YRXQ and National Disability Insurance Agency
[2024] AATA 3361
•23 September 2024
YRXQ and National Disability Insurance Agency [2024] AATA 3361 (23 September 2024)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2022/2994
Re:YRXQ by his mother Ms P
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Senior Member D Connolly
Date:23 September 2024
Place:Sydney
The Tribunal affirms the decision under review pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).
...................[SGD]...............................
Senior Member D Connolly
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – access criteria – whether the Applicant’s conditions are permanent when he is receiving treatment – whether there is substantially reduced functional capacity when the Tribunal does not have a current functional capacity assessment - decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)CASES
Mulligan v National Disability Insurance Agency [2015] FCA 544
National Disability Insurance Agency v Davis [2022] FCA 1002
National Disability Insurance Agency v Foster [2023] FCAFC 11Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634
SECONDARY MATERIALS
National Disability Insurance Agency, Our Guidelines – Becoming a participant – Applying to the NDIS, (Web Page)
REASONS FOR DECISION
Senior Member D Connolly
BACKGROUND TO REVIEW
YRXQ (the Applicant) was born in January 2003. He usually lives with his mother, Ms P, and sister in a Sydney suburb. Ms P made the application for the Applicant to become a participant in the National Disability Insurance Scheme (the NDIS), in late 2021, stating he was relying on impairments attributable to attention deficit hyperactivity disorder (ADHD), depressive disorder, anxiety disorder, emerging cluster B personality traits, and rhinoconjunctivitis.
On 5 January 2022 a delegate of the Chief Executive Officer (CEO) of the National Disability Insurance Agency (the Respondent), decided the Applicant did not meet the access criteria set out in the National Disability Insurance Scheme Act 2013 (Cth) (the Act) because the delegate was not satisfied his impairment was permanent. An internal reviewer confirmed that decision on 23 March 2022, as she was not satisfied any impairment arising from ADHD, depressive disorder, anxiety disorder and emerging cluster B personality traits was permanent.[1] Nor was she satisfied any of the Applicant’s impairment resulted in a substantially reduced functional capacity.[2]
[1] EB1-1, T2, p 5.
[2] EB1-1, T2, p 7.
On 12 April 2022, Ms P, on the Applicant’s behalf, applied to the Administrative Appeals Tribunal (the Tribunal) for review of the decision to refuse the Applicant access to the NDIS under the provisions set out in the Act.
This matter has now been at the Tribunal for over two years. There have been various postponements and adjournments, in the main because of the Applicant’s changing circumstances and his diagnosis of schizophrenia in December 2023. Ms P has participated in numerous Tribunal events in a period during which she has been supporting the Applicant while he navigates serious mental illness and significant challenges. As discussed below, I do not have before me a current functional capacity assessment which is relevant to my consideration of whether the Applicant’s impairment results in a substantially reduced functional capacity. However I have decided, in exercising my statutory duty set out in section 2A of the Administrative Appeals Tribunal Act 1975 (Cth), to be, amongst other things, fair, just, economical, informal and quick, that it is time for this matter to be decided and finalised. I do this knowing that the Applicant is not prohibited from applying for access to the NDIS again in the future, for example, when he has the relevant material that reflects what he can and cannot do after he has had further treatment aimed at achieving optimal functional capacity.
LEGISLATION
The access criteria
To become a participant in the NDIS, the Applicant must satisfy the access criteria set out in subsection 21(1) of the Act, which provides as follows:
(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).
There is no dispute the Applicant satisfies the age and residence requirements. I must decide whether the Applicant satisfies the access criteria in section 24 (the disability requirements) or section 25 (the early intervention requirements) of the Act.
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 Insurance Scheme 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.
If the Applicant does not meet the disability requirements, I will consider whether he meets the early intervention requirements set out in section 25 of the Act which state as follows:
(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 developmentaldelay; 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.
(2)The CEO is taken to be satisfied as mentioned in paragraphs (1)(b) and (c) if one or more of the person's impairments are prescribed by the National Disability Insurance Scheme rules for the purposes of this subsection.
(3)Despite subsections (1) and (2), the person does not meet the early intervention requirements if the CEO is satisfied that early intervention support for the person is not most appropriately funded or provided through the National Disability Insurance Scheme, and is more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or through systems of service delivery or support services offered:
(a) as part of a universal service obligation; or
(b) in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
Paragraph 24(1)(b) of the Act requires the Tribunal to be satisfied that the impairment is permanent, not the condition. Mortimer J in Davis explained that:
The critical point is that “permanent” is used as an adjective in s 24(1) to the noun “impairment” (or in the plural, “impairments”). The focus of the text, consistently with the purposes of the scheme, is on whether the impairments experienced by individuals (rather than the cause of the impairments or the specific diagnoses which might be applied to a medical condition) have an enduring quality so as to fit within the conceptual emphasis of the scheme. [3]
[3] National Disability Insurance Agency v Davis [2022] FCA 1002 (Davis), [86].
The Minister may, under subsection 209(1) of the Act, make rules prescribing matters. The rules relevant to this matter are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (the Access Rules), which form part of the legislation.
In considering whether the Applicant’s impairment is permanent, the Tribunal must apply the relevant Access Rules which include:
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.
Her Honour in Davis found the word “known” connotes a treatment which can be identified by Australian medical practitioners as a suitable treatment for the person’s impairment. The word “appropriate” connotes a treatment which has a capacity to “remedy” the impairment and is suitable for the individual to access. The word “remedy” should be understood to mean something approaching a removal or cure of the impairment.[4]
[4] Davis, [136] – [137].
Rule 5.8 is relevant to the Tribunal’s consideration of whether the Applicant has a substantially reduced functional capacity to undertake one or more of the six domains. It is set out and discussed in more detail below, along with the relevant case law.
The NDIS Operational Guidelines also assist in making decisions in accordance with the Act. Operational Guidelines represent government policy and should be applied by the Tribunal unless there is good reason not to do so.[5] The relevant Operational Guideline is Our Guidelines – Becoming a participant – Applying to the NDIS (Operational Guideline).[6]
[5] Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[1979] AATA 179; (1979) 2 ALD 634; (1979) 2 ALD 60.
[6] National Disability Insurance Agency, Our Guidelines – Becoming a participant – Applying to the NDIS, (1 August 2022) (Web Page) < BEFORE THE TRIBUNAL
As part of the Applicant’s access application in 2021, Ms P provided to the Respondent medical evidence from Dr Michael Kohn, paediatrician, Dr Daniel Lin, paediatrician, Dr Dina Mahmood, psychiatrist, Kym Carlson, psychologist, Eleanor Crowther, psychologist, Dr Shelley Hyman, clinical neuropsychologist, Nicholas Walker, clinical psychologist and Dr Miriam Codarini, immunologist, documenting that the Applicant had diagnoses at the relevant times of ADHD, depressive disorder, anxiety disorder, emerging Cluster B personality traits and rhinoconjunctivitis. I have considered all that material and refer to the relevant aspects of it in my findings.
At the time of internal review, the Respondent was satisfied the Applicant met paragraph 24(1)(a) of the Act with respect to his ADHD, depressive disorder, anxiety disorder, emerging Cluster B personality traits. However the Respondent was not satisfied the criterion was met with respect to rhinoconjunctivitis.
After the application was made to the Tribunal, in December 2023, the Applicant was admitted to Royal Prince Alfred Hospital (RPA), for about seven weeks, presenting with symptoms of paranoia, auditory hallucinations and catatonia, consistent with acute psychosis. He was diagnosed with paranoid schizophrenia.[7] At that time the Respondent remained of the view the Applicant’s overall psychosocial impairments could not be considered permanent as further medical treatment or intervention was likely to remedy his impairments, and so paragraph 24(1)(b) was not satisfied. The Respondent was also of the view the evidence did not support a conclusion that the Applicant had a substantially reduced functional capacity in any of the six domains set out in paragraph 24(1)(c) of the Act. It was also submitted that the available evidence did not demonstrate that the provision of early intervention supports was likely to benefit the Applicant by reducing his future needs for support, or would achieve any of the outcomes listed in paragraph 25(1)(c) of the Act.[8]
[7] EB1-8, Letter from Dr Kevin Vaughan dated 6 February 2024, p 33.
[8] EB1-2, Respondent’s Statement of Issues, Facts and Contentions (RSFIC),
This matter was listed for final hearing on 17 July 2024. Shortly before the hearing Ms P provided medical evidence that the Applicant had been receiving outpatient care at Headspace Early Psychosis clinic but the service “encountered significant challenges, including poor engagement, inconsistent medication adherence, and difficulty monitoring his complex conditions. Despite multiple attempts to manage his care, YRXQ's physical and mental health deteriorated, necessitating involuntary hospitalization under the NSW Mental Health Act. Given the complexity of his needs, we recommend that he transition to a more specialized outpatient service for adequate support and ongoing recovery.”[9]
[9] EB1-26, Letter from Headspace Early Psychosis to the Applicant’s mother dated 15 July 2024.
Headspace also advised that, at the time of writing, the Applicant was an inpatient at Westmead Hospital where he was being treated for malnutrition and a deterioration in his mental health. He was found to be at high risk of malnutrition and medication non-compliance without assertive community follow up. He was deemed to be unsuitable for Headspace services.
At the hearing Ms P informed me that the Applicant continued to be an involuntary patient at Westmead Hospital and was unable to participate in the hearing process. He had been admitted on 31 May 2024 following concerns raised by Headspace “of physiological decompensation secondary to malnutrition from disordered eating. Patient has reportedly lost 20kg since September 2023 with body image disturbances, current BMI is 14.7 (weight 44.6kg, height 174cm). Poor insight into condition, decision-making capacity is limited, attempts to be managed in an outpatient setting however poor engagement…Presenting severely underweight with reported body dysmorphia, restrictive eating practices and excessive exercise. Currently guarded, likely minimising symptoms, with poor insight, at risk of further medical deterioration if untreated”.[10]
[10] EB1- 36, pp10 -11.
There was agreement at the hearing that the matter should be adjourned so that targeted questions could be forwarded to the Applicant’s current treating professionals and current medical records could be summonsed. Some of the summonsed material was filed by the Respondent and is discussed below.
The hearing was reconvened on 11 September 2024. The Applicant continued to be too unwell to participate in the hearing. Dr Lauren Taylor, Head of Department (Medical Psychiatry Unit) Westmead Hospital gave oral evidence. After hearing Dr Taylor’s oral evidence, summarised below, the Respondent changed its view about whether the Applicant’s psychosocial impairments could be considered permanent.
Dr Taylor confirmed that the Applicant is still an involuntary patient. She confirmed he has been diagnosed with schizophrenia. He was treated at RPA in December 2023 where he remained for several weeks but demonstrated only a partial suboptimal response to those medication treatments. He then was seen by the Headspace community team who had significant concerns regarding his health. That resulted in his admission to Westmead Hospital on 31 May 2024.
Dr Taylor explained that the Applicant’s self-care was so impaired that he was not initiating or organising oral intake for himself. He had lost about 20 kilos. He required nutritional resuscitation. He weighed 44 kilos and had a BMI of 14. This was due to a failure of self-care and initiation of oral intake.
Dr Taylor explained that the Applicant had catatonic symptoms. She initiated treatment with ECT (electroconvulsive therapy) hoping to establish whether there was a reversible component to his catatonia. However, the Applicant had an allergic reaction to one of the anaesthetic agents. Dr Taylor intends for the Applicant to go through an anaesthetic immunological testing process, but that will not occur for another two months.
Dr Taylor wants to give the Applicant the “best shot” at improving his functional capacity as “his degree of functional impairment at the moment is quite heartbreaking.” He has been referred to the mental health rehabilitation unit in Western Sydney, Melaleuca. That referral is in the process of being assessed. The treating team may consider further ECT. However, the ECT is for the catatonia, not for schizophrenia itself. It is not curative for the bulk of his illness.
Dr Taylor explained that Melaleuca, an inpatient facility, has a multidisciplinary team comprising Allied health members, including occupational therapists, psychologists, social workers and nursing staff. The aim of mental health rehabilitation is to assess in more detail an individual’s level of functioning and their functional impairments, in an attempt to improve functional capacity in a goal orientated manner. Typically, a patient stays for several months. Pending the outcome of the referral and bed availability he will be transferred from Westmead Hospital.
Dr Taylor explained that while the treatment at Melaleuca is directed towards trying to improve function or the level of functional capacity, it is trying to assist in optimising within the existing severe impairment range. It will not reverse or resolve completely the Applicant’s impairments. It is supportive.
With respect to whether the treatment would make a significant difference to the Applicant’s functional capacity, Dr Taylor stated that, for example, if considering someone who is not eating, there are supportive, behavioural strategies or cues that can be implemented that facilitate oral intake. It would be significant for the individual but improvement would not be 50%, it would be more like 20%. It is aiming to support and enhance functional capacity.
Dr Taylor explained that the Applicant was prescribed Olanzapine at RPA. His response was only partial. He was then trialled on Aripiprazole. He was discharged on a combination of both of those medications. However, he continued to have a significant symptom burden. Dr Taylor prescribed Clozapine in early June 2024. It was initiated at a low dose. When it was increased to 350mg the Applicant had a seizure. Dr Taylor reduced the dose to 300mg. He is being cautiously monitored at that dose. His medications, Clozapine and Aripiprazole, are now stable. Dr Taylor stated the medication has led to some improvement in that he is no longer mute with a fixed stare. There has been some response but the Applicant has been very unwell. There are no other treatment medication options.
Dr Taylor explained that there can be gradual improvements with Clozapine for six months after it is initiated but most of the benefit is seen in the first two months, and then the benefit plateaus. Her view is Clozapine has largely achieved what it is going to achieve.
As to whether Dr Taylor is able to determine now the long term impairment that will arise from the Applicant’s schizophrenia, she stated schizophrenia is a lifelong illness. Roughly a third of people with the diagnosis will deteriorate. Another third will maintain their level of functioning and have episodic illness or exacerbation of positive psychotic symptoms, and roughly a third of people don’t have further exacerbations of positive symptoms. There are clinical features of the Applicant’s illness that indicate he is very impaired. Dr Taylor is concerned he is someone with severe illness.
Dr Taylor was asked if there is a meaningful prospect the Applicant will substantially improve. She indicated his care and treatment for the acute episode has concluded. There is still the sub acute mental health rehabilitation treatment available but his improvements have largely been achieved. She is of the view his impairments are permanent.
Dr Taylor acknowledged that she is not an occupational therapist and was not comfortable to describe the exact nature of the Applicant’s functional capacities. She stated he has not had a full, in-depth assessment of his functional capacity - that is part of the mental health rehabilitation process. She was willing to say that the Applicant remains socially withdrawn and does not seek social interaction. On a cognitive screening test recently, there were deficits and difficulties in recall and memory and frontal executive functioning, which involves planning and abstract thinking. She stated those domains have improved since his treatment at Westmead Hospital. She is of the view those deficits are stable.
With respect to self-care, Dr Taylor said that the Applicant needs prompting around eating. With respect to meal preparation, the Applicant knows nutrition is important however he lacks insight and he has difficulty knowing what his deficits are. He is compliant but he has not fully grasped the clinical concerns. He is eating currently with a degree of prompting and the provision of a safety net. She agreed with Ms P that he does not drink sufficient fluids.
Dr Taylor is of the view the Applicant would need prompting and monitoring of his oral intake to ensure it is adequate. However, when asked if the Applicant would be able to organise his nutritional needs, by shopping, cooking, eating and cleaning up, Dr Taylor said she was not comfortable and confident to comment on that. In her view the Applicant requires further assessment by an occupational therapist as part of her recommended plan.
Dr Taylor indicated that the Applicant is able to shower but needs some prompting because he is not showering regularly. She is concerned he may not shower if not prompted.
Dr Taylor is of the view that on discharge the Applicant would require case management with a mental health team, a multidisciplinary major mental illness psychosis team, involved with young adults in the Applicant’s age range.
With respect to the capacity to take his medication Dr Taylor indicated concern that it would require supportive prompting and monitoring to ensure that it is occurring.
Dr Taylor is not sure if Melaleuca would do a functional capacity assessment on admission. Because it is goal oriented, difficulties in day to day functioning are identified. In her view the Applicant would be there for months, not weeks, and the aim is to increase his functional capacity.
On 19 September 2024 Ms P emailed the Tribunal and the Respondent stating that she had visited Melaleuca and the Nurse Unit Manager told her that Melaleuca may not be appropriate for the Applicant due to its limited resources. It is not for me to decide whether the Applicant will or will not go to Melaleuca. I am satisfied Dr Taylor’s evidence, that the referral is in the process of being assessed, is reliable. Ultimately it is up to NSW Health to determine the next best treatment options for the Applicant, to optimise his functional capacity. Regardless of whether that is remaining at Westmead Hospital or admission to Melaleuca, or some other alternative, I am satisfied the Applicant requires further treatment and I do not have before me a current functional assessment.
ISSUES
There is no dispute that the Applicant now has impairments arising from chronic schizophrenia and meets paragraph 24(1)(a) with respect to this condition. However the Respondent does not accept the Applicant’s ADHD, depressive disorder, anxiety disorder or emerging cluster B personality traits conditions result in any impairment, arguing that it is not clear that he continues to be diagnosed with these conditions, given the opinion of Dr Gates, neuropsychologist, who assessed the Applicant in March 2023[11] at the Respondent’s request, and the Applicant’s recent diagnosis of schizophrenia.
[11] EB1-18, Report of Dr Nicola Gates, neuropsychologist, dated 23 March 2023.
Having considered the evidence from Dr Taylor, I agree that the Applicant meets paragraph 24(1)(a) of the Act, as I am satisfied he has one or more impairments to which a psychosocial disability is attributable. However I am of the view when considering how he meets paragraph 24(1)(a), the impairment or impairments need to be identified with some precision, because the threshold questions on permanency (paragraph 24(1)(b)) and substantially reduced functional capacity (paragraph 24(1)(c)) operate not on the concept of conditions, but on the concept of ‘impairment’, which is generally understood to involve the loss of, or damage to, a physical, sensory or mental function. Therefore, I must also consider whether the Applicant has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments.
As the Applicant meets paragraph 24(1)(a) of the Act, I will consider whether any of his impairments are permanent such that paragraph 24(1)(b) of the Act is met. In closing submissions to the Tribunal, the Respondent submitted that it has changed its position on this provision, taking into account Her Honour’s guidance in Davis on the application of Rule 5.4, and the current evidence from Dr Taylor confirming that the Applicant’s further medical treatment or intervention is not likely to remove or cure his impairment. I agree with this view and find paragraph 24(1)(b) is satisfied.
The issue on which the parties disagree is whether the Applicant’s impairment(s) result in substantially reduced functional capacity to undertake any of the following activities set out in paragraph 24(1)(c) of the Act: communication, social interaction, learning, mobility, self-care or self-management (the six domains). In closing submissions, the Respondent contends the Tribunal cannot be satisfied that the evidence demonstrates substantially reduced functional capacity in any of the six domains set out in subparagraphs 24(1)(c)(i) to (vi) and therefore the Applicant does not meet paragraph 24(1)(c) of the Act. Ms P is of the view the Applicant has substantially reduced functional capacity in social interaction, self-care and self-management. I will consider whether I am satisfied the Applicant has a substantially reduced functional capacity in any of the six domains.
If I am not satisfied the Applicant meets the disability requirements, I will consider whether he meets the early intervention requirements set out in section 25 of the Act.
CONSIDERATION OF CLAIMS AND EVIDENCE
Does the Applicant have a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments, or one or more impairments to which a psychosocial disability is attributable?
On the basis of the debilitating effects of the Applicant’s schizophrenia I have accepted the Applicant has one or more impairments to which a psychosocial disability is attributable. This is not in dispute. However, as I have explained, the Applicant’s impairments need to be identified with some precision so I will also consider the Applicant’s other conditions to ascertain whether I am satisfied he has impairments arising from those conditions.
I have considered the evidence regarding the Applicant’s rhinoconjunctivitis and allergies. I accept the Applicant has had this condition for several years, since he was a child, for which he received treatment at the Children’s Hospital Asthma and Chest Clinic in 2016.[12] I note in 2019 his condition caused him fatigue and had a detrimental effect on his functioning.[13] However in July 2019 Professor Lin raised a question as to whether the Applicant’s lethargy was attributable to his rhinoconjunctivitis or his anxiety condition.[14] In May 2020 Dr Codarini observed that the Applicant had better rhinitis and asthma symptom control in the past year and had last attended the allergy and immunology clinic in June 2019.[15] There was a suggestion in 2021 that the Applicant may require nasal surgery.[16] However there is no evidence this occurred and on the evidence before the Tribunal the most recent report merely indicates that the Applicant requires tissues for his post nasal drip.[17]
[12] EB1-1, T3.
[13] EB1-20, Letter from Dr Miriam Codarini dated 27 June 2019, p 178.
[14] EB1-1, T3.
[15] EB1-1, T9.
[16] EB1-23, Report from Dr Peter Ryan dated 7 June 2021, pp 259 – 260.
[17] Report from Dr Daman Bhatia dated 6 May 2022, pp 264 – 265.
Having considered the evidence regarding the Applicant’s rhinoconjunctivitis, I am not satisfied this condition has resulted in impairments. While I accept the condition is irritating and chronic, given his most recent diagnosis of schizophrenia and associated catatonia, it is not clear to me that the Applicant’s lethargy is the consequence of rhinoconjunctivitis. I am not satisfied the Applicant has a disability that is attributable to a physical impairment arising from rhinoconjunctivitis.
With respect to the other conditions on which the Applicant sought to rely, I accept that Dr Mahmood diagnosed the Applicant with ADHD, persistent depressive disorder, anxiety disorder and emerging Cluster B traits in August 2021.[18] She noted however that the Applicant had no psychotic features or major depression. I note that since then Dr Gates assessed the Applicant and observed that he did not exhibit any ADHD symptoms during the assessment. Dr Gates’ engagement with the Applicant and Ms P resulted in a complaint to the HCCC about her conduct and her report. The HCCC dealt with that complaint. I informed Ms P at the hearing that I would take into account her concerns about the weight I should give to Dr Gates’ evidence. I decided I did not need to hear Dr Gates’ oral evidence because her report was relatively out of date, given that since her assessment the Applicant presented in December 2023 to RPA with symptoms of paranoia, auditory hallucinations and catatonia, consistent with acute psychosis and he has now been diagnosed with management resistant schizophrenia. Clearly his impairments have changed since he was assessed by Dr Gates.
[18] EB1-1, T16
I note that since the Applicant’s diagnosis, in March 2024, Dr Vaughan, psychiatrist, reported that the Applicant has chronic schizophrenia, with a secondary disability of “neurocognitive disorder reflecting the cognitive impairment secondary to schizophrenia”. He did not comment on, or confirm, any other diagnosis.[19] Also in March 2024 Dr Vidanalage, psychiatrist, noted the Applicant had some psychosis but required “psychometric testing to find out the exact level of his impairment and its functional effects… YRXQ is likely to have persistent residual symptoms however, it is difficult to predict his future performance at this stage because he is in early stage in his recovery journey”.[20] He noted the Applicant had previously been diagnosed with Autism, ADHD, depression and anxiety but did not comment on those diagnoses.
[19] EB1-8, Report of Dr Vaughan, pp 36 – 37.
[20] EB1-10, Report of Dr Vidanalage, p 39.
Overall, I am not satisfied the Applicant continues to have confirmed diagnoses of Autism, ADHD, persistent depressive disorder, anxiety disorder and emerging Cluster B traits. I am concerned that those earlier diagnoses were an attempt to explain symptoms that ultimately developed into psychosis and schizophrenia. This is supported by Dr Taylor’s report in July 2024 that the Applicant “is likely to have been gradually deteriorating in terms of his global functioning for several years during his prodromal illness which has more recently in the past 1-2 years manifested more obviously, leading to his admissions in the past 12 months.”[21] Dr Vaughan also reported in March 2024 that the Applicant had had symptoms of paranoid schizophrenia “for at least 12 months but the onset was difficult to date as the symptoms started insidiously.”[22]
[21] EB1-16, Report of Dr Taylor, p 83,
[22] EB1-8, Report of Dr Vaughan, pp 36 – 37.
With respect to paragraph 24(1)(a) of the Act, on the evidence before me, I am satisfied the Applicant has an impairment to which a psychosocial disability is attributable, arising from schizophrenia, but I am not satisfied he has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments.
Is the impairment permanent, or likely to be, permanent?
In considering whether the Applicant’s impairment is permanent, I must apply the relevant Access Rules which includes Rule 5.4. Based on Dr Taylor’s evidence regarding the possibility that the Applicant might have further ECT and has been referred to Melaleuca, I find there are further known and appropriate evidence-based clinical, medical or other treatments available to the Applicant. However, given Dr Taylor’s evidence that none of those treatments are curative, considering Her Honour’s guidance in Davis, I am not satisfied those treatments are likely to remedy the impairment.
Accordingly, I am satisfied the Applicant meets paragraph 24(1)(b) of the Act.
Does the Applicant’s impairment result in substantially reduced functional capacity to undertake one or more of the specified activities?
Paragraph 24(1)(c) of the Act requires that the Applicant’s impairment or impairments result in substantially reduced functional capacity to undertake one or more of the six domains.
Rule 5.8 of the Access Rules sets out the matters I must consider when determining whether the Applicant’s impairment results in substantially reduced functional capacity and states as follows:
An 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 Operational Guideline states:
Your impairment substantially reduces your functional capacity if you usually need disability-specific supports to participate in or complete the (specified) tasks.
These disability-specific supports include:
·a high level of support from other people, such as physical assistance, guidance, supervision or prompting.
·assistive technology, equipment or home modifications that are prescribed by your doctor, allied health professional or other medical professional.
In Mulligan[23] Mortimer J held that the legislation requires “a relatively high degree of precision by decision-makers… in assessing what a person can or cannot do. The assessment to be undertaken is avowedly functional and multi-faceted.”[24] The Full Federal Court explained the legislation requires that it is based on a functional, practical assessment of what a person can and cannot do.[25]
[23] Mulligan v National Disability Insurance Agency [2015] FCA 544 (Mulligan).
[24] Ibid at [55].
[25] National Disability Insurance Agency v Foster [2023] FCAFC 11 (Foster) at [64].
The difficulty I have in meeting the requirement that I undertake an assessment as described by Her Honour in Mulligan, and the Full Federal Court in Foster, with respect to what the Applicant can and cannot do, is that there is very little current evidence about his functional capacity. There is no current functional capacity assessment, undertaken by an occupational therapist, since the Applicant has been diagnosed with schizophrenia. As the Respondent indicated at the hearing, this is not a criticism of the Applicant, Ms P or the treating professionals involved in caring for the Applicant. The Applicant’s treatment for his acute psychosis has only recently concluded. The plan is that the Applicant receive more treatment. In my view it is very likely that it is too soon to assess the Applicant’s functional capacity for the purposes of identifying, with a relatively high degree of precision, what he can or cannot do.
The most relevant information about the Applicant’s current functional capacity is Dr Taylor’s oral evidence. However, she warned that she is not an occupational therapist and was reluctant to give definitive evidence as to what he will and will not be able to do in the foreseeable future. While she indicated that he currently needs support, prompting and monitoring in a number of self-care activities, she explained that it is her advice that he go to Melaleuca where attempts will be made to improve and optimise the Applicant’s functional capacity, in a goal orientated manner.
In any event, while mindful that a functional capacity assessment would likely reveal that there are activities the Applicant cannot do, I am now required to consider whether the Applicant has a substantially reduced functional capacity in any of the six domains on the evidence before me.
Communication
The Operational Guideline with respect to communication currently states as follows:
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.
It is difficult to assess what the Applicant can and cannot do with respect to this domain. Dr Taylor has described the Applicant as being catatonic and mute at times, but this has improved with Clozapine. I note it is possible that he will have ECT which will improve his catatonia. Dr Taylor’s evidence indicates he has been talking. There are clinical notes from summonsed material[26] that the Applicant has been engaging in conversations while in hospital, and group activities involving listening, reading, writing, drawing and speaking.[27]
[26] EB1-36, p 14.
[27] EB1-36, pp 28 – 31.
On the evidence before me I am not satisfied the Applicant is unable to participate effectively or completely in communicating without assistive technology, equipment or the assistance of another person. Having considered the Operational Guideline, while not at his optimal level, I am satisfied the Applicant is able to speak and write to express himself, and that he is able to understand people, and be understood. Accordingly, I am not satisfied the Applicant has a substantially reduced functional capacity to undertake communication activities.
Social interaction
The Operational Guideline with respect to social interaction currently states as follows:
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.
I am mindful that there is a plan for the Applicant to have further treatment in the foreseeable future which may improve his functional capacity with respect to social interaction, such as further ECT and treatment at Melaleuca. In March 2024 Dr Vaughan and Dr Vidanalage reported that the Applicant’s social interaction was improving. I am mindful that this may further improve.
The relevant material since his admission to Westmead Hospital is limited as to the Applicant’s current functional capacity with respect to this domain. There is no functional capacity assessment that states the Applicant is not able to participate in social interaction without assistance. However I note recent clinical notes confirm that the Applicant has been able to participate in group activities, albeit in a limited way, and there is no suggestion he has been inappropriate or unable to cope with his feelings or emotions during those interactions. Those notes also record that he has had escorted leave where he has left the unit with a friend. Ms P also visits the Applicant and she indicated at the hearing that he wants leave to go home.
Having considered the Operational Guideline, on the evidence before me, while I accept the Applicant might be socially withdrawn, I am satisfied the Applicant is able to interact socially and that he does not behave inappropriately in social situations. I am not satisfied the Applicant has a substantially reduced functional capacity to interact socially.
Learning
The Operational Guideline with respect to learning currently states as follows:
Learning – how you learn, understand and remember new things, and practise and use new skills.
There is no current evidence to assist me to assess with a high degree of precision what the Applicant can and cannot do with respect to this domain.
Prior to the onset of schizophrenia in 2023 the Applicant had been enrolled in a course of study at University. While I am mindful that his capacity to learn may have been affected by the onset of schizophrenia, while he was screened when acutely ill, I do not have before me a cognitive assessment confirming the Applicant now has a cognitive impairment impacting his capacity to learn. I am of the view that until such time as his treating team considers it appropriate to undertake cognitive testing for the purposes of ascertaining his function capacity in this domain, I cannot be satisfied the Applicant is unable to learn, understand and remember new things, or to practise and use new skills, without assistance.
Overall, on the limited evidence before me, I am not satisfied the Applicant has a substantially reduced functional capacity in activities relevant to learning.
Mobility
The Operational Guideline with respect to mobility currently states as follows:
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.
There is no evidence before me to indicate the Applicant currently has reduced functional capacity in activities relevant to mobility. The clinical notes refer to the Applicant walking around the hospital and leaving the hospital on short visits. There is evidence indicating that prior to his admission in RPA in December 2023 he was fully independent in accessing public transport, had travelled interstate independently and had completed 50 hours of driving tuition.[28] I understand that the Applicant was transferred in a wheelchair at the hospital when going on leave but that is not sufficient evidence to demonstrate he cannot mobilise. There is no evidence before me to indicate the Applicant is unable to participate in mobility activities without the assistance.
[28] EB1-18, Report of Dr Nicola Gates, neuropsychologist, dated 23 March 2023.
Overall, I am not satisfied the Applicant has a substantially reduced functional capacity in activities relevant to mobility.
Self-care
The Operational Guideline with respect to self-care currently states as follows:
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.
When the Applicant was admitted to Westmead Hospital in May 2024 his recent weight loss was of significant concern and he required nutritional resuscitation.[29] Dr Taylor in her oral evidence attributed this to a failure of self-care and initiation of oral intake rather than an eating disorder. The Applicant has since put on weight and is eating.[30] Dr Taylor indicated the Applicant requires prompting and monitoring to ensure his nutritional requirements are being met. She gave evidence that the Applicant needs prompting to shower and take his medication which needs to be monitored. However she also expressed caution at giving evidence about functional capacity, an area outside her own specialisation. She indicated this would be better undertaken by an occupational therapist. I am confident self-care will be an issue that is addressed if and when the Applicant goes to Melaleuca for mental health rehabilitation.
[29] EB1-36, pp 10 – 19.
[30] EB1-36, p 42.
In considering Rule 5.8, I must apply the test set out in Foster, in which the Full Federal Court determined that the Tribunal is to reach a conclusion as to whether the Applicant has a substantially reduced capacity to undertake the activity “by assessing his functional capacity with respect to the bundle of tasks and actions forming the concept of self-care.”[31] As such, the activity to be assessed is self-care as a whole, not a specific task or action within self-care.
[31] Foster, at [65].
While I accept there are issues of concern with respect to self-care, I am mindful that I do not have a current functional capacity assessment addressing the various self-care activities which would allow me to assess holistically, with a high degree of precision, as described in Mulligan, what the Applicant can and cannot do with respect to this domain. I do not have an independent report that addresses whether the Applicant can attend independently to his personal care, hygiene, grooming, eating and drinking, and health. The information before me does not address whether the Applicant can dress, shower or bathe, eat or go to the toilet by himself. I appreciate why a functional capacity assessment has not been undertaken since the Applicant has been admitted to Westmead Hospital. But the absence of such an assessment leads me to conclude that on the evidence before me I cannot be satisfied that the Applicant requires assistance with self-care activities, when considered holistically.
Taking into account the Court’s guidance in Foster, on the evidence before me, I am not satisfied the Applicant’s impairment results in a substantially reduced functional capacity in relation to the self-care activities; personal care, hygiene, grooming, eating and drinking, and health. I am not satisfied the Applicant’s impairments result in a substantially reduced functional capacity to undertake self-care.
Self-management
The Operational Guideline with respect to self-management relevantly states as follows:
Self-management – 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.
I accept that the Applicant is currently very unwell and not in a position to look after himself. I anticipate that his treating team will work with him to optimise his functional capacity, including in the self-management domain. While I accept it is likely the Applicant may need assistance in these activities even after his treatment is complete, given the severity of his illness, I do not have a current assessment of what he can and cannot do with respect to self-management.
I am of the view the holistic approach described in Foster also applies to this domain. I do not have a current functional capacity assessment addressing the various activities of this domain, confirming the Applicant requires assistance to undertake or participate in the various activities of self-management. I am not satisfied on the evidence before me that the Applicant’s impairment results in a substantially reduced functional capacity in relation to the self-management activities such as planning, making decisions, looking after himself, problem solving and managing his money. I am not satisfied the Applicant’s impairments result in a substantially reduced functional capacity to undertake self-management.
Does the Applicant satisfy the disability requirements?
For the reasons given above, I am not satisfied the Applicant’s impairment results in substantially reduced functional capacity to undertake any of the specified activities as required by paragraph 24(1)(c) of the Act. Accordingly, having applied the tests set out in Davis and Foster, I must find he does not meet the disability requirements.
As the Applicant has not met a mandatory provision of the disability requirements, it is not necessary for me to consider whether he meets paragraphs 24(1)(d) and (e) of the Act.
Does the Applicant satisfy the early intervention requirements?
As the Applicant has not met the disability requirements, I must consider whether he meets the early intervention requirements.
Ms P has not made any submission that the Applicant meets the early intervention requirements.
There is no doubt that the Applicant meets the requirement set out in subparagraph 25(1)(a)(ii) of the Act.
In considering whether I am satisfied that the provision of early intervention supports is likely to benefit the Applicant by reducing his future needs for supports, I note that Dr Taylor has referred the Applicant to Melaleuca anticipating that the multidisciplinary team will optimise the Applicant’s functional capacity. I am of the view that until such time as the Applicant has completed that treatment, which could take months, it is unclear what early intervention supports would achieve the requirement set out in paragraph 25(1)(b) of the Act. Also on the evidence before me, I am not satisfied early intervention supports are likely to mitigate or alleviate the impact of the Applicant’s psychosocial impairment on his functional capacity to undertake activities of any of the six domains. I am not satisfied the requirement in paragraph 25(1)(b) of the Act is met.
Essentially without a functional capacity assessment, which would assist in identifying the Applicant’s deficits, I am not in a position to make findings as to what supports would benefit the Applicant, and how they would benefit him. Accordingly I am not satisfied paragraph 25(1)(c) of the Act is met.
As subsection 25(1) of the Act is not met, I am not satisfied the Applicant meets the early intervention requirements to enable him to become a participant of the NDIS under section 25 of the Act.
CONCLUSION
I have found that the Applicant does not meet the disability requirements in section 24 of the Act, nor the early intervention requirements in section 25 of the Act, to access the NDIS. Therefore, the Respondent’s internal review decision is correct.
I am mindful that, once the Applicant has completed his treatment, either at Westmead Hospital or Melaleuca, he may well still have significantly reduced functional capacity. If it is the case that the Applicant and/or Ms P believe the Applicant has a substantially reduced functional capacity at that stage, I encourage them to obtain a functional capacity assessment, assessing what the Applicant can and cannot do, after his functional capacity has been optimised. I encourage the Applicant and/or Ms P to seek the assistance of the treatment facility’s social worker to make a fresh access application at that time.
DECISION
The Tribunal affirms the decision under review pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).
I certify that the preceding 95 (ninety-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member D Connolly.
....................[SGD]............................
Associate
Dated: 23 September 2024
Date(s) of hearing: 17 July 2024, 11 September 2024 Date final submissions received: 19 September 2024 Applicant: Ms P Counsel for the Respondent: Mr N Swan Solicitors for the Respondent: Ms A Fernandes, Spark Helmore Lawyers
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