Tennant and National Disability Insurance Agency

[2021] AATA 1842

Tennant and National Disability Insurance Agency [2021] AATA 1842 (22 June 2021)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2019/6014

Re:Susan Tennant

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Deputy President J W Constance

Date:22 June 2021

Place:Sydney

The reviewable decision, being the decision made 18 July 2019 to refuse Ms Tennant’s application for access to the National Disability Insurance Scheme, is affirmed.

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

Deputy President J W Constance

CATCHWORDS

NATIONAL DISABILITY INSURANCE SCHEME – access – Lyme’s disease – fatigue – myoclonus – principles in Mulligan v National Disability Insurance Agency – meaning of “substantially” reduced functional capacity – whether impairments result in substantially reduced functional capacity – where insufficient evidence of reduction in functional capacity – decision affirmed

LEGISLATION

National Disability Insurance Scheme Act 2013 (Cth) ss 24

National Disability Insurance Scheme (Becoming a Participant) Rules 2016

CASES

Mulligan v National Disability Insurance Agency [2015] FCA 544

SECONDARY MATERIALS

National Disability Insurance Agency: Access to the National Disability Insurance Scheme Operational Guidelines

REASONS FOR DECISION

Deputy President J W Constance

22 June 2021

INTRODUCTION

1. In 1995 Ms Tennant was diagnosed as suffering from Lyme Disease, a multi-system inflammatory and immune suppressive disease.  She has continued to suffer numerous and severe symptoms following treatment of the acute condition.

2. In October 2018 Ms Tennant applied to become a participant in the National Disability Insurance Scheme (Scheme) established by the National Disability Insurance Scheme Act 2013 (Cth) (Act). Her request was refused by the Chief Executive Officer of the Respondent Agency on 30 October 2018 on the basis that she did not meet the requirements for access set out in the Act. Ms Tennant requested a review of this decision and, on 18 July 2019, the decision was affirmed (reviewable decision).

3. As observed by Mortimer J in the Federal Court of Australia, participation in the Scheme “is reserved for a subcategory of persons with disabilities”.[1] The benefits of the Scheme are not available to everyone living with a disability.

   [1] Mulligan v National Disability Insurance Agency [2015] FCA 544 at [50].

4. Ms Tennant has applied to the Tribunal to review the reviewable decision. At the request of Ms Tennant and with the consent of the Agency the matter has been determined on the papers without holding a hearing.[2]

   [2] See section 34J of the Administrative Appeals Tribunal Act 1975 (Cth).

5. For the reasons which follow, the reviewable decision will be affirmed.

   LEGISLATION

6. As the provisions of the Act (and the Rules made under the Act) determine the eligibility for access to the Scheme, I first set out the relevant provisions.

   Objects of the Act

7. The objects of the Act are set out in section 3:

   (a)in conjunction with other laws, give effect to Australia's obligations under the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006 ([2008] ATS 12); and

   (b)provide for the National Disability Insurance Scheme in Australia; and

   (c)support the independence and social and economic participation of people with disability; and

   (d)provide reasonable and necessary supports, including early intervention supports, for participants in the National Disability Insurance Scheme launch; and

   (e)enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports; and

   (f)facilitate the development of a nationally consistent approach to the access to, and the planning and funding of, supports for people with disability; and

   (g)promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the community; and

   (ga) protect and prevent people with disability from experiencing harm arising from poor quality or unsafe supports or services provided under the National Disability Insurance Scheme; and

   (h)raise community awareness of the issues that affect the social and economic participation of people with disability, and facilitate greater community inclusion of people with disability; and

   (i)in conjunction with other laws, give effect to certain obligations that Australia has as a party to:

   (i)     the International Covenant on Civil and Political Rights done at New York on 16 December 1966 ([1980] ATS 23); and

   (ii)    the International Covenant on Economic, Social and Cultural Rights done at New York on 16 December 1966 ([1976] ATS 5); and

   (iii)   the Convention on the Rights of the Child done at New York on 20 November 1989 ([1991] ATS 4); and

   (iv)   the Convention on the Elimination of All Forms of Discrimination Against Women done at New York on 18 December 1979 ([1983] ATS 9); and

   (v)    the International Convention on the Elimination of All Forms of Racial Discrimination done at New York on 21 December 1965 ([1975] ATS 40).

   General principles guiding action

   8.Section 4 provides the general principles guiding action under the Act, including:

   1People with disability have the same right as other members of Australian society to realise their potential for physical, social, emotional and intellectual development.

   2People with disability should be supported to participate in and contribute to social and economic life to the extent of their ability

   3People with disability and their families and carers should have certainty that people with disability will receive the care and support they need over their lifetime.

   4People with disability should be supported to exercise choice, including in relation to taking reasonable risks, in the pursuit of their goals and the planning and delivery of their supports.

   5People with disability should be supported to receive reasonable and necessary supports.

   6 People with disability have the same right as other members of Australian society to respect for their worth and dignity and to live free from abuse, neglect and exploitation.

   ………..

   8People with disability have the same right as other members of Australian society to be able to determine their own best interests , including the right to exercise choice and control, and to engage as equal partners in decisions that will affect their lives, to the full extent of their capacity.

   ……………

   10People with disability should have their privacy and dignity respected.

   11Reasonable and necessary supports for people with disability should:

   (a)support people with disability to pursue their goals and maximise their independence; and

   (b)support people with disability to live independently and be included in the community as fully participating citizens; and

   (c)develop and support the capacity of people with disability to undertake activities that enable them to participate in the mainstream community and in employment.

   12The role of families, carers and other significant persons in the lives of people with disability is to be acknowledged and respected.

   ……………….

   14People with disability should be supported to receive supports outside the National Disability Insurance Scheme, and be assisted to coordinate these supports with the supports provided under the National Disability Insurance Scheme .

   15Innovation, quality, continuous improvement, contemporary best practice and effectiveness in the provision of supports to people with disability are to be promoted.

   16Positive personal and social development of people with disability, including children and young people, is to be promoted.

   Becoming a participant in the Scheme

8. A person may request to become a participant in the Scheme (section 18).

9. There are certain age requirements (section 22) and residence requirements (section 23) for access which are not in dispute in this matter.

   Disability requirements

10. Subsection 24(1) provides the disability requirements which an applicant must meet in order to gain access to the Scheme:

    (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.

    National Disability Insurance Scheme (Becoming a Participant) Rules 2016

11. These Rules have been made in accordance with section 27 of the Act and provide, in part:

    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.

12. Rule 5.8 provides:

    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.

    National Disability Insurance Agency: Access to the National Disability Insurance Scheme Operational Guidelines

13. The Guidelines provide, in part:

    For the purpose of becoming a participant in the NDIS the focus of ‘disability’ is on the reduction or loss of an ability to perform an activity which results from an impairment. The term ‘impairment’ commonly refers to a loss of, or damage to, a physical, sensory or mental function.[3]

    [3] Guideline 8.1.

14. The Guidelines are a policy of the Agency. It was not argued that I should decline to apply the policy. I will proceed on the basis of the definitions I have set out above.

    ISSUES FOR DETERMINATION

15. The following issues arise for determination.

    (1)   What are the relevant impairments suffered by Ms Tennant?

    (2) Does Ms Tennant have a disability or disabilities that are attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or to one or more impairments attributable to a psychiatric condition in accordance with paragraph 24(1)(a) of the Act?

    (3) If so, are the impairments permanent or likely to be permanent in accordance with paragraph 24(1)(b) of the Act?

    (4)  If so, do any of the impairments result in substantially reduced functional capacity to undertake relevant activities in accordance with Rule 5.8 of the National Disability Insurance Scheme (Becoming a Participant) Rules 2016?

    (5) If not, do any one or more of the impairments result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the activities of mobility and/or self-management in accordance with paragraph 24(1)(c) of the Act ?

16. I note that in her Submission,[4] the only issue under paragraph 24(1)(c) raised by Ms Tennant is “the functional impact of the Applicant’s impairment which prevents her from driving, taking public transport completing physical tasks necessary to clean her home without the physical assistance of others.”[5]

    [4] Exhibit A2 at [17].

    [5] Exhibit A2 at [17].

17. Ms Tennant initially sought access in the alternative under section 25, which provides for access to the Scheme under the early intervention requirements. In her Submission in these proceedings however, Ms Tennant conceded that she did not meet the section 25 requirements.[6]

    [6] Exhibit A2 at [18].

    DOCUMENTS FOR CONSIDERATION

18. Ms Tennant provided extensive documentation in support of her application to become a participant in the Scheme. 

19. I have taken the following documents into evidence:

    ·Exhibit A1, being documents lodged by Ms Tennant;

    ·Exhibit A2, being Applicant’s Submission – Final Statement of Facts & Issues  lodged in the Tribunal on 19 August 2020;

    ·Exhibit R1, being documents lodged by the Agency in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (Cth);

    ·Exhibit R2, being documents lodged by the Agency in accordance with section 38AA of the Administrative Appeals Tribunal Act 1975 (Cth);

    ·Exhibit R3, being Respondent’s Statement of Facts, Issues and Contentions lodged in the Tribunal on 13 July 2020.

    MS TENNANT’S MEDICAL CONDITION

    Statements

20. After treatment for the acute condition between March 1995 until the end of 1998, Ms Tennant remained symptomatic “with multiple progressive debilitating comorbidities affecting her brain, heart, immune system, musculoskeletal system, gastrointestinal system, genito-urinary system, skin/tissue (with internal and external lesions) haematology and immune systems.[7]

    [7] Exhibit A2 at [3]; see also exhibit R1 at 12-13, 77-78, 227-244, 250-251, 346, 372-374.

21. Ms Tennant stated further:

    In January/February 2016, the Applicant had a severe reaction to Flagyl, (a medication which carries a black box warning label requirement in the USA for severe neurological and toxic skin side effects). The life-threatening event caused temporary partial paralysis for 48 hours on the left side of the Applicant’s face and upper body, exasperated her progressive symptoms of fatigue and complex pain, cardiac symptoms and caused the onset of a Myoclonus, a painful neurological symptom and movement disorder, which causes painful shock-like jolts. These are involuntary movements, which are most often presented with pain to the Applicant and an involuntary vocalization of the painful event. Shortly thereafter she was no longer able to drive, take public transport or clean her home without the assistance of others.[8]

    [8] Exhibit A2 at [5] and see exhibit R1 at 28-74.

    MS TENNANT’S ACCESS REQUEST

22. In her application to participate in the Scheme made on 10 October 2018[9], Ms Tennant included details of her impairments in a form dated 26 September 2018 completed by her General Practitioner, Dr Pethen.

    [9] Exhibit R1 at 225.

23. Dr Pethen reported that Ms Tennant’s impairment with the most impact on daily life was “fatigue, myoclonus + widespread pain”.  Dr Pethen noted other impairments as “widespread joint + muscle pain poor mobility”.[10]

    [10] Exhibit R1 at 352.

24. In relation to the functional impact of the impairments, Dr Pethen reported that Ms Tennant needs assistance from other persons in mobility and self-management.  She reported that Ms Tennant did not need assistance with communication, social interaction, learning and self-care.[11]

    [11] Exhibit R1 at 354-6.

25. The type of assistance required in relation to mobility was reported to be:

    …needing subsidised private car transportation to enable attendance at medical appointments and to visit family.[12]

    [12] Exhibit R1 at 354.

26. The type of assistance required in relation to self-management was reported to be:

    Needs help with domestic duties, cleaning the floors, with laundry, cleaning bathrooms.

    Suffers with extreme post exertional fatigue and pain when attempting to clean.[13]

    [13] Exhibit R1 at 356.

    CONSIDERATION

    The judgement of the Federal Court of Australia in Mulligan v National Disability Insurance Agency[14]

    [14] [2015] FCA 544.

27. In her judgement Mortimer J set out principles which are relevant to the determination of Ms Tennant’s application.

    (1)In determining a request for access to the Scheme, the decision-maker’s focus is not upon a particular support need. “The determination of what kind of assistance a person should receive under the NDIS is the subject of an entirely separate aspect of the legislative scheme, and one which is relevant only after a person has been found to be a participant. In my opinion, that part of the Tribunal’s reasoning (and for that matter, of the submissions made on behalf of Mr Mulligan to the Tribunal) which focussed on his request for assistance with lawn mowing was a distraction from the task under Ch 3 of the Act.”[15]

    [15] At [40].

    (2)The access criteria in Ch 3 are designed to impose thresholds on access to the Scheme, the benefits of which are “reserved for a subcategory of persons with disabilities.”[16]

    [16] At [50].

    (3)“Impairment” involves “the loss of or damage to a physical, sensory or mental function.”[17]

    [17] At [51].

    (4)“The term “disability” is used in the Act, and in s 24, as a descriptive concept of the overall effect of a person’s abilities to participate in all aspects of personal and community life.”[18]

    [18] At [51].

    (5)Section 24, being a threshold provision, operates on the concept of impairment, not on the concept disability.[19]

    [19] At [51].

    (6)As the Scheme “is based on a functional, practical assessment of what a person can and cannot do”,[20] a detailed, functional assessment is very important.

    [20] At [56].

    (7)The assessment is “avowedly functional, and multi-faceted” and requires a relatively high degree of precision by decision-makers.[21]

    (8)Provided the other thresholds are met, it is sufficient for an applicant to have substantially reduced functional capacity in relation to one of the specified activities.[22]

    (9)The Tribunal must examine “individually, and by reference to the specific evidence and material before it, whether [an applicant’s] circumstances satisfied any of the …. categories in s 24(1)(c) …. relied upon”.[23]

    (10) The role of Rule 5.8

    ·Rule 5.8 of the Rules defines the circumstances in which a person must be taken to have “substantially reduced functional capacity” for the purposes of s 24(1)(c) of the Act.[24] [Original emphasis].

    ·Rule 5.8 operates expressly by reference to each of the activities in s 24(1)(c)(i) to (vi). It requires the decision-maker to look, as a matter of factual assessment, at the outcome or effect of a person’s impairment on the performance of each, and any, of those six activities. If the outcome or effect is any of the outcomes or effects specified in r 5.8(a), (b) or (c), the deeming effect of r 5.8 operates.[25]

    ·As a deeming provision, Rule 5.8 mandatorily includes some applicants within the requirements of paragraph 24(1)(c) if the criteria in Rule 5.8 (a), (b) or (c) are met. If these criteria are not met the decision-maker must turn to consider paragraph 24(1)(c).[26]

    ·The concept of “substantially functional capacity” in paragraph 24(1)(c) is not defined by Rule 5.8

    [21] At [55].

    [22] At [56].

    [23] At [60].

    [24] At [66].

    [25] At [67].

    [26] At [77].

1. In considering the evidence, it is important to bear in mind that I have to be satisfied that Ms Tennant’s impairments result in a substantially reduced functional capacity, which requires a detailed functional assessment of what Ms Tennant can and cannot do.

2. There is no doubt that Ms Tennant has extremely severe signs and symptoms from the condition she suffers.  There is no dispute as to their existence or their cause.  It does not matter that Lyme Disease may not be as widely accepted as a diagnosis in Australia as it is in the United States of America where Ms Tennant’s condition was first diagnosed.  The diagnosis is not in issue in this application, nor are the supports Ms Tennant may need  should she become a participant in the Scheme.

   Issue 1: What are the relevant impairments suffered by Ms Tennant?

3. In her application for access to the Scheme, Ms Tennant specified the following impairments as relevant to her claim:

   ofatigue;

   omyoclonus (involuntary movement disorder);

   owidespread pain, including joint and muscle pain.

4. I am satisfied that each of the above involves loss or damage to a physical or sensory function and is therefore an impairment within the meaning of the Act.

   Issue 2: Does Ms Tennant have a disability or disabilities that are attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or to one or more impairments attributable to a psychiatric condition in accordance with paragraph 24(1)(a) of the Act?

5. Dr Pethen reported, in part:

   ………. in May 2016 [Ms Tennant]  was experiencing shortness of breath, fatigue and cardiac pain with painful myoclonus. She was so effected by these symptoms she was rarely able to leave her home, mobilising around her house was difficult, and she was only able to go to the shop every week or two, so disabled was she. [27]

   [27] Exhibit R1 at 13.

6. In September 2018 Dr Pethen reported that Ms Tennant needed assistance with transport and with domestic duties and that she suffered “extreme post-exertional fatigue and pain when attempting to clean.”[28]

   [28] Exhibit R1 at 356.

7. On the basis of the report of Dr Pethen and the statements of Ms Tennant I am satisfied that Ms Tennant’s ability to move inside and outside her home and to attend to ordinary household tasks is affected by the impairments referred to earlier in these reasons.  Taking into account the overall effect of these impairments, I am satisfied that Ms Tennant has disabilities that are attributable to the stated impairments.

   Issue 3: Are the impairments permanent or likely to be permanent in accordance with paragraph 24(1)(b) of the Act?

8. Dr Pethen reported that the impairments to which she referred were “lifelong”.[29] In her report of 8 November 2018,[30] Dr Pethen described Ms Tennant’s symptoms as “progressive”.  Based on this evidence and the statements of Ms Tennant that she has suffered these symptoms for many years, I am satisfied, on the balance of probabilities, that the impairments are likely to be permanent.  The Agency accepts this.[31]

   Issue 4: Do any of the impairments result in substantially reduced functional capacity to undertake relevant activities in accordance with Rule 5.8 of the National Disability Insurance Scheme (Becoming a Participant) Rules 2016?

   [29] Exhibit R1 at 352.

   [30] Exhibit R1 at 12.

   [31] Exhibit R3 at [18].

9. For the reasons I set out in relation to the application of section 24 later in these reasons, I am not satisfied that Ms Tennant is either effectively or completely unable to participate in any of the stated activities. I am not satisfied that Ms Tennant uses aids other than commonly used items.

10. For the same reasons I am not satisfied that Ms Tennant meets the requirements of Rule 5.8(b) or Rule 5.8(c).

    Issue 5: Does any one of the impairments result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, the activity of mobility and/or self-management in accordance with paragraph 24(1)(c) of the Act?

11. Based on the statements of Ms Tennant and the reports of Dr Pethen to which I have referred, I am satisfied that Ms Tennant experiences some difficulty with mobility and with self-management  and that her functional capacity to undertake these activities is reduced.

12. Unfortunately for Ms Tennant however, there is insufficient evidence before me to cause me to be satisfied, on the balance of probabilities that the reduction of her functional capacity to undertake either of the activities is substantial.

13. Dr Pethen, who provides very limited expert evidence of the effects of Ms Tennant’s impairments, does not provide an opinion as to the extent of the reduction in Ms Tennant’s functional capacity resulting from the relevant impairments.  The “functional, practical assessment”[32]  of what Ms Tennant can and cannot do is lacking.  In applications such as this, such evidence is usually provided by a report of an Occupational Therapist.

    [32] [2015] FCA 544 at [56].

14. Ms Tennant addressed the activities referred to in paragraph 24(1)(c) in her Statement of Lived Experience dated 28 January 2020.[33]  However the information provided does not establish reduced functional capacity in any of the activities in the sense set out by Mortimer J in McGarrigle.

    [33] Exhibit R2 at 175.

15. In her Submission[34] Ms Tennant refers to Dr Pethen’s assessment of her mobility capacity in a Centrelink Mobility Allowance application made by her prior to her application to become a participant in the Scheme.  Ms Tennant submits that Dr Pethen identified her mobility capacity as follows:

    oinability to walk 400 meters;

    oinability to stand on public transportation;

    oserious difficulty in sitting in public transportation;

    oserious difficulty in crossing public streets and negotiating kerbs;

    oinability to negotiate steps in and out of public transportation;

    oinability to negotiate a large flight of steps.[35]

    [34] Exhibit A2 at [41].

    [35] Exhibit A2 at [9].

16. There is no evidence that Dr Pethen assessed Ms Tennant’s capacity. It is likely that she was recording Ms Tennant’s self-reporting. In any event, evidence of some limits on Ms Tennant’s mobility outside her home does not establish that she is substantially reduced in her functional capacity in the activity of mobility. Similarly there is no evidence, other than Dr Pethen’s record of Ms Tennant’s self-report,[36] to demonstrate substantially reduced functional capacity in the area of self-management.

    [36] Exhibit R2 at 173.

17. On the evidence before me, I am not satisfied that Ms Tennant’s impairments result in substantially reduced functional capacity or psychosocial function in the activities of mobility or self-management.

18. I note that the types of activities noted by Dr Pethen in relation to self-management are more akin to self-care, but the heading under which they were referred to has made no difference to the conclusion I have reached.

19. As Ms Tennant does not meet the disability requirements of the Act, she does not qualify to be a participant in the Scheme.  As she is under the age of sixty-five she is entitled to make another application to the Agency.

    CONCLUSION

20. For the reasons stated I am not satisfied that any of the impairments suffered by Ms Tennant has resulted in substantial reduction of her functional capacity or psychosocial functioning in respect of any of the activities set out in paragraph 24(1)(c) of the Act. For the same reasons I am not satisfied that Ms Tennant meets the requirements of Rule 5.8 of the National Disability Insurance Scheme (Becoming a Participant) Rules 2016.

21. For the reasons stated the reviewable decision, being the decision made 18 July 2019 to refuse Ms Tennant’s application for access to the National Disability Insurance Scheme, will be affirmed.

I certify that the preceding 49 (forty -nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance  

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

Associate

Dated: 22 June 2021

Date(s) of hearing:	15 February 2021(on the papers)
Applicant:	In person
Solicitors for the Respondent:	N Crawford, National Disability Insurance Agency