Wyatt and National Disability Insurance Agency

Wyatt and National Disability Insurance Agency [2022] AATA 4238 (12 December 2022)
Division:NATIONAL DISABILITY INSURANCE AGENCY DIVISION
File Number:2020/1770
Re:DONNA-MAREE WYATT
APPLICANT

NATIONAL DISABILITY INSURANCE AGENCYAnd
RESPONDENT

Decision
Tribunal:Senior Member Katter
Date:12 December 2022
Place:Brisbane

The decision under review is affirmed.
.....................................[SGD]...................................
Senior Member Katter

Catchwords
NATIONAL DISABILITY INSURANCE AGENCY – access criteria – multiple impairments – whether impairments are permanent – whether impairments result in substantially reduced functional capacity – decision under review affirmed
Legislation
Administrative Appeals Tribunals Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)
CASES
Mulligan and National Disability Insurance Agency (2015) 149 ALD 408
REASONS FOR DECISION
Senior Member Katter
12 December 2022
APPLICATION

The Applicant applied to the Tribunal for review of the decision by the Respondent that the Applicant did “not meet the access requirements”[1] in the National Disability Insurance Scheme Act 2013 (Cth) (“the Act”).
[1]           Exhibit 1, Consolidated Hearing Bundle & Index (“Exhibit 1”), H9, T7, Access Not Met Letter, page 34.
BACKGROUND
2.
There is an interaction record document indicating that the Applicant made a verbal request for access to the National Disability Insurance Scheme (“NDIS”) to a customer service officer of the Respondent on 10 December 2019[2]. The Applicant submitted documents in support of the request[3]. There had been the previous provision of an access request form from the Applicant dated 11 October 2018[4], with part of the form being completed by
[2]           Exhibit 1, H8, T6, Extract of Interaction Records, Verbal Access Request, page 33.
[3]           Ibid.
[4]           Exhibit 1, H6, T4, Access Request Form, Dr Mal Fernando (General Practitioner), page 24.

Dr Fernando[5].
[5]Dr Fernando, General Practitioner: Exhibit 4, Respondent’s Written Submissions dated 5 August 2022, paragraph [2.2], page 2.
3.On 13 December 2019 the following was stated by a “delegate of the Chief Executive Officer” of the Respondent[6]:
[6]           Exhibit 1, H9, T7, Report, Niki Reid (Occupational Therapist), page 34.
“I writing to let you know the outcome of your request to access the National Disability Insurance Scheme … . Unfortunately, based on the information provided, you do not meet the access requirements set out in the [Act] to become a participant of the NDIS.
Disability requirements
Section 24 of the … Act outlines specific disability requirements to access the NDIS. Based on the information provided, you do not meet these requirements.
More specifically, the requirement in:
… Section 24(1)(b) of the … Act, which requires that you must have an impairment which is permanent, or likely to be permanent.
Early Intervention requirements
Unfortunately you do not meet the early intervention requirements as outlined in section 25 of the … Act. This is because, based on the information provided, you do not meet:
… Section 25(1)(a), which requires that you must:
… have one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent; or
… have one or more identified impairments that are attributable to a psychiatric condition and are, or are likely to be, permanent; …
If you disagree with this decision or have new information, you can submit a request for the decision to be reviewed within 3 months from the date of this letter … .”
4.There was an ‘interaction record’ document dated 24 December 2019, noting that an internal review decision was received from the Applicant[7].
[7]           Ibid, H10, T8, Extract of Interaction Records, Request for Review of Reviewable Decision, page 36.
5.By letter dated 10 February 2020 a “delegate of the Chief Executive Officer” of the Respondent stated[8]:
[8]           Exhibit 1, H3, T1A, Internal Review Decision, pages 1 and 2.
“I am writing in response to your request received on 23^[[9]^] December 2019, that we review our earlier decision (under section 100 of the … Act … ) made on 13 December 2019 that you did not meet the access criteria to become a participant of the National Disability Insurance Scheme … (section 20 of the … Act … ). …
[9]There is no indication of a separate communication on 23 December 2019, further to the interaction records document dated 24 December 2019: Exhibit 1, H10, T8, page 36.
After careful consideration of your review request and the evidence you have provided, I have decided to confirm the earlier decision. This means that you will not be able to access the NDIS at this time.
I attempted to contact you on 05 Feb[ruary 2020] and 10 Feb[ruary] 2020 to discuss the main issues with your application … around permanence and substantial reduction in functional capacity. My full reasons are set out in the enclosed review report, which also suggests other community and government programs that may support your needs. Please note that the staff member who made the earlier decision was not involved in this review. … ”
The internal review[10] reasons referred specifically to documents[11]:
[10]          Exhibit 1, H3, T1A, Internal Review Decision, pages 1-5.
[11]          Ibid, page 1.
“ … 1.   Niki Reid, Report, 25/06/2019
2.        Dr Mal Fernando, Access Request Form, 11/10/2018^[[12]^]
[12]          Exhibit 4, Respondent Written Submissions dated 5 August 2022, paragraph [2.2], page 2.
3.        Dr Julie Nos, Report, 21/08/2018 … ”
The internal review reasons[13] stated that particular access criteria were satisfied: section 22 age[14] and section 23 residence[15]. The internal review reasons[16] stated that section 24(1)(a) of the Act was “satisfied” “ … that this criteria has been met for lumbar spondylosis with sciatica, depression and anxiety”[17]. The internal review reasons[18] stated that the following access criteria were “not satisfied”:
[13]          Exhibit 1, H3, T1A, Internal Review Decision, pages 1-5.
[14]          Ibid, page 1.
[15]          Ibid, n13, page 1.
[16]          Ibid, pages 1-5.
[17]          Ibid, n13, page 2.
[18]          Ibid, pages 1-5.
(i)section 24 disability requirements: criteria (b) on permanence[19], criteria (c) on functional impact[20], criteria (e) on lifetime NDIS support[21];
[19]          Ibid, n13, page 2.
[20]          Ibid, page 3.
[21]          Ibid, n13, page 4.
(ii)section 25 early intervention[22] requirements: criteria (a) on impairments[23], (b) on reducing future need for support[24] and (c) on improving capacity[25]; and
[22]          Ibid.
[23]          Ibid, n13, page 5.
[24]          Ibid.
[25]          Ibid, n13.
(iii)section 25(3), that the NDIS is the most appropriate support system[26].
[26]          Ibid.
The Applicant submitted to the Tribunal an application for review of decision form on 20 March 2020[27]. In that form[28] the Applicant stated the ‘date of the decision the Applicant seeks to have reviewed’ as “20/02/2020”[29]. The Applicant further stated, as to ‘why it is claimed that the decision is wrong’[30]: “I don’t believe they had all the information, like scan reports, and all the information from my doctor. This is why I believe the decision is wrong.”
[27]          Exhibit 1, H2, T1, Application for Review of Decision, page 3.
[28]          Ibid.
[29]          Ibid, n27, page 5.
[30]          Ibid.
The hearing of the application commenced on 14 April 2022[31], with further hearing days on 13 June 2022[32] and 6 July 2022[33], with particular witnesses only being available on specific days. The parties then respectively provided written submissions (the Respondent on
[31]          Transcript of 14 April 2022, pages 1-66.
[32]          Transcript of 13 June 2022, pages 57-110.
[33]          Transcript of 6 July 2022, pages 111-125.

5 August 2022 and the Applicant on 18 September 2022). There was then a further oral submissions hearing on 4 November 2022.
SECTIONS 18-24 OF THE ACT
The Applicant made a request on 10 December 2019[34] to the Respondent, to become a participant in the NDIS[35]. The Respondent submits that there was on 9 December 2019 an “access request” as stated in section 18 of the Act in a form that “satisfies” section 19 of the Act[36]. An “access request” is mandatorily required to be given “in the form (if any) approved”[37] and was made by the access request form completed by Dr Fernando[38], as then verbally confirmed by the Applicant[39]. The access request was accompanied by documents[40]: section 19(1)(b) of the Act. There is no indication as to whether the Applicant on or about 10 December 2019[41] ‘certified that the access request includes all the information, and is accompanied by all the documents, required (as mentioned in paragraph 19(1)(b) of the Act) that are in the possession or control of the person’[42]. The note in section 19(1) of the Act states: “The CEO is not required to make a decision on the access request if this section is not complied with (see section 197)”. Section 197 of the Act states that:
[34]          Exhibit 1, H8, T6, Extract of Interaction Records, Verbal Access Request, page 33.
[35]          National Disability Insurance Scheme Act 2013 (Cth) (“The Act”), s 18.
[36]          Exhibit 4, Respondent’s Written Submissions, dated 5 August 2022, paragraphs [2.3]-[2.4], page 3.
[37] The Act, ss 19(1)(a).
[38] Ibid, n36, at paragraph [2.2], page 2.
[39] Ibid, n34, H8, T6, page 33.
[40] Ibid; the Act, ss19(1)(b).
[41] Ibid, n34, H8, T6, page 33.
[42] The Act, ss 19(1)(c).
“(1)If this Act, the regulations or the National Disability Insurance Scheme rules require a request or application to be in a form approved by the CEO, the CEO is not required to make a decision on the request or application if it is not in that form.
(2)If this Act, the regulations or the National Disability Insurance Scheme rules permit the CEO to require information or documents for the purposes of, or for purposes relating to, making a decision or doing a thing, the CEO is not required to make the decision or do the thing until the information or documents are provided.”

11.
It is not contended by the Respondent that there was not an access request made on

10 December 2019[43]. There was an “access request” made on 10 December 2019[44] to the Respondent, in that it was made verbally by the Applicant and was accompanied by documents in the possession or control of the Applicant in accordance with section 19(1) of the Act, where there had been the previous provision of an access request form from the Applicant dated 11 October 2018[45].
[43] Ibid, n34, H8, T6, page 33.
[44] Ibid.
[45]          Exhibit 1, H6, T4, Access Request Form, Dr Mal Fernando (General Practitioner), page 24.
Section 19(2) of the Act states:
“(2)     If:
(a)      a person has made an access request; and
(b)the CEO decides that the person does not meet the access criteria, or is taken to have so decided because of subsection 21(3);
the person may make another access request at any time, unless at that time either of the following has been commenced, but not finally determined:
(c)a review (the initial review) under subsection 100(5) of the CEO's decision;
(d)      a review under section 103 of a decision on the initial review.”
There is no indication that the Applicant has made another access request further to the “access request” made on 10 December 2019[46].
[46] Ibid, n43.
Section 20 of the Act states:
“(1)If a person (the prospective participant) makes an access request, the CEO must:
(a)decide whether or not the prospective participant meets the access criteria; or
(b) make one or more requests under subsection 26(1).
(2)The CEO must do a thing referred to in paragraph (1)(a) or (b) within the following number of days of receiving the access request:
(a) 21 days, unless paragraph (b) applies;
(b)if the National Disability Insurance Scheme rules prescribe a lesser number of days for the purposes of this paragraph--that lesser number of days.”
Sub-section 26(1) of the Act refers to requests for the provision of information that are reasonably necessary for deciding whether or not the “prospective participant”[47] meets the “access criteria”[48] or for the prospective participant to undergo an assessment. There is no indication of any further request or requests being made under sub-section 26(1) of the Act, before the decision on 13 December 2019[49] by the Respondent. There was no contention by the Applicant or the Respondent specifically in this regard as to section 20 of the Act.
[47] The Act, ss 26(1)(a).
[48] Ibid, s 21.
[49] Exhibit 1, H9, T7, Access Not Met Letter, page 34.
Sub-section 21(1) of the Act states:
“(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).”
The Respondent submits that the Applicant ‘meets’ the age requirements in section 22 of the Act[50], being “aged under 65” at the date of the “access request”[51]. The Applicant is not aged over 65[52].
[50]          Ibid, n36, at paragraph [1.3](a), page 1.
[51]          Exhibit 1, H8, T6, Extract of Interaction Records, Verbal Access Request, page 33.
[52]          Ibid, n36, at paragraph [2.1], page 2.
The Respondent submits that the Applicant ‘meets’ the residence requirements in section 23 of the Act[53]. The Applicant has been living in the State of Queensland[54].
[53] Ibid, n49.
[54] Exhibit 1, H2, T1, Application for Review of Decision, page 4.
Section 24 of the Act states:
“(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 InsuranceScheme 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.
(3)For the purposes of subsection (1), an impairment or impairments that are episodic or fluctuating may be taken to be permanent, and the person may be taken to be likely to require support under the National Disability Insurance Scheme for the person's lifetime, despite the episodic or fluctuating nature of the impairments.
(4)      Subsection (3) does not limit subsection (2).”
As to section 24 the Respondent submits that the Applicant[55]:
“ … meets the impairment criteria in s[ection] 24(1)(a) with respect to lumbar spondylosis with sciatica and cervical spondylosis, and anxiety and depression impairments only;
… meets the permanence criteria pursuant to s[ection] 24(1)(b) with respect to lumbar spondylosis with sciatica and cervical spondylosis, and anxiety and depression impairments only;
… does not meet the substantially reduced functional capacity criteria pursuant to section 24(1)(c);
… meets section 24(1)(d) in that the Applicant’s capacity for social and economic participation is affected;
… does not meet section 24(1)(e) as it is not likely that the Applicant will require support under the NDIS for [the Applicant’s] lifetime … ”.
[55] Exhibit 4, Respondent’s Written Submission dated 5 August 2022, paragraphs [1.3](b)-(f), pages 1-2.
The Respondent further submitted that the “Respondent accepts that the Applicant has disabilities in the form of lumbar spondylosis with sciatica, cervical spondylosis with radiculopathy, asthma, migraines and GORD”[56].
[56] Ibid, paragraph 4.2, pages 8-9.
Dr Fernando[57] stated on 11 October 2018[58]:
[57] MBBS FRACGP: Exhibit 1, H6, T4, Access Request Form, Dr Mal Fernando (General Practitioner), page 24.
[58] Ibid, pages 25-26.
“ … What is the [Applicant’s] primary impairment (i.e. the impairment with the most impact on daily life)?
Lumbar Spondylosis with Sciatica. …
… How long has the person had this impairment?
Since 2001.
… Is the impairment likely to be lifelong? NB: an impairment may be considered likely to be lifelong even if the impact on the functional capacity fluctuates or varies in intensity over time.
Yes. Will get worse with time.
… Please provide a brief description of any relevant treatment undertaken (current and/or past)
Pain relief with Fentanyl Patches, Physiotherapy, Osteopathy[,] CT guided facet joint ankle nerve injection.
… Does the person have another impairment that has a significant impact? If yes, please list
Cervical spondylosis with radiculopathy.
… How long has the person had this impairment?
Since 2001.
… Is the impairment likely to be lifelong?
Yes. Will get worse with time.
… Please provide a brief of any relevant treatment undertaken (past and/or present)
Pain relief with Fentanyl Patches. Physiotherapy. Osteopathy.
… Does the person have any other impairments? If yes, please list
Depression – major[,] asthma[,] Migraines[,] GORD
Are there early intervention supports that are likely to benefit the person by reducing their future needs for supports?
The provision of early supports will: Prevent deterioration of function capacity
Details of recommended early intervention supports:
Psychotherapy for Depression … ”.
Dr Goki[59] stated the following “diagnosis” as to the Applicant on 16 April 2021[60]:
“Mixed anxiety and depressive disorder …
Post Traumatic Stress Disorder (car accidents in 2001 and 2002) …
Panic attacks
Agoraphobia
Cannabis use disorder
Insomnia disorder
Opioid use disorder (prescribed)”
[59] MBBS FRANZCP: Exhibit 1, H19, A6, Response to Questions, Dr Mohsen Mohseni Goki, page 13.
[60] Ibid, page 13.
As to “cannabis use disorder”[61] the Applicant stated that[62]: “I didn’t say I am dependent … . I can go without it.” As to the cannabis use disorder[63] and opioid use disorder (prescribed)[64], Dr Goki stated that motivational interviewing to address drug dependency “is something that would not be successful in achieving anything, given that that’s the only coping mechanism that [the Applicant] has to deal with … current issues”[65]. Dr Goki further stated that if the Applicant gave up the cannabis use and opioid use that “will potentially cause worsening of other mental health issues that [the Applicant is] dealing with”[66]. That is that Dr Goki was describing those “disorders” as “coping mechanisms” to ‘deal with current issues’[67], rather than as separate ‘impairments’.
[61]          Ibid.
[62]          Transcript of 14 April 2022, page 48, lines 6-8.
[63]          Ibid, n 58.
[64]          Ibid.
[65]          Transcript of 13 June 2022, page 91 lines 6-17.
[66]          Ibid, page 92 lines 35-36.
[67]          Ibid.

In the patient health summary printed on 2 January 2021 from the Bay Islands Medical Service it states: “Active Past History: Epilepsy … last fit 1999 GTC”[68]. There are no other references to epilepsy by the parties or the health practitioners.
[68] Exhibit 1, H38, S1, Patient Health Summary, page 1.
In a written submission made by the Applicant on 18 September 2022, the Applicant stated: “I also have had another fracture, this time in my rib, and it’s taking a long time to heal as I did this just after [E]aster”[69]. There is no medical information or documentation in that specific regard, as to either that submission as to that fracture or the previous fracture/s referred to by the Applicant in that submission[70].
[69] Exhibit 5, Submission by the Applicant dated 18 September 2022.
[70] Ibid.
The Applicant submitted on 4 November 2022 that the Applicant has the following: lumbar spondylosis with sciatica, cervical spondylosis with radiculopathy, asthma, migraines and GORD[71].
[71] Transcript of 4 November 2022, page 130, lines 11-12.
The Applicant also submitted on 4 November 2022 that there was a psychiatric condition in the form of a mixed anxiety and depressive disorder[72]. The Respondent submitted that the Respondent ‘accepts’ that the Applicant has a psychiatric condition in the form of a mixed anxiety and depressive disorder[73].
[72]          Ibid, page 131, lines 5-10.
[73]          Transcript of 4 November 2022, page 131, lines 18-19.
The Applicant also submitted on 4 November 2022 that there was “COPD”[74]. In relation to “COPD” the Respondent submitted that ‘there is documentary evidence that serve[s] in the assistance of what appears to be emphysema, and Dr Perera in evidence confirmed that COPD and emphysema are effectively the same thing’[75]. Dr Perera did state that the Applicant had chronic obstructive pulmonary disease (COPD), identified in CT scans[76].

Dr Perera also stated that there was no difference between emphysema and COPD[77].
[74]          Ibid, page 131, lines 5-10.
[75]          Transcript of 4 November 2022, page 131, lines 29-32.
[76]          Transcript of 6 July 2022, page 102, lines 13-14.
[77]          Ibid, lines 9-11.
As to section 24(1)(a) of the Act, the Applicant does have a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or the Applicant has one or more impairments to which a psychosocial disability is attributable: lumbar spondylosis with sciatica[78]; cervical spondylosis with radiculopathy[79]; asthma[80], migraines[81]; gastro-oesophageal reflux disease (GORD)[82]; mixed anxiety and depressive[83] disorder[84]; and chronic obstructive pulmonary disease (COPD)[85]. The parties did not submit and there was not sufficient evidence to find, according to s 24(1)(a), that there are other impairments, beyond those.
[78]          Exhibit 1, H6, T4, Report, Dr Nelum Perera (Paediatrics, Paediatric Neurology), page 25.
[79]          Ibid.
[80]          Ibid, n77, page 25.
[81]          Ibid.
[82]          Ibid, n77.
[83]          Ibid.
[84]          Ibid, n77, page 13.
[85]          Ibid, n75.
Section 24(1)(b) requires that a person meets the disability requirements if the impairment or impairments are, or are likely to be, permanent. Section 209 of the Act states that the Minister may, by legislative instrument, make rules called the National Disability Insurance Scheme rules prescribing matters: (a) required or permitted by this Act to be prescribed by the National Disability Insurance Scheme rules; or (b) necessary or convenient to be prescribed in order to carry out or give effect to this Act.
The National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (the “Rules”), rules 5.1 to 5.7 state:
“Part 5 When does a person meet the disability requirements?
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, self-care, 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.
5.2In 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.
Paragraphs 5.1 and 5.2 summarise section 24 of the Act.
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.
5.6 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).
5.7If 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.”
The Respondent submits that only the following impairments of the Applicant are “permanent”[86]: lumbar spondylosis with sciatica and cervical spondylosis, and anxiety and depression impairments[87]. As referred to above, Dr Fernando stated on 11 October 2018 that lumbar spondylosis with sciatica and cervical spondylosis with radiculopathy were “permanent”[88].
[86] The Act, ss 24(1)(b).
[87] Exhibit 4, Respondent’s Written Submission dated 5 August 2022, paragraphs [1.3](b)-(f), pages 1-2.
[88] Ibid, n77, page 35..
As to chronic obstructive pulmonary disease (“COPD”), Dr Perera stated that the Applicant ‘has it and it can change, with the Applicant’s symptoms under control with inhalers’[89]. That is that the COPD is likely to be permanent, in that there are no known, available and appropriate evidence based clinical, medical or other treatments that would be likely to remedy the impairment[90].
[89] Transcript of 6 July 2022, P-102, lines 13-14.
[90] National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (“The Rules”), r 5.4.
As to asthma[91], migraines[92], gastro-oesophageal reflux disease (GORD)[93], there are not sufficient statements from the health practitioners to indicate whether those impairments are likely to be permanent, where there are no known available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment[94].
[91]          Exhibit 1, H6, T4, Access Request Form, Dr Mal Fernando (General Practitioner), page 25.
[92]          Ibid.
[93]          Ibid, n90.
[94] The Rules, rule 5.4.
Dr Goki stated that the “PTSD diagnosis” ‘continued’ from in or about 2001 and that the Applicant is dealing with regular nightmares and flashbacks[95]. Dr Goki stated that that was the “main state of the diagnosis … but certainly there has been anxiety and depressive symptoms”[96]. Dr Goki stated that the “daily anxiety symptoms” range from “panic attacks, social anxiety and agoraphobia”[97]. That is that Dr Goki ‘linked’ the panic attacks, social anxiety and agoraphobia as symptoms of the ‘anxiety and depression’[98].
[95]          Transcript of 13 June 2022, page 88, lines 10-15.
[96]          Ibid, lines 25-26.
[97]          Ibid, n94, page 89, lines 22-24.
[98]          Ibid.
As to whether there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy[99] the mixed anxiety and depressive disorder[100], Dr Goki stated:
“One of the things about treatment is that so far, not a lot has been achieved with medication and psychotherapy. … [The Applicant] has been seeing Dr Julie Nos, [the] psychologist for the last eight years.”[101]
“I don’t think that the prospect of success in that sort of treatment – specific treatment for trauma is going to be successful because there is strong elements of avoidance for good reason. However, there has been some improvement in the symptoms. Medication has helped [the Applicant] to some degree with dealing with the intensity of the nightmares and flashbacks [and] frequency of it” [102].
[99] The Rules, r 5.4.
[100] Ibid, n90, page 25.
[101] Transcript of 13 June 2022, page 88, lines 32-35.
[102] Ibid, page 88 lines 44-28 and page 89 lines 1-5.
Dr Goki therefore described an impairment that varies in intensity[103]. However, as to the anxiety and depressive disorder[104], Dr Goki stated that it is likely to be permanent, where further medical treatment or review will not be required to demonstrate permanency or likely permanency, although it may continue to be treated and reviewed[105].
[103] The Rules, r 5.2
[104] Ibid, n90, H6, T4, page 25.
[105] The Rules, r 5.6.
Therefore, the impairments that are “permanent”, for the reasons above, are lumbar spondylosis with sciatica, cervical spondylosis with radiculopathy, chronic obstructive pulmonary disease (COPD)[106] and mixed anxiety and depressive disorder[107].
[106] Transcript of 13 June 2022, page 102, lines 13-14.
[107] Ibid, n90, H19, A6, page 13.
The Applicant is only able to meet the disability requirements if the impairments that are “permanent”, as specified above, 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; self-care; self-management[108].
[108] The Act, ss 24(1)(c).
Rule 5.8 of the Rules states:
“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 Respondent submits that the assessment in sub-paragraph 24(1)(c) of the Act is “avowedly functional and multi-faceted”[109] and requires “a relatively high degree of precision”[110].
[109]Exhibit 4, Respondent’s Written Submission dated 5 August 2022, paragraph [4.15], pages 11-12; citing Mulligan and National Disability Insurance Agency (2015) 149 ALD 408, at [55].
[110] Ibid.
The Respondent submits that none of the sub-paragraphs in 24(1)(c)(i)-(vi) of the Act are ‘met’[111]. The Applicant submitted on 18 September 2022[112]: “I need you to understand that due to my COPD, I can no longer mow my lawns as I get out of breath very easy. Just walking up my back stairs can get me breathing rather heavy”.
[111] Exhibit 4, Respondent’s Written Submission dated 5 August 2022, paragraph [1.3](b)-(f), pages 1-2.
[112] Exhibit 5, Applicant’s written submission dated 18 September 2022.
The Access to the NDIS Operational Guidelines of 2 May 2022 state[113]:
“Does your impairment substantially reduce your functional capacity?
Your permanent impairments needs to substantially reduce your functional capacity or ability to undertake activities in one of the following areas:
• Communicating – how you speak, write, or use sign language and gestures, to express yourself compared to other people your age. We also look at how well you understand people, and how others understand you.
• Socialising – how you make and keep friends, or interact with the community, or how a young child plays with other children. We also look at your behaviour, and how you cope with feelings and emotions in social situations.
• Learning – how you learn, understand and remember new things, and practise and use new skills.
• Mobility, or moving around – how easily you move around your home and community, and how you get in and out of bed or a chair. We consider how you get out and about, and use your arms or legs.
• Self-care – personal care, hygiene, grooming, eating and drinking, and health. We consider how you get dressed, shower or bathe, eat or go to the toilet.
• Self-management (if older than 6) – how you organise your life. We consider how you plan, make decisions, and look after yourself. This might include day-to-day tasks at home, how you solve problems, or manage your money. We consider your mental or cognitive ability to manage your life, not your physical ability to do these tasks.”
[113] Transcript of 4 November 2022, page 136, lines 11-16.
The Applicant stated in relation to communication that the Applicant ‘doesn’t have any problems with that’[114]. As to communication, the Applicant understands ‘spoken language’[115], can write[116] and understood questions asked by the Respondent in the hearing[117], therefore indicating that the specific impairments do not result in “substantially reduced functional capacity” as to “communication”[118].
[114]         Transcript of 14 April 2022, page 50, line 34.
[115]         For example, Transcript of 14 April 2022, pages 22-60.
[116]         Exhibit 5, Applicant’s written submission dated 18 September 2022.
[117]         For example, Transcript of 14 April 2022, pages 22-60.
[118] The Act, ss 24(1)(c)(i).
As to “social interaction”,[119] Dr Goki stated that the Applicant “struggles on a daily basis … and … has a lot of difficulties just out of the house and … essentially what she needs to do for that particular day … and all sort of things are necessary for … daily activities that she finds really difficult to execute[120]” with the depression and anxiety. Dr Goki further stated as to social interaction[121]:
“So there is a wide range of intensities; it depends on the situation, and it depends on the level of – there are so many variables involved. Most nights she can’t sleep properly because she has nightmares and flashbacks, then the next day she would have a lot more panic attacks. We see that she has a lot of difficulty to tolerate any interaction as they can be quite disabling. There are times she feels a bit better in less stressful situations; it can be tolerable to some degree. So it depends on the context as it varies a lot.”
[119] Ibid, ss 24(1)(c)(ii).
[120] Transcript of 13 June 2022, page 89, lines 5 - 35
[121] Ibid, page 96, lines 5-13.
The Applicant stated[122]:
“The only place I feel comfortable going is … Darren’s. I don’t feel comfortable going to the shops. I still wear a mask; mainly because I don’t want people to talk to me … and I will leave it to the last minute to go down … I put it off. … ”
[122] Ibid, n119, page 52, lines 15-17.
The Applicant does not therefore require assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in social interaction or to perform a task or actions required to undertake or participate in social interaction[123]. The impairments do not therefore result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, social interaction[124]. There is therefore a reduction in social interaction but not a substantial reduction in this functional capacity to undertake social interaction.
[123] The Rules, r 5.8(b).
[124] The Act, ss 24(1)(c)(ii).
As to learning[125], the Applicant stated that “I don’t think I have a problem with that”[126]. The Applicant, as referred to above, was able to understand verbal questions and remember relevant information[127]. The impairments do not result in substantially reduced functional capacity to undertake or psychosocial functioning in undertaking learning[128].
[125] Ibid, ss 24(1)(c)(iii).
[126]         Transcript of 14 April 2022, page 53, lines 12-13.
[127]         For example, Transcript of 14 April 2022, pages 22-60.
[128] The Act, ss 24(1)(c)(iii).
The Applicant stated that the Applicant is able to move around the home with either a walking stick or by “furniture walking”[129]. On 4 November 2022 the Applicant stated that[130]: “I walk to the shop, or the back of the shop to get the milk, and by the time I get back to my car, which is parked right out the front of the IGA, I am out of breath, I’m breathing heavy. Just walking up and down my stairs makes me do that.” The Applicant stated that the Applicant can walk some 30 metres with a walking stick or a wheelie walker[131]. The Applicant stated therefore a reduced functional capacity as to mobility as a result of the impairments. The impairments result in substantially reduced functional capacity of the Applicant if the Applicant is unable to participate effectively in the mobility with equipment[132]. However, the Applicant can go up and down the stairs[133] at the house (nine stairs)[134] using the handrail[135]. The Applicant can stand to cook at home, with a stool by the Applicant’s side[136]. The Applicant was previously able to use a lawnmower at home, but ‘had to lay down for two days, if not more, afterwards’ because of pain[137]. As referred to above, the Applicant submitted on 18 September 2022[138]: “I need you to understand that due to my COPD, I can no longer mow my lawns as I get out of breath very easy. Just walking up my back stairs can get me breathing rather heavy”. The Applicant can drive to the local shops and perform local shopping[139] and can drive to the ferry[140]. The Applicant is able to get in and out of the bath at home, without assistance from a particular device or piece of equipment or assistance from another person[141]. The occupational therapist stated the following[142]: “[The Applicant] has a shower over the bath with no rails. [The Applicant] finds standing in the bath is difficult … . [The Applicant] usually will have a bath in winter and pushes herself up on the edge of the bath.” Where the Applicant is able to get in and out of the bath[143] and walk up and down the nine stairs at home[144], unassisted by another person, equipment and/or a device, the Applicant therefore did not indicate a ‘substantially reduced functional capacity to undertake mobility’[145]
[129]         Transcript of 14 April 2022, page 53, lines 18-20.
[130]         Transcript of 4 November 2022, page 134, lines 1-3.
[131]         Ibid, lines 26-28.
[132] The Rules, r 5.8(a).
[133]Exhibit 5, Submissions of the Applicant dated 18 September 2022: “Just walking up my back stairs can get me breathing rather heavy.”
[134]         Transcript of 14 April 2022, page 53, lines 21 – 22.
[135]         Ibid, lines 20-25.
[136]         Ibid, n133, page 57, lines 28-30.
[137]         Ibid, page 59, lines 7-11.
[138]         Exhibit 5, Applicant’s written submission dated 18 September 2022.
[139]         Transcript of 14 April 2022, page 54, lines 40 – 41.
[140]         Ibid, page 55, line 1.
[141]         Ibid, n138, page 55, lines 34-36.
[142]         Exhibit 1, H26, R1, Report of Nancy Stephenson (Occupational Therapist), page 24.
[143]         Ibid, n138, page 55, lines 34-36.
[144]Exhibit 5, Submissions of the Applicant dated 18 September 2022: “Just walking up my back stairs can get me breathing rather heavy.”
[145] The Act, ss 24(1)(c)(iv).

The Applicant stated that no assistance is required from another person to get dressed or undressed, but that it “does hurt”[146]. The Applicant bathes or showers every second day[147]. Not having a bath every day, the Applicant stated, related to “a bit of depression as well”[148]. The Applicant stated that the Applicant has “vegetables” most nights; prepared by the Applicant[149]. The Applicant can make toast[150], boil an egg[151] and make “simple” sandwiches[152]. The Applicant takes the rubbish out sometimes[153]. The Applicant hangs washing on the line, after using the washing machine[154]. As to functional capacity to undertake self-care, the impairments do not result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, self-care[155].
[146]         Transcript of 14 April 2022, page 55, lines 30-33.
[147]         Ibid, lines 30-33.
[148]         Ibid, n145, page 56, lines 3-6.
[149]         Ibid, lines 40-43.
[150]         Ibid, n145, page 57, line 13.
[151]         Ibid, line 14.
[152]         Ibid, n145, page 57, line 20.
[153]         Ibid, n145, page 58, lines 12-13.
[154]         Ibid, lines 16-23.
[155] The Act, ss 24(1)(c)(v).
The Applicant manages the Applicant’s medication on a daily basis[156]. The Applicant pays all her bills[157]. The Applicant has arranged a direct debit on the mortgage on the home[158]. The Applicant opens letters and reads letters and actions whatever is required as to those letters[159]. If anything arose with Centrelink, the Applicant stated that the Applicant would be able to deal with that[160]. The impairments do not result in substantially reduced functional capacity for the Applicant to undertake “self-management”. There is not a substantially reduced functional capacity to organise daily life, to plan and make decisions, including the completion of daily tasks[161].
[156]Transcript of 14 April 2022, P-53, lines 4-5; There is a list of medication stated to be current at Exhibit 1, H17, A4, Report, Dr Nelum Perera (Paediatrics); Transcript of 14 April 2022, page 37, lines 16-22.
[157]         Transcript of 14 April 2022, page 59, line 27.
[158]         Ibid, lines 30-34.
[159]         Ibid, n 156, page 59, lines 36-38.
[160]         Ibid, lines 40-41.
[161] The Act, ss 24(1)(c)(vi).
The Applicant is not only ‘able to participate effectively in communication, social interaction, learning, mobility, self-care and/or self-management with assistive technology, equipment (other than commonly used items such as glasses) or home modifications’[162].
[162] The Rules, r 5.8(a),
The Applicant ‘usually does not require assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in communication, social interaction, learning, mobility, self-care and/or self-management or to perform tasks or actions required to undertake or participate in communication, social interaction, learning, mobility, self-care and/or self-management’[163].
[163] Ibid, r 5.8(b).
The ‘result’ is not that the Applicant is ‘unable to participate in communication, social interaction, learning, mobility, self-care and/or self-management or to perform tasks or actions required to undertake or participate in communication, social interaction, learning, mobility, self-care and/or self-management, without assistive technology, equipment, home modifications or assistance from another person[164].
[164] Ibid, r 5.8(c).
Rules 5.8(a) to (c) do not therefore indicate that the impairments of the Applicant result in substantially reduced functional capacity to undertake one or more of the relevant activities[165].
[165] The Act, ss 24(1)(c),
Lumbar spondylosis with sciatica, cervical spondylosis with radiculopathy, chronic obstructive pulmonary disease[166] and mixed anxiety and depressive disorder[167] do not therefore result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the following activities:
(i)communication;
(ii)social interaction;
(iii)learning;
(iv)mobility;
(v)self-care;
(vi)self-management.
[166] Transcript of 13 June 2022, page 102, lines 13-14.
[167] Ibid, n90, H19, A6, page 13.
As the impairments do not result in substantially reduced functional capacity to undertake one or more of the activities in sub-section 24(1)(c), the Applicant does not meet the disability requirements in s 24(1). The Applicant “meets the disability requirements” in s 24(1) of the Act only if there is accord with all of the sub-paragraphs in that sub-section, as there is an “and” after each sub-paragraph in that sub-section. The Applicant does not therefore meet the access criteria in s 21(1)(c)(i) of the Act, as there is to be ‘satisfaction’ that, at the time of considering the request, that the Applicant meets the disability requirements in section 24.
SECTION 25 OF THE ACT
The Respondent submits that the Applicant does not ‘meet’ the requirements in section 25 of the Act[168], in that the evidence does not demonstrate the provision of early intervention supports are likely to benefit the Applicant by reducing the Applicant’s future needs for support, in that the evidence does not address the early intervention supports that the Applicant requires and outcomes to be achieved in relation to functional capacity as required under section 25(1)(b) of the Act. Further, the Respondent submits that the evidence provided does not indicate that early intervention supports are met[169]. Further, the Respondent submits that the evidence provided does not indicate the early intervention supports are likely to benefit the Applicant by achieving one or more of the outcomes listed in section 25(1)(c) of the Act[170]. The Applicant stated[171]: “No, I don’t meet the criteria for early intervention … [it is only an issue in section 24] … yes … ”. Both parties therefore submitted that the Applicant does not meet the early intervention requirements in section 25 (section 21(1)(c)(ii)).
[168]         Exhibit 4, Respondent’s Written Submissions dated 5 August 2022, paragraph [3.9], pages 7-8.
[169]         Ibid.
[170]         Ibid.
[171]         Transcript, P-129, lines 29-31.
DECISION
The decision under review is affirmed[172].
[172] Section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).

I certify that the preceding 60 (sixty) paragraphs are a true copy of the reasons for the decision herein of Senior Member Katter

...............[SGD].........................................................
Associate
Dated: 12 December 2022

Dates of hearing: 14 April, 13 June, 6 July and 4 November 2022

Applicant:

Appeared via telephone

Counsel for the Respondent:

Solicitors for the Respondent:

Mr P. Nolan

Mr C. Slade (National Disability Insurance Agency)

[2022] AATA 4238

12 December 2022

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Standing

Statutory Construction

Remedies