VKFW and National Disability Insurance Agency

[2024] AATA 1260

VKFW and National Disability Insurance Agency [2024] AATA 1260 (27 May 2024)

Division:                  NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2021/1132

Re:VKFW   

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Sydney

Date:27 May 2024

Place:Sydney

The Tribunal affirms the decision under review.

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

Deputy President A Younes

CATCHWORDS

NATIONAL DISABILITY INSURANCE SCHEME – access criteria – disability requirements – Attention Deficit Hyperactivity Disorder – dyslexia – Irlen syndrome – depression – anxiety – post-traumatic stress disorder – whether the impairments are, or likely to be, permanent – whether the impairments result in substantially reduced functional capacity – whether the Applicant is likely to require support under the scheme for the Applicant’s lifetime – early intervention requirements – decision under review affirmed

LEGISLATION

National Disability Insurance Scheme Act 2013 (Cth)

National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)

CASES

Madelaine and National Disability Insurance Agency [2020] AATA 4025

Mulligan v National Disability Insurance Agency (2015) 233 FCR 201

National Disability Insurance Agency v Davis [2022] FCA 1002

National Disability Insurance Agency v Foster [2023] FCAFC 11

Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[1979] AATA 179

Timofticiuc and National Disability Insurance Agency [2021] AATA 3015

SECONDARY MATERIALS

National Disability Insurance Agency, Our Guidelines – Becoming a participant – Applying

to the NDIS (Web Page) FOR DECISION

Deputy President A Younes

27 May 2024

1. On 24 February 2021, the Applicant lodged the application with the Administrative Appeals Tribunal (AAT/Tribunal) seeking review of a decision made on 4 December 2020 under s 100(6) of the National Disability Insurance Scheme Act 2013 (Cth) (the Act), of a delegate of the CEO of the National Disability Insurance Agency (the Respondent).

2. The delegate determined that the Applicant did not satisfy certain requirements for access to the National Disability Insurance Scheme (the Scheme or NDIS) as set out in in the Act. Specifically, the Applicant was found not to satisfy s 24 or s 25 of the Act.

   LEGISLATION

3. In order to become a participant in the NDIS, the Applicant must satisfy the access criteria set out in subsection 21(1) of the Act, as follows:

   (1)A person meets the access criteria if:

   (a)    the CEO is satisfied that the person meets the age requirements (see section 22); and

   (b)    the CEO is satisfied that, at the time of considering the request, the person meets the residence requirements (see section 23); and

   (c)    the CEO is satisfied that, at the time of considering the request:

   (i)the person meets the disability requirements (see section 24); or

   (ii)the person meets the early intervention requirements (see section 25).

4. Section 24 of the Act provides as follows:

   (1)A person meets the disability requirements if:

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

5. Section 25 of the Act concerns the early intervention requirements.

6. The Minister may, under subsection 209(1) of the Act, make rules prescribing matters. The rules relevant to this matter are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (the Access Rules), which form part of the legislation.

7. The NDIS 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.[1]

   [1] Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[1979] AATA 179.  

   BACKGROUND

8. The Applicant was born in 2003. In her request for access, she identified her primary impairments as Attention Deficit Hyperactivity Disorder (ADHD) and dyslexia. As other impairments, she identified anxiety, depression and ‘Irlen Syndrome’.[2] Subsequently Post-Traumatic Stress Disorder (PTSD) was identified.[3]

   [2] Ex 2, 34-35.

   [3] Report of Ms C, dated 21 March 2024.

9. There is no dispute that the Applicant satisfies the age requirements and the residence requirements. The Applicant will meet the access criteria if she satisfies either s 24 (disability requirements) or s 25 (early intervention requirements) of the Act. In relation to the disability requirements in s 24 of the Act, on the evidence the Respondent accepts, and the Tribunal finds that the Applicant lives with impairments attributable to ADHD, Dyslexia, Depression and Anxiety (s 24(1)(a)).[4] The Respondent however questions the existence of Irlen Syndrome. The Respondent accepts, and the Tribunal finds that the Applicant’s impairments affect her capacity for economic and social participation (s 24(1)(d)).

   [4] Ex 1, [12].

10. The Respondent contends that the evidence does not establish that the Applicant’s impairments are permanent, or likely to be permanent (s 24(1)(b)), or that the Applicant’s impairments result in substantially reduced functional capacity to undertake one or all of activities, including communication, social interaction, leaning, mobility, self-care and/or self-management (s 24(1)(c)), or that the Applicant is likely to require support under the Scheme for her lifetime (s24(1)(e)).[5]

    [5] Ex 1, [12.2].

11. In relation to the early intervention requirement in s 25 of the Act, the Respondent contends that the evidence does not establish that the Applicant’s impairments are permanent, or likely to be permanent (s 25(1)(a)(i),(ii)), or that the provision of early intervention supports will reduce the Applicant’s future support needs (s 25(1)(b)), or that the provision of early intervention supports would have the effect on the Applicant’s functional capacity identified in s 25(1)(c)(i)-(iv).

    EVIDENCE

12. The following relevant material is before the Tribunal:

    (a)Respondent’s Statement of Facts, Issues, and Contentions (SFIC), dated 22 January 2024.

    (b)Consolidated hearing bundle, containing the Application for Review, Internal Review outcome, and various clinical reports, as discussed below.

    (c)Cases bundle.

13. The above documents are marked Exhibits 1-3.

14. The Tribunal also received further documents, including post-hearing Respondent’s Supplementary submissions, dated 19 April 2024.

15. The Applicant’s mother, Ms B gave evidence during the hearing.

    ISSUES

16. The issues are whether the Applicant meets the disability requirements in ss 24(1)(b), (c) and (e), or s 25 of the Act.

    Applicant’s Evidence

17. In her Request for Access, the Applicant indicated that her primary impairments are dyslexia and ADHD which she has had for 10 years. In relation to the question in the Form about any other impairment that has a significant impact, the Applicant identified Irlen Syndrome which she had had for over 10 years when discovered. She also identified depression and anxiety due to her father passing away from brain cancer. She indicated that she receives medication and support, but she needs more support in relation to learning, dyslexia, ADHD, anxiety, depression, and Irlen Syndrome.[6]

    [6] Ex 2, 32-38.

18. On behalf of the Applicant, Ms B attended the hearing and gave evidence that the Applicant needs assistance from the NDIS in relation to the above diagnoses. Ms B gave evidence that the Applicant was in a boarding school for about six years and is currently in her 2^nd year of studies of a Bachelor Degree at a University. Ms B indicated that the Applicant gets pass marks but she has failed a couple of subjects which she would need to repeat. Ms B stated that she goes to Armidale regularly to cook and clean for the Applicant who currently lives alone in a three bedroom house but will be getting a flatmate as soon as the university term commences. Ms B stated that going to Armidale regularly is difficult for her personally as she lives about a 4 hour drive and that she needs a break. She stated that the Applicant needs assistance with cooking, cleaning, lawn maintenance, and help with her studies so she could complete her degree with a plan to work in her chosen field. Ms B gave evidence that the Applicant has worked in the past, and she is also in receipt of the Disability Pension and youth allowance.

    Clinical evidence

19. The Tribunal has before it the following relevant reports and notes:

    ·Eye examination reports by Specsavers, dated 9 January 2024 and 5 March 2024,[7] reporting on visual acuity and correction.

    [7] Ex 2, 169.

    ·Letter from Mr A (Physiotherapist), dated 12 December 2023.[8]

    ·Reports of Dr H, GP at the OS Medical Centre, dated 15 February 2021,[9] 13 December 2023[10] and 20 October 2023,[11] confirming the Applicant’s diagnoses and medications. Clinical notes from OS Medical Centre, dated 8 March 2024, signed by Dr G.

    ·Report of Ms C, Clinical Psychologist, dated 21 September 2023[12] confirming symptoms of, among other things, PTSD and anxiety, related to a motor vehicle accident in 2023. A further Report of Ms C dated 21 March 2024, among other things, referring to the Applicant’s PTSD relating to a motor vehicle accident (MVA) in March 2023.

    ·Brief note from Dr P, Paediatrician, dated 8 February 2024, confirming that the Applicant suffers from ADHD, Dyslexia, Irlen Syndrome, and anxiety. A copy of a prescription by Dr P and an appointment scheduled for August 2024. Letters of Dr P, Paediatrician, dated 14 February 2020[13] and 9 February 2021[14] confirming the diagnoses of ADHD, Dyslexia, Irlen syndrome, and anxiety.

    ·Report of the T Clinic, referring to an assessment date of 27 March 2017, discussing, among other things, the Applicant’s “exceptionally weak word reading skills…Dyslexia…visual processing disorder, Irlen syndrome…”[15]

    ·Educational documents about the Applicant’s schooling needs, including a referral report dated 13 February 2020 to Dr P by Ms W from the boarding school[16] and a letter of support from Ms P dated 5 October 2021.

    ·Letters from staff at the boarding school, dated 13 February 2020,[17] 6 September 2021, and 5 October 2021[18] referring to the support provided to the Applicant over the years to assist with her learning needs.

    ·Letter by Dr H, GP, dated 24 September 2021 expressing the opinion that the Applicant falls into the needs category of students for access to special facilities.

    ·UNE Health Professional Report seeking registration of the Applicant with the Student Accessibility and Wellbeing for study adjustments, prepared by Dr G, dated 19 January 2023.[19]

    ·Royal Australian and New Zealand College of Ophthalmologists (RANZCO) Statements in relation to Irlen Syndrome, dated 24 April 2018 and updated on 4 April 2019.[20]

    [8] Ex 2, 165.

    [9] Ex 2, 14-15.

    [10] Ex 2, 166.

    [11] Ex 2, 163-164.

    [12] Ex 2, 160-162.

    [13] Ex 2, 18.

    [14] Ex 2, 13.

    [15] Ex 2, 16-17.

    [16] Ex 2, 19.

    17 Ex 2, 19-20.

    [18] Ex 2, 147-148.

    [19] Ex 2, 152-156.

    [20] Ex 3, 412.

20. The Respondent contends that the clinical evidence before the Tribunal does not support a finding that the Applicant meets the relevant access criteria.

    FINDINGS AND REASONS

    Section 24(1)(a) – disability attributable to an impairment

21. It is not in dispute that the Applicant suffers from a number of conditions. An ‘impairment’ within s 24 ‘is generally understood as involving the loss of, or damage to a physical, sensory or mental function’. Mortimer J in Mulligan v National Disability Insurance Agency,[21] observed with respect to s 24(1)(a):

    “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…is generally understood as involving the loss of or damage to a physical, sensory or mental function”.

    [21] Mulligan v National Disability Insurance Agency (2015) 233 FCR 201 at [51].

22. The Respondent accepted and on the evidence, the Tribunal finds that the Applicant has disabilities attributable to impairments arising from ADHD, Dyslexia, Depression and Anxiety such that s 24(1)(a) has been met. The Respondent does not accept that the Applicant has a disability of Irlen Syndrome, as the Respondent does not accept that such a condition is recognised.

    Section 24(1)(b) – permanence of impairment

23. In its SFIC, the Respondent argues that the Applicant does not meet s 24(1)(b) of the Act in relation to the impairments arising from the Applicant’s ADHD, Dyslexia, Irlen Syndrome, Depression and Anxiety.

24. Rules 5.4 to 5.7 of the Access Rules state:

    5.4 An impairment is, or is likely to be, permanent (see paragraph 5.1(b)) only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.

    5.5 An impairment may be permanent notwithstanding that the severity of its impact on the functional capacity of the person may fluctuate or there are prospects that the severity of the impact of the impairment on the person's functional capacity, including their psychosocial functioning, may improve.

    5.6 An impairment may require medical treatment and review before a determination can be made about whether the impairment is permanent or likely to be permanent. The impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated (even though the impairment may continue to be treated and reviewed after this has been demonstrated).

    5.7 If an impairment is of a degenerative nature, the impairment is, or is likely to be, permanent if medical or other treatment would not, or would be unlikely to, improve the condition.

25. The Operational Guideline provides guidance in relation to s 24(1)(b) of the Act, namely that:

    Your impairment will likely be permanent if your treating professional gives us evidence that indicates there are no further treatments that could relieve or cure it.

    Your treating professional will tell us or be asked to certify if there are medical, clinical or other treatments that are likely to remedy your impairment. We need to understand whether there are treatments which are [NDIS (Becoming a Participant) Rules rr 5.4, 6.4]:

    ·    known and available

    ·    appropriate for you and your impairment

    ·    evidence-based – that is, there’s proof they are likely to be effective.

    …

    If you’re still undergoing or have recently had treatment, we’ll need to wait until you know the outcome of the treatment before we can decide your impairment is likely to be permanent [NDIS (Becoming a Participant) Rules rr 5.6, 6.6].

    …

    For degenerative impairments, or those that get worse over time, we consider them permanent if treatment isn’t likely to help or improve the impairment’s effects [NDIS (Becoming a Participant) Rules rr 5.7, 6.7.]

    26.Relevantly, in National Disability Insurance Agency v Davis,[22] Justice Mortimer considered the meaning of ‘permanent’ in s 24(1)(b). At [80], reflecting the language of the legislation and contrary to the rules emphasised above at r 5.7 of the Access Rules, the adjective ‘permanent’ attaches to the impairment. In Davis, her Honour held that ‘the correct meaning of “permanent” in s 24(1)(b) is “enduring”’.[23] This meaning reflects the purpose and context of the legislative scheme, as a scheme intended to deliver lifelong support to persons with disability.[24] Her Honour stated that the critical point is that “permanent” is used as an adjective in s 24(1) to the noun “impairment” (or in the plural, “impairments”). The focus of the text, consistently with the purposes of the Scheme, is on whether the impairments experienced by individuals (rather than the cause of the impairments or the specific diagnoses which might be applied to a medical condition) have an enduring quality so as to fit within the conceptual emphasis of the scheme.[25]

    [22] National Disability Insurance Agency v Davis [2022] FCA 1002.

    [23] National Disability Insurance Agency v Davis [2022] FCA 1002 [85].

    [24] National Disability Insurance Agency v Davis [2022] FCA 1002 [85].

    [25] National Disability Insurance Agency v Davis [2022] FCA 1002 [86].

26. The central question for the Tribunal is whether the impairment(s) experienced by the Applicant (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 Act on an ongoing basis.

27. Sections 29 and 30 of the Act make clear that 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 throughout their lifetime.

28. Relevantly, r 5.6 of the Access Rules states:

    An impairment may require medical treatment and review before a determination can be made about whether the impairment is permanent or likely to be permanent. The impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated (even though the impairment may continue to be treated and reviewed after this has been demonstrated).

29. In relation to anxiety, PTSD, and depression, there is limited clinical evidence to support a finding that s 24(1)(b) is met. In her report dated September 2023[26] Ms C, Clinical Psychologist, noted that the Applicant’s symptoms would not meet the criteria for the diagnosis of Generalized Anxiety Disorder or Panic Disorder as these appear to be symptoms of her primary diagnosis, namely PTSD.  Ms C referred to the Applicant’s PTSD, and noted that “…It is expected that with appropriate treatment, [the Applicant] can return to her level of premorbid functioning”.[27] Ms C referred to a range of treatment options, including a further ten sessions to monitor progress and “determine the need for additional sessions.”

    [26] Ex 2, 160-162.

    [27] Ex 2, 161.

30. In her more recent report, dated 21 March 2024, Ms C referred to the Applicant’s symptoms of PTSD, and the available treatments likely to remedy any impairment arising from or in connection with the PTSD. Ms C indicated that the Applicant will “benefit from ongoing psychological intervention with a Clinical Psychologist”. She recommended a review after 10 sessions to monitor progress and determine the need for additional sessions. She also indicated that the Applicant could benefit from “an alternative approach” such as EMDR. Ms C referred to the Applicant’s more recent “lack of engagement” in her sessions with Ms C, and to her compliance with treatment recommendations being variable.

1. Ms C refers to the “pre-existing diagnosis of ADHD” which is “well managed and does not significantly impact her ability to engage with university and work”.[28]

   [28] Ex 2, 161.

2. The Tribunal is satisfied that Ms C’s reports indicate that there are known, available and appropriate treatments that are likely to remedy the Applicant’s impairment arising from or in connection with PTSD, anxiety and ADHD.

3. Moreover, given that the Applicant is not undertaking treatment for the PTSD to the degree or with the frequency recommended, the Tribunal is not satisfied that the Applicant is accessing all “known, available and appropriate evidence based…treatments that would be likely to remedy” the impairment, and as such the criterion in s 24(1)(b) is not met in relation to PTSD.

4. There is limited evidence about the management of ADHD. In his report of 14 February 2020, Dr P noted that the Applicant “should obviously be tried on stimulant medication and I have given short acting Ritalin. I will review her in three weeks when I will be able to prescribe Concerta”.[29] There is evidence that the Applicant has been prescribed CATAPRES and CONCERTA[30] for ADHD. As indicated above, Ms C noted that the Applicant’s “pre-existing diagnosis of ADHD” is “well managed and does not significantly impact her ability to engage with university and work.”[31] This indicates that there are known treatments that are likely to remedy the Applicant’s impairment arising from or in connection with ADHD, and as such the criterion in s 24(1)(b) is not met in relation to ADHD.

   [29] Ex 2, 18.

   [30] Ex 2, 167.

   [31] Ex 2, 160-162.

5. In relation to depression, the evidence before the Tribunal does not support a finding that there are no available or appropriate treatments that are likely to remedy the Applicant’s impairment arising from or in connection with depression.

6. There is an issue relating to Irlen Syndrome. There was a lengthy discussion in the course of the hearing about the diagnosis of Irlen Syndrome. The Syndrome is mentioned in a number of reports before the Tribunal. The reports provide limited information about the basis upon which the diagnosis was made, and the methodologies used.

7. There are Statements issued by the RANZCO in relation to Irlen Syndrome, dated 24 April 2018 and updated on 4 April 2019. In the Statement of 4 April 2019, the RANZCO, noted the following:

   No scientific evidence that Irlen Syndrome exists, say ophthalmologists

   The Royal Australian and New Zealand College of Ophthalmologists (RANZCO) has released a position statement explaining that there is no evidence that Irlen Syndrome exists and that there is no proof that supposed treatments, such as Irlen lenses, help those with reading difficulties.

   …Irlen Syndrome is commonly defined as a perceptual processing disorder, suggesting that the brain is unable to properly process visual information from the eyes because of sensitivity to certain wavelengths of light. Symptoms are said to include poor concentration; difficulties with reading, writing and comprehension; glare sensitivity; headaches and poor depth perception. RANZCO’s Irlen Syndrome position statement states that “Despite Irlen Syndrome being first described in the early 1980s, there is still no sound theoretical basis or evidence that the condition actually exists. A diagnosis of Irlen Syndrome is based solely on symptoms with no quantitative physiological correlation.”

   Treatments associated with Irlen Syndrome such as coloured lenses have not been proven to be any more effective in improving reading difficulties in children than in children assessed in a control group (without coloured lenses and associated ‘treatments’). RANZCO’s Irlen Syndrome position statement explains that there is no documented evidence to say that Irlen lenses are harmful, but the use of unproven methods may waste time and financial resources preventing a child from receiving the appropriate evidence-based educational remedies that could actually help with their learning development.

   …RANZCO is also warning parents about other ineffective and unproven vision therapies being offered as supposed treatments for learning disabilities such as dyslexia.

   “As a medical education body supporting only evidence based treatments, RANZCO has an obligation to safeguard the interests of patients by speaking out against treatments that lack clinical or scientific merit,” explained RANZCO spokesperson A/Prof James Elder. “Ophthalmologists, like mainstream optometrists, are very passionate about saving sight and don’t like to see resources intended for health and wellbeing being misdirected. Reviews of the literature have consistently shown a lack of good evidence to support vision therapies, such as those offered by behavioural optometrists, for the treatment of learning disabilities such as dyslexia.

   “Using these expensive, ineffective and controversial treatments may delay a child from receiving the appropriate evidence-based educational remedies. Evidence shows that the earlier the intervention with the appropriate remedial programs, the more effective they are in improving reading outcomes. The use of ineffective interventions may also waste the limited financial resources of the family as well as giving them a false sense of security that the child’s reading difficulties are being addressed.

   It is important, therefore, that parents understand that dyslexia and other learning disabilities are not disorders of vision and so, visual therapy is misdirected. Scientific evidence shows that behavioural optometry treatments such as eye tracking exercises, vision therapy, weak glasses to relax the focus, and coloured lenses/overlays do not help children read any better.

   Eye care professionals such as ophthalmologists and optometrists are not qualified to diagnose or treat learning disabilities. However, children with learning difficulties will usually have both their hearing and vision assessed because listening and seeing are the first steps in information processing for the purpose of learning. The role of optometrists and ophthalmologists is therefore to diagnose and treat any treatable vision problems that may be contributing to any difficulties at school.[32]

   [32] Ex 3, 412.

8. The Tribunal notes the divergence in views about the existence or otherwise of Irlen Syndrome and this cannot be resolved based on the material before the Tribunal. The Statements of the RANZCO are highly persuasive and the Tribunal gives that material significant weight. On the evidence, the Tribunal is satisfied that what is clear is that the Applicant has been diagnosed with visual difficulties by various practitioners, for which she has received treatment including glasses. The Tribunal acknowledges that the opinions of all health practitioners are generally relevant and contribute to an understanding of diagnosis and treatment. However, the Tribunal observes that none of the reports before the Tribunal is from an Ophthalmologist.  For the purposes of this review, the Tribunal will proceed on the basis that the visual difficulties experienced by the Applicant have been described as Irlen Syndrome.

9. In relation to Irlen Syndrome, the Respondent questions the existence of the syndrome and does not concede that this is a recognised impairment, or that there is there any potential treatment endorsed by the RANZCO. As noted above, it is correct that the RANZCO does not recognise the syndrome. It is however evident that the Applicant has visual difficulties which have been described as Irlen Syndrome. The eye examination reports by Specsavers, dated 9 January 2024 and 5 March 2024, report on visual acuity and correction, but there is limited evidence that the visual difficulties are permanent or that there are no known available and appropriate evidence-based clinical, medical, or other treatments that would likely remedy the impairment (Access Rules, rule 5.4).

10. On balance of the evidence, the Tribunal is not satisfied that the Applicant’s impairments do not require further assessments, medical treatment or review in order for their permanency or likely permanency to be demonstrated.  As such, the Tribunal is not satisfied that the Applicant’s impairments are, or likely to be permanent.

11. Therefore, the Tribunal finds that s 24(1)(b) of the Act is not met.

    Section 24(1)(c) – substantially reduced functional capacity

12. In relation to the issue of substantially reduced functional capacity, the Tribunal observes that rule 5.8 of the Access Rules provides that in certain circumstances, a person will be taken to have substantially reduced functional capacity where someone is unable to participate effectively or completely in an activity without home modifications. 

13. Rule 5.8 of the Access Rules states that an impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities—communication, social interaction, learning, mobility, self-care, self-management — 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.

14. The Operational Guideline is relevant to this issue. Among other things, the Operational Guideline states:

    Your impairment substantially reduces your functional capacity if you usually need disability specific supports to participate in or complete the above tasks [NDIS (Becoming a Participant) Rules rr 5.8(a), (c)].

    These disability-specific supports include:

    ·     a high level of support from other people, such as physical assistance, guidance, supervision or prompting [NDIS (Becoming a Participant) Rules r 5.8(b)].

    ·     assistive technology, equipment or home modifications that are prescribed by your doctor, allied health professional or other medical professional [NDIS (Becoming a Participant) Rules r 5.8(a)].

15. The Respondent contends that the Applicant does not have substantially reduced functional capacity in communication, social interaction, learning, mobility, self-care and/or self-management. The Respondent relied on Mulligan v National Disability Insurance Agency[33] to argue that the evaluative assessment in s 24(1)(c) is “avowedly functional, and multi-faceted” requiring a “relatively high degree of precision by decision-makers”, and that the proper approach is to objectively consider what the person with their impairment can and cannot do; not only on what they cannot do. As such a subjective comparison between what a person could do before the onset of their disability and their function currently is “not the appropriate yardstick”.[34] It was further contended that the Tribunal must distinguish between what the person does not do, as opposed to what they cannot do.[35]

    [33] Mulligan v National Disability Insurance Agency (2015) 233 FCR 201 at [55].

    [34] Madelaine and National Disability Insurance Agency [2020] AATA 4025 at [109].

    [35] Timofticiuc and National Disability Insurance Agency [2021] AATA 3015 at [96].

16. The Tribunal is mindful that when assessing each of the activities in s 24(1)(c), the Tribunal is to assess the activity as a whole, rather than by focusing on individual or specific tasks within that activity domain, and that a person will not necessarily be deemed to have substantially reduced functional capacity simply because one task within the activity cannot be performed.[36]

    [36] National Disability Insurance Agency v Foster [2023] FCAFC 11.

17. The evidence before the Tribunal indicates that the Applicant is currently undertaking a university course, and although her mother gave evidence that she has failed a couple of subjects, she is nevertheless studying at a tertiary level. The evidence shows that the Applicant is able to undertake these studies with concessions to the undertaking of some exams and assessments, as noted by Dr G, Health Professional Report, dated 19 January 2023.[37] The report indicates that the Applicant “may need clarification on tasks/assignments. Would benefit from 14 day extension…May need to wear noise cancelling headphones to block out external noise...time extension (20 mins for exams). 10 minute break within exams.”[38] Dr G made other suggestions.

    [37] Ex 2, 152-156.

    [38] Ex 2, 154-155.

18. Ms C’s first report states that the Applicant “continues to engage well in work and university” and that she has “good capacity for work and study”[39]. In her more recent report of 21 March 2024, Ms C states that the PTSD is “significantly impacting” the Applicant’s functional capacity in work, study, social relationships, and activities of daily living.

    [39] Ex 2, 160, 162.

19. There are issues with Ms C’s assessments; Ms C is not an Occupational Therapist (OT) but a Psychologist. There is no information about Ms C’s experience or expertise in assessing the Applicant’s functional capacity. The Tribunal is persuaded by the Respondent’s submissions that an OT has more expertise in assessing functional capacity. Moreover, Ms C’s report does not provide a detailed assessment of the Applicant’s functional capacity and although she states that the Applicant had attended 10 appointments since July 2023 via telehealth, it is not evident from her report whether Ms C had physically seen the Applicant to assess her capacity. As such and as pointed out by the Respondent, it is likely that Ms C based her conclusions about the Applicant’s functional capacity on the Applicant’s self-reporting, as well as her mother’s reports.

20. There are two Eye Examination Reports dated 9 January 2024 and 5 March 2024. In relation to the 9 January 2024 report, the Optometrist prescribed prescription sunglasses “to help her see clearer and reduce in glare sensitivity”. Prescription glasses and sunglasses are an item very commonly used by members of the Australian community. The report does not make any reference to Irlen syndrome. In relation to the 5 March 2024 report, the optometrist “recommended spectacles for near to improve concentration”, referred to “dry eyes – secondary to incomplete lid closure during blinks” and then stated that “other ocular health findings were unremarkable”. There is no reference to Irlen syndrome. Nothing in either of these reports suggests that any impairment the Applicant might claim to suffer in connection with any ocular issue is permanent, or that it results in a substantial reduction in functional capacity.

21. The letter from Ms W from the boarding school is about when the Applicant was at school. Similarly with the letter from Mr J from the boarding school. The documents from Dr H, GP, express the opinion that the Applicant falls into the needs category of students for access to special facilities. It is fair to say that the documents from the boarding school that the Applicant attended do not provide an up-to-date account of the Applicant’s circumstances and capacities.

22. Cumulatively, on the evidence, the Tribunal is not satisfied that the Applicant has substantial reduction in communication (s 24(1)(c)(i)), social interaction (s 24(1)(c)(ii)), learning (s 24(1)(c)(iii)) or self-management (s 24(1)(c)(vi)).

23. As to mobility, the concept of mobility refers to the person’s ability to move around the home or in the community to undertake activities of daily living.[40] There is no evidence to support a finding that there are limitations on the Applicant’s mobility due to her impairments, and as such s 24(1)(c)(iv) is not met.

    [40] NDIS Operational Guideline – Applying to the NDIS, 1 July 2022, p.9 (definition of “mobility”).

24. In relation to self-care, a substantially reduced functional capacity to care for oneself “imports the idea that there are significant gaps in one’s capacity to maintain personal health, safety and well-being“.[41] Although Ms B gave evidence of the Applicant’s need for assistance with cooking, cleaning and other household chores, there is no OT report to support a finding that there are significant gaps in the Applicant’s capacity to maintain personal health, safety and wellbeing. As such, the Tribunal is not satisfied that s 24(1)(c)(v) is met.

    [41] Madelaine v National Disability Insurance Scheme [2020] AATA 4025 at [121].

25. In light of the above, the Tribunal finds s 24(1)(c) of the Act is not met.

    Section 24(1)(e) – support under the NDIS for the person’s lifetime

26. As the Tribunal was not satisfied that the Applicant’s impairments are permanent, the Tribunal finds that she will not require support under the NDIS for her lifetime pursuant to section 24(1)(e) of the Act.

27. Therefore, it follows that the Applicant does not meet the requirement in s 24(1)(e) of the Act.

28. Moreover, the Tribunal is satisfied that the evidence indicates that although the Applicant would benefit from additional psychological support, this is most appropriately treated and provided for through the health system or the Applicant’s motor vehicle claim, rather than the NDIS.

    Section 25 – early intervention requirements

29. In relation to s 25(1)(a) of the Act, the Tribunal needs to be satisfied that the Applicant has one or more identified intellectual, cognitive, neurological, sensory or physical or psychosocial impairments that are, or are likely to be, permanent. Although the Applicant has an impairment, as discussed above, the evidence does not establish that this impairment is permanent. Accordingly, the criterion in s 25(1)(a) is not met. As to s 25(1)(b), there is no identification of what early intervention supports could be relevant, or in existence so that to reduce the Applicant’s future support needs. It follows that s 25(1)(b) of the Act is not met. As to s 25(1)(c), there is no information about the impact, if any, that the provision of early intervention supports would have on the Applicant’s functional capacity, and consequently, s 25(1)(c) is not met.

30. For those reasons, the Tribunal finds that the Applicant does not satisfy s 25 of the Act.

    CONCLUSION

31. In conclusion, the Tribunal finds that the Applicant does not meet ss 24(1)(b), (c) and (e), or the early intervention requirements in s 25 of the Act.

    DECISION

32. The Tribunal affirms the decision under review.

I certify that the preceding 63 (one hundred and one) paragraphs are a true copy of the reasons for the decision herein of Deputy President A Younes

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

Associate

Dated: 27 May 2024

Date(s) of hearing:	28 February 2024
Date final submissions received:	19 April 2024
Advocate for the Applicant:	Ms B, Relative of the Applicant
Counsel for the Respondent:	Mr N Swan
Solicitors for the Respondent:	Maddocks Lawyers