Tribunal grants patient NDIS access based on T1D

Type 1 diabetes

By Geir O'Rourke

12 Sep 2023

A woman with T1D has won a legal case granting her access to the National Disability Insurance Scheme after a tribunal found her illness gave her a permanent disability, despite not impairing her mobility or cognitive capacity.

The patient initially applied for NDIS support in 2021, having been diagnosed with T1D some 25 years previously and with related autonomic neuropathy and gastroparesis diagnoses in 2010.

However, the National Disability Insurance Agency (NDIA) declined her request, determining the then-37-year-old met neither the disability nor the early intervention requirements under the NDIS Act.

In her application for review, the patient stressed that she did not need a wheelchair or other forms of mobility support but argued her disability had a “significant impact on her life”, the Administrative Appeals Tribunal heard.

She said this impact could occur “spasmodically and without warning” but left her unable to work and reliant on her parents for ongoing assistance.

Besides requiring an insulin pump and CGM, she said she had developed gastroparesis, which caused “sometimes explosive” bowel motion and regular incontinence. The only effective control she had found for this was codeine, which her GP had prescribed, she said.

In addition, she said she had developed autonomic neuropathy, which contributed to postural hypotension, as well as diabetic retinopathy and nephropathy, and hyperlipidaemia.

These conditions contributed to “relatively frequent” hyperglycaemia and hypoglycaemia and a recent hospital admission for DKA, the tribunal heard.

She also said she struggled with serious mental health issues, characterised as “diabetes distress” by expert witness and endocrinologist Professor Michael Horowitz.

“Due to my illness, I am often overcome with exhaustion and need to rest,” she wrote in her application.

“My mother does most of the housework, washing, cooking and also manages my financial side as I find dealing with the constant of my illness makes me frustrated dealing with those issues. I am on a pump for my Type 1 diabetes and it can sometimes be frustrating dealing with components that do not work and then trying to contact organisations to replace products.”

“The ordering of products can often be difficult as they are never stocked at chemists, they have to be ordered in, so I have to be punctual with timing of orders as there is a restriction on amounts et cetera. This all plays on me mentally and my parents try and help me cope with these situations…. While my parents are able to assist me and they have not been away since covid happened, I may not always be able to rely on them.”

But while the NDIA accepted her physical impairments were significant, it argued she did not have a “substantially reduced functional capacity” for daily living activities and self-management as required under the Act.

Outside of that, it argued she did not meet the “early intervention” requirements of the Act, given her “impairments were long standing and the opportunity for intervention had passed”.

Her support requests, namely allied health services for psychological support and occupational therapy, were “directed to goals outside her disability” and would be “more appropriately funded or provided… through the healthcare system,” lawyers for the agency added.

But in findings handed down last week, AAT member Ian Thompson dismissed those arguments, ordering the agency to overturn its decision and allow her access to the NDIS (link here).

This was despite noting that the patient did not fulfil the disability access criteria to become an NDIS participant because she was capable of day-to-day communication, mobility and functioning.

Nevertheless, he added: “With regard to self-care, the Tribunal considers that the adverse impacts from reduced functional capacity are the consequences of her impairments, they are specific to her disability and the recommended supports are contextualised around that disability and the impact of her impairments,” he said.

“Despite there being little evidence about it, the Tribunal accepts that it could be the case that Ms Van Hout’s “diabetes stress” and its emotional burden could be addressed through a mental health care plan.”

“The Tribunal does not accept that the allied health supports for early intervention are supports which are more appropriately accessed through the health care system.”

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