Federal Court of Australia

National Disability Insurance Agency v Davis [2022] FCA 1002

ORDERS

THE COURT ORDERS THAT:

1.    The appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) be allowed.

2.    The decision of the Administrative Appeals Tribunal made on 14 January 2022 be set aside.

3.    The matter be remitted to the Tribunal to be determined according to law.

4.    There be no order as to the costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MORTIMER J:

1    This appeal by the National Disability Insurance Agency concerns the application of s 21 and s 24 of the National Disability Insurance Scheme Act 2013 (Cth) by the Administrative Appeals Tribunal. It is an appeal pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth), in respect of a decision made by the Tribunal on 14 January 2022. In that decision, the Tribunal set aside an internal review decision and substituted a decision that the respondent, whom I shall describe as Ms D in these reasons, meets the access criteria under s 21 of the NDIS Act. The Tribunal therefore granted her access request to become a participant of the NDIS.

2    For the reasons set out below, the Agency’s appeal should be upheld on one ground. This ground, a denial of procedural fairness, affected the outcome of the review and therefore the Tribunal’s decision must be set aside.

Background

3    The background to the appeal is not in dispute, and is set out in the Tribunal’s reasons, from which this summary is largely taken.

4    Ms D made an access request to the Agency under s 18 of the NDIS Act to become a participant in the National Disability Insurance Scheme. Her access request was refused and she was unsuccessful on internal review, leading to her review application to the Tribunal.

5    I have described the scheme of the NDIS Act in previous decisions: see McGarrigle v National Disability Insurance Agency [2017] FCA 308; 252 FCR 121 at [22]–[44], and Mulligan v National Disability Insurance Agency [2015] FCA 544; 233 FCR 201 at [11]-[34]. I adopt those descriptions in these reasons.

6    Relevantly to the appeal, s 21 prescribes three kinds of requirements for access to the NDIS: age requirements, residence requirements and disability requirements. Only the latter set of requirements was in contention before the Tribunal. The disability requirements are set out in s 24 of the NDIS Act:

(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.

7    It can be seen that the disability requirements are cumulative, and contain a number of separate kinds of requirements that must be met by an NDIS applicant.

8    At [17] of its reasons the Tribunal set out the issues for determination as:

(a)     whether Ms [D] has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory, or physical impairments;

(b)     whether Ms [D]’s impairments are, or are likely to be, “permanent”;

(c)     whether Ms [D]’s impairments result in “substantially reduced functional capacity” to undertake one or more of the six activities prescribed in subsection 24(1)(c) of the NDIS Act;

(d)     whether Ms [D]’s impairments affect her capacity for social or economic participation; and

(e)     whether Ms [D] is likely to require support under the NDIS for her lifetime.

(Original emphasis.)

9    Ms D was 59 years old at the time of the Tribunal’s decision. Her evidence described a number of health conditions starting in her late teens, to some of which she attributed her substantial weight gain after this time. At the time of the Tribunal decision, it was common ground she was morbidly obese. She was previously employed as an office manager and in customer service, but had been unemployed since 2011 and in receipt of the disability support pension since 2013. In 2012 she commenced a Bachelor of Psychological Studies from Victoria University, which she competed in 2020.

10    Ms D’s participant application was based on the first limb of s 24(1)(a) – namely that she had a disability that “is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments”.

11    Ms D nominated five conditions and disabilities for the purposes of s 24(1)(a):

(a)     spondylarthrosis of the lumbar, cervical, and thoracic spine (Spondylarthrosis);

 (b)     degenerative impingement of both shoulders (Shoulder Condition);

 (c)     bilateral knee osteoarthritis (Osteoarthritis);

 (d)     ulcerative colitis (Colitis);

 (e)     obstructive sleep apnoea (OSA); and

 (f)     morbid obesity (Obesity).

(Original emphasis, footnotes omitted.)

12    The Agency accepted the first three of these were impairments for the purposes of s 24(1)(a), but disputed the others.

13    The Agency arranged for four independent medical assessments of Ms D, and in addition to those assessments, the parties placed before the Tribunal a range of medical reports, clinical notes, test results, documents forming part of the Agency’s file to that point, and evidence from Ms D. Ms D was cross-examined, as were the four specialists who conducted assessments of Ms D on behalf of the Agency – namely, Dr Machart, Dr Kronborg, Ms Ferguson, and Dr Jakobovits. There were facts and contentions filed on behalf of both parties, as well as closing written submissions.

14    One point emphasised by counsel for the Agency was that there were no oral closing submissions, only written ones. He submitted that the course taken by the Tribunal in its reasoning might not have occurred had there been an opportunity for oral submissions. That submission has force, and I agree with it.

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.

General findings about the Tribunal’s decision and the Agency’s role before the Tribunal

42    The Tribunal’s decision is a generally clear and careful one, reasoned in detail by reference to the evidence and argument before it. As the Tribunal observed at the start of its reasoning on s 24(1), the determination of whether the s 24(1) criteria are met in a given case is essentially a fact-finding task.

43    The Agency’s closing submissions to the Tribunal constituted 442 paragraphs, and 51 pages, of densely compiled submissions, with 337 footnotes. That is on top of a statement of facts, issues and contentions of 137 paragraphs and 37 pages, and written opening submissions of 3 pages. The Tribunal was deluged with contentions by the Agency. To digest all of those submissions, and ensure it understood them all and did not overlook any, would have been a daunting task. In contrast, Ms D’s final submissions were 40 pages with 201 footnotes, itself a long document on a merits review, but more manageable than those filed by the Agency.

44    In a merits review the Agency would do well to remember its role. As a model litigant, and another part of the executive, it appears to assist the Tribunal to perform its function, which is to reach the correct or preferable decision on the material before it: Drake v Minister for Immigration and Ethnic Affairs [1979] FCAFC 39; 24 ALR 577 at 589, Bowen CJ and Deane J. While the Agency might seek to defend its internal decision-making, the Agency does not appear at the Tribunal as a true adversary in the sense of having private interests to defend and advance. It has a public, statutory function, expending public monies to administer the scheme of the NDIS Act. It has no agenda to exclude people from the NDIS. Nor to admit them. Its role is to ensure that the legislative scheme created by Parliament is administered objectively and carefully, in accordance with Parliament’s intention, as objectively ascertained. In that sense, it has no ‘stake’ in the outcome, other than assisting the Tribunal to reach the correct or preferable decision.

45    It is clear from the Tribunal’s careful fact-finding process that it found Ms D to be a credible witness. It accepted most of her evidence, often on critical issues concerning the steps she had taken to manage or attempt to alleviate her chronic pain, her attempts at weight loss, and her explanations for why some surgical or medical options were not appropriate for her. It also accepted her evidence about her personal and financial circumstances, and how those impacted on the management of her impairments and her access to treatments that might alleviate them. In my opinion, the Tribunal was careful and thorough in the way it approached the medical evidence before it, and what aspects of that evidence it found relevant and persuasive. These were judgements for the Tribunal to make, having seen and heard Ms D, and the other witnesses. There was nothing irrational or illogical in its approach to the choices of what evidence it decided to accept or reject.

46    Although I have upheld one of the legal errors identified by the Agency in its questions of law, that conclusion should not be understood as critical of the Tribunal’s approach to an already complex merits review which was made significantly more so by the Agency’s approach. In contrast to some other Tribunal decisions which are reviewed by this Court, this Tribunal decision was clearly and logically expressed, with careful consideration of the evidence and with reasoning that could be readily understood and followed. In the face of a deluge of material on behalf of the Agency, and a good deal of confusion in the language used by the parties before it, the Tribunal maintained a high standard in the performance of its task. It is regrettable that the matter must be remitted, but that is what is required because of the error the Court has found to exist.

Questions of law and Grounds of appeal

47    The Agency has identified four questions of law, and seven grounds of appeal supporting those questions.

48    Three of the four questions of law relate to the Tribunal’s findings that Ms D had impairments that were “permanent”. They are:

(a)    a contended misconstruction by the Tribunal of when an impairment might be “permanent” for the purposes of s 24(1)(b), by reference to the contended proper construction of r 5.4 and whether a treatment for an impairment is “known, available and appropriate” does not involve deciding if the treatment is affordable to a person;

(b)    a contention that in applying s 24(1)(b) and r 5.4 the Tribunal either took into account an irrelevant consideration (or considerations), or reached an incorrect conclusion regarding permanence when the only finding open on the evidence was that the impairments were not permanent; and

(c)    a contention that no finding of permanency was open because the only finding on the evidence was that Ms D’s impairments required further medical treatment or review. This ground involves the application of r 5.6, which the Agency contends the Tribunal failed to apply.

49    Grounds 2, 3, 4, 6 and 7 of the notice of appeal relate to these questions.

50    A fourth question of law relates to two alleged denials of procedural fairness to the Agency, by deciding the review on a basis different to that contended for by the parties, adversely to the Agency’s case. Grounds 1 and 5 of the notice of appeal relate to this question.

51    In its written submissions in support of the application, the Agency foreshadowed an amendment to the notice of appeal, to reflect one of its key contentions that the terms of r 5.7 “precludes” a permanency finding under s 24(1)(b). The respondent did not oppose leave being granted to the Agency to rely on the amended notice of appeal and accordingly, leave was granted, since the amendment substantially relates to the seeking of alternative relief. I deal with this matter below at [125].

52    I consider the parties’ submissions in the following section, explaining why the Court has made the orders it has on the appeal.

Resolution of the appeal: some general findings

The legislative scheme

53    Section 24 is what I described in Mulligan as a “threshold” provision. It concerns access to the NDIS, rather than entitlements under that scheme. That is the context in which the constructional choices raised by the Agency’s questions of law must be considered.

54    In McGarrigle at [22]-[44], and Mulligan at [11]-[34], I explained my understanding of the legislative scheme of the NDIS Act. I was also a member of the Full Court in National Disability Insurance Agency v WRMF [2020] FCAFC 79; 276 FCR 415, where aspects of the legislative scheme were explained. I adhere to and adopt those understandings in this decision. Relevantly to the questions of law on this application, and as the Agency submitted, the NDIS is not means tested — whether as to the person concerned, their family or community: see McGarrigle at [24].

55    The connection between the funding of participants under Pt 2, the objectives of the NDIS Act, and the threshold criteria for admission as a participant, is important. In WRMF, the Full Court said at [141]:

The supports to be provided to a person who qualifies as a participant are intended to accommodate an individual’s particular impairments and to assist that particular individual to be a participating member of the Australian community, and to do so on the basis of the values set out in the objects and guiding principles clauses of the Act, as well as the values set out in s 17A of that Act …

56    At the time of the Tribunal’s review, s 17A provided:

Principles relating to the participation of people with disability

(1)     People with disability are assumed, so far as is reasonable in the circumstances, to have capacity to determine their own best interests and make decisions that affect their own lives.

(2)     People with disability will be supported in their dealings and communications with the Agency so that their capacity to exercise choice and control is maximised.

 (3)     The National Disability Insurance Scheme is to:

(a)     respect the interests of people with disability in exercising choice and control about matters that affect them; and

(b)     enable people with disability to make decisions that will affect their lives, to the extent of their capacity; and

(c)     support people with disability to participate in, and contribute to, social and economic life, to the extent of their ability.

57    Mulligan also concerned the access criteria for the NDIS. In that decision, rules made pursuant to s 27 of the NDIS Act were also in issue, including an earlier version of the rules which are in issue in this proceeding: see Mulligan at [28]-[30].

58    In Mulligan at [50] I said:

The access criteria in Ch 3 of the Act are an essential component of the NDIS as conceived. They are designed to impose a number of thresholds on access to the NDIS. By s 13, broad and general provision may be made for persons with disabilities — but access to the NDIS, and the supports, funding and autonomy it is intended to deliver, is reserved for a subcategory of persons with disabilities. One of the issues which this appeal presents is the height of the thresholds set, and the focus of the thresholds, at least through the operation of s 24(1).

59    There then appear the passages to which some attention was paid by the parties in argument on this application. However, it is appropriate to extract a slightly longer series of passages. At [51]-[56] I said:

Some general observations should be made about these matters. The term “disability” is used in the Act, and in s 24, as a descriptive concept for the overall effect of a person’s impairments on that person’s abilities to participate in all aspects of personal and community life. Threshold provisions such as s 24 operate not on the concept of disability, but on the concept of an impairment, which, as the Tribunal correctly observed at [19] of its reasons, is generally understood as involving the loss of or damage to a physical, sensory or mental function.

Although an impairment may, in general terms (and, for example, in the terms of Art 1 of the Convention on the Rights of Persons with Disabilities extracted above) be responsible for or related to a disability, the threshold in s 24 revolves around the severity and permanency of the effects of the impairments experienced by a person, so as to justify the provision of the “reasonable and necessary supports” to which participants may be entitled, after assessment in accordance with Pt 2 of Ch 3 of the Act.

At p 14 of the Revised Explanatory Memorandum, the purpose of what became s 24 is described:

Clause 24 sets out the disability requirements a person must satisfy in order to become a participant in the NDIS launch. The disability requirements are designed to assess whether a prospective participant has a current need for support under the scheme, based on one or more permanent impairments that have consequences for the person’s daily living and social and economic participation on an ongoing basis. This clause also implements recommendation 3.2 of the Productivity Commission report.

Recommendation 3.2 of the Productivity Commission Inquiry Report: Overview and Recommendations, Disability Care and Support (No 54, 31 July 2011), stated:

Individuals receiving individually tailored, funded supports through the NDIS:

  •     should have a disability that is, or is likely to be, permanent, and

  •     would meet one of the following conditions:

•     have significantly reduced functioning in self-care, communication, mobility or self-management and require significant ongoing support

•     be in an early intervention group, comprising individuals for whom there is good evidence that the intervention is safe, significantly improves outcomes and is cost effective

In exceptional cases, the scheme should also include people who would receive large identifiable benefits from support that would otherwise not be realised, and that are not covered by the groups above. Guidelines should be developed to inform the scope of this criterion and there should be rigorous monitoring of its effects on scheme costs.

Using the concept of impairment enables assessment of the severity and permanency of a person’s condition, and of the effects of that condition through not only the evidence of an applicant, but also medical and clinical evidence. The legislative scheme contemplates a relatively high degree of precision by decision-makers (see, for example, the six activities in s 24(1)(c)) in assessing what a person can or cannot do. The assessment to be undertaken is avowedly functional, and multi-faceted.

That being the case, no arbitrary limits are placed on access to the NDIS. No decision-maker need be satisfied a person’s impairment is “serious”, or more serious than another person’s. No qualitative judgments in that sense are called for. Rather, the legislative scheme is based on a functional, practical assessment of what a person can and cannot do. Critically, the scheme makes detailed provision for that assessment, and it is sufficient for a person to have substantially reduced functional capacity in relation to one activity. That, in my opinion, recognises the spectrum of impairments which can be experienced by persons with disabilities, and accommodates different abilities within one person in terms of her or his daily activities. That is why a detailed functional assessment is so important.

(Original emphasis, additional emphasis in bold.)

60    Having read the Agency’s submissions to the Tribunal in this matter, it is also appropriate that one proposition from Mulligan be clarified. In Ms D’s review, the Agency submitted to the Tribunal (at [8]-[9] of its closing submissions):

The Tribunal must be positively satisfied in any given case that the access requirements set out in sections 22-25 inclusive are met. The assessment of whether the disability requirements in section 24(1), in particular, are met requires a “relatively high degree of precision by decision-makers”: Mulligan v NDIA [2015] FCA 544 at [55] per Mortimer J.

The Respondent submits that, on the evidence before it, the Tribunal cannot be satisfied to the requisite standard that the Applicant meets the disability requirements set out in section 24 of the Act.

(Emphasis added.)

61    The observation from Mulligan quoted by the Agency says nothing about the standard of satisfaction that a delegate or the Tribunal must meet. That observation was made in the context of the alleged error in Mulligan, which was an error stemming from what was described in the reasons as a “global finding” by the Tribunal, without addressing the matters required by s 24. There is no different or higher standard imposed by the NDIS Act, and the terms of s 24. The decision-maker must be “satisfied”; that is the language of s 21. The observations in Mulligan sought to emphasise that where the text of the NDIS Act sets out specific matters about which that state of satisfaction must be formed, a decision-maker must perform their task by addressing those specific matters. “High” in that sense means “specific”, not a higher standard of proof or persuasion, which appears to be how the Agency sought to use that statement.

62    Two matters about the scheme of the NDIS Act which have not been addressed directly in the existing authorities, but which are important to the resolution of this application, are:

(a)    the relationship between the Rules and s 24(1)(b); and

(b)    the meaning of “permanent” in s 24(1)(b).

63    The way the issues were presented to the Tribunal on review also meant there was some mixing of the statutory concept of “impairment” with the concept of a medical condition or diagnosis. It is also appropriate to address this before turning to the grounds of appeal.

The relationship between the Rules and s 24(1)(b)

64    These matters arise in the statutory context of access to the supports provided by the NDIS Act. Section 21 authorises the Chief Executive Officer of the Agency (or their delegate, and the Tribunal on merits review) to form a state of satisfaction about whether, amongst other things, a person at the time of the request (or review) “meets the disability requirements”, being the requirements set out in s 24 of the NDIS Act. Thus, this is a scheme where the access or threshold requirements depend upon the formation of a state of satisfaction by the repository of the power.

65    As I have explained in Mulligan, by s 209(1) of the NDIS Act the executive, through the responsible Minister, is empowered to make rules prescribing matters:

(a)     required or permitted by this Act to be prescribed by the National Disability Insurance Scheme rules; or

(b)     necessary or convenient to be prescribed in order to carry out or give effect to this Act.

66    It was common ground that s 27 of the NDIS Act was the provision which “permitted” the Rules to be prescribed. Section 27 relevantly provides:

The National Disability Insurance Scheme rules may prescribe circumstances in which, or criteria to be applied in assessing whether:

(a)     one or more impairments are, or are likely to be, permanent for the purposes of paragraph 24(1)(b) or subparagraph 25(a)(i) or (ii);

    (Emphasis added.)

67    In other words, there was a specific rule-making power conferred by s 27 which fell within s 209(1)(a). These are not rules made under the authority of s 209(1)(b).

68    Paragraph (a) is but one of six matters for which s 27 provides. What is notable for some of the construction issues that arise is the focus in several of these provisions on the impairments a person has. For example, as at the time of the review, s 27(b) was couched in terms of rules prescribing circumstances or criteria to be applied in assessing whether:

(b)    one or more impairments result in substantially reduced functional capacity of a person to undertake, or psychosocial functioning of a person in undertaking, one or more activities for the purposes of paragraph 24(1)(c);

69    This is the point made in Mulligan in the passages extracted above. What the legislative scheme focuses on is not the name of a person’s disability, nor the diagnosis given to a person – but rather what are the impairments experienced by a person which may require supports so that the person can participate in all aspects of personal and community life. It is the impairment which the scheme contemplates may affect the “functional capacity” of a person.

70    Thus, the rules in issue before the Tribunal and on this application – notably rr 5.4-5.7, extracted at [23] above – must be rules which either “prescribe circumstances” or “prescribe … criteria to be applied” to aid the determination of the permanency of a person’s impairments. No clear answer was given by the Agency about which category rr 5.4-5.7 fell into. Counsel submitted it might be both.

71    Rules 5.4 to 5.7 are headed “When is an impairment permanent or likely to be permanent for the disability requirements?” (my emphasis). That appears to point to the intention of the rules being to prescribe circumstances in which an impairment is, or is likely to be, permanent. In my opinion that is what each of rr 5.4, 5.5, 5.6 and 5.7 do.

72    The two aspects of the rule-making power are different. A power to make a rule prescribing criteria is likely to have the effect of making the criterion or criteria then prescribed a mandatory consideration in the exercise of the power in s 24, because once a criterion is prescribed it becomes a matter the legislative scheme intends be taken into account: see generally Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24, and at 39 (Mason J), 55-56 (Brennan J). A rule of this kind does not dictate or control the outcome of the exercise of the power in s 21, read with s 24. It merely adds to the matters the repository of the power is required to consider.

73    On the other hand, a rule prescribing circumstances in which an impairment is, or is likely to be, permanent may well be a rule whose effect is to control, or at least affect, the outcome of an exercise of power in s 21, read with s 24. To that extent, the purpose of this aspect of the rule-making power in s 27(a) is to authorise the executive to give specific content to the term “permanent” as it is used in s 24(1)(b). As expressed, s 27(a) authorises the executive to make rules about the circumstances where an impairment will be permanent, rather than when it will not be. That is, on its face s 27(a) authorises inclusionary rules rather than exclusionary ones. That would be compatible with the usual restrictions on delegated legislation. Otherwise, a rule made purportedly pursuant to s 27 could control (and alter) the meaning of the word “permanent” in s 24(1)(b), and the executive could substantively alter the operation of the legislative scheme created by Parliament. Consistently with those well-established principles, such an operation would also be contrary to the prohibition in s 209(9)(e) of the NDIS Act, which provides that a rule may not:

directly amend the text of this Act.

74    Some of the rules in issue, while appearing to be framed in positive language, are in substance exclusionary. Rule 5.4 is such an example. So is r 5.6. Indeed, counsel for the Agency described them as exclusionary.

75    The validity of rr 5.4 and 5.6 was not in issue in the current proceeding, so I say no more. I proceed on the basis assumed by the parties that all of the rules are validly made. Therefore, I proceed on the basis that r 5.4 and r 5.6 prescribe circumstances where, if the repository of the power is satisfied on the evidence of the applicability of either of those rules, a person’s impairment will be excluded from meeting the permanency criterion in s 24(1)(b).

The meaning of “permanent” in s 24(1)(b)

76    This issue forms part of the questions of law raised by the Agency, in particular questions 1 and 2. It was a matter agitated separately from the construction and operation of the Rules, although it plainly is not a matter divorced from them. It is also a distinct issue from the issue of the proper construction of r 5.4, which is the subject of question of law 2.

77    The Agency contended that the word “permanent” in s 24(1)(b) meant “irreversible”, or “untreatable”. In other words, the Tribunal, exercising the power in s 21 afresh on merits review, had to be satisfied that an impairment was, or was likely to be, irreversible before that provision was satisfied. The Agency submitted that the intention of the legislative scheme is that “obesity, as a reversible condition, was not permanent”.

78    The Agency relied upon a dictionary definition from the Macquarie Dictionary:

adjective 1.     lasting or intended to last indefinitely; remaining unchanged; not temporary; enduring; abiding.

(Original emphasis.)

79    It is notable that this definition does not include the term “irreversible”.

80    There are two difficulties with the Agency’s submissions, only one of which goes to the correct construction of “permanent” in s 24(1)(b). The second difficulty, flowing from the correct construction of the term, concerns what the adjective attaches to in Ms D’s circumstances. In short, it does not attach to her morbid obesity. It attaches to the loss of or damage to her musculoskeletal, movement-related, and sensory functions identified by the Tribunal as impairments. As the Agency submitted, it was those impairments which were the qualifying impairments, as explained at [167] of the Tribunal’s reasons. The issue about which the Tribunal needed relevantly to be satisfied was whether those impairments were “permanent”. I deal with that below at [126]-[147].

81    Returning to the construction question, I consider the Agency’s proposed construction to be unduly narrow. On the other hand, the respondent’s contention – namely that the correct meaning is “long-term” – also does not reflect the correct meaning, in the text and context, and taking into account the purpose of the access requirements.

82    As I noted in Mulligan, the threshold access requirements are designed to impose some restrictions on who can access the funding for supports available under the NDIS. The objectives of the legislation in s 3, and the guiding principles in s 4, make it clear the scheme is focused on assisting people with disabilities to live their lives with dignity, with as much autonomy as possible, and with the ability to enjoy access to community and social engagement commensurate with people who do not live with disabilities. In other words, the scheme’s objectives and purposes concern lifelong experiences. As some textual indications make clear (s 24(2) being a particularly relevant one), the scheme recognises that what prevents or hinders an individual from full participation in the community, and the fullest enjoyment of their life that is possible, might fluctuate over their lives, and over parts of their lives. Impairments may not be stable. They may not always have the same effects. But they endure, and the legislative scheme recognises that people who must live with them – provided the remainder of the threshold criteria are met – should receive support throughout their lives, at the level they reasonably require.

83    The guiding principles in s 4 make it abundantly clear that the scheme is directed at lifelong support, and lifelong benefits, in order to promote substantive equality between people with and without disabilities.

84    The concept of “irreversible” is unhelpful, and a distraction from the context and purpose of the legislation. It prompts the question – ‘reversible by what?’ That is, how far does an NDIS applicant need to go to attempt to ‘reverse’ their impairment? And what does ‘reversible’ mean? Is it a question of degree? Fifty percent reversible? Thirty percent reversible? Does irreversible mean ‘cannot be improved’? Of course, many impairments covered by the NDIS – such as psychiatric impairments – can be ‘improved’ (in terms of the way an individual experiences the impairment) by therapy and medication. Are they ‘reversed’ if the medication is very successful? Obviously, the answer is they are not. The impairment remains, but the symptoms or manifestations may be controlled or somewhat ameliorated.

85    The constructional choices must take into account the purpose of the threshold provisions in the context of this legislation, which addresses the lifelong needs of people living with disability, in terms of practical support and assistance to fulfil the rights and interests set out in s 4 of the Act, and also in the Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 2515 UNTS 3 (entered into force 3 May 2008). In my opinion, the correct meaning of “permanent” in s 24(1)(b) is “enduring”. This meaning reflects the purpose and context of the legislative scheme, as a scheme intended to deliver lifelong support to persons with disability.

86    The critical point is that “permanent” is used as an adjective in s 24(1) to the noun “impairment” (or in the plural, “impairments”). The focus of the text, consistently with the purposes of the scheme, is on whether the impairments experienced by individuals (rather than the cause of the impairments or the specific diagnoses which might be applied to a medical condition) have an enduring quality so as to fit within the conceptual emphasis of the scheme.

87    The usual approach to construction, in the absence of a contrary intention, means the Court should construe a term consistently throughout a single legislative scheme, assuming Parliament intended it to have the same meaning wherever it was used. The term “permanent” is also used in s 25, dealing with threshold criteria for early intervention supports. I agree with the respondent’s submissions that ascribing the term the meaning of “irreversible” does not sit easily with the context and purpose of the early intervention threshold requirements. The reference to “permanent basis” in s 29(b) is another example where ascribing the meaning of “irreversible” would not fit easily with the context and purpose of the provision. Section 29 relates to a person ceasing to be a participant as a result of entering a residential care service, or being provided with home care, “on a permanent basis”. A meaning commensurate with “enduring” is more compatible.

88    The Agency sought to rely on the use of the term “irreversible” in parts of the Productivity Commission’s report, to which reference is made in the explanatory memorandum, and to which I made reference in Mulligan. See Productivity Commission, Disability Care and Support (Inquiry Report No 54, 31 July 2011).

89    The explanatory memorandum refers to recommendation 3.2 of the Commission, which was extracted in Mulligan: see [59] above.

90    This recommendation of itself takes the constructional choices about the meaning of “permanent” no further.

91    The Agency selected the following passage from Ch 3 of the Productivity Commission Report (at p 174), being the Chapter entitled “Who is the NDIS for?”:

A person getting funded support from the NDIS would have a disability that is, or is likely to be, permanent. ‘Permanent’ refers to the irreversible nature of the disability, even though it may be of a chronic episodic nature. For example, this would include people with significant and enduring psychiatric disabilities, who periodically rely exclusively on support from the clinical services of the mental health system, but at other times are able to live in the community provided they have appropriate supports.

92    It also relied on this passage from p 185 of the Productivity Commission Report:

It is important to stress that relaxing the criterion for ‘permanence’ too greatly could threaten the sustainability of the scheme.

93    In contrast, the Ms D’s counsel selected the following passage, which appears in the “Key points” section at the start of Ch 3 (at p 157):

A person receiving funded support from the NDIS would have a disability that is, or is likely to be, permanent. The definition of ‘permanence’ would include people with long-term functional limitations who may only need episodic support.

94    The role of, or perhaps the prominence to be given to, extrinsic material in the task of statutory construction remains elusive. It is not possible to reconcile easily all of the judicial observations or judicial practice in the use of extrinsic material.

95    On this application, the Agency appeared to submit there was an “ordinary” meaning to the term “permanent” in s 24(1)(b), being “irreversible”, and the extrinsic material confirmed this meaning; in other words, in reliance on s 15AB(1)(a) of the Acts Interpretation Act 1901 (Cth). I did not understand the Agency to be submitting that the term was “ambiguous or obscure” so as to engage s 15AB(1)(b).

96    The difficulty, as the contrasting submissions extracted above demonstrate, is that the extrinsic material relied upon here – the Productivity Commission Report – uses a range of descriptors when referring to the concept of permanency of impairments. Unsurprisingly so, given it is a large report canvassing a substantial law reform project. It is a considerable step away from an explanatory memorandum or second reading speech relating to a specific piece of legislation that has been drafted and is under consideration by Parliament. It is by its nature discursive. It is wholly inappropriate to use such a source as a way of ascertaining the meaning of the word “permanent”.

97    Such a source might be appropriate to ascertain the “mischief” or “purpose” of a piece of legislation, or even a specific provision, but is likely to be “virtually never useful” in ascertaining meaning: see the observations of Spigelman CJ and Mason P in Harrison v Melhem [2008] NSWCA 67; 72 NSWLR 380 at 384 and 399 respectively. I respectfully agree with their Honours’ observations, and the distinction there made.

98    The limits on the use of extrinsic material closer to the drafting of a piece of legislation, such as explanatory memoranda, were explained by Gageler J in Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2020] HCA 29; 381 ALR 601 at [66]-[72] :

The pronouncement of five members of the High Court in 2010 that “it is erroneous to look at extrinsic materials before exhausting the application of the ordinary rules of statutory construction” cannot be understood to have meant more than to stress that statements of legislative intention made in extrinsic materials do not “overcome the need to consider the text of a statute to ascertain its meaning”. The “modern approach to statutory interpretation”, which was well‑established before the pronouncement and which has continued in practice afterwards, “(a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses ‘context’ in its widest sense to include such things as the existing state of the law and the mischief which … one may discern the statute was intended to remedy”.

Applying the modern approach to statutory interpretation, consideration of context, including consideration of legislative history and extrinsic materials, “has utility if, and in so far as, it assists in fixing the meaning of the statutory text”. The quality and extent of the assistance extrinsic materials provide in fixing the meaning of statutory text is not uniform. The quality and extent of the assistance varies in practice in ways unable to be fully appreciated without regard to the provenance and conditions of creation of the extrinsic materials.

Explanatory memoranda for all Government Bills other than appropriation and supply Bills introduced into the Commonwealth Parliament have long been required by the practice of the Senate and the standing orders of the House of Representatives. The Department of the Prime Minister and Cabinet has long published a Legislation Handbook for the guidance of officers of the Executive Government the current edition of which describes an explanatory memorandum for a Government Bill as “a companion document to a bill, to assist members of the Parliament, officials and the public to understand the objectives and detailed operation of the clauses of the bill”. Typically, an explanatory memorandum for a Government Bill is written by officers of the Department whose Minister has portfolio responsibility for the Bill and who have given drafting instructions for the Bill to the Office of Parliamentary Counsel, the principal function of which is “the drafting of proposed laws for introduction into either House of the Parliament”.

Explanatory memoranda for Government Bills introduced into the Commonwealth Parliament are written against the background of the Parliament’s commitment to the governance of the enacted statutory text accentuated in the constrained language used by the Parliament in s 15AB of the Acts Interpretation Act to acknowledge how consideration of an explanatory memorandum or other extrinsic material might be “capable of assisting in the ascertainment of the meaning” of a provision of an Act. Section 15AB acknowledges that consideration of an explanatory memorandum might assist “to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act”. Or consideration of the explanatory memorandum might assist “to determine the meaning of the provision” if it “is ambiguous or obscure” or if “the ordinary meaning conveyed by the text of the provision … is manifestly absurd or is unreasonable”.

Made clear by omission from s 15AB is that the Commonwealth Parliament does not contemplate that explanatory memoranda might be used by officers of the Executive Government writing them, or by courts considering them, to add to or detract from the text of an enacted provision. Axiomatically, an explanatory memorandum “cannot displace the meaning of the statutory text” and cannot be “substituted for the text”.

Having regard to their provenance and to the circumstances of their creation, explanatory memoranda for Government Bills introduced into the Commonwealth Parliament can ordinarily be taken by courts to be reliable guides to the policy intentions underlying Government sponsored legislation. They can ordinarily be relied on by courts to explain the overall legislative design and the intended practical operation of provisions and combinations of provisions. Their use of examples of the contemplated operation of provisions can inform in both those respects. They can sometimes even yield insight into the precise grammatical sense in which words appear in the texts of provisions.

Lacking both the force of law and the precision of parliamentary drafting, however, an explanatory memorandum cannot be taken to be an infallible and exhaustive guide to the legal operation of a provision. Notoriously, explanatory memoranda sometimes get the law wrong. The potential for error in examples of the contemplated operation of provisions set out in explanatory memoranda is highlighted by the acknowledgement of the Parliament in s 15AD(b) of the Acts Interpretation Act that even an enacted example of the operation of a provision might get the legal operation of the provision wrong: “if the example is inconsistent with the provision, the provision prevails”.

(Footnotes omitted.)

99    In the first sentence of this extract, at [66], Gageler J is referring to Saeed v Minister for Immigration and Citizenship [2010] HCA 23; 241 CLR 252 at [31] and [33].

100    There is no warrant for an approach to the construction of the term “permanent” in s 24(1)(b) (or in other parts of the NDIS Act) which involves lifting other selected terms from a law reform proposal which may have led to the drafting of legislation, but neither accompanied nor was contemporaneous with the legislation as it was put to Parliament.

“Conditions”, “impairments and disability”

101    In parts of its written submissions, the Agency focuses on the term “condition”. Other than in the phrase “psychiatric condition”, and other than in the context of early intervention, the term appears once in the Rules, in r 5.7. Aside from the one context in which Parliament has used the term in a composite phrase, I consider there is some danger in substituting the term “condition” for the term used by Parliament, which is “impairment”.

102    Before the Tribunal, as the written submissions for the Agency demonstrated, there was a mixed use of terminology when submissions or contentions were being made about the threshold requirements in s 24, and about the fact-finding in which the Tribunal needed to engage. Somewhat interchangeably, the parties used the terms “impairment”, “disability”, “condition” and “diagnosis”.

103    Ms D’s closing submissions before the Tribunal were (at [2]):

[Ms D] suffers from a number of medical conditions and disabilities, and seeks access to the National Disability Insurance Scheme (NDIS) in relation to the following conditions and disabilities:

a.     Spinal arthritis and nine (9) prolapsed disks;

b.     Degenerative impingement of both shoulders (shoulder condition);

c.     Bilateral knee osteoarthritis (osteoarthritis);

d.     Ulcerative colitis;

e.     Obstructive sleep apnoea (sleep apnoea); and

f.     Morbid obesity (obesity).

(Emphasis added, footnotes omitted.)

104    This list appears to outline what the Ms D contended were the “impairments” for the purposes of s 24(1)(a) and (b) .

105    And at [30], Ms D’s closing submissions stated (and the Agency accepted before the Tribunal) that the following matters were not in dispute:

[Ms D’s] chronic pain condition is a result of her other conditions and not a separate impairment; [[30(b)]]

….

The following conditions are impairments for the purpose of s24(1)(a):

i.     Osteoarthritis;

ii.     Spondyloarthrosis;

iii.     Shoulder condition;

iv.     The associated pain from these conditions; and

v.     Sleep apnoea. [[30(d)]]

(Emphasis added, footnotes omitted.)

106    Then at [35]-[36], this was how the Ms D’s closing submissions described the relevance of her obesity to s 24(1):

[Ms D] contends that her obesity is a disability associated with impairment of physical function, because it exacerbates her other conditions including spondyloarthrosis, osteoarthritis, shoulder condition and pain condition, and sleep apnoea, which limit her physical functioning.

If the Tribunal is not persuaded that obesity is a disability attributable to impairment of her physical function, there is sufficient evidence to support a finding that [Ms D]’s obesity is a symptom of her other disabilities.

(Footnotes omitted.)

107    And at [39]:

The [Agency] contends that [Ms D]’s degenerative conditions of spondyloarthrosis, osteoarthritis, shoulder condition are not permanent because weight loss would improve these conditions as per Rule 5.7 of the Rules. Further, that [Ms D]’s obesity and sleep apnoea are not permanent because weight loss (diet or surgery) is a known, available and appropriate treatment, that would remedy (cure or substantially relieve) the impairments as per Rule 5.4 of the Rules

It is submitted that weight loss through diet is not an available or appropriate treatment that would result in remedying [Ms D]’s impairment(s) or improving her conditions.

108    The Agency’s closing written submissions to the Tribunal stated at [24]-[26]:

The [Agency] conceded in its SFIC [statement of facts, issues and contentions] that obstructive sleep disorder and the degenerative conditions in [Ms D]’s knees, shoulders and cervical, thoracic and lumbar spine (as set out above) were impairments for the purposes of section 24(1)(a) of the Act.

That leaves for determination by the Tribunal whether the following conditions are impairments for the purposes of section 24(1)(a) of the Act:

a.     Ulcerative colitis;

b.     Morbid obesity.

The [Agency] submits that neither [Ms D]’s ulcerative colitis nor her morbid obesity are impairments for the purposes of section 24(1)(a) of the Act.

(Emphasis added.)

109    Then, at [72] and in the alternative, the Agency contended Ms D’s morbid obesity was not a permanent impairment for the purposes of s 24(1)(b).

110    On this application, counsel for the Agency confirmed that the Agency’s contention before the Tribunal was that Ms D’s morbid obesity was not an impairment, or alternatively was not a permanent impairment. The Agency was not submitting to the Tribunal (or the Court) that morbid obesity could never be found to be an impairment, or a permanent impairment for the purposes of s 24(1) of the NDIA Act.

111    As I have explained, at [17] of its reasons the Tribunal asked the correct question for the purposes of the threshold criteria set out in s 24(1) of the NDIS Act, relevantly identifying the first two issues for determination as:

(a)     whether Ms [D] has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory, or physical impairments;

(b)     whether Ms [D]’s impairments are, or are likely to be, “permanent”.

(Original emphasis.)

112    At [30], and again correctly, the Tribunal extracted the relevant part of the Agency’s Operational Guidelines concerning how to decide what is a “disability attributable to an impairment” for the purposes of s 24(1)(a). The Agency accepts that at [31] the Tribunal correctly set out what is and is not in dispute on the review. The Agency contends the Tribunal moved into an erroneous analysis at [32]-[33].

113    At [32]:

However, the Tribunal considers that when deciding whether the first criterion in s 24(1)(a) of the NDIS Act is met, it is not necessary for the decision-maker to make findings about or to identify the condition or conditions that the person has, in order to reach its conclusions about whether the person has one or more impairments which involve the loss of, or damage to, their physical, sensory or mental function. While the decision-maker may take into consideration medical diagnoses that have been made in respect of the person as an indicator that they might have certain impairments, this does not complete the decision-maker’s task. The decision-maker must satisfy themselves on the evidence before them, whether the person has one or more impairments which involve the loss of or damage to their physical, sensory, or mental function.

(Footnotes omitted.)

114    In oral submissions, counsel for the Agency appeared to accept there were no legally erroneous statements in this paragraph. His attention focused on [33]:

With that in mind, the Tribunal does not consider it necessary or helpful to engage in the dispute raised by the parties about precisely which “conditions” Ms [D] has, or those which should be taken into consideration, when deciding whether Ms [D] meets the criterion under s 24(1)(a) of the NDIS Act. As addressed in Mulligan, the focus is to remain on the person’s “impairments” and that is what the Tribunal will do.

(Original emphasis.)

115    However, properly understood the Agency’s complaint is not about the content of this paragraph. As the Agency’s emphasis on the passages in Mulligan demonstrated, the Agency agrees that the focus of the task in s 24(1)(a) and (b) is on whether a person has one or more impairments, and whether those impairments are permanent. The “disability” (singular, as an overall description) which a person has is attributable to those impairments, but the focus of the NDIS Act (and the focus of supports if a person qualifies) is on supports for the impairments a person has.

116    Thus, what is said by the Agency to be erroneous is the characterisation by the Tribunal which follows from [33], where it divides Ms D’s impairments into three categories: impairments to “musculoskeletal and movement-related functions” (reasons at [34]-[38]), “digestive function” (reasons at [39]-[42]), and “cardiovascular function” (reasons [43]-[48]).

117    The Agency contends these characterisations are “new”, and this is what gives rise to one of its procedural fairness contentions. I explain below why I reject this contention.

118    For present purposes, the important point to clarify is that the focus about which the Tribunal instructed itself at [32]-[33] was absolutely correct. That is the point I sought to make in Mulligan. The Tribunal was correct to focus its fact-finding on whether Ms D had one or more “impairments”. It was the parties’ loose use of language in their respective submissions (and especially the use of the term “condition”) which could have led the Tribunal into error, but did not.

The questions of law and grounds as expressed

119    The questions of law stated in the notice of appeal are:

1.    Whether the Tribunal erred in construing s 24(1)(b) of the National Disability Insurance Scheme Act 2013 (Cth) (“the Act”) and rule 5.4 of the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (“Rules”) in finding that an impairment was permanent within the meaning of s 24(1)(b) on the basis that a treatment that would, or would be likely to, remedy that impairment had to be affordable to the Respondent, given her “financial position”.

2.    Whether the Tribunal erred in applying s 24(1)(b) of the Act and rule 5.4 of the Rules by:

a.     taking into account an irrelevant consideration or considerations, namely, the Respondent’s financial position and her capacity to afford a treatment that was found to be likely to remedy one or more of her impairments;

b.     concluding that the Respondent’s “impairments involving her physical and sensory impairments” were permanent when the only finding open on the evidence was that those impairments were not permanent.

3.     Whether the Tribunal erred in applying s 24(1)(b) of the Act and rule 5.6 of the Rules in finding that an impairment was permanent within the meaning of s 24(1)(b) in circumstances where the only finding open on the evidence was that the Respondent’s “impairments involving her physical and sensory impairments” required further “medical treatment or review” in order for its permanency or likely permanency to be demonstrated.

4.     Whether the Tribunal denied the Applicant procedural fairness and/or failed to perform its statutory task by:

a.     deciding the application of s 24(1)(a) of the Act on a basis different from that contended before by the parties, without putting the Applicant on notice of that course and without seeking submissions from the Applicant or allowing it to be heard on the basis upon which the Tribunal proposed to decide that issue, and on which it did decide that issue adversely to the Applicant.

b.     construing and deciding the application of s 24(1)(b) of the Act on a basis involving the lack of affordability of treatments to the Respondent that was not in issue between the parties, without putting the Applicant on notice of that course and without seeking submissions from the Applicant or allowing it to be heard on the basis upon which the Tribunal proposed to decide that issue, and on which it did decide that issue adversely to the Applicant[.]

120    Seven grounds supporting those questions are identified.

121    Question of law 1 is supported by grounds 2 and 3:

2.     The Tribunal erred in its construction of the phrase “known, available and appropriate evidence-based clinical, medical or other treatments” in rule 5.4 (and hence in its construction of the requirement in s 24(1)(b) that “the impairment or impairments are, or are likely to be, permanent”) in:

a.     concluding at [117]-[118] that a treatment that the Tribunal “infer[red] … that it was likely that [the Respondent] was, and still is, unable to afford” was not “ ‘available’ to [the Respondent], on account of her financial position”.

b.     concluding at [130] that there are no known, available, and appropriate evidence-based clinical, medical, or other treatments that would be likely to remedy the Respondent’s “impairments which involve loss of or damage to her musculoskeletal, movement-related, sensory, or cardiovascular functions”, and that the Respondent satisfied the requirements of s 24(1)(b) of the Act.

3.     The Tribunal should have held that, on its proper construction, (i) rule 5.4 does not require or permit an inquiry into the financial means of a person when deciding whether a treatment is “known, available and appropriate”, and that a person may have an impairment that is not permanent or likely to be permanent (within the meaning of s 24(1)(b)) if a treatment exists and can be undertaken in Australia that would be likely to remedy the impairment regardless of whether that treatment is considered to be “affordable” to the person; and (ii) “permanent” in s 24(1)(b) refers to irreversibility of the impairment, regardless of whether rule 5.4 is satisfied.

(Original emphasis.)

122    Question of law 2 is supported by ground 4:

4.     Accordingly:

a.     the Tribunal took into account an irrelevant consideration or considerations and failed to discharge its statutory task when deciding the operation of rule 5.4 and s 24(1)(b) at [117]-[118] on the basis of the affordability of the treatments to the Respondent;

b.     on the evidence before it, the only open conclusion open to the Tribunal was that the “closely supervised, intensive and sustained dietary control and exercise programs” that the Tribunal identified at [118] were “known, available and appropriate evidence-based clinical, medical or other treatments”, and thus that the Respondent’s “impairments involving her physical and sensory impairments” were not permanent or likely to be permanent within the meaning of s 24(1)(b), or alternatively that the impairments were not permanent or likely to be permanent under the proper construction of s 24(1)(b) even if rule 5.4 was not satisfied.

(Original emphasis.)

123    Questions of law 3 is supported by grounds 6 and 7:

6.     The Tribunal erred at [125] in holding that rule 5.6 did not “appl[y] in the circumstances of this case”. On the evidence before it, including:

a.     Dr Jakobovits’ evidence that he did not “consider [him]self as an expert on bariatric surgery”, and that he would refer the Respondent to a bariatric surgeon for assessment of whether bariatric surgery was appropriate for the Respondent;

b.     Dr Machart’s evidence was that the Respondent should be assessed by a specialist in bariatric surgery;

it was not open to the Tribunal to form a conclusion that the impairment does not require “further medical treatment or review in order for its permanency or likely permanency to be demonstrated”, within the meaning of rule 5.6.

7.     The Tribunal should have found that the Respondent’s impairments were not permanent or likely to be permanent because further medical treatment or review was required in order for its permanency or likely permanency to be demonstrated.

124    Question of law 4 is supported by grounds 1 and 5:

1.     The Tribunal denied the Applicant procedural fairness in relation to its approach to s 24(1):

a.     at [32]-[33], the Tribunal identified that the parties before it had addressed submissions to it on the construction and operation of s 24(1)(a) on a basis that the Tribunal considered to be incorrect or irrelevant, and that the Tribunal did not decide the application on that basis but on a different basis.

b.     The Tribunal did not draw this issue to the parties’ attention prior to delivering its reasons and orders, and did not seek further submissions from the parties addressing the construction of s 24(1)(a) that the Tribunal considered to be the appropriate construction, nor addressing the application of that construction to the facts.

c.     The Tribunal did not invite submissions from the parties as the how the remaining limbs of s 24(1) were to be approached once a different approach were taken to s 24(1)(a) and, in particular, to the identification of the Respondent’s “impairments” within the meaning of that section.

d.     The Tribunal decided the operation of ss 24(1)(a)-(e) upon a basis on which the Applicant did not have an opportunity to be heard, and should (correctly applying s 24(1)(b), rule 5.4 and/or rule 5.7) have decided that the Respondent did not meet the disability requirements, or alternatively should have allowed the Applicant a chance to be heard on the operation of those provisions.

2.     The Tribunal erred in its construction of the phrase “known, available and appropriate evidence-based clinical, medical or other treatments” in rule 5.4 (and hence in its construction of the requirement in s 24(1)(b) that “the impairment or impairments are, or are likely to be, permanent”) in:

a.     concluding at [117]-[118] that a treatment that the Tribunal “infer[red] … that it was likely that [the Respondent] was, and still is, unable to afford” was not “ ‘available’ to [the Respondent], on account of her financial position”.

b.     concluding at [130] that there are no known, available, and appropriate evidence-based clinical, medical, or other treatments that would be likely to remedy the Respondent’s “impairments which involve loss of or damage to her musculoskeletal, movement-related, sensory, or cardiovascular functions”, and that the Respondent satisfied the requirements of s 24(1)(b) of the Act.

(Original emphasis.)

125    The Agency sought leave to rely on an amended notice of appeal, the amendments relating to the relief sought by the Agency if the s 44 appeal was upheld. In the alternative, by the amendments the Agency contended the Court should itself make orders refusing Ms D’s access request under s 24 of the Act. Amendments made to the grounds in the notice of appeal are reflected in the underlined components of the quoted extracts, above. Ms D did not oppose the leave sought and it was granted.

Resolution of the questions of law and grounds supporting them

Question of law 1 (Grounds 2 and 3)

126    This question of law, and grounds 2 and 3, concern in part the Tribunal’s approach to rr 5.4-5.7, which are extracted at [23] above.

127    The Agency contends that in determining whether it was satisfied that Ms D’s impairments are, or are likely to be, permanent for the purposes of s 24(1)(b), the Tribunal attributed an incorrect meaning or operation to r 5.4, and did not look at the scope of that rule in the full context of rr 5.5-5.7, and the terms of s 24(1)(b) of the Act.

128    The error is said to be at [117]-[118] of the Tribunal’s reasons, and in its conclusion at [130]:

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.

…

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, footnotes omitted.)

The meaning of “known, available and appropriate” in r 5.4

129    The Agency contends that neither s 24(1)(b) nor r 5.4 (nor for that matter any of rr 5.5-5.7) permit a decision-maker to take into account the financial means of an applicant in deciding whether a treatment is “known, available and appropriate”. Nor, it contends, can a decision-maker take into account whether a treatment is “affordable” for a person in deciding if an impairment is or is likely to be permanent.

130    I explained at [85] above my view about the correct construction of “permanent” in s 24(1)(b). The phrase “permanent impairment” in s 24(1)(b) means an impairment which is of an enduring nature. In other words, the question for the decision-maker is whether the impairment(s) experienced by an individual (rather than the cause of the impairments or the specific diagnoses made about a medical condition) has or have an enduring quality so as to require supports funded and/or provided under the NDIS Act on an ongoing basis. As s 29 and s 30 make clear, the intention of the scheme is that once a person meets the access requirements, then subject to certain specific exceptions, the person will remain supported by the NDIS through their lifetime.

131    I have also made findings about the interrelationship between the Rules and the Act: see [64]-[75] above. I proceed on the basis that r 5.4 and r 5.6 prescribe circumstances where, if the repository of the power is satisfied on the evidence of the applicability of either of those rules, a person’s impairment will be excluded from meeting s 24(1)(b). Relevantly, r 5.4 directs attention to a negative state of fact.

132    The Agency contends “available” in r 5.4 simply means the treatment exists, whether or not an individual is, in reality, able to access the treatment. I infer the Agency contends it means available in Australia, although the Agency did not expressly limit its submissions in this way. As I understand it, the Agency contends “appropriate” refers to the relationship between the treatment and the prospect of improvement (or “remedy”) of an individual’s impairment, rather than any sense of the treatment being “suitable” for a person in terms of their lifestyle, and where they live.

133    The Agency is correct that entry into and participation in the NDIS is not means tested. I accepted this in McGarrigle at [24]. I accept that there may be some potential disconformity in introducing considerations of affordability into a determination of the criterion in s 24(1)(b). The same potential disconformity might exist if the phrase “known, available and appropriate” is understood to refer to practical accessibility.

134    These matters might be capable of indicating that r 5.4 is inconsistent with s 24(1)(b), but as I have observed, that is not an issue before the Court. Assuming the rule is valid, some meaning and operation must be given to it as an exclusionary circumstance, in terms of when an impairment will not be a “permanent impairment”.

135    The executive has chosen to use three descriptors, each of which must be given work to do. See Commonwealth v Baume [1905] HCA 11; 2 CLR 405 at 414, Griffith CJ; Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [71], McHugh, Gummow, Kirby and Hayne JJ; Wilkie v Commonwealth [2017] HCA 40; 263 CLR 487 at [146]; District Council of Streaky Bay v Wilson [2021] FCAFC 181; 287 FCR 538 at [63]. On the application of principles of statutory interpretation to delegated legislation, see Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; 186 CLR 389 at 398; Master Education Services Pty Ltd v Ketchell [2008] HCA 38; 236 CLR 101 at [19]; ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18; 254 CLR 1 at [28]. See also Berenguel v Minister for Immigration and Citizenship [2010] HCA 8; 264 ALR 417; Acts Interpretation Act 1901 (Cth) s 46(1); Legislation Act 2003 (Cth) s 13(1).

136    The chosen descriptors must also be construed consistently with the other language used in this section of the rules, and in r 5.4 in particular, including the requirement that the treatment “would be likely to remedy the impairment”. In this context, “remedy” should be understood to mean more than just relieve or improve. That is because r 5.5 recognises that an impairment may be permanent notwithstanding the severity of its impact on a person may fluctuate, or there are prospects for improvement. These changes in the impacts of an impairment may occur because of, amongst other matters, treatment. Therefore, in r 5.4 the word “remedy” should be understood to mean something approaching a removal or cure of the impairment. That is consistent with the meaning I consider should be given to the statutory phrase “permanent impairment”, as an impairment which is enduring and, while its impacts on a person from time to time might fluctuate, is not an impairment which is likely to be removed or cured.

137    As a general observation, in my opinion each of the adjectives must be construed as referring to circumstances in Australia. In r 5.4, the word “known” connotes a treatment which can be identified by Australian medical practitioners as a suitable treatment for the person’s particular impairment. The word “appropriate” connotes a treatment which has a capacity to “remedy” the impairment and is suitable for the particular individual concerned to undergo. The capacity of individuals with an impairment to undergo certain treatments may vary depending on their physical and psychological capabilities, other aspects of their physical and mental health, on their personal circumstances in terms of where they live and who they live with, and who cares for them.

138    The word “available” should be understood as meaning available to a particular individual. If it were to be construed as meaning “exists in Australia”, then it would have little different work to do from the word “known”. The Macquarie Dictionary defines “available” as meaning:

adjective 1. suitable or ready for use; at hand; of use or service …

(Original emphasis.)

139    Assuming as I do the validity of r 5.4, and on the premise any given treatment is “known” and “appropriate” as I have explained those terms, in my opinion the adjective “available” should be understood as directed at what treatments an individual can, in reality, access. Whether a person can afford a treatment will form part of the factual circumstances a decision-maker may need to examine in deciding if a treatment is one that an individual can in reality access.

140    Affordability may not be the only feature of a treatment affecting whether an individual can access a treatment. For example, whether a known and appropriate treatment for an impairment for a person in a remote Aboriginal community in Australia is “available” to that person is likely to involve considerations of whether that treatment can be delivered in that community, or whether a person has to travel to a major city or regional town to receive that treatment. So too the personal circumstances of a person, and the combination of impairments they might have. If a person has severe agoraphobia, but also has an impairment for which there is a known and appropriate treatment that can only accessed at a busy public hospital, a decision-maker may need to consider whether, as a matter of fact, that treatment is “available” to that individual, even if it might be “available” to a person without agoraphobia.

141    This construction is consistent with the approach taken by Smithers J in Dragojlovic v Director-General of Social Security [1984] FCA 6; 52 ALR 157, in relation to the term “permanent incapacity” in the Social Services Act 1947 (Cth). Counsel for Ms D relied on this decision in his responsive submissions. In particular, he relied on passages at 160-161:

Whether the fact, namely permanent incapacity for work, is established is to be decided by reference, inter alia, to the availability of remedial treatment. A disability which can be relieved by treatment which is reasonably available is not permanent. But where the claimant is a person who actually cannot, for fear, or religious beliefs, for example, or for some other reason of a genuinely compulsive nature, accept that treatment, the question is whether his disability is one which can, in fact, be relieved.

…

In any case in which treatment is refused the question for the respondent or the Tribunal is not whether the refusal is reasonable or otherwise, but whether, on the probabilities, the refusal is genuinely based on grounds which, in fact, compel the person concerned, acting honestly, so to refuse. Questions involving the reality of alleged reasons for action and involving their bona fides are commonly encountered in the course of the judicial process. When they are encountered, in the context of a refusal to undergo treatment for a disability, the reasonableness of the treatment in contemplation is, of course, a factor of importance. It is a question, when deciding if, in fact, a person is permanently incapacitated for work. The question ought to be resolved on the basis that a person is so permanently incapacitated when his incapacity is such that it can only be relieved by treatment of such a nature that, in the opinion of the fact finding Tribunal, he cannot undergo it. A person who is genuinely constrained by religion or fear which he cannot overcome is no doubt such a person. But there may well be cases in which, on other genuine grounds, it would not be reasonable to expect a claimant for a pension or a pensioner to undergo particular treatment of a remedial nature. Dealing with the plain question of fact, with respect to a man who can be cured only by treatment objectively reasonable, but, actually not available to him because of fear or other genuine reason, a Tribunal would, in my opinion, find that that man was permanently incapacitated for work within the meaning of s 23 of the Act.

(Original emphasis, emphasis in bold reflecting the emphasis added by Ms D’s counsel in written submissions.)

142    I accept Dragojlovic concerned a different legislative context, and therefore its direct application is limited. Nevertheless, there is, with respect, considerable common sense in the approach taken. Common sense approaches to statutory construction have their place: see Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation [1981] HCA 26; 147 CLR 297 at 320, Mason and Wilson JJ, citing Pearce D C, Statutory Interpretation in Australia (2nd ed, Butterworths, 1981) at 14. Like the Social Services Act in Dragojlovic, questions of the construction and operation of the NDIS Act should be approached with a reasonable degree of common sense. The NDIS Act is beneficial and remedial legislation designed to operate in relatively high volume decision-making, in a pragmatic context, and in respect of people (and their families and carers) already facing great challenges in their daily lives. The NDIS Act’s construction and operation should not be beset by parsing, technicalities and distinctions which make the legislative scheme more difficult to comprehend and administer, including for first instance decision-makers and the Tribunal on review. See to similar effect the observations of French CJ in International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; 240 CLR 319 at [42].

The application of r 5.4 by the Tribunal

143    At [111] of its reasons, the Tribunal made a finding that:

Ms [D]’s impairments involving loss of or damage to her musculoskeletal, movement-related, and sensory functions, are each likely to be improved if Ms [D] was to achieve significant weight loss in the vicinity of 20kg.

144    It then also found it was not satisfied that treatments intended to achieve weight loss:

would, or are likely to, remedy her impairment relating to cardiovascular function arising from her OSA [obstructive sleep apnoea] on the basis of Dr Kronborg’s evidence (see paragraph [93]), which the Tribunal accepts, that it may do so, but it was difficult to predict.

145    Between [113] and [117], the Tribunal considered the evidence about what Ms D had and had not attempted in the past to achieve weight loss, and placed emphasis on costs of treatments, concluding at [118]:

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.)

146    On the basis of the findings I have made above, there is no error of construction or application in the Tribunal’s approach to r 5.4.

147    However, as I explain in relation to grounds 1 and 5 below, the Agency is correct that, in adopting this approach to r 5.4 and in determining the review in a material part on this basis, the Tribunal denied the Agency procedural fairness.

Question of law 2(a) (Ground 4(a))

148    The resolution of this question of law depends upon the resolution of question of law 1, and its success or failure stands or falls with that question. The ground must fail, and the question must be answered adversely to the Agency, for the reasons outlined above in relation to question of law 1. The affordability of weight loss treatments for Ms D was not irrelevant to the application of r 5.4, nor was it irrelevant to the Tribunal’s determination of whether her impairments were permanent for the purposes of s 24(1)(b).

Question of law 2(b) (Ground 4(b))

149    The same answer must be given to this ground, and this question, for the reasons set out above. The Tribunal’s approach was correct, although in making these findings it denied the Agency procedural fairness, as I explain below.

Question of law 3 (Grounds 6 and 7)

150    This question, and the grounds supporting it (grounds 6 and 7), concern the Tribunal’s approach to, and application of, r 5.6, which provides:

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).

151    At [125] of its reasons, after its findings I have extracted above about the affordability of weight loss treatments for Ms D, the Tribunal made the following findings about bariatric surgery as a way for Ms D to achieve weight loss:

The Tribunal finds that bariatric surgery is not an appropriate medical treatment for Ms [D] based on medical evidence referred to in paragraphs [120] to [124] above and due [to] Ms [D]’s concerns about the risks involved in gastric sleeving which would involve the removal of two-thirds of her stomach. The Tribunal considers Ms [D]’s concerns to be reasonably held, given Dr Jakobovits[’] indications of the risks and complications that may arise, the advanced state of Ms [D]’s Obesity and her fear about whether she could safe[l]y undergo a general anaesthetic (a concern shared by Dr Machart). The Tribunal does not consider that Rule 5.6 applies in the circumstances of this case.

152    In its written submissions at [44], the Agency accepted there was a dispute on review before the Tribunal about the “potential for Ms [D] to undergo bariatric surgery”. Dr Jakobovits is a gastroenterologist and hepatologist. Dr Machart is an orthopaedic surgeon. The Agency did not submit the Tribunal misunderstood Dr Jakobovits’ evidence, and indeed his evidence was (transcript at p 122, ll 26-37):

And you say the surgery would be subject to significant complications. What are those complications that you're referring to?---Well, firstly, the complications are the potential risk of any operation, but in someone who is her size, venous thrombosis, pulmonary embolism, infection of the wound, the operation she would presumably have would be some sort of gastric reduction procedure, and a leak from the surgery, which would create, you know, intra-abdominal sepsis would be a disaster. And, in fact, one of the unfortunate things about asking me is that I see quite a lot of patients in medical panels who are suing their surgeon, and gastric leaks are incredibly common. I mean, I don't think they are, but I'm just seeing one end of the spectrum. But, they're not - what I'm saying that it's a risky procedure with subsequent potential complications.

153    He also gave this evidence (transcript at p 124, ll 32-40):

MS RHODES: Thank you, Doctor. You said before that in terms of any surgery it’s a risk benefit assessment?---Yes.

And from your knowledge of bariatric surgery is permanent weight loss always the case?---No, definitely not.

Okay?---1 mean, it’s often the case, but I’d certainly not say it’s always the case, and I've seen people who have had bariatric surgery and haven't lost a cracker.

154    The Agency’s contention is that the Tribunal’s reasoning ignored, or put to one side, the evidence of Dr Jakovobits and Dr Machart that Ms D needed to be assessed by an expert in bariatric surgery. Dr Machart’s opinion was (transcript at p 84, ll 4-12):

In your reports you’ve indicated that the only worthwhile treatment in your view for Ms [D] is weight loss. You’ve suggested that she would benefit from obesity surgery, but that that was a matter that was outside your area of expertise. Would you recommend that Ms [D] be referred to a bariatric surgeon for a proper work up assessment and advice in relation to whether bariatric surgery is a suitable treatment option for her?---As a general principle, yes, but I generally leave it to the GP to do that but you’re correct in that that is my opinion that she should be assessed by a specialist in that area.

155    Dr Jakovobits’ evidence was (in answer to a question from the Tribunal: transcript at p 123, ll 20-33):

And can I ask you, for the purposes of me understanding a bit more about your opinions on this, if Ms [D] was to present to you as someone who was willing to undertake this procedure, what would your opinion be about, understanding what her various comorbidities are, what would be your opinion about whether you would, if she was a patient of yours, whether you would recommend that she have that procedure?---Well, if she was very keen, and there weren’t at that particular time any major medical issues, and her colitis was in remission, I would refer her on - as I said, I don’t do this stuff, I’m a physician, not a surgeon. I would refer her to a bariatric surgeon, who I trust, and who works with a multi-disciplinary team, which includes a psychiatrist, a dietician, a physician, and perhaps an endocrinologist, so they all work together. So, there’s a sort of holistic assessment of what's going on and what the risks and benefits are. That would be my approach.

156    In light of this evidence, the Agency submits it was not open to the Tribunal to conclude that r 5.6 “did not apply” to its consideration whether Ms D’s impairments were permanent under s 24(1)(b). The Agency also submitted that it was not open to the Tribunal to find that Ms D’s refusal to undergo the procedure was ‘reasonable’ when that view was neither based upon, nor could be evaluated against, an expert opinion as to the suitability of bariatric surgery.

157    It was common ground in the review before the Tribunal that if Ms D could achieve substantial weight loss, such weight loss was capable of at least improving some of her impairments. The Tribunal made a finding of fact to that effect in the passage I have extracted at [143] above.

158    Again, for the purposes of these grounds of appeal, I assume the validity of r 5.6. As I explained at [131] above, that means I proceed on the basis that r 5.6 prescribes circumstances where, if the repository of the power is satisfied on the evidence of the applicability of that rule, a person’s impairment will be excluded from meeting s 24(1)(b). Like r 5.4, r 5.6 directs attention to a negative state of fact – whether an impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated. To be clear, although these rules are expressed in objective terms, their purpose is to guide the repository’s formation of a state of satisfaction for the purposes of s 21(1)(c) of the NDIS Act; namely that the repository (here the Tribunal):

is satisfied that, at the time of considering the request:

(i)     the person meets the disability requirements (see section 24) …

159    Therefore, what the Rules, and relevantly r 5.6 in particular, guide, is the formation of a state of satisfaction.

160    The opinions of Dr Jakobovits and Dr Machart on which the Agency relies were premised on the assumption that bariatric surgery as a potential option to treat Ms D’s weight loss could not be ruled out, or ruled in, without an opinion from a specialist bariatric surgeon.

161    The Tribunal’s question extracted at [179] above reveals another and different premise, and one that its reasons demonstrate was material to the Tribunal; namely whether Ms D was willing to undergo such surgery, given the risks, even if an expert gave an opinion that it might be appropriate for her. The transcript extracts on the appeal disclose the evidence given by Ms D, and also disclose that the Tribunal member questioned her about her position (transcript at p 31, l 34 – p 35, l 11):

[MS RHODES:] In terms of your weight loss, a number of medical professionals have recommended bariatric surgery. Why have you not taken that option up?--Because of the complications that are associated with having bariatric surgery, and as Dr Djokovic - I'm sorry if I’ve pronounced his name incorrectly - states, it’s not recommended with my comorbidities.

In relation to your finance - - -

MEMBER: Sorry, can I just ask, just on that, Ms [D], are you referring to - when you say that Dr Djokovic has not recommended it with your comorbidities, on what basis do you say that? Do you say that that's stemming from something in his report, or from his discussions with you during the assessment, or - - -?---It actually says that in his report that he would not recommend bariatric surgery due to my comorbidities.

I understood that he said that it might be considered, but he seems to point to saying that the advice of a bariatric surgeon should be obtained. Isn’t that what his final conclusion was?---He also said that a bariatric surgeon should be consulted. However, with the colitis, I have a malabsorption - - -

Yes, sorry to stop you there. I just want to make sure I’m clear about this, because when I read that report I got a different impression from it. So let’s go to that in the combined set of documents. If someone has got the page number at the tip of their fingers I'm happy to be prompted.

MS DARCY: It’s 281.

MEMBER: Thank you?--- Which part, please?

MS RHODES: It’s part 6?---Thank you.

MS DARCY: At 292 - point 14 at 292.

MEMBER: Yes. So can you see there, Ms [D] – I’ll give you a second to go to that page on 292?---292 on my screen is sideways.

Yes, same with me. So I’m going to have to crank my neck, but I’m going to read it out for you. So paragraph 14, there’s a question asked of the doctor:

Is the applicant a candidate for bariatric/gastric surgery (undertaken either publicly or privately)?

And then his answer is:

In my opinion the applicant may be a candidate for bariatric surgery, although an expert opinion from a bariatric surgeon would seem appropriate. The surgery would be subject to significant complications in view of her comorbidities.

So that's what you’re referring to?---Yes, that’s right.

And:

As she does not want to have an operation, I would not be recommending it.

So that's what you’re referring to there?---Yes.

All right, in paragraph 14. Thank you. Thank you, Ms [D]. All right, go on, Ms Rhodes.

…

MS RHODES: And just in relation to your - the bariatric surgery. So just about comorbidities. But are there any other reasons why you don’t want to do the surgery?---Because it's not one surgery. You know, there’s - well, the risk with any surgery is death, and that's forefront. But if l did have bariatric surgery, I would have to have follow up surgeries of skin removal, skirt - what they call skirt removal. So it’s not just one surgery, it’s several surgeries. I have - because of the colitis I have a malabsorption problem, so I’m therefore very scared about not being able to maintain my good bone health. The osteoporosis, not being able to have - like, I’m not supposed to have dairy, but I do have my cheese, and that's proven to be good for my bones, I’ve got fairly good bones. So yes, there’s a lot of fears around the surgery.

Thank you, Ms [D], I’ve got no further questions?---Thank you.

MEMBER: Thank you, Ms Rhodes.

(Original emphasis.)

162    It is unclear what kind of error the Agency alleged the Tribunal had made by grounds 6 and 7. In question 3 of the notice of appeal it is described as an error “in applying” r 5.6 and s 24(1)(b), but (absent legal unreasonableness or irrationality) that will not be an error of law unless the moving party can establish that the reasoning involved some misunderstanding of the construction or operation of the provisions concerned. Of course, there is no error demonstrated if all that is occurring on an appeal is a losing party contending for a different factual finding, or contending for a different view to be taken of the evidence, even in the application of the evidence to guidelines for one of the questions on the review – here, whether the Tribunal was satisfied that s 24(1)(b) was met. At times, it appeared to be a “no evidence” kind of error. If that is the case, it must fail because there was a probative evidentiary basis for the finding made by the Tribunal; it simply gave more weight to some evidence than other evidence, as it was permitted to do.

163    In my opinion, the reasons of the Tribunal demonstrate that, in forming its state of satisfaction, the Tribunal was aware of, and took account of, the opinions of Dr Jakobovits and Dr Machart: see, for example, the Tribunal’s reasons at [123]-[124]. The remainder of [123] demonstrates that the factual matters to which the Tribunal attributed more weight were the expert opinion about risks of the surgery. It is clear even from the extracts I have referred to at [152]-[153] above that Dr Jakobovits was qualified to express an opinion about those matters because he gave evidence of all the patients he saw after the surgery. The Tribunal gave weight to this, together with Ms D’s evidence about her awareness of the risks and this being why she does not wish to have the surgery. In turn, this explains the Tribunal’s conclusion at [125].

164    A further matter which the Agency’s submissions did not take into account, but which confirms that these findings are no more than the Tribunal weighing up all the evidence on the review and giving more weight to some evidence than other evidence, is what the Tribunal finds at [124]:

The Tribunal also notes the opinion provided by Dr Machart reference to concerns about Ms [D] undergoing an anaesthetic (albeit for the orthopaedic surgery) on account of her Obesity – see paragraph [66].

165    At [66], in findings not impugned on the appeal, the Tribunal had found:

Dr Machart opined that he did not believe that a knee replacement was the correct treatment option for Ms [D] in the presence of obesity. Dr Machart considered that “once obesity was addressed”, Ms [D] may not need a knee replacement. Dr Machart acknowledged that Ms [D]’s knee condition reduced her capacity to walk and made weight loss more difficult. In his report, Dr Machart states that theoretically, a knee replacement could help with weight loss but he also states that he would not recommend a knee replacement because “it would be too hazardous, e.g. anaesthetic complications in the presence of obesity”. Dr Machart states in his report dated 16 April 2021 that he doubted that Ms [D] would “pass as fit for an anaesthetic”, and that surgery would not be possible, even if deemed applicable.

(Original emphasis, footnotes omitted.)

166    Finally, in my opinion, where the Tribunal found (at [125] of its reasons) that r 5.6 did not apply “in the circumstances of this case”, what it meant was that it was not satisfied of the negative factual circumstances to which r 5.6 was directed. It was not satisfied Ms D’s impairments were not, or were not likely to be, permanent because there was a need for medical treatment or review of the likely effect of bariatric surgery on her obesity. As it was entitled to do, on the evidence before it, the Tribunal gave more weight to other evidence as I have explained above and for that reason found r 5.6 ‘did not apply’. By ‘apply’, it clearly meant it was not engaged so as to require a finding of non-permanency under s 24(1)(b).

167    Grounds 6 and 7 are rejected.

Question of law 4 (Grounds 1 and 5): procedural fairness

168    There are two alleged denials of procedural fairness by the Tribunal.

169    The first denial (question of law 4(a), ground 1) is said to have occurred in the way the Tribunal applied s 24(1)(a) of the NDIS Act, and the way it identified Ms D’s “impairments”. The Agency puts its contention on ground 1 in the following way in its written submissions at [14]:

The Tribunal’s introduction of differently-framed issues. At [32], the Tribunal correctly noted the difference between a medical condition and an impairment, but at [33] said that it ‘does not consider it necessary or helpful to engage in the dispute raised by the parties about precisely which “conditions” Ms [D] has, or those which should be taken into consideration, when deciding whether Ms [D] meets the criterion under s 24(1)(a) of the NDIS Act’. It then embarked on identifying, and then finding, impairments in terms not addressed directly by the parties. That was in error. Once the Tribunal considered that the parties had not addressed their submissions and evidence to the correct question, it should have brought that to their attention and sought further submissions and—if necessary—any additional evidence upon what it considered to be the true issues.

(Original emphasis.)

170    The Agency submits (at [15]) that the Tribunal made findings about the existence of:

three impairments in terms not used by the parties: impairments to ‘musculoskeletal and movement-related functions’ ([34]-[38]), ‘digestive function’ ([39]-[42]), and ‘cardiovascular function’ ([43]-[48]).

171    The second denial of procedural fairness (question of law 4(b), ground 5), is contended to arise because of the way the Tribunal dealt with r 5.4 and “affordability” as a component of “available” in r 5.4. At [38] of its written submissions, the Agency contends that if those grounds are rejected, the Tribunal denied it procedural fairness in reaching its decision on these issues.

172    It submits (at [43]):

At no point was the Agency on notice that it had to meet a case that Ms [D]’s means (which were not ascertained) could not meet the costs of the necessary treatments (which were not ascertained), such that this would result in ‘unavailability’ by unaffordability (which was not argued): SZLPH at [38]. Had this issue been identified, submissions could and would have been made, and, if necessary, further evidence could have been adduced and cross-examination could have been performed. The reliance at [117] upon Ms [D]’s evidence being ‘unchallenged’ is of no weight when the issues as framed gave no reason to scrutinise or challenge it. The denial of the chance to meet this ultimately dispositive issue involved a denial of procedural fairness that deprived the Agency of the chance of a successful outcome.

173    In terms of legal principle, the Agency relied on the following passage from SZLPH v Minister for Immigration and Border Protection [2018] FCAFC 145; 266 FCR 105 at [38]:

the subject of a decision is entitled to have his or her mind directed to the critical issues or factors on which the decision is likely to turn in order to have an opportunity to deal with them, and the subject is entitled to respond to any adverse conclusion drawn on material supplied by or known to the subject which is not an obvious and natural evaluation of that material …

174    This, of course, is a rephrasing of the well-known passages from SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152, and in turn from Commissioner of ACT Revenue v Alphaone Pty Ltd [1994] FCA 293; 49 FCR 576. I set out the relevant passages from those authorities in EXT20 v Minister for Home Affairs [2022] FCAFC 72 at [61]. The Agency also relied on the Full Court decision in WRMF at [66] and [70]-[72]. In those passages, the Full Court observed that where a decision-maker fails to alert a party to an issue which it considers to be important and the issue is beyond those considered by the parties, then this may constitute both a denial of procedural fairness and a failure to perform its statutory task of review.

First alleged denial

175    The Tribunal was correct to approach s 24(1)(a) by focusing on the impairments it considered had been established on the review, rather than which medical conditions Ms D had been diagnosed with. See my reasons at [101]-[118] above. All parties before the Tribunal, and the Tribunal itself, proceeded on the basis of Mulligan and the focus being on the impairments of an applicant for the purpose of s 24(1).

176    As counsel for Ms D submitted, the Agency referred to and relied upon its Operational Guidelines, which relevantly provided:

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.)

177    This is the extract that appears at [30] of the Tribunal’s reasons.

178    As I have explained above, the Agency does not submit that the Tribunal erroneously identified the impairments it listed in [31] of its reasons. The Agency also accepts that what the Tribunal said at [31(c)] was correct:

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.)

179    All of this was consistent with the competing positions on the review as put to the Tribunal.

180    The Agency’s complaint under this ground boils down to a complaint about the three classifications used by the Tribunal in its headings in its reasons above [34], [39] and [43], namely:

Whether Ms [D] has impairments to her musculoskeletal and movement-related functions

…

Whether Ms [D] has an impairment to her digestive function

…

Whether Ms [D] has an impairment to her cardiovascular function

(Original emphasis.)

181    In my opinion, the Tribunal is not identifying any “new” impairments, contrary to the Agency’s submissions. It is using different language to classify and arrange the medical and other evidence before it. The Agency only complains (see [15] of its written submissions) about the first classification, as this was the one which went against the Agency on the Tribunal’s review. However, as it concedes at [13], before the Tribunal the Agency accepted that degenerative conditions in Ms D’s spine, shoulders and knees were impairments under s 24(1)(a). In its reasons at [38], this is what the Tribunal found.

182    Consistently with the principles expressed by the Full Court in WRMF at [68]-[69], I do not consider the Tribunal’s sensible and straightforward classification into three groups of functions was anything other than an “obvious and natural evaluation” of the material before it. The Tribunal was not obliged to arrange its reasoning on the review in the way either or both of the parties had arranged the reasoning in their submissions. In substance, the Tribunal did not go beyond considering the matters raised by the parties.

183    As for the Agency’s submissions that it was denied procedural fairness because the Tribunal did not engage, in this part of its reasoning, with r 5.7, I reject those submissions. As Ms D submitted, this a rule which goes to s 24(1)(b), and indeed in its closing written submissions before the Tribunal, that is how the Agency employed it. In relation to Ms D’s musculoskeletal and movement-related functions, the Agency repeated the same argument about the impairments not being permanent because if Ms D lost weight, they were likely to ameliorate. The Tribunal addressed this argument. Its reasons at [50] demonstrate it turned its mind to rr 5.4-5.7. The fact it did not return to r 5.7 specifically is unsurprising given the similarity between r 5.7 and r 5.4, and the substance of the Agency’s contentions under this rule being the same as those under r 5.4 – whether Ms D could lose weight by more active weight loss activities and/or bariatric surgery.

184    I should add that the Agency’s submission at [15] that each category was treated as one “impairment” by the Tribunal is incorrect. All the Tribunal did was group the impairments by reference, as it said, to the nature of the loss of functions. As it was entitled to, at [34]-[35], it relied on both Ms D’s evidence and that of Ms Ferguson.

185    This is a ground which reveals the overly-technical approach the Agency sought to adopt in the Tribunal. This ground should be rejected.

Second alleged denial

186    I have rejected the Agency’s ground of appeal about the proper construction of r 5.4. As the Agency correctly submitted, one consequence of this rejection might be to strengthen its contentions concerning a denial of procedural fairness by the Tribunal in the approach taken.

187    I agree.

188    Having not disclosed its approach until the publication of its reasons, the Tribunal denied the Agency procedural fairness, contrary to the principles outlined in WRMF at [61]-[70], in particular at [66]. The Tribunal should have alerted the Agency to its view, even if a preliminary view, about the meaning (or possible meaning) of the terms in r 5.4 and invited the Agency to deal with it. That could and should have occurred even if the Tribunal did not form a view about this matter until after the review hearing. In those circumstances, it should have notified the parties and asked for submissions on the matter, including whether any further evidence might be required, including further cross-examination. It was clear from the way the Agency conducted the review that it opposed every substantive argument that might have resulted in Ms D being successful on the review. It was obvious that, if the Agency had understood the Tribunal might construe “available” as meaning accessible and including affordable, the Agency would have sought to cross-examine Ms D about her financial situation – what she could afford, what she could not, and why. In my opinion, it is also likely more detailed evidence might have been led on behalf of Ms D about her financial situation.

189    I accept the Agency was denied a reasonable opportunity to present a case I am satisfied it would have presented, about whether known weight loss treatments were in fact not available to Ms D because she could not afford them. That is not to accept that the examples counsel for the Agency gave in oral submissions on the appeal would all have been permissible questions. Some of those examples suggested the cross-examination might involve stereotyping and unwarranted assumptions, and might have been offensive to Ms D. It would have been the Tribunal’s duty to control the cross-examination to ensure it remained within the bounds of appropriateness and relevance to the meaning of “known, available and appropriate” treatments in r 5.4. Nevertheless, it is clear the Agency was denied the opportunity to explore these factual matters.

190    This ground should be upheld. The Tribunal’s reasoning on r 5.4 was a material aspect of its conclusions in favour of Ms D. I am satisfied the Agency was denied the possibility of a different outcome on the review: see Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141 at 145, 147; Minister for Immigration and Border Protection v WZARH [2015] HCA 40; 256 CLR 326 at [60], Gageler and Gordon JJ.

Appropriate relief

191    The appropriate relief in this application is the relief usually granted in respect of s 44 appeals. The Tribunal’s decision should be set aside and the matter remitted to the Tribunal for determination according to law.

192    The Agency accepted in oral submissions that its alternative relief in the amended notice of appeal did not involve an invitation to the Court to make a particular finding or findings of fact, for the purposes of s 44(7) of the AAT Act. Rather, the Agency invited the Court to make orders refusing Ms D’s access request.

193    The seeking of that kind of relief is inappropriate. It mixes the Court’s supervisory function with the Tribunal’s merits review function, and crosses the boundaries identified by Brennan J in Attorney-General (NSW) v Quin [1990] HCA 21; 170 CLR 1 at 35-36. The basic confusion in the Agency’s contention is apparent from this passage in its written submissions at [32]:

Reference to Scheme sustainability is mandated by ss 4(3)(b) and 5(17)(b), and applies also to the Tribunal (and indeed this Court) when ‘standing in the shoes’ of the decision-maker.

194    The Court does not ‘stand in the shoes’ of the decision-maker when exercising its supervisory functions: see Haritos v Federal Commissioner of Taxation [2015] FCAFC 92; 233 FCR 315 at [85], [194].

195    Especially where the error identified is one of a denial procedural fairness (noting the test in Stead is the possibility of a different outcome), the matter should be remitted. The merits review must be conducted again. The task of making the correct or preferable decision is one committed under our constitutional system to the Tribunal, and not to this Court exercising the judicial power of the Commonwealth.

Conclusion

196    There will be orders setting aside the Tribunal’s decision and remitting the matter to the Tribunal for determination according to law.

197    At a case management in the proceeding on 22 March 2022, counsel for the Agency indicated, appropriately in my respectful opinion, that the Agency would not seek an order for costs against Ms D in respect of the proceeding. This position was also recorded as a note in the orders made the following day, on 23 March 2022. The questions of law, and grounds, raised by the Agency obviously involved some matters of more general principle and practice about the interpretation and operation of the NDIS Act, which went beyond the circumstances of Ms D’s case. There should be no orders as to the costs of the appeal.

198    Finally, the Court expresses its gratitude to counsel and solicitors for Ms D for accepting a pro bono referral to act on her behalf on the appeal. The Court was assisted by their submissions, and the interests of justice have been served in Ms D having capable legal representation on the appeal.

Associate:

Dated:    29 August 2022