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NATIONAL DISABILITY INSURANCE SCHEME - whether applicant has substantially reduced functional capacity to undertake certain activities - meaning of 'substantially reduced' - s 24(1)(c) criteria - psychosocial functioning - social interaction - certain personality disorders - whether applicant requires supports - whether activities undertaken by applicant rule out qualification for supports - financial sustainability of scheme - meaning of s 24(1)(e) of Act unclear - ex tempore oral decision - written reasons - decision affirmed.

National Disability Insurance Scheme (Becoming a Participant) Rules 2016

Operational Guidelines of the National Disability Insurance Agency

Deputy President Gary Humphries and Senior Member Jill Toohey

1. Mr Bryan Kilgallin seeks review through this Tribunal of a reviewable decision dated

4 April 2016 made by the National Disability Insurance Agency (NDIA) pursuant to s 100(6) of the National Disability Insurance Scheme Act 2013 (the Act). The decision confirmed an earlier decision by the NDIA that Mr Kilgallin does not qualify to become a participant in the National Disability Insurance Scheme (NDIS) as he does not meet the relevant requirements under the Act. 2. The matter was considered at a hearing before the Tribunal on 19 January 2017. An ex tempore decision was delivered orally the same day. These are the written reasons of that oral decision. 3. The Tribunal notes the diagnosis of Mr Kilgallin's condition provided by Dr Bruce Lean, Mr Kilgallin's treating psychiatrist. Dr Lean diagnosed Mr Kilgallin with obsessive compulsive disorder; major depressive disorder; autistic spectrum disorder; and mixed personality disorder with cluster A and C type personalities. Precise diagnosis of each condition is not particularly important, but the Tribunal accepts Mr Kilgallin suffers from these conditions, and that those conditions are permanent and unlikely to be alleviated. 4. On 5 January 2016, Mr Kilgallin lodged an access request to become a participant in the NDIS. He was advised on 9 February 2016 that the NDIA had decided he did not meet the access requirements for the scheme. On 3 March 2016, Mr Kilgallin asked for a review of that decision. On 4 April 2016, a reviewer came to the same conclusion as the initial decision maker. On 13 May 2016, Mr Kilgallin applied for review of the decision by this Tribunal. Mr Kilgallin's application was out of time, but the Tribunal granted an extension of time to consider his application.

1. A person becomes a participant in the NDIS if they meet the access criteria under s 21 of the Act. This requires that one must meet the age requirements at s 22, the residence requirements at s 23, and either the disability requirements at s 24 or the early intervention requirements at s 25. Mr Kilgallin clearly meets the criteria in ss 22 and 23 of the Act.
2. Section 25(1) of the Act provides:

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

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

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

(iii) is a child who has developmental delay; and

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

There was no dispute before the Tribunal that Mr Kilgallin does not meet the requirements of s 25, in particular paragraph (1)(b) of that section. Without a detailed examination of the issue, the Tribunal accepts the parties' position that Mr Kilgallin cannot meet this requirement. This means the issue at hand in this matter is whether Mr Kilgallin meets the criteria under s 24 of the Act, namely the disability requirements.

(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:

(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...

1. There was consensus between the parties - and the Tribunal accepts - that Mr Kilgallin meets the requirements under s 24(1)(a), (b) and (d); for reasons set out at paragraph 29 below we do not consider it necessary to determine whether he meets the requirement in paragraph (e). However what was contested at the hearing was whether Mr Kilgallin meets the requirements of s 24(1)(c). This meant that throughout the hearing there was a particular focus on the extent to which Mr Kilgallin's impairments resulted in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, those activities referred to in paragraph (c), but in particular social interaction.
2. The question at hand is therefore whether Mr Kilgallin has a substantially reduced capacity in one or more of these areas, so as to qualify him as a participant in the NDIS.

1. The Tribunal was benefited from clear evidence from Mr Kilgallin regarding the extent of the activities referred to in s 24(1)(c), that were applicable to him on a day to day basis. Some of that evidence indicated a deterioration in recent times of Mr Kilgallin's ability to undertake those activities.
2. The Tribunal also, of course, had regard to other instruments to which it must have regard. These include the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 made by the Minister under s 209(1) of the Act. These rules are binding on the Tribunal. They describe scenarios in which an impairment results in a substantially reduced functional capacity of a person to undertake activities. The Tribunal also had regard to the Operational Guidelines, made under the NDIA, including Part 8.3, which describes what social interaction, under s 24(1)(c)(ii), means. To quote from the guidelines, social interaction includes making and keeping friends... interacting with the community, behaving within limits accepted by others, [and] coping with feelings and emotions in a social context. Those sorts of issues were considered in evidence before the Tribunal at the hearing.
3. After hearing that evidence the Tribunal certainly formed a view about Mr Kilgallin's capacity to take part in the activities referred to in 24(1)(c), and the extent to which those activities are impacted by his impairment. It is clear that Mr Kilgallin can undertake, to varying degrees, all the activities referred to in s 24(1)(c). It is clear, in addition, that there is some, limited effect from his impairment on his functional capacity to undertake the activities referred to in 24(1)(c). For example, it is clear that Mr Kilgallin has few physical inhibitions on being able to go for walks, to tend to his garden, to climb Mount Ainslie or to drive a car. Any physical inability to undertake these sorts of tasks is limited but not substantially reduced.
4. What is more relevant, in the context of this matter, is the extent to which Mr Kilgallin's level of psychosocial functioning is affected by his impairment. The Tribunal accepts there is a certain extent to which the activities described in s 24(1)(c) are affected by Mr Kilgallin's impairment, in the psychosocial sense. For example, it appears he is capable of going for a walk, when he wants to. There was evidence before the Tribunal that he was advised by his doctor to go for a daily brisk walk, but that he only gets to do so one morning in four, because he often lacks the motivation to do so. It may therefore be said that there is a psychosocial effect on his capacity to undertake that activity. In this context Mr Kilgallin volunteered that it would be of benefit to have someone to prompt and encourage him to undertake the walks.
5. The Tribunal has come to the view that Mr Kilgallin's impairment does affect his capacity to undertake the activities I have discussed. The Tribunal also takes view he may well have reduced psychosocial functioning in undertaking these activities, for the reasons mentioned above. However the Tribunal is not persuaded that Mr Kilgallin has a substantially reduced functional capacity to undertake the activities outlined in s 24(1)(c).
6. The Tribunal was presented with evidence, for example, that Mr Kilgallin could interact in a number of ways with other people. He was able to undertake walks with his friend, Mr Bittinger, for example. He had in the past been able to undertake walks with Mr Kay. He goes out for dinner once or twice a month with Ms Walker. He said in the not too distant past he had cooked curries for Mr Bittinger, had gone on walks up Mount Ainslie with him, and had talked about quantum physics with him.
7. Mr Kilgallin has also mentioned various social and political organisations he belongs to, or has belonged to. He had undertaken to attend meetings, albeit irregularly, with the Linux Users Group in the ACT and the Sporting Shooters Club. He had belonged to different political parties at various times, during which time he handed out leaflets.
8. Mr Kilgallin gave evidence about his capacity to go shopping, admittedly not at the busiest times of day so as to avoid the crowds. He told the Tribunal he knows the names of at least some of his neighbours through interaction with them. He had taken part in social activities including dinners in the evening of a number of organisations, including a church charity. There was evidence some of those activities had reduced in recent times, but it is not clear that that reduction is attributable to Mr Kilgallin's impairment, as much as to other factors. The Tribunal heard how only the day prior to the hearing Mr Kilgallin had met a socialist gentleman friend of his at the laundromat, had struck up a conversation with him, and then had driven him home.
9. The Tribunal regards such evidence as demonstrating that Mr Kilgallin has the capacity to undertake these kinds of activates on a more or less day-to-day basis. His impairment no doubt has the effect of mounting barriers to his participation in those activities, including through a lack of motivation and a lack of desire to leave the home from time to time. The Tribunal accepts that those barriers affect him adversely in his ability to undertake activities and reduce the frequency with which he undertakes them. But the Tribunal is not convinced that the level of incapacity experienced by Mr Kilgallin, demonstrated through the evidence before the Tribunal, necessarily equates to a substantial reduction in his psychosocial capacity or functioning in those areas.
10. The Tribunal notes a number of further points in this respect. Social interaction as referred to in 24(1)(c)(ii) doesn't, in our view, mean social interaction with the whole of the community. It means social interaction with elements of the community, sections of the community. Mr Kilgallin gave evidence he tends to socialise with special people like me, and this may well be the case. Nevertheless, interaction on a more-or-less regular basis with people he feels comfortable with amounts, in our view, to social interaction.
11. Mr Kilgallin also gave evidence that his social interactions sometimes end badly, in conflict or in failure. At the hearing he talked about the expulsions from community organisations he had experienced, which must not have been a very pleasant way to end those social interactions. But the fact that this occurs does not detract from the fact that he continues to engage socially with people and organisations and to participate in those ways.
12. For example, the Tribunal received evidence that Maggie May had ended her online friendship with Mr Kilgallin, and that this was an indication of how his relationships may sometimes break down. But he also indicated he continues to maintain relationships with other people: people in America; people with medical conditions similar to his; as well as physical relationships. He maintains a webpage and keeps it up-to-date and has some interaction with people through it. While noting the impact of his psychosocial functioning on his social interactions, the Tribunal does not consider that impact to be severe or substantial.
13. Mr Kilgallin made reference to the fact there has been a reduction in his activities, including social interaction, since last July, when there has been a reduction in support from Comcare, and a subsequent reduction in his income in consequence. Because of his financial hardship, Mr Kilgallin submitted that he now makes decisions about the extent to which he can afford to do things out in the community, instead of deciding to do them, further reducing his ability to interact socially. The Tribunal accepts this. However, to the extent that his impairment has been reduced since last July, the Tribunal finds that it was because of his reduced income rather than his impairment.
14. The Tribunal also takes the view that the reference in 24(1)(c) to substantially reduced functioning does not entail a comparison with levels of functional capacity or psychosocial functioning previously enjoyed by an applicant. It is a reference to reduced functional capacity compared with what a person in the community who has not experienced the impairments of the applicant might otherwise be able to undertake.
15. In considering Mr Kilgallin's submissions, the Tribunal had regard to factors referred to in Rule 5.8 of the Becoming a Participant Rules 2016, setting out circumstances where an impairment will be considered to result in a substantially reduced functional capacity. That rule provides:

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.

NOTE: Paragraph 5.8 is made for the purposes of paragraph 27(b) of the Act.

1. The Tribunal notes that Mr Kilgallin does not appear to fall within any of the paragraphs demonstrating substantially reduced functional capacity. In respect of paragraph (a), Mr Kilgallin's circumstances do not suggest an inability to participate effectively or completely without assistive technology, equipment or home modifications. Nor does it appear, in relation to paragraph (b), that Mr Kilgallin usually requires assistance from other people to participate in an activity (though this is occasionally the case). Clearly he does participate in activities and perform tasks without assistive technology, equipment, home modifications or third-party assistance, and so does not satisfy paragraph (c).
2. Of course a failure to fall within the provisions of Rule 5.8 of the Becoming a Participant Rules 2016 does not define all the circumstances in which a person might have a substantially reduced functional or psychosocial lack of capacity: per Mortimer J in Mulligan v NDIA [2015] FCA 544 at [77]. But it certainly guides the Tribunal to the kinds of factors which need to be considered in deciding whether a person has reduced capacity. For the reasons I have indicated, the Tribunal is not persuaded Mr Kilgallin has a substantially reduced functional capacity in those areas.

1. The Tribunal makes reference to two further matters.
2. The Tribunal heard submissions from the respondent with respect to the financial sustainability of the NDIS and the potential financial impact to the scheme of permitting applicants with conditions similar in nature to that of Mr Kilgallin to become participants. The Tribunal accepts, pursuant to other sections of the Act, that it has an overarching responsibility to ensure its decision does not significantly erode the overall financial viability of the NDIS. However in the absence of any specific information about what a decision to include a person such as Mr Kilgallin in the scheme might mean for the financial sustainability of the scheme, the Tribunal is unable to form an opinion as to exactly what impact a decision of that kind would have on its financial sustainability. The Tribunal therefore notes the obligation, but does not consider it to be a factor favouring or disfavouring the Applicant on this occasion.
3. The Tribunal similarly notes the argument of the NDIA in respect of s 24(1)(e), that Mr Kilgallin appears to qualify under s 24(1)(e), on the basis that general supports (such as referrals to services) will be available to him, even if he is not a participant in the scheme. The Tribunal finds it hard to be certain what the criteria of s 24(1)(e) actually mean. The Tribunal therefore notes the argument of the respondent in this respect, but makes no determination on whether Mr Kilgallin qualifies under s 24(1)(e), because of that provision's uncertainty, but notes that it is not necessary to make a decision in that regard, because he does not qualify under s 24(1)(c) in any event.
4. In these circumstances, the Tribunal affirms the decision of the NDIA dated 4 April 2016 that the applicant does not meet the access criteria to become a participant in the National Disability Insurance Scheme.

I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of Deputy President Gary Humphries and Senior Member Jill Toohey

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LEGAL AID ACT