Bolt and National Disability Insurance Agency

[2023] AATA 4047

Bolt and National Disability Insurance Agency [2023] AATA 4047 (5 December 2023)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2022/9007

Re:Jodie Bolt

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:The Honourable Pru Goward AO, Senior Member

Date:5 December 2023

Place:Sydney

The Tribunal affirms the decision under review made by the delegate dated 5 October 2022, pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth)

...........................[SGD]............................................

The Honourable Pru Goward AO, Senior Member

CATCHWORDS

NATIONAL DISABILITY INSURANCE SCHEME – access criteria – disability requirements – permanency – substantially reduced functional capacity - mobility - self-care - social interaction – early intervention requirements – decision under review affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme (NDIS) Act 2013

National Disability Insurance Scheme (Becoming a Participant) Rules 2016

SECONDARY MATERIALS

National Disability Insurance Agency, Our Guidelines – Becoming a participant – Applying to the NDIS, (Web Page) < FOR DECISION

The Honourable Pru Goward AO, Senior Member

5 December 2023

INTRODUCTION

1. The Applicant, Ms Jodie Bolt, is a 52-year-old woman who applied to become a participant in the National Disability Insurance Scheme (the Scheme) on the basis of her psoriatic arthritis, full thickness tear of right (shoulder) bicep, dissemination of lumbar vertebrae with disc bulge and nerve impingement, depression and anxiety and chronic pain.

2. On 7 February 2022, the Respondent made a decision to refuse the Applicant access to the Scheme.

3. On 16 September 2022, the Applicant requested an internal review of the reviewable decision and on 5 October 2022, a delegate of the CEO of the Respondent confirmed the original decision of 7 February to refuse the Applicant access. The internal review decision found that neither the s 24 disability, nor the early intervention requirements of s 25 were met.

4. On 27 October 2022, the Applicant sought review of the internal review decision pursuant to s 103 of the National Disability Insurance Scheme Act 2013 (the Act).

RELEVANT SECTIONS OF LEGISLATION

1. The relevant sections of the Act relied upon include; s 100 (6); s 103; s 21 (1) (c) (i) or (ii); s 25 and s 24, in particular s 24 (1) (b), (c) and (e). For completion, S 24 is reproduced here in full:

(1)  A person meets the disability requirements if:

(a)  the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable; and

(b)  the impairment or impairments are, or are likely to be, permanent; and

                 (c)  the impairment or impairments result in substantially reduced functional capacity to undertake one or more of the following activities:

(i)  communication;

(ii)  social interaction;

(iii)  learning;

(iv)  mobility;

(v)  self‑care;

(vi)  self‑management; and

(d)  the impairment or impairments affect the person’s capacity for social or economic participation; and

(e)  the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime.

(2)  For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the variation.

(3)  For the purposes of subsection (1), an impairment or impairments that are episodic or fluctuating may be taken to be permanent, and the person may be taken to be likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the episodic or fluctuating nature of the impairments.

(4)  Subsection (3) does not limit subsection (2).

1. Part 5 Rule 5.8 of the National Disability Insurance Scheme (Becoming a Participant) Rules 2016, (which is a deeming provision for s 24 (1) (c)) states:

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.

1. S 25 of the Act stipulates, relevantly for this Applicant, that a person meets the early intervention requirements if the person has one more impairments that are permanent or likely to be permanent and that the provision of early intervention supports for the person is:

   S 25 (1) (b)…likely to benefit the person by reducing the person’s future needs for supports in relation to disability; and

   (c) 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.

BACKGROUND

1. THE APPLICANT HAD ORIGINALLY TRAINED AS A NURSE, WHICH HAS BENEFITTED HER MANAGEMENT OF HER MEDICAL CONDITIONS, BUT WAS IN FULLTIME WORK IN A VARIETY OF ROLES UNTIL SHE STARTED DEVELOPING CLINICAL SYMPTOMS OF PSORIATIC ARTHRITIS IN 2016. HER IMPAIRMENTS CAUSED HER TO CEASE PAID WORK IN 2017. IN ADDITION TO HER PSORIATIC ARTHRITIS, SHE HAS OTHER CONDITIONS SUCH AS A FULL BICEP TEAR AND DETERIORATION IN HER LOWER SPINE AND CHRONIC PAIN, WHICH HER MEDICAL ADVISORS ATTRIBUTE TO A COMBINATION OF HER ARTHRITIS AND THE LONG-TERM USE OF PREDNISONE, A DRUG PRESCRIBED FOR THE TREATMENT OF ARTHRITIS. THIS HAS ALSO LED TO ADRENAL INSUFFICIENCY, THAT IS, HER ADRENAL GLANDS HAVE CEASED TO PRODUCE ADRENALINE, REQUIRING HER TO REMAIN ON PREDNISONE FOR THE REST OF HER LIFE. IT APPEARS TO HAVE ALSO CONTRIBUTED TO HER OBESITY AND INCREASED HER RISK OF OSTEOPOROSIS. SHE CONSIDERS SHE ALSO SUFFERS FROM DEPRESSION AND ANXIETY.

1. The Applicant is a smoker and lives alone with her four cats. While able to drive a car, she says she does so with difficulty; she also walks with difficulty. She has two adult daughters with whom she is in regular contact. The Applicant remains a keen gardener and is clearly a well organised person who has sensibly modified her garden, kitchen and bathroom to better accommodate her difficulties.

10.  The Applicant lives in social housing and accesses a disability support pension. Until recently, she received five hours each week in domestic assistance with cleaning, gardening and meal preparation from a local service provider, Linkages. She was also provided with a range of home modifications, such as grab rails and equipment to assist her with domestic tasks. This company has since changed ownership and now charges higher fees. Consequently, she now receives only two hours of assistance each week, based on what she considers she can afford.

11.  The hearing before the Tribunal was held on 30 and 31 October 2023. At the hearing, the Applicant presented as a positive, pleasant and capable woman, but also deeply distressed by her current circumstances and the changes her medical conditions have wrought upon her lifestyle. She had also found her negotiations with the Respondent frustrating and distressing. She described a life of continuous pain, limited mobility, difficulty with self-care and a reduced social life, brought about by her chronic health conditions.

CONTENTIONS

12.  The Applicant contended that she suffers from several medical conditions (psoriatic arthritis, full bicep tear, lower spine deterioration, depression and anxiety and the physical and psychosocial consequences of chronic pain), to which, at the hearing, adrenal insufficiency was added. She contended all of these were permanent and, in combination, substantially reduced her functional capacity for mobility, self-care and social interaction, so meeting the disability requirements of s 24 (1) of the Act.

13.  The Respondent contended that the physical impairment arising from the damage to the Applicant’s lumbar vertebrae was not permanent, that she did not suffer from anxiety and depression and the physical and psychosocial impairments arising from her chronic pain were not permanent. The Respondent accepted at the hearing that the Applicant suffered from adrenal insufficiency.

14.  The Respondent contended that although the Applicant met the age and residency requirements of the Act, she did not meet the disability requirements in s 24, nor the early intervention requirements in s 25, such that the access criteria in s 21 ()1) (c) (i) or (ii) were not met.

15.  The Respondent accepted the Applicant may have restrictions arising from her impairments, but not that any of the Applicant’s impairments satisfied s 24 (1) (c), “substantially reduced functional capacity” in any of social interaction, mobility or self-care.

16.  The Respondent contended that there were other service systems which would be more appropriate for her and the type of assistance she is seeking, such as the medical system, and therefore, if the requirements of s 24 (1) (c) were met, the requirements of s 24 (1) (e) were not met.

17.  The Respondent contended that, since no early intervention supports had been identified as appropriate or relevant in the Applicant’s case, and other supports sought were more appropriately provided through other service systems, including the health system, the early intervention requirements in s 25 (1) and accordingly s 21 (2) (c) (ii) of the Act, were not met. The Applicant contended she met the early intervention requirements of s 25 because having support services in place would reduce her future care needs.

THE ISSUES

18.  The first issue is whether the Applicant’s impairments are permanent and have substantially reduced her functionality, in accordance with the requirements of s 24 of the Act. Some, but not all, impairments were agreed to be permanent by the Respondent and so the issue to be resolved by the Tribunal is then in two parts;

(1) Determining which of the contested impairments are permanent, so satisfying the requirements of s 24 (1) (b).

(2) Determining whether these permanent impairments result in substantially reduced function in any of the three domains identified in s 24 (1) (c) and, if so, whether the required supports could be better provided by other service systems, in accordance with s 24 (1) (e).

19.  The second issue is whether the Applicant has permanent impairments which would benefit from early intervention, in accordance with the requirements of S 25 of the Act, Early Intervention requirements. While the Applicant contended in the internal review that her impairments were permanent and that she therefore met the requirements for early intervention under s 25, an assertion she repeated in her opening statement to the Tribunal, she did not formally explore this during the hearing. As frequently occurs when applicants are self-represented, contentions made in writing are not always pursued in oral evidence. However, since there was discussion about her future level of impairment were she not provided with supports now, and the Respondent contended that she did not meet the requirements of s 25, early intervention, the Tribunal has considered the application of s 25 to this case, noting that the weight of evidence submitted and tested in cross examination suggests the main issue for the Tribunal to decide is whether the Applicant meets the requirements of s 24 (b), (c) and (e).

EVIDENCE RELIED UPON

20.  The Tribunal has had regard to various material before it, including:

(a)Applicant’s Statement of Facts, Issues and Contentions dated 10 July 2023

(b)Respondent’s Statement of Facts, Issues and Contentions dated 21 July 2023

(c)Joint Evidence Bundle (filed by Respondent on 21 July 2023), including the below documents:

·T-Documents (filed 8 November 2022)

·Applicant’s additional evidence (outlined on page 6 of joint evidence bundle)

·Occupational Therapy Assessment Report of Ms Amanda McLaughlin dated 24 April 2023

ORAL EVIDENCE

21. The Tribunal heard oral evidence from the following witnesses:

a)   Ms Jodie Bolt, the Applicant

b)   Dr Miriam Bartlett, Endocrinologist

c)   Ms Amanda McLaughlin, Occupational Therapist

CASE LAW

22.  The following cases are relied upon:

Madelaine and National Disability Insurance Agency [2020] AATA 4025

Mulligan v National Disability Insurance Agency [2015] FCA 544

National Disability Insurance Agency v Foster [2023] FCAFC 11

Rooney and National Disability Insurance Agency [2021] AATA 3523

WRMF and National Disability Insurance Agency [2019] AATA 1771

CONSIDERATIONS

Permanency

23.  Section 24 (10 (b)) of the Act requires that the impairments which result in reduced functionality be permanent. The Act is supported by the Rules (Becoming a Participant) which expand upon the concept of permanency in the follow terms: Rules 5.4 to 5.7 provide as follows:

5.4 An impairment is, or is likely to be, permanent (see paragraph 5.1(b)) only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.
5.5 An impairment may be permanent notwithstanding that the severity of its impact on the functional capacity of the person may fluctuate or there are prospects that the severity of the impact of the impairment on the person's functional capacity, including their psychosocial functioning, may improve.
5.6 An impairment may require medical treatment and review before a determination can be made about whether the impairment is permanent or likely to be permanent. The impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated (even though the impairment may continue to be treated and reviewed after this has been demonstrated).
5.7 If an impairment is of a degenerative nature, the impairment is, or is likely to be, permanent if medical or other treatment would not, or would be unlikely to, improve the condition.

24. The permanency of the Applicant’s psoriatic arthritis and bicep tear were not disputed. However, the permanency of the Applicant’s dissemination of lumbar vertebrae with disc bulge and nerve impingement and the chronic pain (with attendant psycho-social consequences such as depression and withdrawal) were disputed and this decision will address each in turn.

25. Lumbar vertebrae and associated damage is disputed by the Respondent because, as opined in the Respondent’s Statement of Facts, Issues and Contentions (SOFIC), although the Applicant’s medical reports confirm degeneration of the spine and that this condition is stable, the Applicant has not provided evidence of:

any specialist review of these reports or that the Applicant has been referred for treatment specific to this condition. On this basis, it is unclear whether there are any known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment such that the impairment can be considered permanent for the purposes of s 24(1)(b).   

26. In closing submissions, the Respondent accepted that the dissemination of lumbar vertebrae with disc bulge and spine impingement was secondary to the Applicant’s psoriatic arthritis and accepted medical reports, such as CT scans which demonstrated the existence of the condition, so meeting the requirements of s 24 (1) (a). However, the Respondent also contended that the documents said nothing about potential treatment options or the permanency of the condition. The Tribunal notes the medical specialist reports referenced bone fragments and some crumbling of the affected joints but, while not asserting these conditions were irreversible, made no suggestions for treatment that might ameliorate or reverse the deterioration.

27. The Applicant’s treating endocrinologist, Dr Miriam Bartlett, told the Tribunal that she considered this condition, among others, to be permanent, but did not elaborate on whether treatment options were available which might reverse the condition. In her evidence, she also advised that Prednisone, taken by the Applicant for her psoriatic arthritis, would, and had, led to significant weight gain for this Applicant, impacting upon her spine:

“obesity increases back pain, and puts more pressure on the spine”.

28. Dr Bartlett considered that the Applicant’s obesity was being well managed by the Applicant in her food choices, but that the daily use of Prednisone, and its impact upon appetite, would be an ongoing struggle.

29. The Applicant provided no further independent evidence of the permanency of her spinal deterioration although she referred to the possibility of spinal fusion surgery of her affected vertebrae as a remedy and explained to the Tribunal that the procedure, which involves inserting:

“screws above and below…unfortunately the vertebrae above and below are not strong enough to hold those pins in place, and would basically crumble if they were inserted.  So there is nothing surgically that I can do to fix that”

30. The Respondent did not challenge that account of the Applicant’s surgical options, although observing that the Applicant had not taken advantage of any physiotherapy which might have addressed her spinal condition.

31. In cross examination, the OT, Ms McLaughlin, suggested that avoiding heavier domestic tasks such as pulling heavy washing from the washing machine, was needed to preserve the spinal joints’ current level of function, which she had observed to be “stiff”.  She also described the Applicant as having to “shuffle around” to turn her body.

32. The Tribunal finds, having considered the evidence available, particularly confirmation of the Applicant’s crumbling bones and limited surgical options, that the Applicant’s spinal deterioration meets the requirements of s 24 (1) (a) and is also permanent, so satisfying the requirements of s 24 (1) (b).

33. The Respondent contended that the depression and anxiety suffered by the Applicant was not supported by evidence from any formal testing, or diagnosis, of those conditions.  The Respondent contended that Dr Bartlett’s evidence of depression:

“ goes no further than her observation that the Applicant displayed symptoms of depression and anxiety”.

34. Further, the Respondent referenced the letter from the Applicant’s psychologist, Dr Cunningham, which stated that the Applicant has:

“somatic pain disorder, the symptoms of which include ‘persistent thoughts and anxieties around her conditions, and excessive time and energy devoted to her health concerns’”. Testing for depression and anxiety might have been warranted, but Dr Cunningham did not perform the requisite testing.

35. The Respondent pointed out that the Applicant had not provided evidence of treatment for her somatic pain disorder after February 2018.

36. While it was abundantly clear from the Applicant’s presentation to the Tribunal that she was deeply distressed by her circumstances, the only formal diagnosis of depression was provided by the Applicant’s endocrinologist, Dr Bartlett, who considered she had both depression and anxiety, and based that judgment on her expertise as a doctor. In cross examination, she agreed that she had not “done any particular anxiety or depression scales” and agreed she had done no tests for depression and anxiety. In closing submissions, the Applicant withdrew her submission that her depression and anxiety should be considered as impairments.

37. Overall, the Tribunal finds there is insufficient evidence of depression and anxiety to include these as impairments for the purposes of determining the Applicant’s level of functioning. The conditions of s 24(1) (a) are not met for depression and anxiety.

38. The permanency of the Applicant’s fibromyalgia and associated impairments was raised during the hearing, although not in her SOFIC. The Respondent noted that the impairments, pain and fatigue, while meeting the requirements of s 24 (10 (a), also arose from psoriatic arthritis and to that extent they were permanent, while also observing that it:

“doesn’t appear to be treated with any sort of sustained effort as a condition in and of itself”. There was no evidence of engagement with physiotherapy, for example.

39. The Tribunal finds there is insufficient evidence of the permanence of the Applicant’s fibromyalgia but agrees with the Respondent’s observation that distinguishing between the pain and fatigue associated with psoriatic arthritis and the pain and fatigue associated with fibromyalgia is “largely academic”.

40. The Respondent did not accept that the Applicant’s physical and psychosocial impairments arising from her chronic pain were permanent. The Respondent identified several treatment options available to the Applicant; these included: medication, engagement with a pain management programme, physiotherapy and psychological counselling. There was considerable evidence provided that the Applicant takes significant pain medication. She had also completed a Pain Management Service Care Plan, her doctor advising that she had “successfully addressed all aspects of the management plan”. However, the Applicant had not seen a physiotherapist for follow up treatment, as recommended, and had only occasionally seen a psychologist.

41. The Applicant told the Tribunal that she had recently returned to the pain Clinic, who provided her with alternative medication to her opiate medications which, she says, have helped to reduce the pain signals, but that the pain in her joints, including her vertebrae, appears to have remained. During the hearing, the Applicant’s endocrinologist, confirmed that over the past seven years, the Applicant’s:

“pain and social isolation have really become much more of an issue”.

The Respondent told the Tribunal that the:

“impairment of joint pains, arising from arthritis, that’s permanent”.

42. The Tribunal finds, based on the evidence provided, that the Applicant is permanently impaired with pain, arising from her various conditions, and accordingly chronic pain satisfies both ss 24 (1) (a) and (b).

43. The Applicant referenced her adrenal insufficiency, a condition arising from her prolonged use of prednisone. This was confirmed by her treating endocrinologist and accepted as a permanent impairment by the Respondent in closing submissions:

The Respondent does accept the remaining impairments are permanent, being physical impairments arising from psoriatic arthritis, the bicep tear, and adrenal insufficiency.  

The Tribunal therefore also accepts this to be the case. The Tribunal finds there is sufficient evidence that her adrenal insufficiency satisfies both ss 24(1) (a) and (b).

Substantially Reduced Functional capacity

44. The Tribunal, having found the Applicant’s fibromyalgia, depression and anxiety are not impairments for the purposes of s 24 (1) (a), finds, on the evidence provided that the impairments which contribute to the Applicant’s functionality to be:

• Psoriatic arthritis

• Lumbar vertebrae deterioration and associated damage

• Adrenal insufficiency.

• Chronic pain

45. The Tribunal, being satisfied that the Applicant suffers from four permanent impairments now seeks to determine if these impairments have resulted in substantial reduction of her mobility, self-care and social interaction, so meeting the requirements of s 24(1)(c) of the Act.

46. Throughout the hearing, the Applicant consistently argued that her large number of ailments, in combination, resulted in substantial impairment.  As she told the Tribunal at the outset:

“And I don’t understand why the multiple diagnosis that I actually have, that all impact and contribute to my functional capacity on a daily basis, shouldn’t be included”.

47. However, as the NDIS Guidelines, (Becoming a Participant), make clear, the degree of reduced functionality is determined by the Applicant’s capacity for specified activities, “moving around, communicating, socialising, learning, or undertaking self-care or self-management tasks”, not by the number of impairments, even if those impairments, like adrenal insufficiency, require ongoing clinical care. While the Respondent, and therefore the Tribunal, accepted that there was some reduced functionality, it was the Applicant’s task to demonstrate to the satisfaction of the Tribunal that the reduction in any of the functions of mobility, self-care and social interaction was substantial. As was noted in Mulligan v National Disability Insurance Agency [2015] FCA 544 (‘Mulligan’):

The legislative scheme contemplates a relatively high degree of precision by decision-makers…in assessing what a person can or cannot do. The assessment to be undertaken is avowedly functional and multi-faceted.

Mobility

48. In relation to mobility, the Operational Guidelines currently state:

Mobility, or moving around – how easily you move around your home and community, and how you get in and out of bed or a chair. We consider how you get out and about and use your arms or legs.

49. The Applicant described her difficulties in walking, which were confirmed by the observations of the OT and her endocrinologist. She furniture crept and although able to walk unaided, walked slowly and with difficulty. She had been recommended a 4 wheel-walker, but considered it was beyond her financial means. It was agreed that, with difficulty, she could walk fifty metres, but as the day wore on and her tiredness grew, her walking became more problematic. The Applicant also drove a car, albeit with some difficulty. She drove to the shops and to her daughters’ homes.  Her ability to turn her body in the car was also impaired. She described a loss of confidence because of neuropathic pain and:

“the strength that it takes to turn the wheel causes me a lot of pain”.

50. The Tribunal notes that 4-wheel walkers are freely available, do not require extensive customisation or training and are often subsidised by state government funded schemes. A walker would be considered an everyday item, in accordance with the Guidelines.

51. The Respondent relied upon Madelaine and National Disability Insurance Agency [2020] AATA 4025 (‘Madelaine’) to argue that the threshold was “relatively modest” and that, since the Applicant was able to move about her home, get in and out of a bed or a chair and mobilise in the community without using mobility aids, she had not met that threshold. The Respondent has also noted the low threshold applied in the Tribunal for mobility (for completion, a minimum walking distance of 50 metres). The Tribunal accepts that the stipulations in Madelaine, and in previous Tribunal cases, are relevant to this application.

52. The OT, Ms McLaughlin, spent three hours at the Applicant’s home several months before the hearing. She described the Applicant as walking unaided, but quickly fatigued, as being able to walk over the uneven surface outside her home and “looked[ing] stable on the day”. She described the Applicant’s transfers from her car as “effortful” but that there were:

“not safety concerns”.

53. The Applicant painted a vivid picture of the struggle she had to walk and generally mobilise, including by “furniture holding”, but did not deny that she could walk unaided. In closing submissions, she disagreed with the OT’s assessment of her mobility in strong terms:

“it was implied that I was walking for that entire three hours 5 assessment, which is not correct. There was only intervals of five or 10 minutes, and even Ms McLaughlin noted my levels of fatigue with short levels of activity that required me to rest at regular intervals. I don’t use a four-wheel frame, because I can’t afford one, basically. I would if I could”.

54. The Tribunal finds, based on the evidence provided and acknowledging the principle established in Madelaine, that while the Applicant has reduced mobility, and mobilises differently and with difficulty, that her mobility is not substantially impaired and so does not meet the requirements of s 24 (1) (c) of the Act.

Self-care

55. In relation to self-care, the Operational Guidelines currently state:

Self-care – personal care, hygiene, grooming, eating and drinking, and health. We consider how you get dressed, shower or bathe, eat or go to the toilet.

56. Self-care involves those many household and personal activities necessary to a safe and ordered life.  The Applicant, being a well-organised and determined person, carried out several modifications to her home with the assistance of a former community support service. This is commendable. In addition to the installation of useful aids for easier toileting, the Applicant had her laundry and kitchen equipment, such as the dryer and dishwasher, raised to a level which were easier for her to use and employs several kitchen aids, although, according to the OT, she could benefit from a bottle and jar opener. To assist with meal preparation and cleaning, the Applicant paid a local council service to provide her with household and meal preparation assistance, two hours per week.  She cooked in batches when the service worker was present, to save standing time when she was alone.  She has raised garden beds so that she could continue to garden, which she described as one of her few remaining joys.

57. The OT assessed her home as “tidy, clean, organised, lovely garden”. Under cross examination, she agreed that the Applicant had been receiving four hours of weekly assistance at the time of her assessment, not the two hours to which she has subsequently reduced.  She reported that the Applicant “had what she needed for her personal care” but that “those items would require ongoing replacement”.  She also told the Tribunal that:

“personal care assistance is difficult. They come in on a set day a week, and to presume that that’s the day she might need the extra help, is hard”… “I believe she indicated that she was managing those at the current time, with the aids that she had”.

58. However, the Applicant’s chronic fatigue and pain, in addition to what she describes as her “hands and their deformities” make many of these tasks difficult for her. She admitted that she:

“struggle[d] to maintain hygiene when going to the toilet a lot of the time due to my physical limitations”.

59. The Applicant told the Tribunal she uses a sports bra because of the difficulties with a regular bra. Furthermore, she struggles to dress herself and, on some days, “can’t get up to cook myself a meal”. She also described struggling to brush and blow dry her hair, being unable to vacuum or hang clothes on the line without the assistance of a disability support worker or family member.

60. The OT had also agreed she would need assistance with heavy washing loads, such as blankets and towels, to protect her joints. The OT was supportive of the Applicant’s desire to continue cooking her own meals, rather than having them delivered, citing the importance of independence and the social interaction with a support worker as reasons.

61. The Tribunal recognises that standards of personal care vary between people and that this Applicant has high standards, which she met, albeit with difficulty. The same can be said of her housekeeping and garden maintenance. While the progression of her psoriatic arthritis might affect her overall capacity for self-care more in the future, the Applicant’s commendable determination to present well and to care for her home have stood her in good stead. While her pain was evident from the photographs provided, it was clear that the Applicant was managing these tasks, even though slowly and painfully and with some assistance.

62. The Respondent contended that the assistive equipment the Applicant relied upon for self-care, such as bathroom, toilet and kitchen aids, are “commonly used items” within Rule 5.8, and as expanded in Rooney and National Disability Insurance Agency [2021] AATA 3523. The Applicant did not disagree with this description of her household aids as “commonly used” and the Tribunal accepts this contention.

63. The Respondent also contended that the Applicant relied upon others, including her disability service provider and daughters, for some activities of self-care, such as heavy cleaning and meal preparation, but that it did not rise to the ‘high level of support” stipulated in the Guidelines. The Applicant agreed she maintained her house and garden with some assistance, but said it was done painfully and slowly and with the assistance of others, paid and unpaid. The evidence of the two OTs confirms the Applicant’s account.

64. While the OT had proposed that the Applicant receive two additional hours of weekly housework assistance, the Applicant is clearly able to maintain her home to a high standard despite her pain and fatigue, as was evident when the OT visited. This was despite the OT also noting that the weekly assistance had recently been provided and the Applicant’s home was therefore looking at its best. 

65. Overall, while it has been demonstrated that the Applicant is significantly impaired with some self-care tasks, such as drying her hair and heavy cleaning, and that her fatigue and tiredness also affect her ability to meet her presentation standards, the Applicant is required to provide sufficient evidence (probative evidence as required in WRMF) of that reduction by a substantial extent.

66. The Applicant is also required to provide probative evidence that her overall capacity for self-care is substantially impaired. There is contrary evidence, provided by the OT and not disputed by the Applicant, that her house, garden and herself are well maintained. Furthermore, as found in National Disability Insurance Agency v Foster [2023] FCAFC (‘Foster’), when determining if the Applicant was able to participate effectively or completely in self-care, having regard to the Explanatory memorandum (pp 88-90):

The Task remains to assess the degree to which the person can participate in the activity of self-care.

67. The Tribunal finds, based on the evidence provided, that although the Applicant has some reduced functional capacity for self-care, and can only carry out certain tasks with assistance from a local disability service and her daughters, the activity of self-care is not substantially reduced overall and so does not meet the requirements of s 24 (1) (c) of the Act.

Social Interaction

68. The Guidelines for determining an Applicant’s capacity for social interaction describe socialising as:

how you make and keep friends, or interact with the community…We also look at your behaviour and how you cope with feelings and emotions in social situations 

As the Tribunal established in Madelaine:

The criteria referred to in the Guideline are directed principally at personal skills needed for social interaction, and only marginally about opportunities to exercise those skills

69. Social interaction for this Applicant was clearly affected by her pain, which physically prevented her from leaving her home on occasions, and her level of fatigue, which made evening engagements more difficult, for example. As she told the Tribunal:

due to the pain and fatigue, like, come 5/6 o’clock, I’m generally in bed. So, people send youinvitations to things, and after a certain amount of times after you’ve declined them, they stop inviting you basically. So I have no social network anymore.

70. The Applicant, in her email of 30 September 2022 to the Tribunal, said she had struggled to come to terms with her diagnosis, saying:

“it has taken me a very long time to accept my disability (and I still don’t believe I have fully excepted it)” …“I feel guilty for asking my family for help all the time, given that I have always been a strong, vibrant and independent woman.”

71. She described her family members as living interstate and her children, although living twenty minutes away, as having lives of their own to lead.  She concluded that:
“I have no social support basically”.

72. The Applicant did not contend that the decisions of her family members to live elsewhere, or for herself to limit her contact with her daughters because of their need to get on with their own lives, were related to her impairments. As she said herself in her email, it was more related to her reluctance to impose upon her daughters, an understandable position for a person of this Applicant’s character. In cross examination, she agreed that she had visited her mother recently and that she and her father saw each other “probably once a month”. She spoke regularly to her daughters on the telephone, also visited them and they assisted her with some housework.

73. The Respondent submitted that the Applicant was a sociable person who, despite not having the social life that is:

“healthy or one that she would endeavour to have if she could choose for herself”

Nonetheless retained this social capability:

“even if the frequency with which she’s able to exercise it is sub-optimal”.

74. The Respondent, Applicant and witnesses all agreed the Applicant’s social interactions had reduced, the Applicant, OT and her endocrinologist describing her as socially isolated.

75. However, the Applicant expressed a strong desire to have more social interaction and confirmed she actively looked for social opportunities such as local day centres.  She expressed an interest in cards and bingo, and was asked:

Tribunal: So there aren’t card groups that you could go to at a local club?

A: Not that I’ve been able to find.

Tribunal: And what about Bingo, there’s lots of Bingo places usually in local clubs?

A:  I haven’t actually searched for Bingo directly. I just enjoy playing it. I used to play it weekly a few years ago.

76. The Applicant appeared to be a friendly and sociable woman who had gone to some effort in her appearance to present well during the hearing and who was lively and amusing in discussion (as well as sometimes tearful or distressed). She was clearly capable of social interaction. The Respondent submitted (and the Applicant did not disagree) that there was no evidence that her levels of pain or fatigue affected her social skills or her behaviour when with others, although reducing the number of opportunities.

77. In closing submissions, the Respondent observed that despite the difficulties, the Applicant was sufficiently motivated to explore local social opportunities for people with disability online, even if she did not meet the eligibility requirements of those she identified. The Applicant agreed but considered that despite her desire to engage in social interaction, her pain and fatigue affected her capability for social interaction.  As she told the Tribunal in closing submissions:

“I do aspire to attend more social commitments and interactions, however, my fatigue and my pain is what severely restricts my ability to do so, my capabilities to do so”.

78. In addition to evidence about the reduced frequency of the Applicant’s social interaction, which the Respondent and therefore the Tribunal accepts, the Tribunal also accepts the evidence of the Respondent that the Applicant’s capability for social interaction, as outlined in Madelaine, is not affected.

79. Ordinarily, these capabilities are those skills and insights earlier referred to in the Guidelines, relied on by the Respondent and not denied by the Applicant.  However, in this case, the Applicant’s contention of significantly reduced function in social interaction also included her reduced capacity to be “presentable” in appearance.

80. The Tribunal (and the OT, Ms McLaughlin) had already noted the Applicant’s high expectations of her standard of order and housekeeping, as well as the state of her garden. The Tribunal appreciates from the Applicant’s presentation and evidence that she desires to look “presentable”.

As she told the Tribunal in her opening statement:

I live in my pyjamas. I have become more, and more, socially isolated, because the effort it takes for me to get up and get dressed, and presentable, is exhausting and painful.

81. No evidence was provided to the Tribunal that the Applicant could not dress for social interaction, although there was evidence that she would do so slowly and painfully.  Presentation is important to this Applicant, whose pride and determination to maintain standards has clearly significantly assisted her in managing her impairments. The Tribunal notes she was formerly a makeup artist until her impairments prevented her from working. Her choice to be presentable, to the standard she sets for herself, is respected, noting S 4 (8) of the Act, which says that people with disability have “the same right as other members of Australian society to be able to determine their own best interests”. However, as Rule 5.8 of the NDIS Access Rules outlines, an impairment is deemed to result in substantially reduced functional capacity if the person is unable to participate “effectively or completely”. In Foster the Court found:

applying the Macquarie Dictionary to the definition of “completely” to mean ‘wholly, entirely, fully” or “perfectly” that “completely”

appears to be redundant, and in any event, unachievable.

…

It also casts doubt on what work is to be done, if any, by cl 8.3.1 of the Guidelines, which provides that “[u]ndertaking a task more slowly or differently to others will not necessarily mean a person cannot participate effectively or completely in an activity”.

82. The Tribunal considers that while the Applicant cannot participate “completely” in the activities of social interaction, that is, to the extent she would like and to a standard of presentation acceptable to her, based on the evidence provided, she is able to socially interact effectively. This is notwithstanding that making herself presentable is more arduous than it once was, and she may be sometimes discouraged from attempting it by her pain and fatigue. Rule 5.8 deems that the Applicant is not substantially reduced in function if the person is unable to participate effectively or completely; the reduction does not need to be both effectively and completely.

83. The Tribunal finds, considering all the evidence provided, there is insufficient evidence that the Applicant’s impairments have substantially reduced her social interactions and so the requirements of s 24 (1) (c) are not met for social interaction.

84. Overall, the Tribunal finds that although this Applicant suffers reduced function in mobility, self-care and social interaction, there is insufficient evidence that the impairment in any of these activities is substantial, having applied Part 5 of the Rules. (Other areas of activity such as self-management, learning and communication were not contended by the Applicant to have been substantially reduced in functionality and so do not form part of this decision.) Accordingly, the requirements of s 24 (1) (c) are found not to have been met. In that case, it follows, as the Respondent contended and the Applicant did not disagree, the Applicant will not require lifetime support for any substantial impairment and thus that s 24 (1) (e) has not been met.

85. The parties agreed that the requirements of s 24 (1) (d) have been met; that is, that the Applicant’s impairments have affected her socially and economically. The Tribunal accepts this but reiterates that all the requirements of s 24, including those of (1) (c) and 1 (e) have not been met.

Early Intervention

86.  In relation to early intervention, the Operational Guidelines currently state:

We need to decide that getting early intervention supports means you’ll likely need fewer disability supports in the future. 

We need to know that early intervention supports will help you with at least one of the following: 

• addressing the impact of your impairment on your ability to move around, communicate, socialise, learn, look after yourself and organise your life.

• preventing your functional capacity from getting worse.

• improving your functional capacity.

• supporting your informal supports, which includes building their skills to help you.

To help us decide if the early intervention will help you in these ways, we look at: 

• how your impairment might change over time

• how long you’ve had your impairment

• if there’s been a significant change to your impairment

• if your needs are likely to change soon, such as if you’re finishing school.

87.  The Applicant will satisfy the early intervention requirements in s 25 if she meets the criteria in s 25 (1) (a)- (c) and that s 25 (3) is not engaged. In summary, s 25 (1) (a) – (c) requires that the person has one or more identified impairments that are or are likely to be permanent and that the CEO is satisfied the provision of early intervention supports is likely to benefit the person by reducing the person’s future needs for supports in relation to disability.  Alternatively, the CEO is to be satisfied that early intervention would either: mitigate or alleviate the impact of the person’s impairment upon the person’s functional capacity to undertake communication, social interaction, learning, mobility, self-care or self-management; prevent the deterioration of such functional capacity; improve such functional capacity; or strengthen the sustainability of informal supports available to the person. 

The Act notes that:

In certain circumstances, a person with a degenerative condition could meet the early intervention requirements and therefore become a participant.

88. Section 25 (3) stipulates that a person does not meet the early intervention requirements if early intervention support is not most appropriately funded or provided through the National Disability Insurance Scheme.

89. The Respondent contended that early intervention supports would be unlikely to have a significant impact on the course taken by the Applicant’s impairments or have any of the benefits identified in s 25 91) (c) (i)-(iv) having regard to the longstanding and stable nature of the Applicant’s impairments. Further, that there was a lack of evidence from the Applicant’s treating practitioners of any early intervention supports which would be appropriate or relevant. The Respondent also contended that if there were such supports, they would be more appropriately provided through other service systems, including, for example, the health system.

90. The Applicant contended that the provision of supports which would, for example, save her from lifting garden equipment or heavy washing, would protect her joints and prevent further joint damage. In her opening statement she summarised it thus:

“it’s my understanding that if there are supports in place, that would reduce my future care needs…down the track”

Later, she expanded this to mean:

The provision of early intervention supports for the person is likely to benefit the person by mitigating or alleviating the impact of the person’s impairment upon the functional capacity of the person to undertake the particular tasks of self-care mobility’, et cetera. It’s my mobility that is my main concern, and my self- care abilities; that’s my main limiting factors.

91. The Applicant strongly disagreed that her current level of support was sufficient to protect her joints in the future. She told the Tribunal her bicep tear was the result of over-exertion and associated with her psoriatic arthritis, which the Respondent did not dispute, and in cross examination by the Applicant, the OT recognised the impact of joint protection on her future capability:

“if you don’t have joint protection and the capacity to avoid some of the heavier tasks, unfortunately, you might find yourself with more joint degeneration over time than you otherwise would have and that’s going to make tasks, including personal care increasingly difficult.”

92. However, the evidence of the OT, Ms McLaughlin, in her report was that:

“the support Ms Bolt currently has, in addition to the provision of AT and functional education, should prevent any activity-related deterioration, which would lead to an increase in Ms Bolt’s care over time.”

93. In her closing submissions, the Applicant argued that the Respondent had agreed that some of her impairments were permanent, so satisfying the requirements of s 25 (1) (a). the Tribunal agrees this the case but requires that ss 25 (1) (b) and (c) are also satisfied.

94. The Applicant told the Tribunal that Ms McLaughlin’s report established s 25 (1) (b), the requirement for early intervention that the support is likely to benefit the person by “reducing the person’s future needs for supports in relation to disability”.  However, the Respondent contended, which the Applicant addressed in her closing submission, that the further supports of “AT and functional education” could be provided by the health system. The Applicant characterised this as:

“suggesting that I go back to my GP for a referral to the health sector to implement strategies for living with my impairments that are accessible under Medicare.  I am not of the belief that the suggestion adequately addresses my safety and continued ongoing care needs.”

95. The Applicant did not develop her “belief that the suggestion” had not adequately addressed her safety and continued ongoing care needs, so there was no evidence provided to the Tribunal that the health system would not be the appropriate source of the additional supports the OT identified as necessary. The OT’s advice that the Applicant’s current support, with some assistive technology and education, should prevent any activity-related deterioration is also, in the absence of evidence to the contrary, accepted by the Tribunal.

96. The Tribunal finds, on the evidence provided, that the requirements of s 25 (1) (a), (b) and (c) have not been met.

97. The Tribunal accepts the advice of the OT that the Applicant’s joints must be protected in order to avoid further activity-related damage through heavy tasks.  The Tribunal notes the Applicant already organises help with heavy tasks.  In the absence of evidence to the contrary, the additional supports of AT and functional education prescribed by the OT to achieve ongoing protection of the joints, would be, as advised by the Respondent,  available through another service system, in this case, the health system. Accordingly, the stipulations for not meeting the early intervention requirements of s 25 (3) are met.

CONCLUSION

98. The Tribunal concludes that the Applicant is significantly impacted by her impairments of psoriatic arthritis, a bicep tear, lower spinal degradation and adrenal insufficiency, which the Tribunal has found to be permanent. The Tribunal recognises that the Applicant’s disease has reduced her quality of life and caused this vibrant, capable and independent woman deep distress. That she has so intelligently adapted her living circumstances to optimise the management of her impairments is to her credit.

99. However, the requirements of the Act for access to the Scheme require the Tribunal to meet high and positive standards of proof, as outlined in Foster and WRMF, and overall, the Tribunal concludes there is insufficient evidence that the Applicant is substantially impaired in any of mobility, self-care and social interaction and therefore does not meet the requirements of s 24 (1) of the Act.

100. The Tribunal also concludes there is insufficient evidence that the Applicant meets the early intervention requirements of s 25 of the Act.

DECISION

101. Pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision under review of the Respondent made on 5 October 2022.

I certify that the preceding 101 (one-hundred and one) paragraphs are a true copy of the reasons for the decision herein of Senior Member P Goward

..............................[SGD]........................................

Associate

Dated:  5 December 2023

Date of hearing:	30 and 31 October 2023
Counsel for the Respondent:	Mr Matthew Pleming
Representative for the Respondent:	Ms Shenelle Egbert