The Tribunal's decision
15 At [30] of its reasons, the Tribunal referred to the Operational Guidelines issued by the Agency. It noted in particular the guidelines concerning when a disability is attributable to an impairment, and the following guidance:
8.1 What is a disability attributable to impairment?
…
For the purposes of becoming a participant in the NDIS the focus of 'disability' is on the reduction or loss of an ability to perform an activity which results from an impairment. The term 'impairment' commonly refers to a loss of, or damage to, a physical, sensory or mental function.
…
For the purpose of determining access, the NDIS Act is not concerned with what caused a person's disability. All people with disabilities who meet the access criteria can be participants, whether the disability came about through birth, disease, injury or accident (see Mulligan and NDIA [2015] FCA 44 at [16]).
Whether a prospective participant has a disability attributable to an impairment is a question of fact to be determined on the balance of available evidence, including their diagnosis.
If a prospective participant has multiple impairments, the NDIA will consider all impairments together when considering whether the person satisfies this disability requirement.
(Original emphasis.)
16 At [32]-[33], the Tribunal explained why it did not consider it helpful or necessary to determine any disputes about the particular diagnosis that should be attached to any conditions suffered by Ms D. It instructed itself that the focus of s 24(1)(a):
is to remain on the person's "impairments" and that is what the Tribunal will do.
(Original emphasis.)
17 Those paragraphs are impugned by the Agency and I return to them below.
18 The Tribunal relied on Ms D's evidence about her chronic pain when moving, leading to a significant lack of mobility. It accepted this evidence, and accepted the evidence of Ms Ferguson in her allied health report tendered to the Tribunal. It also relied on radiological results. It then concluded at [38]:
Based on the evidence set out above in paragraph [34] to [37], the Tribunal finds that Ms [D] has an impairment which involves loss of or damage to her physical function, specifically her musculoskeletal and movement-related functions, and that she also has an impairment which involves loss of damage to her sensory function on account of the chronic pain she experiences on a daily basis.
19 The Tribunal then considered Ms D's evidence about ulcerative colitis, relying on Dr Jakobovits' description of it as a "chronic disease". While accepting the evidence demonstrated the condition was "in remission" and her colitis was at the time of the Tribunal hearing "under control", the Tribunal found (at [42]):
Based on the matters set out in the above three paragraphs and putting aside any consideration of severity (which will be addressed when assessing the third criterion under s 24(1)(c) of the NDIS Act), the Tribunal is satisfied that Ms [D] has a further impairment that involves loss of or damage to her physical function, specifically her digestive function, which includes the gastrointestinal tract.
20 Next, the Tribunal considered whether Ms D has an impairment to her cardiovascular function because of obstructive sleep apnoea. The Tribunal referred to medical evidence adduced by Ms D and also the report of Dr Kronborg, and concluded (at [47]) that Ms D has an impairment which involves the loss of or damage to her cardiovascular function.
21 Therefore, for the purposes of s 24(1)(a), the Tribunal accepted all but one of the nominated conditions I have reproduced at [11] above and found that Ms D has a disability that is attributable to physical and sensory impairments: Tribunal's reasons at [48]. It is not entirely clear from the Tribunal's reasons that it accepted Ms D's morbid obesity as an impairment. At [31(c)] the Tribunal found that, taking into account the Agency's admissions:
this "leaves for determination by the Tribunal" whether the conditions of ulcerative colitis and morbid obesity are impairments of the purpose of s 24(1)(a) of the NDIS Act.
(Original emphasis, footnotes omitted.)
22 However, there is no further reasoning by the Tribunal that suggests it considered morbid obesity separately as an impairment. Rather, it seems to have approached Ms D's morbid obesity as a contributing factor to the severity of her other impairments, and - as I explain below - as a matter which went to the permanency of those other impairments.
23 Turning to the criterion of permanency (s 24(1)(b)), and having noted the term "permanent" is not defined in the NDIS Act, the Tribunal referred to rr 5.4-5.7 of the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth), prescribed under s 27 of the NDIS Act. In its reasons, the Tribunal calls these the 'Access Rules'. The Rules provide:
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.
24 From [51]-[88], the Tribunal addresses the question of permanency in relation to Ms D's impairments involving loss of or damage to her musculoskeletal, movement-related, and sensory functions. The Tribunal refers to various aspects of the evidence, both from Ms D and from medical practitioners and specialists, about the relationship between Ms D's morbid obesity and some of her other musculoskeletal, movement-related, and sensory conditions and impairments, the steps she has taken to try to address the chronic pain and lack of mobility from those conditions, and the relatively consistent references in all this material to a relationship between her levels of pain, lack of mobility and her weight. In this section of its reasons, the Tribunal went through in considerable chronological detail what the various medical investigations over the last few decades had shown about Ms D's conditions and impairments.
25 The Tribunal concluded at [87]-[88]:
Putting aside the treatments of weight loss and exercise, for a moment, based on the evidence referred to above describing the various medical and allied health treatments undertaken by Ms [D] to date, the Tribunal is otherwise satisfied that there are no known, available, and appropriate evidence-based clinical, medical, or other treatments that are likely to remedy her impairments involving loss of or damage to her musculoskeletal, movement-related, and sensory functions. The Tribunal considers that, consistent with Dr Machart's medical opinion as referred to in [85], the treatments Ms [D] is likely to be of potential benefit from are those likely to result in weight loss.
The Tribunal will return below, commencing at paragraph [97], to a detailed consideration of the issue of weight loss through dietary control and exercise.
26 On the question of permanency in relation to the impairment of Ms D's cardiovascular function, because of her obstructive sleep apnoea, the Tribunal concluded (at [95]):
Putting aside the treatments of weight loss and exercise for a moment, based on the sleep studies, medical and other evidence referred to above, the Tribunal is satisfied that there are no known, available, and appropriate evidence-based clinical, medical, or other treatments that are likely to remedy Ms [D]'s impairments involving loss of or damage to her cardiovascular function (arising from OSA [obstructive sleep apnoea]). Consistent with Dr Rodriguez and Dr Kronborg's medical advice to Ms [D], the Tribunal considers that a treatment likely to be of potential benefit to Ms [D] is weight loss.
27 Again, the Tribunal then noted it would address the "weight loss" question separately, which it proceeded to do from [97] onwards. It is clear from the Tribunal's reasons, and the submissions put to the Tribunal, that a significant plank of the Agency's resistance on the review was because of its view that Ms D has not "undertaken all known, available, and appropriate treatments to achieve weight loss", despite the medical evidence that undertaking such treatments would be likely to remedy her impairments. As part of this aspect of its resistance, the Agency contended Ms D had not fully engaged with interventions through a dietician, nor with a diet specially designed for her by a dietician.
28 At [98], the Tribunal noted opinions from Dr Machart to the effect that:
Ms [D] would more than likely be "fit for reasonably good community functioning" if she were to successfully lose weight.
(Original emphasis.)
29 The Tribunal noted Ms D's evidence attributing her weight gain from the mid-1980's to steroid medication, that her weight has remained stable for the last 18 years and that she has "seen many dieticians over the years, and she no longer benefitted from them". At [102]-[106], the Tribunal summarised the steps taken by Ms D over the years to address her obesity, including why she has not had gastric or bariatric surgery, and what the medical evidence was about whether such surgery was a suitable option for her.
30 From [107], the Tribunal addresses the evidence about Ms D's attempts to address her obesity through psychological counselling, including the challenges of this during the COVID-19 pandemic. At [109]-[110], the Tribunal summarised the parties' competing positions on the relationship between the prospect of weight loss and the permanency of her impairments:
The [Agency] contends that Ms [D]'s degenerative conditions (of Spondylarthritis, Shoulder Condition and Osteoporosis), are not permanent because those conditions would improve if Ms [D] lost weight by undertaking surgery or by dieting. The [Agency] also contends that Ms [D]'s Morbid Obesity and OSA [obstructive sleep apnoea] were not permanent, because weight loss by undertaking surgery or by dieting, is a "known, available and appropriate treatment, that would remedy (cure or substantially relieve) the impairments". As explained above at paragraph [32] and [33], the Tribunal's task is to focus on the impairments, rather than conditions.
In response, Ms [D] contends that weight loss through dietary control is not an available or appropriate treatment in her case, because the amount of weight she would need to lose to gain improvement of her (physical and sensory) impairments is significant. Ms [D] relied upon Dr Small's evidence to the effect that Ms [D] would need to lose at least 20kg. Dr [Machart] also considered that Ms [D] would need to lose more than 20kg. Ms [D] highlights that she has been unsuccessful in trying to lose weight previously and has never able to achieve weight loss in the vicinity of 20kg. Ms [D] also relied upon the evidence given by Dr Jakobovits to the effect that the only way for her to maintain weight loss, was through bariatric surgery, which Ms [D] is not prepared to have because of the risks involved on account of her comorbidities. The risks associated with bariatric surgery in Ms [D]'s circumstances are considered in further detail in paragraphs [119] to [125] below.
(Original emphasis, footnotes omitted.)
31 From [111]-[116] the Tribunal explained and set out its reasoning on the evidence about Ms D's attempts to address her obesity, and the challenges - physical, personal and financial - she had faced in doing so. It concluded, at [117]-[118]:
For these reasons, the Tribunal considers that given Ms [D]'s current bodily and medical state, and in particular, the advanced stage of her Obesity, musculoskeletal degeneration, and her chronic pain, she requires closely supervised, intensive and sustained dietary control and exercise programs, consistent with the recommendations by Ms Ferguson. Based on these matters, the Tribunal considers that the maximum number of funded sessions available to her under the Medicare scheme, is insufficient to conclude that Ms [D] has available to her, given her strained financial circumstances, the level of allied and other health services required by her to safely, and conservatively (that is, without bariatric surgery), stand any real prospect of achieving weight loss in the vicinity of 20kg. Ms [D] gave unchallenged evidence about her limited financial means. Her income is limited to the DSP [disability support pension] and has been for a long time. She only has approximately $10,000 left in her superannuation fund, and she is paying rent under a "shared ownership scheme". The Tribunal infers from these facts that it is likely that Ms [D] was, and still is, unable to afford to have access to a closely supervised, intensive and sustained dietary control and exercise programs.
The Tribunal considers that closely supervised, intensive and sustained dietary control and exercise programs are both appropriate treatments for Ms [D]'s impairments involving her physical and sensory impairments. However, the Tribunal is not satisfied that those treatments are "available" to Ms [D], on account of her financial position. The Tribunal is satisfied that Ms [D] would not be able to afford such programs, if they were delivered at an intensity required to maintain Ms [D]'s safety, and to stand any real prospect of achieving significant weight loss by her.
(Original emphasis, footnotes omitted.)
32 From [119], the Tribunal set out Ms D's evidence, and some medical evidence, about the option of bariatric surgery for Ms D. It noted the Agency's reliance on r 5.6 (see [23] above), and considered Dr Jakobovits' evidence about the risk of this kind of surgery. It also considered Dr Machart's evidence about his concerns for Ms D in undergoing an anaesthetic with her other current conditions. At [125], the Tribunal concluded that bariatric surgery is not an appropriate medical treatment for Ms D. At [126], the Tribunal accepted Ms D's evidence about why medications to achieve weight loss are no longer a suitable option for her.
33 At [127]-[129] the Tribunal explained why it was satisfied on the evidence there were no other surgical or medical interventions available to alleviate Ms D's impairments, or the pain associated with them. It concluded at [130]:
In all those circumstances, the Tribunal is satisfied that there are no known, available, and appropriate evidence-based clinical, medical, or other treatments that would be likely to remedy her impairments which involve loss of or damage to her musculoskeletal, movement-related, sensory, or cardiovascular functions. For this reason, the Tribunal finds that those impairments are "permanent" and that accordingly, Ms D satisfies the second criterion under subsection 24(1)(b) of the NDIS Act.
(Original emphasis.)
34 From [131], the Tribunal considered Ms D's impairments to her digestive function, stemming from her colitis that was first diagnosed with in 1987, when she was about 25 years old. Again, the Tribunal proceeded carefully and in a chronological way to work through the medical evidence, and Ms D's evidence (including under cross-examination), about the nature and extent of this impairment. This included discussion of evidence suggesting Ms D was not always compliant with medications or medical advice, and/or alternatively tended to take lesser amounts of medication than she had been prescribed. At [150]-[152], the Tribunal concluded:
The evidence above leads the Tribunal to be satisfied that while there have certainly been compliance issues arising in relation to Ms [D] following the advice of her specialists, Ms [D] is a person who is required to manage a complex suite of medical conditions she has been suffering from for some many decades. In that context, the Tribunal gained an impression that Ms [D] has developed a reasonable understanding over the years in relation to how best to balance her medications, in light of her various comorbidities, and how to prevent, as much as possible, further flare ups of her Colitis by avoiding certain foods. The Tribunal accepts that Ms [D] was faced with a challenge of needing to balance the recommended treatment for the management of this condition which included the use of steroid medications. Those medications had side effects including Ms [D]'s past experience being that they caused her to gain significant excess weight. The Tribunal considers that Ms [D]'s reluctance to continue to use that medication, unless from time to time it became necessary to do so, was reasonable in her circumstances.
Based on the medical and other evidence referred to above describing the various medical and allied health treatments undertaken by Ms [D] to date, the Tribunal is satisfied that there are no known, available, and appropriate evidence-based clinical, medical, or other treatments that are likely to remedy her impairments involving loss of or damage to her to digestive function. Ulcerative colitis was described as a "chronic disease" by Dr Jakobovits at the hearing. It is a condition that Ms [D] has had for 34 years and which she continues to be reviewed by specialists under the supervision of her general practitioner. It was clear on the evidence that the severity of Ms [D]'s Colitis has fluctuated significantly as the decades have passed, with this condition being a relatively settled state at the moment. However, Ms [D]'s Colitis still exists and flare ups are likely to happen again based on past history. Rule 5.5 of the Access Rules provides that 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 may improve. This provision is particularly relevant in relation to impairments arising from a condition such as ulcerative colitis.
For those reasons, the Tribunal finds that the impairment involving loss of or damage to Ms [D]'s digestive function, is "permanent".
(Original emphasis.)
35 The Tribunal then turned to the third criterion in s 24(1), namely what is described as "impact", being the effect of the impairments found to exist on an applicant's "functional capacity". Section 24(1)(c) requires a person's functional capacity to be "substantially reduced".
36 The Tribunal referred to r 5.8 of the Rules:
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.
37 It also referred to the definition of "mobility" in the Operational 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 …
(Original emphasis.)
38 The Tribunal then quoted at length from Ms Ferguson's assessment of Ms D's mobility, which it is fair to say in summary demonstrated Ms D's mobility was extremely limited, while also recognising Ms D's determination to have independence outside her home. At [158]-[159], the Tribunal set out, and accepted, Ms D's own evidence about her very limited mobility. It concluded (at [160]-[161]):
Taking those matters into account and the evidence of Ms Ferguson as referred to in paragraph [35] and [157], the Tribunal concludes that Ms [D] is unable to "participate effectively or completely" in the activity of "mobility" without the use of assistive technology or equipment such as a mobility scooter (which the Tribunal does not consider to be a commonly used item), or without home modifications.
For those reasons, the Tribunal finds that Ms [D]'s permanent impairments which involve loss of or damage to her musculoskeletal, movement-related, sensory, and cardiovascular functions have resulted in her having a substantially reduced functional capacity to undertake the activity of mobility. The Tribunal does not consider it necessary to proceed to determine whether this is also the case in respect of the other five prescribed activities or in relation to her other impairment involving a loss of or damage to her digestion function.
(Original emphasis.)
39 The Tribunal the considered the fourth and fifth criteria in s 24(1) - the way Ms D's impairments affect her capacity for social and economic participation ((d)) and whether Ms D was likely to require lifetime support ((e)). It found both criteria were met.
40 For those reasons, the Tribunal found Ms D met all five criteria under s 24(1) and qualified for access to the NDIS. In [167], the Tribunal repeated what impairments suffered by Ms D it had found were permanent impairments:
The Tribunal has found that Ms [D] has permanent impairments which involve loss of or damage to her musculoskeletal, movement-related, and sensory functions. The Tribunal is satisfied on the evidence from Ms [D] and corroborated by the medical evidence that those impairments are debilitating. The only chance of any improvement to those conditions appears to lie in Ms [D] achieving significant weight loss, which she has attempted to achieve, unsuccessfully, over the previous three decades. Ms [D]'s medical conditions of Spondylarthrosis, Osteoarthritis and Shoulder Condition are all degenerative in nature and Dr Small expects the level of Ms [D]'s impairments to her musculoskeletal, movement-related, and sensory functions to worsen over time, as do the other medical experts called by the [Agency] to give evidence in this proceeding.
41 The Agency emphasised this passage in its submissions. It contended, and I accept, that [167] reveals the final fact finding of the Tribunal, and reveals that the substituted decision was based on one category of impairments, described by the Tribunal as "loss of or damage to [Ms D's] musculoskeletal, movement-related, and sensory functions" , being impairments arising from three medical conditions the Tribunal found to be degenerative.