Willcocks and Chief Executive Officer, National Disability Insurance Agency

Case [2024] AATA 2722

Willcocks and Chief Executive Officer, National Disability Insurance Agency [2024] AATA 2722 (5 August 2024)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2022/10283

Re:Raymond Willcocks  

APPLICANT

AndChief Executive Officer, National Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Member P French

Date:5 August 2024

Place:Sydney

Pursuant to s 43(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth):

(a)the decision under review is set aside; and

(b)in substitution for that decision it is determined that the Applicant meets the requirements for access to the National Disability Insurance Scheme specified in s 21(1) of the National Disability Insurance Scheme Act 2013 (Cth) on the basis that

i.he meets the age requirements specified in s 22 of that Act,

ii.he meets the residence requirements specified in s 23 of that Act, and

iii.he meets the disability requirements specified in s 24 of that Act.

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

Member P French

CATCHWORDS

NATIONAL DISABILITY INSURANCE SCHEME – National Disability Insurance Agency – reviewable decision of Chief Executive Officer – becoming a participant – access request – whether applicant meets the access criteria – whether applicant meets the disability requirement – whether applicant has a disability attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or has one or more impairments to which a psychosocial disability is attributable – whether impairments are, or are likely to be, permanent – whether impairment or impairments result in substantially reduced functional capacity – whether impairments affect capacity for social and economic participation – whether likely to require support under the NDIS for the person’s lifetime – disability requirements met – reviewable decision set aside.

LEGISLATION

Acts Interpretation Act 1901 (Cth) s 15AB

Administrative Appeals Tribunal Act 1975 (Cth) ss 19A, 25, 37, 38AA, 43
National Disability Insurance Scheme Act 2013 (Cth) ss 18, 20, 21, 22, 23, 24, 25, 99, 103, 209

National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) Pts 2, 5, 6

CASES

DKQZ and National Disability Insurance Agency [2024] AATA 2276

FBJV and National Disability Insurance Agency [2021] AATA 913
Holmes and National Disability Insurance Agency [2017] AATA 2790
James and National Disability Insurance Agency [2019] AATA 4248
Kilgallin and National Disability Insurance Agency [2017] AATA 186
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
Newell and National Disability Insurance Agency [2023] AATA 4140
Re Drake and Minister for Immigration and Ethnic Affairs (No.2) [1979] 24 ALR 577
Rooney and National Disability Insurance Agency [2021] AATA 3523
Shelton and National Disability Insurance Agency [2018] AATA 2560
Shi v Migration Agents Regulation Authority (2008) 248 ALR 390
Smith and National Disability Insurance Agency [2024] AATA 265

Timofticiuc and National Disability Insurance Agency (2021) AATA 3015

SECONDARY MATERIALS

National Disability Insurance Scheme, operational guideline, Applying to the NDIS

World Health Organisation, 2001, International Classification of Functioning, Disability and Health, Geneva
World Health Organisation, 2013, How to use the ICF: A practical…

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Details
AGLC
Willcocks and Chief Executive Officer, National Disability Insurance Agency [2024] AATA 2722
Case
[2024] AATA 2722
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by an applicant against a reviewable decision of the Chief Executive Officer of the National Disability Insurance Agency (NDIA) regarding his eligibility to become a participant in the National Disability Insurance Scheme (NDIS). The applicant, a 64-year-old man who had not been in paid employment since 2000 following a work injury, sought access to the NDIS primarily to obtain assistance with house cleaning and yard maintenance, which he feared could jeopardise his social housing tenancy.

The Tribunal was required to determine whether the applicant met the disability requirements for NDIS access. This involved assessing whether the applicant had a disability attributable to specific types of impairments, whether those impairments were permanent or likely to be permanent, and if so, whether they resulted in a substantially reduced functional capacity in key areas and affected his capacity for social and economic participation. The Tribunal also needed to consider if the applicant was likely to require NDIS support for his lifetime.

In its reasoning, the Tribunal distinguished between a "health condition," an "impairment," and a "disability," noting that "disability" under the NDIS Act describes the overall effect of impairments on a person's ability to participate in life. The Tribunal found that the applicant met the age and residency requirements for NDIS access. Crucially, after considering the evidence, the Tribunal concluded that the applicant met the disability requirements for access to the NDIS, making it unnecessary to consider early intervention requirements.

Consequently, the Tribunal set aside the NDIA's decision and substituted a new decision stating that the applicant met the access criteria for the NDIS, specifically on the grounds that he satisfied the age, residence, and disability requirements.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The parties had the opportunity to make opening statements, present their evidence, ask the witnesses questions, and make final submissions to the Tribunal.Background facts The Applicant is a single man, 64 years of age as at the date of the hearing. On the date his NDIS Access Request was made (20 May 2021) he was 61 years and 4 months old.[1] He is an Australian Resident holding a permanent visa and was so on the date his NDIS Access Request was made.[2][1] Joint Tender Bundle, Tab T3: In his Access Request, the Applicant provided consent to the Agency to verify his birthdate with Centrelink, page 30.[2] Joint Tender Bundle, Tab T3: In his Access Request, the Applicant provided consent to the Agency to verify his residency status with Centrelink, page 30. The Applicant completed Year 12. He later attended university and obtained a Bachelor of Arts, majoring in Geography, and a Graduate Diploma of Town Planning. Later, he enrolled in, but did not complete, a master’s degree in commerce. He worked for a time as a planning officer for two local government authorities. At various times he also worked as a barman, cellar hand, waiter, and bottle shop manager. In April 2000, the Applicant sustained an injury at work. After a period of leave, he returned to work in accordance with a rehabilitation program. However, his return to work was unsuccessful for several reasons. He has not worked in paid employment since late 2000. He has been in receipt of a Disability Support Pension since September 2003. He received a worker’s compensation lump sum payment in respect of non-economic loss in June 2002, and a Total Disablement Benefit in July 2016. Since July 2023 the Applicant has been a regular volunteer with a non-government organisation engaged in telephone counselling work (3 days a week, 3 hours per day).[3][3] Transcript of Proceeding, Day 1, 3 June 2024 (Transcript Day 1), page 11, lines 14 – 39. The Applicant lives in social housing in a rural town in South Australia. His home is a single storey dwelling with two bedrooms, a living room, kitchen, bathroom, lock-up garage, and front and rear yards. The bathroom has a standard toilet and an open shower with handheld shower head but does not have grab rails. There is also a front-loading washing machine in the bathroom. Front access to the home is via a steep concrete driveway. The Applicant has a driver’s license and owns a car. He has four pet dogs. He has relatives in South Australia and a brother in Sydney with whom he does not have contact. He does not have any informal supports, and apart from social housing, has no formal supports. A primary motivating factor for the NDIS Access Request is the Applicant’s desire to obtain assistance with house cleaning and yard maintenance. He has received repeated warnings from his social housing provider about cleaning and property care and is concerned that this will lead to the termination of his tenancy agreement. However, as at the date of the hearing no termination action has been taken,[4][4] Joint Tender Bundle, Tab T3, page 34; Transcript Day 1, page 31–3.The Access Request

Evidence

Evidence Before The Court

Prior to the constitution, on 8 February 2024, a Tribunal, differently constituted, made directions for the parties to file and exchange Hearing Certificates and the evidence and submissions that they intended to rely on at the final review hearing. After constitution, on 26 March 2024, I fixed the review hearing for 3 and 7 June 2024 in accordance with the availability of the parties and their witnesses as this was set out in their Hearing Certificates.Evidence and hearing I have considered the following material in reaching my decision:(i)Agency’s Statement of Facts, Issues and Contentions, undated, filed on 10 May 2024;(ii)Joint Tender Bundle filed 14 March 2024 (Exhibit 2);(iii)Medical Certificate and CT scan dated 31 May 2024 (Exhibit 1). The hearing was conducted by MS Teams (Video) on 3 and 7 June 2024. The Applicant was self-represented. He gave oral evidence in his own cause under oath. The Agency was represented at the hearing by Mr D Lipari of counsel, instructed by Maddocks Lawyers. The Agency called as a witnesses Ms B Dwyer, Occupational Therapist, who gave evidence under oath on 3 June 2024, and Dr J Tomlinson, Consultant Orthopaedic Surgeon, who gave evidence under affirmation on 7 June 2024. The parties had the opportunity to make opening statements, present their evidence, ask the witnesses questions, and make final submissions to the Tribunal.Background facts The Applicant is a single man, 64 years of age as at the date of the hearing. On the date his NDIS Access Request was made (20 May 2021) he was 61 years and 4 months old.[1] He is an Australian Resident holding a permanent visa and was so on the date his NDIS Access Request was made.[2][1] Joint Tender Bundle, Tab T3: In his Access Request, the Applicant provided consent to the Agency to verify his birthdate with Centrelink, page 30.[2] Joint Tender Bundle, Tab T3: In his Access Request, the Applicant provided consent to the Agency to verify his residency status with Centrelink, page 30. The Applicant completed Year 12. He later attended university and obtained a Bachelor of Arts, majoring in Geography, and a Graduate Diploma of Town Planning. Later, he enrolled in, but did not complete, a master’s degree in commerce. He worked for a time as a planning officer for two local government authorities. At various times he also worked as a barman, cellar hand, waiter, and bottle shop manager. In April 2000, the Applicant sustained an injury at work. After a period of leave, he returned to work in accordance with a rehabilitation program. However, his return to work was unsuccessful for several reasons. He has not worked in paid employment since late 2000. He has been in receipt of a Disability Support Pension since September 2003. He received a worker’s compensation lump sum payment in respect of non-economic loss in June 2002, and a Total Disablement Benefit in July 2016. Since July 2023 the Applicant has been a regular volunteer with a non-government organisation engaged in telephone counselling work (3 days a week, 3 hours per day).[3][3] Transcript of Proceeding, Day 1, 3 June 2024 (Transcript Day 1), page 11, lines 14 – 39.

Decision

Reasons for decision

I have found that the Applicant meets the disability requirements for access to the NDIS. It is therefore unnecessary for me to consider if he meets the early intervention requirements.Conclusion For the foregoing reasons I am satisfied that the Applicant meets the disability requirements for access to the NDIS. The reviewable decision is not correct in this respect. Pursuant to s 43(3) of the AAT Act, in disposition of this review, I will therefore set aside the decision under review and substitute for it a decision that the Applicant meets the access criteria in s 21(1)(c) of the NDIS Act on the basis that he meets the age, residence and disability requirements for access to the NDIS.

Ratio Decidendi

Legal Principle Established

The Agency has also developed operational guidelines to assist in the interpretation and application of the NDIS legislative scheme. These guidelines are Agency policy documents issued in the exercise of executive rather than legislative power. They are therefore not binding upon the Tribunal but should be applied as relevant government policy unless they prove inconsistent with the statutory provisions.[49] The relevant Guideline at the time of this review is “Applying to the NDIS” (1 February 2024)[50][49] Re Drake and Minister for Immigration and Ethnic Affairs (no.2) [1979] 24 ALR 577 at [590].[50] Applying to the NDIS | NDIShttps://ourguidelines.ndis.gov.au/home/becoming-participant/applying-ndis accessed 8 July 2024.Consideration To determine the outcome of this review, the Tribunal must pose and answer the following questions:(i)Does the Applicant meet the age requirements for the NDIS? It is not in issue that the Applicant meets the age requirements for the NDIS. On the evidence set at out at paragraph 11 above I make that finding.(i)Does the Applicant meet the residence requirements of the NDIS? Nor is it in issue that the Applicant meets the residence requirements for the NDIS. On the evidence set out at paragraph 2 above I also make that finding.(iii)Does the Applicant meet the disability requirements for the NDIS? This requires consideration of five separate, cumulative,[51] sub-questions (subject to them being reached):[51] National Disability Insurance Agency v Davis [2022] FCA 1002 (‘Davis’) at [7].(a)Does the Applicant have a disability that is attributable to one or more intellectual, cognitive, neurological, sensory, or physical impairments or one or more impairments to which a psychosocial disability is attributable?(b)If the answer to (a) is “yes”, is the impairment(s) permanent, or likely to be permanent?(c)If the answer to (b) is “yes”, does the impairment(s) 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.(d)If the answer to (c) is “yes”, does the impairment affect the person’s capacity for social and economic participation?(e)If the answer to (d) is “yes”, is the person likely to require support under the NDIS for the person’s lifetime?Impairment The application of s 24(1)(a) of the Act requires a distinction to be drawn between the concepts “health condition”, an “impairment”, and “disability”. None of those terms are defined in the NDIS Act. In Mulligan,[52] the Court concluded that the term ‘disability’ is used in the Act, and in s 24 specifically, as a description of the overall effect of a person’s impairments on that person’s ability to participate in all aspects of personal and community life. In Davis,[53] the Court observed that the ‘impairment’ that is attributable to disability for the purposes of s 24 must be identified with precision because the threshold questions on permanency (s 24(1)(b)) and substantially reduced function (s 24(1)(c)) operate not on the concept of disability, but on the concept of impairment.[52] Mulligan v National Disability Insurance Agency (2015) 233 FCR 201 (‘Mulligan’), 212, [51].[53] Davis at [86].