Settle and National Disability Insurance Agency

Settle and National Disability Insurance Agency [2024] AATA 1343 (3 June 2024)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number: 2021/9786
Re:Kim Settle
APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION
Tribunal:Member S Smith
Date:3 June 2024
Place:Brisbane

Pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision under review not to grant the applicant access to the National Disability Insurance Scheme on the basis that the applicant does not meet either the ‘disability requirements’ under section 24 or the ‘early intervention requirements’ under section 25 of the National Disability Insurance Scheme Act 2013 (Cth).
........................[SGD].........................
Member S Smith
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – request for access – chronic fatigue syndrome - fibromyalgia – irritable bowel syndrome – chemical sensitivity - whether the effects of an impairment are permanent - whether there are known, available and appropriate treatments likely to remedy an impairment – available treatment - whether further investigations are required to determine permanency of impairments – degree of severity and permanency of impairments – 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 2016
Cases
Mulligan v National Disability Insurance Agency [2015] FCA 544
National Disability Insurance Agency v Davis [2022] FCA 1002
National Disability Insurance Scheme v Foster [2023] FCAFC 11
Re Schwass and National Disability Insurance Agency [2019] AATA 28
Secondary Materials
National Disability Insurance Scheme - Operational Guidelines – Access (updated 01 February 2024)
REASONS FOR DECISION
Member S Smith
3 June 2024
INTRODUCTION

Ms Kim Settle is 59 years old and resides in North Queensland. She lives with her elderly mother, aged 86 years who is her primary informal carer. She is currently a performing musician and has previously worked as a teacher of physical education.
In 1996 while working at a primary school Ms Settle was exposed to chemicals from carpet glue[1] and she thereafter began to experience debilitating physical symptoms.[2]
[1] T Documents: T14: Letter of Dr Stacey Waugh dated 20 May 2021, page 49.
[2] T Documents, T18: Statement of Ms Settle, undated, page 66.
In 2009 Ms Settle ceased employment as a teacher and came into receipt of the Disability Support Pension.[3]
[3] T Documents, T4: Letter, Principal Claims Manager dated 27 July 2009.
On 6 July 2021 Ms Settle made a verbal access request to the National Disability Insurance Agency (the Agency) for access to the National Disability Insurance Scheme (the scheme).[4]
[4] Email from the Agency to the Tribunal dated 13 May 2024.
On 17 August 2021 the Agency refused Ms Settle access on the basis that she was unable to meet the statutory access criteria. Ms Settle subsequently applied for an internal review of that decision.[5]
[5] T Documents, T16: Interaction Notes dated 8 October 2021.
On 22 November 2021 Ms Settle was notified that, under section 100(6) of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) the Agency affirmed its earlier decision to refuse access (the decision under review).[6]
[6] T Documents, T2: Outcome of Internal Review Decision dated 22 November 2021.
On 16 December 2021 Ms Settle applied for review of the decision under review to the Administrative Appeals Tribunal (the Tribunal).[7]
[7] T Documents, T1: AAT Application for Review of Decision dated 16 December 2021.
By consent of the parties this matter was heard on the papers pursuant to section 34J of the Administrative Appeals Tribunal Act 1975 (Cth).
For the reasons set out below the Tribunal affirms the decision under review.
ISSUES BEFORE THE TRIBUNAL
To be granted access to the scheme Ms Settle must satisfy the prescribed statutory criteria of either:
·the disability requirement under section 24 of the NDIS Act; [8] or
·the early intervention requirement under section 25 of the NDIS Act. [9]
[8] Section 24 NDIS Act.
[9] Section 25 NDIS Act.
Ms Settle’s evidence is that:
·she has conditions of chronic fatigue syndrome (CFS), fibromyalgia, irritable bowel syndrome (IBS), chemical sensitivity, Graves’ disease and hyperthyroidism (section 24(1)(a));[10]
·these conditions are permanent because she has exhausted all treatment options available and recommended to her (section 24(1)(b)); and
·as a consequence of her conditions she experiences difficulties undertaking activities across all functional domains (section 24(1)(c)).
[10] T Documents, T18, pages 66 and 68.
The Agency is satisfied that Ms Settle has conditions of CFS, fibromyalgia, IBS, Graves’ disease, hyperthyroidism and chemical sensitivity, and that these conditions result in:
(a)physical impairments of:
(i)fatigue;
(ii)pain affecting her stomach, left arm, lower back and chest;
(iii)dizziness;
(iv)impaired mobility characterised by a tendency to walk in a slow and cautious manner;
(v)high sensitivity to smells; and
(vi)reduced tolerance of temperature extremes;
(b)and also cognitive impairments of:
(i)brain fog; and
(ii)reduced concentration.
The Agency is also satisfied that there are no further treatments likely to remedy Ms Settle’s impairments and therefore that Ms Settle’s disability, as a consequence of these impairments is permanent within the meaning of section 24(1)(b) of the NDIS Act.
The Agency is not satisfied that these impairments result in a substantial reduction in Ms Settle’s functional capacity in any of the six functional domains at section 24(1)(c)(i)-(vi) and Ms Settle therefore is unable to meet the disability requirements.
Also, that Ms Settle does not satisfy the criteria under section 25(1)(b) and (c) and therefore does not meet the early intervention requirements.
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;
(iii)is a child who has developmentaldelay; and
(b)the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person's future needs for supports in relation to disability; and
(c)the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by:
(i)mitigating or alleviating the impact of the person's impairment upon the functional capacity of the person to undertake communication, social interaction, learning, mobility, self-care or self-management; or;
(ii)preventing the deterioration of such functional capacity; or
(iii)improving such functional capacity; or
(iv)strengthening the sustainability of informal supports available to the person, including through building the capacity of the person's carer.
Likewise, the requirements of section 25 of the NDIS Act are cumulative and all criteria must be met.
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 are rules 5.4 to 5.7 of the access rules which provides as follows:
When is an impairment permanent or likely to be permanent for the disability requirements?
5.4 An impairment is, or is likely to be, permanent (see paragraph 5.1(b)) only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.
5.5 An impairment may be permanent notwithstanding that the severity of its impact on the functional capacity of the person may fluctuate or there are prospects that the severity of the impact of the impairment on the person's functional capacity, including their psychosocial functioning, may improve.
5.6 An impairment may require medical treatment and review before a determination can be made about whether the impairment is permanent or likely to be permanent. The impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated (even though the impairment may continue to be treated and reviewed after this has been demonstrated).
5.7 If an impairment is of a degenerative nature, the impairment is, or is likely to be, permanent if medical or other treatment would not, or would be unlikely to, improve the condition.
The Agency also issues operational guidelines in relation to dealing with the assessment of whether Ms Settle meets the disability or the early intervention requirements. The relevant guidelines in this review are the Operational guidelines - Applying to the NDIS (the access guidelines).[11]
[11] Ourguidelines.ndis.gov.au: Applying to the NDIS.
In the context of whether an impairment is ‘permanent’ paragraph 8.2 of the access guidelines states:
‘…where there is a possibility of medical treatment to treat the prospective participant’s condition, and the treatment has some prospect of success, the NDIA should not conclude the impairment is permanent but should wait until the outcome of the treatment is known.’
There is no legislative power conferred by the NDIS Act to make operational guidelines, and they are issued in an exercise of executive power.[12] 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.[13]
[12] G v Minister for Home Affairs [2019] FCAFC 79 at [18].
[13] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] 24 ALR 577 at [590].
There is further guidance that the Tribunal is not bound by policy in Mulligan where Mortimer J held:[14]
‘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 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 Settle satisfies the disability requirements or the early intervention requirements.
The question of whether Ms Settle 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’[15] and be positively satisfied[16] that Ms Settle meets either the disability requirements, or the early intervention requirements.
EVIDENCE
[15] National Disability Insurance Agency v Davis [2022] FCA 1002 (Davis) at [42].
[16] Mulligan at [55]; also cited in Re Schwass and NDIA [2019] AATA at [29] and Davis [at 61].
Dr Stephen Rudolphy
Ms Settle stated that Dr Stephen Rudolphy initially diagnosed with her with IBS in 1999, CFS in 2006 and then fibromyalgia in 2009. The reports or letters produced by Dr Rudolphy have not been provided to the Tribunal and are only referred to in other evidence.[17]
[17] T Documents, T3: Dr Parkes reviewed two letters of Dr Rudolphy dated 1 May 1997 and 1 June 1997; also two reports of Dr Rudolphy dated 1 July 2006 and 24 April 2009. T7: Dr Sue Cory stated that CFS was diagnosed in 1999 by Dr Rudolphy.
Other evidence was tendered by Ms Settle that has referred to Dr Rudolphy’s letters and reports although state that Dr Rudolphy diagnosed Ms Settle with CFS in 1999 and fibromyalgia in 2009.
Dr Robert Parkes
On 18 June 2009 Dr Robert Parkes, general physician assessed Ms Settle in person and produced a report dated 3 July 2009 for the purpose of providing an independent opinion of Ms Settle’s capacity to return to work in the context of her insurance claim arising from her workplace injury.[18]
[18] T Documents, T3: Report of Dr Robert Parkes dated 3 July 2009.
Dr Parkes did not personally examine Ms Settle, in particular because he was satisfied that she had already undergone careful assessment by a number of general and specialist practitioners. Based on his interview Dr Parkes considered that the main condition preventing Ms Settle from working was a combination of CFS and fibromyalgia.
Ms Settle reported principal symptoms of pain ‘all over’, feelings of pins and needles in the body and particularly on exertion, extreme fatigue, abdominal pain with episodic bloating and diarrhoea, infertility coupled with dysmenorrhoea, episodic pounding headaches with hypersensitivity to light and noise consistent with migraine, a feeling of burning in her retrosternal area associated with cough, nocturia, a feeling of discomfort in her right lower chest described as being ‘like fluid in my lungs’, undue sensitivity to inhalants in particular tobacco smoke and perfume and significant exhaustion.
Dr Parkes’ conclusion was that Ms Settle has been exposed to xylene and isocyanates, two chemicals present in carpet glue and both of which may cause asthma. He stated that Ms Settle had gone on to develop a ‘constellation of symptoms’ of IBS, migraine, fibromyalgia, CFS and hypersensitivity to environmental chemicals including tobacco and perfume.
Dr Parkes provided a diagnosis of central sensitisation syndrome which was explained as a group of conditions where patients have physical and emotional symptoms that are disabling but physical signs are lacking.
He confirmed that there was no specific diagnostic test for CFS, fibromyalgia, migraine, IBS, primary dysmenorrhoea, chemical sensitivity or Ms Settle’s symptoms. Dr Parkes’ opinion was that Ms Settle continued to suffer from pain on mild exertion, pins and needles on exertion, extreme fatigue associated with sleep disturbance, daily headaches, loss of concentration and abdominal bloating.
With regard to treatment options that may increase Ms Settle’s likelihood of returning to work capacity Dr Parkes stated that Ms Settle’s current care plan was ‘exemplary’ and appropriate to her needs.
Dr Parkes recommended that Ms Settle undergo ‘basic investigations’, stating that consideration must be given of unifying diagnoses that may cause coexistent fatigue. These included celiac disease, iron deficiency, hypercoagulable state and vitamin and other nutritional disorders.
Also recommended was a repeat chest x-ray and consideration of chronic infections that may cause fatigue including hepatitis and retroviruses.
Dr Parkes also considered that a further attempt at evidence-based therapy may be appropriate and recommended a three-month session of rehabilitation, analgesia and CBT and exercise training supervised by an exercise physiologist.
Dr Sue Cory, general practitioner (GP)
In October 2013, Dr Sue Cory, GP, wrote a letter comprising a list of Ms Settle’s medical conditions.[19] Dr Cory stated that she had been Ms Settle’s GP for 2.5 years and that Ms Settle had 17 medical conditions including:
·chemical sensitivity;
·CFS;
·fibromyalgia;
·celiac; and
·Graves’ disease.
[19] T Documents, T7: Letter of Dr Sue Cory dated 8 October 2013.
The Cairns Hospital
Ms Settle consulted the Cairns Hospital between 2012 and 2016 for investigation of her long-term abdominal pain. In 2012 Ms Settle was referred by Dr Cory for an endoscopy and colonoscopy where reports confirmed tubular adenoma with low grade dysplasia and some gastric polyps were found, and that results were otherwise normal.[20]
[20] T Documents, T5: Report of Dr Martin Bridge, dated 28 June 2012; T6: Report of Dr Martin Bridge, dated 28 June 2012.
In August 2015 Dr Rudoplhy referred Ms Settle to the Cairns Hospital Gastroenterology Clinic for chronic abdominal pain. Dr Montri Guraratbakul, gastroenterology advanced trainee, stated that Ms Settle’s abdominal pain ‘most likely sounds like functional irritable bowel syndrome to us’. Ms Settle was referred to the dietician for treatment of her abdominal symptoms.[21]
[21] T Documents, T8, Gastroenterology letter dated 11 August 2015.
Ms Kimberley Dutkowski, dietician confirmed a medical history/problem of ongoing abdominal pain and stated in Ms Settle’s nutritional diagnosis that she had ‘IBS-type gastrointestinal symptoms with multiple problems and anxiety’[22] and also FODMAP sensitivity.[23]
[22] T Documents, T9, page 35.
[23] T Documents, T11, page 38.
Ms Settle was provided a treatment plan comprising of recommendations to follow a low-FODMAP diet plan.[24]
[24] T Documents, T9, Dietetics/Nutrition report dated 18 November 2015; T10, Dietetics/Nutrition report dated 17 December 2015; T11, Dietetics Review report dated 3 February 2016.
Centrelink Job Capacity Assessment
In December 2016 Ms Settle’s capacity to return to work was assessed as part of a medical review for her Disability Support Pension (DSP). A subsequent report was prepared on 17 January 2017.[25]
[25] T Documents, T12: Job Capacity Assessment Report.
The report relied on the reporting of Ms Settle and the report of Dr Stacey Waugh, GP dated 14 September 2016[26] although it was noted that Dr Waugh did not respond to attempts to telephone her on four occasions and was unable to be contacted in regard to her evidence.
[26] This report was not filed with the Tribunal.

Regarding the condition of ‘CFS/fibromyalgia’ the report stated that Ms Settle reported she had not engaged in psychotherapy/anti-depressant use for more than 3 years.
Ms Jessica May, occupational therapist
On 8 April 2021 Ms Settle was assessed at her home by Ms Jessica May, occupational therapist. Ms May produced a subsequent report titled ‘NDIS access assessment and report’ dated 21 April 2021.[27]

In her assessment Ms May undertook the following:
·Initial interview and assessment including home environment review;
·Phone call to Ms Settle’s disability advocate;
·Review of reports provided by Ms Settle’s disability advocate, ‘Chronology of Medical Evidence’ dated 26 March 2021;[28] and
·CANS, Life Skills Profile and WHODAS assessment tools.
[27] T Documents, T13.
[28] This report was not filed with the Tribunal.

Ms May stated that Ms Settle experienced significant and fluctuating pain levels although that Ms Settle explained she tried not to take pain medications ‘unless in significant 10/10 pain.’ Ms Settle reported to Ms May that she experienced increased depression because of her experiences of significant pain.
In regard to Ms Settle’s affected life activities Ms May observed that Ms Settle’s mood affected her ability to function and engage with activities of daily living and also that her pain and fatigue levels triggered and changed her emotional responses.[29]
[29] T Documents, T13, page 46.
Ms May stated:
Kim has a medical condition/disability which substantially reduces their functional capacity to undertake the relevant activities below:
self-care
domestic life
sensory and pain
mobility
social interaction
emotional awareness
community participation self-management
environment
assistive equipment and technology
support
Dr Stacey Waugh, general practitioner
Dr Stacey Waugh, became Ms Settle’s primary GP in 2016.[30] In May of 2021 Dr Waugh wrote a report to support Ms Settle’s access request in which she stated that Ms Settle had permanent physical disabilities of:
·Chronic fatigue syndrome;
·Fibromyalgia or Central Sensitisation Syndrome; and
·Irritable Bowel Syndrome/SIBO.
[30] T Documents, T14: Letter of Dr Stacey Waugh dated 20 May 2021.
Further, that all of these disabilities developed in 1993 following exposure to fumes from carpet glue. Dr Waugh referred to the reports of respiratory specialists Dr Greg Haug (1996, 1997), Dr Simpson (2006, 2009) and Dr Vincent (2006).[31]
[31] These reports were not filed with the Tribunal.
Dr Waugh considered that the report of Dr Parkes was ‘of particular importance’ and referred to Dr Parkes’ diagnosis of ‘CSS which consists of a constellation of symptoms of CFS, fibromyalgia, IBS and hypersensitivity to light, noise and exposure to chemicals.’
Dr Waugh confirmed that Ms Settle had trialled several medications whilst in her care, which had failed with Ms Settle continuing to suffer symptoms regularly.[32] She listed Ms Settle’s symptoms as follows:[33]
·fluctuating fatigue levels from day to day;
·fluctuating pain in limbs, chest and abdomen;
·recurrent abdominal pain aggravated by stress levels and hypersensitivity to light, noise and chemicals in the environment.
·during her worst times of fatigue, Ms Settle could not manage any housework at all and would need to rest for long periods of the day; and
·when attempting to walk Ms Settle would become short of breath and develop chest pain.
[32] T Documents, T14, page 51.
[33] T Documents, T14, page 50.
Dr Waugh also completed a Supporting Evidence form to support Ms Settle’s access request.[34] Dr Waugh stated that Ms Settle had a primary impairment of CFS, fibromyalgia and IBS which was likely to be lifelong and referred to:
·the report of Dr Robert Parkes;[35]
·letter, Principal Claims Manager dated 27 July 2009;[36]
·Ms Settle’s receipt of a DSP in 2007; and
·Centrelink Job Capacity Assessment dated 21 December 2016.[37]
[34] T Documents, T17: Support Evidence form (unsigned and undated).
[35] T Documents, T3.
[36] T Documents, T4.
[37] T Documents, T12: Job Capacity Assessment Report dated 21 December 2016.
Dr Waugh stated that Ms Settle also had other impairments of chemical sensitivity (since 2009) and Graves’ disease (since 2012). She relied on the letter of Dr Cory[38] to substantiate these conditions.
[38] T Documents, T7.
Ms Judith Groube
On 15 March 2022 Ms Judith Groube, counsellor wrote a letter of support stating that she had seen Ms Settle since 30 August 2021 through her mental health care plan and that Ms Settle experienced functional limitations secondary to her medical conditions as well as significant anxiety and depression.[39]
[39] Document 2: Report of Ms Judith Groube.
Ms Groube stated that on initial testing Ms Settle scored 38/50 on the K10 which reflected a high level of distress. She also stated that as a consequence of her disabling medical conditions Ms Settle was no longer able to continue her musical activities.
In May 2022 and until October 2023 Ms Groube assisted Ms Settle in her application as an advocate, however I accept that she provided her evidence to the Tribunal before this time.
Mr Graeme Peart
Mr Graeme Peart is a friend of Ms Settle. He first met her in 2017 after seeing her on stage and purchasing a CD of one of her performances. He provided a letter of support for Ms Settle, undated and filed 2 May 2024.
In his letter Mr Peart refers to Ms Settle as being 59 years old and her mother as 86.5 years old and therefore I am satisfied that this letter was recently written.
Mr Peart’s evidence was that he had in the past noticed Ms Settle did not perform all her music gigs as advertised. Also that when Ms Settle’s mother was 80 years old, he observed that she would carry most of Ms Settle’s music equipment, help Ms Settle set up and pack up the equipment and also assist Ms Settle to stand up from her chair.
Mr Glen Dwyer, occupational therapist
On 6 January 2023 Mr Glen Dwyer, occupational therapist assessed Ms Settle’s functional capacity in her usual activities of daily living at her home. Mr Dwyer was also provided extensive records of Ms Settle’s medical history for review and answered postliminary questions put to him by the Agency in a report dated 9 February 2023.[40]
[40] Document 12: Report of Mr Glen Dwyer dated 9 February 2023.
Mr Dwyer’s analysis of Ms Settle’s medical reports was that due to the effects of her medical conditions Ms Settle experienced difficulties undertaking tasks that involve:
·moderate, heavy or forceful manual handling (lifting, carrying, pushing and pulling);
·maintaining activity participation despite experiencing high daily fatigue;
·strenuous activity requiring exertion;
·working in environments with strong smells, such as chemicals or other toxins;
·standing and walking for prolonged periods;
·prolonged periods of driving; and
·persisting with and staying engaged with activity regardless of mood.
Also, that Ms Settle’s symptoms on a typical day included:
·high daily fatigue;
·stomach bloating;
·impaired mobility characterised by a tendency to walk in a slow and cautious manner;
·sensation that her heart is racing (fluctuates in intensity);
·pain primarily affecting her stomach, left arm and lower back;
·chest pain that ‘comes and goes’;
·feeling of ‘heaviness’ and that everything takes ‘a lot of effort’;
·high sensitivity to smells and intermittent sensitivity to light;
·an occasional ‘itchy or crawly’ sensation;
·occasional dizziness; and
·reduced tolerance of temperature extremes – for example hot or cold weather.
Ms Settle’s symptoms on a bad day were understood to be the same as a typical day ‘only more intense’. Ms Settle reportedly experienced a bad day approximately once every two to three months and described the level of fatigue on bad days being so overwhelming that she does not get out of bed.
Mr Dwyer assessed Ms Settle undertaking tasks of functional demands and made observations in each of the functional domains as follows:
·Communication:
oMs Settle communicated clearly and although she could become teary at times when talking she experienced no deficits in this domain;
·Social interaction:
oMs Settle reported that she had two main friends in her area who she kept in touch with frequently, both face-to-face and on the telephone. Her friends were supportive and accommodating of Ms Settle’s conditions;
oMs Settle would regularly see people at her music gigs each weekend which were her primary means of regular community interaction. Occasionally her symptoms were such that she cancelled gigs, which Mr Dwyer understood to be very rarely and that Ms Settle would make every effort not to cancel as they were beneficial to her; and
oMs Settle drove a car and could access her community as needed;
·Learning:
oThe effects of chronic pain and fatigue could impact Ms Settle’s concentration levels albeit she had no medical evidence of any formal cognitive deficits; and
oShe sustained concentration for the three-hour assessment and had no specific deficits in this domain;
·Mobility:
oMs Settle mobilised ‘steadily and cautiously’ without assistance around her home;
oMs Settle reported that her mobility in the community was limited by her experience of fatigue, which precluded her from engaging in long periods of standing and walking without regular rest breaks;
oShe was able to access all essential services including fortnightly medical appointments and also the supermarket; and
oAt her music gigs which went for 3 hours at a time she would take a stool and sit as required;
·Self-care:
oMs Settle could toilet, shower, dress and groom herself without assistance;
oMs Settle stated that she had difficulty managing the demands of meal preparation due to fatigue, although she managed lighter meals without difficulty and on days when she was feeling better she tended to cook in bulk in collaboration with her mother. By using the technique of bulk cooking she could prepare a supply to use on a day of reduced function. Mr Dwyer noted 11 containers of meal/meal components ready for use in Ms Settle’s fridge and a further 17 meals in her freezer on the day of his assessment;
oMs Settle’s capacity to complete house-cleaning activities was restricted, primarily by chronic pain and fatigue. By pacing her activities she could perform light cleaning tasks and spot cleaning tasks of accessible (waist height) areas as needed;
oMs Settle managed light laundry tasks independently and tasks such as fitting fresh bed linen, and heavy laundry tasks were problematic for her; and
oMs Settle did not have the assessed functional capacity for completing the physically demanding yard and property maintenance tasks and she would likely require ongoing assistance;
·Self-management:
oNotwithstanding the effects of fatigue globally reducing her activity tolerance, Ms Settle had no specific cognitive deficit that precluded her capacity for problem-solving and making decisions;
oMs Settle had no barriers in her capacity to make arrangements for her medical appointments, commercial cleaning and gardening services, domestic tasks and weekly music gigs at local pubs and clubs; and
oShe assisted her mother in relation to managing her finances as necessary.
Mr Dwyer concluded that Ms Settle was independent in activities of communications, social interaction, learning and self-management and therefore did not make any recommendations in these domains.
Mr Dwyer made recommendations to support Ms Settle in the domains of mobility and self-care as follows:
·the use of assistive equipment including:
olong-handled sponge;
olong-handled toe-washer;
oslip-resistant bath mat;
odressing stick;
ograb rail in the shower;
owall-mounted shower seat;
operching stool;
olong-handled microfibre broom with swivel head;
olightweight dustpan and brush;
ohandy reacher; and;
ogutter guard;
·keeping a selection of pre-prepared frozen meals for days when she cannot manage the demands of preparing a meal;
·ongoing support from her mother for assistance with light domestic tasks that are also for her mother’s benefit;
·commercial assistance for heavy house cleaning tasks including bathroom scrubbing, vacuuming/mopping floors and window cleaning. This support was already being provided for Ms Settle; and
·access to occupational therapy services to assess, prescribe and demonstrate the safe use of equipment and teach alternate techniques to facilitate improved functional performance in activities of daily living.
Mr Dwyer’s evidence was that Ms Settle’s household currently received a weekly commercial cleaning service provided by two separate cleaning providers. One was provided to Ms Settle through ‘Life Without Barriers’ in relation to her functional incapacities for 2 hours per fortnight.
Another cleaner was provided to her mother through Aged Care services for 1.5 hours per fortnight. Ms Settle and her mother would alternate their respective fortnightly services so that they received a weekly cleaning service provision. These cleaning services would undertake all regular house cleaning including mopping, vacuuming, dusting and bathroom scrubbing.
Ms Settle reported that she also received a fortnightly gardening and yard maintenance service to complete lawn mowing, edges, hedge trimming and clearing fallen debris.
Ms Kim Settle
Ms Settle provided a statement of lived experience to the Agency to support her access request.[41] She also prepared a document titled ‘Response to Statement of Issues - Further Information Request’.[42]
[41] T Documents, T18: Statement of Kim Settle, undated.
[42] Document 8: Applicant’s Response, undated.
In her evidence Ms Settle stated that she had initially been diagnosed with IBS in 1999 by Dr Rudolphy, who then diagnosed her with CFS in 2006 and then fibromyalgia in 2009.[43]
[43] T Documents, T18 at [4].
Further, that these diagnoses were subsequently ‘backed up’ by Dr Robert Parkes and Dr Graham Simpson as well as Dr Sue Cory and Dr Stacey Waugh ‘as well as several other exercise physiologist and phycologist[sic] at the time’.
Ms Settle considered that her disability has changed over the past 20 years with the onset of many additional health problems including Graves’ disease, dysautonomia like symptoms and continual stomach problems, that seemed to be getting worse.
Ms Settle also stated:
‘Dr Robert Parks[sic] put me on a total and permanent disability pension due to Chronic fatigue and Fibromyalgia which he said was all part of a Central sensitisation syndrome.’
Ms Settle described her life before her ‘accident’ as being ‘a healthy functioning human being’. She stated that she played sport all her life and spent her 20s and 30s teaching and participating in several musicals and dance performances through her dance school and theatre groups.
Since being exposed to chemicals Ms Settle submits that her health has deteriorated. She referred to symptoms including extreme fatigue, muscle aches, abdominal cramping, headaches, insomnia, depression and anxiety that she had ‘no control over’.
Ms Settle’s evidence of her capacity in each of the functional domains at section 24(1)(c) was as follows:[44]
(iii)Communication: she can communicate okay when she is well although it is extremely hard for her when she is fatigued. It is also ‘really hard’ for her to communicate her food intolerances to restaurant staff, family members and friends. Further that ‘due to her chemical poisoning, phones and computers will drop out and shut down a lot when she tries to use them, and she needs them to communicate.’
(iv)Social interaction: she described her mother as her best and only support, albeit that they had been fighting due to the stress of Ms Settle being sick for so long. Her contact with friends is almost non-existent due to her health and they do not invite her for coffee as they think she will be too sick to join them, and they are ‘sick’ of her not being able to go to the coffee shop because it does not cater for her allergies. She has made more acquaintances through her hobby job which she tries to do once a week.
(v)Learning: she would love to learn more about her ‘hobby’ of music but her ability to concentrate and learn new things is affected by brain fog and fatigue. She does not remember things easily as her brain is often too exhausted to retain information and she needs a lot of rest to be alert enough for any length of time.
(vi)Mobility: when fatigued her ability to walk, stand, sit, leave the house and go shopping is ‘non-existent’. Her ability to be mobile is greatly affected by her disability and she can become sick after coming into contact with chemicals including perfume, deodorant and smoke, from eating certain foods and is also affected by stress and the weather.
(vii)Self-care: she relies on her mother every day to cook, clean, do the shopping and look after the yard and animals to avoid being ‘bedridden more often’. Ms Settle stated that, at times when she is ‘really bad’ her mother will help her to the shower.
(viii)Self-management: she has ‘some difficulty’ making decisions for herself most days because she will never know how she will feel or if she can follow through with decisions. Before a planned event such as a music gig Ms Settle will need to rest for two days, and her mother will help to set up and pack up her equipment for her music gigs each week. She will always talk to her mum about financial decisions.
[44] T Documents, T18.
Ms Settle discussed ‘good days’ and ‘bad days’ of functioning. On bad days she will not sleep at night due to the constant need to toilet and she will have difficulty with toileting, and she will also be unable to prepare meals and complete activities of daily living.
Ms Settle stated that she experienced bad days 70 percent of the time.
A good day is when her sleep is better, she is able to get up and prepare breakfast and she can exercise and complete activities of daily living with pain and varying degrees of ‘pushing through’.
Ms Settle stated that she experienced good days 30 percent of the time.
In regard to her music Ms Settle stated that she would practice her songs from 2:00pm to 4:00pm each Monday and when she was well on Sunday, and also perform each Friday.[45]
[45] T Documents, T18 pages 69-70.
Ms Settle listed a roster of scheduled performances over various dates between 14 January 2022 and 13 August 2022 and stated that of the 23 performances rostered 15 of them had to be cancelled and 8 were performed.[46]
[46] Document 8.
Ms Settle confirmed that she needed help to pack and unload gear for her music gigs because her mother is ‘really struggling’ to continue to assist with this. She also stated that she needs support with meals because takeaway and even meals on wheels is not suitable for her.
Some time after Mr Dwyer’s functional capacity assessment Ms Settle wrote a letter in response to Mr Dwyer’s report.[47] Ms Settle considered that Mr Dwyer was correct in his statement that she was able to manage certain activities although qualified that this would be ‘on a good day’.
[47] Document 7: Applicant’s response to functional capacity report, undated.
Ms Settle confirmed that she has good days ‘even better’ than the day of Mr Dwyer’s assessment, although that she also experienced ‘many, many bad days.’

Ms Settle’s evidence was that if she could get some help at home with cleaning, cooking, washing, mowing, tree-trimming and looking after her pool then she felt that this could help her to control her pain, exhaustion and anxiety such that she would be able to function a lot better more often.[48]
[48] Document 11(a) page 219.
Ms Settle stated:
‘In conclusion, after many years of living with these debilitating disabilities and trying everything possible to get better I know it is permanent. I also know that if I can maintain my health by eating a healthy diet with small amounts of exercise and if I can keep doing my hobby job, I will be able to keep my major breakdowns to a minimum. However, I do not have the help I need to be able to do this. Mum is not able to do as much as she did before, and I am already feeling it and having more crashes, I need extra help now. …
Also, I will always be exposed to people who wear deodorant or perfumes etc at some stage in the day week month and at times there will always be some sort of smoke or chemical smell around and I also cannot control the weather.’
CONSIDERATION
Section 24: the Disability Requirements
24(1)(a): Disability attributable to physical and psychosocial impairments
Chronic fatigue syndrome and fibromyalgia
The evidence has established that Ms Settle has impairments of chronic fatigue syndrome and fibromyalgia.
The reports of Dr Rudolphy who made these diagnoses have not been provided in evidence for the Tribunal to consider. Dr Parkes, who was provided these reports, in his own report referred to Ms Settle’s ‘clinical diagnosis’ of CFS.[49] Dr Parkes also supported a diagnosis of CFS for Ms Settle.[50]
[49] T Documents, T3, page 20.
[50] T Documents, T3, page 23.
Likewise, Dr Parkes and Dr Cory have accepted Dr Rudolphy’s diagnosis of fibromyalgia and Dr Parkes also supported a diagnosis of fibromyalgia in his own report.
Irritable bowel syndrome
On the evidence I am not satisfied that Ms Settle has an impairment of irritable bowel syndrome.
Ms Settle’s evidence was that she had been diagnosed with IBS by Dr Rudolphy in 2009. This statement is not substantiated in any other evidence before the Tribunal.
In 2015 Dr Guraratbakul’s report was that Ms Settle’s abdominal pain ‘most likely sounds like functional irritable bowel syndrome to us’. In the absence of any further context or evidence relevant to supporting a diagnosis of IBS, this statement is not considered in itself a satisfactory diagnosis for the purposes of establishing a disability under section 24(1)(a).
Ms Settle obtained further reports from the Dietetics/Nutrition team, one of which stated that Ms Settle had a diagnosis of ‘IBS-type gastrointestinal symptoms with multiple other health problems and anxiety’.[51]
[51] T Documents, T9, page 35.
This diagnosis is most consistent with the evidence of Dr Parkes who stated that IBS and hypersensitivity were amongst the ‘constellation of symptoms’ that Ms Settle experienced as a result of a central sensitisation syndrome (CSS). I consider this evidence uncontested and accept that Ms Settle experiences IBS-type symptoms.
Dr Waugh’s evidence was that Ms Settle became a recipient of the DSP in 2007 based on a diagnosis of Fibromyalgia, chronic fatigue syndrome and irritable bowel syndrome.
It is noted that Ms Settle came into receipt of the DSP in 2009. Also, that the letter in evidence confirming Ms Settle’s receipt of the DSP in 2009 does not make reference to any particular diagnoses for consideration. Lastly, the qualifying impairment threshold for the DSP is regulated by social security law and carries different statutory requirements for the purposes of establishing an impairment and its likely permanence.
Pursuant to the requirements of establishing a disability pursuant to section 24(1)(a) of the NDIS Act the evidence does not support that Ms Settle has a disability arising from an impairment of IBS.
Chemical sensitivity
I am not satisfied that Ms Settle has an impairment of chemical sensitivity.
Ms Settle’s evidence was that she has experienced symptoms when exposed to perfume, deodorants, and smoke although that when she would go to the hospital for tests ‘they could never find anything’.[52]
[52] T Documents, T18, page 67.
Dr Waugh did not refer to a diagnosis of chemical sensitivity in her letter of support for Ms Settle’s access request. Dr Waugh’s evidence was that Ms Settle had developed disabilities of CFS, fibromyalgia and IBS in 1993 following exposure to fumes in carpet glue.[53]
[53] See paragraph [48], Reasons for Decision.
In her Supporting Evidence form Dr Waugh referred to an impairment of ‘chemical sensitivity (1994)’ and referred to Dr Cory’s letter which listed a ‘condition’ of chemical sensitivity since 1994. According to their evidence neither Dr Waugh nor Dr Cory were Ms Settle’s treating practitioners in 1994 and there is no contemporaneous evidence of chemical sensitivity.
In the same form and directly underneath her previous statement, when asked for how long Ms Settle had this impairment Dr Waugh wrote ‘chemical sensitivity 2009’. Dr Waugh’s Supporting Evidence form was also not signed or dated.
Ms Settle’s own evidence was that her exposure to chemicals was in 1994.[54] A diagnosis of ‘chemical sensitivity’ either in 1994 or 2009 is not supported in any other documents.
[54] T Documents, T18: Statement of Ms Settle, undated, page 66. In contrast Dr Cory wrote this date at 1994. (36/178)
The evidence does not support a finding that Ms Settle has an impairment of chemical sensitivity.
Graves’ disease and hyperthyroidism
Ms Settle has referred to the conditions of Graves’ disease and hyperthyroidism in her statement.
Dr Waugh did not refer to Graves’ disease or hyperthyroidism in her letter. In her Supporting Evidence form Dr Waugh listed an impairment of Graves’ disease and referred to Dr Cory’s letter.
Dr Cory’s letter stated:
‘Oct 2012 Graves’ Disease, TSH receptor ab positive. Took Carbimazole from 10/12 to 7/8/2013. Became hypothyroid in August 2013- TSH= 7.’
Dr Cory did not provide any supporting evidence for either Graves’ disease or hypothyroidism. Such evidence would have been of considerable assistance in the inconsistent evidence between hyperthyroidism as referred to by Dr Waugh and hypothyroidism, as referred to by Dr Cory.
I am not satisfied that Ms Settle has agitated an impairment of Graves’ disease or hyperthyroidism in her application.
Section 24(1)(a): Conclusion
I am satisfied that Ms Settle has a disability attributable to the impairments of chronic fatigue syndrome and fibromyalgia.
I accept the uncontested evidence of Dr Parkes that Ms Settle has been diagnosed with CFS and fibromyalgia and also that she experiences a ‘constellation of symptoms’ as a result of a central sensitisation syndrome.
An impairment is generally understood to mean ‘the loss of or damage to a physical, sensory or mental function.’[55] The assessment of impairments is ‘functional and multi-faceted’ and requires a relatively high degree of precision.[56]
[55] Mulligan v National Disability Insurance Agency [2015] FCA 544 (Mulligan) at [51].
[56] Mulligan at [55]
The symptoms that Ms Settle submits are as a result of her other conditions of IBS, chemical sensitivity, Graves’ disease and hyperthyroidism have not been distinguished as impairments to a satisfactory degree of precision that is required under section 24(1)(a) and section 25(1)(a).
Section 24(1)(b): Permanency
The Tribunal considers whether Ms Settle’s impairments of CFS and fibromyalgia are or are likely to be ‘permanent’ and whether, on the evidence before it:
(a)there are no known, available and evidence-based treatments likely to remedy the impairments; and
(b)no further medical treatment or review is required for their permanency or likely permanency to be demonstrated.
An ‘available treatment’ contemplates treatment available to a particular individual including their financial capacity to access a treatment.[57]
[57] See National Disability Insurance Agency v Davis [2022] FCA 1002 at [138].
To ‘remedy’ should be understood to mean something approaching a removal or cure of an impairment.[58]
[58] Ibid at [136].
‘Permanency’ should be understood to mean that the impairments that Ms Settle experiences have an enduring nature and require supports provided and/or funded under the scheme on an ongoing basis.[59]
[59] Ibid at [130].
Rule 5.6 of the access rules states:
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.
The Tribunal further contemplates the meaning of the ‘permanency’ of an impairment in the decision of Mulligan v National Disability Insurance Agency:[60]
‘Although an impairment may…be responsible for or related to a disability, the threshold in s 24 revolves around the severity and permanency of the effects of the impairments experienced by a person, so as to justify the provision of the “reasonable and necessary supports” to which participants may be entitled…’
(Tribunal emphasis)
[60] [2015] FCA 544 (Mulligan) at [52].
The evidence supports a finding that Ms Settle’s impairments require further medical treatment or review in order for their permanency or likely permanency to be demonstrated.[61]
[61] Rule 5.6 Access Rules.
Dr Parkes provided his professional opinion of Ms Settle’s capacity to return to work in relation to the impacts of her medical conditions and also treatments for her conditions. I consider Ms Settle’s capacity to return to work relevant to establishing the degree of severity and permanency of her disability.
The evidence of Dr Parkes was that Ms Settle may be able to return to work and recommended further basic investigations, pharmacological treatments, CBT therapy and a three-month trial of rehabilitation.
Dr Parkes stated that ‘one further trial of evidence-based therapy for her chronic fatigue may be of benefit as a trial to return to the workforce’. [62]
[62] T Documents, T3, page 24.
Dr Parkes also recommended that Ms Settle engage in ongoing CBT although Ms Settle reported being unable to afford this. I accept Ms Settle’s evidence that this treatment is not financially ‘available’ to her.
I consider Dr Parkes’ other recommendations of further basic investigations, pharmacological treatments, and a three-month trial of rehabilitation to be both evidence-based and available to Ms Settle and also that they may be required to establish the permanency of Ms Settle’s CFS and fibromyalgia.
Ms Settle’s evidence of her engagement with treatment is in her statement as follows:
‘For over 15 years I have sought and exhausted treatment after treatment for my conditions including seeing at least three exercise physiologists and have engaged in low impact exercise on my own and have seen psychologists for psychosocial therapies. I have also tried making many changes to my diet one of which was recommended by Gastroenterologist Dr Gururatsakul[sic] in 2015. I have taken numerous medications suggested by many doctors and tried alternative therapies such as meditation with advice from my doctor and specialists etc. However, I have never been able to get over my debilitating symptoms of chronic fatigue or fibromyalgia and IBS.’
I accept Ms Settle’s submissions that she has undertaken various treatments and therapies. I do not accept that Ms Settle has engaged with the investigations and treatments as specifically recommended by Dr Parkes.
I also consider the more recent evidence of Dr Waugh who stated that ‘I believe Kim has trialled all available therapies and medications for these conditions. As such it is a Permanent and stable condition and unlikely to improve’.[63]
[63] T Documents, T14, page 51.
In making her finding Dr Waugh had relied on the report of Dr Parkes to substantiate Ms Settle’s engagement with several treatments including pharmacological treatments, CBT and psychotherapy via psychologists and psychiatrists.[64]
[64] T Documents, T17, page 60 regarding the conditions of CFS, fibromyalgia and IBS.
In regard to other treatments of prescription medication, supplements, engagement in a graduated exercise program, anti-depressant trials and gentle exercises Dr Waugh relied on the Centrelink Job Capacity Assessment to support her opinion that these had been trialled.
Relevantly, the Centrelink Job Capacity Assessment stated that it had relied on the evidence of Dr Waugh to confirm that Ms Settle had engaged with the treatments of counselling and anti-depressant trials, and I therefore do not consider the Centrelink report to provide any evidence further to Dr Waugh’s opinion.
In regard to the treatments of psychotherapy and anti-depressants the Centrelink report stated that Ms Settle reported she had not engaged with these treatments for more than three years.
Ms Settle did not provide any evidence from a treating psychologist although I note that the Tribunal has specifically requested this information by way of direction order.[65]
[65] Tribunal direction dated 24 November 2023 directing for the filing of any advice or report from the applicant’s treating medical practitioners or psychologist.
The evidence of Dr Parkes had established that Ms Settle’s impairments of CFS and fibromyalgia require further medical treatment and review before a determination can be made about whether they are or are likely to be permanent.
The evidence of Ms Settle has not demonstrated engagement with the further medical treatment and review as recommended by Dr Parkes and therefore required under section 24(1)(b) of the NDIS Act.
On the balance of the evidence before the Tribunal and upon application of the relevant statutory requirements and access rules I am not satisfied that Ms Settle’s impairments of chronic fatigue syndrome and fibromyalgia are or are likely to be permanent.
The criteria under section 24 of the NDIS Act are cumulative and therefore I am not required to consider the remaining requirements under section 24(1)(c), (d) and (e).
Section 25: The early intervention requirements
Section 25(1)(a): Permanency
For the reasons given above I have come to the view that Ms Settle’s impairments are not permanent. Therefore, neither section 25(1)(a)(i) nor section 25(1)(a)(ii) are met.
The criteria under section 25 of the NDIS Act are cumulative and therefore I am not required to consider the remaining requirements under section 25(2) and (3).
I note that Ms Settle is 59 years of age and is able to apply to the Agency again.
Pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision under review not to grant the applicant access to the National Disability Insurance Scheme on the basis that the applicant does not meet either the ‘disability requirements’ under section 24 or the ‘early intervention requirements’ under section 25 of the National Disability Insurance Scheme Act 2013 (Cth).

I certify that the preceding 147 (one-hundred and forty-seven) paragraphs are a true copy of the reasons for the decision herein of Member S Smith

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

Associate
3 June 2024

Heard on the papers:

3 June 2024

Applicant:

Ms Kim Settle

(Self-represented)

Solicitor for Respondent:

Ms Louisa Beale

(Mattocks Lawyers)

[2024] AATA 1343

3 June 2024

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Statutory Construction

Jurisdiction

Procedural Fairness