Shaw and National Disability Insurance Agency
[2024] AATA 2133
•28 June 2024
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 577Re 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 under review).[4] On 4 October 2022 Ms Shaw applied to the Tribunal for a review of the decision under review.[5]
[4] T Documents, T2: Outcome of internal review request dated 14 September 2022.
[5] T Documents, T1: Application for review of Ms Bree Shaw.
ISSUE BEFORE THE TRIBUNAL
To be granted access to the scheme the Tribunal must be satisfied on the evidence that Ms Shaw meets all prescribed statutory criteria at either:
·the disability requirement under section 24 of the NDIS Act; or
·the early intervention requirement under section 25 of the NDIS Act.
Ms Shaw contends that she has a permanent disability attributable to the impairments of CRPS[6] and that she satisfies both the disability requirements and the early intervention requirements.[7]
[6] T Documents, T14, page 126.
[7] T Documents, T14, pages 132-134; Recording of proceedings at 22:49.
The Agency contends that, on the evidence Ms Shaw has not demonstrated that she is able to meet:
·the disability requirements (section 24 of the NDIS Act, in particular):
osection 24(1)(c); and
osection 24(1)(e); or
·the early intervention requirements (section 25 of the NDIS Act, in particular):
osection 25(1)(b); and
osection 25(1)(c); and
osection 25(3).
THE RULES, LEGISLATION AND GUIDELINES
The National Disability Insurance Scheme Act 2013 (Cth)
Section 24: The Disability Requirements
(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 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 subsection (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.
Section 25: The Early Intervention Requirements
(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.
(2): The CEO is taken to be satisfied as mentioned in paragraphs (1)(b) and (c) if one or more of the person's impairments are prescribed by the National Disability Insurance Scheme rules for the purposes of this subsection.
(3): Despite subsections (1) and (2), the person does not meet the early intervention requirements if the CEO is satisfied that early intervention support for the person is not most appropriately funded or provided through the National Disability Insurance Scheme, and is more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or through systems of service delivery or support services offered:
(a) as part of a universal service obligation; or
(b) in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)
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 functional capacity activities at section 24(1)(c) above (the functional domains) is paragraph 5.8 of the access rules 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.
(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.
Relevant to the criteria around the early intervention requirements are paragraphs 8.1 and 8.4 of the access rules which provide as follows:
8.1 A person does not meet the early intervention requirements if the CEO is satisfied that early intervention support for the person is more appropriately funded or provided through another service system (service systems is defined in paragraph 8.4) rather than the NDIS.
….
8.4 service systems means general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:
(a) as part of a universal service obligation; or
(b) in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
I have also considered the objects and general principles of the NDIS Act and the Agency operational guidelines, in particular the access guidelines in making this decision. There is no legislative power conferred by the NDIS Act to make operational guidelines and they are issued in an exercise of executive power.[8]
[8] G v Minister for Home Affairs [2019] FCAFC 79 at [18].
Provided that access guidelines are consistent with the objects of the legislation they should be considered when deciding whether Ms Shaw satisfies the disability requirements or the early intervention requirements.
Section 24(1)(e) of the NDIS Act is informed by page 11 of the access guidelines which relevantly states:
You must be likely to need support under the NDIS for your whole life. NDIS supports are investments that help you build or maintain your functional capacity and independence, and help you work, study or take part in social life. Even if your needs go up and down over time, or happen episodically, we may still consider it’s likely you’ll need lifetime support under the NDIS. We consider your overall situation to answer this question. When we decide if you’ll likely need support under the NDIS for your whole life, we consider:
·your life circumstances
·the nature of your long-term support needs
·whether your needs could be best met by the NDIS, or by other government and community services.
For example, you may have an impairment which is caused by a chronic health condition. Many chronic health conditions are most effectively managed or remedied through medical management through the health system. If this is the case, we may decide that you don’t have a lifetime need for support under the NDIS.
When considering this criterion the Agency does not need to be satisfied that the supports required for the person's lifetime meet the reasonable and necessary criteria. The reasonable and necessary criteria are relevant to whether funding is provided, not whether a person meets the disability requirements.
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.
In activities of learning:[19]
·she enjoys reading and on a typical day she may read a book after lunch; and
·she has learned about ‘spoon theory’ and was able to use this to describe the limitations of her energy level each day.
[19] Recording of proceedings from 57:39 to 59:09.
In activities of mobility:[20]
·she drives short distances and to familiar places, and drives her children to and from school;
·she mobilises in the community with the use of a walking stick and, for busy places and longer outings by using a walker. These items were suggested to her for use by an occupational therapist (OT) and a physiotherapist;
·she mobilises around her home without a walking stick with the use of walls, benches and furniture to lean on as a guide;[21]
·she descends stairs by turning sideways and taking one step at a time;[22] and
·she does not use public transport as she is unable to do so alone.
[20] T Documents, T7: Signed page, access request form dated 6 March 2022; Applicant's response, Annexure B, page 2.
[21] Recording of proceedings at 1:09:33.
[22] Recording of proceedings at 1:26:51
In activities of self-care: [23]
·she independently toilets at home and in public bathrooms she may require assistance with using the locks on doors if it does not have a button for disabled access;
·on some days she requires assistance to step in and out of her over-bath shower. On other days she can enter her shower on her own however she is careful when doing this;
·she does not have the strength to shower each day on the basis of the step-over bath she must use to access the shower. Also, the change in temperature is difficult for her and can make her sick;
·her meals are prepared for her by her husband who will also cut up her food when required. Ms Shaw is able to heat up meals in the microwave and have lunch by herself at home;[24]
·she has trouble eating certain foods and the muscles in her mouth and jaw tire ‘really quickly’ from eating. Ms Shaw eats soft foods using only her right hand and holding weighted cutlery;[25]
·she dresses herself each day while sitting down;[26]
·she is able to occasionally make a hot drink and can pour in milk from a one-litre container.[27]
[23] Applicant's response, Annexure B.
[24] Recording of proceedings at 1:23:05.
[25] Recording of proceedings at 1:22:48.
[26] Recording of proceedings at 1:10:21.
[27] Recording of proceedings at 1:07:28.
With respect to self-management:[28]
·she will sometimes go shopping to purchase groceries with her husband or children and is able to purchase items;
·she purchases small quantities of items online around birthdays and Christmas;
·she is able to take her medications left out for her by her husband;
·she calls her General Practitioner (GP) by phone to organise her own appointments;
·she makes financial decisions jointly with her husband and manages her own bank account;
·she does not undertake domestic tasks of cooking, cleaning and gardening. These are done by Mr Foster and a paid cleaner; and
·she can assist with washing, drying and hanging small laundry items.
[28] Applicant's response, Annexure B.
At the hearing Ms Shaw emphasised the importance of being recognised as having a permanent impairment and being a disabled person by the NDIS. In relation to supports she required by the scheme Ms Shaw confirmed the ‘number one’ thing she needed was assistance to go out socially and access community because she cannot access places or go places by herself without assistance.[29]
[29] Recording of proceedings at 44:21.
Mr Ben McIvor, physiotherapist
Ms Shaw attended Mr Ben McIvor from September 2019 for physiotherapy and rehabilitation for injuries and sequelae sustained in her workplace accident.[30] Mr McIvor provided several reports to Workcover in respect of Ms Shaw’s capacity to work as well as her ongoing treatment.[31]
[30] T Documents, T9: Report of Mr Ben McIvor dated 10 May 2022.
[31] Summons documents: B6, dated 10 November 202; B7, dated 11 May 2020; B8, dated 22 June 2020; B9, dated 29 April 2021; B10, dated 30 April 2021; B11, dated 14 September 2020.
Mr McIvor’s physical observations of Ms Shaw were as follows:[32]
·stiffness in left/right thoracic rotation;
·light sensitivity;
·hypersensitivity to cold and light touch of the left toes and foot;
·diminished sharp/blunt discrimination anterior and lateral aspect of left shin and foot;
·poor single leg balance on the left-hand side;
·walks with ‘knee snap’ pattern and left great toe in dorsiflexion; and
·poor proprioceptive awareness of the left big toe.
[32] Summons documents, B11, page 165.
Mr McIvor stated that Ms Shaw’s subsequent CRPS had resulted in:[33]
[33] T Documents, T9, page 77.
·loss of upper and lower limb co-ordination and proprioception.
·significantly affected balance;
·significantly affected mobility;
·positional and non-positional vertigo and disequilibrium;
·altered sensation;
·altered autonomic function;
·fatigue/post exertional malaise;
·altered/low mood;
·altered speech; and
·vocal cord dysfunction.
In his most recent report Mr McIvor confirmed the future treatments proposed for Ms Shaw as follows:[34]
·lower and upper limb strengthening;
·balance retraining;
·maintain upper and lower limb range of motion;
·general cardiovascular fitness;
·specific vestibular intervention and rehabilitation; and
·pacing of activities and activity modification as required.
[34] T Documents, T9, page 78.
Dr Nicola Kettleton-Butler, general practitioner
Dr Kettleton-Butler was Ms Shaw’s treating practitioner since 2019.[35] On 28 February 2022 Dr Kettleton-Butler completed an access request form to support Ms Shaw’s access request to the Agency.[36] Dr Kettleton-Butler stated that Ms Shaw had a primary disability of CRPS since 8 October 2019 and a secondary disability of FND.[37]
[35] T Documents, T6, page 63.
[36] T Documents, T6.
[37] T Documents, T2.
Dr Kettleton-Butler also considered that Ms Shaw’s impairment would likely be substantially relieved with the available and evidence-based treatments of exercise physiologist, psychologist, physiotherapist, speech therapist and gastroenterologist to maintain function and range of movement and reduce pain.
On 8 June 2022 Dr Kettleton-Butler wrote a letter stating that Ms Shaw had a condition of ‘global and lateral’ CRPS that was permanent with no cure.[38] On 12 July 2022 another letter was written stating that Ms Shaw had a primary disability of CRPS and a secondary disability of FND which had been ‘more recently diagnosed’ throughout the course of seeking assessment and treatment for CRPS.[39]
[38] T Documents, T11, page 95.
[39] T Documents, T12, page 96.
On 19 July 2022 Dr Kettleton-Butler completed another access request form stating that Ms Shaw only had a primary disability of CRPS with no secondary disability and that there were no available and evidence-based treatments likely to substantially improve Ms Shaw’s impairment.[40] Dr Kettleton-Butler provided evidence of Ms Shaw’s engagement with treatments including pain specialist, dietician, speech therapist, hand therapist, physiotherapist, exercise physiologist and occupational therapist. In her forms of both February and July 2022 Dr Kettleton-Butler did not consider that early intervention supports were likely to reduce Ms Shaw’s future support needs.
[40] T Documents, T6, Access request – supporting evidence form dated 28 February 2022, pages 60 and 62.
Dr Kettleton-Butler maintained that Ms Shaw experienced difficulties in each of the functional domains and required assistance in relevant activities of daily living as follows:[41]
·Communication: Ms Shaw struggles with word selection and expressing herself at times. She also has vocal cord dysfunction which impacts on her ability to express herself vocally. Dr Kettleton-Butler’s evidence was that Ms Shaw needed another person to assist her in communication;
·Social interaction: Ms Shaw has significantly reduced this on that basis that she struggles to hold conversations and mix in groups;
·Learning: Ms Shaw’s short-term memory is impacted upon by her CRPS and she will forget simple activities. Support from another person was therefore required to help Ms Shaw to retain information and to assist her at appointments;
·Mobility: as a ‘direct result’ of CRPS Ms Shaw struggles with activities including walking, rising out of a chair, climbing stairs and walking on uneven surfaces and inclines. Dr Kettleton-Butler considered that to participate in the activity of mobility Ms Shaw required a low-set home with minimal steps, a walking stick, an electric scooter and also assistance from another person on a daily basis;
·Self-care: Ms Shaw required the assistance of another person to cut her food and assist her in meal preparation as well as dressing. Home modifications by way of a walk-through shower with no step were also considered as necessary; and
·Self-management: CRPS impacts on Ms Shaw’s memory and concentration. She therefore required assistance from another person to manage finances, organise and attend appointments and with problem-solving.
[41] T Documents, T6, pages 64-69; T14, pages 132-142.
Dr Benjamin Tsang, neurologist
On 2 May 2021 Dr Benjamin Tsang reviewed Ms Shaw on referral for opinion of her vestibular symptoms associated with CRPS including dizziness, visual vertigo and head motion intolerance.[42]
[42] T Documents, T3: Report of Dr Benjamin Tsang dated 2 May 2021, page 33.
Dr Tsang physically examined Ms Shaw and concluded that although some signs commonly found in FND were elicited the end diagnosis was one of severe CRPS. Dr Tsang also considered that Ms Shaw had an active migraine disorder likely contributing to recurrent spontaneous vestibular syndrome as well as explaining her increased episodic prolonged headache disorders as well as other brain-specific symptoms.
It was recommended that Ms Shaw undertake formal audio-vestibular testing in regard to her significant visual vestibular mismatch symptoms and also to continue vestibular rehabilitation therapy. He also considered that she may benefit from hand and limb occupational therapy, neurological speech therapy and a general dietician.[43]
[43] T Documents, T3, page 34.
On 13 May 2021 Dr Tsang wrote a letter to Workcover Queensland recommending that Ms Shaw be treated within a multidisciplinary team including both a pain specialist and rehabilitation physician. He stated that ‘In my opinion, she needs this full MDT team to collectively decide on return to work or suitable duties program.’[44]
[44] Summons documents, B15: File 15, Letter of Dr Tsang dated 13 May 2021.
Ms Brody Christie, occupational therapist
On 30 May 2022, Ms Brody Christie, occupational therapist assessed Ms Shaw at her home and provided a report for the purposes of determining Ms Shaw’s current and future support needs and functional review in relation to her ‘upcoming NDIS plan’.[45]
[45] T Documents, T10: Report of Ms Brody Christie dated 30 May 2022.
Ms Shaw had referred herself to Ms Christie and provided her with evidence in relation to her medical history. She was subsequently assessed on the basis of diagnoses of CRPS and FND.[46] Ms Christie stated that Ms Shaw’s condition of CRPS caused her ‘widespread symptoms that include both physical and psychological symptoms which impacts all aspects of her everyday living skills.’ In relation to FND it was considered that this caused Ms Shaw to experience motor dysfunction, sensory dysfunction and altered awareness.
[46] T Documents, T10, page 80.
Ms Christie conducted the following assessments:
·World Health Organisation Disability Assessment Schedule (WHODAS) 2.0;
·Care and Needs Scale (CANS); and
·Lower Extremity Functional Scale (LEFS).
Ms Christie concluded that Ms Shaw had a moderate/severe level of disability. In the assessments above Ms Shaw displayed a high degree of difficulty with activities of self-care and her life activities and participation in society as being severely impacted by her disability.
Ms Christie observed that at her current level of function Ms Shaw was dependent on others to complete laundry-based tasks and budgeting. Ms Christie explained that Ms Shaw was unable to do some tasks including standing for long periods and undertaking heavy-lifting work around the home.
Ms Christie made recommendations for Ms Shaw as follows:
·ongoing GP and specialist review;
·support worker assistance for daily routines, housework and access to community;
·home modifications including non-slip floor coating and threshold ramps/half steps and rails at entry/exits points;
·capacity-building supports; and
·assistive technology.
Dr Andrew Swayne, neurologist
Ms Shaw attended Dr Swayne’s neurology clinic on 15 June 2022 in regard to her access request.[47] Ms Shaw reported to Dr Swayne that she had been receiving ongoing review with a physiotherapist and exercise physiologist and achieving reasonable management outcomes through funding under her Workcover claim.
[47] Summons documents, B14: Report of Dr Andrew Swayne dated 15 June 2022 and amended 27 July 2022.
Unfortunately the Workcover funding had since expired and Ms Shaw was hoping to continue that level of support through her NDIS application which had been rejected. Ms Shaw confirmed that she would be re-submitting this application in the hope of achieving ongoing funding.
Dr Swayne stated that Ms Shaw was affected by a number of neurological symptoms in relation to CRPS and FND and that these diagnoses may have ‘some overlap’ in terms of their symptomatology that may be displayed. He considered that the diagnoses were permanent and that early and ongoing intervention will lead to improved long-term outcomes.
Mr Matthew Wong, occupational therapist
On 27 November 2023 Mr Wong assessed Ms Shaw at her home in order to recommend an appropriate level of support for Ms Shaw to ‘achieve her goals and live a meaningful everyday life’.[48] Mr Wong subsequently prepared a written report dated 15 December 2023.
[48] D1: Functional capacity assessment report of Mr Matthew Wong dated 15 December 2023, page 417.
Mr Wong described Ms Shaw impairments as follows:
·CRPS:
oglobal pain – particularly in left foot and elbow;
odifficulties completing self-care tasks;
odifficulties mobilising independently without aids;
odifficulties having energy to access cognitive capacity;
odifficulties having energy and physically accessing the community and socialising;
ounable to participate in large domestic cleaning tasks;
odifficulties motor planning; and
odifficulties with proprioception.
·Acute vestibular syndrome:
opositional and non-positional vertigo.
·FND:
ominimal difficulties were reportedly related to this condition.
Mr Wong also conducted a WHODAS 2.0, LEFS and Life Skills Profile (LSP-16) assessment. In the LEFS Ms Shaw scored 10/80 which was 12.5% of ‘maximal function’ and indicated the reduced overall ability to engage in activities of daily living as a result of her symptoms of fatigue, pain, reduced proprioception and challenges with motor planning.[49]
[49] D1, page 439.
On the day of the assessment Ms Shaw experienced an ‘average day’ in regard to her symptoms.[50] Ms Shaw reported that she experienced ‘good days’ of functioning approximately two days a week and ‘bad days’ of functioning five days a week.
[50] D1, page 418.
For communication:
·Over the course of the two-hour assessment Ms Shaw was able to verbally communicate and describe her relevant history, the current supports she receives, her treatments and how she benefits from them, her routines, her interests, and her overall ability to undertake activities of daily living relating to self-care, domestic tasks, community access and social interactions; [51] and
·Ms Shaw was able to independently complete psychometric screening on the computer.[52]
[51] D1, pages 417 and 436.
[52] D1, page 429.
For social interaction:
·Ms Shaw was able to attend to questions and discussion throughout the assessment;[53]
·Ms Shaw was observed to be socially appropriate during the assessment. No difficulties were observed or reported in this area; and
·Ms Shaw demonstrated the capacity to maintain and engage in conversation without assistance.[54]
[53] D1, page 436.
[54] D1, page 424.
For mobility:[55]
·Ms Shaw mobilised independently and was able to walk approximately 100 metres to 150 metres without an aid in her home. She was observed to have ongoing breaks while mobilising including leaning on walls or furniture every couple of minutes;
·Ms Shaw remained sitting for approximately 1.5 hours and changed position regularly;
·Ms Shaw was observed to bend down to the bottom of the fridge to pick up items and to take out clothes from a drawer second from the floor;
·Ms Shaw was able to do some twisting during her transfers although reported that her capacity for bending and twisting can decrease with fatigue; and
·Ms Shaw’s mobility was not impacted by deconditioning or self-limiting behaviour and she demonstrated a proactive approach in engaging in as much as she can with recommendations from her treating healthcare team to maintain her current level of mobility and prevent functional decline.[56]
[55] D1, page 420.
[56] D1, page 423.
For self-care:
·Mr Wong reported a reduced capacity for Ms Shaw to undertake self-care tasks due to pain, muscle weakness and proprioception difficulties as a result of CRPS;
·Ms Shaw reported that the cooking is predominantly done by her partner and that she is able to assist with some steps of meal preparation such as chopping some foods if necessary;
·On a good day Ms Shaw is able to dress herself by sitting on her bed and on a bad day she may require assistance with fine motor tasks of dressing;[57]
·Ms Shaw would shower approximately every two days and on a ‘really bad day’ will have her husband assist her to transfer to and from the bath;
·Mr Wong recommended an over-toilet frame, a bath board/transfer bench, grab rails, a swivel cushion and car transfer bar and a clothing horse to increase safety and reduce physical exertion and the level of assistance required in activities of self-care.[58]
[57] D1, page 431.
[58] D1, page 426.
For self-management:
·Ms Shaw reported that she finds it difficult to use a computer due to the lighting from the screen and flicking between screens and that she ‘often’ relied on her partner to manage digital communication;[59]
·Ms Shaw was able to make personal and family decisions and also problem solve on a good day. On a bad day she would likely have more difficulty and would typically ask for help to make a decision or problem solve an issue;[60]
·Ms Shaw reported difficulties in accessing her cognitive capacity for planning and organisational skills due to the level of energy she puts towards her mobility;[61]
·Ms Shaw demonstrated insight into difficulties she has such as walking on uneven surfaces outdoors, wearing certain types of clothing and carrying heavy items and has adapted her behaviours and routines accordingly;
·Ms Shaw was able to understand the extent to which she is capable of mobilising based on how she is feeling that day.[62]
[59] D1, page 437.
[60] D1, page 427.
[61] D1, page 436.
[62] D1, page 434.
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; and
oswivel seat and transfer bar for the car.
·In respect to self-care:
olow-cost assistive technology for the bathroom and clothes horse; and
osupport worker assistance for daily routines, housework, and yard maintenance.
Dr Kettleton-Butler and Dr Tsang have also assessed Ms Shaw and made recommendations for supports to maintain her current level of functioning as follows:
·engagement with exercise physiologist, psychologist, physiotherapist, speech therapist and gastroenterologist to maintain function and range of movement and reduce pain;
·occupational therapy, neurological speech therapy and a general dietician for rehabilitation from CRPS; and
·ongoing GP and specialist review.
The Tribunal must consider whether Ms Shaw is likely to require support under the scheme for her lifetime. This was discussed in the matter of National Disability Insurance Agency v Foster [2023] FCAFC 11 where it was stated that:[69]
'The focus of s24(1)(e) is on whether a prospective participant is likely to require support under the NDIS, or whether those support needs are most appropriately met by other systems'.
[69] See also Forbes and National Disability Insurance Agency [2023] AATA 2408 at [115] – [126].
The Tribunal is satisfied that Ms Shaw requires supports in relation to her disability as outlined at [68] and [69] above. There is no evidence that Ms Shaw has made any inquiries through alternative providers of these supports such as the Queensland Community Support Scheme (QCSS) and the public health care system,[70] such that the Tribunal cannot be satisfied that Ms Shaw’s support needs are not best met by another service system.
[70] See [15], Reasons for Decision.
On the evidence and in faithfulness to the relevant legislation, case law and guidelines the Tribunal cannot be satisfied that Ms Shaw is likely to require support under the scheme for her lifetime.
Section 24(1)(e) and section 25(3) of the NDIS Act are not met.
Ms Shaw has established that she has a disability attributable to impairments resulting from CRPS and that these impairments are permanent or likely to be permanent. The Tribunal is satisfied that section 24(1)(a) and section 24(1)(b) of the NDIS Act are met.
The access criteria under section 24 and section 25 of the NDIS Act are cumulative and in these circumstances Ms Shaw is not able to meet either the disability requirements or the early intervention requirements to become a participant in the scheme.
Pursuant to section 43(1)(a) of the Administrative Appeals Act 1975 (Cth) the decision under review is affirmed.
CONCLUSION
I 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 2024
Associate
Date of hearing:
Date final submissions received:
11 June 2024
24 June 2024
Advocate for the Applicant:
Ms Bree Shaw
(Self-represented)
Solicitor for the Respondent:
Mr Jack Watts
(Mattocks Lawyers)
Counsel for the Respondent:
Ms Emma Fitzgerald
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