Yang and National Disability Insurance Agency

[2021] AATA 2666

Yang and National Disability Insurance Agency [2021] AATA 2666 (4 August 2021)

Division:National Disability Insurance Scheme Division

File Number(s):      2020/1633

Re:Ding Yang  

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Member I Thompson

Date:4 August 2021

Place:Adelaide

The Tribunal affirms the decision under review.

..............................[Sgnd]..........................................
 Member I Thompson

Catchwords

NATIONAL DISABILITY INSURANCE SCHEME – access to the scheme – disability requirements – early intervention requirements – consideration of medical history – decision affirmed

Legislation

Administrative Appeals Tribunal Act 1975

National Disability Insurance Scheme Act 2013

National Disability Insurance Scheme (Becoming a Participant) Rules 2016

Cases

Mulligan v National Disability Insurance Agency (2015) FCA 544

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

Secondary Materials

Operational Guideline – Access to the NDIS

REASONS FOR DECISION

Member I Thompson

4 August 2021

INTRODUCTION

1. The applicant, Ding Yang, made an access request to the National Disability Insurance Agency (NDIA) to become a participant in the National Disability Insurance Scheme (NDIS).  Mr Yang was 36 years old when he made his access request.

2. Mr Yang’s request for access to the NDIS listed his impairment as a “psychotic illness with co-morbid cluster A personality disorder”.[1] 

   [1] Exhibit 1, T6, p 26

3. The NDIA declined the request in a letter to Mr Yang advising that he did not meet the requirements to access the NDIS, in particular the requirement that an impairment must be permanent, or likely to be permanent.[2] Mr Yang sought an internal review of that decision which was subsequently affirmed by a delegate of the NDIA.[3]

   [2] Exhibit 1, T7, p 31

   [3] Exhibit 1, T2, p 10

4. The NDIA was satisfied that Mr Yang meets the age and residency criteria outlined in ss 22 and 23 of the National Disability Insurance Scheme Act 2013 (the NDIS Act), however it was not satisfied that he meets the disability or early intervention requirements in ss 24 and 25 of the NDIS Act. Mr Yang applied to the Tribunal for a review of that decision.

5. At the hearing in the Tribunal, Mr Yang attended by telephone and was self-represented. The NDIA was represented by counsel, Mr Lipari. The Tribunal received in evidence numerous documents which comprised medical reports, medical notes, and other documents relating to Mr Yang.

6. Mr Yang’s mental health history includes a referral for psychiatric assistance in 2011 for depression and recent treatment for possible depression following the break down in his second marriage.

   THE NATIONAL DISABILITY INSURANCE SCHEME (NDIS)

7. In order to qualify as a participant in the NDIS, an applicant must meet the criteria outlined in s 21 of the NDIS Act. In addition to age and residence requirements, a person must meet the disability requirements in s 24(1) or the early intervention requirements in s 25.

8. In this case there is no dispute that Mr Yang meets the age and residence requirements. Generally, the age requirements are met if the person was under 65 years old when an access request was made. The question is whether he meets the disability requirements under s 24, or the early intervention requirements under s 25 of the NDIS Act.

9. Disability requirements – Section 24 of the NDIS Act provides that a person meets the disability requirements if:

   (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 to one or more impairments attributable to a psychiatric condition; 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, 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; 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 subs (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.

10. Early intervention requirements – Section 25(1) of the NDIS Act provides that a person meets the early intervention requirements if:

    (1)   A person meets the early intervention requirements if:

    (a)    the person:

    i)has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent; or

    ii)has one or more identified impairments that are attributable to a psychiatric condition and are, or are likely to be, permanent; or

    iii)is a child who has developmental delay; and

    (b)    the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person's future needs for supports in relation to disability; and

    (c)    the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by:

    (i)mitigating or alleviating the impact of the person's impairment upon the functional capacity of the person to undertake communication, social interaction, learning, mobility, self-care or self-management; or

    (ii)preventing the deterioration of such functional capacity; or

    (iii)improving such functional capacity; or

    (iv)strengthening the sustainability of informal supports available to the person, including through building the capacity of the person's carer.

    Note: In certain circumstances, a person with a degenerative condition could meet the early intervention requirements and therefore become a participant.

11. The concept of impairment, rather than a definition of disability, is central to the threshold provisions such as s 24. In Mulligan v National Disability Insurance Agency[4] the Federal Court stated at [56]:

    No decision maker needs to be satisfied a person’s impairment is ‘serious’, or more serious than another people.  No qualitative judgments in that sense are called for.  Rather, the legislative scheme is based on a functional, practical assessment of what a person can and cannot do.  Critically, the scheme makes detailed provision for that assessment, and it is enough for a person to have substantially reduced functional capacity in relation to one activity. 

    [4] (2015) FCA 544

12. Under s 209 of the NDIS Act the Minister has made rules about becoming a participant in the scheme. The National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (the NDIS Rules) are relevant to this case.  The NDIS Rules form part of the legislation. 

13. The CEO of the NDIA has made Operational Guidelines for staff in exercising their functions under the NDIS Act. Unless there is good reason not to do so, the Operational Guidelines represent government policy and should be applied by the Tribunal.[5] The Operational Guideline – Access to the NDIS provides information and guidance regarding the disability requirements (s 8) and the early intervention requirements (s 9) and will be referred to later in this decision.[6]

    [5] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.

    [6] Exhibit 1, T13, Operational Guideline – Access to the NDIS, p 82

    ISSUES

14. The NDIA does not accept that Mr Yang satisfies the disability requirements in s 24 of the NDIS Act or the early intervention requirements in s 25 of the NDIS Act.

15. Before the hearing commenced the NDIA provided a Statement of Facts, Issues and Contentions in which the primary submission was that the Tribunal should not find that Mr Yang has impairments which are permanent within the meaning of s 24(1)(b) of the NDIS Act and nor, therefore, that he meets the disability criteria. It was submitted that the early intervention criteria are not met because Mr Yang does not satisfy the criteria for permanence under s 25(1)(a) of the NDIS Act. While Mr Yang has a diagnosis of a mental health condition, the NDIA contended that his impairments do not meet the “high threshold” set by the legislation.[7] The NDIA maintained its position in closing submissions at the hearing.

    [7] Exhibit R1

16. The principal issue in dispute was whether Mr Yang has permanent impairments.

    EVIDENCE

17. Mr Yang gave evidence by telephone which he affirmed to be true. He told the Tribunal that he has been married twice and is now single. He said he had been living alone from 2017 until recently when he moved into a single room in temporary, shared accommodation. With tertiary qualifications in computer sciences and also in commerce and finance, Mr Yang has worked at universities as a teaching associate. His last paid employment was about 3 years ago when he was marking tertiary examination papers.

18. Presently, Mr Yang’s daily activities include voluntary teaching to international students and providing assistance with translation. He studies the Bible and participates in small church groups which include communications online. He has done some casual work carrying furniture for an op shop.

19. Mr Yang referred to his second marriage as one that was arranged by his family. Following the breakdown of the marriage his mental health deteriorated in 2017. At the time of separation his wife was pregnant. Subsequently he was unaware of the gender or the name of the child. Paid employment came to an end at about that time. He was at risk of homelessness and was eventually placed in social housing where he lived alone for about 3 years.

20. Mr Yang attended appointments with Eastern Community Mental Health Centre between mid 2018 and November 2019. He told the Tribunal that he had not taken medication during his involvement with that service other than one dose of Risperidone. He said that he was concerned that medication might solve one problem but cause other problems with side effects. He sought advice from his father who suggested that he should not take the medication. On one occasion that he used the medication he found that the side-effects were unpleasant and included drowsiness. That was similar to the outcome which his father had predicted. He was asked about other medications, Olanzapine and Paliperidone, which were apparently discussed with a psychiatry registrar and which he thought that he had tried. He was provided with information by a psychiatry registrar about avenues for psychosocial support[8], however it is not clear that he sought or obtained that kind of assistance. Subsequently he has discussed medication with his general medical practitioner and his approach is to take medication if it is needed in an emergency.

    [8] Exhibit 1, T8, p 33

21. Mr Yang confirmed in evidence that he was feeling better and feeling healthy by the end of 2019 when he had completed the appointments with the mental health practitioners. By that time he appears to have accepted the permanency of breakdown of his second marriage and he was assured that the child of the marriage was being cared for appropriately. The feelings of insecurity which he had shortly after the marriage breakdown were somewhat more resolved.

22. Under a GP mental health plan from October 2020 Mr Yang told the Tribunal that he has consulted a psychologist twice. He has been guided by his general medical practitioner whom he consults every 2 to 4 weeks in relation to referrals to psychiatrists. Dr Hoimes is a psychiatric registrar at the Eastern Community Mental Health Centre, whom the applicant last saw in January 2021, or possibly a little earlier, when his psychiatric care was closed with a referral back to his general medical practitioner.

23. Mr Yang has been treated by various doctors at the general medical practice that he attends. He agreed that Dr Imgraben is the practitioner at that surgery who has had the continuing care and oversight.

24. Mr Yang provided two statements of lived experience.[9] He referred to a diagnosis of schizophrenia and bipolar disorder in 2011. In evidence he explained that the diagnosis was made by a practitioner in China to whom he was referred by his parents because they thought he was having problems. He thinks his parents had problems which he may have inherited. At one stage he described it as a generational curse, and he referred to difficulties which his father apparently had at a young age. He said that as he has inherited a mental condition he has contemplated changing his surname. He said he was having symptoms when he was about 18. It was a reaction to pressure at home, in the community and amongst fellow students  some of whom became suicidal as they could not handle the pressure of study. While he has had suicidal ideation is in the past, he does not have them presently and he attributes that improvement to the stability in his accommodation. He feels confident that he now knows where to seek help if he has suicidal thoughts again.

    [9] Exhibit A9

25. In a document titled “Lived Experience Statement – adverse effect on Max Ding Yang”[10]  the applicant highlighted aspects of his upbringing in China and his work and voluntary activities after he moved to Australia together with details about his family life, cultural norms, involvement with churches and his need for support in daily life. In evidence he discussed at length those issues mainly from a perspective of how others might perceive him rather than as a self-analysis of his conduct in social or community situations. In the document he included a list of supports that he needs from the NDIS which were: –

    [10] Exhibit A12

    “assistance with dressing and personal grooming

    help with showering and dishwashing, empty recycling, wiping toilet lids/seats

    meal cooking preparation skills improvement

    making his bed/bed making

    wound care (attacked by aboriginal kids before when walking alone on foot at night)

    assistance with mobility and walking (no vehicle or possession divided after separation)

    fingernail care and foot care (walking on foot purely on a daily basis)

    vacuum cleaning, fridge cleaning if needed and tidying up/cleaning up garage, cleaning floor/carpet cleaning, spot cleaning remove the stain without damaging the bead work

    assistance to attend appointments, shopping or social outings

    continence aids and advice

    respite – in home or in the community

    medication management

    palliative care

    assisted home care, dementia support, home maintenance, house – keeping, meal   prep plans, meal prep ideas, nursing services etc”[11]

    [11] Exhibit A12

26. Mr Yang was not entirely clear in his evidence about the need for these supports. It seems that they are not generally relevant now to his current situation which is, nonetheless, perceived by him to be a short term scenario. He told the Tribunal that he may need help in the future when, perhaps, he might be living alone and if the suicidal thoughts recur. In those circumstances he envisages that he will be preoccupied with mental health services and  he would  be unable to attend to his daily activities including self-care and domestic tasks.

    MEDICAL EVIDENCE

27. Dr Raj, general medical practitioner, completed an NDIS supporting evidence form on 28 October 2019. He confirmed details of Mr Yang’s primary impairment as follows – psychotic illness with comorbid cluster, personality disorder, uncertain whether the impairment is likely to be lifelong, might be long-term condition, currently seeing psychiatrist.[12] 

    [12] Exhibit 1, T6, p 26

28. Dr Peter Imgraben, general medical practitioner, referred Mr Yang to a psychiatrist, Dr Chow, in August 2018 because of symptoms of depression. At that stage Mr Yang had undergone psychology reviews over the previous 8 months without a resolution of his symptoms.[13] There was no evidence from Dr Chow.

    [13] Exhibit 1, T3, p 18

29. It appears that the psychology reviews were conducted by Mr Lukowicz. His report dated 17 January 2018 noted that Mr Yang attended all sessions scheduled under a mental health care plan. Mr Lukowicz concluded that Mr Yang was not exhibiting symptoms of clinical depression, however he was experiencing significant anxiety which would warrant a diagnosis of generalised anxiety disorder associated with difficulties in his gradually deteriorating relationship with his wife.[14]

    [14] Exhibit A13

30. Mr Yang received mental health services which were provided by the Eastern Community Mental Health Service, attached to the Royal Adelaide Hospital, between August 2018 and November 2018. Progress notes regarding his attendances were included in the documentary evidence.[15] Dr Imgraben referred Mr Yang to the mental health service following the breakdown of his second marriage in 2017. Prior to the referral, Mr Yang had been consulting a psychologist for about 8 months without resolution of his symptoms. From the initial consultation with the Eastern Community Mental Health Service, medication was recommended with continuing reviews. Initial assessment suggested likely psychosis and he was placed on acute home-based care with monitoring. There was no evidence of psychotic phenomena during home visits. In fact he declined medication. In a progress note dated 7 September 2018 it was recorded that Mr Yang: – “…is a gentle man who is either on the autistic spectrum disorder or schizotypal personality disorder who experiences quasi—psychotic phenomena when he is distressed.” One week later a progress note, dated 14 September 2018, recorded that Mr Yang rejected the suggestion of an interview with a Mandarin speaking psychiatrist. He was continuing to decline medication, and a neuropsychological assessment was planned. A further review on 4 October 2018 noted that a referral had been made for neuropsychological assessment and further education about mental illness and possible medications. The strategy recorded in progress notes on 1 November 2018 was to continue to engage with Mr Yang for 6 months – “with the goals of psycho education regarding medications and enrolling to take medications as well as monitoring for further exacerbations in his symptoms.”

    [15] Exhibit A15

31. Dr Legg, psychiatry registrar, Eastern Community Mental Health Centre wrote two letters following Mr Yang’s referral to that service in August 2018. In her letter to Dr Imgraben on 28 May 2019, Dr Legg noted that: – “there has been diagnostic uncertainty but low grade psychotic symptoms have been consistently reported in medical reviews to date. He has consistently declined medication other than a very brief trial of risperidone which Max reportedly stated caused slowness of movement. There is a prior history of a depressive illness (2011) which was treated in China.”[16]  Dr Legg’s impression was a likely psychotic illness with co—morbid cluster A personality disorder. The theme was that Mr Yang was not coping after marital breakdown, believes he has a mental health problem but unsure about the nature of it, tries to avoid medication, and is seeking assistance from churches.

    [16] Exhibit 1, T5, p 22

32. In her subsequent letter to Dr Imgraben on 18 November 2019 Dr Legg summarised the history of Mr Yang’s attendance at the mental health clinic and his current request to be discharged. Mr Yang had confirmed that he was feeling better, he was healthy, he did not need medication and he considered that: – “he was subject to short term pain following the break down in his marriage but he has got through this now. He still expressed uncertainty regarding whether he should rekindle the relationship with his ex wife, but does not intend to do so at this stage….He is yet to find employment, but stated that he is putting his health first and did not seem too concerned regarding his lack of work.”[17] Dr Legg noted that Mr Yang did not see a need for continuing appointments following the consultations in the previous 12 months, he remained strongly opposed to medication and regarded his mental state as stable. Dr Legg maintained her diagnostic impression from her first report and referred to his mental state is essentially unchanged. Accordingly, his care was transferred back to his general medical practitioner. Dr Legg referred to the stability of Mr Yang’s mental state, his continuing unwillingness to take medication and the fact that: – “there are no grounds for more restrictive treatment to facilitate medication and ongoing attendance at our clinic at this time.”[18] 

    [17] Exhibit 1, T8, p 33

    [18] Exhibit 1, T8, p 33

1. Dr Usman Mohy-ud-din, psychiatric registrar, Eastern Community Mental Health Centre 29 November 2018 provided a conclusion about Mr Yang in these terms: – “Low-grade psychotic illness, not sufficient evidence for intrusive treatment, low risk of harm to himself or to others.” [19] He considered that the appropriate course would be to engage with Mr Yang over a period of 6 months with goals of psycho education regarding medication as well as monitoring for any further exacerbation.

   [19]Exhibit A15

2. Progress notes dated 31 January 2019 reported what appears to be the results of the final consultation, in particular that Mr Yang was taking Risperidone at night, was still awaiting neuropsychological assessment because of staffing issues, had seen a psychologist for 6 sessions in the last year and did not think he required any further psychology consultations. The diagnostic impression was recorded as: – “residual persecutory beliefs on a background of psychosis and paranoid delusions and pre-morbid paranoid personality.”[20]

   [20] Exhibit A15

3. A report written by Dr Hoimes, psychiatry registrar at Eastern Community Mental Health provided a summary: –

   “Mr Ding Yang who prefers to be known as Max is a 35-year-old man of Chinese ancestry who lives alone in rented unit and is supported financially by his parents overseas, his own savings and Centrelink payments. He has been married twice with Max reporting both marriages short lived and believed that was used by previous wives to obtain and Australian Visa. Max is an Australian citizen. He has a child from his second marriage whom he has never met. He has a Masters degree in finance and commerce which he completed in Australia. He also has a computer science degree he obtained in China. He reports that he last worked in 2016 as a university tutor. Identifies as a Jehovah’s witness.

   Max was referred to our service in August 2018 with concerns regarding his mental state. There has been diagnostic uncertainty but low-grade psychotic symptoms have been consistently reported in medical reviews to date and primary psychotic illness (schizophrenia) with co-morbid Cluster A personality disorder is the current working diagnosis. There is a prior history of a depressive illness (2011) which was treated in China.” [21]

   [21] Exhibit A7

4. A mental health care plan was developed for Mr Yang by a general medical practitioner on 13 October 2020. It included a referral  to a psychologist for an initial six sessions of psychological therapy.[22] The mental health diagnosis recorded in the GP mental health plan is stress and the mental status examination noted that Mr Yang’s mood was anxious, his thought processes were goal directed and his thought content was sensible. The presenting issue was recorded as mild anxiety/depression. The identified goals for Mr Yang were: – “to learn and apply strategies to assist with optimal daily functioning, meditation and relaxation techniques.” In addition to the referral to a psychologist, further action included a review of the plan with a nurse and general medical practitioner in 3 months or after 4 weeks if needed.[23] Mr Yang wrote in an email that the psychologist was assisting him to address the issues which related to a police matter, family separation, religious issues and  employment. [24]

   [22] Exhibit A6

   [23] Exhibit A4

   [24] Exhibit A5

   CONSIDERATION

5. The provisions of s 24 of the NDIS Act have been set out earlier. In order to become a participant in the NDIS, Mr Yang must meet all of the requirements which are set out in paragraphs (a) to (e) of s 24(1).

   Whether Mr Yang has a disability within the meaning of Section 24(1)(a) NDIS Act

6. The Tribunal is satisfied by the medical evidence that Mr Yang has a disability that is attributable to an impairment arising out of a psychiatric condition.

   Whether Mr Yang’s impairment is permanent or likely to be, permanent within the meaning of Section 24(1)(b) NDIS Act

7. In relation to the permanency of impairments, the NDIS Rules set out the following:

   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. 

8. Progress notes written by a psychiatry registrar at the Eastern Community Mental Health Service on 29 November 2018 provide a summary of Mr Yang’s presentation and assessment at that time. They are reproduced in some detail as they generally accord with the picture which Mr Yang portrayed in his evidence, more than a year later, at this hearing.

9. The progress notes record in part that Mr Yang: –

   “…reports that he had issues with depression in the past, but not anymore. He does not believe that he has a mental illness and so does not want to take any medications. He reports that his parents had sent him to a military background uni in China when he was 18. This impacted his mental health very much and he got depressed. He reports that he used to beg to his parents to let him change the uni, but neither parents nor the uni allowed him to do that. He had to do military drill every morning, and they were treated very strictly there. But since coming to Australia, he believes that he has been doing well with the exception being when his marriage broke up last year. He alleges that his ex-wife falsely accused him of DV, and subsequently police took an IVO to protect her. He was never able to see his newborn baby because of IVO and does not know whether it’s a boy or a girl. His parents had flown from China to see his newborn baby, but they were not allowed to see the baby either…

   Max reports sleeping well at nights and also states that his mood has been stable. He is not feeling depressed anymore but is worried about not being able to find a job due to his criminal history. He denies feeling hopeless and helpless, and also denies any feelings of worthlessness. He reports good energy levels and participates actively in local church group meetings. He denies any paranoid ideation or persecutory beliefs, and does not believe that someone is conspiring against him. He does not think that he is being watched by hidden cameras and also does not think that someone follows him. He denies any thoughts of harming self or others and also denies any intrusive thoughts. He is keen to be employed again and is applying for some jobs. He reports seeing his ex-wife on Rundle Mall yesterday but he did not approach her. He states that he is aware that he cannot approach her or attempt to speak to her due to IVO.”[25]

   [25] Exhibit A15

10. The notes of the mental state examination included these comments about Mr Yang:-

    “forthcoming and cooperative with interview; engaging well and rapport was well-established; spontaneous speech of a bit increased rate, but normal tone and volume; mood was reported as good; affect was generally reactive; underlying mild anxiety;  concrete and over-inclusive thinking; a bit tangential at times; some residual persecutory beliefs, but no overt paranoia; no self harm or suicidal or homicidal thoughts; nil perceptual disturbances elicited; fully alert and conscious; limited insight.”[26]

    [26] Exhibit A15

11. In giving evidence Mr Yang was forthcoming and cooperative. His speech was coherent and sometimes animated. In areas where there was some suggestion of persecutory beliefs, he was sometimes tangential, rapid and expansive with his comments. Clearly he understood the questions put to him by the Tribunal and by Counsel. In evidence he maintained his views about the limitation of medical treatment for his condition. Generally his view is that medication prescribed by a doctor may be useful to relieve symptoms but will not solve the cause of the problems. In his opinion his problems are inherited and do not require medication. The medical progress notes between August 2018 and February 2019 indicate that Risperidone was planned and prescribed, but nonetheless declined other than once.  The notes indicate that medical advice was given with reassurances about the medication together with options of other choices of antipsychotic medication. The notes also indicate that a neuropsychological assessment was envisaged, but it appears not to have eventuated because of staffing issues.

12. At the completion of the mental health consultations Dr Hoimes summarised Mr Yang’s situation in this way: –

    “Treatment with medication has been recommended in the past but was not well tolerated. Max declines any medication treatment for his mental illness at the moment. Further treatment could be offered if Max requests it, in the form of medication and psychological therapy. There is no indication for compulsory treatment at this stage. We are in the process of considering closure of his care to the Eastern Community Mental Health at the moment, but Max can be re-referred if required in future.”[27]

    [27] Exhibit A7

13. The mental health care plan instituted in October 2020 identifies further treatment options which include cognitive behavioural therapy and relaxation techniques, and consultations with a doctor, nurse and psychologist.[28] 

    [28] Exhibit A4

14. Dr Imgraben completed an evidence of psychosocial disability form for the NDIS on 17 March 2020 in which he referred to a likely diagnosis of schizophrenia in 2018.[29] Dr Imgraben, who is a general medical practitioner, noted  that Mr Yang’s impairment caused by his mental health condition is likely to be permanent. However there is no other medical evidence which supports that conclusion.  In response to the question whether there are any known, available and appropriate evidence-based clinical, medical or other treatments likely to remedy the impairment, Dr Imgraben noted that medication would be likely to improve Mr Yang’s  thought processes which were affected by distraction and possibly delusional processes. Significantly, Dr Imgraben reported that Mr Yang is never willing to take prescribed psychiatric medication, while otherwise being cooperative with health services and wrote: – “medication is likely to improve thought process, distraction, perhaps delusional thought process.”. Dr Imgraben recorded that Mr Yang does not have a significant problem with social interaction and self-management, and there is no issue for his self-care, communication, learning and mobility. He reported that Mr Yang usually cooperates with health services although he refuses medication. He considered that Mr Yang is capable of part-time work, and he does not behave irresponsibly or offensively. In cross examination Mr Yang recalled that he was present when Dr Imgraben completed the form.  Mr Yang acknowledged that he provided Dr Imgraben with details about his daily activities and level of functioning which have been recorded in the form.

    [29] Exhibit 1, T10, p 36

15. In the supporting evidence section of Mr Yang’s NDIS access request, Dr Raj wrote that it is uncertain whether Mr Yang’s impairment will be a lifelong or long-term condition.[30]

    [30] Exhibit 1, T6, p 24

16. On consideration of the evidence the Tribunal finds that Mr Yang’s impairment is not permanent within the meaning of s 24(1)(b) of the NDIS Act and the Rules. The medical reports which have been summarised indicate clearly that medication has been recommended to Mr Yang to treat his impairment and he has declined to accept and implement the recommended treatment. It is also apparent that treatment is still planned and continuing under a mental plan through the auspices of Mr Yang’s general medical practitioner. It is acknowledged that the impact of Mr Yang’s psychiatric impairment may fluctuate and there will be further support and treatments available for Mr Yang if they are sought and required. Based on the current evidence, however, the Tribunal is not satisfied that Mr Yang has availed himself of all known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment and is therefore not satisfied his impairment is permanent within the meaning of s 24(1)(b) of the Act.

17. The Tribunal finds that Mr Yang’s impairment arising out of a psychiatric condition impairment is not permanent within the meaning of s 24(1)(b) of the NDIS Act.

    Section 24(1)(d) – Social or Economic Participation

18. Section 8.4 of the Operational Guideline provides in part that:

    This disability requirement does not require a person's impairment to reduce, substantially reduce or affect to any degree their social or economic participation. Rather, the impairment merely needs to affect the person's social or economic participation. Therefore, people who retain substantial capacity for social or economic participation may still satisfy this disability requirement (see Mulligan and NDIA [2015] AATA 974 at [140]).[31]

    [31] Exhibit 1, T13, Operational Guideline – Access, p 99

19. The Tribunal finds that Mr Yang meets the requirements of s 24(1)(d) of the NDIS Act as his impairments affect his capacity for economic participation.

    DISABILITY REQUIREMNTS - CONCLUSION

20. Mr Yang meets the age requirements under s 22 and the residence requirements under s 23 of the NDIS Act.

21. Mr Yang meets the requirements under s24(1)(a) and s 24(1)(d) of the NDIS Act.

22. Mr Yang does not satisfy the requirements under s 24(1)(b) of the NDIS Act. The impairment arising out of a psychiatric condition impairment must be permanent or likely to be permanent for consideration of the activities specified in s 24(1)(c). In any event, Dr Imgraben did not record a substantial reduction in functional capacity or psychosocial functioning in any of those activities.

23. Mr Yang must satisfy all the requirements in s 24(1) in order to meet the disability requirements to become a participant in the NDIS. In view of the Tribunal’s finding that he does not satisfy paragraph (b) of the subsection it is not necessary to determine if he satisfies paragraph (e) regarding support under the NDIS for a person’s lifetime.

    EARLY INTERVENTION REQUIREMENTS

24. Section 25 of the NDIS Act sets out the requirements for access to the NDIS under the early intervention criteria. Those provisions have been set out earlier.

25. Section 2.5(b) of the NDIS Rules includes the following passage about the rationale for the early intervention requirements as an alternative to accessing the scheme through the disability requirements: – “… A person can access the NDIS through the early intervention requirements without having substantially reduced functional capacity. Instead, the early intervention requirements consider the likely trajectory and impact of a person’s impairment over time and the potential benefits of early intervention on the impact of the impairment on the person’s functional capacity.”

26. As already discussed and determined, Mr Yang’s impairment is not permanent or likely to be permanent and therefore s 25(1)(a) of the NDIS Act is not satisfied. Accordingly, Mr Yang cannot fulfill the requirements for early intervention to enable him to become a participant in the NDIS.

    CONCLUSION

27. As discussed in these reasons the Tribunal is not satisfied that Mr Yang’s impairment is permanent within the meaning of the provisions of the NDIS Act. Accordingly, as he does not meet the disability requirements and the early intervention requirements of the legislation, he does not qualify to be a participant in the NDIS.

28. For the reasons stated, therefore, the reviewable decision to refuse Mr Yang’s application for access to the NDIS is affirmed.

    DECISION

29. The reviewable decision is affirmed.

I certify that the preceding 61  [sixty one]  paragraphs are a true copy of the reasons for the decision herein of Member Thompson.

....................[Sgnd].........................

Administrative Assistant Legal

Dated:    4 August 2021  

Dates of hearing:  10 February 2021

Applicant’s Representative:  Self-represented

Respondent’s Representative:                   Domenic Lipari, NDIA