Sharma and National Disability Insurance Agency - [2024] AATA 1974

Sharma and National Disability Insurance Agency [2024] AATA 1974 (24 June 2024)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2019/6876
Re:Reg Sharma
APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION
Tribunal:Member D. Barker
Date:24 June 2024
Place:Sydney

Pursuant to section 43(1)(a) of the Administrative Appeals Act 1975 (Cth), the Tribunal affirms the decision under review.
...................................[SGD].....................................
Member D. Barker
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – access criteria – disability requirements – chronic post-traumatic stress disorder – chronic major depression – somatic symptom disorder with predominant pain – whether the impairments are, or likely to be, permanent – whether the impairments result in substantially reduced functional capacity – early intervention requirements – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975(Cth)
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Act 2022 (Cth)
NSW Mental Health Act 2007 (Cth)
CASES
Foster and the National Disability Insurance Agency [2021] AATA 4738
James and National Disability Insurance Agency [2019] AATA 4248
Kilgallin and National Disability Insurance Agency [2017] AATA 186
Madelaine and the National Disability Insurance Agency [2020] AATA 4025
Mulligan v National Disability Insurance Agency (2015) FCA 544
National Disability Insurance Agency v Davis [2022] FCA 1002
Re Firth and Minister for Capital Territory (1979) 2 ALD 183
Re Hill and Wilson and Minister for Capital Territory (1979) 2 ALD 457
Re MKKR and Minister of Immigration (2016) 69 AAR 512; [2016] AATA 458
Re Quinlivan and Minister for Capital Territory (No 2) (1979) 2 ALN No 59
SECONDARY MATERIALS
AAT President’s Practice Direction – Persons Giving Expert and Opinion Evidence, dated 30 June 2015.
Black Dog Institute (Web page) (Web page) on the Rights of Persons with Disabilities, opened for signature 13 December 2006, [2008] ATS 12, ratified by Australia 17 July 2008.
CT Scan (Web page) Dictionary (Web page) Act: Applying to the NDIS - National Disability Insurance Agency, NDIS Operational Guidelines: Applying to the NDIS (Guidelines, 1 February 2024) align="left">NSW Health (Web page) (Web page) symptom disorder (Web page) symptom disorder (Web page) Scan (Web page) FOR DECISION
Member D. Barker
24 June 2024
INTRODUCTION

This application is about whether the Applicant, Mr Reg Sharma, should be granted access as a participant to the National Disability Insurance Scheme (NDIS).
Mr Sharma is 39 years old and at the present time he lives with his sister and her immediate family in the Southwest Sydney region of NSW.
Mr Sharma applied to become a participant in the NDIS in March 2019 (the access request). Information provided in association with this application[1] indicated that Mr Sharma has impairment due to primary and secondary disabilities as a result of chronic post-traumatic stress disorder (PTSD), chronic major depression and somatic symptom disorder with predominant pain (SSD).
[1] Part F of the NDIS Access request Form dated 20 March…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Sharma and National Disability Insurance Agency

Details

AGLC: Sharma and National Disability Insurance Agency [2024] AATA 1974
Case: [2024] AATA 1974
Decision Date: 24 June 2024

CaseChat Overview and Summary

This matter concerned an application by Mr. Sharma for review of a decision by the National Disability Insurance Agency (NDIA) to refuse his access to the National Disability Insurance Scheme (NDIS). The dispute centred on whether Mr. Sharma met the eligibility criteria for the NDIS, specifically concerning the nature and permanence of his impairments. The Administrative Appeals Tribunal (AAT) considered the evidence presented by Mr. Sharma and the NDIA.

The primary legal issues before the Tribunal were whether Mr. Sharma's impairments, including chronic post-traumatic stress disorder, chronic major depression, and somatic symptom disorder with predominant pain, were permanent or likely to be permanent, and whether these impairments resulted in a substantially reduced functional capacity. The Tribunal was also required to consider whether the impairments met the early intervention requirements of the NDIS Act.

The Tribunal reasoned that the evidence established that Mr. Sharma had developed a range of symptoms impairing his physical and psychosocial functioning since a motor vehicle accident in 2010. These included social withdrawal, depression, anxiety, low self-esteem, sleep difficulties, memory and concentration issues, and chronic pain affecting his neck, back, and limbs. The Tribunal found that these symptoms contributed to physical deconditioning and restricted his ability to participate in personal and community life. Applying the principles from *Davis*, the Tribunal determined that Mr. Sharma's impairments were of an enduring nature, meaning they were permanent or likely to be permanent, and thus met the requirements of section 24(1)(a) and (b) of the NDIS Act.

The Tribunal affirmed the NDIA's decision that Mr. Sharma did not meet the access criteria for the NDIS.

Orders

Orders of the court

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Background

Background to the litigation

Whilst is not optimal for the Tribunal and Respondent to not have the benefit of Mr Sharma’s visual participation in the hearing, I am not of the view that Mr Sharma had a diminished opportunity to meaningfully participate in the proceedings and to present what evidence and arguments he saw appropriate. I am also not of the view that there was a lack of procedural fairness to either party through the manner in which the hearing proceeded and no such concerns were raised by either Mr Sharma or Respondent.BACKGROUND Mr Sharma was born in Fiji and migrated to Australia along with his family when he was approximately 12 years of age in 1998. He completed Year 11 of secondary school in Sydney, NSW. After leaving school, Mr Sharma worked in the electrical trade with his brother-in-law and had completed part of an electrical apprenticeship at the time he was involved in a motor vehicle accident (MVA) on 27 October 2010.[12] [12] Motor Accidents Authority Medical Assessment service report dated 29 August 2012, T3A. At the time of the MVA, Mr Sharma was driving home from work. He was in the middle lane when a truck in the left lane suddenly swerved and collided with the front of his car, causing it to be dragged for some three metres. The car then bounced off the truck and spun onto oncoming traffic, whereupon another truck hit the left-hand side of Mr Sharma’s car.[13] Mr Sharma was not taken to hospital, was able to walk afterwards, and returned home.[14][13] Ibid. [14] Report of Professor Ian Harris, orthopaedic surgeon, dated 11 October 2011, TB2.2. At the time of the MVA, Mr Sharma was living with his parents and his younger brother in the family home in Villawood, NSW. He is reported to have been in a stable relationship at that time, which unfortunately broke down in the aftermath of the MVA due to the onset of symptoms associated with the mental health conditions which Mr Sharma developed after the MVA. Mr Sharma is reported to have no history of mental health difficulties or physical functional impairments prior to the MVA in 2010.[15] [15] Ibid. Following the MVA Mr Sharma experienced increasing neck and shoulder pain and also regular nightmares accompanied by sweating. He is left hand dominant, which he reported caused him difficulty due to pain on his left side. The pain condition became chronic in nature and Mr Sharma became anxious and severely depressed with associated traits of social and emotional withdrawal.[16] He was initially treated by a few different general practitioners before commencing with Dr Nayef Kanawati in 2011. Mr Sharma has remained under the care of Dr Kanawati since that time. [16] Ibid. Mr Sharma was granted a disability support pension (DSP) in 2015 and has been reliant on this income support payment from Centrelink since that time.[17][17] Letter from Dr Stephenson dated 7 August 2019, T5. Mr Sharma reports that he moved from his family home in Villawood to the home of his sister near Campbelltown in the Southwestern Sydney region in or around December 2023. He explained that this was because his elderly parents could no longer give him the care and support that he requires. He indicated at hearing that he continues to overnight with his parents in Villawood, on occasions such as when he has a medical or other health related appointment. He explained that this is because Dr Kanawati, along with his treating psychologist, Mr Metry and treating physiotherapist, Mr Roger Berbai, all work from a medical centre in Bankstown where they are in a reasonable proximity to where his parents live in Villawood.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The occupational therapist, Mr Christian Byrnes, who in April 2022 prepared a comprehensive care and domestic assistance assessment report regarding Mr Sharma at the request of the Respondent, reports that Mr Sharma’s activities of daily living are impacted in a variety of ways as a consequence of a chronic pain condition, with Mr Sharma reporting areas affected by pain as his: neck, back, left upper limb and lower limbs. Mr Byrnes opines that impacts from Mr Sharma’s pain condition include: reduced movement, strength and endurance (neck, back, left upper limb and lower back); reduced balance; and poor psychological health.[48] At hearing Mr Byrne opined that Mr Sharma has avoidant and fear of pain behaviours associated with his pain condition, which in conjunction with symptoms associated with depression and anxiety, contribute to Mr Sharma’s physical deconditioning and reliance upon assistive technology such as crutches and walking sticks.[49][48] Care and domestic assistance assessment report of Mr Christian Byrnes dated 21 April 2022, TB2.24. [49] Hearing Transcript, 05/03/24, p.100.Conclusion as to s 24(1)(a) The evidence before the Tribunal is sufficient to demonstrate that Mr Sharma has developed a range of symptoms impairing his physical and psychosocial functioning since the MVA in 2010. The Tribunal is satisfied the evidence establishes that after the MVA Mr Sharma became and continues to be socially withdrawn, depressed, anxious, avoidant and demotivated. The Tribunal is satisfied Mr Sharma has a low self-esteem and that he lacks confidence, experiences sleep difficulties and has memory and concentration difficulties. Further to this The Tribunal is satisfied that the following the MVA in 2010 Mr Sharma became and continues to be affected by chronic pain, with exacerbation of pain experienced on prolonged standing, sitting, bending and lifting. The Tribunal is satisfied that Mr Sharma is physical deconditioned and that he has restricted physical functioning. The Tribunal is satisfied that the reported physical difficulty affecting Mr Sharma includes: reduced movement, strength and endurance. The Tribunal is satisfied that these difficulties and symptoms impair Mr Sharma’s ability to participate in aspects of his personal and community life on a daily basis. On the basis of the available evidence, including that outlined in Mr Sharma SLE and the evidence provided by medical and allied health professionals, the Tribunal is satisfied that Mr Sharma has a disability that is attributable to physical impairments, and one or more impairments to which a psychosocial disability is attributable. Accordingly, the requirements in s 24(1)(a) are met.Are the Applicant’s impairments permanent? – s 24(1)(b) In Davis,[50] a decision of the Federal Court of Australia where Justice Mortimer addresses the meaning of “permanent” in the context of s 24(1)(b). Her Honour states at [130]:The phrase “permanent impairment” in s 24(1)(b) means an impairment which is of an enduring nature. In other words, the question for the decision-maker is whether the impairment(s) experienced by an individual (rather than the cause of the impairments or the specific diagnoses made about a medical condition) has or have an enduring quality so as to require supports funded and/or provided under the NDIS Act on an ongoing basis. As s 29 and s 30 make clear, the intention of the scheme is that once a person meets the access requirements, then subject to certain specific exceptions, the person will remain supported by the NDIS through their lifetime.[50] National Disability Insurance Agency v Davis [2022] FCA 1002.

Ratio Decidendi

Legal Principle Established

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