Adamczewski and National Disability Insurance Agency

Adamczewski and National Disability Insurance Agency [2023] AATA 1325 (24 May 2023)
Division:NDIS DIVISION
File Number(s): 2021/4998
Re:Anne Adamczewski
APPLICANT

National Disability Insurance AgencyAnd
RESPONDENT

DECISION
Tribunal:Mr S. Webb, Member
Date:24 May 2023
Place:Canberra

The decision under review is set aside and, in substitution, the Tribunal decides Mrs Adamczewski meets the access criteria.
..............[SGD]...............................
Mr S. Webb, Member
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – request for access – disability thresholds – meaning of ‘impairment’ and ‘permanent’ – ‘impairment’ differentiated from causal condition and functional effects – obesity – pain – physical, cognitive and psychiatric impairments – Tribunal not limited to impairments decided by original decision-maker – permanent impairment – substantially reduced functional capacity – requirement for lifelong support – decision set aside and substituted
Legislation
Administrative Appeals Tribunal Act 1975 ss 25, 43
National Disability Insurance Scheme Act 2013, ss 3, 4, 9, 17A, 18, 19, 20, 21, 22, 23, 24, 25, 26, 103, 209
National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Act 2022, Sched 1, Sched 2
National Disability Insurance Scheme (Becoming a Participant) Rules 2016, Parts 5, 7
Cases
Frugtniet v Australian Securities and Investments Commission [2019] HCA 16
Madelaine and NDIA [2020] AATA 4025
Mulligan and National Disability Insurance Agency [2015] AATA 974
Mulligan v National Disability Insurance Agency [2015] FCA 544
National Disability Insurance Agency v Davis [2022] FCA 1002
National Disability Insurance Agency v Foster [2023] FCAFC 11
Secondary Materials
NDIA Operational Guidelines – Access to the NDIS
REASONS FOR DECISION
Mr S. Webb, Member
24 May 2023

Anne Adamczewski requested to become a participant in the National Disability Insurance Scheme (Scheme). The National Disability Insurance Agency (Agency) refused the request by primary determination and on internal review. Mrs Adamczewski applied for review by the Tribunal.
The application was set down for a hearing. Shortly prior to that event, the parties agreed the application could be decided without a hearing, on the papers. As it appeared to me the issues to be determined could be decided in the absence of the parties, and related matters were discussed with the parties in an interlocutory hearing, I decided the listed hearing could be dispensed with under s 34J of the Administrative Appeals Tribunal Act 1975 (AAT Act).
The documents and materials before the Tribunal, on which this decision is made, are identified as follows:
(a)Documents filed under s 37 of the AAT Act (T documents), T1 to T49, amounting to 269 pages;
(b)A bundle of Applicant Tribunal Documents (A Documents), A01 to A15 amounting to 221 pages;
(c)Statement of Evidence – Anne Adamczewski, 23 August 2022 (E1);
(d)Statement of Evidence – Norman Gordon Adamczewski, 23 August 2022 (E2);
(e)An undated document filed by Mrs Adamczewski entitled Statement of Lived Experience (E3);
(f)Briefing letter to Dr Haesung Bak (a consultant rheumatologist), dated 4 July 2022 (E4);[1]
(g)Report by Ms Phi-Van Houston (an occupational therapist), dated 21 July 2022 (E5);
(h)Supplementary report by Dr Hampton (treating general practitioner), dated 18 October 2021 (E6); and
(i)Supplementary report by Dr Rybak (treating psychiatrist), dated 8 February 2023 (E7).
[1] The corresponding report by Dr Bak dated 28 July 2022 is in A Document A12.
In additional each party filed Statement of Facts, Issues and Contentions:
(a)Applicant’s Statement of Facts, Issues and Contentions, dated 23 March 2023; and
(b)Respondents Statement of Facts, Issues and Contentions, dated 17 February 2023.
Facts
The following factual findings are made on examination and assessment of the materials in evidence.
Mrs Adamczewski suffers from a number of ailments, including:
(a)Asthma;[2]
(b)Major Depressive Disorder;[3]
(c)Generalised Anxiety Disorder;[4]
(d)Fibromyalgia;[5]
(e)Sleep apnoea;[6]
(f)Oesophageal disorder;[7]
(g)Osteoporosis;[8]
(h)Anterolisthesis at the L3-4 and L5-S1 levels and buttock and left lower limb radicular pain and left foot paraesthesia following posterior lumbar interbody fusion at the L3-4, L4-5 and L5-S1 levels in 2015;[9] and
(i)Advanced degenerative disc disease from T12 to L2 levels associated with retrolisthesis and thoracic scoliosis.[10]
[2] T5.
[3] T5, T6 and T8.
[4] Ibid.
[5] T5.
[6] T5 and T7.
[7] T5.
[8] Ibid.
[9] T10.
[10] T21.
In a Job Capacity Assessment Report on 3 September 2009, Mrs Adamczewski’s functional impairments resulting from the ailments set out in subparagraphs [8](a)-(g) above were found to be permanent and were assigned a rating of 100 points for the purposes of disability support pension.[11]
[11] T5, folios 40-42
Mrs Adamczewski was granted a disability support pension. Her husband, who is her full-time carer, stated this occurred in 2013.[12]
[12] T23, folio 69.
On 15 October 2020, Mrs Adamczewski lodged an application for access to the NDIS as a participant.[13] She was 60 years old when the request for access to the Scheme was made. Dr Hampton completed a section of the NDIS Access Request form and provided information about Mrs Adamczewski’s disabilities:[14]
[13] T23.
[14] T23 folio 72; T24, folio 78.
On 18 March 2021, a delegate of the NDIA CEO decided Mrs Adamczewski did not meet the disability requirements or the early intervention requirements and refused her request for access to the NDIS.[15]
[15] T1A; T38 refers.
On 15 April 2021, on behalf of his wife, Mrs Adamczewski requested review of this decision under s 100(2) of the NDIS Act.[16] Further information was provided on 6 and 9 May 2021.[17]
[16] T40.
[17] T41 and T42.
Information supporting Mrs Adamczewski’s access request was provided. This included material produced by:
(a)Dr Hampton;[18]
(b)Ms Viljoen (treating physiotherapist);[19]
(c)Ms Ireland (a physiotherapist who conducted a Functional Capacity Evaluation);[20] and
(d)Dr Rybak.[21]
[18] T23, folios 72-74, T24, T26, T31, T36, T37, T45 and T46.
[19] T30.
[20] T32.
[21] T33 and T34.
On 5 July 2021, a reviewer decided to confirm the decision refusing Mrs Adamczewski access to the NDIS.[22]
[22] T1B.
On 21 July 2021, Mrs Adamczewski applied for review of this decision by the Tribunal.
On 23 August 2022, Mr and Mrs Adamczewski each provided a Statement of Evidence addressing Mrs Adamczewski’s disabilities, impairments, medical conditions and related circumstances.
On 10 September 2021, Mrs Adamczewski filed an undated Statement of Lived Experience (SOLE) and 29 October 2021, Mrs Adamczewski provided a Statement of Lived Experience Issues (SOLEI).[23]
[23] E3 and A Documents, A04.
On 29 September 2021, Dr Rybak and Kate Savage (treating psychologist) produced a report in which they stated:
1. Mrs Adamczewski has exhausted all biological and psychological treatments for her severe mental health conditions [Generalised Anxiety Disorder with panic attacks and Major Depressive Disorder]. Therefore, her condition is unlikely to improve.
2. Mrs Adamczewski’s chronic pain exacerbates her mental health conditions. Further, we understand that she has exhausted all treatments to alleviate her pain and it is unlikely any improvement will be seen in the future. Therefore, the vicious cycle of chronic pain and anxiety and depression will most likely persist.[24]
[24] A Documents, A03, page 1.
On 19 October 2021, Dr Hampton produced a further report in which she stated:
Re Chronic pain/fibromyalgia/spinal canal stenosis
- Mrs Adamczewski has participated in hydrotherapy continuously for over 2 years. This treatment is not curative but it is needed to maintain her function. The treatment was ceased when access became too difficult due to the need for 2 carers. For this reason she needs the assistance under the NDIS.
She has participated in all elements of a chronic disease pain management program ie consultation with pain management specialist, psychologist and physiotherapist. This treatment is not curative but is needed to maintain function.
…
Re Anxiety and Depression
[Mrs Adamczewski] has continuously seen a psychiatrist and psychologist… Whilst dealing with pain may improve her mood, her spinal damage is such that it will never be restored and psychological interventions will never be sufficient. Likewise the childhood trauma and ongoing psychological issues she experiences are manageable with ongoing psychological support but this will not be curative.
…
Re Asthma/chronic lung disease
[Mrs Adamczewski] suffer from Asthma – this is a lifelong chronic illness which affects her breathing, mobility, ability to exercise and enjoyment of life. There is no cure.
…[25]
[25] A Documents, A01, pages 1-2.
On 26 October 2021, Ms Viljoen produced a report for the Agency’s legal representative, HWL Ebsworth in which she reported:
[Mrs Adamczewski’s] general condition deteriorated significantly over the last 2 years. Her quality of life is decreasing, and she had to cease hydrotherapy due to lack of mobility and the logistics surrounding each session. She is increasingly struggling with self care and self management. She has not been able to engage with social activities. She has been forced to use walking sticks to ambulate…
All our efforts in physiotherapy have not been successful in rectifying any of her structural instabilities. There is now clear spinal insufficiency that has resulted in acquired scoliosis. We have exhausted all conservative management option to cure, rectify or remedy [Mrs Adamczewski’s] lumbar dysfunction.
…
Our only option now is to continue providing [Mrs Adamczewski] with local treatments for temporary pain relief to offer some intermittent window of improved comfort, and to provide her with a multidisciplinary approach to prevent further deterioration.
Restarting hydrotherapy would be ideal if she could be offered physical and financial assistance. This will not be a cure for her condition … but may assist in maintaining her current levels of function and to reduce the risk of further rapid deterioration as we have seen over recent times.
…[26]
[26] A documents, A02, pages 2-3.
On 21 July 2022, Phi-Van Houston (an occupational therapist) produced an Occupational Therapy Assessment and Evaluation for HWL Ebsworth. Among other things, Ms Houston reported:
With a body mass index (BMI) of 44.5, the Applicant is classified as obese… Overall, there will be a significant reduction in her functional capacity for simple activities like walking, standing to cook, or gardening (not just watering).
…
I am not aware of that any formal attempts have been made previously to lose weight, either through diet or bariatric surgical intervention. I understand the Applicant has not been referred to a dietician.
…
The main factors that impact the Applicant’s capacity for mobilising are her chronic back pain and severe asthma affecting her lung capacity, which is further exacerbated by her obesity, negatively impacting her endurance and activity tolerance.
…
Whilst some aspects of the Applicant’s function are not as a result of deconditioning or self-limiting behaviours, it would appear that participation in rehabilitation or intervention that could increase hr function and independence may be impacted by self-limiting behaviour which results in deconditioning. This is specific to the Applicant’s participation in hydrotherapy program. It was established that hydrotherapy works for her given that she was required to increase her core strength and general fitness in order for her to have her back surgery and she was able to achieve this with regular hydrotherapy sessions, however, has not continue with this post surgery.[27]
…
It would appear there is some self-limiting behaviours which has led to deconditioning, especially in relation to attendance at hydrotherapy. Prior to her back surgery, the Applicant was attending hydrotherapy on a regular basis to get fitter in preparation for the surgery, however, had not done the same post-surgery as part of her rehabilitation process. This may be due to a combination of factors, such as chronic pain post surgery, as it was not completed due to complications during surgery, and her husband’s health decline and he is not attending and doing hydrotherapy with her, so the level of pre-surgery attendance has not been attempted by the Applicant without physical assistance dressing and undressing, and showering post session. Whilst the Applicant reported she had attended a pain management program, it would appear it is not the right type of program for her. There are different types of pain management programs available, and in the Applicant’s case, an inpatient multidisciplinary pain management program (MPMP) is most likely to be more beneficial as a rehabilitation intervention…
…
Based on what appears to be limited rehabilitation post back surgery, and the presence of chronic pain and respiratory related symptoms, I would recommend a 6-8 weeks inpatient MPMO (or next option is outpatient MPMP) for the Applicant, as any strategy/technique she is utilizing can be reviewed and possibly improved to increase her independence.
It is envisaged that the Applicant would still require 1:1 support, which her husband would be able to provide as her formal carer (he is in receipt of the Centrelink’s Carer Payment and Carer Allowance and other supplements to be her carer). The Applicant is already accessing equipment (shower stool and monkey bar) through the TASQuip program. When she reaches the age of 65 she would be eligible to access services through My Aged Care, similar to her husband, for household cleaning, personal attendant care, and community access.[28]
[27] E5, pages 15 and 16.
[28] Ibid, pages 20-21.
On 28 July 2022, Dr Bak produced a medico-legal report for HWL Ebsworth in which he reported:
[Mrs Adamczewski] has multiple medical issues including chronic back pain, psychiatric problem, fibromyalgia, breathing problem and obesity. However, her most debilitating problem is degenerative lower spinal disease. Her debilitating lower back pain is compounded by her chronic pain condition of fibromyalgia. Her spinal surgery has helped neurological component of her problem and but did not influence greatly her lower back pain associated with degenerative spinal disease. The imaging studies have demonstrated structural problems of her spine.
…
Due to degenerative and permanent nature of her spinal problem, no treatment will remedy her condition. She is currently on a number of pain medications and antidepressant to help her symptoms… but she is still affected by significant pain symptoms. However, ongoing pain management is still important for her to cope with her chronic problems.
…
Without pain treatment, her functional capacity and suffering will deteriorate further.
…
Her degenerative spinal disease has been managed appropriately within the limitation of effectiveness of available treatment options.
…
She has been extensively investigated and managed by neurosurgeon, pain specialist and physiotherapist and no further examination is necessary.
… She desires to have help; including dressing and taking a shower after exercising in the pool twice a week as exercise in the pool has helped her general condition and pain symptoms greatly. She will need an adjustable bed, as she currently uses monkey bar which is not ideal for her to use. She wants to shower three times a week at minimum and a shower seems to give her some therapeutic benefit as far as her pain symptoms are concerned. She will also need help with shopping, cooking and domestic cleaning. She also wants to walk around her house once or twice a week and she will want someone to drive for her to socialize. As her husband is not well, she will also need social respite.[29]
[29] A Documents, A12, pages 7-11.
On 23 January 2023, Dr Hampton produced a further report in which she stated:
Weight Loss
Mrs Adamczewski has received extensive counselling in the past regarding her weight including full dietary review.
There are no affordable options for appetite suppressants – there are none on the PBS.
There are no affordable options for dieticians – there are none in the public health system at all in Hobart.
She is not a candidate for bariatric surgery due to her significant comorbidities which make her a high risk for any surgical procedure, let alone bariatric surgery.
Bariatric surgery would significantly increase her already severe gastroesphageal disease…
She has been fully engaged with physiotherapists and exercise physiologist during the past 8 years that she has been attending this practice.[30]
[30] Report of Dr Hampton, 23 January 2023, page 2.
On 8 February 2023, Dr Rybak produced a report for HWL Ebsworth. Dr Rybak stated:
Mrs Adamczewski suffers from multiple medical problems (which are outside the scope of my expertise), but she also suffers from Major Depressive Disorder and Severe Anxiety. She has been my patient since 2009 and she is on high doses of psychotropic medications… Her psychiatric condition is chronic and has poor long-term prognosis…
…
Mrs Adamczewski has been seeing different physiotherapist and exercise physiologist for a number of years now. It only has limited effect on her pain and weight loss. She needs to do intensive but low impact exercises (eg, swimming), which she is more than happy to do. However she is physically not able to dress in the swimming costume and then undress from it, due to pain and physical problems. Hence need for assistance from the 3^rd party. The same applies to all other potential physical activities.
I personally discussed healthy diet with her on multiple occasions, but by itself it is of little help in regards to her weight.
Dietitians is out of financial reach for Mrs Adamczewski.
Surgical options are out of financial reach as well and would be life threatening. Considering her poor general health, therefore out of the question.
Appetite suppressing medications interact with her psychotropic medications and are potentially dangerous and can exaggerate her existing anxiety…
…
Suggesting that simple weight loss can fix all Mrs Adamczewski’s health problems and eliminate her need for help and assistance, is at best very naïve and at worst poorly informed, simplistic and shows the lack of considerations for the holistic approach in managing of this complex patient.[31]
[31] E7, pages 1 and 2.
Issues
The issue to be decided is whether Mrs Adamczewski meets the access criteria for the purposes of s 20. When a person meets the access criteria is to be worked out under s 21. Subsection 21(1) is in the following terms:
21 When a person meets the access criteria
(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).
As can be seen, the statutory question whether the person meets the disability requirements or the early intervention requirements is to be answered at the time of considering the request for access.
Having regard to s 103 of the NDIS Act and s 25 and s 43 of the Administrative Appeals Tribunal Act 1975 (AAT Act), the Tribunal must address the statutory question that was before the original decision-maker, exercising the same powers and being subject to the same constraints as the original decision-maker, and with reference to relevant materials that are placed before it.[32] It has been said, correctly, the Tribunal stands in the shoes of the reviewer (and hence, the CEO) and makes a fresh decision, doing the task of the reviewer over again.
[32] Frugtniet v ASIC [2019] HCA 16, per Kiefel CJ, Keane and Nettle JJ at [14]-[15] and Bell, Gageler, Gordon and Edelman JJ at [51].

For the purposes of s 21(1)(a), a person must satisfy the age requirement in s 22 at the time of requesting access to the Scheme under s 18. The thresholds set out in s 21(1)(b) and (c) are to be met at the time of considering the request. Should the person’s request be refused by a primary decision maker, the consideration is not taken to be complete until review processes are exhausted, months or even years later. As the temporal elements in s 21(1)(b) and (c) are not confined to the time when the original decision was made, the Tribunal must make findings about relevant factual matters that pertained not only when the access request was made and originally determined, but also up to the time of its decision, presently.
There is no dispute Mrs Adamczewski satisfies the age and the residence criteria. There is a dispute whether she satisfies the disability requirements in s 24 or the early intervention requirements in s 25.
Section 24 and s 25 were amended with the passage of the National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Act 2022 (Amendment Act). Under s 67 and s 68, Schedule 1 of the Amendment Act, the amended review provisions do not apply to Tribunal reviews which were already then on foot and, by operation of s 54(1) in Schedule 2 and s 55(1) in Schedule 3 of the Amendment Act, the amendments apply to an access request made on or after commencement. For this reason, this review is to be decided under the applicable provisions of the NDIS Act in effect prior to commencement of the Amendment Act provisions.
The applicable terms of s 24 and s 25 are:
24 Disability requirements
(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.
25 Early intervention requirements
(1) A person meets the early intervention requirements if:
(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 developmental delay; 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.
(2) The CEO is taken to be satisfied as mentioned in paragraphs (1)(b) and (c) if one or more of the person’s impairments are prescribed by the National Disability Insurance Scheme rules for the purposes of this subsection.
(3) Despite subsections (1) and (2), the person does not meet the early intervention requirements if the CEO is satisfied that early intervention support for the person is not most appropriately funded or provided through the National Disability Insurance Scheme, and is more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or through systems of service delivery or support services offered:
(a) as part of a universal service obligation; or
(b) in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
Disability attributable to impairment
Mrs Adamczewski asserts she has permanent disabilities which are lifelong impairments. In her submission her disabilities and impairments are reported by Dr Hampton and Dr Rybak, namely generalised anxiety disorder, major depressive disorder, degenerative disc disease, fibromyalgia or chronic pain, asthma, a respiratory disorder (sleep apnoea), gastro-oesophageal disease and osteoporosis.
The Agency accepts Mrs Adamczewski has “disabilities in the nature of degenerative lower spinal disease, fibromyalgia, asthma, generalised anxiety disorder and major depressive disorder”.[33] The Agency also accepts Mrs Adamczewski has impairments in the form of “reduced musculoskeletal and movement related functions attributable to her degenerative lower spinal disease, reduced respiratory function attributable to her asthma, and reduced mental functioning attributable to the generalised anxiety disorder and major depressive disorder disabilities”.[34] The Agency contends there is insufficient evidence before the Tribunal to positively find “there are any other disabilities or psychiatric conditions that are attributable to an impairment”.[35]
[33] Respondent’s Updated Statement of Facts, Issues and Contentions, 17 February 2023 at [14].
[34] Ibid at [15].
[35] Ibid at [17].
In the Agency’s submission, Mrs Adamczewski’s “impairments attributable to the asthma, degenerative lower spinal disease, fibromyalgia, generalised anxiety disorder and major depressive disorder are permanent”.[36] The Agency accepts Mrs Adamczewski’s impairments affect her capacity for social and economic participation but they do not result in a substantially reduced functional capacity to undertake one or more of the activities specified in s 24(1)(c) and, consequently, Mrs Adamczewski is unlikely to require supports under the NDIS for her lifetime.
[36] Ibid at [19].
It is the Agency’s contention there is insufficient evidence to establish Mrs Adamczewski’s future need for supports would be reduced should early intervention supports be provided to her. The Agency argues, furthermore, the available evidence does not address early intervention supports Mrs Adamczewski requires with any particularity and any likely benefits which she might obtain are not presently made out.
Before addressing these matters, it is appropriate to briefly address Mrs Adamczewski’s assertion the Agency’s submissions on s 24(1)(a) are unclear and confusing.
Without engaging in undue criticism or hair-splitting, it is apparent there are some difficulties with the Agency’s submissions. The Agency appears to treat medical conditions or ailments, namely degenerative lower spinal disease, fibromyalgia, asthma, generalised anxiety disorder and major depressive disorder as ‘disabilities’. It proceeds to accept certain impairments are ‘attributable to’ the disabilities: reduced musculoskeletal and movement related functions attributable to her degenerative lower spinal disease, reduced respiratory function attributable to her asthma, and reduced mental functioning attributable to the generalised anxiety disorder and major depressive disorder disabilities. The Agency then contends there is insufficient evidence before the Tribunal to find there are any other disabilities or psychiatric conditions that are attributable to an impairment.[37]
[37] Ibid at [17].
The statutory question posed by s 24(1)(a) is whether the prospective participant 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.
The Agency’s description of Mrs Adamczewski’s degenerative lower spinal disease, fibromyalgia, asthma, generalised anxiety disorder and major depressive disorder as disabilities and its assessment of impairments attributable to disabilities do not accord with the statutory formulation and the question whether the person has disability attributable to impairments of the kinds specified in s 24(1)(a).
In Mulligan v National Disability Insurance Agency (Mulligan),[38] Mortimer J explained the distinction between disability and impairment. Consistent with the scheme of the NDIS Act, the term disability, for the purposes of s 24 at least, refers to the overall effect of a person’s impairments on that person’s abilities to participate in all aspects of personal and community life,[39] whereas the term impairment, on which s 24 operates, involves the loss of or damage to a physical, sensory or mental function.[40] The assessment to be undertaken is based on a functional, practical assessment of what a person can and cannot do[41] and it requires a relatively high degree of precision.[42] The enquiry is not directed to how a person came to have a disability.[43]
[38] [2015] FCA 544; cited with approval in National Disability Insurance Agency v Davis [2022] FCA 1002 (Davis).
[39] Ibid, at [51].
[40] Ibid.
[41] Ibid, at [56].
[42] Ibid, at [55].
[43] Ibid, at [16].
The statutory questions posed in s 24(1) are directed to the prospective participant’s disability, measured by the impairment or impairments to which it is attributable, in respect of which supports might be required. For the purposes of s 24(1), the word attributable it refers to a causal connection between a person’s disability and the impairment or impairments from which it results. In this context, attributability is not exclusive or comprehensive. The threshold in s 24(1)(a) does not require the person’s disability to be solely attributable to one or more impairments which meet the thresholds in s 24(1)(b), (c) and (d), and it does not require all impairments to which the person’s disability might be attributable to meet those thresholds. The disability requirement is met if the person has a disability that is attributable to one or more impairments which meet those thresholds. Thus, as Mortimer J discussed in Mulligan’s case, the concept of impairment enables assessment of the severity and permanency of a person’s condition, and of the effects of that condition.[44] Considering Mortimer J’s words in context and adopting the statutory language, it is clear enough Her Honour’s reference to the person’s condition refers to their disability rather than a particular medical condition.[45]
[44] Mulligan at [55].
[45] Mulligan at [51]-[52]; Davis at [115].
It is through this lens s 24 and s 25 must be considered, having regard to the objectives set out in s 3 and the principles set out in s 4 and s 17A.
Disability requirements
It can be accepted Mrs Adamczewski suffers from diagnosed ailments including degenerative lower spinal disease at L3 to S1 levels, fibromyalgia, adult-onset brittle asthma (which progressed to chronic lung disease)[46], generalised anxiety disorder and major depressive disorder (chronic[47] and associated with seasonal affective disorder[48]). On the reports of Dr Hampton, Dr Bak, Dr Chia, Dr Jones, Dr Wilkinson, Dr Doolab, Ms Ireland, Mr Viljoen and Ms Houston, Mrs Adamczewski also suffers from spinal canal stenosis with post-surgical complications,[49] advanced degenerative disc disease from T12 to L2 with retrolisthesis,[50] thoracic scoliosis,[51] gastro oesophageal reflux disease,[52] metabolic syndrome (including fatty liver disease and insulin resistance[53]),[54] ischemic heart disease,[55] bilateral shoulder injuries,[56] a left hamstring tear injury,[57] hearing loss,[58] declining visual acuity,[59] chronic allergic rhinitis,[60] obstructive sleep apnoea,[61] generalised osteoarthritis[62] (spine, knees and hands[63]), osteoporosis,[64] and obesity.[65]
[46] T35, folio 125; T37, folio 134.
[47] T34, folio 120.
[48] T46, folio 159.
[49] T46, folio 156.
[50] T21, folio 64; A Documents, A12, page 7 refers.
[51] T21, folio 64.
[52] T27, folio 93; T46, folio 158.
[53] T31, folio 101
[54] T46, folio 157.
[55] T7, folio 48.
[56] T35, folio 127; T32, folio 108 refers.
[57] T19; T32, folio 108; E6, page 2.
[58] T35, folio 127; T46, folio 158.
[59] T46, folio 158-159.
[60] T46, folio 157.
[61] T24, folio 78; T27, folio 93; T46, folio 158; A Documents, A12, page 6; T7, folio 47 refers.
[62] T31, folio 101.
[63] T3, folio 36.
[64] T32, folio 107.
[65] T31, folio 101; T45, folio 149; T46, folios 153-154; E5, page 12; A Documents, A12, page 6..
On this background and the evidence of Dr Hampton and Dr Ryback in particular, Mrs Adamczewski has the following impairments:
(a)fluctuating reduced cognitive function:
(i)reduced concentration, cognitive processing, memory and ability to interact socially due to asthma, chronic pain and psychiatric disorders;[66]
[66] T26, folio 90; T32, folio 108.
(b)reduced neurological function:
(i)altered neurological function due to fibromyalgia resulting in chronic shoulder, thoracic spine and lumbar spine pain and heightened sensitization of overlying muscles;[67]
[67] T5, folio 41; T32, folios 108-109.
(ii)altered neurological function following L3 to S1 spinal fusion surgery, localised scoliosis, anterolisthesis and lumbar spine degenerative disease resulting in lumbar pain and left radicular pain;[68]
[68] A Documents, A02, page 2 and A12, pages 5-7; T19; T30.
(iii)partial hearing loss;[69]
[69] T35, folio 127.
(c)reduced physical function:
(i)skeletal degeneration from genetic factors and corticosteroid use resulting in “osteoporosis with fracture”;[70]
[70] T27, folio 93; T35, folio 125.
(ii)lumbar spine fusion (L3 to S1), anterolisthesis (L4 to S1) and scoliosis resulting in reduced mobility;[71]
[71] T21, folio 64; T35, folio 126; A Documents, A02, pages 1-2.
(iii)thoracic disc degeneration with retrolisthesis (T12 to L2) and thoracic scoliosis resulting in reduced mobility;[72]
[72] T21, folio 64.
(iv)pelvic upslip and coronal imbalance resulting in altered gait;[73]
(v)right and left shoulder injuries resulting in reduced strength and range of motion;[74]
(vi)left hamstring tear associated with reduced ambulatory function and capacity to weight-bear;[75]
(vii)left and right knee joint degeneration resulting in reduced mobility;[76]
(viii)fluctuating airway restriction and altered lung function due to asthma, chronic lung disease, sleep apnoea and sinusitis resulting in periodic breathlessness, hypoxia, confusion, lethargy and reduced exercise tolerance;[77]
(ix)laryngeal dysfunction, vocal cord ulceration and thickening resulting in reduced voice control and ability to sing;[78]
(d)Impairments due to a psychiatric condition:
(i)fluctuating anxiety, depression, altered mood, reduced motivation, reduced hope for the future and reduced cognitive function (see above).[79]
[73] T30, folio 99.
[74] T32, folio 108-109; T35, folio 127.
[75] T19.
[76] T35, folio 126.
[77] T7; T37, folio 134.
[78] T35, folio 125.
[79] T33; T34, folio 124.
With one exception, I am satisfied Mrs Adamczewski has disability attributable to these impairments. The threshold in s 24(1)(a) is met.
The exception is in respect of Mrs Adamczewski’s skeletal degeneration and osteoporosis. While changes to the strength or structure of her bones involving decreased bone density or mass might amount to an impairment of bone or skeletal function, the available evidence does not establish this results in any disability. The fracture Dr Hampton referred to in her Patient Health Summary on 12 October 2020 has not been identified, and it is not readily apparent.
There is a question whether Mrs Adamczewski’s obesity amounts to an impairment. To my mind, on the available evidence, it does not. Obesity is a medical description of body fat or weight. High body fat might contribute to, or conceivably result from, impairment. The evidence in Mrs Adamczewski’s case establishes her obesity is “largely influenced by her illnesses and medication” and her reduced capacity to undertake physical tasks.[80] The better conclusion is Mrs Adamczewski’s obesity is a bodily state rather than an impairment.
[80] T45, folio 149.
There is also a question whether Mrs Adamczewski’s metabolic syndrome amounts to an impairment. On the available evidence, it does not. Metabolic syndrome is a description of risk factors derived from the level of compounds in the blood (glucose, cholesterol and triglycerides) as well as blood pressure and the person’s waist circumference. Without more, risk factors of this kind do not amount to an impairment.
Permanent impairment
The Agency accepts Mrs Adamczewski’s impairments attributable to the asthma, degenerative lower spinal disease, fibromyalgia, generalised anxiety disorder and major depressive disorder are permanent within the meaning of s 24(1)(b) of the NDIS Act.[81]
[81] Respondent’s Updated Statement of facts, Issues and Contentions, 17 February 2023 at [19].
In order to determine if any of Mrs Adamczewski’s impairments is, or is likely to be, permanent for the purposes of s 24(1), it is necessary to consider s 24(2) and relevant provisions in the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Rules);
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.
Noting what Mortimer J said in Davis when considering these Rules and the rule making power in s 27,[82] I will proceed on the assumption all of the Rules are validly made. No contrary proposition was ventilated by the parties in these proceedings.
[82] Davis at [66]-[75] and [131]-[134].
The Agency has issued policy guidelines: Access to the NDIS Operational Guideline (Guidelines).[83] Section 8.2 of the Guidelines deals with considerations that are required or relevant when determining if an impairment is permanent.[84]
[83] T49.
[84] T49, folios 218-219.
8.2 When is an impairment permanent or likely to be permanent?
The NDIA must be satisfied that a prospective participant's impairment/s are, or are likely to be, permanent (i.e. likely to be lifelong) (section 24(1)(b)).
The following principles provide guidance:
-    an impairment is, or is likely to be, permanent only if there are no known, available and appropriate evidence based treatments that would be likely to remedy (i.e. cure or substantially relieve) the impairment (rule 5.4 of the Becoming a Participant Rules);
-    an impairment that varies in intensity (for example, because the impairment is of a chronic episodic nature) may be permanent despite the variation (section 24(2));
-    an impairment may be permanent notwithstanding that the severity of its impact on the functional impact of the person may fluctuate or potentially improve (rule 5.5 of the Becoming a Participant Rules);
-    an impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its likely permanency to be demonstrated (rule 5.6 of the Becoming a Participant Rules).
-    In this context, an impairment may be permanent notwithstanding that it may continue to be treated and reviewed after its permanency, or likely permanency, has been medically demonstrated; and
-    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 (rule 5.7 of the Becoming a Participant Rules).
If a prospective participant has multiple impairments, the NDIA will consider each impairment separately and determine whether each impairment is, or is likely to be permanent. However, the NDIA only needs to be satisfied that at least one of a prospective participant's impairments are, or are likely to be permanent.
Where there is a possibility of medical treatment (such as surgery) to treat the prospective participant's condition, and the treatment has some prospect of success, the NDIA should not conclude that the impairment is permanent but should wait until the outcome of the treatment is known (Mulligan and NDIA [2015] AATA 974 at [71]).

While guidelines of this kind are not binding on the Tribunal, it may be accepted they should be applied unless there is a good reason not to do so. There are good reasons to approach two elements of these guidelines with caution.
The first is the meaning given to the word ‘permanent’ is not consistent with Davis, which is binding authority. Under the guideline ‘permanent’ is taken to mean ‘likely to be lifelong’ in reference to s 24(1)(b). Those words do not appear in the text of s 24(1)(b). In Davis, Mortimer J stated the correct meaning of “permanent” in s 24(1)(b) is “enduring”[85] and:
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.
[85] Davis at [85].
The second relates to the principle purportedly drawn from paragraph [71] of the Tribunal’s decision in Mulligan and NDIA, following remittal by the Federal Court:[86]
Where there is a possibility of medical treatment (such as surgery) to treat the prospective participant's condition, and the treatment has some prospect of success, the NDIA should not conclude that the impairment is permanent but should wait until the outcome of the treatment is known.[87]
[86] [2015] AATA 974.
[87] T49, folios 218-219.
There is some doubt whether the purported principle can reasonably be drawn from the Tribunal’s factual finding in paragraph [71] Mr Mulligan’s sciatica was permanent. . This doubt is reinforced by the relevant content of the Tribunal’s decision:
66. Mr Mulligan gave evidence that he has seen two neurosurgeons since the car accident. He told us that the first advised that he needed a spinal disc decompression for which there were “no guarantees” but it would be “the best bet”. According to Mr Mulligan, the second neurosurgeon said “exactly the same thing”.
67. Mr Mulligan told us that he understands that, “without intervention”,his condition is permanent. He gave evidence that, in light of the insurer’s refusal to cover the cost of surgery, he has asked his general practitioner to put him on a waiting list for surgery in the public system; if he could, he would have the operation “tomorrow” so that he could get back to work. Whether that is actually possible would remain to be seen.
68. Spinal conditions are not Dr Carter’s specialty but he gave evidence as a general physician that, depending on the cause, conservative treatment for sciatica usually works. Although a treatment of last resort, surgery can be successful.
Consideration
69. Rule 5.4 provides that an impairment is, or is likely to be, permanent only if there are no known available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy it.
70. For Mr Mulligan it was submitted that there can be no guarantee of a successful outcome to surgery and that his evidence amounts to no more than his hope for a successful outcome.
71. We have not seen reports from the neurosurgeons but, given that Mr Mulligan has apparently accepted their advice and wishes to undergo surgery, it is reasonable to conclude that it has some prospects of success. In any event, until the outcome of surgery is known, we are not satisfied that his sciatica is, or is likely to be, permanent.
72. It was submitted for Mr Mulliganthat, if we determine that his sciatica is not, or is not likely to be, permanent, that does not preclude it from being taken into account in determining whether he satisfies the other disability requirements. In our view that cannot be correct. If it were, a person with a permanent impairment which has no effect on functioning could satisfy s 24(1) as long as he or she has another impairment which substantially reduces functioning in a relevant area even if it is only temporary.
The Tribunal did not draw any point of principle when dealing with the issue of permanence, rather it dealt with the particular facts of Mr Mulligan’s case. Without knowing the outcome of the surgery, the Tribunal concluded it was not satisfied Mr Mulligan’s sciatica was likely to be permanent. In making that finding, it is not clear if the Tribunal considered Mr Mulligan’s sciatica condition to be an impairment. The permanence of a medical condition is not to the point of the statutory questions posed in s 24(1)(b).
As Mortimer J made clear in Davis:
69. 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.
In National Disability Insurance Agency v Foster,[88] Derrington J, with whom Katzmann and Perry JJ agreed, cited with approval what Mortimer J said in Mulligan in respect of impairment in the context of s 24:
52. 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.
[Emphasis added.]
[88] [2023] FCAFC 11 at [46].
On the evidence of Dr Rybak and Dr Hampton, Mrs Adamczewski’s cognitive impairments and other impairments resulting from generalised anxiety disorder and major depressive disorder vary in intensity and fluctuate from time to time. Nonetheless, I accept their evidence Mrs Adamczewski has undertaken all appropriate treatment and there is no known, or appropriate treatment which is likely to remedy these impairments and the conditions from which they spring. It can be accepted her ongoing treatment is for the purpose of maintaining or stabilizing, and preventing further deterioration in her mental health and related impairments.
Similar conclusions can be drawn from the medical evidence in respect of Mrs Adamczewski’s neurological and physical impairments (with the exception of physical impairments resulting from bilateral shoulder injuries, left hamstring tear injury and bilateral knee joint degeneration). On Dr Hampton’s evidence, Mrs Adamczewski has undertaken all appropriate relevant treatments and ongoing treatments for her pain and spinal conditions are unlikely to improve these permanent and degenerative conditions and the impairments they cause. Mr Viljoen’s reference to surgical intervention on 21 January 2021[89] is not a recommendation for neurosurgical treatment of Mrs Adamczewski’s spinal condition (or her knee condition), rather it refers to Mr Viljoen’s prognosis should no such treatment be undertaken.
[89] T30, folio 99.
Ms Houston reported Mrs Adamczewski undertook a pain management program which was not optimal for her, and a further multi-disciplinary pain management program would be more beneficial.[90] Ms Houston’s opinion is not supported by other evidence. I note Ms Houston is an experienced occupational therapist without any specialist or medical qualifications relevant to the treatment or management of chronic pain conditions. On this point, I prefer the evidence of Dr Hampton and Dr Bak’s assessment Mrs Adamczewski requires ongoing pain management to cope with her chronic conditions, without which her functional capacity and suffering will deteriorate further.
[90] E5, page 21.
By Mrs Adamczewski’s own account, as confirmed by Dr Hampton on 2 July 2021, her left and right shoulder injuries to which Ms Ireland referred on 27 January 2021[91] generally resolved,[92] and the left hamstring injury Dr Wilkinson assessed on 10 March 2020[93] mainly resolved itself, [94] by 2 July 2021. Proceeding on the basis this is correct, the impairments resulting from these injuries set out in subparagraphs 43(c) (v) and (vi) cannot be considered permanent for the purposes of s 24(1)(b) of the NDIS Act.
[91] T32, folios 108-109; T30, folio 98 refers.
[92] T46, folios 156-157; T35, folio 128 refers.
[93] T19; T35, folio 128 refers.
[94] T46, folios 160-161.
With regard to Mrs Adamczewski’s left and right knee impairments secondary to knee joint degeneration and osteoarthritis, Ms Ireland reported Mrs Adamczewski underwent a partial right knee replacement and may require a similar procedure in her left knee.[95] It may be accepted Mrs Adamczewski’s impairments resulting from her degenerative knee conditions might be remedied by further surgical and physiotherapy treatment, being treatments which are known, available and appropriate in her circumstances. On the present materials and in Mrs Adamczewski’s circumstances, it is unclear if such an outcome is likely. This notwithstanding, the available evidence is not sufficient to support a positive finding Mrs Adamczewski’s left and right knee impairments are permanent for the purposes of s 24(1)(b).
[95] T32, folio 108.
I note Ms Houston’s reported opinion Mrs Adamczewski’s obesity will add to her pain and reduce her endurance/cardiovascular health and joint mobility, causing a significant reduction in her functional capacity for simple activities like walking, standing to cook, or gardening. Even though it may be accepted weight reduction may have some beneficial effect on Mrs Adamczewski’s functional capacities, the weight of evidence does not suggest treatment of her obesity would substantially relieve or remedy the impairments set out in paragraph [43] above. Furthermore, in the complex circumstances of her medical history and related impairments, I am not satisfied there are clinical, medical or other treatments for obesity available to her.
In conclusion on this point, on the evidence of Dr Hampton, Dr Rybak, Dr Bak, Dr Wilkinson, Dr Chia, Dr Jones, Dr Orlikovski, Ms Ireland and Mr Viljoen, with the exception of the impairments set out in subparagraphs 43(c) (v), (vi) and (vii), I am satisfied there are no known, available and appropriate evidence-based clinical, medical or other treatments which are likely to remedy, substantially relieve or cure the impairments set out in paragraph [43]. Subject to the exceptions identified, I am satisfied the impairments in s 43 are permanent for the purposes of s 24(1)(b) of the NDIS Act.
Impairment resulting in substantially reduced functional capacity
Mrs Adamczewski asserts her impairments result in substantially reduced functional capacity in respect of communication, social interaction, learning, mobility, self-care and self-management for the purposes of s 24(1)(c) of the NDIS Act.
The Agency disagrees and asserts Mrs Adamczewski’s permanent impairments do not result in a substantial reduction in her functional capacity to undertake any one or more of the activities set out in s 24(1)(c).
These matters are to be decided under s 24(1)(c) of the NDIS Act and the applicable Rules. Section 5.8 of the Rules sets out matters that must be considered when determining if a permanent impairment results in the person having a substantially reduced functional capacity to undertake any of the activities specified in s 24(1)(c):
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.
Section 8.3 of the Guidelines sets out the relevant Agency policy, including:
The NDIA is required to consider whether any permanent impairment, or permanent impairments when considered together, result in substantially reduced functional capacity to undertake one or more of the following activities:
 Communication: includes being understood in spoken, written or sign language, understanding others and expressing needs and wants by gesture, speech or context appropriate to age;
 Social interaction: includes making and keeping friends (or playing with other children), interacting with the community, behaving within limits accepted by others, coping with feelings and emotions in a social context;
 Learning: includes understanding and remembering information, learning new things, practicing and using new skills;
 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;
 Self-care: means activities related to personal case, hygiene, grooming and feeding oneself, including showering, bathing, dressing, eating, toileting, grooming, caring for own health care needs; or
 Self-management: means the cognitive capacity to organise one's life, to plan and make decisions, and to take responsibility for oneself, including completing daily tasks, making decisions, problem solving and managing finances.
Section 8.3.1 of the Guidelines states:
An impairment results in substantially reduced functional capacity to perform one or more activities when:
 the person is unable to participate effectively or completely in the activity or perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items) or home modifications (rule 5.8(a) of the Becoming a Participant Rules); or
 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 (rule 5.8(b) of the Becoming a Participant Rules); or
 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 (rule 5.8(c) of the Becoming a Participant Rules).
The following information provides further guidance in relation to determining when an impairment results in substantially reduced functional capacity:
By itself, reliance on commonly used items will not result in a substantially reduced functional capacity to participate effectively or completely in an activity. Commonly used items include glasses, walking sticks, non-slip bath mats, bathroom grab rails, stair rails, age appropriate child safety locks, simple adapted kitchen utensils and dressing aids.
In considering the role played by assistive technology, home modifications and equipment, the NDIA will consider specific needs arising from the prospective participant's impairment, and whether those needs are met (or need to be met) through the use of specialist disability aids and/or equipment.
Such items would generally be specifically designed to assist in increasing the functional capacity and participation of people with disability and be formally prescribed by a medical practitioner, specialist clinician or allied health professional such as an occupational therapist, physiotherapist or speech therapist.
When considering whether a person requires assistance from others to participate or perform tasks associated with an activity, the NDIA will have regard to whether a person's need for assistance is consistent with normal expectations of a person of a similar age. For example, children under the age of 2 will not necessarily have a substantially reduced functional capacity because they need assistance to provide for self-care needs.
A person will be considered to be unable to participate effectively or completely in an activity if they cannot safely complete one or more of the tasks required to participate in an acceptable period of time. Undertaking a task more slowly or differently to others will not necessarily mean a person cannot participate effectively or completely in an activity.
When considering whether a fluctuating or episodic impairment results in substantially reduced functional capacity to undertake relevant activities, the NDIA will consider the impact on the person's ability to function in the periods between acute episodes.
If a positive finding is made that the prospective participant has a substantially reduced functional capacity in respect of one or more of the activities set out in 24(1)(c)(i)-(vi) of the NDIS Act, the threshold is met.[96]
[96] Mulligan at [67].
It is necessary to consider each permanent impairment separately and in combination with any other permanent impairment of the person, as well as the person’s functional capacity to undertake each of the activities: communication, social interaction, learning, mobility, self-care, self-management. The assessment is not a comparative exercise, rather it is a practical, functional assessment of what the person can and cannot do, having regard to the contents and the deeming effect of s 5.8 of the Rules.[97] There is an important distinction to be drawn between the person’s impairments and the effects of the impairments on the person’s functional capacity to undertake the activities specified in s 24(1)(c) as well as their capacity for social and economic participation in s 24(1)(d) and the likelihood the person will require support under the NDIS for their lifetime.[98]
[97] Ibid at [56].
[98] Foster, per Derrington J, with whom Katzmann and Perry JJ agreed, at [46]-[56].
Communication
Mrs Adamczewski contends she has a substantially reduced functional capacity to undertake communication. In her submission, she often struggles to find the right word and she finds communicating using the telephone tiring: communication is less simple than before her impairments impacted her.[99]
[99] Applicant’s Statement of Facts, Issues and Contentions in Response to Respondent’s Statement of Facts, Issues and Contentions, 23 March 2023 at [34].
The Agency contends Mrs Adamczewski does not have a substantially reduced functional capacity to undertake communication in consequence of her permanent impairments.
The evidence of Dr Hampton, Dr Rybak, Dr Bak and Ms Houston establishes Mrs Adamczewski’s impairments do not adversely affect her functional capacity to communicate.[100]
[100] See E7, page 9; A documents, A12, page 9; and E5, page 24.
I accept Mrs Adamczewski may struggle with aspects of communication, such as finding the right word or losing focus when she is tired or when she experiences hypoxia, fibro fog (which I take to mean lack of cognitive clarity due to fibromyalgia) or elevated pain.
Nonetheless, even though communication may be less simple for her than it used to be, the available evidence does not support the proposition Mrs Adamczewski is unable to participate effectively or completely in communication, or she usually requires assistance to participate in communication or related tasks. It is not established Mrs Adamczewski has a substantially reduced functional capacity to undertake communication as a result of permanent impairments to which her disability is attributable.

In consideration of Mrs Adamczewski’s permanent impairments separately and in combination, I am reasonably satisfied the threshold in s 24(1)(c)(i) is not met.
Social interaction
The evidence in respect of Mrs Adamczewski’s functional capacity to undertake social interaction, and her psychosocial functioning in this context, suggests her permanent impairments affect her functional capacity to undertake such activity. The evidence does not establish, however, her functional capacity to undertake social engagement is substantially reduced by her permanent impairments.
Furthermore, the conception of functional capacity is not synonymous with practical feasibility. The statutory question in respect of a prospective participant’s substantially reduced functional capacity is not answered by practical difficulties the person might experience in order to undertake or engage in activities of which they are functionally capable. The sharp focus of the enquiry is the person’s functional capacity to undertake the particular activity. Unless the evidence is sufficient to establish the person’s functional capacity to undertake the activity, or their psychosocial function when undertaking the activity, is substantially reduced, the threshold is not met.
It can be accepted Mrs Adamczewski is socially isolated and she requires practical assistance and transport in order to undertake or engage in social activities in person, including grocery shopping. Mrs Adamczewski is able to participate in social interaction by telephone and using other media, participating in bible study for example, although her concentration and her tolerance of such activity is limited by pain and related symptoms of fatigue.
On the evidence of Dr Rybak, Dr Hampton and Ms Ireland, physical issues including difficulty sitting, standing and moving around affect her social interaction capability. Dr Hampton’s evidence suggests Mrs Adamczewski is reluctant to leave her house alone when she experiences elevated symptoms of anxiety or depression. I accept Mrs Adamczewski experiences difficulty leaving her house alone and engaging in social interaction when her pain or anxiety or depression symptoms are elevated.
On close examination of the evidence, I am satisfied Mrs Adamczewski’s movement difficulties, and her anxiety and depression symptoms cause her to require practical assistance to leave her house and to move around in the community to undertake social activities. She may require some assistance to engage in social interaction, particularly following the sudden death of her friend. This is consistent with a reduction of her functional capacity to undertake social interaction, but the available materials do not establish her functional capacity to undertake such activity is substantially reduced.
I am satisfied difficulties of these kinds do not amount to a substantial reduction in Mrs Adamczewski’s functional capacity to undertake social interaction or in her psychosocial function when doing so and, for this reason, the threshold in s 24(1)(c)(ii) is not met in respect of her permanent impairments, individually or in combination.
Learning
Mrs Adamczewski’s assertion her functional capacity to undertake learning activities is not made out.
Dr Hampton’s report Mrs Adamczewski “seeks out information but increasing difficulty with processing and memory. Pain affects process and memory”[101] can be accepted. Nevertheless, Dr Rybak reported Mrs Adamczewski “maintains an unusually positive attitude and attempts to make the best of her daily life”[102] and she does not need assistance to learn effectively.[103]
[101] T26, folio 90.
[102] A documents, A03, page 1.
[103] T34, folio 123.
I am not persuaded Mrs Adamczewski’s functional capacity to undertake, or her psychosocial function when undertaking, learning is substantially reduced.
Considering Mrs Adamczewski’s permanent impairments separately and in combination, I am satisfied the threshold in s 24(1)(c)(iii) is not met.
Mobility
The Agency’s policy in respect of the meaning of mobility is set out in s 8.3.1 of the 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;
The conception of moving around to undertake ordinary activities in this definition implies not only the undertaking of activities of daily living which may be characterised as ordinary, but also the undertaking of the activity in an ordinary manner. I do not accept it would be considered ordinary for an adult person who is unable to walk unaided to crawl around their house or in the community, whereas for a young child who is unable yet to walk, crawling may well be a threshold of mobility which might be considered ordinary.
To the extent that the Tribunal in Madelaine and NDIA (Madelaine) took a different view and considered that Movement in the home does not need to be achieved by walking; a person might even crawl from room to room,[104] I respectfully disagree. The legislation and the Guidelines do not proceed on such a basis. Rather, s 5.8 of the Rules sets out the basis on which a person is deemed to have a substantially reduced capacity to undertake the activities listed in s 24 of the NDIS Act, in which one touchstone is a requirement for assistance, and s 8.3.1 of the Guidelines proceeds on the basis that:
When considering whether a person requires assistance from others to participate in or perform tasks associated with an activity, the NDIA will have regard to whether the person’s need for assistance is consistent with normal expectations of a person of a similar age.
[104] [2020] AATA 4025 at [104].
In the context of the Scheme legislation and considering the Agency’s policy set out in s 8.3.1 of the Guidelines, a person may be found to have substantial difficulty undertaking an activity independently and safely where the person is unable to participate effectively or completely in the activity without equipment (other than commonly used items) or home modifications under s 5.8(a) of the Rules, or the person usually requires assistance of other people to participate in or undertake the activity under s 5.8(b) of the Rules.
On Ms Houston’s report, Mrs Adamczewski is able to move around her house using a single walking stick, although she uses two walking sticks when moving around in the community “to provide support and maintaining an upright posture” [105] and, in this way, she is able to walk up to 50 metres on an incline street.[106] Ms Houston reported, furthermore:
[Ms Adamczewski] was observed to become more fatigued, and her speech became a little more laboured, especially if she was talking while she was walking, as we walked around the house… She usually recovers quickly with brief but regular stops to rest, which appears to be her strategy to manage her lung disease.[107]
[105] E5, page 15.
[106] E5, page 17.
[107] Ibid, page 16.
With regard to transfers, Ms Houston reported Mrs Adamczewski:
(a)was observed to transfer from sitting to standing without assistance;
(b)reported she transfers in and out of bed using an overhead monkey bar; and
(c)reported she is independent with toilet transfers:
[Ms Adamczewski is able to] steady herself on the vanity unit as required. Due to the compact space within the bathroom, there is no issue with safety or falls risk as the bathroom has also been modified with a level entry shower, as well as a shower stool and handheld shower on rail in place.[108]
[108] Ibid, page 8.
On Ms Ireland’s functional assessment, Mrs Adamczewski poses a medium fall risk.[109] Ms Ireland reported Mrs Adamczewski was assessed to be able to safely stand for less than 3 minutes, 3 times per hour over 8 hours and she was able to walk over even ground for limited periods throughout the day.[110]
[109] T32, folio 107.
[110] Ibid, folios 106 and 107.
Dr Hampton reported Ms Ireland’s assessment to be an accurate reflection of Mrs Adamczewski’s (then) current functional capacity. Dr Hampton subsequently reported:
[Ms Adamczewski] requires daily and constant help in all aspects of her daily functioning and care as evidenced by her functional capacity assessment.[111]
[111] T45, folio 150.
Dr Bak reported Mrs Adamczewski has a major issue with mobility,[112] and she “cannot do house chores such as cooking and washing mainly because she cannot stand for a prolonged time”.[113] This is consistent with the report of Dr Rybak.[114]
[112] A Documents, A12, page 9.
[113] A Documents, A12, page 6.
[114] T34, folio 124.
Considering and weighing all of the relevant materials, Mrs Adamczewski’s neurological and physical permanent impairments reduce her functional capacity for mobility. Her restricted mobility, using one or two walking sticks, and her restriction of posture and movement as identified by Ms Ireland and Ms Houston, are marginally within the terms of s 5.8(a) and (b) of the Rules. This in primarily because, while Mrs Adamczewski is able to move around her house and the community (albeit with some difficulty), her functional capacity to stand, reach and bend is, on Ms Ireland’s assessment (which is not contraindicated by Ms Houston’s assessment), substantially reduced and, in consequence, she usually requires assistance from other people to undertake ordinary household activities such as cooking, cleaning and washing clothes. Additionally, Mrs Adamczewski requires equipment to transfer in and out of bed (presently an overhead monkey bar which Dr Bak reported to be unsuitable – the doctor recommended an adjustable bed) and she requires a modified bathroom (noting the modifications reported by Ms Houston[115]).
[115] E5, page 8.
As will appear, even if the threshold in s 24(1)(c)(iv) was found not to be met, no different result would be obtained as I am satisfied Mrs Adamczewski meets other criteria sufficient to qualify for access.
Self‑care
For the purposes of s 24(1)(c)(v), it is appropriate to adopt the meaning given to self-care in the Agency’s policy:
Self-care: means activities relating to person care, hygiene, grooming and feeding oneself, including showering, bathing, dressing, eating, toileting, grooming, caring for own health care needs;
On the evidence of Ms Ireland, Ms Houston, Dr Hampton, Dr Bak and Dr Rybak, Mrs Adamczewski usually requires assistance with aspects of dressing and showering.
While it can be accepted Mrs Adamczewski has strategies for dressing in loose clothing and showering on days when she does not have a support worker to assist, she is unable to undertake these activities effectively or completely without assistance. Ms Houston reported Mrs Adamczewski requires assistance to put on or to take off tight or wet items of clothing, such as her bathing costume (necessary for hydrotherapy) or T-shirts affected by perspiration (Mrs Adamczewski has elevated perspiration in consequence of her medical conditions).[116] Furthermore, on Ms Ireland’s report, Mrs Adamczewski is able to attend to her own dressing with great difficulty and requires assistance with this: she is unable to dry her lower legs below the knees or her back, she is unable to cut her toe nails on either foot or to do up or undo her brassiere, and she struggles to get her left leg into trousers and to pull up the back of her underpants.[117]
[116] E5, page 20.
[117] T32, folios108-109.
Dr Hamilton’s evidence supports Ms Ireland’s assessment, which I accept. Ms Houston appears to have assumed Mrs Adamczewski’s functional capacity for self-care might be increased with further hydrotherapy and a different kind of pain management program. The available evidence does not suggest this is probable. The evidence establishes Mrs Adamczewski is unable to participate in hydrotherapy with support and assistance, and there is no specialist evidence she would benefit from a further pain management program.
Overall, making a practical judgment, as a result of her permanent neurological and physical impairments, I am reasonably satisfied Mrs Adamczewski is unable to participate effectively or completely in self-care activities without assistance from other people.
For this reason, I am satisfied that the terms of s 5.8(b) of the Rules are made out in respect of self-care and the threshold in s 24(1)(c)(v) is met.
Self‑management
The available evidence does not support a finding Mrs Adamczewski has a substantially reduced functional capacity to undertake self-management as a result of her permanent impairments.
By Mrs Adamczewski’s own account, as countersigned by Dr Hamilton, she is capable of planning and managing her day-to-day activities, although Mr Adamczewski manages her appointments, accounts and most business arrangements.[118]
[118] T46, folio 165.
Dr Rybak reported Mrs Adamczewski does not require self-management assistance, although: “the chronic pain makes her depression and anxiety worse”.[119]
[119] T34, folio 124; A Documents, A03, page 1 refers.
Even though it may be accepted Mrs Adamczewski’s cognitive impairment adversely affects her memory and concentration, the present evidence does not establish her functional capacity to undertake self-management is substantially reduced.
I am satisfied the threshold in s 24(1)(c)(vi) is not met.
Impairment affecting capacity for social or economic participation
There is no controversy, correctly in my assessment of the available materials, that Mrs Adamczewski’s permanent impairments affect her capacity for social and economic participation.
There is simply no basis for any different finding.
It follows that s 24(1)(d) of the NDIS Act is satisfied.
Requirement for lifelong support under the Scheme
The final consideration under s 24(1)(e) is whether Mrs Adamczewski is likely to require support under the NDIS for life. Adopting the formulation of the statutory task discussed in Foster (at paragraph [97]) this consideration involves an assessment of the likely duration of her requirement for support under the NDIS in respect of the functional effects of permanent impairments I have discussed above should access be granted as a participant.
In this context, it is not necessary or appropriate to make an assessment of the nature or extent of assistance the person may require under the NDIS, as such matters are relevant only after the person has been found to be a participant.[120] For the same reason, it does not involve consideration of potential supports the person may require in the future with reference to the terms of s 33 or the factors set out in s 34 of the NDIS Act.
[120] Mulligan at [34].
The available evidence is Mrs Adamczewski will require support under the NDIS in respect of the substantial reduction in her functional capacity for mobility and self-care as result of her permanent physical and neurological impairments on her functional capacity. This is so even though she obtains supports, in form of equipment and carer assistance on 3 days each week, from sources outside the NDIS. She relies on transport, domestic and personal care support provided by Mr Adamczewski which, on the uncontested evidence, he may no longer be capable of providing on grounds of ill-health.
In these circumstances, I am satisfied it is likely Mrs Adamczewski will require support under the NDIS for her lifetime.
It follows that s 24(1)(e) is satisfied.
Conclusion
Mrs Adamczewski has physical, neurological, cognitive and psychiatric impairments that are permanent. Her physical and neurological impairments substantially reduce her functional capacity to undertake activities listed in s 24 (1)(c)(iv) and (v) of the NDIS Act, and adversely affect capacity for social and economic participation. She is likely to require lifelong support under the NDIS.
It follows Mrs Adamczewski satisfies the disability requirements under s 24 of the NDIS Act.
As there is no controversy, correctly in my assessment, that she meets the age requirements and the residence requirements, for the purposes of s 20 of the NDIS Act I am satisfied she meets the access criteria set out in s 21 of that Act.
For these reasons, the decision under review which refused access to the NDIS must be set aside.
Decision
The decision under review is set aside and, in substitution, the Tribunal decides Mrs Adamczewski meets the access criteria under s 20 of the NDIS Act.

I certify that the preceding 123 (one hundred and twenty-three) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member.

..............[SGD]............................
Associate
Dated: 24 May 2023

Hearing held on the papers

Date final submissions received

23 February 2023

Representative for the Applicant:

Mr N Adamczewski

Solicitor for Respondent:

Ms Claudia Crawley, HWL Ebsworth Lawyers

[2023] AATA 1325

24 May 2023

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Standing

Hearing held on the papers
Date final submissions received	23 February 2023
Representative for the Applicant:	Mr N Adamczewski
Solicitor for Respondent:	Ms Claudia Crawley, HWL Ebsworth Lawyers