable to take her into the community she organises a driver, or if feeling able to, does so via her large mobility scooter.[120]
[120] Applicant’s Closing Submissions at [41].
I refer to Ms Rossow’s oral evidence that she requires assistance as follows:
‘to have support person to enable me to access and participate more effectively in the community and get to meet people and engage in creative pursuits.’[121]
[121] Transcript, page 54 lines 34-35.
I consider that Ms Rossow’s limited ability to socialise is primarily in respect of access to opportunities where she can exercise her skills of social interaction. I am satisfied on Ms Rossow’s own evidence that she is able to access such opportunities on a regular basis.
I am satisfied that Ms Rossow is able to exercise skills of social interaction and has demonstrated these skills independently with her treating practitioners, in her functional capacity assessments and in her oral evidence before the Tribunal.
Ms Rossow does not have a substantially reduced functional capacity in respect of the activity of social interaction.
Communication
The access guidelines describe the activity of communication as:
how you speak, write, or use sign language and gestures, to express yourself compared to other people your age. We also look at how well you understand people, and how others understand you.
At the hearing Ms Rossow stated:[122]
‘I need speech therapy by someone who knows how to deal with neurological issues.’
[122] Transcript, page 55 lines 7-8.
Dr Gill’s evidence was that Ms Rossow experiences ‘significant difficulties with communication’ and referred to Ms Rossow’s score of 50% in the WHODAS-2 assessment.[123] Dr Gill stated:
Deborah requires weekly 1 hour Speech Therapy intervention to assist with speech intelligibility, word finding, dysphagia and stuttering.
[123] C13, page 77 lines 34-35
Ms Rossow’s evidence is that she is not able to consistently or effectively communicate as she is often suffering from brain fog and memory loss which are commonly attributed to her FND and fibromyalgia.[124]
[124] Applicant’s Closing Submissions at [58].
Also, that during her ‘microseizures’ she is able to hear people but cannot speak. These seizures are reported to last between 20-40 seconds and also one to two minutes.[125]
[125] B6: COVID 19 Adverse Event Following Immunisation Reporting Form, page 3; T Documents, T12.
At the hearing Ms Rossow explained: ‘It’s very difficult for me today. I’m having difficulties understanding and thinking and speaking’.[126]
[126] Transcript, page 32 lines 14-16.
I observed that Ms Rossow spoke at a slower pace. Ms Rossow’s speech did at times become stuttered and slurred. I accept that Ms Rossow experienced some difficulties speaking during the hearing and, at these times, requested assistance from her son. Ms Rossow’s determination and perseverance despite these difficulties was commendable.
Ms Rossow answered questions appropriately and independently at the hearing and also asked her own well-formulated questions. Despite some requests for her to repeat what was said I was always able to understand Ms Rossow’s contentions in a cogent manner.
I consider the evidence of Ms Rossow’s participation in other activities of communication and accept that she is able to:
·communicate in both verbal and written formats;
·speak in a way that she can be understood by other people;
·speak in full sentences;
·speak in person, on the telephone and via the internet with others;
·logically form and express her opinion and preferences as evidenced at the hearing in her responses to questions, cross-examination of a witness and in various typed documents that she prepared;
·use devices to type, send and receive emails;
·communicate with health practitioners and other service providers in relation to medical or other issues;[127]
·participate in online surveys and studies regarding FND; and
·articulate her interest in research and studies around FND.
[127] Transcript, page 55 lines 15-17.
The question of Ms Rossow’s functional capcaity is therefore whether Ms Rossow usually requires assistance from other people to participate in the activity or to perform tasks or actions required to undertake or participate in the activity of communication.[128]
[128] Rule 5.8(b) NDIS Rules.
I consider that Ms Rossow’s evidence that she is sometimes assisted in her written communication by Mr Rossow. When completing FND surveys and studies she will ‘try to do things on my own and then I ask for Lee to check or to, if I cannot find the words or I’m not understanding, to give me support’.[129]
[129] Transcript, page 35, 6-8.
Also, that she will ‘have a go at the reading and the writing on things a little bit each day and when Lee texts for me or sometimes I speak, and he types it for me’.[130]
[130] Transcript, page 50 lines 26-31.
Ms Rossow reported that when selling and buying her home she provided written consent to her lawyer to formally engage Mr Rossow to ‘manage the process’, enabling him to speak and sign on her behalf.[131]
[131] D19, page 23.
I accept that Ms Rossow requires some assistance from Mr Rossow with typing her speech, finding words and managing documentation. I am not however satisfied that Ms Rossow usually requires assistance, from her son or other persons, to participate in activities of communication including speaking, expressing herself and being understood.
Ms Rossow does not have a substantially reduced functional capacity in respect to the activity of communication.
In finding that section 24(1)(c) of the NDIS Act is not satisfied I am not required to consider the remaining criteria under section 24(1)(d) and (e).
Section 25: the Early Intervention requirements
Section 25(1)(b): will the provision of early intervention supports be likely to benefit Ms Rossow by reducing her future needs for supports in relation to disability
Ms Rossow’s evidence is that with the provision of services available through the NDIS she will be able to reduce her future needs for support in relation to her disabilities.[132]
[132] Applicant’s Closing Submissions at [82].
Ms Rossow relies on the evidence of Dr Gill’s ‘early intervention strategies’[133] and references Dr Gill’s report under the heading ‘Recommended Funding’, where Dr Gill had listed support items for Ms Rossow including regular and ongoing interventions to build her capacity and reduce functional decline.[134]
[133] Applicant’s Closing Submissions at [79].
[134] C13, pages 24-27.
Ms Rossow also stated that she relied on Ms Hayes’ report in regard to recommendations Ms Hayes was asked to make in regard to other treatments, supports or intervention likely to increase Ms Rossow’s capacity. Ms Hayes stated:
‘Neurophysiotherapy, occupational therapy and psychology interventions may increase Ms Rossow’s functional capacity across mobility, social interaction, self-care, self-management and learning.
Speech Pathology and psychology intervention may increase Ms Rossow’s functional capacity for communication. Neurologist Dr Barton reported on 12 January 2022, ‘the treatment is ongoing physiotherapy and psychotherapy’ (T12).
…It is noted that Ms Rossow was diagnosed with FND in July 2021 (T6) and has received multidisciplinary interventions over the 21 months since her diagnosis. It is unclear if Ms Rossow is making functional gains from the therapies she has been attending.’
The Agency submits that Ms Rossow’s impairments are long-standing in nature and have been the subject of various medical and therapeutic treatments without great effect, and relies on the decision of Nika which stated:[135]
'The Tribunal accepts the Agency's submission that any support needs the Applicant has are likely to increase and therefore does not consider that the criteria set out section 25(1)(b) are met’.
[135] At [300].
Section 25(1)(b) is a question of whether early intervention supports will likely decrease the person’s future support needs. I do not consider the correct application of section 25(1)(b) to be whether a person’s current support needs are likely to increase or not.
The preclusion of an applicant under section 25(1)(b) on the basis of a general finding that their support needs will increase over time disregards the very nature of an ‘intervention’ support. An intervention support that will reduce the amount of increase of support a person requires in the future would still reduce the overall future level of support required when compared to the level of support they would have required without such intervention.
Logically it follows that I compare Ms Rossow’s likely support needs in the future, both with and without early interventions, and then consider if early interventions would result in an ongoing reduction in the level of supports likely required.
With regard to the relevant access rules at [20] above I must also consider the following:
(a)the likely trajectory and impact of Ms Rossow's impairment over time;
(b)the potential benefits of early intervention on the impact of the impairment on Ms Rossow's functional capacity and in reducing her future needs for supports; and
(c)evidence from a range of sources, such as information provided by Ms Rossow or her family members or carers.
Ms Rossow’s evidence is that her FND symptoms exacerbated in late 2021 as a result of adverse reactions to her Covid vaccinations.[136] The observations of her friend, Carmen Wyld, are consistent with this exacerbation.[137]
[136] B6: COVID 19 Adverse Event Following Immunisation Reporting Form, page 2.
[137] C16: Letter of support from Ms Carmen Wyld dated 23 October 2022.
Ms Rossow also refers to her ‘functional decline’ and relies on the evidence of Dr Gill as follows:[138]
‘Deborah’s condition has persisted despite engaging in treatment and will continue to cause ongoing functional decline. There is no treatment that will assist to alleviate the functional impacts of Deborah’s disability. Deborah will require ongoing therapies to prevent worsening functional decline.’
[138] C13, page 5.
Dr Barton stated that Ms Rossow ‘has seen Katherine Gill, FND OT and has a 2-month period of outpatient rehabilitation with minimal improvement following her review last year.’[139]
[139] T Documents, T12, page 98.
The evidence of Dr Begg is that Ms Rossow has experienced increasing exacerbations of PTSD since losing her husband 11 years ago.[140] Further, that her impairments due to MDD and PTSD are more psychological, rather than physical, and as such would not normally require special intervention, other than continued supportive treatment.[141]
[140] D20, pages 5 and 7.
[141] D20, page 9.
I accept that Ms Rossow will require ongoing supports for her permanent impairments. I also accept that Ms Rossow’s condition has persisted despite engaging in treatment and that no treatment will improve her conditions such that they can be considered to have a positive trajectory.
As to whether Ms Rossow’s conditions will have a negative trajectory I refer to the evidence of Dr Davidson, Ms Rossow’s treating GP of seven years when she stated that Ms Rossow does not have a degenerative condition.[142] Dr Davidson also considered that there were no early intervention supports that would be likely to reduce Ms Rossow’s future support needs.[143]
[142] T Documents, T8, page 73.
[143] T Documents, T8, page 75.
On the evidence it cannot be said that Ms Rossow’s functional capacity is likely to improve or deteriorate. I consider it uncontested that she will require ongoing support for her disability. I also consider that there are no early intervention supports that would reduce the ongoing level of supports that she would require in the future.
Ms Rossow does not satisfy section 25(1)(b) of the NDIS Act.
On the basis that I am not satisfied that Ms Rossow meets the requirements of section 25(1)(b) the remaining criteria under section 25 are not enlivened.
Ms Rossow therefore does not meet the disability requirements under section 24 and the early intervention requirements under section 25 of the NDIS Act.
Pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision under review.
I certify that the preceding 174 (one-hundred and seventy-four) paragraphs are a true copy of the reasons for the decision herein of Member S Smith
.............................[SGD]............................
Associate8 May 2024
Dates of hearing:
20 and 21 March 2024
Date final submissions received:
24 April 2024
Applicant:
Advocate for Applicant:
Ms Deborah Rossow
Mr Lee Rossow
Counsel for Respondent:
Ms Genevieve Yates
Solicitor for Respondent:
Ms Esther Chen
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