Power of Tribunal to compel applicant to attend medical assessment - Atkinson and NDIA [2021] AATA 3540

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Key points

In Atkinson and NDIA [2021] AATA 3540 [opens in new window], the Tribunal refused the NDIA's application to have an applicant attend appointments with an OT and psychiatrist selected by the NDIA. The case includes a useful summary of how the Tribunal decides whether to exercise its discretion to make such an order.

Facts

Mr Atkinson brought proceedings in the Tribunal seeking a review of the NDIA's decision that he did not meet the access criteria for the NDIS. 

In the course of these proceedings, the NDIA requested Mr Atkinson to attend appointments with a psychiatrist and an in-home assessment by an occupational therapist. Both experts were selected by the NDIA. Mr Atkinson refused. He stated that he was extremely exhausted from the Tribunal process, and that he will suffer deterioration of his health if he is required to undergo the further examinations. Mr Atkinson offered to have his OT and psychiatrist answer further questions from the NDIA if required.

The NDIA sought a direction from the Tribunal that Mr Atkinson attend the appointments. 

Decision

The Tribunal found at [25] that it was clear that it had the power to require an applicant to attend a medical examination. It relied on the Tribunal's decision in MDCT and NDIA [2020] AATA 6036 [8]-[12] [opens in new window], which referred to Commissioner of Taxation v Cancer and Bowel Research Association [2013] FCAFC 140 [opens in new window]. 

The question for the Tribunal was whether it should exercise its discretion to require Mr Atkinson to attend the appointments.

At [29] of its Decision, the Tribunal considered the NDIA's Access to the NDIS Operational Guideline [opens in new window] which states at cl 10.2 that "[t]he NDIA will only request further information or request a prospective participant undergo an assessment or examination and provide a copy of the report to the NDIA where it is reasonably necessary to determine whether the prospective participant meets the access criteria". The Guideline states that in "limited circumstances" the NDIA will request further information, including "where the information is exhausted, where there is inconsistent information, where medical information is outdated, or a specific matter needs to be resolved".

The Tribunal decided at [31] that none of these circumstances applied to Mr Atkinson's case.

At [32] of its decision, the Tribunal recognised that the NDIA had a right to procedural fairness, including the ability to test Mr Atkinson's evidence. However, the Tribunal found that the NDIA had not provided enough evidence to allow the Tribunal to decide that it was reasonable to request Mr Atkinson to attend the appointments. The Tribunal also found at [33] that procedural fairness could be given by allowing the NDIA to cross-examine Mr Atkinson's experts, and by the NDIA arranging for its own experts to review the reports prepared by Mr Atkinson's experts. 

Analysis

NDIS participants often feel overwhelmed by the Tribunal process. The stresses the process causes are in addition to the day-to-day pressures that participants are under. It is therefore understandable that some of them might be unwilling to attend further medical appointments at the direction of the NDIA. Participants might also view the NDIA's experts as being biased in favour of the NDIA. Again, this view is understandable. However, in some cases attending appointments in order to provide the NDIA with further information can, in some circumstances, result in the NDIA changing its mind and agreeing to give what the applicant wants. A participant should not reject such a request just because it comes from the NDIA.

It is important to understand that the Tribunal can, in some circumstances, require an applicant to attend a medical examination. If a participant does not attend, then the participant will be at risk of the Tribunal deciding that it does not have enough evidence to decide that a person satisfies the access criteria for the NDIS, or deciding that there is not enough evidence to form the view that a particular support sought by an applicant is a reasonable and necessary support: see BKQQ and NDIA [2021] AATA 732 [opens in new window].

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