JLZT and National Disability Insurance Agency [2022] AATA 541 (25 March 2022)

Introduction and Background

JLZT, the Applicant in this matter, had made a request to the National Disability Insurance Agency (the Agency) on 10 January 2018 to become a participant in the National Disability Insurance Scheme (the Scheme). The Agency refused the request. JLZT requested an internal review of that decision. After the internal review, the Agency refused JLZT access to the Scheme by confirming the original decision.

On 29 May 2019, JLZT applied to the Administrative Appeals Tribunal (the Tribunal) for administrative review of the decision. The Tribunal resolved the matter on 25 March 2022.

This Case Law Update is a summary of the key features of that decision.

Factors of Relevance

• JLZT was 64 years old when the request for access to the Scheme was made and was 68 years old at the time of the Tribunal decision;
• JLZT made a request for access to the Scheme. He provided evidence from his then treating GP. The access request was refused;
• JLZT requested an internal review of this decision and provided the Agency with additional supporting materials from two of his treating GPs;
• JLZT suffers from a number of physical and psychiatric conditions as follows:
  • Scheuermann’s Disease and osteoarthritis, including degenerative changes to the cervical, thoracic and lumbar spine, chronic pain and restriction of motion;
  • psychiatric conditions, including altered cognition, psychosis and paranoid delusions, depression, post traumatic anxiety and hypervigilance.
• There were extensive documents addressing JLZT’s medical conditions and treatment history available to the Tribunal;
  • Evidence from the following professionals was considered: A Specialist Pain Medicine Physician and Consultant Psychiatrist, a Consultant in Rehabilitation Medicine, Psychiatrists, a Registrar in Sports and Exercise Medicine, General Practitioners, Occupational Therapists, a Counsellor, a Psychologist and a Physiotherapist.
• For many years JLTZ relied on a disability support pension and transferred to an age pension after the age of 65. He had no other source of income.

The Law and Issues

According to the National Disability Insurance Scheme Act 2013 (Cth) (the Act), for a person to become a participant in the Scheme, that person must make an access request. A decision based on this request is made by the relevant authority in accordance with the access criteria as set out in section 21 of the Act.

Section 21 of the Act refers to and requires the resolution of other provisions found within the Act, namely: the person must meet the age (s 22), residence (s 23) and disability (s 24) or early intervention (s 25) criteria. At times, those various provisions require the application of legislative instruments such as National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (the Rules).

JLZT met the age and residence criteria set out in sections 22 and 23 of the Act. It was also agreed that the early intervention criteria in section 25 was not applicable.

The main issue in dispute was whether JLZT met the disability criteria set out in section 24 of the Act.

Jurisdictional Issue

Prior to the resolution of the main issue in dispute (described above), a jurisdictional issue had to be resolved. The issue had two components, one relating to impairments and the other relating to temporal considerations.

1. Impairments

The Agency argued that it was not open for JLZT to raise other impairments in the course of the Tribunal proceeding and, if he did so, the Tribunal had no jurisdiction to consider them.

The Tribunal made the following comments:

• the Tribunal is required to address the same statutory question as the original decision-maker;
• the statutory question requires, inter alia, assessment of the person’s impairment or impairments and these did not require the person to specify any impairments, rather the requirement is in respect of information or documents the person possesses; and
• a reviewer is not confined to consider only impairments placed before them.

In summary, the Tribunal explained that they are required to consider all the impairments established by the evidence place before them regardless of whether those impairments had been raised in the previous access requests.

2. Temporal issue

The Tribunal’s function was to review the decision made by a reviewer who had confirmed the original decision to refuse JLZT access to the Scheme. Given these decisions were made in 2018, the question arose as to whether the Tribunal was required to assess matters at a particular point in time. If this was required, it may have impacted evidence created or collated after 2018.

Upon consideration of section 20 of the Act and relevant case law, the Tribunal stated:

There is no statutory limitation under the AAT Act or under the NDIS Act which requires the Tribunal to decide the statutory questions posed for the purposes of s 20 of the NDIS Act at the time the original decision was made or only on the basis of facts at that time. The Tribunal must address those questions with reference to the materials placed before it, and it must make findings about relevant factual matters that pertained not only when the access request was made and originally determined, but also up to the time of its decision, presently.

Given the above, the Tribunal considered a whole range of evidence that was available to it. For example, there were various medical reports from medical practitioners that had not been created in 2018. Many of the reports were in relative opposition to the original information that had been considered by the original decision makers.

Application of the relevant law

The Tribunal identified three important causal considerations within the disability criteria set out in section 24 of the Act, being:

• The first is a disability that is attributable to an impairment or impairments of the specified kinds that are, or are likely to be, permanent;
• The second is that the impairment or impairments result in substantially reduced functional capacity to undertake one or more specified activities; and
• The third is that the impairment or impairments affect the person’s capacity for social or economic participation.

First: Disability that is attributable to an impairment or impairments

The Tribunal determined that JLZT’s disability was attributable to the following impairments and these were apparent when JLZT requested access to the Scheme and are, or are likely to be, permanent:

• physical impairment, including:
  • reduced spinal range of motion and associated chronic pain;
  • reduced mobility using steps, shower/bath transfers and toilet transfers.
• cognitive impairment, including:
  • reduced attention, concentration and memory.
• impairment from psychiatric conditions resulting in delusions and auditory hallucinations, episodes of depression and severe anxiety, including:
  • reduced personal and social functioning.

Second: Impairment or impairments result in substantially reduced functional capacity

The Tribunal determined that JLZT had substantially reduced functional capacity in the following areas (in accordance with subsection 24(1)(c) and rule 5.8 of the Rules):

• communication;
• social interaction;
• learning;
• mobility;
• self‑care; and
• self‑management.

Notable comments on functional capacity

When assessing the self-care area (as listed above), the evidence revealed that JLZT had fluctuating or episodic impairment in this area. The Tribunal explained in such cases, a practical judgement is required on the effect of the impairment on the person’s functional capacity to undertake the specified activity (i.e., self-care). Functional capacity should not be solely characterised by what a person could do on a bad day but also should not be solely categorised on the basis of what they can do on a good day.

On the evidence, the Tribunal found that JLZT was able to undertake most self-care activities (with the likely exception of addressing health care needs) for some of the time, when not suffering the effects of a depressive episode; however, the Tribunal was satisfied that JLZT was unable to participate effectively or completely in all self-care activities without assistance from other people in the form of guidance, support or prompting, and this satisfied 5.8(b) of the Rules.

Third: Impairment or impairments affect the person’s capacity for social or economic participation

The Tribunal found that on the evidence, JLZT’s impairments were permanent and adversely affected his capacity for economic and social participation. This was not a contentious link to make after the Tribunal had considered the evidence and resolved the questions in relation to JLZT’s substantially reduced functional capacity.

Requirement for lifelong support under the Scheme

The final question to be resolved under the Act (According to subsection 24(1)(e)) was: whether JLZT is likely to require support under the Scheme for his lifetime.

The Agency had submitted that a person would fail to meet this threshold in circumstances where their support needs are able to be met under other mechanisms or services outside of the Scheme. It was suggested that JLZT may be eligible for support under the Commonwealth My Aged Care program therefore this would mean the threshold in s 24(1)(e) couldn’t be met.

The Tribunal rejected the Agency’s submission and explained that the Agency had misconstrued the language and the purpose of the subsection.

The Tribunal explained that “the question posed by s 24(1)(e) does not turn on the kind of assistance the person requires and whether such assistance may be available outside the Scheme, rather it turns on a finding about the likely duration of the person’s requirement for support under the Scheme should they become a participant. Where the requirement is likely to be anything less than lifelong, the threshold is not met.”

In consideration of the evidence presented, the Tribunal determined that JLZT’s requirement for support under the Scheme is likely to be a lifelong requirement and that subsection 24(1)(e) was satisfied.

Decision

The Tribunal was satisfied that the disability requirements under section 24 were met. As previously detailed, there was no contention regarding the meeting of section 22 and 23, and as a result, the Tribunal set aside the Agency’s decision and in substitution, determined that JLZT had met the access criteria as required by section 20 of the Act, allowing him to become a participant in the Scheme.

Compliance Impact

The Tribunal made use of evidence from medical professionals that had not been considered by the Agency when they had determined JLZT’s access request. On the Tribunal’s consideration of the evidence, it was clear that JLZT was afflicted by significant physical, mental and cognitive impairments.

The Tribunal had determined that reliance on this evidence was appropriate given the statutory wording of the Act. This emphasises the necessity for relevant decision makers to consider a range of different sources of evidence prior to making an ultimate and consequential decision. It is also a reminder for medical professionals to keep accurate records of patient information.