XMFS and National Disability Insurance Agency - [2022] AATA 568

XMFS and National Disability Insurance Agency [2022] AATA 568 (30 March 2022)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2019/7945
Re:XMFS
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Dr L Bygrave, Member
Date:30 March 2022
Place:Sydney

The decision under review is affirmed.
...............................[SGD].........................................
Dr L Bygrave, Member
CATCHWORDS
NATIONAL DISABILITY INSURANCE AGENCY – access to the scheme – whether applicant meets the disability or early intervention requirements – multiple conditions including lumbar spondylosis with bilateral foraminal stenosis, degenerative disc disease, facet joint arthritis, chronic pain syndrome, adjustment disorder with depressed mood, severe obstructive sleep apnoea, type 2 diabetes mellitus, morbid obesity, asthma, chronic obstructive pulmonary disease – whether impairments are permanent – whether impairments result in substantially reduced functional capacity – whether provision of early intervention supports is likely to reduce the applicant’s future needs for supports in relation to disability – decision under review affirmed
LEGISLATION
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)
National Disability Insurance Scheme Act 2013 (Cth) ss 3, 4, 21-25, 209
CASES
FBJV and NDIA [2021] AATA 913
Madelaine and NDIA [2020] AATA 4025
Mulligan v National Disability Insurance Agency [2015] FCA 544
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634
SECONDARY MATERIALS
Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006 ([2008] ATS 12)
Operational Guideline – Access to the NDIS
REASONS FOR DECISION
Dr L Bygrave, Member
30 March 2022
INTRODUCTION

The Applicant is a 59-year-old female who has made an application to become a participant in the National Disability Insurance Scheme (the NDIS).
On 6 September 2019, a delegate of the Chief Executive Officer (CEO) of the National Disability Insurance Agency (the NDIA) determined the Applicant did not meet the access criteria in sections 21–25 of the National Disability Insurance Scheme Act 2013 (Cth) (the Act). The Applicant subsequently requested an internal review and the NDIA affirmed the decision on 15 November 2019 (the internal review decision).
On 30 November 2019, the Applicant applied to the NDIS Division of the Administrative Appeals Tribunal (the Tribunal) for review of the internal review decision.
The matter was heard in Sydney on 6–8 December 2021 with the parties and witnesses participating via videoconference. The Applicant was represented at the hearing by her son; she attended the hearing and gave oral evidence with the support of a disability advocate.
RELEVANT LEGISLATION
The objects and principles set out in the Act provide guidance on interpreting the statute.
The objects of the Act listed in section 3 include giving effect to Australia’s obligations under the Convention on the Rights of Persons with Disabilities and facilitating the development of a nationally consistent approach to the access to supports for people with disability. Paragraph 3(3)(b) of the Act further states that, in giving effect to the objects of the Act, regard is to be had to the need to ensure the financial sustainability of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading XMFS and National Disability Insurance Agency

Details

AGLC: XMFS and National Disability Insurance Agency [2022] AATA 568
Case: [2022] AATA 568
Decision Date: 30 March 2022

CaseChat Overview and Summary

This matter concerned an application to the National Disability Insurance Scheme (NDIS) by an applicant with multiple medical conditions, including lumbar spondylosis, chronic pain syndrome, adjustment disorder with depressed mood, obstructive sleep apnoea, type 2 diabetes, and morbid obesity. The applicant sought access to the NDIS, and the National Disability Insurance Agency (NDIA) had refused her application. The applicant sought review of this decision before the Tribunal.

The Tribunal was required to determine whether the applicant met the eligibility criteria for the NDIS under either section 24 (disability requirements) or section 25 (early intervention requirements) of the National Disability Insurance Scheme Act 2013 (Cth). Specifically, for section 24, the Tribunal had to consider whether the applicant had a disability attributable to one or more impairments that resulted in a permanent and substantial reduction in functional capacity. For section 25, the Tribunal needed to assess whether the provision of early intervention supports was likely to reduce the applicant’s future need for disability-related supports.

The Tribunal considered the definition of "disability" within the NDIS framework, which focuses on a reduction or loss of ability to perform an activity resulting from an impairment. It noted that an impairment is commonly understood as a loss of, or damage to, a physical, sensory, or mental function. The Tribunal found that the applicant's various medical conditions, as supported by medical reports and her own evidence, constituted impairments. However, the Tribunal was not satisfied that these impairments resulted in a permanent and substantial reduction in functional capacity as required by section 24, nor that early intervention would reduce future disability support needs under section 25.

Consequently, the Tribunal affirmed the NDIA's decision, finding that the applicant did not meet the access criteria for the NDIS under either section 24 or section 25 of the Act.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The evidence before the Tribunal comprises:·statements written by the Applicant and her oral evidence at the hearing;·written reports and oral evidence from medical practitioners who have treated and/or assessed the Applicant; and·the written report and oral evidence from an occupational therapist.The Applicant’s evidence The following evidence is from the Applicant’s written statements dated 4 April 2020 and 11 November 2021, and her oral evidence to the Tribunal on 6, 7 and 8 December 2021. The Applicant lives alone with her dog in a caravan with a connected annex in a caravan village that is situated in a small regional town in New South Wales (NSW). She owns the caravan and annex but is required to pay rent and utilities to the owners of the caravan village. She is currently in receipt of the disability support pension. The Applicant has three adult sons. The Applicant’s youngest son lives approximately 45 minutes’ drive from her home and visits once a week to assist her with chores such as putting out the bins and walking the dog. Her two older sons live interstate: one of these sons assists her with complex administrative tasks and represented her at the Tribunal hearing. The Applicant’s elderly parents live 15 minutes’ drive from her home but are unable to provide her with ongoing support due to their own ‘complex health issues’.[2] The Applicant was in a long-term relationship that ended in 2019 although she continues to have limited contact with her ex-partner. [2] Exhibit A16. The Applicant was employed as a customer service officer until she retired due to medical reasons in 2016. She also operated a karaoke and DJ business doing regular gigs until 2015 and conducted a weekly community radio segment until 2018. She ceased these activities due to her ‘deteriorating’ disabilities.[3][3] Exhibit A15. Consistent with reports from her treating general practitioner, the Applicant stated that her current medical conditions are:Primary conditions - Lumbar spondylosis with bilateral foraminal stenosis, degenerative disc disease, and facet joint arthritis- Chronic pain syndrome- Adjustment disorder with depressed mood- Severe obstructive sleep apnoeaSecondary conditions- Type 2 diabetes mellitus- Morbid obesity- Asthma and Chronic Obstructive Pulmonary Disease (COPD).[4][4] Applicant’s Statement of Position, 12 November 2021, paragraph 5. The Applicant has undertaken treatment for these conditions. She sleeps using a ‘CPAP [continuous positive airway pressure] machine’ for her obstructive sleep apnoea although she has difficulties using the machine due to experiencing pain when she lies on her back. She has had total knee replacement surgery in her right and left knees. She is seeking to reduce her weight following a diagnosis of diabetes in February 2021. She takes opioid medication to treat her chronic pain and commenced using CBD (cannabidiol) oil in August 2021, which ‘doesn’t take away the pain, it just helps [her] deal with the pain differently’.[5] She takes medication to treat her depression and she visited a psychologist briefly in 2018. The Applicant confirmed that she has not seen a pain specialist but said that it was not possible for her to travel for two hours from her home to the large regional town where the nearest pain specialist clinic is located. She does some strengthening exercises for her knees and back seated in her lounge chair.[5] Exhibit A16.

Decision

Reasons for decision

As I am satisfied the Applicant does not meet the access criteria in either sections 24 or 25 of the Act, I find the internal review decision made on 15 November 2019 is correct.DECISION The decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

Ms ‘G’ also told the Tribunal her opinion that the Applicant ‘has chronic impairments in her functional capacity’ that affects her mobility, social interaction and self-management was based on her interpretation of the medical evidence of Dr ‘A’ that the Applicant’s medical conditions are ‘not likely to get better’ and are ‘progressive’.[85] She stated that the Applicant’s ‘mobility has a significant functional impact…[and] that’s impacting the social interactions’.[86][85] Oral evidence of Ms ‘G’, 7 December 2021.[86] Oral evidence of Ms ‘G’, 7 December 2021.CONSIDERATION As set out in paragraph 9, the sole issue for determination by the Tribunal is whether the Applicant satisfies the access criteria in either section 24 or section 25 of the Act.Section 24 of the Act: the disability requirements To satisfy the disability requirements in subsection 24(1) of the Act, the Applicant must meet all the conditions in paragraphs 24(1)(a) to (e). I now consider each of these requirements.Paragraph 24(1)(a): does the Applicant have a disability? Paragraph 24(1)(a) of the Act requires that the Applicant 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. Consistent with Mortimer J’s decision in Mulligan v National Disability Insurance Agency,[87] Chapter 8.1 of the Access Operational Guideline includes the following paragraphs:[87] [2015] FCA 544 at [15]–[16].The term ‘disability’ is described in Article 1 of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) as follows:“Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.”For the purposes of becoming a participant in the NDIS the focus of ‘disability’ is on the reduction or loss of an ability to perform an activity which results from an impairment.The term ‘impairment’ commonly refers to a loss of, or damage to, a physical, sensory or mental function.The narrower definition of ‘disability’ employed by the NDIS seeks to target those people with disability who have a significant impairment to their functional capacity. This functional definition of disability focuses on outcomes for people with disability that are in the most need (Explanatory Statement to the Becoming a Participant Rules).The NDIA must be satisfied that a person has a disability that is attributable to one or more impairments which results in a reduction or loss of an ability to perform certain activities.…Whether a prospective participant has a disability attributable to an impairment is a question of fact to be determined on the balance of available evidence, including their diagnosis. [emphasis in original] I consider these paragraphs set out that a person has a disability within the meaning of paragraph 24(1)(a) of the Act where the available evidence shows that:·they have an impairment, which is a loss of, or damage to, a physical, sensory or mental function; and·their impairment/s are the cause of their reduction or loss of ability to perform an activity.