Brockway and National Disability Insurance Agency (NDIS) - [2024] ARTA 75

Brockway and National Disability Insurance Agency (NDIS) [2024] ARTA 75 (15 November 2024)

Applicant/s:  Janelle Brockway
Respondent:  National Disability Insurance Agency
Tribunal Number:                2022/7425

Tribunal:General Member J Toohey
Place:Brisbane
Date of Oral Decision: 15 November 2024

Date of Written Reasons: 27 November 2024
Decision:The Tribunal affirms the decision under review that the Applicant does not meets the access requirements in section 21 of the National Disability Insurance Scheme Act 2013 (Cth).

..............[SGD]..............................................
J Toohey
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – Access – Becoming a participant rules – Commencement of the Administrative Review Tribunal – Getting the NDIS Back on Track – Substantially Reduced Functional Capacity – Assessing Activities and Tasks –– Chronic Pain – Alzheimers – Early Intervention – Appropriateness of Other Systems of Support – Applied Principles and Tables of Support to Determine the Responsibilities of the NDIS and other Service Systems – APTOS – Reviewable Decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 (Cth)
National Disability Insurance Scheme (Becoming a Participant) Rules 2016
Cases
National Disability Insurance Agency v Foster [2023] FCAFC 11
National Disability Insurance Agency v WRMF [2020] FCAFC 79
Secondary Materials
The Applied Principles and Tables of Support to Determine the Responsibilities of the NDIS and other Service Systems as published on 27 November 2015
Statement of Reasons
BACKGROUND

On 2 September 2022, a delegate of the CEO of the National Disability Agency (the Agency) affirmed its decision to refuse Ms Brockway access to the scheme.[1] On the same day, the Applicant applied for a review of this decision to the Administrative Appeals Tribunal (AAT) under section 103 of the National Disability Insurance Scheme ACT 2013 (NDIS Act) and section 25 of the Administrative Appeals Tribunal Act 1975 (AAT Act).[2]
[1] Joint Tender Bundle, T2.
[2] Joint Tender Bundle, T1.
Ms Brockway is a 55-year-old women who was involved in a motor vehicle accident when she was 16. This accident has left her with chronic back pain which worsened during her first pregnancy when she was aged 20. The Applicant has, more recently, also been diagnosed with early onset Alzheimer’s disease.
The Applicant lives alone in social housing. One of her sons, Michael, used to live with her. He receives a carer’s pension and assists the Applicant several times a week and when called. Ms Brockway receives the Disability Support Pension.
Ms Brockway also previously received support from her stepfather. Unfortunately her stepfather has recently been hospitalised for an extended period and now requires more support and care himself. He is no longer allowed to drive. Ms Brockway receives fortnightly cleaning services via Anglicare which is partly subsidised, and she pays for a lawn mowing service.
Initially, a hearing was scheduled for 18 and 19 July 2024, however the Applicant failed to attend this hearing. The Applicant advised that she had been very unwell and had forgotten the hearing was scheduled. The Agency did not seek dismissal. The hearing was rescheduled and held on 14 and 15 November by telephone. These reasons were provided orally on 15 November 2025. References, citations, jurisdiction, and transitional information has been added in these written reasons.
RECENT TRIBUNAL AND NDIS ACT AMENDMENTS
On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 (Back on Track Act) commenced on 3 October 2024 and made significant amendments to the NDIS Act. As Ms Brockway’s request for access to the NDIS was made before 3 October 2024, section 126 of the Back on Track Act provides that the NDIS Act, Rules and Guidelines apply as they existed before the commencement of the Back on Track Act.
OVERVIEW OF THE NDIS DECISION-MAKING FRAMEWORK
To become a participant in the NDIS, the Applicant must satisfy the access criteria set out in section 21 of the NDIS Act. This includes criteria in relation to age, residence, disability and early intervention. The disability requirements are set out in section 24 of the NDIS Act. If one of these requirements are not met, access cannot be granted. The early intervention requirements are set out in section 25 of the NDIS. If one of these criteria are not met, early intervention access cannot be granted.
Rule 5.8 of the Becoming a Participant Rules sets out the circumstances in which an impairment results in substantially reduced functional capacity. These are that:
(a)     the person is unable to participate effectively … in the activity … without assistive technology, equipment … or home modifications; or
(b)     the person usually requires assistance … from other people to participate in the activity … or
(c)     the person is unable to participate in the activity … even with assistive technology, equipment, home modifications or assistance from another person.[3]
[3] Additional words removed by the Tribunal for brevity.
INFORMATION AVAILABLE TO THE TRIBUNAL
I have considered a range of evidence from the parties which was provided in a joint hearing bundle (Exhibit 1). This bundle contains:
(a)the ‘T’ documents;[4]
(b)summonsed records from Metro South Health and Logan Hospital;
(a)several reports from the Applicant’s treating practitioners including her GP, Dr Tandon and a specialist geriatrician, Dr Khatry; and
(b)independent medical reports arranged by the Agency, from Dr Machart, an orthopaedic surgeon, and Catherine Cummings, an occupational therapist.
[4] All of the material that was relevant to the Agency’s decision as provided under section 37 of the AAT Act.
This bundle, inadvertently, did not include an email from the Applicant’s Optometrist, Chin Song Yek, dated 24 January 2023. This had previously been provided to both parties and the Tribunal and was confirmed as Exhibit 2 on the second day of the hearing.
The Tribunal also has the benefit of the Agency’s Statement of Facts, Issues and Contentions; oral evidence and submissions from the Applicant, oral evidence from Catherine Cummings; and oral submissions from the Agency at the hearing.
CONSIDERATION
Disability Requirements
In the access request form,[5] Dr Tandon indicated that the Applicant’s functional capacity was impacted in relation to her mobility, communication, learning, self-care, and self-management. In relation to communication, Dr Tandon indicated that the Applicant required assistance occasionally. Dr Tandon also noted that home modifications had been completed by the Department of Housing. Dr Tandon said that the Applicant would benefit from new glasses, a wheelchair, a video doorbell, and ready-made meals. Dr Tandon also advised that a referral to a geriatrician had been arranged.
[5] Joint Hearing Bundle, T4.
The specialist geriatrician, Dr Khatry, confirmed a diagnosis of Alzheimer’s disease and discussed treatment and medication side-effects.[6] The Applicant’s Optometrist, Chin Song Yek, confirmed macular conditions but concluded that the Applicant’s vision was still good.[7] Her vision will be monitored every year or earlier if needed.
[6] Joint Hearing Bundle, B5
[7] Exhibit 2.
The report of Dr Machart confirms permanency of the Applicant’s chronic pain syndrome affecting the thoracic and lumbar spine.[8] Dr Machart discussed the Applicant’s chronic pain as being compounded by obesity but considered that these conditions had been appropriately treated. Dr Machart largely defers to the occupational therapist with regards to assessing functional capacity.
[8] Joint Hearing Bundle, C1.
The occupational therapist, Catherine Cummings, provided a detailed functional capacity assessment which included a home visit and consideration of the previous reports and summonsed records.[9] At paragraph 5.1 of this report, Ms Cummings indicated the assessment was based on observations on a typical day for the Applicant with pain a little worse than usual.
[9] Joint Hearing Bundle, C2.
I found the report and evidence of Ms Cummings very helpful. The level of detail in Ms Cummings report with observations of the Applicant completing tasks in her home is preferable to the assessment completed by Dr Tandon. Dr Tandon is the Applicant’s GP and can be expected to have developed a good understanding of the Applicant’s impairments over time. However, at Part D of the access request form, Dr Tandon indicated that no specific assessments of the Applicant’s functional capacity had been conducted. For this reason, I prefer Ms Cummings’ report to Dr Tandon’s report to the extent that these reports are inconsistent.
At the hearing, Ms Brockway advised that her pain, vision, and Alzheimer symptoms had all worsened. However, there is no recent information from the Applicant’s treating practitioners that confirm this deterioration. In her oral evidence, Ms Brockway described a typical day as being spent mostly in bed watching TV or listening to music. Ms Brockway is able to get out of bed to go to the toilet, shower, and eat. She usually has a coffee for breakfast, makes a sandwich for lunch, and has a pre-prepared ‘Lite N Easy’ meal for dinner. Ms Brockway needs to sit on a chair to prepare meals. She can take her pain medication. Ms Brockway described seldom leaving the house but that she can drive for around 15 to 20 minutes. She arranges most appointments by telehealth. She has meals and groceries delivered. These are brought in for her but she is able to put them away. Ms Brockway said that she is not able to walk her pet dogs.
The Federal Court has clarified that the assessment of functional capacity needs to be with respect to the bundle of tasks and actions forming each activity, rather than focussing on a single task within that activity.[10] I will consider each of the activities.
Communication[11]
[10] See National Disability Insurance Agency v Foster [2023] FCAFC 11, at paragraph 65.
[11] NDIS Act, section 24(1)(c)(i).
The report of Dr Tandon indicates that the Applicant’s life is affected ‘occasionally’ in relation to communication and that the Applicant would be assisted by a video door-bell and new glasses. Ms Cummings, at Section 5.1.1, observed that the Applicant was able to communicate independently, did not demonstrate any restrictions with being understood or report any concerns with understanding others. I find that the Applicant does not have a substantially reduced functional capacity in respect of communication.
Social interaction[12]
[12] NDIS Act, section 24(1)(c)(ii).
Dr Tandon did not indicate that there was a substantial impact on the Applicant’s capacity in this activity. Ms Cummings, at Section 5.1.2, observed that the Applicant was independent in relation to social interaction and that when the Applicant does enter the community, she is able to interact without assistance. I find that the Applicant does not have a substantially reduced functional capacity in respect of social interaction.
Learning[13]
[13] NDIS Act, section 24(1)(c)(iii).
Dr Tandon does not add any further detail other than to say that the Applicant was impacted in relation to learning and that a referral was being arranged for assessment by a geriatrician. In his referral letter dated 25 January 2022,[14] Dr Tandon states that the Applicant scored a 22/30 on a Mini-Mental State Examination (MMSE) and that this is a mild cognitive impairment. While Dr Khatry does not comment specifically on the level of impairment from the Applicant’s Alzheimer’s disease, for her report of 1 July 2022, Dr Khatry also conducted an MMSE in which the Applicant scored 25/30. This was within the normal range.[15]
[14] Joint Hearing Bundle B3.
[15] See >
In her report dated 6 January 2023, Dr Khatry indicated that the Applicant’s symptoms had not improved or worsened. Ms Cummings, at section 5.1.3, observed that the Applicant used modified techniques to maintain independence in relation to learning. Ms Cummings observed that the Applicant was able to take on new information, sometimes by reading material more than once and using text reminders. In my view, the Applicant’s Alzheimer’s disease is impacting her functioning in relation to learning, but this is not yet at a point which amounts to a substantial reduction. I find that the Applicant does not have a substantially reduced functional capacity in respect of learning.
Mobility[16]
[16] NDIS Act, section 24(1)(c)(iv).
The report of Dr Tandon indicates that the Applicant’s life is affected in relation to mobility, particularly with respect to walking, transfers, sitting, and that the Applicant used a wheeled chair to move around her house. Dr Khatry reported that the Applicant:
·does not use walking aids at home;
·uses chairs with wheels to navigate around the home;
·uses a mobility scooter when at the shopping centre; and
·has had some near miss falls in the last 6 months.
During questions from the Agency at the hearing, Ms Brockway acknowledged that losing weight had previously improved her mobility. The Agency submitted that this should change the Tribunal’s assessment of the permanence of Ms Brockway’s impairments with respect to mobility. I prefer the opinion of Dr Machart, at parts 2.5 to 2.7 of his report, that weight loss was unlikely to achieve substantial improvement for the Applicant.
Regardless of any improvement that might be achieved through weight loss, Ms Cummings, at section 5.1.4, still observed that the Applicant was able to use a modified technique to complete most mobility tasks. Applying the Federal Court’s guidance to focus on the bundle of tasks and actions forming each activity, rather than focussing on a single task within that activity,[17] I consider that, for some individual tasks within the mobility activity, the Applicant uses assistive technology or home modifications. However, looking at the bundle of tasks as-a-whole, I find that the Applicant does not have a substantially reduced functional capacity in respect of mobility.
Self-care[18]
[17] See National Disability Insurance Agency v Foster [2023] FCAFC 11, at paragraph 65.
[18] NDIS Act, section 24(1)(c)(v).
Dr Tandon reported that the Applicant was impacted in relation to self-care and that she would be assisted by delivery of ready-made meals. Dr Khatry did not indicate any issues for the Applicant in relation to self-care and Dr Machart considered that the Applicant was ‘able’ to self-care. Ms Cummings, at section 5.1.5, observed that the Applicant was independent or used a modified technique in relation to toileting, dressing, grooming, preparing meals, kitchen cleaning, rubbish disposal, and washing laundry. Ms Cummings assessed the Applicant as requiring physical assistance in relation to house cleaning and lawn mowing and that she used a shower chair as assistive technology. I also note that Ms Cummings says at section 7.9 of her report that Ms Brockway will require assistance with self-care tasks as her cognition deteriorates over time due to Alzheimer’s.
I find that, for some individual tasks within the self-care activity, the Applicant requires assistive technology or assistance from others. However, looking at this bundle of tasks as-a-whole, I find that the Applicant does not have a substantially reduced functional capacity in respect of self-care at this time.
Self-management[19]
[19] NDIS Act, section 24(1)(c)(vi).
Dr Tandon did not provide any further detail other than to indicate the Applicant was impacted in relation to self-management. Dr Khatry reported that the Applicant paid her own bills and ordered online shopping. Dr Machart did not express an opinion in relation to the Applicant’s capacity to self-manage. Ms Cummings, at section 5.1.6, observed that the Applicant used modified techniques or assistive technology in relation to planning, taking responsibility for activities, and managing her finances. I acknowledge that Ms Cummings says at section 10.6 of her report that, although Ms Brockway is managing independently currently, her care needs will increase in relation to self-management as her Alzheimer's disease progresses. At this point in time, I find that the Applicant does not have a substantially reduced functional capacity in respect of self-management.
Summary of functional capacity
Overall, I find that the Applicant can complete most tasks within the activities set out in section 24 either independently or with some modifications. I am not satisfied that the Applicant currently has impairments that result in a substantially reduced functional capacity in one of the activities set out in section 24. As I have concluded that this requirement is not met, I do not need to make findings in relation to the other disability requirements in section 24.
Early intervention requirements
I must also consider whether the Applicant meets the early intervention requirements in section 25 of the NDIS Act. These early interventions requirements do not require a substantially reduced functional capacity.
However, under section 25(3), a person does not meet the early intervention requirements if the support is more appropriately funded through other systems. For a person to be excluded from access under this provision, a decision-maker needs to be satisfied that early intervention support for the person is not most appropriately funded or provided through the NDIS.
At section 5.15 of her report Ms Cummings says that Ms Brockway would benefit from a multidisciplinary pain management program; and a graded exercise program with an exercise physiologist to address her strength and endurance; and that exercise is also important in the management of Alzheimer’s disease. According to information published on the government health direct website,[20] both back pain and dementia are conditions for which a chronic disease management (CDM) plan may be available. Through a CDM plan the Applicant may be able to access allied health professionals including an occupational therapist, exercise physiologist, dietician, or psychologist. At the hearing, Ms Cummings confirmed that, based on her experience, a CDM plan would provide access to allied health professionals as would Community Health Services such as the Logan Central Community Health Centre.
[20] >
Part 7 of Ms Cummings report also discusses, in some detail, the other programs that might be available for the Applicant, including the Queensland Community Support Scheme (QCSS)[21] and the Medical Aids Subsidy Scheme (MASS).[22] The public information about the services offered under the QCSS includes: planning and preparing meals; household chores; and essential yard maintenance. Wheeled walking aids are listed as an available mobility aid under the MASS. At the hearing, Ms Cummings indicated that the Four Wheeled Walker recommended in her report was likely to be available to Ms Brockway under the MASS.
[21] type="1">
During the hearing, I asked Ms Brockway about whether she had spoken to her GP about a CDM plan or sought support under the other services outlined in Ms Cummings report. Ms Brockway advised that she had not. In my view, it would be a good idea for Ms Brockway to explore these options.
According to the Applied Principles and Tables of Support to Determine the Responsibilities of the NDIS and other Service Systems[23] social housing providers will be responsible for providing accessible accommodation for people in need of housing assistance. In relation to yard maintenance, in my view, it is reasonable to expect that maintenance of public housing will include a level of yard maintenance for tenants that are unable to do this.
[23] (published 27 November 2015).
Overall, I am satisfied that early intervention support is not most appropriately provided by the NDIS. In my view, treatments for the Applicant’s chronic health conditions are more appropriately provided under the health system. I am satisfied that other systems of support, such as social housing, QCSS and MASS are also more appropriate to provide support services to the Applicant at this stage.
CONCLUSION
I appreciate that the Applicant has longstanding and chronic back pain. Along with her more recent Alzheimer’s diagnosis, I have no doubt that these conditions impact the Applicant’s quality of life. Realistically, these impacts are likely to become worse over time due to the degenerative nature of the conditions. However, I cannot conclude that these impacts means that the Applicant is eligible for access to the NDIS at this point-in-time. It may be that the Applicant becomes eligible for the NDIS in the future. The Applicant can reapply for access to the NDIS. I would encourage the Applicant to continue seeking supports through the health, housing, and other mainstream systems. A NDIS local area coordinator may be able to assist with accessing these services.
In reaching this conclusion, I have also considered the objects and principles of the NDIS Act,[24] including that people with disability should be supported to receive supports outside the NDIS and be assisted to coordinate these supports with the supports provided under the NDIS.[25] I have also considered the need to adopt an insurance-based approach and ensure the financial sustainability of the Scheme,[26] and the need for interaction between mainstream services and the NDIS.[27]
[24] See National Disability Insurance Agency v WRMF [2020] FCAFC 79 at paragraph 138.
[25] NDIS Act section 4(14).
[26] NDIS Act section 3(2)(b).
[27] NDIS Act section 3(3)(d).
DECISION
Under section 105(a) of the Administrative Review Tribunal Act 2024 (Cth), the Tribunal affirms the decision under review. The Applicant does not meet the access criteria for the purposes of sections 21, 24 or 25 of the National Disability Insurance Act Scheme 2013 (Cth).

40. I certify that the preceding 39 (thirty-nine) paragraphs are a true copy of the reasons for the decision herein of General Member J Toohey.

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Associate
Dated: 27 November 2024

Dates of hearing: 14 and 15 November 2024

Solicitors for the Applicant: Self-represented

Solicitors for the Respondent: Ms P Frost, Maddocks Lawyers

Dates of hearing:	14 and 15 November 2024
Solicitors for the Applicant:	Self-represented
Solicitors for the Respondent:	Ms P Frost, Maddocks Lawyers