TMVJ and National Disability Insurance Agency
[2022] AATA 2053
•30 June 2022
TMVJ and National Disability Insurance Agency [2022] AATA 2053 (30 June 2022)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number: 2019/4688
Re:TMVJ
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Senior Member Buxton
Date:30 June 2022
Place:Brisbane
The Tribunal affirms the decision under review pursuant to paragraph 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).
.....................[SGD]...................................
Senior Member Buxton
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – access criteria – whether applicant meets disability requirement – whether impairments are, or are likely to be, permanent – disability and early intervention requirements not met – decision under review affirmed.
Legislation
National Disability Insurance Scheme Act 2013 (Cth) ss 3, 4, 21,22, 23, 24, 25, 36, 100, 209
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) rr 2.5, 5.1, 5.2, 5.3, 5.4, 5.5, 5.6, 5.7, 6.6
Cases
FBJV and National Disability Insurance Agency [2021] AATA 913
Jourfian and National Disability Insurance Agency [2020] AATA 1883
MDCT and National Disability Insurance Agency [2020] AATA 6036
Mulligan v National Disability Insurance Agency (2015) 233 FCR 201
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179 (1979) 2 ALD 634Re Schwass and National Disability Insurance Agency [2019] AATA 28
Secondary Materials
National Disability Insurance Agency, Our Guidelines – Applying to the NDIS, (Web Page) <
REASONS FOR DECISION
Senior Member Buxton
30 June 2022
BACKGROUND
TMJV (‘the Applicant’) is aged in his late 50’s and lives alone outside of Brisbane, in Queensland. He is unwell and has been for many years. He had managed his condition at home with the assistance of his mother until she was no longer well enough herself.[1] The Applicant seeks review of a decision of the National Disability Insurance Agency (‘the Respondent’) declining his request for access to the National Disability Insurance Scheme (‘the NDIS’).[2]
[1] Exhibit 1, H1, Applicant’s Statement of Facts, Issues and Contentions.
[2] Ibid.
On 1 April 2018 the Applicant made a request to become a participant in the NDIS.[3] In his request for access form, the Applicant listed the following disabilities relied upon in support of his request for access to the NDIS: myalgic encephalomyelitis (‘ME’) and multiple chemical sensitivity (‘MCS’).[4]
[3] Exhibit 2, H13, Access Request Form.
[4] Ibid; Exhibit 1, H1, Applicant’s Statement of Facts, Issues and Contentions.
The Applicant’s access request was declined on 10 April 2018.[5] The Respondent was not satisfied that the Applicant met the required disability requirements under section 24, or the early intervention requirements under section 25, of the National Disability Insurance Scheme Act 2013 (Cth) (‘the Act’). Following a review under subsection 100(6) of the Act a delegate affirmed the earlier decision on 28 June 2019.[6] On 31 July 2019 the Applicant applied to the Tribunal for review.[7] The Applicant contends that he meets the access criteria prescribed in the Act.
[5] Exhibit 2, H14, Letter, Respondent to Applicant, Access not met.
[6] Exhibit 2, H12, Internal Review Decision.
[7] Exhibit 2, H3, Application for Review of Decision.
The history of this review application before the Tribunal bears some reflection as it has led to the decision by the Tribunal that this is an appropriate matter to determine without the parties participating in an oral hearing. The Applicant had, for some time, requested that his review application proceed to be determined “on the papers” and without the need for a hearing. He did not wish to participate in such a hearing and submitted that he was not well enough to do so. He also submitted that there was sufficient evidence before the Tribunal for a decision to be made in relation to his review application without the need for an oral hearing. The Tribunal can proceed to determine a review application in this way only with the consent of all parties to the review application and the Respondent provided its consent to this approach on 16 December 2021.[8] The exchange of submissions and any further evidence was timetabled to take place by March 2022 to enable the Tribunal to consider this application on the papers thereafter. Whilst the review was before the Tribunal for consideration relevant operational guidelines were updated and the Tribunal provided an opportunity for the parties to provide further submissions arising from the updated guidelines, the last of which were received from the Respondent on 17 June 2022. The Tribunal has now considered various documents, including reports from medical and allied health specialists, together with the documentary evidence of the parties and their written submissions.
[8] Exhibit 1, H2, Respondent’s Statement of Facts, Issues and Contentions, [5].
As can be seen from the following procedural history, the Applicant has declined to engage directly not only in an oral hearing, but also in various preliminary events and in evidence-gathering suggested by the Respondent in order to discharge its statutory duty to assist the Tribunal in reaching the correct or preferable decision in this case:
(a)The Respondent arranged for an occupational therapy assessment of the Applicant to take place in late 2019.[9] This assessment was to be for the purpose of preparing a report in accordance with a timetable directed by the Tribunal. However, the Applicant refused to participate in that assessment, including by refusing to admit the Occupational Therapist to his home or participate in telephone-based assessment, or respond to telephone calls and messages left by the Occupational Therapist (according to her letter dated 17 February 2020 explaining the various steps taken by her to attempt to undertake the assessment).[10] As a result, no independent functional assessment of an Occupational Therapist has been completed.
(b)On 31 March 2021, the Applicant filed a report from Dr A, Rheumatologist, dated 9 February 2021.[11] The Respondent sought agreement from the Applicant for him to participate in an independent assessment by a rheumatologist to be engaged by the Respondent but the Applicant did not agree. Instead, at the instigation of the Respondent, a review was undertaken by Professor B of papers and medical reports, but not of the Applicant in person. The Respondent filed two reports from Professor B, the first report being undated but filed on 14 December 2021[12] and the second, supplementary report dated 30 December 2021[13].
(c)The Applicant did not participate in a case conference (rescheduled at his request for June 2020) or in a directions hearing in these proceedings in August 2021, which the Tribunal declined to reschedule. He did participate in other events.
(d)The Applicant did not wish to attend a substantive hearing and expressed strong views that it was appropriate to have his review application determined without requiring him to so attend.
[9] Ibid, [35]; Exhibit 4, H46 Letter from Occupational Therapist.
[10] Exhibit 4, H46 Letter from Occupational Therapist.
[11] Exhibit 5, H78, Report from Dr A (Rheumatologist).
[12] Exhibit 4, H45 Report of Professor B (rheumatologist, emeritus professor).
[13] Exhibit 4, H44 Supplementary Report of Professor B (rheumatologist, emeritus professor).
The Tribunal is, therefore, to decide this review application without the benefit of a functional assessment by an occupational therapist, testing (either through cross-examination of the expert rheumatologists, or through the submission of additional expert evidence) of the expert evidence or the opportunity to assess the credibility of the Applicant himself. These forensic risks to the availability of relevant evidence have arisen from the choices made by the Applicant, and respected by the Tribunal and by the Respondent, to conduct his case as he saw fit.
In MDCT and National Disability Insurance Agency (‘MDCT’),[14] the Tribunal made the following observation, about the potential consequences of such forensic risk in the context of considering requests that can be made under the Act for the purpose of gathering information about issues relevant to a reviewable decision:[15]
An unsurprising natural consequence of refusing a request to gather further such information may be that, in some cases, the decision-maker will conclude that it does not have sufficient information to approve particular supports sought by the participant be included in the plan. On review, the consequence of an applicant continuing to refuse to consent to the gathering of certain evidence may lead the Tribunal to conclude that it does not have sufficient information to determine that particular supports sought to be included in the plan are reasonable and necessary and should be funded by the NDIS. It may therefore be in the interests of an applicant for review to participate in the gathering of any relevant evidence.
[14] [2020] AATA 6036.
[15] Ibid, [25].
Although the setting for this review application differs from that in MDCT (it concerned funded supports in an approved statement of participant supports and the Tribunal here is to consider the Applicant’s request for access to the NDIS), the forensic risk to an Applicant remains. The consequence of refusing to consent to the gathering of certain evidence may lead the Tribunal to conclude that it does not have sufficient information to reach a level of satisfaction that the access criteria has been met. For the reasons that follow, the Tribunal has not reached the requisite level of satisfaction, in this case, that the Applicant has met the access criteria in either section 24 or section 25 of the Act.
THE ACCESS CRITERIA
To become a participant in the NDIS, a prospective participant must satisfy the access criteria, which are set out in subsection 21(1) of the Act:
21 When a person meets the access criteria
1A person meets the access criteria if:
(a)The CEO is satisfied that the person meets the age requirements (see section 22); and
(b)The CEO is satisfied that, at the time of considering the request, the person meets the residence requirements (see section 23); and
(c)The CEO is satisfied that, at the time of considering the request:
(i) the person meets the disability requirements (see section 24); or
(ii) the person meets the early intervention requirements (see section 25).
The Respondent was satisfied that the Applicant met the age and residency criteria outlined in sections 22 and 23 of the Act.[16] The issue arising in this case is whether the Applicant has satisfied the “disability requirements” under section 24 of the Act or whether he meets the “early intervention requirements” under section 25 of the Act.
[16] Exhibit 1, H2, Respondent’s Statement of Facts, Issues and Contentions, [8]; National Disability Insurance Scheme Act 2013 (Cth), para 21(1)(a) and (b), ss 22 and 23.
The Disability Requirements
There are five mandatory requirements that the Applicant must satisfy in order for him to meet the “disability requirements” as set out in paragraphs 24(1)(a) to (e) of the Act (reproduced below).
Section 24 of the Act provides:
24 Disability Requirements
1A 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.
2For 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.
The objects and principles in sections 3 and 4 of the Act give guidance on the interpretation of the statute. In particular, the objects of the Act relevantly include giving effect to Australia’s obligations under the Convention on the Rights of Persons with Disabilities established at the UN Headquarters in New York on December 2006.[17] Paragraph 3(3)(b) of the Act provides that regard is to be had to the need to ensure the financial sustainability of the NDIS in giving effect to the objects of the Act.
[17] Convention on the Rights of Persons with Disabilities, opened for signature (30 May 2007), [2008] ATS 12 (entered into force 3 May 2008).
The Minister may make rules prescribing matters pursuant to subsection 209(1) of the Act. Relevant to this matter, the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (‘the Access Rules’) form part of the legislative scheme. Operational Guidelines written by the Chief Executive Officer of the Respondent also assist staff to make decisions in accordance with the Act. Operational Guidelines represent government policy and should be applied by the Tribunal unless there is good reason not to do so.[18] The relevant Operational Guideline is the Our Guidelines – becoming a participant (‘the Access Operational Guidelines’)[19] published in May 2022.
[18] Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[1979] AATA 179; (1979) 2 ALD 634.
[19] National Disability Insurance Agency, Our Guidelines – Applying to the NDIS, (Web Page) < (‘The Access Operational Guidelines’).
The concept of an “impairment” as it is to be considered in section 24 “is generally understood as involving the loss of or damage to a physical, sensory or mental function”.[20] It is “not merely...a reduction in [a] person’s capacity to do things which an unimpaired person would be able to do”.[21]
[20] Mulligan v National Disability Insurance Agency (2015) 233 FCR 201, [51].
[21] Re Schwass and National Disability Insurance Agency [2019] AATA 28, [34]-[35].
The Access Rules provide guidance about when an impairment is permanent or likely to be permanent as is required by paragraph 24(1)(b) of the Act. Rules 5.4 to 5.7 provide as follows:
5.4An 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.
5.5An 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.
5.6An 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).
5.7If 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.
These provisions are concerned with the permanence of the “impairment” rather than the medical condition necessarily.[22] Difficulty accessing treatment, including its affordability, does not mean that the treatment is unavailable for the purposes of rule 5.4 of the Access Rules.[23] A treatment which might impose a serious risk to a person’s health is not treatment which rule 5.4 of the Access Rules requires a person to undertake because it is not an “appropriate” treatment.[24]
[22] Re Schwass and National Disability Insurance Agency [2019] AATA 28, [32] and [35].
[23] Ibid, [46]-[47].
[24] Ibid, [48].
Rule 5.4 of the Access Rules requires the Tribunal to be “positively satisfied of a negative” before it can be satisfied of permanency. In other words, there must be evidence before the Tribunal that positively demonstrates that there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.
The Respondent contended that the Applicant did not satisfy the requirements as set out in paragraph 24(1)(b) of the Act as he has not demonstrated that his impairments are, or are likely to be, permanent.[25] The Respondent submitted that it follows that the Applicant has not met the criteria in paragraph 24(1)(e) of the Act for his impairments since, because they are not permanent, he has not demonstrated that he is likely to require support under the NDIS for his lifetime.[26]
[25] Exhibit 1, H2, Respondent’s Statement of Facts, Issues and Contentions, [29].
[26] Ibid, [45].
The Applicant has been diagnosed by his General Practitioner (‘GP’) with Chronic Fatigue Syndrome (‘CFS’) and Professor B, Rheumatologist, accepted this diagnosis. The Applicant nominated ME and MCS as his disabilities. Section 24(1)(a) of the Act requires the decision maker to differentiate between the concept of “disability” and “impairment”. The “impairment” attributable to those disabilities need to be identified with some precision, because the threshold questions on permanency (paragraph 24(1)(b) of the Act) and substantially reduced function (paragraph 24(1)(c) of the Act) operate not on the concept of disability, but on the concept of impairment.[27]
[27] Exhibit 1, H2, Respondent’s Statement of Facts, Issues and Contentions, [20].
The Applicant’s GP explained that “the validity for both ME and MCS is uncertain as they are terms the patient uses to describe his symptoms and not formal diagnoses”.[28] The Respondent submitted that the Applicant does not have an additional diagnosis of MCS but, rather, that this is a label that the Applicant uses to describe the symptoms.[29] Professor B noted that MCS was an ailment in which the patient defines both the cause and manifestations of his own condition and that it had been rejected as an established organic disease by the American Association of Allergy and Immunology, the American Medical Association, the California Medical Association, the American College of Physicians and the International Society of Regulatory Toxicology and Pharmacology.[30]
[28] Exhibit 4, H43, Report of the Applicant’s General Practitioner.
[29] Exhibit 1, H2, Respondent’s Statement of Facts, Issues and Contentions, [19].
[30] Exhibit 4, H45, Report of Professor B (rheumatologist, emeritus professor, Question 1.
However, a specific label, or the absence of it, does not change the presence of a disability, however described. The Applicant’s GP noted that some people use the terms CFS and ME in an interchangeable manner.[31] The Tribunal is satisfied that the Applicant has a disability arising from the “working diagnosis” of CFS and that his impairments, arising from this disability, are those described variously in the medical evidence as “constellation” of the following symptoms,[32] with which the Applicant has contended for over 20 years: [33]
(a)Disordered thoughts and poor concentration – needs to be prompted;
(b)Easily exhausted;
(c)Low lean body mass; and
(d)Sensitivity to smells.
[31] Exhibit 2, H20, Access Request – Supporting Evidence Form, 3.
[32] Exhibit 4, H43, Report of the Applicant’s General Practitioner.
[33] Exhibit 2, H20, Access Request – Supporting Evidence Form, 3 and 5.
Paragraph 24(1)(b) of the Act requires the impairment or impairments to be permanent. Subsection 24(2) of the Act states that an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the NDIS for the person’s lifetime, despite the variation. Rule 5.4 of the Access Rules state that an “impairment” will only be considered permanent if there are no known, available and appropriate evidence-based clinical, medical or other treatments that likely remedy the impairment. This is not limited to treatment options that have been specifically recommended to a participant. It just needs to be known, available and appropriate. If there are such treatments, the person should generally undergo the medical treatment or review before a determination is made on the issue of permanency.
Where a form of treatment has been specifically recommended and is not being undertaken by a prospective participant, it could not be concluded that they were accessing all “known, available and appropriate evidence-based…treatments that would be likely to remedy”[34] the impairment and therefore the permanency criterion in paragraph 24(1)(b) of the Act could not be met. His GP notes that he had been treating, and “advocating for”, the Applicant for 20 years.[35] He stated that, during this time, the Applicant had been offered “assessments by specialists” but that he had not undertaken such assessments, stating that his barriers to accessing specialists were his stamina, increased stress in public settings, fatigue following appointments and mobility barriers.[36] The Applicant’s GP noted that he recommended a rheumatological and general physician assessment but that the Applicant had deferred these decisions because of the barriers he had identified.[37]
[34] Jourfian and National Disability Insurance Agency [2020] AATA 1883, [44]; FBJV and National Disability Insurance Agency [2021] AATA 913, [121].
[35] Exhibit 4, H43, Report of the Applicant’s General Practitioner; Exhibit 5, H47, Patient Health Summary.
[36] Exhibit 4, H43, Report of the Applicant’s General Practitioner.
[37] Ibid.
There is no evidence to indicate that the Applicant has been assessed by a general physician, despite the recommendation and prompting by his GP.
Ultimately, during the course of this review, the Applicant did undertake an assessment by Dr A, Rheumatologist. Dr A did not offer any diagnosis of the Applicant. He stated that the Applicant presented as small and slim with some wasting of his muscles.[38] He also accepted that he had CFS since 1997 and was now “very disabled”.[39] Dr A recommended that the Applicant consult:[40]
(a)A dietician to work with him on a food diary; and
(b)possibly a neuropsychologist.
[38] Exhibit 5, H78, Report of Dr A (Rheumatologist).
[39] Ibid.
[40] Ibid.
There is no evidence to indicate that the Applicant has been assessed by a neuropsychologist, nor that he has consulted a dietician.
Dr A expressed concerns that there was a neurodegenerative process at work due to the Applicants apparent disordered thoughts.[41] Dr A opined that there was no prospect of recovery, although it was not entirely clear from which impairment or impairments he would not recover.[42] Given his description of the difficulties he has in daily life, the Tribunal concludes that, on balance, it appears that Dr A considered it was the disordered thoughts and exhaustion from which the Applicant was unlikely to recover.
[41] Ibid.
[42] Ibid.
The report produced by Dr A following this assessment, and other information relevant to the Applicant’s medical history, was reviewed by Professor B, who is also a rheumatologist. Professor B noted that the Applicant suffered from myoclonic jerks.[43] Professor B opined that these jerks are most likely psychological, and associated with his CFS, and stated that if the general practitioner has witnessed them and was confident that they were not true myoclonic jerks then no further investigation was necessary.[44] However, if not, then an opinion from a neurologist should be sought to determine whether the jerks represent a manifestation of a degenerative neurological disease.[45]
[43] Exhibit 4, H44 Supplementary Report of Professor B (rheumatologist, emeritus professor); Exhibit 4, H45, Report of Professor B (rheumatologist, emeritus professor).
[44] Exhibit 4, H44 Supplementary Report of Professor B (rheumatologist, emeritus professor).
[45] Ibid.
The Tribunal does not have before it any evidence about whether the Applicant’s GP, is satisfied that the jerks are psychological, and associated with the Applicant’s CFS. Further, there is no evidence that the Applicant has been assessed by a neurologist to determine whether he has a neurological disease.
Professor B also noted that a combination of cognitive behavioural therapy (‘CBT’) and graded exercise may “treat” CFS and that he had not reviewed information from a psychologist as to the success or otherwise of CBT.[46] He also noted that the Applicant had been referred to an exercise physiologist but had not kept the appointment.[47] He questioned whether these modalities had been adequately explored by the Applicant as possible treatments.
[46] Exhibit 4, H44 Supplementary Report of Professor B (rheumatologist, emeritus professor); Exhibit 4, H45, Report of Professor B (rheumatologist, emeritus professor).
[47] Exhibit 4, H44 Supplementary Report of Professor B (rheumatologist, emeritus professor), Question 2.
The Tribunal does not doubt the diagnosis of CFS, nor its legitimacy. However, the Tribunal notes that, despite recommendations by well-qualified professionals, the Applicant has not submitted to assessments by a general physician, neuropsychologist or neurologist that may lead to a better understanding of his impairments and whether further treatment options are available. He has received conflicting opinions from rheumatologists, which may require further investigation to reconcile, and has not sought to engage with a dietician or exercise physiologist. Further, there is only limited information available to the Tribunal as to the extent and efficacy of CBT.
Given the nature of the Applicant’s impairments, it is reasonable to consider that he may find accessing treatments difficult. After all, as the Tribunal has found, he tires easily, is sensitive to chemicals and can have poor concentration. If the Tribunal had before it evidence as to the reasonableness or otherwise of the Applicant participating in further investigations and treatments, based upon his functional incapacity to do so, it may have been possible to consider whether these options were, in reality, available to the Applicant. However, the Applicant refused to participate in a home-based functional assessment by the occupational therapist arranged by the Respondent and his own GP has recommended at least some of these further investigations. Further, in his latest written submissions, the Applicant has noted that he does leave his home, with assistance, to attend medical appointments, as well as to undertake a range of personal activities including shopping and haircuts.[48] It is not open to the Tribunal, based on the available evidence, to conclude that it is so unreasonable for the Applicant to participate in further investigation and treatment that such options are not available to him.
[48] Applicant’s amended submissions dated 14 June 2022, [5].
As an impairment is permanent only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment. In FBJV and National Disability Insurance Agency,[49] the Tribunal closely considered the scope of rule 5.4 of the Access Rules insofar as it related to the availability of treatments, and stated:[50]
While the word ‘remedy’ can include ‘cure’, the Rules do not require that the treatments would be likely to ‘cure’ the impairment. In this regard, the word ‘remedy’ should be given its ordinary everyday meaning. The Macquarie Dictionary relevantly defines ‘remedy’ to mean ‘something that cures or relieves a disease or bodily disorder; a healing medicine, application, or treatment’ [emphasis added].[51] For completeness, the Tribunal notes that ‘relieve’ is defined to mean ‘to ease or alleviate (pain, distress, anxiety, need, etc.).’[52] Accordingly, an impairment is ‘permanent’, or likely to be permanent, for the purpose of determining access to the NDIS, when there is no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to cure or relieve the impairment. This necessarily includes easing the impact or effects of the impairment.
[49] [2021] AATA 913.
[50] Ibid, [117].
[51] Macquarie Dictionary, (online at 17 March 2021), ‘remedy’.
[52] Ibid.
The Tribunal respectfully adopts the same approach when having regard to rule 5.4 of the Access Rules. It is not necessary that a cure be likely. Rather, the Tribunal must be satisfied that there are no treatments that would be likely to alleviate the Applicant’s impairments or ease their severity or impact.
The Access Operational Guidelines provide the following further information relating to whether an impairment is properly to be regarded as permanent:[53]
Your impairment will likely be permanent if your treating professional gives us evidence that indicates there are no further treatments that could relieve or cure it.
Your treating professional will tell us or be asked to certify if there are medical, clinical or other treatments that are likely to remedy your impairment. We need to understand whether there are treatments which are:
(i) known and available
(ii) appropriate for you and your impairment
(iii) evidence-based – that is, there’s proof they are likely to be effective.
The word treatment should be understood in a broadest sense, and may include changes to your diet and lifestyle.
[53] National Disability Insurance Agency, Our Guidelines – Applying to the NDIS, (Web Page) < Is there medical treatment for your impairment; see also National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) rr 5.6, 6.6.
There is no suggestion on the evidence that CFS or ME are conditions from which a patient can completely recover or be cured. However, the available evidence demonstrates that further explanations and causes for the Applicant’s impairments may be identified with additional investigation and that, in turn, further consultation and treatment from allied specialists may alleviate symptoms. In correctly applying the Access Rules, the question for the Tribunal is whether the evidence before the Tribunal positively demonstrates that there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment. When appropriately considering the Access Operational Guidelines, the Tribunal is to have regard to treatments in the broadest sense and is satisfied that this would include not only further medical assessment by a general physician, neuropsychologist or neurologist, but consultation with a dietician, exercise physiologist and, potentially, a psychologist. The Applicant’s own GP supports at least some of these steps, even though he is acutely aware of the barriers to access perceived by the Applicant. The Tribunal is not prepared to find that the Applicant’s GP would have made those recommendations if he did not think they may lead to alleviation of at least some aspects of the Applicant’s impairments.
In the premises, the Tribunal is not satisfied that the impairment attributable to the disability is permanent. It is possible that the Applicant’s symptoms are a product of a degenerative neurological disease which, if diagnosed, may lead to treatments not yet explored. Such a diagnosis has been considered in the evidence of the experts but not yet been ruled out. Further exploration of CBT, exercise and diet improvements may also lead to alternative treatment options and impact positively upon the Applicant’s impairments. It is unclear precisely what outcomes would be achieved by such alternative treatments, but the appropriate time at which the Applicant’s functional impairment can be considered as part of a request for access to the scheme is after he has demonstrated that such outcomes are not likely to remedy his impairments. The Tribunal is not positively satisfied that there are no known, available, and appropriate evidence-based clinical, medical, or other treatments that would be likely to remedy the impairments. It follows that the Applicant does not satisfy paragraph 24(1)(b) of the Act as the Tribunal is not satisfied that his impairment or impairments are permanent.
In summary, in determining if the Applicant’s impairments (however described) could be considered permanent the Tribunal considered treatments in the broadest sense and is satisfied that this would include not only further medical assessment by a general physician, neuropsychologist or neurologist, but also consultation with a dietician, exercise physiologist and, potentially, a psychologist. The Applicant had not undertaken such assessments, stating that his barriers to accessing specialists were his stamina, increased stress in public settings, fatigue following appointments and mobility barriers.
The Tribunal recognises that where a treatment which might impose a serious risk to a person’s health it cannot be deemed an “appropriate” treatment in which rule 5.4 of the Access Rules requires a person to undertake. The Applicant’s own GP of 20 years supports at least some of these steps, even though he is acutely aware of the barriers to access perceived by the Applicant. The Tribunal is not prepared to find that the Applicant’s GP would have made those recommendations if he considered they would impose a serious risk to the Applicant, and if he did not think they may lead to alleviation of at least some aspects of the Applicant’s impairments. The Tribunal notes that the Applicant is not prevented from reapplying for access to the NDIS at a later date should the recommended investigations, and any treatments arising as a result, be fully exhausted by the Applicant.
As the disability requirements are cumulative, and the Applicant does not meet paragraph 24(1)(b) of the Act, it is not necessary to consider the balance of the criteria in section 24 of the Act. However, the Tribunal notes that it would also not be satisfied, having regard to the available evidence, that the Applicant would be likely to require support under the NDIS for his lifetime, as required by paragraph 24(1)(e) of the Act, in circumstances where it cannot be satisfied that the impairments are permanent as the outcome of further medical intervention is not yet known.
Further, although the Applicant’s GP and Dr A both noted that the Applicant experience difficulties in undertaking various aspects of his daily life, any consideration of paragraph 24(1)(c) of the Act would have benefitted from an assessment of the Applicant’s functional impairment. Given the Respondent’s submission that the evidence did not establish that the Applicant’s impairments have resulted in substantially reduced functional capacity to undertake activities in a number of the domains set out in paragraph 24(1)(c) of the Act,[54] and that this assessment is “avowedly functional”,[55] the Tribunal would have been required to form a clear view as to what the Applicant can and cannot do, having regard to those domains. However, in the event, the Tribunal did not have the benefit of a functional assessment of the Applicant’s capacities as a result of the election by the Applicant not to participate in such an assessment.
[54] Exhibit 1, H2, Respondent’s Statement of Facts, Issues and Contentions, [35].
[55] Mulligan v National Disability Insurance Agency [2015] FCA 544 at [55].
The Tribunal has found that the disability requirements in section 24 of the Act have not been met.
The Early Intervention Requirements
Section 25 of the Act states:
25 Early intervention requirements
1A 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; or
(ii) has one or more identified impairments that are attributable to a psychiatric condition and are, or are likely to be, permanent; or
(iii) is a child who has developmentaldelay; 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.
Note: In certain circumstances, a person with a degenerative condition could meet the early intervention requirements and therefore become a participant.
2The 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.
3Despite 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.
The Respondent contends that the Applicant does not meet the early intervention requirements because:[56]
(a)the current evidence does not demonstrate the provision of early intervention supports that is likely to benefit the Applicant by reducing his future needs for support. The evidence does not address the early intervention supports that the Applicant requires and outcomes to be achieved in relation to his functional capacity, as required under paragraph 25(1)(b) of the Act; and
(b)the evidence provided does not indicate the early intervention supports are likely to benefit the Applicant by achieving one or more of the outcomes listed in paragraph 25(1)(c) of the Act.
[56] Exhibit 1, H2, Respondent’s Statement of Facts, Issues and Contentions, [47].
Rule 2.5(b) of the Access Rules provides the following general outline of these requirements:
… a person can access the NDIS through the early intervention requirements without having substantially reduced functional capacity. Instead, the early intervention requirements consider the likely trajectory and impact of a person's impairment over time and the potential benefits of early intervention on the impact of the impairment on the person's functional capacity. The CEO may consider a range of evidence in deciding the potential benefit of early intervention on a person's impairment. The CEO may consider existing evidence or information from an individual or their family or carer. Where a young child has an impairment resulting in developmental delay, or resulting from a condition on a list published by the CEO for which the benefits of early intervention have already been established, no further evidence of the benefit of early intervention supports to the child is required to meet the early intervention requirements. A young child or other person can still meet the early intervention requirements without having one of these conditions, provided there is evidence that the requirements are satisfied.
[emphasis added]
The Tribunal has found that the Applicant has not met the requirements in paragraph 25(1)(b) of the Act because the Tribunal is not satisfied that his impairment or impairments are permanent. Therefore, the Applicant has not me the first of the cumulative requirements of subsection 25(1) of the Act.
In addition, the Tribunal notes the requirement of paragraph 25(1)(b) of the Act that:
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.
It is common ground that the Applicant has exhibited most of his current suite of symptoms and impairments since 1997 and that these have been increasing in severity since then. In those circumstances, and having regard to the available evidence, it is not clear how supports rendered now could be considered “early” and it has not been demonstrated that providing supports now could reduce the Applicant’s need for supports in relation to his impairments in the future.
The Tribunal notes, in any event, that the available evidence does not demonstrate that early intervention supports are likely to benefit the Applicant, by achieving the stated outcomes in paragraph 25(1)(c) of the Act. The Applicant has submitted that he would benefit greatly with particular supports to assist with his daily life, and the evidence of his general practitioner and Dr A are generally consistent with this submission. There is some evidence about the lack of an informal support network now that the Applicant is no longer cared for by his mother and, if the other aspects of section 25 of the Act were satisfied, it would be relevant to consider issue in more detail having regard to the stated outcome in subparagraph 25(1)(c)(iv) of the Act. The Tribunal is not, however, satisfied based on the available evidence that early intervention supports are likely to benefit the Applicant in a functional sense by achieving the stated outcomes in subparagraph 25(1)(c)(i) to (iii) of the Act. The Tribunal has found that the other cumulative requirements in paragraphs 25(1)(a) and (b) of the Act are not satisfied in this case.
CONCLUSION
For the reasons set out above, the Tribunal finds that the Applicant does not meet the access criteria in sections 24 or 25 of the Act.
DECISION
The Tribunal affirms the decision under review pursuant to paragraph 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).
I certify that the preceding 52 (fifty-two) paragraphs are a true copy of the reasons for decision of Senior Member Buxton.
……………[SGD]…………………
Associate
Dated: 30 June 2022Date of the last submission: 17 June 2022
Representative for the Applicant: Self-Represented
Counsel for the Respondent: Mr P Nolan
Solicitors for the Respondent: Mr D Tkaczuk, National Disability Insurance Agency
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