Abdelmalek and National Disability Insurance Agency

Abdelmalek and National Disability Insurance Agency [2023] AATA 3072 (20 September 2023)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2022/4326
Re:Fauzia Abdelmalek
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Senior Member D Connolly
Date:20 September 2023
Place:Sydney

The Tribunal affirms the decision under review pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).
…………………[SGD]……………………
Senior Member D Connolly

CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – access criteria – impairments resulting from rheumatoid arthritis, sensorineural hearing loss, Meniere’s disease and osteoporosis – whether impairments resulting from Meniere’s disease are permanent when the Applicant’s vertigo symptoms are intermittent and managed by medication – whether hearing loss is an impairment resulting from Meniere’s disease - whether there is substantially reduced functional capacity – decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) Legislation
CASES
Madelaine and National Disability Insurance Agency [2020] AATA 4025
Military Rehabilitation and Compensation Commission v Katterns [2017] FCA 641
Mulligan v National Disability Insurance Agency [2015] FCA 544
National Disability Insurance Agency v Foster [2023] FCAFC 11
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179;
(1979) 2 ALD 634
SECONDARY MATERIALS
National Disability Insurance Agency, Our Guidelines – Becoming a participant – Applying to the NDIS, (Web Page) <
REASONS FOR DECISION
Senior Member D Connolly
20 September 2023
BACKGROUND TO REVIEW

The Applicant, aged 61, seeks review of a decision made by the National Disability Insurance Agency (‘the Respondent’), which confirmed an earlier decision to refuse her request for access to the National Disability Insurance Scheme (‘the NDIS’) under provisions of the National Disability Insurance Scheme Act 2013 (Cth) (‘the Act’).
The Applicant lives in a Sydney suburb with her husband in their own single level home. They have three adult children and six grandchildren who all live in Sydney. The Applicant’s family relationships are strong and supportive.[1] She has been diagnosed with rheumatoid arthritis, Meniere’s disease, hearing loss and osteoporosis, and takes medication for some of her conditions.[2]
[1] This biographical information comes from the report dated 7 December 2022 prepared by Mr Gary Stretton, occupational therapist, at the request of the Respondent (Mr Stretton’s Report). It is generally consistent with the information recorded in other medical reports, referred to in my consideration of the evidence.
[2] T-document (‘T’)5, Access Request Form, Mohsen Gerges (General Practitioner), p 32.
In November 2021, the Applicant made a request to become a participant in the NDIS, claiming her impairments, caused by rheumatoid arthritis, Meniere’s disease, and osteoporosis, were impacting her functional capacity in the mobility and self-care domains.[3]
[3] Ibid.
With respect to her hearing loss the Respondent concluded that the Applicant has unilateral sensorineural hearing loss ‘(USHL’). An audiological report dated 4 June 2015 records mild sensorineural hearing loss in the Applicant’s right ear and moderately severe sensorineural hearing loss in her left ear.[4] Since making her application, in May 2023, the Applicant has had her hearing reassessed and she now has moderately severe to profound sensorineural hearing loss in her left ear, and mild to moderate sensorineural hearing loss in her right ear, for which she has been fitted devices binaurally.[5]
[4] EB4, Audiology Report by Lorainne Trinh (Audiologist), p 221.
[5] EB9, Audiology Report by Malak Sleiman (Clinical Audiologist). pp 226-227/
On 23 December 2021, a delegate of the Chief Executive Officer (‘CEO’) of the Respondent determined the Applicant did not meet the access criteria set out in sections 24 and 25 of the Act. An internal reviewer confirmed the decision on 29 April 2022. The internal reviewer found the impairments resulting from rheumatoid arthritis and USHL were permanent but was not satisfied the impairments resulting from Meniere’s disease and osteoporosis could be considered permanent. In considering whether the Applicant had a substantially reduced functional capacity, the internal reviewer only considered the impairments resulting from rheumatoid arthritis and USHL and found the requirement was not met.
On 27 May 2022 the Applicant applied to the Administrative Appeals Tribunal (‘the Tribunal’) for review of the internal review decision.
The parties consented to the matter being determined without a hearing. This issue was discussed at a directions hearing on 29 August 2023 when I confirmed their consent. Having considered all the material before me, I am satisfied that the issues for determination can be adequately determined in the absence of the parties. On 31 August 2023 I directed that the matter be determined without a hearing, pursuant to section 34J of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’). In determining the matter, I have considered all the material filed by the parties, including the documents filed by the Respondent pursuant to subsection 37(1) of the AAT Act (‘the T-documents’).
LEGISLATION
The access criteria
To become a participant in the NDIS, the Applicant must satisfy the access criteria set out in subsection 21(1) of the Act, which provides as follows:
(1)A person meets the access criteria if:
(a)    the CEO is satisfied that the person meets the age requirements (see section 22); and
(b)    the CEO is satisfied that, at the time of considering the request, the person meets the residence requirements (see section 23); and
(c)    the CEO is satisfied that, at the time of considering the request:
(i)the person meets the disability requirements (see section 24); or
(ii)the person meets the early intervention requirements (see section 25).
There is no dispute the Applicant satisfies the age and the residence requirements. I must decide whether the Applicant satisfies the access criteria in section 24 (the disability requirements) or section 25 (the early intervention requirements).
Section 24 of the Act states:
(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 the person has one or more impairments to which a psychosocial disability is attributable; 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 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.
If the Applicant does not meet the disability requirements, I will consider whether she meets the early intervention requirements set out in section 25 of the Act which relevantly states as follows:
1A person meets the early intervention requirementsif:
(a)the person:
(i)     has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent; or
(ii)    has one or more identified impairments that are attributable to a psychiatric condition and are, or are likely to be, permanent; or
(iii)   is a child who has developmentaldelay; and
(b)the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person's future needs for supports in relation to disability; and
(c)the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by:
(i)     mitigating or alleviating the impact of the person's impairment upon the functional capacity of the person to undertake communication, social interaction, learning, mobility, self-care or self-management; or
(ii)    preventing the deterioration of such functional capacity; or
(iii)   improving such functional capacity; or
(iv)   strengthening the sustainability of informal supports available to the person, including through building the capacity of the person's carer.
Note:In certain circumstances, a person with a degenerative condition could meet the early intervention requirements and therefore become a participant.
The Minister may, under subsection 209(1) of the Act, make rules prescribing matters. The rules relevant to this matter are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (‘the Access Rules’), which form part of the legislation.
The NDIS Operational Guidelines also assist in making decisions in accordance with the Act. Operational Guidelines represent government policy and should be applied by the Tribunal unless there is good reason not to do so.[6] The relevant Operational Guideline is Our Guidelines – Becoming a participant – Applying to the NDIS (Operational Guideline).[7]
[6] Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[1979] AATA 179; (1979) 2 ALD 634; (1979) 2 ALD 60.
[7] National Disability Insurance Agency, Our Guidelines – Becoming a participant – Applying to the NDIS, (1 August 2022) (Web Page) <>
I note in Mulligan[8] Mortimer J held that the legislation pertaining to the access criteria requires “a relatively high degree of precision by decision-makers… in assessing what a person can or cannot do. The assessment to be undertaken is avowedly functional and multifaceted.”[9] Mortimer J also explained that the legislation requires that it is based on a functional, practical assessment of what a person can and cannot do.[10]
[8] Mulligan v National Disability Insurance Agency [2015] FCA 544 (‘Mulligan’).
[9] Ibid, [55].
[10] Ibid, [56].
ISSUES
I will first consider whether I am satisfied the Applicant has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments, as required by paragraph 24(1)(a) of the Act. The Applicant’s NDIS Application Form and statement of lived experience indicate she seeks to rely on the pain and limitations associated with rheumatoid arthritis, and the impact of Meniere’s disease to meet the access criteria.[11]
[11] EB3, Applicant’s Statement of Lived Experience, pp 118-220; T5, Access Request Form, Mohsen Gerges (General Practitioner), p 32.
If I find the Applicant meets paragraph 24(1)(a) of the Act, I will consider whether any of her impairments are permanent such that paragraph 24(1)(b) of the Act is met. The Respondent has accepted that the Applicant’s impairments resulting from rheumatoid arthritis and USHL are permanent. However, it contends that the impairments resulting from Meniere’s disease and osteoporosis are not permanent.[12]
[12] Respondent’s Statement of Facts, Issues and Contentions, dated 2 June 2023 (‘RSFIC’), paras 27-33.
If I find paragraphs 24(1)(a) and (b) are met, I will also consider whether the Applicant’s impairments result in substantially reduced functional capacity to undertake any of the following activities: communication, social interaction, learning, mobility, self-care or self-management. The Respondent contends the Applicant has not demonstrated a substantially reduced functional capacity in any of the specified domains in subparagraph 24(1)(c)(i) and therefore does not meet paragraph 24(1)(c) of the Act.[13]
[13] RSFIC, paras 34-66.
If I am not satisfied the Applicant meets the disability requirements, I will consider whether she meets the early intervention requirements. The Respondent contends that the Applicant does not satisfy the early intervention requirements because the evidence does not demonstrate that early intervention supports are likely to benefit her by reducing her future needs for support, and there is no indication in the evidence as to what benefits the Applicant may experience from receiving such supports.[14]
[14] RSFIC, paras 71-72.
CONSIDERATION OF CLAIMS AND EVIDENCE
Does the Applicant have a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments?
The Respondent has accepted that the Applicant satisfies this requirement in relation to impairments arising from rheumatoid arthritis, USHL, Meniere’s disease and osteoporosis.
I have considered whether the Applicant has a disability that is attributable to an impairment or impairments. The impairment or impairments attributable to disability need to be identified with some precision, because the threshold questions on permanency (paragraph 24(1)(b)) and substantially reduced functional capacity (paragraph 24(1)(c)) operate not on the concept of conditions, but on the concept of “impairment”,[15] which is generally understood as involving the loss of, or damage to, a physical, sensory or mental function.[16] Pain is not an “impairment” in itself,[17] but pain might be such that it limits particular bodily functions and therefore constitutes an “impairment”.[18]
[15] Mulligan (n 8) [51].
[16] Ibid.
[17] Military Rehabilitation and Compensation Commission v Katterns [2017] FCA 641 at [47].
[18] Ibid at [48].
The Applicant’s general practitioner, Dr Gerges, has recorded that the Applicant has rheumatoid arthritis, first diagnosed in 1995, which causes a degenerative impairment. It impacts on her mobility and causes pain with self-care activities. In his view she needs assistance with home cleaning and maintenance.[19]
[19] T5, Access Request Form, Mohsen Gerges (General Practitioner), p 32.
In her statement of lived experience the Applicant has indicated that she cannot walk long distances. She has not driven since 2000 and relies on others to drive her around. She struggles to attend to her self-care and requires help sometimes.[20]
[20] EB3, Applicant’s Statement of Lived Experience, pp 118-220.
The Applicant reported to the independent occupational therapist, Mr Stretton, in October 2022, that she has difficulties with various daily activities due to the symptoms caused by her medical conditions. His report includes photographs of the Applicant’s hands which appear to have significant joint deformity, associated with rheumatoid arthritis. He observed and accepted that the Applicant has some difficulty with activities. He also reported that she was cooperative and candid, attempted all tasks requested of her without hesitation and appeared genuine in her responses to questions asked.[21]
[21] EB10, Report by Gary Stretton, pp 243-271.
On the basis of this evidence, I am satisfied the Applicant has an impairment which causes some disability. I am therefore satisfied she has a disability that is attributable to a physical impairment.
Clinical Audiologist, Malak Sleiman, has reported that the Applicant has reported difficulty hearing in all day to day listening situations and indicated this is associated with her Meniere’s disease which affected her hearing in her left ear.[22] On the basis of this evidence, and other reports discussed in more detail below, I am also satisfied the Applicant has a disability that is attributable to a sensory impairment.
[22] EB9, Audiology Report by Malak Sleiman (Clinical Audiologist), p 226.
The Applicant therefore satisfies paragraph 24(1)(a) of the Act.
Is the impairment permanent, or likely to be, permanent?
The Respondent accepts that the physical impairment which results from the Applicant's rheumatoid arthritis and the sensory impairment from the Applicant's USHL are permanent for the purpose of paragraph 24(1)(b). However, the Respondent contends that the impairments resulting from Meniere’s disease and osteoporosis are not permanent for the purpose of paragraph 24(1)(b), for the following reasons.
With respect to Meniere’s disease, the Respondent contends that the Applicant has not put forward sufficient evidence and information that she has exhausted all known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairments resulting from her Meniere’s disease.
With respect to osteoporosis the Respondent notes there is no specialist evidence to determine the extent to which the Applicant has engaged in, and exhausted, all known, available and appropriate evidence-based clinical, medical or other treatments. The Respondent contends the Applicant has not put forward sufficient evidence and information that the condition is permanent for the purposes of paragraph 24(1)(b).
Having regard to medical evidence from Dr Geraldine Hassett, rheumatologist, I am satisfied the Applicant has a permanent physical impairment resulting from rheumatoid arthritis, for the purposes of paragraph 24(1)(b) of the Act.[23]
[23] EB8, Report by Dr Geraldine Hassett (Rheumatologist), p 225.
With regard to Meniere’s disease I note the Applicant has had the condition since 2013. She had a period of remission from February 2015 to December 2015 but suffered a recurrence in February 2016. Professor Gibson, the Applicant’s ENT specialist, recorded that, as a consequence, she had reduced balance and the hearing in her left ear was poor. He set out the recommended treatment.[24] Lorianne Trinh, audiologist, reported in June 2015 that the Applicant was diagnosed with Meniere’s disease and that her ENT specialist had recommended hearing aids.[25]
[24] EB6, Report by Professor William P. Gibson (Professor of Otolaryngology). p 223.
[25] EB4, Audiology Report by Lorianne Trinh (Audiologist), p 221.
In January 2017 Associate Professor Miriam Welgampola, neurologist, reported that the Applicant’s symptoms had declined, that she was no longer suffering vertigo and that she had not been taking the relevant medications because she was relatively asymptomatic.[26] On examination she had “no spontaneous, gaze-evoked, head-shaking or positional nystagmus”.[27] She advised no further changes to the management of the Applicant’s Meniere’s disease, having recommended that she have available to her certain medications (cinnarizine, betahistine, Moduretic, Zofran wafers and Stemetil), and that if the Applicant had further episodes of vertigo she should double her dose of betahistine, and she should take cinnarizine and a Zofran wafer for symptomatic treatment.
[26] EB7, Letter from Associate Professor Miriam Welgampola (Neurologist). p 224.
[27] Nystagmus is “an involuntary rhythmic side-to-side, up and down or circular motion of the eyes that occurs with a variety of conditions.”
Apart from Dr Gerges’ report, in the Access Request Form in November 2021, that the Applicant has been diagnosed with Meniere’s disease, and his confirmation in December 2022 that the Applicant’s Meniere’s disease is likely to be lifelong, there is no further medical evidence before me specifically addressing this condition. I note however that it is reported in Mr Stretton’s Report that the Applicant told him she experiences episodes of vertigo and impaired balance due to Meniere’s disease, but the condition is currently well controlled by medication. Mr Stretton has listed the medications she takes to manage this disease. I note Mr Stretton found the Applicant’s self-reporting to be reliable, so I am satisfied this is the case.

Having regard to the evidence before me, I am satisfied the vertigo and impaired balance associated with the Applicant’s Meniere’s disease is fully treated and managed with medication. There is nothing before me to indicate there is any other treatment that she should be having. On her own report to Mr Stretton, the condition is well controlled by medication. As indicated by Dr Gerges, Meniere’s disease is a lifelong condition, however, as indicated by her neurologist, the Applicant can have periods of being asymptomatic. This means the impaired balance and vertigo associated with the condition are intermittent. However, I am satisfied the Applicant’s Meniere’s disease is permanent.
Having regard to the medical evidence before me, referred to above, I am satisfied the Applicant’s hearing impairment is a consequence of her Meniere’s disease. The Respondent has formed the view the Applicant has USHL, however as noted above, since making her review application, the Applicant has had her hearing reassessed by a clinical audiologist, and she now has moderately severe to profound sensorineural hearing loss in her left ear, and mild to moderate sensorineural hearing loss in her right ear, for which she has been fitted devices binaurally.[28] There is nothing to suggest the Applicant’s hearing impairment is not permanent. Having regard to the most recent audiological report dated 12 May 2023, I am satisfied the Applicant has binaural hearing loss.
[28] EB9, Audiology Report by Malak Sleiman (Clinical Audiologist), p 226.
Overall, I am satisfied the Applicant’s impairments resulting from her Meniere’s disease are intermittent impaired balance and vertigo, and moderately severe to profound sensorineural hearing loss in her left ear. I am also satisfied the Applicant has right ear mild to moderate sensorineural hearing loss, although the evidence does not clearly state this is the result of Meniere’s disease. I am satisfied however that the Applicant’s hearing impairment is permanent.
The Applicant’s evidence regarding osteoporosis is as follows. In the NDIS Application Form, Dr Gerges reported that the Applicant had been diagnosed with osteoporosis. Dr Hassett reported in November 2021 that the Applicant had a bone mineral density test in March 2021 and has osteoporosis for which she has been prescribed Vitamin D. She has a fracture history. At the time the Applicant indicated to Dr Hassett that she preferred to delay treatment for osteoporosis.[29] There is no other evidence before the Tribunal regarding any impairment resulting from this condition. Having considered the evidence before me regarding osteoporosis, I am not satisfied there is sufficient evidence for me to find the Applicant has any impairment resulting from this condition.
[29] T4, Letter, Geraldine Hassett (Rheumatologist), p 29.
Considered overall, I am satisfied the Applicant’s physical impairments resulting from her rheumatoid arthritis are permanent. I am also satisfied her sensory impairment associated with hearing loss is permanent. Accordingly, I am satisfied the Applicant meets paragraph 24(1)(b) of the Act.
Does the Applicant’s impairment result in substantially reduced functional capacity to undertake one or more of the specified activities?
Rule 5.8 of the Access Rules sets out the matters the Tribunal must consider when determining whether the Applicant’s impairment results in substantially reduced functional capacity and states as follows:
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.
The Operational Guideline states:
Your impairment substantially reduces your functional capacity if you usually need disability-specific supports to participate in or complete the (specified) tasks.
These disability-specific supports include:
·a high level of support from other people, such as physical assistance, guidance, supervision or prompting.
·assistive technology, equipment or home modifications that are prescribed by your doctor, allied health professional or other medical professional.
In the NDIS application form, Dr Gerges claimed the Applicant needs assistance to undertake mobility, self-care and self-management tasks.[30] I have, however, considered the evidence regarding all six domains set out in paragraph 24(1)(c) of the Act.
[30] T5, Access Request Form, Mohsen Gerges (General Practitioner), p 32.
Mobility
The Operational Guideline with respect to mobility currently states as follows:
Mobility, or moving around – how easily you move around your home and community, and how you get in and out of bed or a chair. We consider how you get out and about and use your arms or legs.
The Respondent contends that the evidence demonstrates the Applicant does not reach the threshold required to establish a substantially reduced functional capacity in the mobility activity.
Dr Gerges reported, with respect to mobility, that the Applicant struggles to dress herself, to clean and cook and that there are days when she is bedridden and cannot move. In his view she requires assistance with home cleaning and maintenance. He also noted she “needs public transport/motor vehicle”.
In her statement of lived experience, the Applicant stated she cannot walk long distances, but she can move around the house, get in and out of bed (but most days with a struggle) and get in and out of a chair. She confirmed she does not rely on others, or assistive technology, to mobilise.
I have considered Mr Stretton’s Report regarding this domain. The Applicant self-reported to Mr Stretton severe difficulty in getting around.[31] However his functional assessment/clinical observation of her mobility was that she is able to mobilise inside and outside her home safely and independently without the use of a walking aid and she is able to transfer in and out of a lounge chair, in and out of bed and on and off the toilet, all safely and independently. She is also able to access all areas inside her home without restriction. The Applicant confirmed that she mobilises independently without the use of a walking aid and that, while she experiences some episodes of vertigo and impaired balance, this is well controlled by medication. She reported that she still holds a driver’s licence, in case of emergencies, but has not driven for a long time. However, she is able to travel as a passenger in a vehicle and use taxis independently.
[31] EB10, Report by Gary Stretton, pp 243-271.
Mr Stretton also noted the Applicant is able to lift 2kg unilaterally and 4kg bilaterally. She reported to Mr Stretton that she is able to walk for 30 minutes in a supermarket. He observed the Applicant walking up and down her two front steps independently and concluded she would be able to negotiate stairs outside her home using a handrail. He also formed the view she would only be a falls risk during episodes of vertigo, which the Applicant reported was well controlled by medication. Mr Stretton noted that he did not observe any breathlessness or fatigue during the assessment.
I am satisfied the Applicant can move around her home and transfer, from a bed, a chair and the toilet, independently. I am satisfied she can walk up to 30 minutes on a flat surface unaided, and that she can mobilise on her own steps independently and negotiate stairs away from her home using a handrail. I am satisfied that any falls risk from vertigo and impaired balance is minimised by effective medication. While I accept the Applicant does not use public transport because she considers it to be not close enough,[32] I note the Applicant can travel in a vehicle and use taxis independently. While I accept the Applicant may struggle to cook, clean and maintain her home, I am not satisfied, on the evidence before me, she is unable to perform any household tasks. I note Mr Stretton has reported that the Applicant is able to lift and carry up to 4kg, and stand and walk for up to 30 minutes. I am of the view this indicates she has sufficient mobility to perform some simple household tasks.
[32] EB3, Applicant’s Statement of Lived Experience, pp 118-220.
Having considered the evidence overall, while I accept the Applicant’s mobility may be somewhat restricted by impairment resulting from rheumatoid arthritis, and to a lesser degree from Meniere’s disease, I am not satisfied the Applicant’s impairments result in a substantially reduced functional capacity in relation to mobility.
Self-care
The Operational Guideline with respect to self-care currently states as follows:
Self-care – personal care, hygiene, grooming, eating and drinking, and health. We consider how you get dressed, shower or bathe, eat or go to the toilet.
The Respondent has referred to the decision of Madelaine where the Tribunal (differently constituted) found that a substantially reduced functional capacity to care for oneself “imports the idea that there are significant gaps in one’s capacity to maintain personal health, safety and well-being”.[33]
[33] Madelaine and National Disability Insurance Agency [2020] AATA 4025 at [121]
I also noted that in Foster, the Full Federal Court determined that the Tribunal is to reach a conclusion as to whether an applicant has a substantially reduced capacity to undertake self-care “by assessing his [or her] functional capacity with respect to the bundle of tasks and actions forming the concept of self-care.” [34] I conclude from this that the activity to be assessed is "self-care" as a whole, and not a specific task or action within self-care.
[34] National Disability Insurance Agency v Foster [2023] FCAFC 11 (‘Foster’).
The Respondent contends the evidence establishes that the Applicant does not reach the threshold required to demonstrate that her functional capacity for self-care is substantially reduced to the requisite degree.
I note Dr Gerges indicated that the Applicant does not need assistance with self-care,[35] however he also indicated the Applicant requires assistance with home cleaning and maintenance. He reported the Applicant finds it painful to dress herself and shower.[36]
[35] T6, Supporting Evidence Form, Mohsen Gerges (General Practitioner), p 52.
[36]Ibid, p 38.
The Applicant in her statement of lived experience stated that while she can do her own cooking, cleaning, washing and gardening, she does so with “great struggle” and her husband assists her if he is not working. She indicated she sometimes requires assistive technology or the help of others to assist with self-care and hygiene but provided no further particulars.
Mr Stretton reported that the Applicant’s home was relatively clean and tidy but did not report that the Applicant was solely responsible for its maintenance. The Applicant indicated to Mr Stretton that she completes self-care tasks with severe difficulty. Mr Stretton noted that during his functional assessment the Applicant:
was observed to possess the physical capacity and range of motion to attend to all of her own personal care tasks independently… (She) was observed to have significant joint deformity in both hands due to rheumatoid arthritis and this affects her ability to grasp and release objects. She was unable to exert sufficient pressure to chop food sufficiently. She did not possess the hand dexterity and range of motion required to self-administer medication that requires injection.
Mr Stretton reported on the Applicant’s functional capacity with respect to food preparation and housework under the domain Self-management, however I am of the view the physical activity associated with these tasks relate to the domain of self-care.
Mr Stretton formed the view that the Applicant’s limited capacity to lift and carry (up to 4kg), her standing and bending limitations impact functional tasks such as personal care and house cleaning. She requires assistance with chopping food and opening jars for meal preparation and to perform heavy cleaning such as bathrooms and washing floors. He reported the Applicant has the physical abilities, such as strength, range of motion and motor control to perform aspects of meal preparation but is unable to open jars and chop vegetables. He noted she has sufficient capacity to perform light household duties such as dusting and tidying at waist level and above. However, she was unable to bend sufficiently to access low cupboards and could not maintain a stooped posture. He formed the view modified kitchen utensils, appliances and assistive technology would enable her to complete these tasks with greater independence. He formed the view she cannot manage the lawn or garden care.
The Applicant reported to Mr Stretton that she cooks meals but receives assistance from her husband to open jars and chop some foods. Her husband washes and hangs out the clothes as she cannot lift and carry a basket of wet washing or grasp and release pegs. She attends the supermarket with her husband and can walk around and select some items within her reach. Her husband handles the shopping bags, but they share the task of putting the items away in cupboards. She reported that she is no longer able to dust to her previous standard due to her hand function, but she can use an upright vacuum cleaner.
The Applicant reported to Mr Stretton that she is able to shower and dress herself independently, manages her own toileting and perineal hygiene without assistance, and could recall and explain her medication regime. However, she needs assistance from her husband to administer a required injection.
The Applicant also reported to Mr Stretton that due to significant dental issues and infection she had only lower dentures and she was undergoing dental treatment. This has affected her capacity to chew properly so she requires a soft diet. While I accept this may affect the Applicant’s capacity to eat, I am satisfied it is a temporary impairment that will be addressed by dental treatment.
Having considered the evidence I accept the Applicant requires assistance to chop food, open jars, lift heavy items, undertake heavy housework, and administer a required injection. However I am also satisfied the Applicant is able to attend to her personal care tasks independently, toilet, shower and dress herself, albeit with some pain, cook some meals, do some housework, and remember and administer her medication regime (except for the injection).
I am satisfied that the Applicant, in the main, is either independent or only requires minimal assistance in self-care. She attends to her own personal care, hygiene, toileting, and dressing, albeit with some pain, and regarding the management of her medications requires assistance only with the injection. She requires assistance for heavier household duties and chopping food but the evidence indicates she will be able to perform some household tasks independently, and her function may improve if she uses some modified kitchen utensils and appliances such as those suggested by Mr Stretton. I find her current issues with eating are temporary and will be addressed by dental treatment. I note the Applicant has not indicated she is unable to feed herself. I am satisfied therefore that, once her dental issues are addressed, she will be independent in eating and drinking.
Taking into account the Court’s guidance in Foster, considering self-care as a whole, while I accept there are some limitations on the Applicant’s capacity, I am not satisfied her impairments result in a substantially reduced functional capacity in relation to the self-care activities listed in the Operational Guideline; personal care, hygiene, grooming, eating and drinking, and health. I am not satisfied the Applicant’s impairments result in a substantially reduced functional capacity to undertake self-care.
Self-management
The Operational Guideline with respect to self-management relevantly states as follows:
Self-management – how you organise your life. We consider how you plan, make decisions, and look after yourself. This might include day-to-day tasks at home, how you solve problems, or manage your money. We consider your mental or cognitive ability to manage your life, not your physical ability to do these tasks.
In relation to this domain, Dr Gerges submitted that the Applicant requires assistance around the home, with cleaning and home maintenance. While I am of the view these tasks relate to self-care rather than self-management and have dealt with the submission in my discussion on that domain, I have taken into account his view.
In her statement of lived experience, the Applicant stated that she can plan her day, make and manage her own appointments, manage her money and her bank account, manage most of her medications and make decisions affecting her life. She indicated her husband assists her with self-management activities when he is not working. Mr Stretton reported that her husband works part-time at night, as a courier.
Mr Stretton reported that he observed the Applicant to have the cognitive capacity to manage her own affairs, solve problems, plan and make decisions, for herself and her family, and behave responsibly with safety in mind. She has the capacity to make appointments independently. In his view she has adequate literacy and numeracy skills for everyday function.
The Applicant reported the following to Mr Stretton. She is able to understand and manage money but her husband pays the bills. She is able to make financial transactions at a checkout, and make her own appointments, but she attends with her husband in case she needs physical assistance or needs help understanding, as English is her second language.
Considered overall, I accept the Applicant gets some assistance from her husband, who pays their bills, however I am not satisfied this is because of any impairment impacting the Applicant’s capacity for self-management. I note her evidence that her husband attends appointments with her in case she requires physical assistance or assistance with English. Having considered the Applicant’s statement of lived experience and Mr Stretton’s Report, I am satisfied the Applicant is independent, or has the capacity to be independent, in relation to the self-management tasks set out in the Operational Guideline. I am not satisfied the Applicant’s impairments result in substantially reduced functional capacity to undertake self-management tasks.
Communication
The Operational Guideline with respect to communication currently states as follows:
Communicating – how you speak, write, or use sign language and gestures, to express yourself compared to other people your age. We also look at how well you understand people, and how others understand you.
Dr Gerges did not indicate that the Applicant’s impairments result in reduced functional capacity in communicating. However, I note the Applicant has a hearing impairment which in my view is relevant to this domain.
I note the relevant Operational Guideline referred to in the Respondent’s Statement of Facts, Issues and Contentions (‘the SFIC’) states as follows:
What if you have a hearing impairment?
Some hearing impairments may lead to a substantially reduced functional capacity.
We’ll generally decide you have a substantially reduced functional capacity if your hearing loss is at least 65 decibels in your better ear. This is based on a pure tone average of 500Hz, 1000Hz, 2000Hz and 4000Hz.
We may also decide you have a substantially reduced functional capacity if your hearing loss is less than 65 decibels in your better ear. We may decide this if either:
·you also have another permanent impairment, such as a vision or cognitive impairment.
·you give us evidence your speech detection and speech discrimination outcomes are significantly poorer than expected.

In the SFIC, the Respondent cited Foster[37] and acknowledged “the Operational Guidelines do not limit the circumstances in which a person with a hearing impairment may be found to have substantially reduced functional capacity”. The Respondent referred to the guidance in Mulligan[38] when accepting “(a) person with a hearing impairment may have substantially reduced functional capacity as it is based on a multi-faceted assessment of what the person can and cannot do.” However, the Respondent argued the evidence before the Tribunal establishes that the Applicant does not reach the threshold required to demonstrate that the Applicant’s functional capacity for communication is substantially reduced.
[37] Foster (n 36).
[38] Mulligan (n 8), [55].
I note the most recent audiogram dated 12 May 2023 reports that the Applicant’s pure tone average is 40 decibels in her right ear, and 67 decibels in her left ear, so her better ear is less than 65 decibels. The clinical audiologist advised that the Applicant had reported difficulty hearing in day to day listening situations, however he also reported that she had been fitted with devices binaurally to address her hearing loss. It was not reported that the Applicant demonstrated poor speech detection or discrimination.[39]
[39] EB9, Audiology Report by Malak Sleiman (Clinical Audiologist), p 226.
In her statement of lived experience the Applicant stated that she is capable of communicating things to health providers if they speak her language, she is capable of asking for help, but she has issues with hearing for which she uses assistive technology (hearing aids).
With respect to communication, Mr Stretton reported that he observed no issues pertaining to expressive or receptive communication, and that the Applicant reported to him that she had no such issues. She confirmed she wears hearing aids to assist with functional communication and she denied reduced functional capacity for communication. Having read Mr Stretton’s report, I am satisfied the Applicant was able to understand Mr Stretton and he was able to understand her.
The Applicant also reported to Mr Stretton that she has a network of friends with whom she keeps in contact, mainly by telephone, or they visit her at her home. I am satisfied the Applicant communicates effectively with friends over the phone and in person.
I note the Applicant stated in her statement of lived experience that while she uses assistive technology for hearing, she otherwise has no issues with communication, except that she does not 'speak or write proper English', her second language. There is no evidence to suggest she has issues with communication in her first language.
Considered overall, while I accept the Applicant’s sensory impairment impacts on her functional capacity, I am satisfied the Applicant can effectively communicate, that she can understand people and they can understand her. I accept from time to time the Applicant requires interpreting assistance because English is her second language but I am not satisfied this is relevant to my assessment of her functional capacity in the communication domain. Overall, I am not satisfied the Applicant has a substantially reduced functional capacity in communication.
Social interaction
The Operational Guideline with respect to social interaction currently states as follows:
Socialising - how you make and keep friends, or interact with the community, or how a young child plays with other children. We also look at your behaviour, and how you cope with feelings and emotions in social situations.
I note in the Applicant’s Access Request Form, Dr Gerges did not indicate the Applicant requires assistance with social interaction.
The Applicant has not claimed to have substantially reduced functional capacity in social interaction. Mr Stretton reported that no issues pertaining to social interaction were observed. The Applicant reported no issues pertaining to social interaction and told Mr Stretton she has a network of friends with whom she keeps in contact by phone or by visits to her home. She also reported that her family relationships are strong and supportive. She also attends church every six weeks.
There is nothing before me to indicate the Applicant behaves inappropriately when out in the community. The evidence does not indicate that she is unable to cope with her feelings or emotions in social situations. I am satisfied she is able to maintain good relationships with family and friends. Overall, I am not satisfied the Applicant has a substantially reduced functional capacity to interact socially.
Learning
The Operational Guideline with respect to learning currently states as follows:
Learning – how you learn, understand and remember new things, and practise and use new skills.
I note in the Applicant’s Access Request Form, Dr Gerges did not indicate the Applicant requires assistance with learning.
The Applicant has not claimed to have substantially reduced functional capacity in learning. Mr Stretton reported that no issues pertaining to learning were observed and the Applicant agreed with this view. There is no evidence to suggest the Applicant has a learning impairment. Overall, I am not satisfied the Applicant has a substantially reduced functional capacity to undertake learning activities.
Does the Applicant satisfy the disability requirements?
For the reasons given above, I find the Applicant’s impairments do not result in substantially reduced functional capacity to undertake any of the specified activities (mobility, self-care, self-management, communication, social interaction, and/or learning) as required by paragraph 24(1)(c) of the Act. Accordingly, she does not meet the disability requirements.
Does the Applicant satisfy the early intervention requirements?
As I have found that the Applicant does not meet the disability requirements, I must consider whether she meets the early intervention requirements.
The Operational Guideline with respect to early intervention currently states as follows:
We need to decide that getting early intervention supports means you’ll likely need less disability supports in the future.
We need to know that early intervention supports will help you with at least one of the following:
·addressing the impact of your impairment on your ability to move around, communicate, socialise, learn, look after yourself and organise your life.
·preventing your functional capacity from getting worse.
·improving your functional capacity.
·supporting your informal supports, which includes building their skills to help you.
To help us decide if the early intervention will help you in these ways, we look at:
·how your impairment might change over time
·how long you’ve had your impairment
·if there’s been a significant change to your impairment
·if your needs are likely to change soon, such as if you’re finishing school.
I note at the time of application, Dr Gerges indicated that early intervention supports would not be likely to reduce the Applicant’s future support needs. I also note the Applicant has not asserted that she meets the early intervention requirements or provided evidence demonstrating these requirements are met.
The Respondent contends that the evidence does not demonstrate that the Applicant's impairments arising from Meniere’s disease and Osteoporosis are permanent as required by paragraph 25(1)(a). I have formed a different view regarding the impairments arising from Meniere Disease. I am satisfied the Applicant has physical and sensory impairments, resulting from rheumatoid arthritis and Meniere’s disease, that are, or are likely to be, permanent. Therefore paragraph 25(1)(a)(i) of the Act is met.
The Respondent also contends that the current evidence does not demonstrate the provision of early intervention supports is likely to benefit the Applicant by reducing her future needs for support. It further contends that the evidence provided does not indicate the early intervention supports are likely to benefit the Applicant by achieving one or more of the outcomes listed in s 25(1)(c), and there is no indication in the evidence provided as to what benefits may or may not be experienced from receiving the support.
I note Mr Stretton formed the view the Applicant may benefit from modified kitchen utensils and appliances which may enable her to complete tasks with greater independence, and that assistive technology designed for people with joint deformity will prevent or delay her need for in-person supports. However, he also reported that he did not believe the Applicant could increase her functional capacity for self-care with the use of commonly used items, strategies, or modifications to the way that she undertakes tasks, or paces herself, or plans her day/week. Mr Stretton did not provide particulars about any modified utensils/appliances, or assistive technology. Nor did he describe the benefits the Applicant may gain.
I have taken into account Mr Stretton’s view, but I am not satisfied there is sufficient evidence before me to be satisfied that early intervention will prevent the Applicant’s functional capacity from getting worse or improve her functional capacity. Accordingly, I am not satisfied the provision of early intervention supports are likely to benefit the Applicant by reducing her future needs for support. Nor am I satisfied on the evidence before me that the provision of early intervention supports, which have not been particularised, is likely to benefit the Applicant: by mitigating or alleviating the impact of her impairment upon her functional capacity to undertake the activities set out in paragraph 24(1)(c) of the Act; or by preventing the deterioration of such functional capacity; or by improving such functional capacity; or by strengthening the sustainability of informal supports available to her. Accordingly, I am not satisfied paragraphs 25(1)(b) or (c) of the Act are met.
Given these findings, I am not satisfied the Applicant meets the early intervention requirements to enable her to become a participant of the NDIS under section 25 of the Act.
CONCLUSION
I find the Applicant does not meet the disability requirements in section 24 of the Act, nor the early intervention requirements in section 25 of the Act, to access the NDIS. Therefore, the Respondent’s internal review decision is correct.
DECISION
The Tribunal affirms the decision under review pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).

I certify that the preceding 98 (ninety-eight) paragraphs are a true copy of the reasons for the decision herein of SM D Connolly

........................................................................
Associate
Dated:

Date(s) of hearing: Heard on the papers

Advocate for the Applicant: Marina Dawoud

Solicitors for the Respondent: Brooke Volbrecht, HWL Ebsworth Lawyers

[2023] AATA 3072

20 September 2023

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Appeal

Date(s) of hearing:	Heard on the papers
Advocate for the Applicant:	Marina Dawoud
Solicitors for the Respondent:	Brooke Volbrecht, HWL Ebsworth Lawyers