Short and National Disability Insurance Agency

[2022] AATA 549

Short and National Disability Insurance Agency [2022] AATA 549 (21 March 2022)

Division:National Disability Insurance Scheme Division

File Number(s):      2019/5878

Re:Amber Short

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Deputy President B W Rayment OAM QC

Date:21 March 2022

Date of written reasons:        21 March 2022

Place:Sydney

The reviewable decision is set aside and substituted with a decision that the applicant meets the disability requirements in s.24 of the National Disability Insurance Scheme Act 2013 (the Act) and meets the access criteria specified in s.21 of the Act.

..................[sgd]......................................................

Deputy President B W Rayment OAM QC

CATCHWORDS

NATIONAL DISABILITY INSURANCE SCHEME – access to scheme – Hypermobility Syndrome, Fibromyalgia and Chronic Fatigue – permanence of the condition - Decision under review set aside and substituted

LEGISLATION

National Disability Insurance Scheme Act 2013
National Disability Insurance Scheme (Becoming A Participant) Rules 2016

CASES

Mulligan v National Disability Insurance Agency [2015] FCA 544

REASONS FOR DECISION

Deputy President B W Rayment OAM QC

21 March 2022

1. Ms Amber Short applied to the NDIA for access to the National Disability Insurance Scheme on the basis that she met the disability requirements specified in section 24 of the National Disability Insurance Scheme Act 2013 (the Act) and also that she met the early intervention requirements mentioned in section 25 of the Act.  The NDIA rejected both applications and Ms Short applied for review in this Tribunal.

2. In the Tribunal the case was heard at length.  Five hearing days were occupied in its exposition.  One of the principal disputes in the case arose from the fact that Ms Short's treating rheumatologist, Associate Professor Joshua, gave detailed evidence supporting her case and the respondent called another rheumatologist, Professor Youssef, who denied many of the opinions and conclusions stated by Dr Joshua.  As the case emerged, it became clear that the respondent's main case to defend the applicant's allegations was based upon a submission that Ms Short's evidence should not be accepted in the Tribunal.  For that purpose she was cross-examined and recalled to the witness box on several occasions during the hearing.

3. Both sides were represented by counsel.  Ms Sant of counsel appeared for the applicant on the instructions of Ms Finlay of the Legal Aid Commission of New South Wales.  Mr Gollan of counsel appeared for the respondent on the instructions of the Agency through one of its solicitors.

4. The case primarily concerned the section 24 application and I will deal with that case first in these reasons for decision.

5. It is not disputed that Ms Short meets the age and residency requirements specified in the Act. Most of the provisions of section 24 of the Act were in dispute, although there was a large measure of agreement on both sides about the conditions from which Ms Short suffers.

6. Section 24 provides 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 to one or more impairments attributable to a psychiatric condition; 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, or psychosocial functioning in undertaking, 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.

7. Neither the word "disability" nor the word "impairment" has any definition in the statute. Speaking generally, an impairment for the purposes of section 24 refers to a deterioration in functioning of, inter alia, neurological sensory or physical systems. Ms Short has certain psychiatric conditions which are not relied upon for the purpose of these proceedings.

8. A useful starting point in the consideration of section 24 is the judgment of Mortimer J in Mulligan v National Disability Insurance Agency [2015] FCA 544. The passage at paragraphs 51 - 56 of her Honour's reasons for judgment were as follows:

   51.      Some general observations should be made about these matters. The term "disability" is used in the Act, and in s 24, as a descriptive concept for the overall effect of a person's impairments on that person's abilities to participate in all aspects of personal and community life. Threshold provisions such as s 24 operate not on the concept of disability, but on the concept of an impairment, which, as the Tribunal correctly observed at [19] of its reasons, is generally understood as involving the loss of or damage to a physical, sensory or mental function.

   52.      Although an impairment may, in general terms (and, for example, in the terms of Art 1 of the Convention on the Rights of Persons with Disabilities extracted above) 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, after assessment in accordance with Pt 2 of Ch 3 of the Act.

   53.      At p 14 of the revised Explanatory Memorandum, the purpose of what became s 24 is described:

   Clause 24 sets out the disability requirements a person must satisfy in order to become a participant in the NDIS launch.  The disability requirements are designed to assess whether a prospective participant has a current need for support under the scheme, based on one or more permanent impairments that have consequences for the person's daily living and social and economic participation on an ongoing basis. This clause also implements recommendation 3.2 of the Productivity Commission report.

   54.      Recommendation 3.2 of the Productivity Commission Inquiry Report, "Disability Care and Support" (31 July 2011), stated:

   Individuals receiving individually tailored, funded supports through the NDIS:

   ·should have a disability that is, or is likely to be, permanent, and

   ·would meet one of the following conditions:

   ·have significantly reduced functioning in self-care, communication, mobility or self-management and require significant ongoing support;

   ·be in an early intervention group, comprising individuals for whom there is good evidence that the intervention is safe, significantly improves outcomes and is cost effective.

   In exceptional cases, the scheme should also include people who would receive large identifiable benefits from support that would otherwise not be realised, and that are not covered by the groups above. Guidelines should be developed to inform the scope of this criterion and there should be rigorous monitoring of its effects on scheme costs.

   55.      Using the concept of impairment enables assessment of the severity and permanency of a person's condition, and of the effects of that condition through not only the evidence of an applicant, but also medical and clinical evidence. The legislative scheme contemplates a relatively high degree of precision by decision-makers (see, for example, the six activities in s 24(1)(c) in assessing what a person can or cannot do. The assessment to be undertaken is avowedly functional, and multi-faceted.

   56.      That being the case, no arbitrary limits are placed on access to the NDIS. No decision-maker need be satisfied a person's impairment is "serious", or more serious than another person's.  No qualitative judgments in that sense are called for. Rather, the legislative scheme is based on a functional, practical assessment of what a person can and cannot do. Critically, the scheme makes detailed provision for that assessment, and it is sufficient for a person to have substantially reduced functional capacity in relation to one activity. That, in my opinion, recognises the spectrum of impairments which can be experienced by persons with disabilities, and accommodates different abilities within one person in terms of her or his daily activities. That is why a detailed functional assessment is so important.

9. Section 24 of the Act should be read together with the National Disability Insurance Scheme (Becoming A Participant) Rules 2016 (the Rules), the purpose of which is to assist the CEO of the Agency (and, therefore, this tribunal on review) to determine who becomes a participant.  Part 5 of those Rules provides as follows:

   5.1      The Act sets out when a person meets the disability requirements. The requirements are met if:

   (a)         the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments, or to one or more impairments attributable to a psychiatric condition; and

   (b)         the person's impairment or impairments are, or are likely to be, permanent (see paragraphs 5.4 to 5.7); and

   (c)         the impairment or impairments result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the following activities: communication, social interaction, learning, mobility, self- care, self-management (see paragraph 5.8); and

   (d)         the impairment or impairments affect the person's capacity for social and economic participation; and

   (e)         the person is likely to require support under the NDIS for the person's lifetime.

   5.2      In relation to the above, an impairment that varies in intensity (for example because the impairment is of a chronic episodic nature) may be permanent, and the person is likely to require support under the NDIS for the person's lifetime, despite the variation. Paragraphs 5.1 and 5.2 summarise section 24 of the Act.

   5.3      This Part sets out rules relating to some of the elements in paragraph 5.1 above, however, in order to meet the disability requirements, all of the requirements in that paragraph need to be satisfied. 

   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.

   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.

10. The background to the review appears from a clearly expressed statement of Ms Short filed in these proceedings in June 2020 and a later updating statement filed in these proceedings dated 10 June 2021.

11. Ms Short was born in March 1986 and is now 36.  She finished high school in 2003 at the age of 17.  In her final year at high school she was diagnosed with Chronic Fatigue Syndrome  which caused her to fall asleep in class sometimes and to miss some classes.  She began tertiary study in a number of institutions in 2004, 2006 and 2013.  She enrolled in the degree of Bachelor of Biomedical Science at the Australian Catholic University in 2015 and in 2016 transferred to a Bachelor of Medical Science degree at Macquarie University.  That degree is soon to be completed but has been delayed.  Much of the university studies at Macquarie have been done by online learning.  In late 2018 she took off most of a semester to attend Lady Davidson Rehabilitation Home when her mobility became very poor.

12. She was given a Disability Support Pension in 2007 and has been casually employed in a number of roles.  She worked as an office administrator, a nanny/babysitter, and her predominant role in recent years has been as a life model.  It suits her to be able to do work as a life model because she can adapt to what she is physically capable of doing on the day.  She needs rest after each period of work done as a life model.  She works on average about three to four hours a week but does not work every week.  Her work as a life model stopped because of the lockdown at various points of time.

13. Her diagnosis with Chronic Fatigue Syndrome was a diagnosis done by Dr Wells, an immunologist at Royal North Shore Private Hospital.  In 2008 her GP, Dr Ling, diagnosed her as suffering from Fibromyalgia.  She was diagnosed with Bipolar Disorder by Dr Choudhary, psychiatrist.  That diagnosis was made in the year 2016.  In 2017 she was diagnosed with Gastroparesis by a gastroenterologist.

14. In 2018 she was diagnosed with Ehlers-Danlos Syndrome/Hypermobility Spectrum Disorder by Dr Joshua, her treating rheumatologist.  She was also diagnosed in the same year with Dysautonomia by a cardiologist.

15. The medical opinion of Dr Joshua is to the effect that most of her physical conditions are caused by her Hypermobility Spectrum Disorder, including Fibromyalgia, Chronic Fatigue Syndrome, migraines, Dysautonomia and Gastroparesis.

16. As Dr Joshua also explained, the agreed conditions for a diagnosis of Ehlers-Danlos Syndrome were altered in the 2017/2018 period.  The preferred diagnosis is now described as Hypermobility Spectrum Disorder, and that is common ground between Dr Joshua and Dr Youssef.

17. She has had several emergency hospitalisations due to suicide attempts, the first in 2009 and the second in 2016.

18. For the last 13 years, she said in her 2020 statement, she had used physiotherapy on a regular basis, first with Mr Anthony Moore and later with Mr Wray, physiotherapist.  I have a report from Mr Moore and from Mr Wray and Mr Wray gave oral evidence before the Tribunal.  She has also used massage for around 15 years with various practitioners and has used the services of a chiropractor and an osteopath.

19. When she was at Lady Davidson Rehabilitation Hospital in late 2018 she participated in physiotherapy each morning and did micro-exercises, breathing exercises and hydrotherapy each afternoon.  The time at Lady Davidson was beneficial and she appreciated the fact that there were shower chairs and was able to regain mobility as a result of the treatment she received at Lady Davidson.  Subsequently she attended an outpatient program at Hunters Hill for hydrotherapy, dietitian and group physio exercise.

20. Typically she participated at that time in hydrotherapy once a week and found that the exercise made her stronger.  At the end of each day she said she went for a short walk requesting to sit from time to time during her walk.  She feels less pain when she wears orthotics, compression leggings and an SI belt.  She also uses a walking stick from time to time.

21. In July 2019 she had a bilateral breast reduction in the hope that it would reduce some of her back pain and migraines but found that reduction in pain did not occur.  She is, nevertheless, generally more comfortable following the breast reduction.

22. She has acupuncture on a regular basis to alleviate migraines.

23. She explains that her disabilities affect her on a day-to-day basis in that they affect her entire body, not just a single limb or a single sensory organ.  She experiences, she says, a lack of mobility caused by pain, severe lethargy or significant post-exertional malaise.  She says that she has regular subluxations including in her hips and shoulders resulting in extreme pain when walking, bending, carrying things, reaching or extending arms repeatedly or for heavy loads such as doors, laundry or groceries.  The evidence suggests that she cannot lift objects weighing more than three kilograms.

24. If she cannot access disabled parking she has often asked others to drive her to the door of premises which she attends.  She says that she struggles to carry more than about two litres of milk, a loaf of bread and a hand of bananas.  She often struggles to open jars and bottles requiring the assistance of her house mate.  If she’s out having lunch she will ask strangers to open her drink for her, open doors even of fridges and help her get up from sitting or reach for something.

25. When she washed and maintained her hair she found it difficult and that it caused her shoulders to sublux too often so she cut her hair extremely short.  She says that her shoulders sublux when she hangs washing on a washing line.  She can make use of a small rack rather than using a washing line unless the objects are larger such as towels and sheets, in which case she requires assistance.  She says that her shoulders pop out when getting dressed sometimes or when she rolls over in her sleep which can sometimes wake her because of pain which she suffers.

26. She says that she wakes up typically between 9 and 11 am depending on the quality of sleep which she has had and if she has an appointment or a class she tries to avoid having them before 11.  She says it often takes her up to two hours to be fully awake.  When she wakes up she feels nauseous and so she is usually not hungry for a while but drinks water instead.  After breakfast she has a shower and dresses and has a small rest to recover from the exertion involved.

27. She says she takes frequent rests, sometimes after lunch and typically rests from about 5 pm onwards and watches TV as she is too tired to read or pay attention to her lectures.

28. She has good days and bad days.  Sometimes she will sleep for a whole day due to migraine type symptoms, severe pain or severe lethargy.  She finds that she struggles coming up the front stairs (which are few in number) and that going down the stairs is painful but not prohibitively so.

1. Her statement of 2021 mentions that in February last year her housemate had a stroke and went to stay with his parents for a month.  It then became clear to her how much she relied upon him even for simple tasks.  Her groceries ran out, her laundry piled up and she started to notice she was more exhausted.  Many things which her housemate did to assist her were no longer done for her.  She had to resort to online grocery shopping even though it was expensive for her.

2. For the most part the matters set out by Ms Short in her two statements were not controversial.  There are some exceptions to that which will be referred to further below.  The statement has been prepared with care and designed to provide a clear account of her subjective appreciation of her circumstances.

3. I will discuss the oral evidence of the applicant and her cross-examination later in these reasons.

4. Dr Joshua, who practices as a rheumatologist and who has an appointment as Associate Professor at Macquarie University, initially reviewed Ms Short in May 2018.  He also saw her in August 2018, October 2018 and February 2019.  He consults with her by telephone at least annually to be informed of current developments.

5. The doctor lists her problems as Hypermobility Syndrome, Fibromyalgia and Chronic Fatigue, amongst the other conditions referred to above and certain other conditions not directly relevant to this review.  From his first review of her in May 2018 he noted her hypermobile joints, joint subluxation with skin elasticity, skin striae, mild scoliosis and also noted her dysautonomia symptoms suggestive of coexistent Postural Orthostatic Tachycardic Syndrome and poor cognition in association with migraines.  He expressed the view that the Fibromyalgia and the Chronic Fatigue are phenomena related to her hypermobility. 

6. He said in a 2020 report that her outcome has been very poor with quite marked weakness, low endurance and an inability to carry more than three kilograms because of pain and disability.  He said she has difficulty performing household duties such as making her bed, cleaning, doing washing and grocery shopping for which she needs assistance.  She will often use a walking stick, he said, or a wheelchair to try and improve her mobility and has difficulty with public transport for those reasons.

7. He said that the effectiveness of treatments attempted with her has been poor and there is significant concern about her ability to have any substantial improvement.  He commented that her prognosis is guarded with regard to disability as there is no cure for the hypermobility and related conditions and treatments are generally only supportive rather than curative.

8. In oral evidence Dr Joshua said that the hypermobility is a structural problem that will always be permanent and with de-conditioning with reduced activity, will get worse.  Her Chronic Fatigue, he said from her description is going to be permanent because it has been going on for so long. He commented that it seems unlikely that she will have any improvement with orthostatic medication and that the chronic pain is also unlikely to improve.

9. As to her Fibromyalgia he described it as severe because of the significant pain which she suffers and said that as a result her function is extremely poor.  Similarly, he said (Tr 63) that her Hypermobility Syndrome is severe because she is having joint subluxation, and skin elasticity proven through the skin changes which she has.  As to the future, he said that in Ms Short’s case she has reduced muscle function and also has problems with her nutrition.  She will be likely to have accelerated joint harm over time, particularly when it moves out of position.  He expressed disagreement with a view of Professor Youssef that her problems will become less over time.

10. He said at page 65 that he wished her to be obtaining advice from people who are skilled to help manage others with joint subluxations and to manage her strengthening programs.  He commented that in Ms Short’s case everything she does results in some energy loss.  So when she goes to do things her energy is reduced and she might need more supports.  If her activities are increased she will require more support to manage.  It is for that reason, he said, that she may use a walker, a walking stick or a wheelchair. 

11. He described the migraines from which she suffers as cervical headaches which arise from instability of her neck.  He said that hypermobility was a primary cause for her reduced mobility.  He said that she will also have reduced mobility because of problems from fatigue.  He described her as extremely compromised when compared to a (normal) university student of 35.  He said that she was well below any function that would be expected from someone who is 35.  Even if compared to somebody at 60 or older she would be classed as extremely compromised in her ability to do things.

12. In terms of her activities of everyday life he said that she has a substantially reduced function in that she is unable to do things such as clean her house, get her shopping, look after her pets or do any other activity beyond survival in a lot of ways.  He said that she was compromised in multiple aspects.

13. He was asked in cross-examination by Mr Gollan whether in many respects he relied upon Ms Short to tell him what it is that she can and can’t do within the content of the day.  He replied that he did rely upon her reports and what she was functionally able to show him that she was able to do and through the reports of her occupational therapist and physiotherapists that were provided to him.

14. He said that because she had significant problems with hypermobility it would be normal for a person with those problems to have difficulty with lifting heavier weights.  He said that she has significant problems to her function because of her subluxation.

15. He said that in her degree of joint subluxation and her skin changes her scoliosis and dislocatable joints:

    I think we can see the amount of difficulty she is having versus other people who have hypermobility and do not describe that amount of joints coming apart.

16. Dr Joshua stressed that his examination of the applicant tended to confirm the reports which she made of subluxation.

17. Both rheumatologists called agreed on the conditions from which the applicant suffers, namely Chronic Fatigue Syndrome, Fibromyalgia, Dysautonomia, Gastroparesis, and Hypermobility Spectrum Disorder.

18. Both doctors examined the applicant.  Dr Joshua made it clear that his diagnosis depended both upon his physical examinations of the applicant as well as her self-reports. Dr Youssef found no muscle wasting in Ms Short’s legs. Precisely what Dr Youssef made of that finding is not entirely clear. When it was put to Dr Joshua he said that part of the applicant’s treatment involved an exercise program, and that muscle wasting would not be expected unless she spent significant time in a wheelchair, which is not suggested.  Dr Youssef had self-reports by the applicant, much the same as her evidence before the Tribunal, and much the same as were reported by Dr Joshua and other witnesses.  However it was implicit in Dr Youssef’s reports and oral evidence that he did not accept the applicant’s self-reports.

19. Dr Youssef seems to have placed some importance on the fact that when, at the time of his examination of the applicant, she walked into his room, she carried a walking stick. After the hour interview, he said she walked out “with a normal gait”.  Cross-examination of the doctor by Ms Sant established that for the most part she was seated during the consultation. That would suggest that her walking out of the room with a normal gait may have owed something to the rest which she had had during the consultation.  However Dr Youssef asserted during re-examination that he took it that she was embellishing the adverse effects of her disabilities.

20. The instructions given by the Agency to Dr Youssef included an unusual feature.

21. Dr Youssef saw the applicant on 11 January 2021, and had before him a letter of instructions dated 7 January 2021.  On 5 February 2021, several days before Dr Youssef’s report was dated, the Agency sent him what it described as “additional material for consideration in the preparation of your report”, also asking him not to forward or share the documents attached. The attachment was a document about the applicant described as an “Intelligence Report”.  The report stated that it had been prepared by the NDIA Fraud Intelligence Team, described as not being lawyers.  It appears to have been prepared in October 2020. It commented upon certain Facebook and LinkedIn social media posts made by the applicant.  Some posts exhibited to the Intelligence Report are dated from 2015 and 2017, before the year 2018 when the applicant says her condition deteriorated significantly.

22. Very limited evidence was led by either party about the contents of the Intelligence Report. Ms Sant elicited from Dr Youssef that he did take it into account (Tr 115). Mr Gollan did not ask any questions designed to support the inferences drawn by the NDIA Fraud Intelligence Team.  The applicant tendered some other posts made by the applicant, apparently for the purpose of suggesting that the Fraud Intelligence Team had chosen the posts selectively.

23. Mr Gollan put to the applicant that in September 2018 she had written to Aldi stating “we are a regular shopper at your Gladesville store.  In the last week twice there has been no strawberries on the shelves, we assume is in reaction to recent needles found elsewhere …” (Tr 52). That communication may have been the basis of some remarks in the Intelligence report.  Ms Short may have been accompanied on her shopping trips, because of her use of the word “we”.  The only statement to the Agency made by her about shopping appears to be T16, of August 2019 stating that she does not shop alone.

24. If the NDIA Fraud Intelligence Team was relying on the communication to Aldi cross-examined upon by Mr Gollan, it does not falsify the statement at T16, because the communication to Aldi uses the word “we”.

25. Similarly, Dr Youssef was not asked in cross-examination whether he reported on the assumption that the Intelligence Report was correct.  In his report at page 20 he drew upon the Intelligence report at page 20 to conclude that the applicant does not manifest significant functional impairment from the chronic pain she reports.  He provided a summary of the Intelligence Report at pages 16 and 17 of his report, suggesting no criticism of it.

26. It seems to me to be regrettable that the Intelligence Report was sent to Dr Youssef.  His report shows at pages 16,17 and 20 that he placed some reliance upon it. For reasons I have mentioned, it is far from sound on its face.

27. Returning to the differences between Dr Joshua and Dr Youssef, Dr Joshua regarded the condition of hypermobility syndrome to be without a cure, and indicated in his oral evidence at Tr 61 that hypermobility is a structural problem which will always be permanent and said that with deconditioning with reduced activity will get worse.  He also described the chronic fatigue as permanent and said that the chronic pain and fibromyalgia is also very difficult to treat and improve.

28. Dr Youssef agreed that there is no cure for hypermobility (Tr 118) but said that it tends to be less of a problem over time as patients get much older.  His position is clarified by his answer at Tr 105 by saying that its not a condition where patients become more hypermobile. 

29. It seems to me that the two rheumatologists differ not as to permanence (the significant issue under s.24(1)(b), nor as to whether there is any cure (a significant issue under rule 5.4) but as to whether it will get worse over time. That is not an issue under s.24(1)(b). In any event, Dr Joshua made a reference to literature at the foot of Tr 64, which suggests that joint surgery may become necessary for a person with non-life threatening joint hypermobility.

30. Dr Joshua expressed the view that in a number of areas, the applicant’s impairments result in substantially reduced functional capacity to undertake activities, particularly mobility and self-care. That view was based upon the applicant’s self-reports, but also upon his own examination of her, including that her ligaments and her skin and her joints all show evidence that her movements are excessive in their distensibility compared to normal, and cause her functional compromise (Tr 60). See also his answer at Tr 63 on the question of severity and the reference to skin elasticity proven through the skin changes she has. Dr Youssef had substantially the same self-reports, but did not regard them as supported by his examination.  His report contains a number of assertions that he saw no evidence to support her self-reports of widespread pain.  Striae (stretch marks) found on examination by Dr Joshua are not mentioned by Dr Youssef in his report.  Cross-examination of Dr Youssef on the matter at Tr 126 produced evidence as follows: He agreed that in some patients with hypermobility skin striae are present, caused by the elasticity. Asked whether she had some striae, he said;

    “Let me just check though my report. I didn’t notice any. There were scars over her forearms, there was no wasting, certainly there was no – there was laxity over the neck. I didn’t notice any major striae, yes, she may have had some striae, yes. I would have documented it if I thought there were significant striae, yes.”

31. At the end of the day, a preference must be expressed for one or other of the rheumatologists.  I prefer the evidence of Dr Joshua, which was the result of a number of interactions with the applicant, and led him to describe the confirmation of her self-reports which he discovered on examination, about which he gave convincing evidence. Also as mentioned below, the applicant had from May 2017 regular consultations with the physiotherapist Mr Wray, whose examination of her led him to conclude that she suffered from hypermobility.

32. Three other witnesses gave relevant evidence in the review. They were the applicant’s mother, physiotherapists and occupational therapists.

33. The applicant’s mother said that in recent times the applicant had moved in with her and her husband after her flat mate suffered a stroke. She described her observations at that time, including that she barely leaves the home, can go to the backyard because it is flat. She cooks her meals, does her laundry and changes the sheets on her bed. Before she moved in, she would visit the applicant fortnightly, doing a shop with her, taking her sheets and towels home to wash and dry and returning them a fortnight later.  When shopping with her, Mrs Short said that the applicant walked very slowly, picking up lighter items at her height. She said that she herself picks up everything that requires bending down or is heavier, such as two litres of milk.  She puts most things in the trolley, loads and unloads the car.  I accept Mrs Short’s evidence.

34. Mr Moore, a physiotherapist who treated the applicant from 2009 until 2017 signed a statement describing those years, in which he stated amongst other things that over those years, he noticed a slow and steady functional decline in the applicant.

35. The current physiotherapist, Mr Wray, gave oral evidence.  He also produced notes which he (or colleagues from his practice) had made. As at May 2020 he said that since her first appointment in May 2017 she had attended 68 treatments.  He knew of her fibromyalgia and suspected hypermobility before that diagnosis was made by Dr Joshua in 2018. His note of May 2017 includes a note that her shoulders were hypermobile. He was aware of chronic pain, subluxed joint problems, muscle spasms, fluctuating pain levels, poor or decreased muscle conditioning resulting in joint instability. He said that her day to day functioning depended on whether she had a flare-up of pain, which would produce a decrease in mobility. In September 2018 she acquired a walking stick and began to use a sacroiliac joint belt to improve stability.

36. Mr Wray thought that her physiotherapy should best be provided weekly rather than fortnightly. She benefits in his opinion from exercise he recommends and from physical treatments provided by him as her physiotherapist.

37. He said in oral evidence that he found instability in the applicant’ shoulders and that he has found her shoulder sitting anterior to where it should have been. He recommended the use of the sacroiliac belt to help keep the pelvis stable, and allow her to walk more easily.

38. He said that he has noticed fluctuations in the applicant’s walking ability, worst when her pain flares up.

39. His notes for 12 February 2020 include a report that she had walked for “six kilometres, feels good”.  He said that he and she were surprised about her having walked six kilometres and commented that she had walked with her flatmate.  At this time he was treating her neck and thoracic spine, because she wasn’t complaining about her pelvic issues, which usually limited her walking distance. Mr Wray commented that on no other occasion did he receive reports of her walking that far again.

40. Mr Wray’s cross-examination in some respects reflected a view of Dr Youssef’s that regular physiotherapy was contra-indicated in her case, another matter of difference between him and Dr Joshua. Mr Wray mentioned that he found her to be vague when the pain flared up. The applicant commented on several occasions during her cross-examination that she had issues with her memory and occasionally said that she was unsure about past matters about which she was asked.

41. The present review concerns only the question of access, and if the applicant becomes a participant issues about her plan and reasonable and necessary supports would arise.

42. Two occupational therapists conducted assessments of Ms Short.  Ms Bernadette Walsh assessed her in October 2020. Her report was to the effect that her capacity for mobility was substantially reduced, and that for her self-management she needed two hours per week of domestic assistance, amongst other supports the detail of which would arise if she is admitted as a participant.  She gave oral evidence.  Ms Mclaughlin, qualified by the respondent, assessed her in February 2020.  Ms Mclaughlin in her report summary indicate that a number of diagnoses impact her functional capacities, namely fibromyalgia with chronic pain and fatigue, resulting in reduced strength, and activity endurance, EDS (a condition described by the rheumatologists as hypermobility spectrum disorder), which Ms McLaughlin said also results in weakness and fatigue, and joint subluxations and dislocations during activities and referred also to psychiatric disorders with which she has been diagnosed.  There were differences between the reports of the two occupational therapists, which may arise after Ms Short becomes a participant.  In the event, Ms Mclaughlin was not called to give evidence.  That which was common ground between the two occupational therapists was her need for domestic assistance, in the light of her self-reports.

    CONSIDERATION

43. I have concluded above that the applicant satisfies the requirements of s.24(1)(a) and (b).

44. On the question of s.24(1)(c), I accept (based upon the applicant’s evidence and Dr Joshua’s evidence) that the impairments of the applicant, stemming from her chronic pain, chronic fatigue, and hypermobility result in substantially reduced functional capacity to her undertaking mobility and self-care. Notwithstanding the isolated case of her walking with a flatmate for some six kilometres in February 2020, it seems clear that her walking exercise is generally for no more than 100 metres at a time, and the suggestion of Mr Wray that in February 2020 her pelvic issues did not require treatment and that the pelvic issues were the amin limiting issues with the distance she could walk may be correct. There may be fluctuation in the intensity of a person’s impairments as s.24(2) and rule 5.2 make clear.

1. I do not accept the submission of the respondent that the applicant is not a witness of truth.  It is true that her memory is not perfect and an example is her failure to recall that she had walked for six kilometres with her housemate in February 2020, but I did not detect in her evidence either guile or deception, or anything which indicated to me that she was doing other than attempting to give her evidence accurately. Speaking generally, I accept her evidence.

2. As to s.24(1)(d) I find that the applicant’s impairments affect her capacity for economic participation, in that she would, I think, without those impairments while receiving a pension, otherwise be able to participate in full-time employment and her capacity for social participation is also affected by her mobility impairments.

3. The applicant is likely to require support under the National Disability Insurance Scheme for her lifetime.  Her hypermobility condition is permanent, and as Dr Joshua explained, may get worse.

4. In the circumstances, it is unnecessary to consider the early intervention requirements.

5. In the result, the reviewable decision will be set aside and substituted with a decision that the applicant meets the disability requirements in s.24 of the Act, and meets the access criteria specified in s.21 of the Act.

I certify that the preceding 77 (seventy -seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment OAM QC

........................[sgd]................................................

Associate

Dated: 21 March 2022

Date(s) of hearing:	16, 17, 18 August 2021, 17 November 2021, 20 January 2022
Date final submissions received:	11 February 2022
Counsel for the Applicant:	Ms K Sant
Solicitors for the Applicant:	Legal Aid New South Wales
Counsel for the Respondent:	Mr M Gollan
Solicitors for the Respondent:	National Disability Insurance Agency