Arnel and National Disability Insurance Agency - [2019] AATA 4778

Arnel and National Disability Insurance Agency [2019] AATA 4778 (18 November 2019)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Numbers: 2018/0100
Re:VERONICA ARNEL
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:R CAMERON SENIOR MEMBER
Date:18 November 2019
Place:Melbourne

The reviewable decision is set aside and in substitution it is decided that the Applicant meets the access criteria under section 24 of the National Disability Insurance Scheme Act 2013.
.....................[sgd]..................................................
R CAMERON SENIOR MEMBER
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – access - Complex Regional Pain Syndrome – whether impairments result in substantially reduced functional capacity – mobility- self-care – social interaction – decision set aside and substituted
Legislation
National Disability Insurance Scheme Act 2013
National Disability Insurance Scheme (Becoming a Participant) Rules 2016
Cases
Mulligan v NDIA (2015) 233 FCR 201
REASONS FOR DECISION
R CAMERON SENIOR MEMBER
THE REVIEWABLE DECISION.

Ms Veronica Arnel (“the Applicant”) seeks review of a decision made by a Delegate of the Chief Executive Officer of the National Disability Insurance Agency (“the Respondent”) made on 8 December 2017 following an Internal Review Request, which determined that she did not meet the access criteria for the National Disability Insurance Scheme (“NDIS”) (“the reviewable decision”).
THE HEARING EVIDENCE AND MATERIAL BEFORE THE TRIBUNAL.
The Applicant appeared for herself at the hearing; Ms O’Gorman of Counsel appeared on behalf of the Respondent.
There was both oral and documentary evidence before the Tribunal.
The following documents were received in evidence:
(a)A witness statement made by the Applicant[1];
(b)The T-documents;[2]
(c)The supplementary T-documents;[3]
(d)A report of Occupational Therapist X dated 8 February 2019;[4] and
(e)A bundle of documents extracted from medical records produced to the Tribunal on summons.[5]
[1] Exhibit "A 1".
[2] Exhibit "R 1".
[3] Exhibit "R 2".
[4] Exhibit "R 3".
[5] Exhibit "R 4".
The following witnesses gave oral evidence from either the witness box, by telephone or video link:
(a)The Applicant;
(b)Dr Black, a psychiatrist;
(c)Dr Chandler, a specialist pain medicine physician; and
(d)Occupational Therapist X, an occupational therapist.
Additionally, the Respondent filed a Statement of Position.
THE ISSUES TO BE DETERMINED.
The Tribunal considers that the issue to be determined in this application is whether the Applicant “meets the access criteria” for becoming a participant under the National Disability Insurance Scheme Act 2013 (“the Act”) by satisfying the:
(a)disability requirements under section 24; or
(b)early intervention requirements under section 25.
THE ACCESS CRITERIA.
Section 9 meeting the access criteria.
Section 9 of the Act (“Definitions”) prescribes that an applicant “meets the access criteria” if the requirements of section 21 of the Act are satisfied. Section 21 (1) of the Act need not be reproduced in full. However, it specifies the requirements of the access criteria that must be satisfied namely age,[6] and residence,[7] and disability (“the disability requirements”) or early intervention[8] (“the early intervention requirements”).
[6] Section 21 (1) (a).
[7] Section 21 (1) (b).
[8] Sections 21 (1) (c) (i) and (ii).
The Respondent concedes that the Applicant meets all of the access criteria, except those identified in section 21 (1) (c) (i) and (ii) of the Act, being the disability requirements under section 24 and the early intervention requirements under section 25.[9]
[9] This concession is made in paragraph 11 of the "Respondent's Statement of Position" dated 5 August 2018 (hereinafter referred to as the "Respondent's Statement of Position"). It is also acknowledged in paragraphs 19, 20 and 21 of that document that the Applicant satisfies the age and residency requirements of the access criteria specified in sections 22 and 23 of the Act.
Section 24 the disability requirements.
Whilst the Respondent accepts that the Applicant meets the disability requirements in section 24(1) (a) and (b), it contends that the Applicant does not satisfy the disability requirements in section 24 (1) (c), (d) and (e) of the Act.
Section 24 of the Act will not be reproduced in full. It specifies what an applicant must establish to meet the disability requirements. The effect of the section may be summarised as requiring an applicant to establish the following:
(a)that they have a disability 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 (communication; social interaction; learning; mobility; self-care and self-management); and
(d)the impairment or impairments affect a person’s capacity for social or economic participation; and
(e)the person is likely to require support under the NDIS for the person’s lifetime.
Section 25 early intervention requirements.
Section 25 similarly specifies several matters that an applicant is required to satisfy to meet these requirements. The relevant portions may be summarised in the following terms and require the applicant to demonstrate:
(a)one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent; or
(b)has identified impairments attributable to a psychiatric condition likely to be permanent;
(c)the CEO of the Respondent is satisfied that provision of early intervention supports for such person is likely to benefit them by reducing their future needs for supports in relation to the disability; and
(d)that the provision of early intervention supports for the person is likely to benefit the person in several respects including:
(i)mitigation of the impact of the impairment upon their functional capacity 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 such person, including through building the capacity of the person’s carer.
The Rules.
The National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (“the Rules”) are also relevant to this application. The Rules are a subordinate instrument which are about becoming a participant in the NDIS.[10]
[10] Rule 1.2 of Part 1 of the Rules “What these Rules are about.”
Of particular relevance is Part 5 “When does a person meet the disability requirements?” The application and construction of Rule 5.8 “When does an impairment result in substantially reduced functional capacity to undertake relevant activities?” occupied significant consideration in the course of the hearing of this application. The contents of Rule 5.8 need not be reproduced in full. However, it provides that an impairment results in a substantially reduced functional capacity of the person to undertake one or more of the relevant activities (see Rule 5.1 (c)) if its result is that the person:
(a)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) or home modifications; or
(b)usually requires assistance (including physical assistance, guidance, supervision or prompting) from others to participate in the activity, perform the tasks or undertake the actions referred to; or
(c)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.
Mortimer J in Mulligan v NDIA[11] observed that Rule 5.8 defines the circumstances in which a person must be taken to have substantially reduced functional capacity for the purposes of section 24 (1) (c) of the Act. Rule 5.8 operates expressly by reference to each of the activities in section 24 (1) (c) (i) to (iv). She further observed that the task cast upon the decision-maker is to look as a matter of factual assessment, at the outcome or effect of a person’s impairment on the performance of each, and any, of those six activities. If the outcome or effect is any of the outcomes or affects specified in Rule 5.8 (a), (b) or (c) the deeming effect of Rule 5.8 applies.
[11] (2015) 233 FCR 201 at [66] and [67].
Mortimer J in Mulligan also held that under the scheme, it is sufficient for a person with an impairment to have a substantially reduced functional capacity in relation to one activity. That recognises, as she observed, “the spectrum of impairments which can be experienced by persons with disabilities”. Further, it accommodates different abilities within one person in terms of his or her daily activities.[12]
[12] Mulligan at [56].
Paragraph 8.3 of the NDIS Operational Guidelines: “Substantially reduced functional capacity to undertake relevant activities”, amongst other things, provides that access to the NDIS is based on a functional, practical assessment of what a person can and cannot do.[13]
CONSIDERATION.
[13] The Guidelines refer to the often cited passage from Mulligan at [57] which was also referred to in the Respondent's Statement of Position at paragraph 37. The Guidelines can be found at Applicant’s conditions.
The Applicant has been diagnosed with Complex Regional Pain Syndrome (“CRPS”). This is accepted by the Respondent.[14]
[14] Paragraph 25 of the Respondent’s Statement of Position. It was also conceded by the Respondent's counsel during the course of the hearing of this application.
It is useful to briefly explain what CRPS is together with its symptoms. Such explanation should also refer to the evidence concerning the specific symptoms suffered by the Applicant. The evidence of Dr Chandler, her treating pain management physician, and Dr Black, her treating psychiatrist, as well as some of the documentary evidence before the Tribunal is of assistance in understanding the nature of this syndrome.
CRPS was described to the Tribunal as a relatively rare condition in which the pain signalling mechanisms of the body start to operate in a highly abnormal fashion. Frequently, this occurs as a result of some other intervention. Dr Chandler explained the phenomenon in terms of a minor injury leading to dramatic changes in the nervous system. In the case of the Applicant it was after minor surgery under general anaesthetic in November 2011 on her right thigh to have two angiolipomas removed.[15] The pain experienced by the Applicant started in her right side and kept spreading. It was a gradual progression. Dr Black described the syndrome as the pain system “being rewired”. Frequently, a person suffering from this syndrome will explain that all of their limbs hurt.
[15] The report of Dr Hodson, a Lymphoedema Doctor and Dr Lau a Consultant Neurologist, documents “ST 3” and “ST 4” of the Supplementary T documents are referred to.
It was, in one of Dr Black’s reports, described as being a peculiar aspect of this syndrome for the tendency of the “map” of body parts to be rewritten, resulting in the sufferer having a painful limb which they feel somehow doesn’t belong to them. He described how day-to-day life touches are converted into pain. For example, bathing can cause a burning feeling. Dr Chandler put it in terms that things that wouldn’t become painful to do previously do become painful. He stated that pain signals become exaggerated.
The Applicant gave evidence having a shower was like “washing under razorblades” and caused her “excruciating pain, due to sensitivity.” The “razor blade effect” travels throughout all over her body. After a shower she has to wait for the pain levels to reduce which takes several hours. She also experiences many falls in the shower.
Her evidence further revealed that the pain she experiences can be caused by an array of daily experiences such as her skin coming into contact with clothes, shoes or even the slightest of touches. She gave compelling evidence that contact which previously would normally have been taken for granted, or simply not been noticed, now causes her excruciating pain. This evidence was not challenged and it is accepted by the Tribunal.
A further symptom of CRPS suffered by the Applicant is that she walks with a permanent limp due to her right leg being unable feel the floor or surface under it, so she uses her left leg to keep steady. As she described, it is like she is walking on one leg. It is also difficult for her to coordinate, or concentrate on what her limbs are doing. The consequences of this are that she experiences what she described as many dangerous falls, dropping items that she holds and losing a sensory capacity to assess the temperature of water on her skin. She stated that she is unable to climb stairs as she cannot make it to the top. Descending a staircase is also difficult because of her inability to perceive any feeling under her feet. Once again, this evidence is accepted by the Tribunal.
This is a phenomenon that was confirmed by Dr Chandler in his evidence. The sufferer may struggle simply when their skin touches fabric. Similar experiences can occur with temperature changes. The “rewiring” that takes place is not understood medically. It causes regular events or things to turn into noxious stimuli.
Another feature of the Applicant’s CRPS is that she has a painful limb and is unable to register it moving unless she looks at it. If she does not look at the limb whilst she is walking for instance, it is likely to result in a fall. Dr Chandler in particular corroborated the Applicant’s evidence that she does suffer frequent falls. She stated that her legs “go from underneath me. The brain doesn’t do it.” In his evidence, Dr Chandler confirmed that sufferers of this syndrome lose control of their limbs. This even occurs when the Applicant uses handrails which have recently been installed at her residence; he said she can fall at any time. There is a change in the brain so that at times the brain isn’t able to understand that a limb is there and cannot control it. Dr Chandler in one report observed that the CRPS that she suffers from has caused a brain function which has led to what he described as “a pseudo-neglect, similar to that seen in a stroke.” Such consequences impairs her ability to have a normal gait causing increased frequency of falling, and thereby impairing her ability to function outside of her home.[16]
[16] The report of Dr Chandler of 22 August 2017, document “T 7” of the T documents is referred to.
Also, the Applicant stated that she is sleep deprived as a result of the pain throughout the night and is in pain every second of the day.[17] She is not highly medicated for sleep due to the negative side effects that most medications have caused her in the past. The Applicant’s evidence is accepted by the Tribunal.
[17] Reference to the Applicant suffering from poor sleep is also found in the report of Dr Chandler of 21 May 2015, document "ST 14" of the Supplementary T documents.
There is evidence both from the Applicant and in the medical reports[18] that she suffers from chronic pelvic pain syndrome as well as interstitial cystitis (Painful Bladder Syndrome[19]). The issues with her bladder have led to urinary incontinence which has caused her much difficulty. Their evidence is that this has caused her to have no control over her bladder which results in her wetting herself. She contends that CRPS amplifies her pain levels in that region. A manifestation of this problem is that she is afraid to wash and has difficulties washing her private areas.
[18] The contents of a report from Dr Kathryn McLeod document "ST 16" in the ST documents are referred to for further details concerning the Applicant's bladder condition. The Applicant also gave evidence that she is due to see an urologist again in November to consider ongoing treatment which may include permanent use of a catheter, additional Botox injections in the bladder region to assist with pain, and pain management. The Tribunal has to conclude that it is a distressing and debilitating condition.
[19] Dr Chandler in his report of 22 August 2017, document "T-7" of the T documents describes this condition as a "coexisting disease" with CRPS.
The Applicant has been under the treatment of Dr Chandler for seven years and Dr Black also for seven years. Her general practitioner Dr Mohammadsaeedi has treated her for eight years.[20]
[20] Several of his records, reports and other documents were in evidence before the Tribunal.
As part of a continuing treatment program for her CRPS the Applicant receives Botox injections into the front and back of her right thigh, right calf muscle and her groin every 10 weeks. These injections are administered under a general anaesthetic usually in a hospital. She is also admitted to the Geelong Epworth Hospital for regular ketamine infusions approximately every five to six weeks.
Another feature of her pain management program prescribed by Dr Chandler is the surgical implantation of a spinal cord stimulator. The device is apparently designed to target specific areas of pain by delivering a pulsed current to the spinal cord which interrupts pain signals being sent to the brain. The Applicant has found that this measure has provided some relief to her from the pain she experiences.
The evidence given by the Applicant as well as Dr Chandler, was that these measures do assist in some level of pain management and also enable her to have some improvement in her quality-of-life. Without these treatment measures Dr Chandler opined that the Applicant’s CRPS would progressively deteriorate and require increasing supports with mobility, including aids such as crutches and wheelchairs.
In his evidence Dr Black confirmed that the Applicant struggles to maintain her mobility. He confirmed that she is in grave danger of ending up in a wheelchair. He also observed that the Applicant’s instincts are to stay in bed in order to protect her painful limb, which is unwise as it will lead to, or perhaps accelerate, the progress of her immobility. Both he and Dr Chandler emphasised the need to encourage the Applicant to try as much as possible to walk every day, even if the timeframe is comparatively short. Dr Chandler observed that in most cases she is only able to walk for intervals of approximately three minutes.
There was no suggestion that the Applicant exaggerated or embellished in giving her evidence, and indeed the medical practitioners agreed that she was not a malingerer or inventing the experience of pain that she described to the Tribunal, and had described to them. The experience of the Applicant was described by Dr Lau, a Consultant Neurologist, as “now constant and completely disabling”.[21] Dr Black in both his oral evidence and in a report in evidence[22] described the Applicant as suffering from a “severe” case of CRPS. As noted earlier the Tribunal accepts the Applicant’s evidence concerning the suffering and symptoms she experiences as a result of CRPS.
[21] The report of Dr Lau is dated 15 March 2012 and is document "ST 4" of the Supplementary T Documents.
[22] Document “ST 21” of the Supplementary T documents.

The Respondent concedes that the CRPS condition suffered by the Applicant constitutes an impairment to a sensory function satisfying section 24 (1) (a) of the Act.[23]
[23] Paragraph 26 of the Respondent's Statement of Position.
Additionally, the Respondent also concedes that the CRPS condition suffered by the Applicant is permanent within the meaning of section 24 (1) (b) of the Act.[24]
[24] Paragraphs 30 to 32 of the Respondent's Statement of Position.
Of the activities specified in section 24 (1) (c) of the Act the Applicant argued that the CRPS condition from which she suffers substantially reduced her functional capacity to undertake self-care, social interaction and mobility. This contention was firmly contested by the Respondent both in its Statement of Position and throughout the course of the hearing, including its opening and closing submissions.
The point of differentiation between the parties on this element of section 24 (1) (c) predominantly emerged from the difference in the evidence given by the Applicant’s treating pain specialist Dr Chandler, her treating psychiatrist Dr Black and the Occupational Therapist retained by the Respondent Occupational Therapist X.
Mobility.
The matters concerning the Applicant’s mobility canvassed earlier in these reasons are referred to and repeated.
Under the NDIS Operational Guidelines, mobility is described as being the ability of a person to move around the home, 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.
Dr Chandler contended that the Applicant’s mobility is extremely limited. He relied upon several grounds in reaching this conclusion. He stated that her exercise tolerance was limited. In one report he said it was for three minutes which limits her capacity to get outside the house.[25] At the Hearing, he stated that he had not conducted a formal functional assessment of the Applicant but had observed her many times attempting to walk around hospital wards over distances of approximately 200 metres.
[25] The contents of the report of Dr Chandler dated 22 August 2017, document “T 7” of the T documents is referred to.
Dr Chandler particularly emphasised, in both his reports and his evidence from the witness box, that he was particularly concerned about the falls, and frequency of falls, that the Applicant has experienced. These falls also took place after she had modifications made to her house including, as noted earlier, the installation of handrails. Additional emphasis was placed by him on the Applicant’s impaired ability for a normal gait and also the difficulties that she has showering. The extremely high risk of falls and their consequences for the Applicant are a serious limitation on her mobility and have resulted in a substantially reduced capacity on her part to undertake this activity.
Another factor that Dr Chandler emphasised in terms of mobility was the limited options she has for transport. It was contended that she could not use public transport. The Applicant informed Occupational Therapist X that she did not access public transport including a bus service that runs immediately outside of her house because she cannot handle confined spaces and stated that she cannot breathe when using public transport (this observation was not explored in cross-examination or further in evidence). Once again driving to Geelong (where both Drs Chandler and Black have their practices and the hospital to which she is admitted for her ketamine and Botox treatments is situated) in particular, is difficult at the very best. He described it as a burden which is preventing her from receiving the level of care that she needs to maintain her independence. These matters led him to believe that the Applicant’s impairment resulted in a substantially reduced functional capacity to undertake mobility within the meaning of section 24 (1) (c) (iv) of the Act.
The Applicant stated that she can usually drive an automatic vehicle. She says she feels unsafe driving a manual car. This is because she frequently gets inconsistent messages to her right leg which operates the accelerator and the brake (whether she drives an automatic or a manual vehicle). She says by reason of this, she can only drive for short distances. Longer drives, from her home in Ballarat to Geelong or Melbourne, cause painful flare-ups and she loses the capacity to properly use her right leg and foot. She also gave evidence that when driving longer distances she has to stop frequently to enable the pain in her right leg and foot to become slightly more manageable. She described the experience as exhausting. The Tribunal accepts this evidence of the Applicant.
Occupational Therapist X expressed an opinion in her report that there was no functional impairment related to the Applicant’s diagnosis of CRPS restricting her from driving her partner’s manual transmission vehicle. She also suggested that the Applicant replace her partner’s car with an automatic vehicle, or take lessons with a driving instructor in her partner’s vehicle to improve her confidence in operating this type of car.
The Tribunal accepts the Applicant’s evidence concerning her capacity to drive. It cannot accept the evidence of Occupational Therapist X that there is no functional impairment restricting the Applicant from driving her partner’s manual transmission vehicle. The evidence of Dr Chandler, an experienced specialist pain management physician, that CRPS causes a change in the brain so that at times the brain isn’t able to understand that a limb is there and cannot control it, is preferred. Given the pain that she suffers in her right leg, which of course operates the brake and the accelerator, there is a substantial impairment to her capacity to drive. Particularly so, if the brain is unable to control her right leg and foot. This also needs to be viewed with a degree of realism. If the Applicant were to drive a manual vehicle suffering from this syndrome, there is a distinct and real probability that she may not be able to properly or effectively, control the vehicle which poses a risk to her, any passengers in her vehicle, other road users, and potentially pedestrians nearby. This risk is obviously heightened if she undertakes a longer journey such as one from Ballarat to Melbourne or Geelong (the journeys to Geelong being for vital medical treatment). There is a risk present whether she drives a manual or an automatic vehicle. Therefore, it must be concluded that the effect of her CRPS on her capacity to drive results in a substantially reduced functional capacity to undertake mobility within the meaning of section 24 (1) (c) (iv) of the Act.
The evidence of the Applicant’s experts concerning mobility was tackled by the Respondent in several ways.
The starting point was that the Respondent contended that the Applicant’s experts had not conducted a functional assessment. These experts readily conceded this point. Indeed, Dr Chandler said in cross-examination that to do functional assessments of the patient was not his role, and that he had not undertaken a formal functional assessment of the Applicant. He observed that his reports, as well as those of other medical practitioners or allied health care professionals, relied on by the Applicant had not been proffered as part of a functional assessment.
This approach by the Respondent presupposes that it is not possible for a decision maker to determine whether a person has a substantially reduced functional capacity in relation to one of the relevant activities without a formal functional assessment being conducted by a suitably qualified healthcare professional.
The Tribunal cannot agree with this contention. It must be apparent to specialist medical professionals such as Dr Chandler and Dr Black, who it will be recalled have both treated the Applicant for over seven years, whether she has a substantially reduced functional capacity to undertake one or more of the relevant activities as contemplated by Rule 5.8.
Dr Chandler sees the Applicant every five to six weeks for the administration of ketamine infusions, and every 10 weeks for Botox injections. This is a high level of frequency. It provides him with the opportunity to observe the Applicant’s impaired ability to walk even if it is a comparatively short distance in a hospital ward, approximately 200 metres). It should be apparent to him by means of such observation during his consultations whether the Applicant can or cannot walk properly. Such an observation can be relied upon by the Tribunal stepping into the shoes of the decision-maker to determine whether there is a substantially reduced functional capacity within the meaning of section 24 (1) (c) (iv) and Rule 5.8 (not to mention paragraph 8.3 of the Guidelines.)
Dr Black stated that the Applicant struggles to maintain her mobility. He also sees the Applicant regularly and gave evidence of what he has observed of the effects of CRPS on her. He readily conceded that he has not undertaken a functional assessment of the Applicant and that he is not an expert on functional assessments. However, he did emphasise the fact that he had spent many hours talking with the Applicant about how her condition impairs her functional capacity and that he had no reason to doubt what she said. He also gave a detailed description of how CRPS has caused the Applicant to experience what he described as “pseudo neglect” where she has painful limbs and is unable to register them moving. He gave a practical demonstration of this phenomenon as suffered by the Applicant from the witness box. If she wiggles both hands she can move them, if she shuts her eyes only one of them keeps moving. She is unable to register if they are moving or not. She would say both hands are moving when one has stopped. Dr Black also stated that all of her limbs hurt, even light touches are converted into pain. This prompts her to sit still which only makes her condition worse. This is evidence of restrictions on her mobility.
Having heard the evidence of Dr Chandler and Dr Black, and as a matter of logic, they could reach the appropriate conclusion as to the Applicant’s substantially reduced functional capacity from making their own observations, taking a patient history and treating her in the time that they have.
The Respondent then relied upon the provisions of the report of Occupational Therapist X and what she observed that the Applicant:
(a)is able to walk around the house including stairs with no rails;
(b)is able to stand for approximately five minutes in each room;
(c)is able to walk at least 400 metres on a level surface;
(d)is not hindered in her capacity to drive by reason of her CRPS; and
(e)would not in the event that her recommendations concerning the development of an exercise program by an exercise physiologist or physiotherapist were adopted, require disability specific supports relating to mobility now and in the future.
Clinical records that were produced in cross-examination by Ms O’Gorman and put to the Applicant were also relied upon by the Respondent. Those records noted that:
(a)she is able to walk for 30-60 minutes at a time, do gardening at home and look after her grandson;
(b)she was feeling really well, has increased activity levels at home-walking on the property, gardening lifting and driving a forklift; and
(c)that she has limited transport options to and from medical appointments and she advised she still drives but prefers not to drive.
In cross-examination the Applicant did not quarrel with the entries contained in such clinical records when they were put to her, but stated that those observations were accurate at the time the entries were recorded, not now, and emphasised the position that she currently faces. Particularly, she stated that she can be out for 45 minutes to one hour, but requires frequent breaks to recover during the course of that time span. The Tribunal accepts this explanation from the Applicant and repeats lest it needs to be said, that it found the Applicant to be a credible witness. She did not exaggerate or embellish her evidence.
Another limb relied upon by the Respondent contended that the Applicant’s medical experts’ opinions should not be accepted. Particularly that of Dr Chandler, as he is said to offer no opinion as to whether the difficulties that the Applicant’s experiences concerning social interaction, mobility and self-care may be overcome following the implementation of recommendations in Occupational Therapist X’s report.
Concerning mobility, the Applicant readily conceded in cross-examination several matters that were observed in Occupational Therapist X’s report.[26] They can be briefly summarised. She conceded that she went shopping to the Aldi supermarket with her partner once per week, which she estimated takes 45 minutes to one hour in total with rests every five minutes. Such rests she stated were undertaken by standing still and looking at goods that she may intend to purchase on the supermarket shelves. Alternatively, she would rest by means of the assistance provided by her partner, also holding onto and gaining support from a supermarket trolley. She also conceded that she had the capacity to walk at least 400 metres on a level surface before needing a break, and that this capacity may increase when she is going through a “good period” and/or in cooler environments. She also conceded that she can walk further when she has rest breaks for a few minutes after walking 400 metres.
[26] Ms O’Gorman specifically put to the Applicant in cross-examination several of the matters identified in Part 4 of Occupational Therapist X’s report under the heading of "Mobility". They are to be found in parts of the last paragraph on page 21 and the first three paragraphs of page 22 of that report.
Occupational Therapist X also observed what she described as the Applicant’s “mildly antalgic gait”. She observed that this is a way of walking that develops so as to avoid pain. She also acknowledged that the Applicant reported a history of falls which was said to relates to a disconnect between the signal sent by her brain and the action her feet performed. This requires the Applicant to pay conscious attention when taking each step. The need to concentrate in this way caused her fatigue and did contribute to the falls that she had experienced in the past. This observation recorded by Occupational Therapist X appears to be consistent with both the evidence of the Applicant and her treating doctors (particularly Dr Chandler) to the Tribunal, noted earlier in these reasons.
These observations made by Occupational Therapist X and confirmed by the Applicant, demonstrate that she cannot walk very far without taking a rest, and also without experiencing significant pain levels; not to mention the risk of fatigue and consequent falls, and lack of coordination of her limbs. It seems difficult to conclude other than that these characteristics demonstrate that she is unable to participate effectively, or completely, in the activity of mobility, in this case walking, or to perform tasks or actions required to undertake or participate effectively in the sense contemplated by Rule 5.8. It does therefore, enable the Tribunal to conclude that with respect to mobility the Applicant’s impairment does result in a substantially reduced functional capacity to undertake walking over comparatively short distances and undertaking tasks such as shopping without frequent breaks.[27] This fact also enables the Tribunal to conclude that the Applicant has a substantially reduced functional capacity in relation to mobility within the meaning of section 24 (1) (c) (iv) of the Act.
[27] The Applicant gave evidence and it was also explored in cross-examination, that she was able to drive unassisted for a short distance (being a three minute drive and sometimes she takes a taxi using a taxi card) to a nearby "IGA" grocery. She stated that she only attended the IGA when she made small purchases in between her visits to the ALDI supermarket, which it will be recalled from the consideration of the issue of social interaction last between 45 minutes and one hour. She only stays at the IGA for a “few minutes” each visit. The Tribunal considers that the visits to the IGA can be treated separately and their short duration is consistent with the evidence she gave about the limited level of endurance she has to undertake such tasks before a break or rest is necessary.
Occupational Therapist X suggested that the Applicant may benefit from an assessment by an exercise physiologist and/or a physiotherapist under a Chronic Diseases Management Plan to devise an exercise program that will build her endurance, prevent further deconditioning and perhaps provide additional compensability strategies to prevent falls when mobilising in the future.
Several things should be noted about this observation. Firstly, Occupational Therapist X only stated that this may benefit the Applicant. She goes no further than this. Secondly, and more critically, it seems to the Tribunal from an analysis of the material before it, particularly the evidence of Dr Chandler, that he and her other treating health care professionals have been doing this with the implementation of a management and treatment plan of the Applicant’s CRPS, including an exercise regime to improve her mobility over many years. This is evident (amongst others) from:
(a)the report of the physiotherapist Lucy Schipanski of 28 April 2014;
(b)Dr Chandler’s report of 21 May 2015 where he states that amongst other things, they have been developing more exercises;
(c)Dr Chandler’s report of 23 July 2015 where he states that the biggest aim was to have the Applicant back walking every day and have that to be increased over subsequent weeks;
(d)The report of Dr Black of 10 August 2017; and
(e)Dr Chandler’s report of 22 August 2017 where he refers to the rehabilitation model undertaken by the Applicant which included an exercise program.
Dr Chandler also gave evidence of the involvement of the Applicant with an occupational therapist and physiotherapist during her inpatient stays in hospital during which time her treatment plans were as he described it “worked on”. The Applicant was not referred to them as an outpatient. The inpatient involvement with the occupational therapist and physiotherapist included working on a plan developed by them during her admission and used by her on release. Given the frequency of her admissions they were further worked on and adapted during her subsequent admissions. Dr Chandler is an experienced and highly qualified doctor and pain management physician. The Tribunal does not see any reason to believe that his evidence and recommendations (together with the treatment plans of the occupational therapist and physiotherapist) are not appropriate or otherwise properly made. It appears that these steps have been designed by him and more probably than not address most, if not all, of the very matters raised in Occupational Therapist X’s report.
It should be recalled that the Applicant has been treated by Dr Chandler for over seven years. His evidence was that he sees her approximately every three weeks. He attends and treats her when she is admitted to hospital every five to six weeks for the ketamine infusion. He may not have made a formal functional assessment in the strict sense, but his experience as a specialist medical practitioner, having observed the Applicant frequently over those seven years, and the treatment that he has given her, enables him to assess whether the Applicant has a substantially reduced functional capacity in relation to mobility and a substantially reduced functional capacity to undertake mobility within the meaning of section 24 (1) (c) (iv) of the Act as he has done.

Occupational Therapist X on the other hand in conducting her assessment came all the way from Queensland to Ballarat and spent approximately 1.5 hours with the Applicant conducting her assessment in a one off meeting. The Applicant also gave evidence, which the Tribunal accepts, that when Occupational Therapist X visited her she “wasn’t having a bad day”. If she had visited on a bad day the observations most likely would have been different. She followed this face-to-face meeting up with a telephone call the next day for approximately half an hour on the Applicant’s evidence largely confined to asking questions about her medication. Overall, particularly because of the length of time that both Dr Black and Dr Chandler have been treating the Applicant the Tribunal prefers their evidence.
The other matter that emerges when one considers Dr Chandler’s evidence and that of Occupational Therapist X is that as noted earlier, Dr Chandler emphasised the history or propensity of the Applicant to have falls. He emphasised in his evidence his concerns about the falls, the frequency of the falls and the fact that she can fall any time. He stated that he had observed her fall. Occupational Therapist X recorded this in her report also and did not essentially reach a different conclusion. Dr Chandler was not challenged in cross-examination about the falls that he expressed concern over. The Applicant was not questioned in cross-examination about her account of the falls that she experienced and the circumstances in which she did so. If the evidence was under any challenge one would have expected it to have been subjected to appropriate cross-examination. This also includes the evidence of the Applicant and Dr Chandler that she suffered falls even when handrails were available to her as in the existing circumstances where they were recently installed at her residence.[28]
[28] Occupational Therapist X recommended that what she described as "grab rails" be installed at the front and rear steps of the Applicant's home. It appears that she took some limited evidence of the Applicant's history of, or propensity to have falls. She does not recount in her report what that history was other than a most recent fall which had occurred two months prior to the production of her report. One would have thought it important to recount as accurately as possible, how many falls, where they occurred the circumstances of such falls and over what timespan. She did not record the fact, as was recounted by the Applicant to the Tribunal, that she has had falls whilst using the recently installed handrails at her residence. It was certainly not canvassed in cross-examination of the Applicant and/or her doctors who gave evidence. Dr Chandler in both his evidence in chief and cross-examination mentioned the fact of, and the frequency of falls by the Applicant as a dominant consideration. His evidence on this matter was not challenged.
The Tribunal accepts this evidence concerning falls. When one suffers falls as the Applicant has, it must at a practical level, restrict what the Applicant can do in terms of mobility. Falls because a leg and/or foot will not function, substantially reduces one’s mobility and certainly within the meaning of Rule 5.8 (a) renders the Applicant unable to participate effectively or completely in that activity and any activities dependent on it. The randomness or unexpected way these falls occur is also evidence of an inability on the part of the Applicant to participate effectively, or completely in the activity of walking which is a critical aspect of a person’s mobility. The Tribunal is able to rely upon these facts concerning falls to further conclude that the Applicant has a substantially reduced functional capacity in relation to mobility within the meaning of section 24 (1) (c) (iv) of the Act.
It was also not put to Dr Chandler in cross-examination that the Applicant might benefit from assessment by an exercise physiologist and/or physiotherapist under a Chronic Diseases Management Plan referred to earlier. Whilst one may speculate as to why this was not so, had it been put to him he would have had the capacity to express an opinion as to the recommendation of Occupational Therapist X concerning this matter and that would have assisted the Tribunal reach a conclusion on the topic, if otherwise it is contended that the Applicant has not undergone a similar program under Dr Chandler’s supervision (which it was not). It would have addressed the complaint made by the Respondent in its Statement of Position[29] as noted earlier that Dr Chandler offers no opinion as to whether the difficulties that the Applicant has could be overcome following the implementation of Occupational Therapist X’s recommendations. It should also be noted in response to this assertion that of course all of the reports of Dr Chandler, and in particular the report referred to in the Respondent’s Statement of Position, were compiled before the report of Occupational Therapist X. So therefore, whilst the contention in paragraph 46 of the Respondent’s Statement of Position that the report of Dr Chandler offers no opinion on the topic is in one sense true, in another it is not strictly correct. How could he have possibly offered such an opinion on the topic in his report compiled on 6 January 2018 when the report of Occupational Therapist X relied upon to contradict him in paragraph 46 of that document was prepared on 8 February 2019? The recommendations did not exist at the time he compiled his report.
[29] Particularly at paragraphs 46 to 48.
It should be mentioned that Occupational Therapist X was furnished with reports of the Applicant’s treating health care professionals that were subsequently tendered in evidence before the Tribunal. She did not in any way seek to tackle the contents of any of those reports either in her report, or in the witness box.
For these reasons the Tribunal finds that as a matter of factual assessment, the outcome or effect, of the Applicant’s impairment on her mobility means that the deeming effect of Rule 5.8 applies. This results in the Applicant having a substantially reduced functional capacity to undertake that activity within the meaning of section 24 (1) (c) (iv) of the Act.
Self-care.
Concerning self-care, the contents of paragraphs 21 and 28 above are referred to.
Under the NDIS Operational Guidelines, self-care is described as meaning activities related to personal care, hygiene, grooming and feeding oneself, including showering, bathing, dressing, eating, toileting, grooming and caring for own health care needs.
The Applicant gave evidence that having a shower causes her excruciating pain. In the course of cross-examination she stated that having a shower is quite upsetting, the pain is so harsh that she “would rather not shower than go through that torture”. The Tribunal accepts this evidence of the Applicant.
She also gave evidence that she has had many falls in the shower because she doesn’t get normal feeling under her feet which leads to her slipping. She stated that this had occurred on “numerous occasions”.
When Occupational Therapist X conducted her assessment, the Applicant did not have a handheld shower hose. She gave evidence that since the visit by Occupational Therapist X she has had her partner install a handheld shower hose and a better fitting stool. She stated that she can shower if the water is turned down to a very low pressure which enables her to quickly wash herself and get out. However, it is difficult for her to wash her private areas.
Occupational Therapist X, in addition to recommending the installation of a handheld shower hose and better fitting shower stool, recommended the use of what is described as a Confident Care Shampoo Cap. This shower cap apparently enables one to wash their hair without the use of water. It is apparently readily obtainable from well-stocked pharmacies or over the internet. Occupational Therapist X considers that if this approach is adopted it is part of a strategy to manage hair washing whilst minimising exposure to water on the Applicant’s body.
Occupational Therapist X acknowledged, or perhaps more accurately, considered in her report that the Applicant does have an intolerance of water on her skin. Particularly, this intolerance was manifested when she washes her hair which results in water washing over her entire body. This is consistent with the evidence of the Applicant together with Dr Chandler and Dr Black.
Occupational Therapist X’s report did not address the issue of the difficulty the Applicant incurs in washing her private areas due to her bladder disease. The Applicant said she is afraid of washing in that region. This issue is understandably difficult and a sensitive one for the Applicant.[30] This problem also is amplified, and must be considered in terms of, the evidence before the Tribunal noted previously, that she suffers from urinary incontinence. Presumably, in so suffering from this condition the necessity to bathe and shower would be more frequent than for a person who does not suffer from such a complaint. Such difficulty in showering or bathing as a result of the urinary incontinence coupled with the painful manifestations that she described in her evidence of her CRPS, would constitute a barrier to participating effectively or completely in that task or undertaking the action of self-care.
[30] The Tribunal refers to and repeats the matters noted in paragraph 28 above concerning this matter. It accepts the evidence of the Applicant concerning this condition and its effects upon her. Further, none of the evidence concerning this condition was challenged in cross-examination.
Once again it is considered that a degree of realism needs to be adopted in analysing whether or not the Applicant’s CRPS is an impairment that results in a substantially reduced functional capacity to undertake applicable self-care. When one considers the provisions of Rule 5.8 in determining whether there is a substantial reduction in functional capacity, and the words in Rule 5.8 (a), at the very least the inability to effectively and completely wash one’s private areas is captured by the language used in that Rule. Even though a Confident Care Shower Cap is an option which the Tribunal accepts for washing the Applicant’s hair and even with the shower hose installed there seems to be a genuine doubt as to whether the Applicant can effectively and completely shower in the same way a person not suffering from this syndrome, together with the urinary incontinence mentioned earlier, would do. The Tribunal finds that using the shower hose and quickly washing herself and getting out is not participation in self-care, either effectively or completely, as once again contemplated by the language used in Rule 5.8 (a).
By reason of the foregoing, it also seems to be that she is sufficiently restricted for a finding to be made that she is unable to participate effectively or completely in the activity, or to perform the tasks or actions required to undertake or participate in the activity, being self-care by showering, even with assistive technology equipment, home modifications or assistance from another person within the meaning of Rule 5.8 (c). In short the preponderance of the evidence leads the Tribunal to conclude that the Applicant cannot have a proper shower. A proper shower being an essential feature of self-care.
Therefore, for these reasons concerning self-care the Tribunal finds that as a matter of factual assessment, the outcome or effect of the Applicant’s impairment on the performance concerning the activity of self-care means that the deeming effect of Rule 5.8 applies. This results in the Applicant having a substantially reduced functional capacity to undertake that activity within the meaning of section 24 (1) (c) (v) of the Act.
Social interaction.
The issue of social interaction was during the course of the hearing the one that was least canvassed by the parties.
It is useful to recall that in the NDIS Operational Guidelines, social interaction is described as including making and keeping friends, interacting with the community, behaving within limits accepted by others, and coping with feelings and emotions in a social context.
Dr Chandler has made several observations on this topic in his reports that were in evidence before the Tribunal. His 22 August 2017 report observes that the Applicant experiencing uncontrolled pain secondary to the CRPS has led to a social isolation for her. He considered that this fact together with a lack of ability to leave her home, impairs her ability to keep normal social networks and support. In his report of 6 April 2017 he observed that she had transport difficulties and was feeling quite isolated from health care services. This observation by Dr Chandler is also consistent with social isolation and therefore a substantial reduction in functional capacity to engage in any form of social interaction. The Tribunal accepts this evidence.
In her report, Ms Schipanski, the Applicant’s physiotherapist, observes the consequences of the pain that she experiences together with the effect on her walking and as she described it her notable cortical dysfunction and right sided neglect associated with the CRPS. On lateral testing she was significantly less accurate on the right side. These observations are consistent with the Applicant’s evidence as to the difficulties she faces driving when using her right leg and foot on the brake pedal and accelerator. It is also consistent with the difficulties she recounted in driving anything other than short distances. The Tribunal accepts that this restriction on her capacity to walk easily over any distance, or drive a car, either manual or automatic, other than over short distances must (particularly given she lives in a regional city of Ballarat) limit her capacity to visit people, attend functions or interact with the community. The direct effect of this assessment by the physiotherapist, on any objective assessment, must be to further corroborate a conclusion that her condition substantially reduces her functional capacity to engage in social interaction within the meaning of section 24 (1) (c) (ii) of the Act.
Dr Chandler, in his report of 6 January 2018, observed that the Applicant currently requires assistance from a carer, or family member for social interactions. He described activities such as going out for dinner, going to movies or attending social interactions outside of her home environment as requiring a carer or family member. He stated that otherwise she does not participate in social interactions.
There is some evidence that she has become estranged from several of her siblings. She is one of a large family. Apparently, several of these siblings do not accept that she is suffering from the condition that she does. This is most unfortunate. She conceded that the contents of Occupational Therapist X’s report which recorded that she goes clothes shopping with her sister once a month, and out for coffee twice a week were accurate. She has a relationship with her partner who she is engaged to be married to. It is apparent that he is supportive of her and that it has been a deep and fulfilling relationship for both of them.
Also in Occupational Therapist X’s report she records the Applicant informing her that many of her former friends had “disappeared” following the onset of her illness. The Applicant stated that this attitude on the part of her friends is largely because of her inability to do what they can and the failure of such friends to appreciate the restrictions of her illness places upon her. Occupational Therapist X’s report also corroborated, as observed above, that the Applicant has a fairly limited social circle, most likely due to the manifestations of her illness. The Tribunal considers that this evidence alone demonstrates that her condition of CRPS is an impairment which results in a substantially reduced functional capacity to undertake social interaction within the meaning of section 24 (1) (c) (ii) of the Act.
For reasons articulated above, the Applicant generally relies upon her partner or family members and friends to assist with transport to social events whenever possible. The trips to the Aldi supermarket once a week, which had been previously recounted in these reasons, are undertaken with her partner. This is further evidence that her condition of CRPS is an impairment which results in a substantially reduced functional capacity to undertake social interaction within the meaning of section 24 (1) (c) (ii) of the Act.
The Tribunal also refers to and repeats the reasons set out below concerning the Applicant’s capacity for social participation within the meaning of section 24 (1) (d) of the Act insofar as they also apply to considerations under section 24 (1) (c) (ii).
It should be observed that the Applicant presented as a socially aware and composed individual, who notwithstanding the impairments from which she suffers, is trying to do her best. The Tribunal infers that this also is the case with respect to social interaction. The Applicant seeks to make the most of what more limited opportunities for social interaction she has. She did give evidence of interacting with her grandson, and it was apparent that her attention to him was undertaken enthusiastically and that he is a source of much joy to her. She also appears to have regular contact with her partner’s mother and her daughter and does not incur any difficulty with these interactions let alone any other people with whom she comes to into contact. The evidence seems to be that she has battled on against considerable adversity in a fashion which would have to be described as commendable.
For these reasons the Tribunal finds that the Applicant’s impairments do result in substantially reduced functional capacity to undertake social interaction within the meaning of section 24 (1) (c) (ii) of the Act.
Capacity for social or economic participation section 24 (1) (d).
The Rules do not offer any guidance concerning the construction of this subsection or, for that matter a definition of the critical terms social or economic participation. Unlike subsection (1) (c) there is not a requirement that the impairment substantially reduce functional capacity. All that the language used requires is that the impairment or impairments affect the person’s capacity. It is a lower threshold to cross or perhaps, put another way a comparatively easier test to satisfy. It does not identify the level of effect on the person’s capacity to engage in the participatory task identified.
As stated above, there is no definition of economic participation. Does it mean that it affects a person’s ability to work? It would seem so. Does it affect a person’s ability to engage in commercial transactions, of whatever nature and type? Similarly, it would seem so.
In the reviewable decision there was a finding that the criteria under section 24 (1) (d) were met as it was considered that her condition impairs her ability to keep normal social networks and support.[31]
[31] The reviewable decision is document capital “T 2” in the T documents at page 10.
The change of position on the part of the Respondent between the making of the reviewable decision and the hearing of this application has occurred due to the contents of the report of Occupational Therapist X.[32]
[32] The contents of the Respondent's "Statement of Position" are referred to in particular at paragraph 52.
Occupational Therapist X’s report contented that the Applicant is able to interact effectively with others in social situations. It was contended that she is hindered in her ability to transport herself to social events, but not so hindered by reason of her CRPS. It was submitted the hindrance was caused by reason of an inability to drive her partner’s manual car and a reticence towards public transport. It was contended in particular that if she wished to resume driving she could replace her partner’s car with an automatic vehicle or alternatively, take lessons from a driving instructor in the manual vehicle available to her to improve her confidence.

Concerning the Applicant’s capacity to drive, the earlier findings concerning the function of her right leg and foot are referred to and repeated. Whether she drives a manual or an automatic vehicle she is affected. It is a substantial impairment. Her limited capacity to drive as previously described must of necessity limit her capacity for social or economic participation.
There is the evidence of several treating health care professionals which supports a conclusion that her impairment affects her capacity for social or economic participation. Dr Chandler, in his report of 22 August 2017, states that her disease has led to social isolation for the Applicant. He further opines that this social isolation along with a lack of capacity to get out of the house, impairs her ability to keep normal social networks and support. A similar view was expressed in his report of 6 April 2017, which also corroborated the Applicant’s evidence concerning transport difficulties from Ballarat to Geelong to attend for medical treatment. As he is a long-term treating specialist of the Applicant the Tribunal sees no reason to not accept this opinion.
Dr Lau, a Consultant Neurologist, in her report of 15 March 2012 observed that the pain radiated up to her groin area, so much so that with any movement and any exertion of her right leg it triggered more pain. The trigger involved any movement (allodynia) of her right leg particularly around the right knee. This diagnosis would make it apparent even to the medically trained that the capacity of the Applicant as the driver of a motor vehicle to operate the brake pedal and accelerator would be severely restricted and pose a significant risk to herself, any passengers in her motor vehicle and other road users. In modern society, particularly for a resident of a regional city such as Ballarat, the motor vehicle is an essential means of conveyance. Not being able to properly use a motor vehicle in all circumstances such as those faced by the Applicant would represent an impairment that affects the Applicant’s capacity for social or economic participation within the meaning of section 24 (1) (d).
The Applicant’s treating physiotherapist Ms Schipanski, in a report of 28 April 2014, observed that on laterality testing the Applicant was significantly less accurate on the right side which was most obvious when testing images of the hand. She observed notable cortical dysfunction and right sided neglect associated with the CRPS. This observation is consistent with the Applicant’s description of the difficulties she faces driving a vehicle whether it be manual or automatic, due to the difficulties with her right foot and leg.
Also, given these findings, and in particular the opinions expressed by healthcare professionals such as Dr Chandler, Dr Black and Ms Schipanski, the Tribunal cannot accept that taking lessons with a driving instructor in her partner’s manual vehicle would improve her confidence let alone her capacity, to drive in a way that her capacity for social or economic participation would not be affected (as it already is).
Dr Black observed that the Applicant’s illness is causing her to struggle with her mobility and there is a risk that she may end up in a wheelchair. He recorded that the Applicant’s inclination is to stay in bed in order to protect her painful limbs. This evidence is accepted by the Tribunal and further corroborates other evidence of social isolation and certainly her impairment affecting her capacity for both social and economic participation which presumably must be limited if she is spending extended times in bed as recorded by Dr Black.
The Tribunal also refers to and repeats the evidence and matters addressed in the section on “Social interaction” insofar as they also apply to considerations under this section.
It seems that she is incapable of working in any way let alone full-time or to a realistic part-time level that might provide some level of income. As noted earlier in these reasons, even a visit to the Aldi supermarket is not easy for her. Purchasing goods at retail outlets involves some element of economic participation and in the absence of any rules or other guidance from established cases it seems to the Tribunal that her impairment’s effects are within the meaning of section 24 (1) (d).
For these reasons the Tribunal finds that the Applicant’s impairment does affect her capacity for social and economic participation within the meaning of section 24 (1) (d).
Is the Applicant likely to require support under the NDIS for her lifetime?
The approach of the Respondent to this section encompasses several limbs. Firstly, it refers to two segments of the NDIS Operational Guidelines which provide guidance as to how the access criteria may be satisfied. In its Statement of Position the Respondent refers to Chapter 8.5 of the Operational Guidelines which provides, in part, that if a person’s support needs arise from a health condition that is most appropriately provided for through another service system, for instance the healthcare system, then that person will not require support under the NDIS for their lifetime.
The Respondent contends that the Applicant does not have an impairment that results in a substantially reduced functional capacity, and therefore, does not require support under the NDIS for her lifetime. Further, to the extent that she may require supports, it is contended that those supports are either commonly used items, or are most appropriately provided through the health care system and not the NDIS.
The Operational Guidelines require the Respondent to consider a prospective participant’s overall circumstances. Having heard the evidence, as it unfolded before the Tribunal concerning the Applicant’s conditions, and the effect that it has upon her, the Tribunal cannot conclude that her support needs whilst arising from a health condition, are most appropriately provided through the healthcare system as the Respondent contends.
There is much support that will as a matter of course be provided by the healthcare system as the Respondent fairly contends, such as Botox injections and ketamine infusions (not to mention continuing treatment from Dr Chandler and Dr Black). However, the nature and permanency of her disability will, the Tribunal finds, require supports beyond those normally provided by the healthcare system. The reasons for reaching this conclusion are apparent from the matters canvassed above. Particularly, the difficulty the Applicant experiences in using her limbs and consequent falls the evidence of which from both the Applicant herself and Dr Chandler, as noted earlier is accepted by the Tribunal pose significant risks for her. The difficulties she experiences in washing particular areas also as noted earlier, is another example. These problems can only be addressed by other means.
It should also be observed that the Operational Guidelines provide that when considering this criterion, the NDIA does not need to be satisfied that the supports required for the person’s lifetime meet the reasonable and necessary criteria. The reasonable and necessary criteria are relevant to whether funding is provided, not whether the person meets the disability requirements.
Dr Chandler, in the course of his oral evidence and his report of 22 August 2017, described the Applicant’s condition as permanent with no possibility of cure. He described it as causing severe disability. He said it will remain with her for the rest of her life. This evidence was not challenged either in the course of cross-examination or by way of a contrary expert opinion. As noted earlier, Dr Lau the Consultant Neurologist, described the condition as constant and completely disabling. The Tribunal accepts this evidence.
Given the findings of permanency, being a severe disability and that the Applicant suffers constant and disabling pain, together with the fact that there are supports that the Applicant will require which cannot be provided by the healthcare system or commonly used items as contended by the Respondent, the Tribunal finds that on the preponderance of evidence the Applicant is likely to require support under the NDIS for her lifetime within the meaning of section 24 (1) (e).
Early intervention requirements under section 25.
There was very little evidence concerning the early intervention requirements advanced by the Applicant.
Dr Chandler’s most recent written report of 6 January 2018 did not address the question. He was briefly questioned in cross-examination about it and candidly conceded he did not really understand what the requirements of that section were. When put to him by counsel for the Respondent he conceded that the Applicant had suffered from her conditions for many years (and also to use his words it was not in the early stages of diagnosis) and that there were not likely to be any intervention that he was aware of that would be likely to benefit the Applicant by reducing her future needs of supports given the treatment that she has already received. This concession by Dr Chandler was properly made and is to his credit. It appears to the Tribunal having read all the material before it that there is no available evidence, or likely to be any available evidence that would establish firstly, that there are any recognised early intervention supports that would assist the Applicant that she has not already received, and secondly, that if there were, they would reduce her future needs for supports in relation to her disabilities.
The Respondent contends that the Applicant does not meet the criteria for early intervention in accordance with section 25 of the Act because there is no evidence that there are supports, which are most appropriately funded through the Act which are likely to benefit the Applicant. The Tribunal accepts this contention for the reasons articulated previously.
CONCLUSION.
The Respondent accepts that the Applicant satisfies section 24 (1) (a) and (b). For the reasons articulated above the Tribunal concludes that the correct and preferable decision is that the Applicant also meets the requirements of section 24 (1) (c), (ii), (iv), and (v), (d) and (e) of the Act. As acknowledged by the Respondent, if the Applicant satisfies these subsections of the Act she passes through the “statutory gateway” to the National Disability Insurance Scheme by satisfying the access criteria.
Accordingly, the reviewable decision will be set aside and in substitution for such decision there is a decision that that the Applicant meets the access criteria under section 24 of the Act.

I certify that the preceding 118 (one hundred and eighteen) paragraphs are a true copy of the reasons for the decision herein of R Cameron, Senior Member

...............sgd..............................
Associate
Dated: 18 November 2019

Dates of hearing: 22 and 23 August 2019

Applicant: Self-Represented

Counsel for the Respondent:
Kateena O'Gormon

Solicitors for the Respondent: Sparke Helmore

Dates of hearing:	22 and 23 August 2019
Applicant:	Self-Represented
Counsel for the Respondent:	Kateena O'Gormon
Solicitors for the Respondent:	Sparke Helmore