Williams and National Disability Insurance Agency

Case [2021] AATA 3383

Williams and National Disability Insurance Agency [2021] AATA 3383 (20 September 2021)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s): 2019/6333

Re:Julie Williams

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Member W Frost

Date:20 September 2021

Place:Canberra

The Tribunal affirms the decision under review pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975.

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

Member W Frost

Catchwords

NATIONAL DISABILITY INSURANCE SCHEME – access to scheme – learning disability – chronic inflammatory spondylarthritis – anxiety – depression – chronic fatigue syndrome – whether impairments result in “substantially reduced functional capacity” to undertake any one or more specified activities – whether Applicant meets early intervention requirements – access criteria under sections 24 and 25 National Disability Insurance Scheme Act 2013 not met – decision affirmed

Legislation

Administrative Appeals Tribunal Act s 43

National Disability Insurance Scheme Act 2013 ss 3, 18, 20-21, 24-25, 28, 100, 103, 209

National Disability Insurance Scheme (Becoming a Participant) Rules 2016 

Cases

Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Howard and National Disability Insurance Agency [2019] AATA 2

Madelaine and NDIA [2020] AATA 4025

Mulligan v National Disability Insurance Agency [2015] FCA 544

Mulligan and NDIA [2015] AATA 974

REASONS FOR DECISION

Member W Frost

20 September 2021

INTRODUCTION

  1. The Applicant, Ms Julie Williams, is 56 years old. She has been diagnosed with a learning disability, chronic inflammatory spondylarthritis, anxiety and depression and chronic fatigue syndrome. In December 2018, Ms Williams applied to become a participant in the National Disability Insurance Scheme (NDIS).[1]

    [1] Exhibit 1, pages 118-125.

  2. In January 2019, a delegate of the Chief Executive Officer (CEO) of the National Disability Insurance Agency (NDIA) determined that Ms Williams did not meet the access requirements set out in the National Disability Insurance Scheme Act 2013 (NDIS Act).[2]

    [2] Exhibit 1, pages 126-127.

  3. In March 2019, Ms Williams requested an internal review by the NDIA[3] and, in September 2019, another delegate of the CEO confirmed its decision that Ms Williams did not satisfy the access criteria in either sections 24 (containing the ‘disability requirements’) or 25 (containing the ‘early intervention requirements’) of the NDIS Act.[4] Pursuant to section 103 of the NDIS Act, Ms Williams applied to Administrative Appeals Tribunal (Tribunal) for merits review of the NDIA’s decision made under section 100 of the NDIS Act.[5]

    [3] Exhibit 1, pages 128-129 and 131-136.

    [4] Exhibit 1, pages 54-64.

    [5] Exhibit 1, pages 52-53.

  4. The Tribunal held a hearing in August 2021 using the videoconferencing facility, Microsoft Teams, due to restrictions on hearings as a result of the COVID-19 pandemic. The Tribunal is satisfied that the parties had a reasonable opportunity to present their respective cases and to make submissions in this proceeding, in accordance with section 39 of the Administrative Appeals Tribunal Act 1975 (AAT Act). The Tribunal has considered all of the evidence and submissions in this proceeding in reaching its decision…

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Williams and National Disability Insurance Agency [2021] AATA 3383
Case
[2021] AATA 3383
Decision Date

CaseChat Overview and Summary

This matter concerned an application by Ms Williams for access to the National Disability Insurance Scheme (NDIS). The dispute arose because the National Disability Insurance Agency (NDIA) determined that Ms Williams did not meet the access criteria under sections 24 and 25 of the *National Disability Insurance Scheme Act 2013* (Cth). The Administrative Appeals Tribunal (AAT) was required to review this decision.

The primary legal issue before the Tribunal was whether Ms Williams' impairments, including a learning disability, chronic inflammatory spondylarthritis, anxiety, depression, and chronic fatigue syndrome, resulted in a "substantially reduced functional capacity" to undertake any one or more of the specified activities listed in the NDIS Act. The Tribunal also considered whether Ms Williams met the early intervention requirements, although the focus of the decision was on the "disability requirements" under section 24.

The Tribunal considered expert evidence from a psychologist, Mr Don Finnegan, who had treated Ms Williams for many years. Mr Finnegan testified that Ms Williams' impairments interacted significantly, impacting her executive functioning, problem-solving abilities, and capacity to manage daily living and complex decisions. While the Tribunal was satisfied that Ms Williams had a disability, that her impairments were permanent, and that they affected her capacity for social or economic participation, it found that the evidence did not establish a "substantially reduced functional capacity" in the specific activities enumerated in section 24(1)(c) of the Act. The Tribunal noted that the NDIA acknowledged some reduced capacity in learning, self-care, and self-management, but submitted this reduction was not substantial enough to meet the legislative threshold.

The Tribunal affirmed the NDIA's decision that Ms Williams did not meet the access criteria for the NDIS. The Tribunal emphasised that this decision did not diminish the reality or impact of Ms Williams' impairments, but rather reflected a finding that the specific legislative criteria for substantially reduced functional capacity had not been met at that time. The Tribunal noted that Ms Williams remained open to reapplying for access in the future should her functional capacity substantially reduce.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Ms Williams was unsure how long she was away from her property due to the bushfires. She went to Bega for the first evacuation and she ‘knew enough to know this wasn’t going to be a one off, there was going to be several evacuations’. After some assistance at the evacuation centre, she drove to Wagga Wagga. Ms Williams evacuated ‘some’ of her chickens and utilised Facebook to seek assistance for the remainder. People from the evacuation centre ‘rescued the chickens and helped me’. Expert evidenceMr Don Finnegan – Psychologist The Tribunal has considered the four reports written by Mr Finnegan between 2017 and 2020 regarding Ms Williams and her application for access to the NDIS.[39] Mr Finnegan appeared at the hearing by video using MS Teams to give evidence in this proceeding. [39] Exhibit 1, pages 72-75,257-269. Examination-in-chief Mr Finnegan told the Tribunal that he has not worked with Ms Williams since early 2019, but that he had previously seen her for 12 years over eight specific episodes of care. He said Ms Williams has been diagnosed with a learning disability, major depressive disorder, which is recurrent, and anxiety which is like post-traumatic stress disorder. Ms Williams has been receiving ‘various treatments since adolescence’ for all of these conditions. She received learning support for reading, writing and communication, with little benefit. For her psychological conditions, Ms Williams has tried ‘a number of different medications over the years’ and received specialist assistance, including ‘some psychiatric admissions to hospital’. Mr Finnegan told the Tribunal that Ms Williams has had ‘long periods of therapy’ and tried ‘lots of different approaches’, which ‘help her function better and cope better to some degree while she’s receiving treatment’, although they have not resolved her underlying issues. Ms Williams’ advocate asked Mr Finnegan how the impairments impact on her function. He told the Tribunal this was a ‘complicated question’, but they impact her ‘really significantly’. Mr Finnegan said there were ‘a number of different ways that her disabilities interact and cause trouble’. Ms Williams has had ‘a lot of experiences where her learning disabilities have meant she’s struggled to deal with organisations’, learning environments or work situations. These have not been understood and she was ‘unfairly disadvantaged’, lost jobs, court cases or ‘was manipulated by people’. These experiences were traumatic and triggers a ‘trauma-like anxiety response’. This compounds the learning disability and impairs her ‘executive functioning’, her ability to ‘problem solve, to understand, to prioritise’ and to plan. Mr Finnegan told the Tribunal when Ms Williams’ mental health flares up, the other conditions ‘exacerbate and get worse’. Mr Finnegan said the impact on Ms Williams’ functioning ‘is variable’. It is ‘quite severe’ when she is going through difficult periods and her anxiety is higher. He told the Tribunal that the ‘biggest impact’ is in Ms Williams’ ‘activities of daily living or functioning in the world’. Ms Williams ‘doesn’t really manage’ to process information and organise information well’; she ‘doesn’t cope with a whole bunch of stuff’, particularly ‘making big life decisions’, such as whether to continue living remotely or move into town. This is because Ms Williams is unable to ‘do the complex thinking required to solve that kind of problem’. It also includes dealing with organisations, such as Centrelink, or her taxation issues. She defers attending to them and ‘they become bigger and bigger problems’.

Decision

Reasons for decision

The Tribunal understands that this will be a difficult decision for Ms Williams to receive. It must be emphasised that the Tribunal’s decision does not diminish the nature and effect of Ms Williams’ impairments, or indeed their existence, but rather is a finding that the requisite legislative criteria requiring a substantially reduced functional capacity to undertake one or more particular activities have not been met at this time. While Ms Williams expressed an unwillingness to again apply for access to the NDIS, this course is open to her in the future if her functional capacity for one or more of the prescribed activities becomes substantially reduced as a result of her impairments and she continues to meet the other required legislative criteria. DECISION The Tribunal affirms the decision under review pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975.

Ratio Decidendi

Legal Principle Established

The NDIA acknowledged that Ms Williams has some reduced functional capacity in the activities of learning, self-care, and self-management, however it submitted that this reduction is not substantial, as required by subsection 24(1)(c) of the NDIS Act. The NDIA therefore contended that, while Ms Williams may require some support, including through health or mainstream services, it cannot be found that she requires the support of the NDIA for her lifetime pursuant to subsection 24(1)(e) of the NDIS Act. CONSIDERATIONThe disability requirements The Tribunal must be satisfied that Ms Williams meets all of the ‘disability requirements’ in subsection 24(1) of the NDIS Act in order to find that she meets the access criteria for the NDIS.[41] On the available evidence, the Tribunal is satisfied, and the NDIA separately accepted, that Ms Williams meets the criterion in subsection 24(1)(a) of the NDIS Act, being that she has a disability attributable to the impairments of chronic inflammatory spondylarthritis, a learning disability, anxiety and depression and chronic fatigue syndrome. [41] Howard and National Disability Insurance Agency [2019] AATA 2, [25]. A person meets the criterion under subsection 24(1)(b) of the NDIS Act if the ‘impairment or impairments are, or are likely to be, permanent’. The Tribunal is satisfied the evidence supports a finding that this permanency criterion is met in relation to Ms Williams’ impairments. The Tribunal also notes that the NDIA did not dispute that Ms Williams’ impairments are permanent. On the available evidence, the Tribunal is also satisfied, and it was acknowledged by the NDIA, that Ms Williams meets the criterion in subsection 24(1)(d) of the NDIS Act, in that the impairments affect her capacity for social or economic participation. As a result of these findings, the focus of the reasons that follow is on the disputed criteria in subsection 24(1)(c) and (e) of the NDIS Act, regarding substantially reduced functional capacity and lifetime NDIS support. Does Ms Williams have substantially reduced functional capacity? The Tribunal turns to consider whether Ms Williams’ impairments result in substantially reduced functional capacity to undertake one or more of the following activities specified in subparagraphs (i) to (vi) of subsection 24(1)(c) of the NDIS Act: communication; social interaction; learning; mobility; self-care; or self-management. Ms Williams did not contend in this proceeding that her impairments result in substantially reduced functional capacity to undertake the activities of communication, social interaction and mobility. For completeness, the Tribunal is satisfied, based on the evidence, that while Ms Williams does have some reduced functional capacity in these three activities, this does not rise to the requisite standard of a substantially reduced functional capacity in one or more such activities. Accordingly, the remaining activities for the Tribunal to consider are learning, self-care and self-management pursuant to subsection 24(1)(c)(iii), (v) and (vi) of the NDIS Act.