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[2022] AATA 541
General information, not legal advice.
Administrative Appeals Tribunal of Australia
2022-03-25
Original judgment source is linked above.
JLZT and National Disability Insurance Agency [2022] AATA 541 (25 March 2022)
The decision under review is set aside and, in substitution, the Tribunal decides JLZT meets the access criteria under s 20 of the National Disability Insurance Act 2013.
......................[sgd]......................
NATIONAL DISABILITY INSURANCE SCHEME - request for access - disability thresholds - meaning of 'impairment' - 'impairment' differentiated from causal condition and functional effects - fact intensive assessment - physical, cognitive and psychiatric impairments - Tribunal not limited to impairments decided by original decision-maker - permanent impairment - substantially reduced functional capacity - requirement for lifelong support - decision set aside.
National Disability Insurance Scheme (Becoming a Participant) Rules 2016, Parts 5, 7
Freeman v Secretary, Department of Social Security [1988] FCA 294
Frugtniet v Australian Securities and Investments Commission [2019] HCA 16
Madelaine and National Disability Insurance Agency [2020] AATA 4025
Mulligan v National Disability Insurance Agency [2015] FCA 544
QDKH v National Disability Insurance Agency [2021] FCAFC 189
Shi v Migration Agents Registration Authority [2008] HCA 31
1. JLZT made an access request to become a participant in the National Disability Insurance Scheme (Scheme). The National Disability Insurance Agency (Agency) refused the request by primary determination and on internal review. JLZT applied for review by the Tribunal.
2. Applying the reasonable satisfaction standard, the following factual findings are made on examination and assessment of the materials in evidence.
3. JLZT was 64 years old when the request for access to the Scheme was made and is now 68 years old. There is a history of neglect and sexual abuse as a child and compounding life traumas as an adult,[1] including a violent assault and failed personal relationships, the details of which will appear only insofar as it is necessary. JLZT's lived experience is set out in a number of signed statements.[2]
4. JLZT suffers from a number of physical and psychiatric conditions. The physical conditions include Scheuermann's Disease with chronic neck, thoracic and low back pain,[3] and right knee osteoarthritis.[4] JLZT gave evidence of previous left ankle and right knee symptoms. The psychiatric conditions include major depressive disorder, post-traumatic stress disorder, chronic psychosis associated with a schizoaffective disorder or schizophrenia,[5] and a paranoid personality disorder.[6]
5. For many years, JLTZ relied upon a disability support pension and transferred to an age pension after the age of 65. There is no other source of income. JLZT struggles with limited financial means.[7]
6. JLTZ is reclusive[8] and lives alone with a dog and 4 cats. The house they live in is in a country town and it is mortgaged.
7. In 2017, JLZT requested access to the Scheme.[9] This was refused.
8. On 10 January 2018, JLZT made a second request for access to the Scheme under s 18 of the NDIS Act. Supporting evidence from Dr Petersen (then treating general practitioner) was provided.[10]
9. On 16 April 2018, JLZT's access request was refused.[11]
10. JLZT requested internal review of this decision and provided the Agency with additional supporting materials from Dr Petersen and Dr Le Lievre (another treating general practitioner).[12]
11. On 13 May 2019, under s 100 of the National Disability Insurance Act 2013 (NDIS Act), a reviewer decided to confirm the original decision to refuse JLZT's access request.[13]
12. On 29 May 2019, JLZT applied to the Tribunal for review of this decision.[14]
13. The access request is to be decided under provisions of the NDIS Act which set out access criteria that must be met for a person to become a participant in the Scheme. Essentially, for the purposes of s 20 and s 21, the person must meet the age (s 22), residence (s 23) and disability (s 24) or early intervention (s 25) criteria.
14. In the course of the proceedings, the parties agreed, correctly, that JLZT meets the age and residence criteria set out in s 22 and s 23 of the NDIS Act. It was also agreed that the early intervention criteria in s 25 are not applicable.
15. The nub of the issue in dispute is whether JLZT meets the disability criteria set out in s 24:
(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 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.
16. In Mulligan v NDIA (Mulligan),[15] Mortimer J explained that the link between disability and impairment is not defined and the use of those terms in their context indicates that one matter the Act is not concerned with, at least in terms of access to the NDIS as a participant, is how a person came to have a disability.[16] Consistent with the scheme of the NDIS Act, which is based on a functional, practical assessment of what a person can and cannot do,[17] the term disability, for the purposes of s 24 at least, refers to the overall effect of a person's impairments on that person's abilities to participate in all aspects of personal and community life,[18] whereas the term impairment, on which s 24 operates, involves the loss of or damage to a physical, sensory or mental function.[19] The assessment to be undertaken is functional and multi-faceted, and it requires a relatively high degree of precision.[20]
17. It is through this lens the three important causal considerations within the disability criteria set out in s 24 must be considered, having regard to the objectives set out in s 3 and the principles set out in s 4 and s 17A.
18. 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. This threshold is met if the requirements set out in s 24(1)(a) and (b) in the NDIS Act and ss 5.4, 5.5, 5.6 and 5.7 of the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Rules), promulgated under s 209, are satisfied. Once that threshold is surpassed, it is the effect of the permanent impairment on the person's abilities to participate in all aspects of life that is important, not the cause of the impairment, although the nature of impairment may be significant if the impairment is attributable to a psychiatric condition. Each impairment and its effects must be considered - a compendious approach is not sufficient.
19. The second is that the impairment or impairments result in substantially reduced functional capacity to undertake one or more specified activities. This is a detailed assessment of the effects of each permanent impairment on the person's functional capacities. Each of the categories set out in s 24(1)(c) must be considered in particular detail, albeit that the threshold will be met if the impairment results in a substantial reduction of the person's functional capacity in only one category.
20. The third is that the impairment or impairments affect the person's capacity for social or economic participation. This requires consideration of the person's capacity to participate socially and economically, albeit that the threshold will be met if the impairment affects the person's capacity in either category of participation.
21. Even though the word impairment is given no special meaning, it is central to the operation of s 24 of the NDIS Act. The term can be taken to mean, generally, the loss of or damage to a physical, sensory or mental function.[21]
22. It was in this regard, in consideration of impairments JLZT identified when requesting access to the Scheme, that a jurisdictional issue arose at the outset of the hearing.
23. The jurisdictional issue has 2 components: one relating to impairments and the other relating to temporal considerations.
24. The Agency initially asserted that the Tribunal's jurisdiction is confined to the impairment or impairments JLZT raised when requesting access to the Scheme, which were squarely before previous decision-makers. Counsel for JLZT disagreed.
25. The Agency argued that it is not open now, in the course of these proceedings, for JLZT to raise other impairments and, should he do so, the Tribunal has no jurisdiction to consider them. In support of its argument, the Agency relied on principles discussed by the High Court in Frugtniet v ASIC (Frugtniet)[22] and earlier cases under which the Tribunal is required to address the same question or questions that were before the original decision-maker. The Agency proceeded to argue that an impairment raised for the first time in Tribunal proceedings cannot be taken to have been before the original decision-maker and, where no decision has been made about the impairment under s 100 of the NDIS Act, the impairment is not within the jurisdiction of the Tribunal conferred by s 103 of that Act.
26. Ultimately, the Agency did not press this issue or seek a ruling on the jurisdictional point. In order to properly consider and, if necessary, to address any issue of procedural fairness arising from the Agency's understanding of JLZT's case, and the way the case was run at hearing, I allowed time for the Agency to consider its position. In the result, no procedural fairness point was taken.
27. Notwithstanding this, it is appropriate to make some general observations about these matters.
28. Firstly, the Tribunal is required to address the same statutory question as the original decision-maker. In this case, the statutory question is that posed by s 20 of the NDIS Act, namely whether the person meets the access criteria, applying the thresholds set out in ss 21, 22, 23, 24 and 25.
29. Secondly, the statutory question requires, inter alia, assessment of the person's impairment or impairments. The requirements for an access request are set out in s 19. These do not require the person to specify any impairments, rather the requirement is in respect of information or documents the person possesses. When assessing if the person meets the access criteria, under s 26 the CEO has powers to request further information from or about the person, and to request the person to undergo an assessment or a medical, psychiatric, psychological or other examination. The existence and character of any impairment is a matter for assessment on the relevant information.
30. Thirdly, just as a reviewer under s 100 is not confined to consider supports put before them and a participant is not required to identify the particular supports sought on review,[23] so, too, a reviewer is not confined to consider only impairments placed before them and a prospective participant is not required to identify impairments in an access request or when seeking review.
31. Fourthly, subject only to considerations of procedural fairness, the Tribunal is not bound by any particular case run by a party in proceedings before it. It is for the Tribunal to exercise the jurisdiction conferred upon it and to make the correct or preferable decision on the materials placed before it that are relevant to the statutory question it must address, however any party chooses to present their case. Nevertheless, the Tribunal must ensure procedural fairness to all parties, as failure to do so may lead to jurisdictional error.
32. In JLZT's case, the Tribunal is required to consider all impairments that are established by the evidence placed before it when applying the statutory tests in order to determine if JLZT meets the access criteria.
33. A temporal question arises on review of an access request decision under s 20(a) of the NDIS Act, namely at what point in time is the assessment to be made.
34. JLZT submitted the assessment is to be made as of the date on which the access request was made and presently on the material placed before the Tribunal.
35. The Agency submitted that the assessment is to be made presently, even though the age requirement under s 22 of the NDIS Act and the residence requirement under s 23 must be satisfied at the time the request was made.
36. Having regard to s 103 of the NDIS Act and s 25 and s 43 of the Administrative Appeals Tribunal Act 1975 (AAT Act), there is a clear principle to be drawn from Frugtniet in respect of the Tribunal's review. The principle requires the Tribunal to address the statutory question that was before the original decision-maker, exercising the same powers and being subject to the same constraints as the original decision-maker, and with reference to relevant materials that are placed before it.[24]
37. The Tribunal should ordinarily approach its task as though it were performing the relevant function of the original decision-maker in accordance with the law as it applied to the decision-maker at the time of the original decision.[25] Nevertheless, the Tribunal cannot take into account a consideration which could not have been taken into account by the primary decision-maker in making the decision under review and which could not be taken into account by the primary decision-maker were the AAT to remit the matter to the primary decision-maker for reconsideration.[26] It is not open to the Tribunal to take into account matters that would change the nature of the decision or the statutory question before the original decision-maker.[27] Clearly enough, careful consideration of the precise nature and incidents of the decision under review and the statutory question that was originally to be decided is necessary to determine the relevant facts that may be taken into account.[28] The existence of a temporal element in the decision under review may mean the Tribunal is required to make its decision with reference to a past point in time, without regard to evidence of matters that subsequently occurred. This is to be ascertained by reference to the statute under which the decision is to be made.[29]
38. The decision under review in this case is a decision by a reviewer under s 100(6) of the NDIS Act. By that decision, the decision of the original decision-maker under s 20 of that Act was affirmed. It is the nature of the s 20 decision that must be carefully considered.
39. A decision under s 20 poses one key question: does the person meet the access criteria set out in s 21. There is no express temporal element.
40. Nevertheless, the access criteria in s 21 arise in 4 sections relating to age, residence, disability and early intervention.
41. The age requirement is set out in s 22. A person might satisfy the age requirement at the time of requesting access to the Scheme under s 18 but fail to meet that criterion should the request be refused and review processes be engaged months or even years later. In those circumstances, the temporal question posed in these proceedings has a sharp point: JLZT met the age requirement when the request for access was made but presently would not do so.
42. Similar considerations might apply in respect of the residence requirement in s 23 and the disability requirement in s 24. A person may or may not meet the residence or the disability requirement at the time the request was made, but may be found subsequently to do so, or not, in review proceedings.
43. Section 20 of the NDIS is a gateway provision. Once the access criteria are met, the person is granted access to the Scheme as a participant, whereupon a plan is made, prospectively, under which supports for the participant may be provided or funded, and arrangements may be determined for the management of the plan and for its review.
44. It is necessary to consider if the review decision turn on facts at a point in time and to what extent, if at all, temporal considerations matter. In the circumstances Davies J dealt with in Freeman v Secretary, Department of Social Security (Freeman)[30] temporal considerations did matter. In that case, Davies J concluded the statutory question required the Tribunal to decide whether Mrs Freeman's widow pension should be cancelled at a particular point in time in the past, without taking evidence of subsequent events into consideration. It is apposite to set out Davies J's observations when distinguishing Mrs Freeman's case from cases involving the grant of a pension or a benefit:
In each case, it was held that there was jurisdiction to consider entitlement not only as from the date of the application but also entitlement up to the date of the Tribunal's decision. This was because the function of the Administrative Appeals Tribunal formed part of an administrative continuum and, in reviewing a refusal to grant a pension or benefit that had been applied for, it was proper for the Tribunal to consider the entitlement to the pension not only as at the date of the application for the pension or benefit or at the date of the decision refusing to grant it but also up to the time of the Tribunal's decision.
This is authoritatively reinforced by the High Court judgements in Shi and Frugtniet.
45. The statutory questions that must be addressed in order to make the correct or preferable decision under s 20, on review, do not require consideration of facts relevant to the access criteria at a point in time. 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.
Disability attributable to permanent impairment
46. JLZT's disability is attributable to impairments resulting from long-standing afflictions and ailments which have been present and symptomatic for many years. Those impairments include the effects of:
(a) Scheuermann's Disease and osteoarthritis, including degenerative changes to the cervical, thoracic and lumbar spine, chronic pain and restriction of motion;
(b) psychiatric conditions, including altered cognition, psychosis and paranoid delusions, depression, post traumatic anxiety and hypervigilance.
47. On the evidence of Dr Noore (Specialist Pain Medicine Physician and Consultant Psychiatrist), Dr Sui (Consultant in Rehabilitation Medicine), Dr Ayerst (Psychiatrist), Dr Thomas (Psychiatrist), Dr Golding (Registrar in Sports and Exercise Medicine), Dr Peterson (General Practitioner), Dr Le Lievre (General Practitioner), Dr Stump (General Practitioner), Ms Brandt (Occupational Therapist), Ms Britton (Occupational Therapist), Ms Toovey (Counsellor), Ms Johnson (Psychologist) and Mr Johnson (Physiotherapist), I am reasonably satisfied JLZT has the following impairments and that each impairment was apparent when JLZT requested access to the Scheme:
(i) reduced spinal range of motion and associated chronic pain;
(ii) reduced mobility using steps, shower/bath transfers and toilet transfers;
(iii) reduced attention, concentration and memory;
(iv) reduced personal and social functioning.
48. I note in passing that JLZT gave evidence about right knee pain and restriction of motion following a fall in or about 2006. Little was made of this in the hearing, and there is very little probative evidence of relevance. For this reason, I will go no further with this matter. As will appear, JLZT's case does not turn on a right knee impairment.
49. In order to determine if any one of these impairments is, or is likely to be permanent for the purposes of s 24(1), it is necessary to consider relevant provisions in the Rules;
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.
50. The Agency has issued policy guidelines: Access to the NDIS Operational Guideline (Guidelines). Section 8.2 of the Guidelines deals with considerations that are required or relevant when determining if an impairment is permanent.[31] In order to satisfy s 24(1)(b) of the NDIS Act, a decision-maker must be positively satisfied that an impairment is permanent or is likely to be permanent.
51. There are extensive documents addressing JLZT's medical conditions and treatment history before the Tribunal. It is not necessary to expressly address all of these in detail for present purposes. Nevertheless, having carefully considered these materials, it is germane to refer to the following history.
52. On 8 May 2014, Mr Johnson, who treated JLZT following injury in 2006, reported JLZT exhibits plenty of signs of poor spinal mobility indicative of chronic spinal pain and suggested using JLZT's 5 EPC visits over a period of 3 months. I understand EPC to refer to publicly funded consultations.
53. In November 2019, Ms Toovey reported JLZT had been provided counselling and social support since 4 May 2018 and she had observed symptoms including:
Thought intrusions, traumatic nightmares, flashbacks, avoidance of memories and situations that remind JLZT of the abuse; anxiety, hypervigilance, depression, difficulties trusting others, challenges with forming and sustaining relationships, and difficulties with concentration and memory. Additionally, [JLZT] is easily overwhelmed and dysregulated.[32]
54. On 16 January 2020, Dr Le Lievre reported that JLZT's Scheuermann's Disease, anxiety and depression are chronic conditions for which JLZT has appropriately sought assistance since 2008, noting the prescription list indicates that fluoxetine has been a regular medication ... for most of the time since 2008.[33] The doctor reported JLZT's needs are complex and longstanding.[34]
55. The effects of JLZT's psychiatric conditions (as they were understood at the time) are clearly set out in the report produced by Ms Johnson on 2 November 2002.[35] It was Ms Johnson's assessment that JLZT had significant psychiatric impairment as a result of past abuse[36] and treatment would be fairly challenging, with a difficult treatment process and the probability of reversals.[37]
[JLZT] has had 3 brief admissions to Bloomfield hospital in the past when ... paranoid thoughts had increased in intensity. It appears these were voluntary admissions and [JLZT] has not followed through on treatment after discharge. [JLZT] described most recently seeing Dr Phillips in 2016 but only took prescribed abilify for 2 weeks. [JLZT] did not think antipsychotics had helped with ... paranoid thinking. It appears [JLZT] has previously also tried olanzapine, risperidone and quetiapine. [JLZT] has been on Prozac for about 20 years but stopped it about a month ago. It was difficult to identify any benefit from Prozac.[42]
[JLZT] continues to suffer from chronic lower back pain which he has had for many years now and was seemingly made worse after a fall 10 years ago.
...
[JLZT] wants to avoid any imaging at this stage due to his aversion to ionising radiation and fear of the cost. I have suggested that engaging in regular general exercise as well as a core strengthening program for his lumber spine will be likely to provide relief for him regardless of the pathology...[43]
60. On 13 August 2020, Ms Britton produced a report in which she identified the following functional problems:
NDIS application declined.
When experiencing back pain, function reduced and likely to limit safety accessing front and back steps, shower/bath transfer, bed and toilet transfers.
Hoarding.
Avoidance of social interaction.
Avoidance of community access.[44]
61. On 11 February 2021, Dr Ayerst produced a report in which he stated:
[JLZT] has a severe prejudicial development history with longstanding dysthymia, PTSD and a paranoid personality disorder with substance use disorder at times (but not currently).[45]
The doctor noted JLZT was not interested in taking medication and suggested that it is unlikely to work due to a very long period of untreated psychosis, and that any coercive measure to medicate JLZT may be perceive as a serious assault due to JLZT's level of mistrust.[46]
62. On 23 February 2021, Ms Brandt produced a report consequent to her assessment of JLZT on 2 previous occasions.[47] Ms Brandt set out her findings in respect of JLZT's cognitive, psychological and physical capabilities and impairments. She applied appropriate psychological testing tools and provided a detailed account of the results she obtained. Importantly, these tests were not solely reliant on JLZT's self-report. It was Ms Brandt's assessment that JLZT's physical and psychological disabilities are permanent in nature.[48] Ms Brandt was closely cross-examined about the assessments she undertook and the findings she made, including her qualifications and expertise, and the information she was provided with about JLTZ's history of therapeutic treatment.[49] Even though Ms Brandt may not have obtained a complete treatment history, her evidence was clear, cogent and based on a thorough assessment, part of which was conducted over an extended period in JLZT's home. Nevertheless, on the question of the permanency of JLZT's impairments, Ms Brandt's evidence must be weighed against the evidence of doctors and other therapists who have examined JLZT.
63. On 20 June 2021, Dr Noore produced a report having examined JLZT on 26 May 2021.[50] With regard to pain-related impairment, the doctor reported:
[JLZT] has had many years of persistent thoracic back pain from Scheuermann's Disease and osteoarthritis (spinal spondylosis). Over the years this has progressed to neck pain and lower back pain... [JLZT] has high impact pain with a pain severity score of 6.5/10, and a pain interference score of 7.8/10. This pain is associated with high levels of distress with a K-10 mental health score of 28/50 (greater than 20/50 is clinically significant).[51]
64. On the likely prognosis for JLZT's pain-related impairment, Dr Noore reported:
It is very likely that [JLZT] will continue to have high impact persistent spinal pain indefinitely. This is because the pain is caused by a chronic condition, Scheuermann's Disease. In addition, Scheuermann's Disease in turn increases the risk for the person with this condition to develop additional conditions like osteoarthritis of the spine which extends pain to other spinal regions. This has occurred with [JLZT]. Furthermore, [JLZT] has had persistent pain for more than 25 years. [JLZT] has had a wide variety of treatments which include physiotherapy, chiropractic treatment, pain education, interventional pain management (cortisone injections) and trials of all classes of medicines used for pain management. Additionally, the pain yellow flags I have listed above are harbingers of chronicity and poor response to treatment. [JLZT's] capacity to engage in treatment is limited by ... mental illness...[52]
65. With regard to impairments attributable to JLZT's psychiatric conditions, Dr Noore reported:
[JLZT] suffers from several chronic mental health conditions which include, Psychosis, PTSD, Recurrent Major Depression, and cognitive impairment suggestive of a Major Neurocognitive Disorder. These conditions cause severe impairment of personal and social functioning. This [sic] outlined in the body of this report and the comprehensive Occupational Therapy Report from Ms Bandt [sic] dated 23/2/2021.
66. On the likely prognosis of these impairments, the doctor reported:
... These conditions have persisted and have been disabling despite multidisciplinary psychological and medical treatment from psychologists, trauma counsellors, and psychiatrists. [JLZT's] social isolation, disputes with ... neighbours, and chronic pain are negative prognostic factors suggesting [JLZT] will continue to have long term problems. Finally, [JLZT's] newly documented cognitive impairment which suggests [JLZT] may have a Major Neurocognitive Disorder is a very serious negative prognostic indicator.[53]
I think regular antipsychotic medication taken consistently for a minimum duration of 6 months may reduce the severity of [JLZT's] psychosis. I think the antipsychotics taken in conjunction with the antidepressants may also reduce his depressive symptoms. Furthermore, Mental Health Case Management from the Community Mental Health Team would be helpful. However, I also think he will continue to have significant disabling symptoms despite the above. I don't think PTSD will improve given the extensive treatment he has already received. I also don't think his Major Neurocognitive Disorder will improve with these treatment recommendations.[54]
67. Dr Noore gave detailed oral evidence and he was extensively cross-examined. Considering his evidence and the terms of s 5.4 of the Rules, I am satisfied that, while JLZT may obtain some symptomatic relief from the treatments Dr Noore recommended, any such treatment is unlikely to remedy the impairments he and Ms Brandt identified.[55] Under s 8.2 of the Guidelines, the word remedy is taken to mean cure or substantially relieve. What is meant by the words substantially relieve is not explained. To my mind, substantial relief refers to something more than temporary symptomatic relief without remedial effect on the impairment itself of a more enduring nature. Furthermore, while symptomatic relief may reduce the effect of an impairment, under s 5.5 of the Rules, the impairment may be permanent despite fluctuations of that kind.
68. There is no probative material suggesting JLZT's cognitive impairment is likely to be remedied by any treatment. The cognitive impairment reported by Dr Noore and Ms Brandt was measured by neurocognitive testing in which JLZT achieved a score of 65/100. On Dr Noore's evidence this score would be consistent with Major Neurocognitive Disorder or dementia which may be related to a head injury JLZT sustained when assaulted in 1999, age, or a history of drug and alcohol abuse.[56] I accept that is correct.
69. I note in passing, and reject, the attack mounted against the reliability of Dr Noore's evidence. To my mind, Dr Noore is eminently well qualified to give evidence on the matters traversed in his report and his oral evidence. His history of previous personal and professional difficulties, which were resolved without ongoing controversy or persisting restrictions well before his involvement in JLZT's case, does not diminish the weight his evidence can now be given.
70. Considering evidence of JLZT's treatment history, it can be accepted that JLZT has not always followed treatment recommendations and prescriptions have not always been complied with. The reasons for this include JLZT's intolerance of certain medications (such as Duloxetine),[57] difficulty accessing treatments in the rural locality where JLZT lives and difficulty affording treatments, choices he has made and the effects of the chronic psychiatric conditions JLZT suffers.
71. The questions arising from this for present purposes are whether further evidence-based treatments of the kinds suggested by Dr Noore, Ms Brandt and others would be likely to remedy the impairments or improve the degenerative spinal condition or the psychiatric conditions from which they result.
72. It is possible the severity or intensity of JLZT's spine and pain-related physical impairments may be reduced by further therapy, such as physiotherapy or multi-disciplinary pain management treatment. But the present evidence does not establish that any such treatment would be likely to remedy these impairments: any relief JLZT might obtain would be symptomatic and in all likelihood temporary. Furthermore, Dr Noore's evidence is that JLZT would be unlikely to benefit from pain management treatment as JLZT would be unlikely to tolerate group pain management therapy and would likely experience difficulty learning new information and practising pain management skills as a result of cognitive and psychiatric impairments.[58]
73. It is also possible the extent and frequency of impairments produced by JLZT's psychiatric conditions might be reduced by further therapeutic treatments, such as active psychological therapy and a combination of antipsychotic and antidepressant medications. In my assessment however, on Dr Noore's evidence, it is unlikely such treatments would remedy JLZT's cognitive impairment or the impairments JLZT experiences as a result of chronic post-traumatic stress disorder, major depressive disorder, schizoaffective disorder and paranoid personality disorder, which are likely to be lifelong. There is an important difference between remedying an impairment and reducing the functional effect of the impairment. I am not persuaded that further treatment is likely to remedy JLZT's impairments to the extent any one of them should not be considered permanent.
74. In conclusion on this issue, for the purposes of s 24(1)(a) and (b), I am reasonably satisfied that JLZT's disability is attributable to the following impairments, which fluctuate and are, or are likely to be, permanent:
(i) reduced spinal range of motion and associated chronic pain;
(ii) reduced mobility using steps, shower/bath transfers and toilet transfers;
(b) cognitive impairment, including:
(iii) reduced attention, concentration and memory;
(c) impairment from psychiatric conditions resulting in delusions and auditory hallucinations, episodes of depression and severe anxiety, including:
(iv) reduced personal and social functioning.
Impairment resulting in substantially reduced functional capacity
75. On Ms Brandt's evidence, JLZT's functional capacity to undertake one or more of the 6 kinds of activity listed in s 24(1)(c) is affected by impairments I have found to be permanent. Furthermore, as will appear, JLZT's psychosocial functioning when attempting to undertake some of these activities is also affected.
76. Section 5.8 of the Rules sets out matters that must be considered when determining if a permanent impairment results in substantially reduced capacity:
5.8 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.
77. Section 8.3 of the Guidelines sets out the relevant Agency policy. If a positive finding is made that the prospective participant has a substantially reduced functional capacity in respect of one or more of the activities set out in 24(1)(c)(i)-(vi) of the NDIS Act, the threshold is surpassed.[59]
78. It is necessary to consider each permanent impairment separately and in combination with any other permanent impairment of the person, as well as each of the activities: communication, social interaction, learning, mobility, self-care, self-management. The assessment is not a comparative exercise, rather it is an assessment of what the person can and cannot do, having regard to the contents and the deeming effect of s 5.8 of the Rules.[60]
79. To the extent the thresholds set out in s 5.8 of the Rules are open to interpretation, they are to be construed for the purposes of s 24(1)(c) of the NDIS Act and, in that context, the phrase substantially reduced functional capacity refers to a considerable or sizeable reduction in the person's functional capacity to undertake, or their psychosocial functioning in undertaking, one or more of the listed activities. The term psychosocial functioning is not given particular meaning in the legislation.
80. In consideration of s 5.8 of the Rules, there is a real question whether, as a result of one or more permanent impairments, JLZT is unable to participate effectively or completely in communication activities, in conversations, or when reading or viewing information. There is also a real question whether JLZT is able to perform tasks or actions required to undertake or participate effectively or completely in such activities.
81. Ms Bandt reported that JLZT has difficulty communicating in a socially acceptable manner in regard to length, depth and appropriateness of the topic to form a collaborative conservation.[61] Dr Noore reported that JLZT finds it hard to have a regular conversation and to concentrate on what people are saying and has difficulty in taking turns in a conversation - JLZT finds it difficult to attend to what people are saying in a conversation.[62]
82. Dr Peterson reported that JLZT does not require assistance to communicate.[63] Unfortunately, Dr Peterson suffered a severe injury and he was not called to give oral evidence. That being so, it is necessary to evaluate his summary assessment of the extent to which, if at all, permanent impairments affected JLZT's functional capacity to undertake activities without further explanation. Importantly, the doctor did not refer to key cognitive and psychiatric impairments which I have found to be permanent. For this reason, I prefer the evidence of Dr Noore and Ms Toovey in respect of JLZT's functional capacity to undertake communication.
83. The difficulty here is that JLZT is capable of communicating effectively (and did so over the course of the hearing), albeit that issues of appropriateness, length, cogency and content bear down on that capability. Sections 5.8 (a) and (c) of the Rules are not satisfied in this case.
84. Dr Noore, Ms Bandt and other therapists have reported the need to interrupt or to prompt JLZT in conversation.[64] This is consistent with the low scores JLZT achieved on psychometric and cognitive testing as reported by Ms Bandt and Dr Noore.[65] Furthermore, on Dr Noore's evidence, the content of JLZT's communication is affected by psychiatric disturbance, including delusions or auditory hallucinations, such as perceiving neighbours and people on the street as threatening or hearing voices at night for example.
85. By his own account, and consistent with the cognitive impairments Ms Brandt and Dr Noore identified, JLZT experiences substantial difficulty with comprehension of written and audio-visual materials. This became very clear in the course of the hearing when it became apparent JLZT had signed documents without having thoroughly read and fully understood their contents. It is Dr Noore's evidence JLZT's functional capacity to communicate is substantially reduced by physical (pain-related) and cognitive impairments as well as impairment resulting from JLZT's psychiatric conditions. In all likelihood, JLZT requires assistance to read and comprehend written documents of any length or complexity, such as statements drafted by his lawyers for the purposes in these proceedings. This is consistent with JLZT requiring assistance to perform tasks or actions required to undertake or participate in written communication activities.
86. I am reasonably satisfied that JLZT usually requires assistance in the form of guidance, support or prompting from other people to participate in and to undertake communication activities effectively. Having regard to the terms of s 5.8(b) of the Rules, this is taken to be a substantial reduction in JLZT's functional capacity to communicate.
87. The evidence in respect of JLZT's functional capacity to undertake social interaction and his psychosocial functioning in this context predominantly goes one way. Dr Peterson's summary assessment stands out. The doctor answered the formulaic question Does the person require assistance to interact socially because of their impairment/s? by ticking a box marked 'No'.[66] No further explanation is provided. I note, however, the doctor did not refer to JLZT's permanent cognitive and psychiatric impairments beyond depression and anxiety. This reduces the weight that can be given to his assessments.
88. Ms Brandt reported JLZT achieved a score of 12/35 on the Community Integration Questionnaire - Revised, which would be expected to drop to 7/35 during a depressive episode.[67] While this score may be construed as a comparative measure, it indicates a low level of functional capacity for social interaction.
89. Ms Brandt reported JLZT has difficulty with social integration, productivity and electronic social networking.[68]
91. Ms Britton reported JLZT reports accessing the community approximately once a fortnight on pension day to go to the supermarket and identified avoidance of social interaction and avoidance of community access as problems.[71]
92. Dr Ayerst reported JLZT has comes into conflict with community dwellers and authorities due to [JLZT's] CHRONIC paranoid personality disorder.[72]
Because of his mental illness JLZT avoids talking to people. Social contact makes [JLZT] extremely uncomfortable. [73]
In Dr Noore's opinion, JLZT's mental health condition would make it very difficult for him to tolerate group pain management,[74] and reported that JLZT's background of sexual abuse and trauma results in difficulty tolerating treatment by tall men and being touched by female physiotherapists. It is Dr Noore's opinion that JLZT's conditions result in severe impairment of personal and social functioning.[75]
94. Dr Noore's evidence, which I accept, is that JLZT has a substantially reduced functional capacity to undertake and to participate in social interaction.
95. The difficulty JLZT encounters is not one of inability, rather it is paranoia, anxiety, depression and psychotic delusions that result in substantially reduced motivation and avoidance.[76] JLZT's interactions with other people are often affected by severe anxiety, depression, paranoid or psychotic delusions and communication difficulties. While JLZT is able to undertake some activities involving social interaction, including going to the shop to buy food or travelling by train to Sydney to consult Dr Noore, JLZT's functional capacity to do so is substantially reduced by psychiatric impairments. For example, even though JLZT was able to travel to Sydney, this was the first and only such trip in more than 10 years. Avoidance of social interaction is a manifestation of JLZT's psychiatric impairments that are permanent.
96. Considering these matters, I am reasonably satisfied JLZT's psychosocial functioning is substantially reduced in undertaking social interaction activities. JLZT does not require physical or technological aids in order to participate in or to undertake social interaction activities, and the terms of s 5.8(a) are not met. The assistance JLZT requires is in the form of guidance, supervision or prompting to manage or to overcome the psychological impediments to participation in social interaction, or to perform related tasks or actions. That being so, I am satisfied JLZT usually requires guidance, supervision and prompting to prepare for as well as to participate in and undertake social interaction activities. This means that s 5.8(b) of the Rules is satisfied.
97. Dr Peterson's assessment is the JLZT does not require assistance to learn effectively.[77] The basis on which the doctor made this assessment is not clear, and he did not refer to any cognitive impairment whatsoever. As I have said previously, and I do not want to be critical of Dr Peterson in any way, this reduces the weight that can be given to his assessment.
98. Ms Bandt applied the Montreal Cognitive Assessment tool (MOCA) in her examination and assessment of JLZT. She reported that JLZT achieved a score of 19/30, where anything below 26/30 indicates reduced cognitive function.[78] Ms Bandt stated:
Errors were observed in executive functioning, delayed recall, attention, numeracy, and language.
99. Ms Toovey reported JLZT's capacity to deal with stress and interpersonal stress is severely limited and:
Interpersonal relationships pose a challenge for the client and this translates into [JLZT] being either, over-aroused or under-aroused, which limits [JLZT's] ability to take in new information or access previously learned information.[79]
100. Dr Ayerst referred to an issue with hoarding and squalor. [80] Ms Britton also reported JLZT has a hoarding problem and JLZT indicates the significant amount of boxes etc inside is due to [JLZT] not being able to carry through with completing the task - [JLZT] is aware it needs to be done but is not able to organise ... to get the task done.[81]
101. On 23 September 2020, JLZT was assessed using the Neuropsychiatry Unit Cognitive Assessment Tool (NUCOG): a result of 65/100 was obtained.[82] Dr Noore reported this result indicates major neurocognitive impairment, being well below the cut-off of 80/100. It is Dr Noore's opinion that JLZT's capacity for learning is compromised by cognitive impairment.[83]
102. On this evidence, which I accept, JLZT has reduced functional capacity to learn. The evidence does not establish this would be assisted by assistive technological aids or equipment. It is conceivable that guidance, supervision and prompting by another person might be of some assistance, although on Dr Noore's evidence JLZT's ability to learn new information and practise new skills is permanently compromised. That being so, in all likelihood s 5.8(b) or (c) of the Rules is satisfied. I am reasonably satisfied that JLZT's functional capacity for learning is substantially reduced by cognitive impairment which is permanent.
103. The evidence of Ms Bandt and Ms Britton establishes JLZT has reduced functional mobility using steps, shower/bath transfers and toilet transfers.[84] The 10 January 2018 report of Dr Petersen[85] does not compel any different finding on this point: the weight of medical evidence, including the report of Dr Le Lievre on 17 May 2018,[86] does not support Dr Petersen's assessment.
104. Ms Bandt's reported JLTZ relies on a "home-made" suspended walking stick as a substitute grab-rail to facilitate transfers into and out of the shower, which is over the bath, and JLZT experiences difficulty getting up from the toilet seat and uses the basin for support - the toilet seat is too low.[87] This is consistent with Ms Britton's evidence.[88]
106. JLZT relies on assistive technology aids, albeit in the form of the home-made suspended walking stick and a hand basin, in transfers for showering (over a bath) and toileting. On Ms Brandt's evidence, JLZT's use of such aids raises safety concerns, especially as JLZT lives alone and is socially isolated. I am satisfied that without these aids JLZT would experience substantial difficulty transferring safely for showering and toileting.
107. Ms Brandt's assessment is that there are steps at the front and rear of JLZT's house which cause mobility difficulties and safety issues. These considerations could be alleviated by installing grab rails. That may be so, but the evidence does not establish that JLZT is unable to negotiate the stairs. JLZT gave evidence of carrying bags of dog food and groceries into the house, and installing cameras under the eaves.
108. The Agency's policy in respect of the meaning of mobility is set out in s 8.3.1 of the Guidelines:
Mobility: this means the ability of a person to move around the home (crawling/walking) to undertake ordinary activities of daily living, getting in and out of bed or a chair, leaving the home, moving about in the community and performing other tasks requiring the use of limbs;
109. I should say immediately that the conception of ordinary activities in this definition implies not only the undertaking of activities of daily living which may be characterised as ordinary, but also the undertaking of the activity in an ordinary manner. For example, for an adult person who is unable to walk unaided, it would not be considered ordinary for them to crawl around their house or in the community, whereas for a young child who is unable yet to walk, crawling may well be a threshold of mobility which might be considered ordinary.
110. To the extent that the Tribunal took a different view in Madelaine v NDIA (Madelaine), observing that Movement in the home does not need to be achieved by walking; a person might even crawl from room to room,[91] I respectfully disagree.
111. The legislation and the Guidelines do not proceed on such a basis. Rather, s 5.8 of the Rules sets out the basis on which a person is deemed to have a substantially reduced capacity to undertake the activities listed in s 24 of the NDIS Act, in which one touchstone is a requirement for assistance, and s 8.3.1 of the Guidelines proceeds on the basis that:
When considering whether a person requires assistance from others to participate in or perform tasks associated with an activity, the NDIA will have regard to whether the person's need for assistance is consistent with normal expectations of a person of a similar age.
112. In my assessment, JLZT's functional capacity to mobilise when undertaking self-care activities, including negotiating steps is reduced by permanent impairments. Nevertheless, the question is whether this is within the terms of s 5.8 of the Rules for the purposes of s 24(1)(c) of the NDIS Act.
113. In the context of the Scheme legislation and considering the Agency's policy set out in s 8.3.1 of the Guidelines, a person who has a substantial difficulty undertaking an activity independently and safely may be unable to participate effectively or completely in the activity without assistance for the purposes of s 5.8(a) of the Rules.
114. This is such a case. Considering the terms of s 5.8(a) of the Rules, I am satisfied that JLZT is unable to participate effectively or completely in showering and toileting without assistive technology.
115. The term self-care in s 24(1)(c) of the NDIS Act is not given any special meaning. The meaning given to self-care in the Agency's policy is set out in the Guidelines:[92]
Self-care: means activities relating to person care, hygiene, grooming and feeding oneself, including showering, bathing, dressing, eating, toileting, grooming, caring for own health care needs;
116. It is appropriate to adopt this meaning for present purposes.
117. JLZT lives alone and independently engages in activities of daily living.
118. Ms Brandt reported that JLZT's self-care diminishes during depressive episodes, in which JLTZ may remain in bed for a number of days. I am satisfied that in such circumstances, JLZT is not unable to get out of bed, but does so for toileting, hydration and to feed pets. It is Ms Brandt's assessment that JLZT requires formalised personal support which includes daily drop-in supervised support for personal care tasks.[93] On her evidence, for example, JLZT requires verbal prompting from formal supports to initiate showering tasks.[94] This is not confined to depressive episodes but it is also a consequence of disordered sleep and tiredness:
When [JLZT] is tired and not well-rested ... pain tolerance and psychological endurance is lower and will lead to less participation in Activities of Daily Life.[95]
119. JLZT's evidence of experiencing depressive episodes on a number of days each week and experiencing sleep problems was not seriously challenged. I accept that JLZT experiences frequent difficulties initiating and maintaining sleep as a result of nightly disruptive dreams and periodic auditory hallucinations.
120. The Agency's policy in respect of episodic conditions is set out in s 8.3.1 of the Guidelines:
When considering whether a fluctuating or episodic impairment results in substantially reduced functional capacity to undertake relevant activities, the NDIA will consider the impact on the person's ability to function in the periods between acute episodes.
121. There is no legislative basis for the exclusion of periods in which a fluctuating or episodic impairment is florid or pronounced when assessing a person's functional capacities to undertake each of the activities listed in s 24(1)(c) of the NDIS Act. This section and s 5.8 of the Rules requires a functional and practical assessment of what the person can and cannot do.[96] When assessing episodic or fluctuating impairments, the important point is to make a practical judgment of the effect of the impairment on the person's functional capacity to undertake the specified activities.
122. In Madelaine and NDIA,[97] the Tribunal referred to s 8.3.1 of the Guidelines and accepted a submission made by the Agency that functional capacity should not be characterised by what she was able to do on a bad day.[98] Nevertheless, just as it would not be appropriate to assess the person's functional capacity solely on the basis of acute episodes or the person's worst days, it would also not be appropriate to exclude those episodes or days from consideration and proceed to assess the person's functional capacity solely on the basis of they can do on a good day.
123. On Dr Noore's evidence, the severity and chronicity of JLZT's cognitive impairment is consistent with dementia. Furthermore, the doctor explained that JLZT's psychiatric impairments, particularly severe anxiety, paranoia and psychosis, as well as the frequency and duration of depressive episodes, result in avoidance and loss of motivation that negatively affect self-care functional capacity. It is Dr Noore's evidence that JLZT's cognitive and psychiatric impairments interact with treatment regimens, which otherwise might be efficacious to some degree in the management of symptoms, and the chronicity of the impairments inform JLZT's avoidance behaviour. This reduces JLZT's functional capacity to seek, undertake and comply with treatment options.
124. In my assessment, JLZT has reduced functional capacity to undertake self-care activities. Nevertheless, JLZT is 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. Overall, making a practical judgment, I am reasonably satisfied JLZT is unable to participate effectively or completely in all self-care activities without assistance from other people in the form of guidance, support or prompting.
125. For this reason, I am satisfied that the terms of s 5.8(b) of the Rules are made out in respect of self-care.
126. The term self-management in s 24(1)(c) of the NDIS Act is not defined. The Agency policy sets out the following meaning in the Guidelines:
Self-management: means the cognitive capacity to organise one's like, to plan and make decisions, and to take responsibility for oneself, including completing daily tasks, making decisions, problem solving and managing finances.
127. It is appropriate to adopt this meaning for present purposes.
129. Ms Brandt reported JLZT has some difficulty with complex cognitive tasks such as problem solving, short term memory and attention.[101] In her assessment, consistent with JLZT's low MOCA score, JLZT requires a moderate level of formal supports to better assist ... with household tasks.[102] She reported that JLZT has a tendency towards hoarder and living in squalor and Due to decreased motivation and drive [JLZT] does not regularly sweep, pack things away or mop the bathroom.[103] Ms Britton identified JLZT's hoarding was a problem and observed:
Hoarding is significant in two spare bedrooms and lounge area with limited space. There was no seating available to sit and complete the home visit.[104]
130. Dr Noore reported that JLZT has substantially reduced functional capacity to undertake self-management activities and Pain, depression, and lack of motivation makes it difficult for [JLZT] to attend to domestic duties.[105] This aligns with the doctor's evidence that the effects of JLZT's cognitive impairment, as indicated by the low NUCOG score, may be likened to dementia. It also supports a finding that JLZT's permanent physical, cognitive and psychiatric impairments have a negative effect on JLZT's functional capacity to make decisions, complete daily tasks, especially in respect of domestic hygiene and hoarding, and to engage in problem solving.
131. On the evidence of Ms Brandt, Ms Toovey, Ms Britton and Dr Noore, I am reasonably satisfied that JLZT requires guidance, supervision and prompting to participate in and to perform tasks required to undertake self-management activities. It follows that s 5.8(b) of the Rules is satisfied.
Impairment affecting capacity for social or economic participation
132. The weight of the available evidence all goes one way on this point: JLZT's capacity for social and economic participation is adversely affected by the permanent physical, cognitive and psychiatric impairments I have already discussed.
133. There is simply no basis for any different finding. JLZT struggles with the most innocuous social or economic participation activities, such as going to the local supermarket to shop for groceries. The evidence of Ms Brandt and Dr Noore clearly supports a finding that the permanent impairments I have found adversely affect JLZT's capacity for economic and social participation.
134. It follows that s 24(1)(d) of the NDIS Act is satisfied.
Requirement for lifelong support under the Scheme
135. The final threshold consideration under s 24(1)(e) is whether JLZT is likely to require support under the Scheme for life. This consideration involves an assessment of the likely duration of JLZT's requirement for support under the Scheme should access be granted as a participant.
136. The Agency submitted that a person would fail to meet the threshold in s 24(1(e) in circumstances where their support needs are able to be met under mechanism or services outside the Scheme. In JLZT's case it was suggested that, as an Aboriginal person, JLZT may be eligible for the provision of support under the Commonwealth My Aged Care program prior to pension age, at age 50 or 55, and this would mean the threshold in s 24(1)(e) cannot be met.
137. This submission must be rejected. It proceeds on the rather extraordinary basis that any person who may at some point in their life become eligible for the provision of support under the My Aged Care program is to be excluded from the Scheme. The same result would apply were a person be potentially eligible at some point in the future for any other program or service that provides supports or assistance for people with disability.
138. Aside from the prospective nature of such a construction (which is not accepted) and the related probative difficulties that would result (which are substantial), the submission misconstrues the language and the purpose of the section.
139. The phrase likely to require support under the [Scheme] in s 24(1)(e) must be read in context and construed for the purposes of the disability requirements, in which it is an essential precondition for the grant of access to the Scheme as a participant. In this context, it is not necessary or appropriate to make an assessment of the nature or extent of assistance the person may require under the Scheme, as such matters are relevant only after the person has been found to be a participant.[106] For the same reason, it does not involve consideration of potential supports the person may require in the future with reference to the terms of s 33 or the factors set out in s 34 of the NDIS Act.
140. 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.
141. Dr Noore was very clear in his assessment that JLZT's physical, cognitive and psychiatric impairments and the conditions from which they stem are permanent and are not expected to remit even should further treatments be pursued (which may provide some symptomatic relief, temporarily, but without remediating the chronic underlying conditions JLZT suffers). On Dr Noore's evidence, JLZT's osteoarthritis and neurocognitive disorder may progress degeneratively, with consequential adverse effects on the extent of JLZT's impairments.
142. In conclusion on this point, I am reasonably satisfied that JLZT's requirement for support under the Scheme is likely to be a lifelong requirement. If follows that s 24(1)(e) is satisfied.
143. has physical, cognitive and psychiatric impairments that are permanent. These permanent impairments substantially reduce JLZT's functional capacity to undertake activities listed in s 24 (1)(c) of the NDIS Act, and adversely affect JLZT's capacity for social and economic participation. JLZT is likely to require lifelong support under the Scheme.
144. It follows that JLZT satisfies the disability requirements under s 24.
145. There is no controversy, correctly in my assessment, that JLZT meets the age requirements and the residence requirements.
146. For these reasons, JLZT meets the access criteria set out in s 21 of the NDIS Act, and in consequence the decision under s 20 of the NDIS Act which refused JLZT access to the Scheme cannot stand.
147. The decision under review is set aside and, in substitution, the Tribunal decides JLZT meets the access criteria under s 20 of the NDIS Act.
I certify that the preceding 147 (one-hundred and forty-seven) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member.
...............................[sgd].........................................
[3] Exhibit 4, pages 245, 269, 379, 690 and 693.
[23] QDKH v NDIA [2021] FCAFC 189 at [7].
[24] Frugtniet, per Kiefel CJ, Keane and Nettle JJ at [14]-[15] and Bell, Gageler, Gordon and Edelman JJ at [51].
[25] Ibid, per Kiefel CJ, Keane and Nettle JJ at [14].
[26] Ibid, per Bell, Gageler, Gordon and Edelman JJ at [53].
[27] Ibid, per Kiefel CJ, Keane and Nettle JJ at [15].
[28] Shi v Migration Agents Registration Authority [2008] HCA 31, per Kirby J at [43]-[46] and Kiefel J (as she then was) at [142]-[145].
[29] Ibid, per Kirby J at [46], Heydon and Hayne JJ at [99] and Kiefel J at [145].
[33] Ibid, page 330; pages 350-354 refer.
[84] Ibid, pages 221, 222, 225 and 332.