VFXD and National Disability Insurance Agency

VFXD and National Disability Insurance Agency [2023] AATA 1723 (16 June 2023)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2021/2791
Re:VFXD
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Member D. Barker
Date:16 June 2023
Place:Sydney

The Tribunal affirms the decision under review.
......................[SGD].........................
Member D Barker
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – access criteria – disability requirements – chronic pain syndrome – post-traumatic stress disorder – secondary adrenaline insufficiency – are the Applicant’s impairments permanent – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)
CASES
Drake v Minister for Immigration & Ethnic Affairs[1979] AATA 179
Mulligan v National Disability Insurance Agency (2015) FCA 544
National Disability Insurance Agency v Davis [2022] FCA 1002

SECONDARY MATERIALS
Convention on the Rights of Persons with Disabilities, New York on 13 December 2006 ([2008] ATS 12)

National Disability Insurance Agency, Our Guidelines – Becoming a participant – Applying to the NDIS, (Web Page) Explanatory Memorandum, National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021(Cth)

REASONS FOR DECISION
Member D. Barker
16 June 2023
INTRODUCTION
1.This application is about whether the Applicant should be granted access as a participant to the National Disability Insurance Scheme (NDIS). The Applicant is 61 years old.
2.The Applicant lives with her husband in North Queensland (QLD). Her husband is reported to also suffer from medical conditions, including post-traumatic stress disorder (PTSD). The Applicant has been married previously and has three adult children from a previous marriage.
3.The Applicant has suffered from poor health for many years with issues in her medical history including: chronic pain syndrome (CPS), secondary adrenal insufficiency, osteoporosis, asthma, Nissen fundoplication for gastro-oesophageal reflux disease (GORD) with multiple procedures and resultant severe chronic pain and poor oesophageal motility, subclinical hypothyroidism, type 2 diabetes mellitus (NIDDM), PTSD, cervical cancer, cataracts and a vitamin D deficiency,[1] hypertension, benzodiazepine dependence and opioid dependence.[2]
[1] A2, Cairns & Hinterland Hospital & Health Service, Department of medicine, Endocrinology Clinic referral information, dated 5 May 2020, prepared by Dr Ashim K. Sinha.
[2] A1, Mulgrave Road Medical Centre referral information, dated 22 April 2020, prepared by Dr Michael Curley.
4.The Applicant applied to become a participant in the NDIS in November 2020. Information provided in association with this application by her treating General Practitioner (GP), Dr Anusha Pandithasekera, identified her primary impairment as a secondary adrenaline insufficiency and that the secondary impairments impacting the Applicant were asthma, chronic pain disorder related to fibromyalgia, PTSD, achalasia cardia / GORD and cataracts.[3]
[3] T3, NDIS Access request – Supporting evidence form, prepared by Anusha Pandithasekera, dated 24 November 2020.
5.On 22 December 2020, a delegate of the Chief Executive Officer (CEO) of the National Disability Insurance Agency (NDIA) determined that Applicant did not meet the access requirements set out in the National Disability Insurance Scheme Act 2013 (the Act). In particular, the delegate determined the permanency requirements in paragraphs 24(1)(b) and 25(1)(a) of the Act were not satisfied.[4]
[4] T4. Letter from the Respondent declining access to the NDIS as a participant, dated 22 November 2020.
6.The Applicant requested an internal review by the NDIA (the Respondent) and in association with that request provided updated information from Dr Pandithasekera which identified her primary impairment as a chronic abdominal pain syndrome secondary to previous abdominal surgeries and secondary impairment caused by chronic dysphagia due to achalasia and a secondary adrenaline insufficiency likely secondary to long-term ill health.[5]
[5] T5. NDIS Access request – Supporting evidence form, prepared by Dr Anusha Pandithasekera, dated 5 January 2021.
7.The Applicant provided the NDIA with a third NDIS Access request. The supporting evidence form, prepared by Dr Johannes Haasbroek, GP, on 7 April 2021, identified her primary impairment as chronic pain syndrome and further to this indicated that she has no other impairments.[6]
[6] T11. NDIS Access request – Supporting evidence form, prepared by Dr Johannes Haasbroek, dated 7 April 2021.
8.On 12 April 2021, another delegate of the CEO (the NDIA Internal Reviewer) confirmed the decision that the Applicant did not satisfy required access criteria to become a NDIS participant (the Internal Review Decision).[7] In this Internal Review Decision the delegate explained that they were satisfied that the Applicant suffered disabilities attributable to:
[7] T2. Internal Review Decision, dated 12 April 20221.
(a)physical impairment related to CPS, fibromyalgia and dysphagia;
(b)sensory impairment related to cataracts;
(c)psychosocial impairment related to PTSD.

9.The NDIA Internal Reviewer responsible for the Internal Review Decision was not however satisfied that the evidence established that other conditions identified by the Applicant, namely secondary adrenal insufficiency, osteoporosis, and diabetes, impaired the ability of the Applicant to complete day to day tasks or otherwise caused her disability.
10.Further to this, the NDIA Internal Reviewer was not satisfied the evidence established that the impairments associated with the CPS, fibromyalgia, dysphagia, cataracts and PTSD were permanent for the purposes of the legislation providing for access to the NDIS, as required by paragraph 24(1)(b), or paragraph 25(1)(a) of the Act. The NDIA Internal Reviewer was also not satisfied that the evidence established that the Applicant had a substantial reduction in functional capacity as a result of the identified impairments, as required by paragraph 24(1)(c), or that she was likely to require lifetime support of the NDIS as required by paragraph 24(1)(e).
11.On 29 April 2021, the Applicant applied to the Administrative Appeals Tribunal (the Tribunal) for an extension of time for making an application for review of the internal review decision. The Tribunal granted this request. In the review application the Applicant contended that the internal review decision was wrong, stating that ‘not all of the medical problems were considered at the time the decision was made’.[8]
[8] T1, Application for Review of Decision, dated 29 April 2021.
12.The Applicant and Respondent participated in a number of case conferences (CC) and telephone direction hearings (TDH) in which evidentiary gaps were identified, as well as suggestions as to how these evidentiary gaps could potentially be responded to by the Applicant.[9]
[9] CC by telephone events were held on 14/07/21, 13/10/21, 14/01/22, 15/02/22, 21/04/22. A Return of summons hearing, by telephone was held on 10/12/21 and TDH’s were held on 16/08/22, 13/09/22, 05/10/22 & 08/11/22.
13.The suggestion that the Applicant’s review application be decided ‘on the papers’ (OTP) was discussed during a TDH on 5 October 2022. The record of this TDH indicates that the Tribunal asked the Applicant if they would be able to file something in writing that sets out her position, that is, the basis on which she would say she meets required access criteria to become a participant of the NDIS. The Applicant is recorded to have indicated that she would require some assistance and was due to see her doctor later that week and would be able to provide the requested information within two weeks.
14.In response to an email from the Tribunal, sent to the Applicant on 21 October 2022 requesting she confirm if she intended to lodge any further documents, the Applicant, on 24 October 2022, filed a copy of a report prepared by Dr A Kamalaidan, dated 28 April 2022.[10]
[10] A6. Report: CT Chest, Abdomen and Pelvis, Dr Ahmed Kamalaidin, 28 April 2022.
15.The record of a TDH on 8 November 2022 indicates the Applicant confirmed that she had filed all evidence upon which she wished to rely and that the Tribunal was asked to proceed to make a decision on the review application OTP. On 8 November 2022, the Tribunal (differently constituted) issued directions that:
1.On or before 22 November 2022, the respondent is to file with the Tribunal and serve on the Applicant an updated or amended Statement of Facts, Issues and Contentions.
2.On or before 22 November 2022, the respondent is to file with the Tribunal and serve on the Applicant a paper copy of the indexed and paginated hearing bundle.
3.On and from 23 November 2022, the matter will be reserved for determination on the papers.
16.On 9 February 2023 the Tribunal wrote to the Applicant and Respondent, informing them that the Tribunal responsible for the review application had been reconstituted and the case was transferred from the Tribunal’s Brisbane Registry to the Sydney Registry.
17.The Tribunal may only determine a review application OTP with the consent of all parties to the review application. The Tribunal (previously constituted) was satisfied that the proposal for an OTP decision was discussed with and understood by the parties and that this way of progressing the review was requested by both the Applicant and Respondent in November 2022.
18.On 14 February 2023, the Tribunal registry, on my request, wrote to the Applicant and Respondent seeking confirmation as to whether they remained content for the review application to be decided OTP. On 14 February 2023, the Tribunal received a response from the Applicant, by way of an email which stated: ‘its been over 2 years without any help from NDIS. So the answer is yes’. The Respondent’s confirmation that it understood the matter was reserved for determination OTP and should proceed in that manner was also received, by way of email, on 14 February 2023.
19.In this matter, I am mindful that the Applicant is unrepresented and has not provided all documentation which may usually be produced in support of her claim to meet required access criteria to become a participant of the NDIS. Of particular note, the Applicant has not submitted a written statement outlining facts, issues and contentions that they consider relevant to the Tribunal’s determination. There is no statement of lived experience, a document which is at times prepared by an Applicant for the purpose of providing information and describing the manner in which their impairments affect their functioning and related lived experience. There is also not a functional assessment, detailing the Applicant’s functional capacity, prepared at the request of either the Applicant or the Respondent.
20.I am however satisfied the access requirements and evidentiary issues have been discussed with the Applicant through conferencing and direction hearings leading to the request that the matter be determined OTP and that she has had the opportunity to provide what reports, and submissions that she considers appropriate. I am also mindful of the time this review application has now been before the Tribunal and the Applicant’s stated wish that it be determined without further delay. Relevant to this latter factor, I have taken into account the Applicant’s age and the manner in which further delay could compromise the Applicant’s ability to make further requests to become a participant of the NDIS whilst she still satisfies the age requirements in the Act, should she not get a favourable outcome in relation to this review application.
21.The Tribunal has had regard to the case of National Disability Insurance Agency v Davis (Davis)[11] in considering whether the parties have had a fair opportunity to provide evidence and make submissions on the relevant issues and factors in this case. I am satisfied that the Tribunal, in proceeding to determine the review OTP, is not considering issues beyond those considered by the parties. All of the material before the Tribunal was made available to the parties before their February 2023 confirmation of their request for the review application to be decided OTP.
[11] National Disability Insurance Agency v Davis [2022] FCA 1002.
22.The Tribunal is satisfied the parties have had a fair opportunity to consider all the relevant material and the issues raised in this case and has decided that this matter is an appropriate one to determine OTP, without the parties participating in an oral hearing. In doing so the Tribunal has taken into consideration all the material before it, including statements, reports and documents filed with the Tribunal by the parties and evidentiary material produced under subpoena.

LEGISLATION
23.The objects of the Act are set out in section 3. It includes, amongst other things, to give effect to Australia’s obligations under the Convention on the Rights of Persons with Disabilities,[12] and facilitate the development of a nationally consistent approach to access to, and planning and funding of, supports for people with disability.[13] The Act also states that, in giving effect to the objects of the Act, regard is to be had to the need to ensure the financial sustainability of the NDIS.[14]
[12] Opened for signature on 13 December 2006, [2008] ATS 12, ratified by Australia on 17 July 2008.
[13] National Disability Insurance Scheme Act 2013 s 3(1)(f).
[14] Ibid s 3(3)(b).

There are general principles under section 4 of the Act and includes that people with disability should be:
·supported to participate in and contribute to social and economic life;[15]
[15] Ibid s 4(2).
·able to receive the care and support they need over their lifetime and that there be certainty around this;[16]
[16] Ibid s 4(3).
·supported to pursue their goals and maximise their independence;[17]
[17] Ibid s (4)(11)(a).
·supported to live independently and to be included in the community as fully participating citizens;[18] and
[18] Ibid s (4)(11)(b).
·able to undertake activities that enable them to participate in the community and in employment.[19]
[19] Ibid s (4)(11)(c).
25.Under section 18 of the Act, a person may make an access request to the NDIA to become a participant in the NDIS. If a prospective participant makes an access request, under section 20, the CEO (or upon the matter being reviewed by the Tribunal, the Tribunal) must decide whether or not that person meets the ‘access criteria’ to become a participant in the NDIS. Pursuant to subsection 28(1), a person becomes a NDIS participant on the day it is decided that the person meets the access criteria.
26.The provisions relating to access to the scheme are contained in Part 1 of Chapter 3 of the Act. Section 21 provides, that for a person to meet the access criteria, they must meet the age and residence requirements in addition to either the disability requirement (section 24) or the early intervention requirements (section 25).
27.Amendments to sections 24 and 25 of the Act came into effect on 1 July 2022. The Tribunal had not completed its review of the Applicant’s application by the time the amendments commenced. Both the original decision which the NDIA made regarding the Applicant’s request for access to the NDIS, and the NDIA’s internal review decision, were made prior to those amendments. The Tribunal’s decision is made subsequent to those amendments.
28.At the time that the Agency made its internal review decision, a person met the disability requirements under paragraph 24(1)(a) 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.’
29.The amendments removed the reference to impairments attributable to a psychiatric condition and replaced them with the phrase ‘one or more impairments to which a psychosocial disability is attributable’. From 1 July 2022, a person meets the disability requirements under paragraph 24(1)(a) if:
(a)‘the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable.’
The transitional provisions at Schedule 2, Item 54 of the National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Act 2022 (Cth) provide that:
(1)The amendments of sections 24 and 25 of the National Disability Insurance Scheme Act 2013 made by this Schedule apply in relation to the following:
(a)an access request made on or after the commencement of this item;
(b)an access request that was pending immediately before that commencement;
(c)a revocation under section 30 of that Act made on or after that commencement.
31.As the decision under review relates to the determination of an access request under section 18 of the Act, it follows that the term ‘an access request that [is] pending immediately before’ the commencement covers a decision under review, as in this review, that ‘has not been finalised prior to the commencement’. The Revised Explanatory Memorandum[20] provides, in relation to Schedule 3, Item 56 that the amendment would apply ‘if a decision on their request under section 18 of the Act has not been finalised prior to the commencement’.
[20] 2019-2020-2021-2022, The Parliament of The Commonwealth of Australia – Senate: National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021 – Revised Explanatory Memorandum
32.With respect to the disability requirements, section 24 of the Act provides:
(1)A person meets the disability requirements if:
(a)the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable; and
(b)the impairment or impairments are, or are likely to be, permanent; and
(c)the impairment or impairments result in substantially reduced functional capacity to undertake one or more of the following activities:
(i)communication;
(ii)social interaction;
(iii)learning;
(iv)mobility;
(v)self care;
(vi)self management; and
(d)the impairment or impairments affect the person’s capacity for social or economic participation; and
(e)the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime.
(2)For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the variation.
Each paragraph of subsection 24(1) of the Act needs to be met. In regard to this, the linking term ‘and’ in the provisions is significant. In effect, paragraph 24(1)(a) through paragraph 24(1)(e) are threshold requirements that need to be satisfied in order for a person to be eligible to become a participant of the NDIS. The Tribunal must be satisfied, on the basis of rationally probative and relevant evidence that these and other required provisions are met.

The Act also provides, in subsection 209(1), that the Minister may make rules prescribing matters under the Act. Section 27 further states that the rules may prescribe circumstances in which, or criteria to be applied with respect to assessing whether, a person meets the disability requirements under section 24 or the early intervention requirements under section 25. The relevant rules are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (the Access Rules), of which Part 5 is relevant and provides as follows:
5.1The 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, selfcare, 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.
5.3This 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?
5.4An 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.
When does an impairment result in substantially reduced functional capacity to undertake relevant activities?
5.8An 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.
The Operational Guidelines also assist in making 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.[21] The NDIA website explains that the Operational Guidelines set out some of the NDIA’s operational information and that they are based on the NDIS Legislation and Rules.[22] The Operational Guidelines explain what the NDIA needs to consider and how the NDIA make decisions based on the legislation. The relevant Operational Guideline is Our Guidelines – Becoming a participant – Applying to the NDIS (the Access Guidelines).[23]
[21] Drake v Minister for Immigration & Ethnic Affairs[1979] AATA 179.
[22] align="left">[23] National Disability Insurance Agency, Our Guidelines – Becoming a participant – Applying to the NDIS, (Web Page) <>
In relation whether a person’s disability is caused by an impairment and whether an impairment is likely to be permanent, the Access Guidelines provide the following information:
Is your disability caused by an impairment?
When we consider your disability, we think about whether any reduction or loss in your ability to do things, across all life domains, is because of an impairment.
An impairment is a loss or significant change in at least one of:
·     your body’s functions
·     your body structure
·     how you think and learn.
To meet the disability requirements, we must have evidence your disability is caused by at least one of the impairments below[i]
·     intellectual – such as how you speak and listen, read and write, solve problems, and process and remember information
·     cognitive – such as how you think, learn new things, use judgment to make decisions, and pay attention
·     neurological – such as how your body functions
·     sensory – such as how you see or hear
·     physical – such as the ability to move parts of your body.
You may also be eligible for the NDIS if you have a psychosocial disability.[ii] This means you have reduced capacity to do daily life activities and tasks due to your mental health.
It doesn’t matter what caused your impairment, for example if you’ve had it from birth, or acquired it from an injury, accident or health condition.
It also doesn’t matter if you have one impairment, or more than one impairment.
Is your impairment likely to be permanent?
We need evidence that you’ll likely have your impairment for your whole life.
You might have some periods in your life where there is a smaller impact on your daily life, because your impairment may be episodic or fluctuate in intensity[iii]. Your impairment can still be permanent due to the overall impact on your life, and the likelihood that you will be impacted across your lifetime.
Even when your condition or diagnosis is permanent, we’ll check if your impairment is permanent too. For example, you may not be eligible if your impairment is temporary, still being treated, or if there are remaining treatment options.
Generally, we’ll consider whether your impairment is likely to be permanent after all available and appropriate treatment options have been pursued.
If you give us evidence you have been diagnosed with a condition on List B, we’ll likely decide your disability is from an impairment that’s likely to be permanent.
(Original emphasis.)
37.The Act does not define the word, “disability”, nor the word, “impairment”. The Tribunal is aware that the concept of impairment, rather than a definition of disability, is central to the threshold provisions such as section 24. In Mulligan v National Disability Insurance Agency (Mulligan)[24] Justice Mortimer discussed the meaning of these terms. Her Honour stated at [56]:
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.
………
[24] Mulligan v National Disability Insurance Agency (2015) FCA 544
No decision maker needs to be satisfied a person’s impairment is ‘serious’, or more serious than another people. 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 enough for a person to have substantially reduced functional capacity in relation to one activity.
38.The distinction between the statutory concept of impairment and the concept of a medical condition or diagnosis was discussed by Justice Mortimer in Davis. Her Honour noted at [69]:
What the legislative scheme focuses on is not the name of a person’s disability, nor the diagnosis given to a person – but rather what are the impairments experienced by a person which may require supports so that the person can participate in all aspects of personal and community life. It is the impairment which the scheme contemplates may affect the “functional capacity” of a person.

39.In Mulligan, Justice Mortimer described the importance of the assessment needed to ascertain a person’s eligibility to become a participant of the NDIS. Her Honour stated at [55-56]:
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.

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.
EVIDENCE
40.The documents before the Tribunal are as follows:
(a)the ‘T-Documents’ provided under section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) to the Tribunal by the Respondent after the application for review was made, which comprises evidence provided by the Applicant to the Respondent and other documents available to the NDIA Internal Reviewer at the time of their decision;
(b)the Applicant’s material as follows:
(i)Referral: Dr Anusha Pandithaskera, GP, to Dr Brown, dated 22 April 2020
(ii)Report of Dr Ashium K Sinha, Endocrinologist, dated 5 May 2020
(iii)Oesophageal motility study, dated 15 July 2020
(iv)Report of Dr Mohammed Qaseem Khan, Gastroenterologist, dated 27 July 2020
(v)Report of Dr Samitha Goonewardne, Gastroenterology registrar, undated
(vi)CT Chest, Abdomen and Pelvis, dated 28 April 2022
(c)the Respondent’s material as follows:
(i)Respondent’s Statement of Facts, Issues and Contentions, dated 21 June 2022
(ii)Respondent’s Amended Statement of Facts, Issues and Contentions, dated 6 December 2022
(d)Other material as follows
(i)The Access operation guidelines – Applying to the NDIS
(e)Tender Bundle prepared by the Respondent as follows:
(i)     Summonsed records produced by Edmonton Family Medical Centre
(ii)Summonsed records produced by The Doctors Mulgrave Road Medical Centre
(iii)Summonsed records produced by Townsville Hospital and Health Service
(iv)Summonsed records produced by Princess Alexandra Hospital
(v)Summonsed records produced by Cairns Private Hospital
(vi)Summonsed records produced by Cairns and Hinterland Hospital and Health Service
ISSUES
41.The issue arising in this case is whether the Applicant satisfies the access requirements to become a participant of the NDIS. There is no dispute that the Applicant meets the age and residency requirements set out in sections 22 and 23 of the Act, and I so find. It is therefore necessary for the Tribunal to consider whether the Applicant satisfies required criteria: the disability requirements within section 24, or the early intervention requirements in section 25.
The Applicant’s contentions
42.The Applicant contends that her day-to-day life is impaired in significant ways by disabilities attributable to a range of impairments which have affected her for many years and which will not cease to affect her into the future. The Applicant disputes the decision of the Respondent to not grant her access to the NDIS on the basis that ‘not all of the medical problems were considered at the time the decision was made’. [25]
[25] T1, Application for Review of Decision, dated 29 April 2021.
The Respondent’s contentions
43.The Respondent concedes paragraph 24(1)(a) is satisfied, in that the Applicant has a disability or disabilities attributable to a number of, but not all, impairments identified by the Applicant in the access request forms submitted in support of her access request.[26] The Respondent accepts that the Applicant has impairments arising from PTSD, CPS, fibromyalgia, and dysphagia – Type 1 achalasia, as confirmed by Dr Pandithasekera, on 24 November 2020.[27] The Respondent contends that the available evidence does not establish that the Applicant suffers impairments associated with cataracts, diabetes, secondary adrenal insufficiency, cervical cancer, or osteoporosis.[28]
[26] Respondent’s Amended SFIC, dated 6 December 2022.
[27] T3, NDIS Access request – Supporting evidence form, prepared by Anusha Pandithasekera, dated 24 November 2020
[28] Respondent’s Amended SFIC, dated 6 December 2022.
44.With respect to paragraph 24(1)(b), the Respondent contends that the Applicant’s impairments do not meet the permanency requirements. In support of this contention the Respondent states that there is insufficient evidence from the Applicant’s treating specialists about the details of any treatment or interventions undertaken to date, nor as to the outcomes of recommended treatments. The Respondent contends that in the absence of this evidence, the Tribunal cannot conclude that there is no further medical treatment or intervention likely to remedy the Applicant’s impairments.[29]
[29] Respondent’s Amended SFIC, dated 6 December 2022..
45.With respect to paragraph 24(1)(c),the Respondent contends that due to the lack of evidence which would show the Applicant’s functional capacity and limitations, the Tribunal cannot be satisfied that the Applicant has a substantially reduced functional capacity in any of the activity domains specified in paragraph 24(1)(c).[30]
[30] Ibid
46.With respect to paragraph 24(1)(d), the Respondent accepts that the impairments that can be attributed to disabilities affect the Applicant’s capacity for social or economic participation and notes that she is presently on the Disability Support Pension through Centrelink.[31]
[31] Ibid
47.With respect to paragraph 24(1)(e), the Respondent contends that the Applicant cannot be considered likely to require support under the NDIS for her lifetime without first undergoing the recommended treatments recommended to her by her treatment providers for the impairments arising from PTSD, CPS, fibromyalgia, and dysphagia – Type 1 achalasia. The Respondent contends that this is a necessary precursor to then determining whether the impairments give rise to a substantially reduced functional capacity to undertake the activities of communication, social interaction, learning, mobility, self-care, or self-management.[32]
[32] Ibid
48.In relation to section 25, the Respondent contends that the Applicant does not meet the early intervention requirements because:
(a) the evidence demonstrates that further treatment in the form of psychology, pain management and an achalasia balloon dilation under general anaesthesia is likely to benefit the Applicant by reducing her future need for support. That treatment is not appropriately funded under the NDIS, but rather the public health system: subsection 25(3);
(b) the current evidence does not demonstrate the provision of any other early intervention supports that is likely to benefit the Applicant by reducing her 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 her functional capacity, as required under paragraph 25(1)(b); and
(c) the evidence provided does not indicate the any other early intervention supports are likely to benefit the Applicant by achieving one or more of the outcomes listed in paragraph 25(1)(c). There is no indication in the evidence provided as to what benefits may or may not be experienced from receiving support.[33]
[33] Respondent’s Amended SFIC, dated 6 December 2022.
CONSIDERATION OF CLAIMS AND EVIDENCE
49.It is the Applicant’s contention that not all of the medical problems were considered at the time the internal review decision was made.[34] The Tribunal has taken this to indicate that the Applicant is not persuaded all relevant medical evidence was taken into account by the Delegate of the CEO responsible for the Internal Review Decision.
[34] T1, Application for Review of Decision, dated 29 April 2021.
The Disability Requirements
50.The Tribunal must be satisfied that the Applicant meets all the requirements specified in paragraphs 24(1)(a) to (e) of the Act in order to find that she meets the ‘disability requirements’ for access to the NDIS.
Does the Applicant have a disability attributable to one or more impairments? –    paragraph 24(1)(a)
51.The three NDIS Access Request – Supporting Evidence Forms submitted in support of the Applicant’s access request, when considered cumulatively, state that she has a disability that is attributable to the following impairments:
(a)CPS
(b)Fibromyalgia
(c)Secondary adrenal insufficiency,
(d)Dysphagia
(e)PTSD
(f)Asthma
(g)Cataracts
52.A surgery consultation record of Dr Robert D’Hotman, GP, dated 12 July 2021 states that whilst the Applicant has NIDDM, she is not on medication for this medical condition.[35] The Tribunal notes that whilst the available evidence makes reference to the Applicant suffering from this form of diabetes, there is not an indication she has contended that she has a disability attributable to impairment from NIDDM. Equally, the available evidence makes reference to the Applicant in the past suffering from cervical cancer. The Applicant makes no claim to have a disability attributable to impairment from this condition.
[35] O2, Summonsed material, p 776.
53.The Act focuses on the concept of impairment rather than diagnosis. A medical problem, or medical condition, or medical diagnosis in and of itself is relevant to whether a person meets paragraph 24(1)(a) in so far as it may contribute to the person suffering from a disability or disabilities attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable.
Does the Applicant have a disability attributable to intellectual impairment?
54.The Applicant has made no claim and there is no apparent indication in the available evidence that she has suffered a loss or a significant change with respect to how she speaks and listens, reads and writes, solves problems or processes and remembers information.
55.On the basis of its assessment of the available evidence, the Tribunal finds that the Applicant does not have a disability attributable to an intellectual impairment.
Does the Applicant have a disability attributable to cognitive impairment?
56.The Applicant has made no claim and there is no apparent indication in the available evidence that she has suffered a loss or a significant change with respect to how she thinks, learns new things, uses judgement to make decisions and to pay attention.
57.On the basis of its assessment of the available evidence, the Tribunal finds that the Applicant does not have a disability attributable to cognitive impairment.
Does the Applicant have a disability attributable to neurological impairment?
58.With respect to whether the Applicant has a disability attributable to one or more neurological impairments and the conditions referred to in the three NDIS Access Request – Supporting Evidence Forms submitted in support of her application to become a participant of the NDIS, the Tribunal formed the view that in terms of how the Applicant’s body functions, it is relevant to consider the conditions of: chronic pain syndrome and fibromyalgia, gastroesophageal reflux disease (GORD), dysphagia and achalasia, asthma and secondary adrenal insufficiency.
Chronic pain syndrome (CPS) and fibromyalgia
59.There is consistent reference in the medical evidence to the suffering symptoms affecting her bodily functioning, which can be associated with CPS and fibromyalgia, with these including ongoing pain of both a generalised and focused nature, depression, fatigue, muscle stiffness and sleep disruption.
60.The initial NDIS Access Request – Supporting Evidence Forms prepared by Dr Pandithaskera on 24 November 2020 identify one of the impairments affecting the Applicant to be a chronic pain disorder related to fibromyalgia.[36] The second such form prepared by Dr Pandithaskera on 5 January 2021 identifies chronic abdominal pain syndrome secondary to previous abdominal surgeries as the primary impairment with the most impact on the Applicant’s daily life, with that impact having lasted in excess of 20 years and likely to be lifelong.[37]
[36] T3, NDIS Access Request – Supporting Evidence Forms prepared by Dr Pandithaskera on 24 November 2020.
[37] T5, NDIS Access Request – Supporting Evidence Forms prepared by Dr Pandithaskera on 5 January 2021.
61.A report prepared, on 5 May 2020 by Dr Ashium K Sinha, Endocrinologist at the Cairns and Hinterland Hospital and Health Service Endocrinology Clinic, indicates that the Applicant has been affected by ‘chronic pain since 1982’.[38]
[38] T1D, Applicant health summary by Dr Ashim Sinha (Endocrinologist) on 5 May 2020
62.A report prepared on 4 September 2017 by Professor Mark Smithers, Professor of Surgery, Princess Alexandra Hospital Upper Gastro-intestine and soft tissue unit, indicates that whilst Professor Smithers had ‘no clear explanation for her pain’, he noted that the Applicant informed him that she was previously reviewed by him ‘in 2008 with the same pain’.[39] In the report, Professor Smithers comments that:
It would seem to me that she has a number of investigations that have excluded serious pathology. I understand that all of the symptoms that she has now have a major impact on her quality of life. There does not appear to be any surgically correctable problem at this point in time.[40]
[40] O3. Report by Mark Smithers, dated 4 September 2017, p 1214-1216.
63.A letter prepared by Dr Angela Kwok, pain medicine registrar, on 1 June 2010 makes reference to the Applicant being very upset due to an explanation from Professor Smithers to her that no further operations are available for her, and that a gastrectomy may not be helpful for her pain. Dr Kwok notes that the Applicant stated that she has had a total of around 30 surgical operations in the past including for Nissen fundoplication operations and three other abdominal operation. The pain affecting the Applicant was reported to be a hot sensation, burning type of pain which affected her 24 hours per day and was exacerbated by bending and picking things up[41]
[41] O2, Letter by Dr Angela Kwok, pain medicine registrar, dated 1 June 2010, p 1091-1092.
Dysphagia, achalasia, GORD
64.There is consistent reference in the medical evidence to the Applicant experiencing difficulty with eating food, swallowing and vomiting.
65.A report prepared by Dr Nirjhar Nandi, Physician, Cairns Hospital Gastroenterology Clinic, dated 15 April 2014 reports that the Applicant has severe GORD with reflux pain and odynophagia. Unintentional loss of weight is reported to be connected to the GORD.[42]
[42] O3, Report by Dr Nirjhar Nandi, Physician, dated 15 April 2014.
66.A report prepared on 27 July 2020, by Dr Mohammed Qaseem Kham, Staff Gastroenterologist at the Cairns and Hinterland Hospital and Health Service, Gastroenterology/Liver Clinic states:
Her main gastrointestinal problem is a chronic dysphagia for the last > 10 years. Mainly for solids, but sometimes it is liquids also. Her dysphagia is mainly mid-esophageal [sic] and sometimes associated with vomiting. On the clinical ground, she was diagnosed to have gastrooesophageal [sic] reflux disease in 1992 and then she had fundoplication, after six months of surgery, she developed severe dysphagia and was unable to eat anything with complete obstruction. Later she had two re-do and revisions of the fundoplication in 1995 and 1996 (in total 6 surgeries).[43]
[43] O7, Report by Dr Mohammed Qaseem Khan, dated 27 July 2020.
67.In this report Dr Kham reports the features shown in a high-resolution manometry were consistent with type 1 achalasia and that the Applicant received advice to undergo an achalasia balloon dilation under general anaesthesia.
68.An undated[44] letter prepared by Dr Samitha Goonewardne, Gastroenterology registrar at Townsville Hospital and Health Service, states he saw the Applicant in the Gastroenterology clinic in Cairns Base Hospital and that she presented with dysphagia from type I achalasia’, which along with long-standing asthma for which she has required a number of causes of steroids are pasts which has resulted in significant osteoporosis.[45]
[44] Whilst the report of Dr Goonewardne is not dated it is evident that it was prepared in support of the NDIS access request.
[45] A5, Letter by Dr Samitha Goonewardne, undated.
Asthma
69.The available medical evidence refers to the Applicant being diagnosed with asthma in either 1985 or 2005,[46] for which she has required a number of courses of steroids.[47]
[46] A2, Cairns & Hinterland Hospital & Health Service, Department of medicine, Endocrinology Clinic referral information, dated 5 May 2020, prepared by Dr Ashim K. Sinha; O2, Patient Health Summary, The Doctors, Mulgrave Road, Cairns, dated 5 January 2021; Patient Health Summary, Edmonton Family Medical Centre, Edmonton, dated 12 October 2021.
[47]A5, Letter by Dr Samitha Goonewardne, undated.
70.A referral letter prepared by Dr Pandithaskera on 22 April 2020 refers to the Applicant having a ‘long history of poorly controlled Asthma’.[48] The NDIS Access Request – Supporting Evidence Form prepared by Dr Pandithaskera on 24 November 2020 identifies asthma as an impairment likely to have a lifelong impact on the Applicant. Dr Pandithaskera refers to the Applicant being treated by a specialist, without that medical practitioner being identified.[49]
[48] T1C, Referral letter by Dr Pandithaskera, dated 22 April 2020.
[49] T3, NDIS Access Request – Supporting Evidence Forms prepared by Dr Pandithaskera on 24 November 2020.
71.A report of Dr James Brown, consultant physician – respiratory and general medicine, dated 1 June 2020, reports that the Applicant was diagnosed with asthma in her 20’s and that ‘Over the last two years, her control has been sub-optimal, with increased cough, wheeze and shortness of breath’.[50] There is also consistent evidence in the summonsed material from records and reports prepared by GPs from who the Applicant has sought treatment as to her having breathing difficulties and episodes of shortness of breath, weakness and fatigue.
[50] O3, Report by Dr James Brown, dated 1 June 2020.
Secondary adrenaline insufficiency
72.A report prepared on 5 May 2020 by Dr Ashim K Sinha, Endocrinologist, states that the Applicant suffers from a secondary adrenal insufficiency, which Dr Sinha considered was ‘due to high dose opiates and inhaled steroid (Symbicort/ budesonide) and intermittent prednisone’.[51]
[51] A2, Cairns & Hinterland Hospital & Health Service, Department of medicine, Endocrinology Clinic referral information, dated 5 May 2020, prepared by Dr Ashim K. Sinha.
73.The initial NDIS Access Request – Supporting Evidence Form prepared by Dr Pandithaskera on 24 November 2020 identifies secondary adrenal insufficiency as the impairment with the most impact on the Applicant’s daily life. Dr Pandithaskera reports that the Applicant has been impacted by this impairment since 2018 and that the impairment is likely to be lifelong. In the subsequent NDIS Access Request – Supporting Evidence Form prepared by Dr Pandithaskera on 5 January 2021 the doctor opines that the secondary adrenaline insufficiency affecting the Applicant is likely secondary to her long-term ill health.
74.There is consistent reference in the medical evidence to the Applicant’s long-term ill health and of her suffering symptoms which can be associated with a secondary adrenal insufficiency. These include fatigue, loss, weight loss, nausea, vomiting, muscle weakness, irritability, and depression.
75.Based on the evidence set out in the above 16 paragraphs the Tribunal is satisfied that the Applicant has impairment that involves loss of or damage to how her body functions as a consequence of impacts from CPS, GORD, dysphagia, achalasia, asthma and secondary adrenal insufficiency.
Does the Applicant have a disability attributable to sensory impairment?
76.There is evidence in the summonsed material of the Applicant being referred in May 2017 to an ophthalmologist for a cataract assessment.[52] There is a reference to the Applicant awaiting cataract surgery and being nearly blind in her right eye in the background section of a report of a medical specialist, which was prepared in May 2020.[53] Ophthalmology Clinic notes from Cairns Hospital indicate the Applicant underwent cataract surgery on her right eye on or around 10 February 2021.[54]
[52] O7, Referral request from Joanna Wu, optometrist, dated 30 May 2017.
[53] A2, Cairns & Hinterland Hospital & Health Service, Department of medicine, Endocrinology Clinic referral information, dated 5 May 2020, prepared by Dr Ashim K. Sinha.
[54] O7, Ophthalmology Clinic notes from Cairns Hospital, pp 3768 – 3777.
77.The Respondent contends that there is no evidence of the Applicant experiencing any ongoing impairment following cataract surgery in February 2021.[55] In reviewing the available evidence, the Tribunal notes that there is reference to the Applicant experiencing impairment caused by cataracts in the NDIS Access Request – Supporting Evidence Form prepared by Dr Pandithaskera on 24 November 2020 which reported that the Applicant was awaiting cataract surgery and is nearly blind in the right eye. However, there is no reference to any impairment in the subsequent NDIS Access Request – Supporting Evidence Form prepared by Dr Pandithaskera on 5 January 2021, or in that prepared by Dr Johannes Haasbroek on 7 April 2021.[56]
[55] Respondent’s Amended SFIC, dated 6 December 2022.
[56] T3, NDIS Access Request – Supporting Evidence Forms prepared by Dr Pandithaskera on 24 November 2020; O2, Patient Health Summary, The Doctors, Mulgrave Road, Cairns, dated 5 January 2021; T1I, NDIS Access Request – Supporting Evidence Forms prepared by Dr Johannes Haasbroek, dated 7 April 2021.
78.It is the assessment of the Tribunal that whilst there is evidence relevant to the Applicant having a disability attributable to an impairment caused by cataracts in the report of Dr Sinha, from May 2020, there is a lack of evidence that the cataract surgery was unsuccessful, with the result of the Applicant having ongoing functional difficulty as a consequence of impaired vision.
79.On the basis of its assessment of the evidence set out in the three paragraphs above, the Tribunal is not satisfied that the Applicant now has impairment that involves loss of or damage to her sensory functions, as a consequence of cataracts or other factors.
Does the Applicant have a disability attributable to physical impairment?
80.Osteoporosis is identified as an impairment that has a significant impact on the Applicant in the third NDIS Access Request – Supporting Evidence Form, which was prepared by Dr Johannes Haasbroek on 7 April 2021.[57]
[57] T1I, NDIS Access Request – Supporting Evidence Forms prepared by Dr Johannes Haasbroek, dated 7 April 2021.
81.There is reference to the impact on the Applicant’s ability to move parts of her body as a result of osteoporosis in the report of Dr Goonewardne which states that osteoporosis has led to the Applicant suffering severe kyphosis (exaggerated forward grounding of the upper back) and increasing frailty, with recurrent falls and as a consequence, difficulty mobilising.[58]
[58] A5, Letter by Dr Samitha Goonewardne, undated.
82.Osteoporosis is also identified as one of the conditions on which the Applicant suffers in the 5 May 2020 report prepared by Dr Sinhaand in a bone densitometry report dated 13 September 2021.[59]
[59] A2, Cairns & Hinterland Hospital & Health Service, Department of medicine, Endocrinology Clinic referral information, dated 5 May 2020, prepared by Dr Ashim K. Sinha; O2, Bone Densitometry Report, dated 13 September 2021. p 1057.
83.Based on the evidence set out in the above three paragraphs the Tribunal is satisfied that the Applicant has impairment that involves loss of or damage to the Applicant’s physical function, and in particular her ability to move her body as a consequence of the impact of osteoporosis.
Does the Applicant have one or more impairments to which a psychosocial disability is attributable?
84.The Tribunal notes that the available evidence makes reference to the Applicant experiencing symptoms and difficulty associated with a range of mental health and substance dependency conditions, with PTSD being one of these conditions.
85.A referral letter to Dr Donna Turnbull, Psychserenity, Manunda, Cairns, prepared on 24 June 2017, by Dr Erin Walters from the Mulgrave Medical Centre, Cairns, states that the Applicant has a history of severe trauma from both her adult life and childhood experiences. Dr Walters reports that a depression screen was positive for depression and opines that the Applicant may also suffer from PTSD.[60]
[60] O3, Referral by Dr Erin Walters, dated 24 June 2017, p 1471.
86.A ‘Connect to Wellbeing’ referral form, dated 30 June 2020, indicates that the Applicant was referred, by Dr Pandithaskera, for intake and assessment to determine the relevant and available support services. The intake and assessment form indicates the Applicant’s presenting issue was PTSD and also long-term benzodiazepine abuse.[61]
[61] O3, Connect to Wellbeing Referral Form, dated 30 June 2020, pp 1560-1564.
87.A mental health services triage and rapid assessment report prepared by Sacha Condon, Psychologist, Cairns Hospital, on 12 October 2020 indicates that the Applicant was referred to that service by Dr Pandithaskera due to her expressing suicidal ideation. Ms Condon reports that during the assessment the Applicant reported having PTSD and a complex trauma history.[62]
[62] O7, Mental health services triage and rapid assessment report by Sacha Condon, dated 12 October 2020, pg 4121 – 4124.
88.Reported symptoms impacting the Applicant which associated with the identified mental health and substance dependency conditions include anxiety, depression, irritability, sleep disturbance, accidental overdose, and suicidal ideation.
89.The evidence with regard to the extent to which the Applicant’s daily life is impacted by her mental health conditions and substance dependency is in my view extensive and persuasive. On the basis of the cumulative evidence set out in the above five paragraphs the Tribunal is satisfied that the Applicant has one or more impairments to which a psychosocial disability is attributable.
Conclusion as to paragraph 24(1)(a)
90.The Tribunal finds that the Applicant has disabilities attributable to one or more neurological, sensory or physical impairments, and one or more impairments to which a psychosocial disability is attributable. Accordingly, paragraph 24(1)(a) of the Act is met.
Are the Applicant’s impairments permanent? – paragraph 24(1)(b)
91.A person meets the disability requirement criterion under paragraph 24(1)(b) of the Act if the ‘impairment or impairments are, or are likely to be, permanent’.
92.In Davis, Justice Mortimer addresses the meaning of “permanent” in paragraph 24(1)(b)., her Honour states at [130]:
The phrase “permanent impairment” in s 24(1)(b) means an impairment which is of an enduring nature. In other words, the question for the decision-maker is whether the impairment(s) experienced by an individual (rather than the cause of the impairments or the specific diagnoses made about a medical condition) has or have an enduring quality so as to require supports funded and/or provided under the NDIS Act on an ongoing basis. As s 29 and s 30 make clear, the intention of the scheme is that once a person meets the access requirements, then subject to certain specific exceptions, the person will remain supported by the NDIS through their lifetime.
93.As I have discussed in the section of this decision outlining the legislative framework for the NDIS, Part 5 of Access Rules address when impairments are, or are likely to be, permanent for the purposes of paragraph 24(1)(b). Relevant to this review, rule 5.4 states:
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.
94.In Davis, Justice Mortimer discusses the meaning of terms she considers important for the proper construction of the Access Rules and in relation to such terms states at [136-140]:
The chosen descriptors must also be construed consistently with the other language used in this section of the rules, and in r 5.4 in particular, including the requirement that the treatment “would be likely to remedy the impairment”. In this context, “remedy” should be understood to mean more than just relieve or improve. That is because r 5.5 recognises that an impairment may be permanent notwithstanding the severity of its impact on a person may fluctuate, or there are prospects for improvement. These changes in the impacts of an impairment may occur because of, amongst other matters, treatment. Therefore, in r 5.4 the word “remedy” should be understood to mean something approaching a removal or cure of the impairment. That is consistent with the meaning I consider should be given to the statutory phrase “permanent impairment”, as an impairment which is enduring and, while its impacts on a person from time to time might fluctuate, is not an impairment which is likely to be removed or cured.
As a general observation, in my opinion each of the adjectives must be construed as referring to circumstances in Australia. In r 5.4, the word “known” connotes a treatment which can be identified by Australian medical practitioners as a suitable treatment for the person’s particular impairment. The word “appropriate” connotes a treatment which has a capacity to “remedy” the impairment and is suitable for the particular individual concerned to undergo. The capacity of individuals with an impairment to undergo certain treatments may vary depending on their physical and psychological capabilities, other aspects of their physical and mental health, on their personal circumstances in terms of where they live and who they live with, and who cares for them.
The word “available” should be understood as meaning available to a particular individual. If it were to be construed as meaning “exists in Australia”, then it would have little different work to do from the word “known”. The Macquarie Dictionary defines “available” as meaning:
adjective 1. suitable or ready for use; at hand; of use or service …
Assuming as I do the validity of r 5.4, and on the premise any given treatment is “known” and “appropriate” as I have explained those terms, in my opinion the adjective “available” should be understood as directed at what treatments an individual can, in reality, access. Whether a person can afford a treatment will form part of the factual circumstances a decision-maker may need to examine in deciding if a treatment is one that an individual can in reality access.
Affordability may not be the only feature of a treatment affecting whether an individual can access a treatment. For example, whether a known and appropriate treatment for an impairment for a person in a remote Aboriginal community in Australia is “available” to that person is likely to involve considerations of whether that treatment can be delivered in that community, or whether a person has to travel to a major city or regional town to receive that treatment. So too the personal circumstances of a person, and the combination of impairments they might have. If a person has severe agoraphobia, but also has an impairment for which there is a known and appropriate treatment that can only accessed at a busy public hospital, a decision-maker may need to consider whether, as a matter of fact, that treatment is “available” to that individual, even if it might be “available” to a person without agoraphobia.
95.The Respondent contends that the rule 5.4 of the Access Rules ‘is clear in 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’. The Tribunal considers this contention is consistent with the discussion of the apparent exclusionary nature of rule 5.4 in Davis, where her Honour states at [131]:
I have also made findings about the interrelationship between the Rules and the Act: see [64]-[75] above. I proceed on the basis that r 5.4 and r 5.6 prescribe circumstances where, if the repository of the power is satisfied on the evidence of the applicability of either of those rules, a person’s impairment will be excluded from meeting s 24(1)(b). Relevantly, r 5.4 directs attention to a negative state of fact.
96.The Tribunal does not have the benefit of submissions, or evidence at hearing from the Applicant with respect to paragraph 24(1)(b) of the Act. However, the Tribunal is of the view that it can derive a view held by the Applicant in their asking for a review of the Respondent’s decision to refuse their request for access to the NDIS and her application to the Tribunal for a review of the Internal Review Decision where she stated “not all of the medical problems were considered at the time the decision was made”.
97.With respect to the Applicant’s reference to ‘medical problems’, the Tribunal is aware the terms ‘medical problems,’ ‘medical conditions,’ ‘disabilities’, and ‘impairments’ can be used somewhat interchangeably by parties and that the appropriate focus for the purposes of paragraph 24(1)(b) is whether an impairment is permanent.
98.With respect to the impairments that cause the disabilities suffered by the Applicant, in the previous section of this decision dealing with paragraph 24(1)(a) the Tribunal grouped the conditions which cause impairment in accord with the language used in paragraph 24(1)(a). That is, as either an intellectual, cognitive, neurological, sensory, physical or psychosocial impairment.
99.In considering whether the impairments are permanent, the Tribunal will consider the individual conditions which contribute to the Applicant’s impairments. However, the Tribunal notes that in considering whether impairments have an enduring quality, it is important to acknowledge the interaction between conditions which appear to have created the long-term ill health affecting the Applicant. As an example, the available evidence suggests connection between the digestive problems affecting the Applicant, which in part have been dealt with by multiple surgeries, and the chronic pain suffered by her, the treatment for which, possibly along with psychosocial factors, appear to have contributed to her developing prescription medication dependencies.
100.As discussed by the Respondent in their Statement of Facts, Issues and Contentions, there is a lack information from the Applicant’s treating medical practitioners about the details of any treatment or interventions undertaken to date, or as to the outcomes of recommended treatments. The Respondent contends that the evidence available regarding these factors is insufficient for the Tribunal to be satisfied that in relation to the impairments, as the Respondent classifies them,[63] there are no known, available and appropriate evidence-based clinical, medical or other treatments that likely remedy the impairments.
[63] PTSD, CPS, fibromyalgia and dysphagia – Type 1 achalasia
101.This is an issue for the Tribunal to form a view about after reviewing the available evidence in the hearing bundle, which inclusive of the summonsed material exceeds 4,000 pages of documentation. Whilst there are a number of specialist reports in the aforementioned documentation, on the most part they were prepared some years ago and whilst this speaks to the enduring nature of medical conditions affecting the Applicant, it does not necessarily provide the information required to make a positive finding upon which satisfaction can be achieved that rules 5.4 and 5.6 of the Access Rules and paragraph 24(1)(b) of the Act are met.
102.Reports prepared by a medical professional for another medical professional, whether this be imagery reports or reports from a specialist to a referring doctor, are prepared for specific purposes and do not necessarily provide the type of information relevant to consideration of the impairment permanency issue. Given the complex array of factors contributing to the Applicant’s ill health, in ideal circumstances it would be of benefit for the Tribunal to have before it information of a multidisciplinary nature addressing specific questions relevant to permanency, including as to the availability of known, appropriate, evidence based treatments for the conditions which contribute to the Applicant’s impairments, and as to her access to and engagement with treatment, and outcomes achieved. Unfortunately, reports of this type are not available.
103.There are also indications in the evidence, as discussed in following sections of these Reasons, in relation to a number of the conditions contributing to the Applicant’s impairments that recommended treatments have not been taken up and clinical management plans not complied with by the Applicant. A consequence of this being that the Tribunal does not have before it comments from the health professionals involved as to the efficacy, actual or potential, of recommended treatments and aspects of clinical management plans which may assist consideration of whether the impairment is permanent or likely to be permanent.
104.Notwithstanding this, a clear request has been put by the parties for the Tribunal to make a decision on the basis of the available information. The Tribunal has therefore reviewed the available information and makes the following comment and findings.
Is impairment caused by pain permanent, or likely to be permanent?
105.For the purposes of this section of the review, the Tribunal has clustered CPS and Fibromyalgia together, due to the overlap of symptoms associated with the impairment caused by these conditions, namely enduring pain, restricted physical functioning, fatigue, sleep disturbance and symptoms associated with psychosocial impairment including prescription medication dependencies.
106.The Respondent notes that the Applicant was referred to Dr Clifton Timmins, Pain Medicine Specialist, on 14 December 2020,[64] who encouraged the Applicant to engage with the local pain psychologist, or the North Queensland Persistent Pain Management Service. The Respondent contends that the Applicant declined to engage with these services.[65]
[64] O2, Summonsed material of Edmonton Family Medical Centre, p 756.
[65] O2, Summonsed material of Edmonton Family Medical Centre entry dated 18 May 2021,p 773 .
107.There is evidence in the summonsed material to support the Respondents contention with regard to the Applicant declining to engage with non-pharmacological pain management interventions, which were recommended to her.[66]
[66] O2, Summonsed material of Edmonton Family Medical Centre entry dated 18 May 2021,p 773 .
108.The report prepared by Dr Timmins, on 3 September 2012, noted that the Applicant reported to him that whilst she had in the past been to a multidisciplinary pain clinic in Brisbane, she had never attended an inpatient program, or seen a psychologist for pain management. Dr Timmins noted that the Applicant presented with chronic upper abdominal pain following multiple surgeries and that she was on a fairly high dose of MS Contin plus tramadol for breakthrough pain. Dr Timmins recommended treatment with a pain psychologist with a future option also being referral to a persistent pain management clinic in Townsville. Dr Timmins noted that the Applicant was ‘not too keen’ on the latter referral option.[67]
[67] Report of Dr Clifton Timmins, Pain Specialist / Anaesthetist, summons material 03 - page 1099
109.A further report from Dr Timmins, prepared in October 2014, noted that the Applicant expressed some interest in reducing her opioid intake, but that she was unwilling to see a pain psychologist. Dr Timmins report indicates he recommended a pain management book to the Applicant and suggested to her that she would, ‘if open to it’, benefit from ‘a more interactive therapy program with a psychologist, or referral to the Townsville Persistent Pain Team, who do outreach in Cairns and who have psychologists that she could see there’.[68]
[68] O3, Report of Dr Clifton Timmins, Pain Specialist / Anaesthetist, dated 22 October 2014,p 1154.
110.There is an indication that the Applicant was referred to the North Queensland Persistent Pain Management Service in 2016, by a GP, Dr Danny Coox, in the form of a letter from that specialist pain management service acknowledging the referral.[69]There is however no indication the Applicant followed up the referral and engaged with the specialist pain management service.
[69] O3, Acknowledgment of referral by Dr Danny Cox, dated 27 January 2016, p 1173.
111.There is evidence of the Applicant being referred to Dr Timmins in December 2020 for a further review. Clinical records, recorded by a GP, Dr Thomas Koeck , indicate the Applicant was due to be reviewed by Dr Timmins in January 2021.[70] Records from a subsequent surgery consultation on 6 January 2021 refer to the Applicant having an appointment with Dr Timmins in ‘two weeks’ time’.[71] Clinical records of a different GP, Dr Anthony Kresevic, on 1 March 2021, indicate that the review with Dr Timmins was yet to occur.[72] There is no report from Dr Timmins in the available evidence which would confirm the Applicant attended a consultation with Dr Timmins during 2021, nor as to recommended treatment options suggested by the doctor should the consultation have occurred.
[70] O2 Summonsed material of Edmonton Family Medical Centre, entry dated 21 December 2020, p 756.
[71] O2 Summonsed material of Edmonton Family Medical Centre, entry dated 6 January 2021p 758.
[72] O2 Summonsed material of Edmonton Family Medical Centre, entry dated 9 February 2021, p 767.
112.Records from a consultation with a GP, Dr Johannes Haasbroek, on 18 May 2021, indicate that the recommended treatment with a local pain psychologist, or the North Queensland Persistent Pain Management Service was discussed. The clinical record indicates that the Applicant explained to Dr Haasbroek in May 2021 that she declined to follow up these recommendations as she ‘feels she has adequate adaptive pain coping strategies in place’.[73]’
[73] O2 Summonsed material of Edmonton Family Medical Centre, entry dated 18 May 2021, p 773.
113.There is no indication in the available evidence of what pain coping strategies the Applicant utilises and the Tribunal does not have the benefit of submissions from the Applicant with respect to this issue. These concerns resulted in that doctor’s decision to withdraw their services from the Applicant on 12 January 2021, within a week of preparing the second NDIS Access Request – Supporting Evidence Form. The Tribunal is of the view that pain relief medications provided to the Applicant are by their nature a treatment for her CPS and related pain conditions. The medical records in the summonsed material indicate that the Applicant has been prescribed opioid pain relief medication since 1997.[74] There are also recurrent references to the Applicant having both opioid and benzodiazepine dependencies.[75] In the view of the Tribunal the Applicant’s claim to have adequate coping strategies unfortunately does not seem consistent with concerns regarding the Applicant’s failure to comply with recommended clinical management plans and her reliance on high doses of opioid medications.[76]
[74] O5, Report of Dr Sarah Lindsay, Consultant, Multidisciplinary Pain Centre, Royal Brisbane and Women’s Hospital, dated 2 June 2008,, p 2583-2585.
[75] O3, p 2086, p 2107, p 1555.
[76] O2, Letter of Dr Pandithasekera, dated 12 January 2021, p 759; 02, Surgery consultation record of Dr Pandithasekera, dated 12 January 2021, p 758.
114.On the basis of the available evidence, the Tribunal makes the following findings with respect to the CPS and related pain conditions suffered by the Applicant:
(a)The Applicant’s functioning has been affected by pain for over 26 years.
(b)The Applicant has been treated with opioid pain relief medication since in or around 1997 and has developed prescription medication dependencies which add further complexity to the effective management of her medical conditions.
(c)Medical specialists who have assessed the Applicant have recommended she undertake pain management counselling with a psychologist or a multidisciplinary pain management program, or both. These services are available through the public health system in Queensland, including the option of seeing a psychologist attached to the North Queensland Persistent Pain Management Service who offer outreach services in Cairns.
(d)There is no evidence to indicate the Applicant has undertaken interactive non-pharmacological pain management interventions recommended by medical specialists who have assessed her pain conditions.
(e)There is no indication of an opinion from a medical specialist which would suggest that previously recommended pain management interventions do not remain of potential benefit to the Applicant, or that they have ceased to be available in her local region through either referral to a local psychologist service, or through a psychologist attached to the North Queensland Persistent Pain Management Service.
115.The GPs who completed the NDIS Access request – supporting evidence forms identified CPS and related pain conditions, such as fibromyalgia, as permanent impairments impacting the Applicant that are likely to be lifelong. However, weighing against this is the lack of recent opinion from a pain specialist such as Dr Timmins that the known and available treatments previously recommended for the Applicant are now neither available, nor appropriate for her to undertake. The Tribunal also has no reason to have concern that the pain management interventions recommended by Dr Timmins would not be evidence-based interventions.
116.In considering the issue of permanency, the Tribunal is satisfied that the Applicant’s CPS and related pain conditions are permanent medical conditions. This is not however the determinative issue to be considered in relation to whether impairments caused by these pain conditions are, or are likely to be, permanent for the purposes of paragraph 24(1)(b).
117.With respect to understanding how the support needs for functional difficulties caused by impairment resulting from CPS and related pain conditions could be impacted by further known, available and appropriate evidence-based clinical, medical, or other treatments that would be likely to remedy the impairment, the Tribunal is not satisfied that there is sufficient evidence upon which to conclude there are no such treatment options for the Applicant. This is because there is evidence that medical specialists in the clinical area of pain management, such as Dr Timmins, have recommended the Applicant undertake pain management programs through either a psychologist based in her local area, or with services, outreach or otherwise, provided by specialist persistent pain management services provided though the public health system in Queensland.
118.There is evidence the Applicant has elected to not engage with these interactive pain management interventions, preferring to rely on more passive pharmacological treatment options. It may be that the Applicant, due to the cumulative effect of the complex array of medical conditions affecting her, lacks a capacity to undergo the recommended pain management ‘treatment’, due to the nature of her physical and psychological capabilities, other aspects of her physical and mental health, on her personal circumstances. However, the Tribunal is not satisfied it has sufficient evidence before it upon which to make findings that these constraints result in recommended pain management treatment options being not appropriate for her.
119.For reasons discussed in the preceding 17 paragraphs, with respect to impairment caused by CPS and related pain conditions, such as fibromyalgia, the Tribunal is not satisfied that available evidence establishes that there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment, nor that the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated. Accordingly, rule 5.4 and 5.6 of the Access Rules are not met and as a consequence, with respect to impairment caused by CPS and related pain conditions, paragraph 24(1)(b) of the Act is not satisfied.
Are impairments caused by GORD, dysphagia and achalasia permanent, or likely to be permanent?
120.The Tribunal is aware that the Applicant is diagnosed with the medical conditions of GORD, dysphagia and achalasia. In referring to the Applicant’s gastrointestinal difficulties the Tribunal is referring to these conditions.
121.It is evident from the available evidence that the Applicant has suffered from gastrointestinal difficulties for many years and has undergone a range of treatments including multiple surgical interventions which in themselves appear to have contributed to other medical conditions and consequent impairments which impact upon her.
122.A report prepared in June 2010 by Dr Mark Smithers, Associate Professor for Surgery, Upper Gastro-intestine and Soft Tissue Unit, Princess Alexandra Hospital, reports that the Applicant suffers from persistent abdominal wall pain and progressively worse regurgitation. Dr Smithers notes that the Applicant has had four surgical interventions around her hiatus for reflux disease and that any further attempt at hiatal surgery to try to address the reflux is doomed to failure given that she has now had three operations at that site. With respect to an alternative surgical option, Dr Smithers referred to a distal gastrectomy with a Roux-en-Y reconstruction, but indicated that he was not too keen to operate on her due to the many other extraneous factors affecting her over the many years had contact with her[77]
[77] O3, Report of Dr Mark Smithers, Associate Professor for Surgery, Upper Gastro-intestine and Soft Tissue Unit, Princess Alexandra Hospital, dated 7 June 2010, P 1093-p 1094.
123.The Applicant’s gastrointestinal conditions were reviewed by Dr Mohammed Khan, Gastroenterologist, Cairns Hospital, in July 2020. Dr Khan’s report states in part:
Her main gastrointestinal problem is a chronic dysphagia for the last > 10 years. Mainly for solids, but sometimes it is liquids also. Her dysphagia is mainly mid-esophageal [sic] and sometimes associated with vomiting. On the clinical ground, she was diagnosed to have gastrooesophageal [sic] reflux disease in 1992 and then she had fundoplication, after six months of surgery, she developed severe dysphagia and was unable to eat anything with complete obstruction. Later she had two re-do and revisions of the fundoplication in 1995 and 1996 (in total 6 surgeries).
Later in 1996 when she had abdominal pain she was diagnosed to have dilated colon. MRCP in 2016 showed a dilator bile duct of 1.5 cm but no cause was detected. She had a CT scan of abdomen in 2019 marked fatty atrophy of pancreas which did not show any suspicious pancreatic lesions.
She had a barium swallow in March 2019 that showed a large hiatus hernia. Oesophageal dysmotility and some reflux. She had an upper GI endoscopy in November 2018 and that shows abnormal oesophageal motility evidence of previous Nissen fundoplication and a wrap appears intact. Rest of the stomach and duodenum was normal.
….
She had undergone a high-resolution manometry on 15 July 2020. Her HRM (high-resolution manometry) showed IRP 18.3 mm of mercury and oesophageal peristaltic contractions were completely absent in all the swallows. Features were consistent with type 1 achalasia in view of high IRP and absent peristalsis.
In view of previous history of surgeries for the reflux disease which we thought was complicated with absent esophageal [sic] peristalsis, was the diagnosis missed due to unavailability of manometry or less likely that she developed secondary achalasia after prolonged GE junction obstruction. We advised her for doing and achalasia balloon dilation under general anaesthesia and have requested to book her in a months’ [sic] time in endoscopy.
POEM is not likely to be technically possible due to multiple surgeries around LES. I have explained the risk and benefits of a balloon dilation and she agreed to go ahead.[78]
[78] O7, Report by Dr Mohammed Qaseem Khan, dated 27 July 2020.
124.Also filed by the Applicant, on 14 March 2022, in support of her claims is a copy of the results of a High-Resolution Oesophageal Motility Study, undertaken at the endoscopy unit at Cairns Hospital on 15 July 2020. This document appears to contain further detail in relation to investigative procedures referred to in the report of Dr Kahn and reiterates that there is an indication the Applicant has suffered from a dysphagia for many years and that there are features consistent with type I achalasia. The document in a section titled ‘Advice’ states ‘Consider balloon dilation after discussion of risks and benefits. POEM not likely to be technically possible’.[79]
[79] A3, High Resolution Oesophageal Motility Study, dated 15 July 2020, p 11.
125.Mental Health Service progress notes, prepared by Leanne Foley, psychologist with the Cairns adult community mental health service on 30 October 2020 report that the Applicant indicated she did not want to go ahead with planned surgery for Achalasia which had been planned to occur on 29 October 2020.[80]. Surgery consultation records of Dr Pandithasekera confirm the applicant did not undertake the recommended surgery.[81]
[80] O7, Report by Dr Pandithasekera, dated 30 October 2020, p 4162.
[81] O2, Summonsed material of Edmonton Family Medical Centre entry, dated 11 23 November 2020 p 754.
126.A surgery consultation record of Dr Pandithasekera dated 13 November 2020, indicates that as at that date the Applicant was awaiting fundoplication in four days.[82] Further surgery consultation records of Dr Pandithasekera dated 23 November 2020 and 3 December 2020 indicate that the Applicant did not attend her dilation surgery for her achalasia.[83]
[82] O2, Summonsed material of Edmonton Family Medical Centre entry, dated 13 November 2021, p754.
[83] O2, Summonsed material of Edmonton Family Medical Centre entry, dated 13 November 2021, p754, p 755.
127.Further progress notes, prepared by Tracy Clark, social worker with the Cairns adult community mental health service indicate the Applicant was referred to community health services for a dietetics assessment in relation to the achalasia condition.[84] A further progress note prepared by Tracy Clark on 25 November 2020 noted that a community dietician with Queensland health had reported that the Applicant failed to attend to dietitians appointments that were arranged for her at the Edmonton Clinic and also declined a physio/ mobility assessment by community health.[85]
[84] O7, Progress Notes, Cairns Adult Community MHS, prepared by Tracy Clark, dated 21 October 2020, p 4137.
[85] O2, Progress Notes, Cairns Adult Community MHS, prepared by Tracy Clark, dated 25 November 2020, p 4186.
128.The Applicant on 21 October 2022 filed a report prepared by Dr Ahmed Kamalaidin on 28 April 2022, regarding the results of a CT Chest, Abdomen and Pelvis.[86] This report states in part:
Conclusion:
1.No sign of malignancy or lymphadenopathy.
2.Severe pancreatic fatty degeneration with no healthy pancreatic tissue identified.
3.Dilated intrahepatic and exophytic bile ducts, CBD measuring 15 mm, tappers distally with no distal focal pathology. Pancreatic duct is not dilated.
[86] A6, Report by Dr Ahmed Kamalaidin, dated 28 April 2022, p 21-22
Further assessment with MRCP to be considered
129.No submissions were received from the Applicant in relation to the report of Dr Kamalaidin, explaining how the information it contains is relevant to either medical conditions or impairments affecting her. Insofar as any conclusions could be drawn from this material, it would appear to indicate that as recently as April 2022 further assessment and investigation of medical conditions affecting the Applicant’s abdomen appeared to be recommended. In the circumstance where there is no evidence from a medical practitioner or other health professional putting the information contained in Dr Kamalaidin’s report, the Tribunal has drawn no conclusions from this evidence.
130.In relation to the gastrointestinal conditions suffered by the Applicant, the Tribunal makes the following findings:
(a)The most recent report from a gastroenterologist, Dr Mohammed Khan, prepared in July 2020, recommends balloon dilation surgery to treat the Applicant recently diagnosed achalasia condition.
(b)The Applicant did not proceed with balloon dilation surgery that was due to occur in or around November 2020.
(c)There is no indication in the available evidence to support the Applicant reported claim that she received medical advice to not proceed with the balloon dilation surgery that was due to occur in or around November 2020.
131.The respondent contends that there is indication in the evidence that further treatment has been recommended to the Applicant and that whilst she has claimed that her doctors have now told her that she is too fragile to proceed, there is not medical evidence to confirm this. The Tribunal does not have the benefit of submissions from the Applicant addressing this evidentiary issue and has undertaken its own review of the available evidence.
132.The Tribunal accepts that the Applicant has suffered ill health for many years as a consequence of the gastrointestinal conditions affecting her. The Tribunal accepts that these medical conditions result in her experiencing chronic pain, difficulty eating and other functional impairment. The specialist reports that are available for the Tribunal to review, such as that prepared by a gastroenterologist, Dr Khan, or a surgeon specialising in gastrointestinal illness, Dr Smithers, indicate that a number of surgical interventions to treat the Applicant’s gastrointestinal illness have been attempted, with limited to no success and are no longer viable treatment options.
133.The report prepared by Dr Khan in July 2020 identifies a further treatment option available to the Applicant as a treatment for her achalasia condition is balloon dilation surgery and that after having the potential risks and benefits of this procedure explained to her, she gave consent for this procedure.[87] There is indication in the summonsed material that the Applicant then experience concern about undergoing further surgical intervention and that the procedure did not take place. Whilst acknowledging the Applicant’s reasons for feeling anxious regarding surgical interventions, the Tribunal’s review of the available evidence does not support a contention that she received medical advice that she was too frail to undergo the recommended balloon dilation surgery.
[87] O7, Report by Dr Mohammed Qaseem Khan, dated 27 July 2020
134.The Tribunal suspects the difficulties experienced by the Applicant as a consequence of her gastrointestinal difficulties are enduring. However, the Tribunal cannot make findings of fact on the basis of what it suspects and without clear medical evidence that previously recommended treatment options, which may reduce the impact of the achalasia and related gastrointestinal conditions affecting the Applicant, are no longer appropriate for her, the Tribunal is not able to assume that is now the situation.
135.In relation to understanding how the support needs for functional difficulties caused by impairment resulting from gastrointestinal conditions could be impacted by further known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment, the Tribunal is not satisfied that there is sufficient evidence upon which to conclude there are no such treatment options for the Applicant.
136.For reasons discussed in the preceding 16 paragraphs, with respect to impairment caused by GORD, dysphagia and achalasia, the Tribunal is not satisfied that available evidence establishes that there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment, nor that the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated. Accordingly, rule 5.4 and 5.6 of the Access Rules are not met and as a consequence, with respect to impairment caused by GORD, dysphagia and achalasia, paragraph 24(1)(b) of the Act is not satisfied.
Is impairment caused by asthma permanent, or likely to be permanent?
137.In support of her claims, the Applicant on 14 March 2022 filed a copy of a referral letter, dated 22 April 2020 from Dr Pandithasekera to Dr James Brown, Consultant Physician, from the FNQ Thoracic Service. The referral indicates that the Applicant was referred to Dr Brown for further assessment and management and that she has a long history of poorly controlled asthma.[88]
[88] A1, Mulgrave Road Medical Centre referral information, dated 22 April 2020, prepared by Dr Michael Curley.
138.A report from Dr James Brown, dated 1 June 2020, notes that the Applicant was diagnosed with asthma in her 20’s and that over the last two years, her control has been suboptimal with increased cough, wheeze and shortness of breath. Dr Brown reports that the Applicants asthma is currently controlled with Symbicort turbohaler 400/12 two doses bd, with Salbutamol MDI and Salbutamol nebules as rescue therapy and that she was last in hospital with her asthma in 2018. In his report, Dr Brown opines that the Applicant’s inhaler technique is reasonable and suggests some additional pharmacological treatment be prescribed. Dr Brown requested a number of serological investigations to screen the Applicant for allergic asthma and bronchiectasis and that he would review her in three months,[89]
[89] O3, Report of Dr James Brown, dated 1 June 2020, p 1300.
139.There are no further reports from Dr Brown in the available evidence or that of another medical specialist to indicate whether the Applicant’s asthma is effectively managed as a consequence of the pharmacological treatment he recommended. There is also no available evidence that, in the circumstance that the condition is not effectively managed, provides information about whether there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.
140.For this reason, as discussed in the preceding three paragraphs, with respect to impairment caused by asthma, the Tribunal is not satisfied that available evidence establishes that there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment. Accordingly, rule 5.4 of the Access Rules are not met and as a consequence, with respect to impairment caused by asthma, paragraph 24(1)(b) of the Act is not satisfied.
Is impairment caused by secondary adrenaline insufficiency permanent, or likely to be permanent?
141.As discussed previously, there is sufficient reference in the available evidence to the Applicant suffering from a secondary adrenaline insufficiency and of the functional difficulties arising from this condition for the Tribunal to find the Applicant has a disability attributable to impairment caused by this condition. However, it is the view of the Tribunal that there is insufficient evidence to establish that there are no known, available, and appropriate evidence-based clinical, medical, or other treatments that would be likely to remedy the impairment, nor that the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated. Accordingly, rule 5.4 and 5.6 of the Access Rules are not met and as a consequence, with respect to impairment caused by secondary adrenaline insufficiency, paragraph 24(1)(b) of the Act is not satisfied.
Is impairment caused by osteoporosis permanent, or likely to be permanent?
142.As previously discussed, there is indication in the available evidence that the Applicant has a diagnosis of osteoporosis and that on the basis of evidence such as that provided by Dr Goonewardne, the Applicant has impairments, such as recurrent falls and difficulty mobilising due to the osteoporosis.[90]
[90] A5, Letter by Dr Samitha Goonewardne, undated.
143.The April 2022 imaging report of Dr Kamalaidin noted that the Applicant has ‘mild/moderate left convex lumbar scoliosis’ and ‘multilevel severe lumbosacral spine this degenerative changes’.[91]
[91] A6. Report: CT Chest, Abdomen and Pelvis, Dr Ahmed Kamalaidin, 28 April 2022.
144.There is however no report from a medical practitioner or other health professional which details treatment options or likely prognosis for the osteoporosis condition. For this reason, as discussed in the preceding two paragraphs, with respect to impairment caused by osteoporosis, the Tribunal is not satisfied that available evidence establishes that there are no known, available, and appropriate evidence-based clinical, medical, or other treatments that would be likely to remedy the impairment, nor that the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated. Accordingly, rule 5.4 and 5.6 of the Access Rules are not met and as a consequence, with respect to impairment to which a psychosocial disability is, paragraph 24(1)(b) of the Act is not satisfied.
Are conditions causing impairment to which a psychosocial disability is attributable permanent, or likely to be permanent?
145.The Applicant is reported to have a history of trauma during her childhood and adult life, resulting in her having diagnoses of depression, anxiety and PTSD in the clinical records in the summonsed material. There are also references to her developing dependency on both opioid pain relief and benzodiazepine medications.
146.There are references to the Applicant being referred for counselling in August 2017 and June 2020[92], but no indication that the Applicant followed up on these referrals and engaged in psychological counselling. There are indications in the clinical records that difficulties attributable to mental health and substance dependency conditions continue to impact the Applicant. These include clinical notes made by Dr Pandithasekera in August 2020, where he noted the Applicant’s ‘Benzo dependence and depression’ were getting worse and that the counselling service to which she had been referred had not been successful in contacting the Applicant.[93] Further clinical notes made by Dr Pandithasekera on 12 October 2020 note that the Applicant’s husband reported concern about the Applicant’s deteriorating mental health, as she was expressing suicidal thoughts and stating she wanted to overdose her opioid pain relief medication. It is apparent that after talking to Dr Pandithasekera the Applicant agreed to a referral to an Acute Care Team within the mental health service in her local area.[94]
[92] O3, Referral by Dr Danny Cox, dated 15 August 2017, p 1473.;O3, Letter from Connect to Wellbeing Intake Team, dated 30 July 2023, p 1304.
[93] O3, Surgery Consultation by Dr Anusha Pandithasekera, dated 24 August 2020, p 2109.

[94] O3, Surgery Consultation by Dr Anusha Pandithasekera, dated 12 October 2020, p 2115.
147.Mental health service progress notes, prepared by Tracy Clark, social worker with the Cairns adult community mental health service following a home visit on 14 October 2020 notes that the Applicant described a history of traumatic experiences[95] and stated that she had no history of psychiatric admissions, had never seen a psychiatrist, been given a formal mental health diagnosis, or sought counselling in relation to her traumatic experiences. Ms Clark’s records that during a further home visit on 17 October 2020 the Applicant reported that she had recently commenced counselling with a psychologist under a Medicare mental health care plan. Ms Clark also noted that the Applicant’s husband reported that he administers pain relief medication to his wife that is prescribed to him.[96]
[95] Details or which are provided in the clinical records. Due to their traumatic nature I has elected to not detail them in the Decision Record, as I do not consider that to be in the Applicant’s interests and consider the relevant issue to be that they were traumatic in nature.
[96] O7, Progress Notes by Tracy Clark, dated 17 October 2020, p 4130 – p4131.
148.The summonsed material includes a Psychological Therapies Progress Report form completed on 5 January 2021 by a mental health service provider, Janet Hayes, states:
[The Applicant] was reluctant initially to commit to an appointment to see me. She did attend x 2 sessions and interacted well. She booked a third session which she DNA due to ? fall at home. She has been uncontactable since.
I am happy to continue working with [the Applicant] should she re present [sic].
[97] O3, Psychological Therapies – Progress Report/Treatment Complete Form by Janet Hayes, dated 5 January 2020, p 1319.
[The Applicant] would benefit from further sessions should she be in a position to attend.[97]
149.There is no indication in the available evidence that the Applicant resumed counselling with Ms Hayes or engaged with any other mental health service providers since January 2021. The Tribunal considers the evidence that the Applicant’s use of prescription medications resulted in her then treating GP, Dr Pandithasekera withdrawing their services in or around January 2021 to be indicative that the Applicant’s opioid and benzodiazepine dependency issues were not effectively managed at that time.
150.On the basis of the available evidence, the Tribunal makes the following findings with respect to the Applicant’s mental health and wellbeing:
(a)The Applicant has consistently reported a history of traumatic experiences as a child and adult.
(b)Whilst the Applicant has been diagnosed with Depression and PTSD, there is no indication that she has been assessed or received treatment recommendations from a psychiatrist or clinical psychologist.
(c)The Applicant suffers from chronic pain for which she is reliant on pharmacological treatments.
(d)Whilst the Applicant has been assessed by an anaesthetist specialising in the treatment of pain conditions,[98] there is no indication of opinion more recently than 2014 in relation to treatment options for her prescription medication dependencies.
[98] Dr Timmins
151.The Tribunal suspects the impairment attributable to the mental health and substance dependency conditions affecting the Applicant are entrenched. However, a ‘suspicion’ is not sufficient grounds for the Tribunal to be satisfied that the requirements of paragraph 24(1)(b) are met and that impairment as a consequence of these conditions is, or is likely to be permanent. The lack of information regarding treatment options which may be found in a report prepared by a psychiatrist, psychologist, or specialist in the treatment for prescription medication dependency conditions is a difficulty that in my view cannot be surmounted. There does appear to be indication that the Applicant experienced a benefit from attending a few counselling sessions with a mental health service provider in 2020 and that further counselling was recommended for her. It is in my view abundantly clear that the GPs who have treated the Applicant have concern for her wellbeing and have attempted, without apparent success, to link her with mental health services.
152.For reasons discussed in the preceding eight paragraphs, with respect to impairment to which a psychosocial disability is attributable, the Tribunal is not satisfied that available evidence establishes that there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment, nor that the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated. Accordingly, rule 5.4 and 5.6 of the Access Rules are not met and as a consequence, with respect to impairment to which a psychosocial disability is, paragraph 24(1)(b) of the Act is not satisfied.
Conclusion on paragraph 24(1)(b)
153.The Applicant is clearly a person suffering from ill health from the complex interaction of a number of significant medical conditions which have affected her for many years. The Tribunal has found that the Applicant suffers from disability attributable to impairment associated with symptoms of a number of these medical conditions. Further to this the Tribunal suspects that the one or more of the impairments may have an enduring impact upon the Applicant.
154.However, for the reasons discussed in the preceding 52 paragraphs the Tribunal is not persuaded that the evidence which is currently before it establishes that there are no known, available, and appropriate evidence-based clinical, medical, or other treatments that would be likely to remedy the impairment. Further to this in relation to some of the impairments, the Tribunal is not persuaded the evidence establishes that the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated. As discussed above, the consequence of these findings is that neither rule 5.4 or 5.6 of the Access Rules are satisfied and it follows that the requirements of paragraph 24(1)(b) of the Act are not met.
155.As has been discussed in an earlier section of this decision, each of the five paragraphs of subsection 24(1) of the Act are threshold requirements which need to be met. The consequence of paragraph 24(1)(b) not being met is that the Applicant does not satisfy section 24. The Tribunal did not therefore consider it necessary to consider the remaining criteria in section 24.
156.As the Applicant has not met required criteria in section 24, her access request cannot be granted through meeting the disability requirements outlined in the Act.
The Early Intervention requirements
The early intervention requirements are set out in section 25 of the Act:
(1)A person meets the early intervention requirementsif:
(a) the person:
(i)has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent; or
(ii)has one or more identified impairments to which a psychosocial disability is attributable and that 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.
(1A)For the purposes of subparagraph (1)(a)(i) or (ii), an impairment or impairments that are episodic or fluctuating may be taken to be permanent despite the episodic or fluctuating nature of the impairments.
(2)The CEO is taken to be satisfied as mentioned in paragraphs (1)(b) and (c) if one or more of the person's impairments are prescribed by the National Disability Insurance Scheme rules for the purposes of this subsection.
(3)Despite subsections (1) and (2), the person does not meet the early intervention requirements if the CEO is satisfied that early intervention support for the person is not most appropriately funded or provided through the National Disability Insurance Scheme, and is more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or through systems of service delivery or support services offered:
(a)as part of a universal service obligation; or
(b)in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
Section 25 like section 24 requires satisfaction of each of the criteria identified in paragraphs 25(1)(a), (b) and (c).
159.As the Tribunal has determined the evidence currently before it is insufficient to be satisfied that the Applicant has intellectual, cognitive, neurological, sensory or physical impairments, or that are, or are likely to be, permanent; or has one or more identified impairments to which a psychosocial disability is attributable and that are, or are likely to be, permanent, the requirements in subparagraphs 25(1)(a)(i) and 25(1)(a)(ii) are not satisfied. Subparagraph 25(1)(a)(iii) is not applicable to the Applicant’s circumstances, and it therefore follows that paragraph 25(1)(a) is not met.
160.The consequence of paragraph 25(1)(a) not being met is that the Applicant cannot become a participant in the NDIS through meeting the early intervention requirements outlined in section 25.
CONCLUSION
161.As discussed in these reasons the Tribunal is not satisfied that the Applicant’s impairments are not permanent within the meaning of the provisions of the Act. Accordingly, as she does not meet the disability requirements and the early intervention requirements of the legislation, the Applicant is not qualified to become a participant in the NDIS.
162.Accordingly, for the reasons stated above, the reviewable decision to refuse the Applicant’s application for access to the NDIS is affirmed.
163.The Tribunal notes that the Applicant is under 65 years of age and that it is open to her to make a further request to become a participant of the NDIS and in this circumstance where she was to do so, her access request would be strengthened by the provision of reports from the medical specialists treating her for her medical conditions which commented on the factors which need to be considered in relation to the disability and early intervention requirements in the act. The Tribunal would respectfully suggest that other evidentiary material, such as a statement of lived experience would be a useful document for the Applicant to provide in support of any future access request.
DECISION
164.The Tribunal affirms the decision under review.

I certify that the preceding 164 (two hundred and fourteen) paragraphs are a true copy of the reasons for the decision herein of Member D. Barker

........................................................................
Associate
Dated: 16 June 2023

Date(s) of hearing: 22 February 2023

Advocate for the Applicant: Mr WL

Solicitors for the Respondent: Suzy Dole, Sparke Helmore

[2023] AATA 1723

16 June 2023

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Standing

Statutory Construction

Natural Justice

Procedural Fairness

Remedies

Date(s) of hearing:	22 February 2023
Advocate for the Applicant:	Mr WL
Solicitors for the Respondent:	Suzy Dole, Sparke Helmore