Shaw and National Disability Insurance Agency - [2024] AATA 2133

Shaw and National Disability Insurance Agency [2024] AATA 2133 (28 June 2024)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number: 2022/8353
Re:Bree Shaw
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Member S Smith
Date:28 June 2024
Place:Brisbane

Pursuant to section 43(1)(a) of the Administrative Appeals Act 1975 (Cth) the decision under review is affirmed.
..........................[SGD]..........................
Member S Smith
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – application for access – complex regional pain syndrome - whether applicant meets disability requirements - whether applicant meets early intervention requirements – disability supports required - whether likely to require support under National Disability Insurance Scheme for applicant’s lifetime - whether supports more appropriately funded through another service system - decision under review affirmed.
Legislation
Administrative Appeals Tribunal Act 1975(Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)
Cases
Forbes and National Disability Insurance Agency [2023] AATA 2408
G v Minister for Home Affairs [2019] FCAFC 79
National Disability Insurance Agency v Davis [2022] FCA 1002
National Disability Insurance Agency v Foster [2023] FCAFC 11
Mulligan v NDIA [2015] FCA 544; (2015) 233 FCR 201
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] 24 ALR 577
Re Schwass and National Disability Insurance Agency [2019] AATA 28
Secondary Materials
NDIS - Applying to the NDIS access guidelines, as of 26 June 2023
Queensland Community Support Scheme: as of 3 October 2023
REASONS FOR DECISION
Member S Smith
28 June 2024
INTRODUCTION

Ms Shaw is 49 years old. She lives with her husband and the two youngest of her four children in a coastal area of Queensland. Her two youngest children attend school.
Ms Shaw previously worked as a special needs teacher for several years until 5 August 2019 when the big toe on her left foot was fractured in a workplace accident.[1] Ms Shaw was subsequently diagnosed on 8 October 2022 with complex regional pain syndrome (CRPS).[2]
[1] T Documents, T15: Letter of Mr Ben McIvor dated 21 July 2022, page 154.
[2] T Documents, T14: Access Request form dated 19 July 2022, page 110; T6: Access Request form – Treating professional dated 28 February 2022, page 60.
On 19 July 2022 Ms Shaw made an application (the access request) to the National Disability Insurance Agency (the Agency) to become a participant of the National Disability Insurance Scheme (the scheme).
On 3 August 2022 the Agency refused Ms Shaw’s access request to the scheme on the basis that she did not meet the mandatory statutory criteria, and she subsequently sought an internal review of this decision.[3]
[3] T Documents, T17: Agency Interaction records dated 29 August 2022.
On 14 September 2022 pursuant to section 100(6) of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) the Agency notified Ms Shaw that they affirmed their original decision not to grant her access to the scheme (the decision…

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 Shaw and National Disability Insurance Agency

Details

AGLC: Shaw and National Disability Insurance Agency [2024] AATA 2133
Case: [2024] AATA 2133
Decision Date: 28 June 2024

CaseChat Overview and Summary

This matter concerned an application for access to the National Disability Insurance Scheme (NDIS) by Ms Bree Shaw. Ms Shaw sought access on the basis of a primary disability of Complex Regional Pain Syndrome (CRPS) and a secondary disability of Functional Neurological Disorder (FND), stemming from a workplace injury in August 2019. The National Disability Insurance Agency had refused her application, and the decision was under review by the Tribunal.

The Tribunal was required to determine whether Ms Shaw met the eligibility requirements for NDIS access, specifically whether she satisfied either the disability requirements or the early intervention requirements. This involved assessing whether her impairments were permanent, likely to be permanent, or likely to result in the early intervention requirements being met. The Tribunal also needed to consider whether the supports Ms Shaw required were more appropriately funded through another service system.

In its reasoning, the Tribunal acknowledged Ms Shaw's clear evidence of her CRPS diagnosis and the significant impairments she experienced since her injury, which had negatively impacted her quality of life. The Tribunal accepted the evidence provided by Ms Shaw and her husband regarding the substantial support she received. Crucially, the Tribunal found that Ms Shaw had established that there were no known, available, and appropriate evidence-based treatments likely to remedy her impairments, indicating their permanence. The Tribunal considered the recommendations from occupational therapists regarding supports for mobility, self-care, and community access, noting Ms Shaw's desire for independence.

Ultimately, the Tribunal affirmed the decision under review.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The Tribunal must undertake a precise ‘fact finding task’[9] and be positively satisfied that Ms Shaw meets either the disability requirements or the early intervention requirements.[9] National Disability Insurance Agency v Davis [2022] FCA 1002 at [42]EVIDENCE The Tribunal is provided with a substantial volume of submissions. I have considered all the evidence in detail and summarise what I consider most relevant below. Ms Bree Shaw On 11 July 2022 Ms Shaw signed an access request form to the Agency wherein she stated that she had a primary disability of CRPS and a secondary disability of functional neurological disorder (FND). Ms Shaw stated that her disability was caused by an accident or event on 5 August 2019 and that she had not sought compensation regarding that accident or event.[10][10] T Documents, T14, page 116. To substantiate her access request Ms Shaw relied on reports relating to her 2019 Workcover claim against her employer. It is uncontested that Ms Shaw sustained a workplace injury to her left toe on 5 August 2019 resulting in an undisplaced fracture involving the midshaft of the distal phalanx of the left hallux.[11] [11] T Documents, T3: Letter of Dr Benjamin Tsang Neurologist, 2 May 2021. At the hearing Ms Shaw was self-represented and her husband, Mr Foster attended to support her. Ms Shaw stated that she is ‘identified and seen as a person with a disability’.[12] She spoke about going from being a healthy, active and independent person to living with a condition that is extremely disabling to her lifestyle, stating that since her workplace injury ‘my whole world and how I lived and my life has changed’.[13] [12] Recording of proceedings at 38:38.[13] Recording of proceedings at 37:33. Ms Shaw gave evidence in respect of her tasks of daily living as follows: In activities of communication:[14]·she can make phone calls and talk on the phone in a room by herself on speaker. Ms Shaw has historically undertaken several assessments over the phone and she also used her phone to attend the hearing;·she only has ‘so much “talking time” each day’ because her lips and tongue develop ulcers on them that are extremely painful and the tremor in her jaw, lips and tongue make speech difficult;·there are days when her speech ‘goes’; or she has difficulty finding the right words such that it is ‘impossible’ to speak on the phone; ·when she is unable to find words, she is able to motion for assistance;[15]·she is unable to communicate via computer and email[16] or use a laptop due to her loss of full control over her hands,[17] and she relies on her husband to manage digital communication.[14] Applicant's response filed 22 May 2023: Annexure B, page 4.[15] Applicant’s closing submissions filed 24 June 2024, page 1.[16] Applicant’s closing submissions filed 24 June 2024, page 2.[17] Recording of proceedings at 59:41. In activities of social interaction:[18]·she attends a community pool class or Pilates class most days after driving her children to school. Once a fortnight, she may stay at the pool after class for a coffee;·she will meet up with friends and family for coffee or lunch once a month in a familiar place such as their home or a café;·she speaks to friends or family on the phone once or twice a week; ·she is able to go to shops with her husband and children; and·occasionally she interacts with friends and family on social media. [18] Applicant's response, Annexure B, pages 2 and 4.

Decision

Reasons for decision

Pursuant to section 43(1)(a) of the Administrative Appeals Act 1975 (Cth) the decision under review is affirmed.CONCLUSIONI certify that the preceding 76 (seventy-six) paragraphs are a true copy of the reasons for the decision herein of Member S Smith…………………[SGD]…………………..28 June 2024Associate

Ratio Decidendi

Legal Principle Established

Mr Wong’s opinion was that Ms Shaw would benefit from supports for completing domestic tasks and accessing the community.[63] Mr Wong also recommended that Ms Shaw use a walking stick to mobilise independently on a good day and a four-wheeled walker to provide additional support and balance on particularly bad days when mobilising longer distances or navigating unfamiliar environments.[64][63] D1, page 438.[64] D1, pages 419 and 420.CONSIDERATION Ms Shaw has a disability attributable to the impairments of a complex regional pain syndrome. She has provided clear evidence of this diagnosis[65] as well as her experience living with the resulting impairments which have negatively affected her quality of life since 5 August 2019. [65] T Documents, T3, page 33. Mr Foster also provided evidence that he provides a great deal of support for his wife and in caring for Ms Shaw’s youngest children, aged nine and thirteen years of age. I consider that Ms Shaw and her husband provided reliable evidence in this regard. Ms Shaw has established that there are no known, available, and appropriate evidence based clinical, medical, or other treatments that would be likely to remedy her impairments.[66] [66] National Disability Insurance Agency v Davis [2022] FCA 1002 at [137] to [139]. At the hearing Ms Shaw spoke of the ‘long journey’ it has been for her to accept her disability and that it is permanent.[67] It is appreciated that Ms Shaw attended the hearing while supporting her son in a difficult time and she was unable to attend in person. After the conclusion of the hearing Ms Shaw provided closing submissions and these were of assistance to the Tribunal.[67] Recording of proceedings at 40:06. In regard to supports Ms Shaw highlighted her need for independence and also to be able to provide for her family. She considered that a support worker could provide her with access to the community so that she can do the groceries and prepare meals without relying on her husband or daughter. Also, for social interaction to be able to have some outings outside of home each week. Ms Shaw clarified that ‘I haven't allowed myself to dream of what would be ideal other than just being recognised as having a permanent impairment and being a disabled person by NDIS.’[68][68] Recording of proceedings at 46:17. Mr Wong and Ms Christie are both considered to be suitably qualified as occupational therapists to have assessed Ms Shaw and make subsequent recommendations in relation to undertaking daily living activities. Their recommendations are summarised as follows:·In respect to mobility:ohome modifications including non-slip floor coating and threshold ramps/half steps and rails at entry/exit points;owalking stick;ofour-wheeled walker to provide additional support and balance on particularly bad days when mobilising longer distances or navigating unfamiliar environments.osupport worker assistance to access shops and social outings; andoswivel seat and transfer bar for the car. ·In respect to self-care:olow-cost assistive technology for the bathroom and clothes horse; andosupport worker assistance for daily routines, housework, and yard maintenance.