Risks of not engaging in the Tribunal process; Permanence - TMVJ and NDIA [2022] AATA 2053

Key points

• In TMVJ and NDIA [2022] AATA 2053 [opens in new window] the Tribunal decided that a person did not meet the access criteria for the NDIS. That person had declined to attend appointments for examination by specialists that the NDIA had arranged, and had failed to attend referrals to specialists that his own GP had recommended.
• The Tribunal's decision highlights the risks associated with that course of conduct, in particular the risks that the Tribunal concludes that there is insufficient evidence to demonstrate that a person meets the access criteria for the NDIS. 
• This case also provides useful consideration of the concept of permanence in determining whether someone meets the disability criteria for the NDIS.

Facts

The Applicant sought review of a decision of the NDIA that he did not meet the access criteria for the NDIS. In his application for access to the NDIA, he stated that he had myalgic encephalomyelitis (otherwise known as Chronic Fatigue Syndrome) and Multiple Chemical Sensitivity. 

The Applicant requested that the review be dealt with "on the papers" by the Tribunal, which means that there was no hearing. The Applicant did not want a hearing, because he said that he was too unwell to participate, and he thought there was sufficient evidence before the Tribunal to prove that he met the access criteria.

The Applicant also declined to attend an appointment with an occupational therapist scheduled by the NDIA for the purposes of determining his functional capacity. He also ultimately decided not to attend an appointment with a neurologist arranged by the NDIA (the Applicant put forward evidence of his own neurologist whom he consulted during these proceedings). 

The Tribunal respected the Applicant's choice to not engage with the NDIA in these matters, but observed that it meant that it did not have the benefit of any functional assessment of the Applicant, and could not test the Applicant's evidence through cross-examination or assess the credibility of the Applicant himself. As the Tribunal explained in [8] of its decision [opens in new window]: "The consequence of refusing to consent to the gathering of certain evidence may lead the Tribunal to conclude that it does not have sufficient information to reach a level of satisfaction that the access criteria has been met."

Decision

The Tribunal accepted that the Applicant had a disability arising from his Chronic Fatigue Syndrome, which gave rise to symptoms of disordered thoughts and poor concentration, being easily exhausted, low lean body mass and sensitivity to smells. 

The main issue for the Tribunal was whether the Applicant's condition was permanent as required by s 24(1)(b) of the NDIS Act [opens in new window]. The Tribunal observed that r 5.4 of the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 specified that a condition is only permanent if there are no known, available and appropriate evidence-based treatments that would likely remedy the impairment. 

In the Applicant's case, his GP had offered the Applicant assessments by specialists, but the Applicant had declined because of lack of stamina, increased stress in public settings, fatigue and mobility barriers. The neurologist that the Applicant consulted recommended that the Applicant see a dietician and a neuropsychologist, but there was no evidence that this had happened.

The Tribunal observed that it had been recommended that the Applicant be examined and possibly treated by various specialists, but this had not happened. There might have been a suggestion that these treatments might not have been available to the Applicant because of his chronic fatigue, but there was insufficient evidence of that, and the Applicant's evidence indicated that he was able to leave the house to attend medical appointments and personal errands.

At [34]-[35] of its decision [opens in new window] the Tribunal followed the decision of FBJV and NDIA [2021] AATA 913 [opens in new window] and decided that in order for a condition to be permanent for the purposes of r 5.4, it is not necessary that there be available treatment that could cure the condition. Rather, if there are treatments that would likely alleviate the impairment or ease the impact or effect of the impairment, then that would result in the condition not being permanent. 

The Tribunal was not satisfied on the evidence before it that the condition was permanent. It also considered that the Applicant did not meet the early access criteria in s 25 of the NDIS Act [opens in new window]. Accordingly, the Tribunal affirmed the NDIA's decision that the Applicant did not meet the access criteria for the NDIS.

Discussion

This case is a good example of the risk that a person faces if they decide that they don't want to attend appointments with specialists arranged by the NDIA, or attend a hearing before the Tribunal. The Tribunal is only able to make decisions on the evidence based before it. Although there is no formal "burden of proof" on an applicant in NDIS proceedings, if an applicant considers that the correct and preferable decision is that they meet the access criteria, then they have to ensure that there is sufficient evidence before the Tribunal to get it to reach this conclusion. 

I appreciate and accept that the Tribunal process can be long and physically and emotionally draining, and I also accept that a person's particular disability might make this process even more difficult. However, as this case demonstrates, if a person is unwilling to take steps to attend medical appointments scheduled by the NDIA and participate in an oral hearing, then that really ties the Tribunal's hands, and it puts them at risk of the Tribunal deciding that there is insufficient evidence to demonstrate that the person meets the access criteria.

The discussion about permanence in this decision is also useful, particularly about the distinction between a treatment that is likely to cure an underlying condition, and a treatment that is likely to ease the impact or effect of the impairment. It should be remembered that an available treatment that is likely to ease the impact or effect of the condition will result in the condition not being permanent. 

This raises interesting questions for e.g. people with disabilities based around pain conditions such as fibromyalgia or complex regional pain syndrome. The Tribunal's analysis in this case suggests that a course of treatment e.g. analgesics that prevents pain from being experienced, but which doesn't do anything to address the underlying source of the pain, might still result in a conclusion that the condition is not permanent. However, this will depend on the specific facts of the case.