Campbell and National Disability Insurance Agency

[2024] AATA 410

Campbell and National Disability Insurance Agency [2024] AATA 410 (12 March 2024)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2022/3814

Re:Stephen Campbell

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Senior Member K Buxton

Date:12 March 2024

Place:Brisbane

The Tribunal affirms the decision under review pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).

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

Senior Member K Buxton

Catchwords

NATIONAL DISABILITY INSURANCE SCHEME – Application for Review of Decision – Access to Scheme – Applicant not having met the disability and early intervention requirements of the Act – Decision Under Review Affirmed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

National Disability Insurance Scheme Act 2013 (Cth)

National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)

Cases

Mulligan and National Disability Insurance Agency [2015] AATA 974
Mulligan v National Disability Insurance Agency [2015] FCA 544
National Disability Insurance Agency v Davis [2022] FCA 1002
National Disability Insurance Agency v Foster [2023] FCAFC 11
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Schwass and National Disability Insurance Agency [2019] AATA 28

REASONS FOR DECISION

Senior Member K Buxton

12 March 2024

1. In this application Mr Stephen Campbell (‘the Applicant’) seeks review of a decision of the National Disability Insurance Agency (‘the Respondent’) declining his request for access to the National Disability Insurance Scheme (‘the NDIS’). 

2. The Applicant is now 66 years of age and lives in Queensland. In late 2021 the Applicant made a request to become a participant in the NDIS on the basis of his Severe Knee Osteoarthritis, Chronic Pain (Back/Low Limb), Obesity, Depression and Anxiety. The Applicant’s access request was declined. He sought internal review of that decision under subsection 100(6) of the National Disability Insurance Scheme Act 2013 (Cth) (‘the NDIS Act’) and, on 29 March 2022 a delegate affirmed the earlier decision on 5 October 2021. The Applicant applied to the Tribunal for review. The Applicant contends that he meets the access criteria prescribed under section 21 of the NDIS Act.

3. The Respondent accepts, and the available evidence (referred to later in these reasons) demonstrates, that the Applicant’s request met the age and residency requirements in order to access the scheme.[1] The issues arising in this case are whether the Applicant satisfies the “disability requirements” under section 24 of the NDIS Act and/or the “early intervention requirements” under section 25 of the NDIS Act.

   [1] NDIS Act, para 21(1)(a) and (b), ss 22 and 23. He was under 65 years of age at the time of his request.

4. There are five mandatory requirements that the Applicant must satisfy in order for him to meet the “disability requirements” as set out in paragraphs 24(1)(a) to (e) of the NDIS Act (reproduced below). The Respondent accepts that the Applicant meets the requirements in paragraphs 24(1)(a) and (d) of the NDIS Act in respect of his impairments. However, the Respondent contends that he does not meet paragraph 24(1)(b), (c) and (e) of the NDIS Act for his impairments. The Respondent does not accept that the Applicant meets the early intervention requirements in section 25 of the Act.

5. The review was determined on the papers and without an oral hearing in accordance with section 34J of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’). In arriving at a decision, the Tribunal has considered the documents provided by the Respondent under section 37(1) of the AAT Act and various additional documents lodged by the parties, including medical reports, together with various written submissions.[2]

   [2] Hearing Bundle (HB) lodged on 28 February 2024; Applicant’s brief written submissions filed 16 February 2024.

6. For the reasons that follow, the Tribunal has not reached the requisite level of satisfaction, in this case, that the Applicant has met the access criteria in either section 24 or section 25 of the NDIS Act.

   RELEVANT LEGISLATION

7. The objects and principles in the NDIS Act give guidance on the interpretation of the statute and these can be found in sections 3 and 4 of the NDIS Act. In particular, the objects of the Act relevantly include giving effect to Australia’s obligations under the Convention on the Rights of Persons with Disabilities established at the UN Headquarters in New York on December 2006.[3] Paragraph 3(3)(b) of the NDIS Act provides that regard is to be had to the need to ensure the financial sustainability of the NDIS in giving effect to the objects of the NDIS Act.

   [3] [2008] ATS 12, ratified by Australia on 17 July 2018.

8. The Minister may make rules prescribing matters pursuant to subsection 209(1) of the NDIS Act. Relevant to this matter, the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (‘the Access Rules’) form part of the legislative scheme. Operational Guidelines written by the Chief Executive Officer of the Respondent also assist staff to make decisions in accordance with the NDIS Act. Operational Guidelines represent government policy and should be considered by the Tribunal unless there is good reason not to do so.[4] The relevant Operational Guideline is the Our Guidelines – becoming a participant (‘the Access Operational Guidelines’)[5] published in June 2023. Relevant parts of the Access Rules and the Access Operational Guidelines are set out and considered later in these reasons.

   [4] Re Drake and Minister for Immigration and Ethnic Affairs (No 2)(1979) 2 ALD 634.

   [5]  National Disability Insurance Agency, Our Guidelines – Applying to the NDIS, (Web Page) < > (‘The Access Operational Guidelines’).

   The Access Criteria

9. To become a participant in the NDIS, a prospective participant must satisfy the access criteria, which are set out in subsection 21(1) of the NDIS Act:

   21 When a person meets the access criteria

   (1)       A person meets the access criteria if:

   (a)The CEO is satisfied that the person meets the age requirements (see section 22); and

   (b)The CEO is satisfied that, at the time of considering the request, the person meets the residence requirements (see section 23); and

   (c)The CEO is satisfied that, at the time of considering the request:

   (i)     the person meets the disability requirements (see section 24); or

   (ii)    the person meets the early intervention requirements (see section 25).

10. There is no dispute that the Applicant meets the age requirements in section 22 of the NDIS Act and the residence requirements in section 23 of the NDIS Act. Therefore, the issues for determination by the Tribunal are whether the Applicant meets the access criteria that are set out in sections 24 and 25 of the NDIS Act.

11. Section 24 of the NDIS Act states:

    24 Disability requirements

    (1)  A person meets the disability requirements if:

    (a)the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or 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, or psychosocial functioning in undertaking, one or more of the following activities:

    (i)     communication;

    (ii)    social interaction;

    (iii)   learning;

    (iv)   mobility;

    (v)    self‑care;

    (vi)   self‑management; and

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

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

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

12. Section 25 of the NDIS Act states:

    25   Early intervention requirements

    (1)  A person meets the early intervention requirements if:

    a.    the person:

    (i)     has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent; or

    (ii)    has one or more identified impairments that are attributable to a psychiatric condition and are, or are likely to be, permanent; or

    (iii)   is a child who has developmentaldelay; and

    b.    the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person's future needs for supports in relation to disability; and

    c.     the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by:

    i.mitigating or alleviating the impact of the person's impairment upon the functional capacity of the person to undertake communication, social interaction, learning, mobility, self-care or self-management; or

    ii.preventing the deterioration of such functional capacity; or

    iii.improving such functional capacity; or

    iv.strengthening the sustainability of informal supports available to the person, including through building the capacity of the person's carer.

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

    (1A)For the purpose of subparagraph (1)(a)(i) or (ii), an impairment or impairments that are episodic or fluctuating may be taken to be permanent despite the episodic or fluctuating nature of the impairments.

    (2)  The CEO is taken to be satisfied as mentioned in paragraphs (1)(b) and (c) if one or more of the person's impairments are prescribed by the National Disability Insurance Scheme rules for the purposes of this subsection.

    (3)  Despite subsections (1) and (2), the person does not meet the early intervention requirements if the CEO is satisfied that early intervention support for the person is not most appropriately funded or provided through the National Disability Insurance Scheme, and is more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or through systems of service delivery or support services offered:

    a.    as part of a universal service obligation; or

    b.    in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.

13. The criteria set out in each of subsections 24(1) or 25(1) of the NDIS Act are cumulative. All of the requirements in either subsections 24(1) or 25(1) of the NDIS Act must be met for a person to become a participant in the NDIS.

    THE APPLICANT’S CONTENTIONS

14. The effect of the review and supporting material lodged by the Applicant is that he contends that he was a person who met the access requirements by meeting the requirements under sections 24 or 25 of the NDIS Act. The Applicant submitted that the impact of his impairments upon his functional capacity led to the conclusion that he had impairments that were substantial and permanent, and for which he was likely to require lifetime support from the NDIS. Alternatively, he submitted that his stated need for supports now would reduce the need for supports over his lifetime.

15. The review application emphasised that the Applicant had been on crutches for 16 years and was in constant pain, including chronic pain in the back, neck, shoulders, arms, wrists and hands and was unbale to walk far due to his non-functional knee.

16. On 16 February 2024 the Applicant lodged a brief submission which noted:

    (a)The Applicant was due to see a specialist on 20 February 2024 (he did not say which specialist);

    (b)He was not sure that this doctor could help his cause as the NDIA did not take doctor’s reports into account;

    (c)He did not know what to do to get help as his conditions worsen.

    THE RESPONDENT’S CONTENTIONS

17. The Respondent submitted that the decision under review ought to be affirmed as the Applicant does not satisfy either the disability requirements or the early intervention requirements.

18. The Respondents statement of facts, issues and contentions does not make any substantive submissions about the Applicant’s stated conditions of anxiety and depression.

19. As to the Applicant’s physical conditions, the Respondent submitted that the Applicant met the requirements of paragraph 24(1)(a) of the NDIS Act, as the Applicant has a disability arising from Severe Knee Osteoarthritis and Chronic Pain (Back/Low Limb) to which the following physical impairments are attributable:

    (a)difficulty walking as a result of dysfunctional right knee;

    (b)severe right knee pain affecting his ability to mobilise;

    (c)pain and fatigue in the shoulders and arms affecting movements of upper limbs; and

    (d)overweightness affecting movement of limbs.

20. As to paragraph 24(1)(b) of the NDIS Act, the Respondent accepted that the physical impairments relating to his right knee were permanent and therefore met the requirements of section 24(1)(b) of the NDIS Act.

21. The Respondent contended that the Applicant did not meet those requirements in respect of Chronic Pain (Back/Low Limb) and Obesity on the basis that there is insufficient evidence to support a finding of fact or inference of fact that there are no known, available and appropriate evidence-based treatments that would likely remove, cure or substantially relieve these physical impairments.

22. The Respondent submitted that the Applicant’s impairments do not result in a substantial reduction in the Applicant’s functional capacity in order to meet paragraph 24(1)(c) of the Act. Under paragraph 24(1)(c) of the Act, the Tribunal must be satisfied that the impairment(s) result in a substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the activities of communication, social interaction, learning, mobility, self-care or self-management.

23. The Respondent further submitted that, in any event, the functional capacity evidence available to the Tribunal did not demonstrate substantial reduction in the functional capacity of the Applicant. The Respondent contended that where paragraph 24(1)(c) of the NDIS Act is not met, it followed that paragraph 24(1)(e) of the NDIS Act would not be met and relied upon the decision of the Tribunal in Mulligan and National Disability Insurance Agency.[6]

    [6] [2015] AATA 974 at [153].

24. The Respondent submitted that the requirements of subsection 25(1) of the NDIS Act had not been met. The Respondent submitted that early intervention supports will not benefit the Applicant by reducing his need for supports in relation to disability in the future.

25. The Respondent further contended that the evidence did not establish that early intervention supports are most appropriately funded by the NDIS. Instead, the Respondent contended that any intervention for the Applicant’s physical impairments arising from Severe Knee Osteoarthritis (Right Knee Replacement) is most appropriately provided through the Health System.

    EVIDENCE

26. The Applicant’s undated statement of lived experience contains various observations of his issues from his perspective. He stated that he could not walk without crutches and had been using them for 16 years. He cannot go far without major pain relief as his shoulders, arms, back and wrists become sore. He can drive but if he drives a long distance it is very painful when he gets out of the car at his destination. He does not usually leave his unit unless to go to his parent’s place or the shops. The Applicant’s social life has disappeared. His sanity took a severe beating and his faith in humanity has been shattered. His depression has become worse and his people skills are not what they were.

27. Ms Yvonne Drysdale, the Applicant’s carer, prepared an undated statement of lived experience in which she stated that the Applicant had chronic pain and, as this worsens, so his mental health deteriorates. Ms Drysdale noted that the Applicant’s capacity to communicate was good, but that he struggled in other domains of functional capacity.

28. The Applicant has consulted various specialists, including his General Practitioners, and submitted documents to the Respondent which are contained in the T documents lodged with the Tribunal. Also within that bundle of documents is information relating to an earlier request for access, made by the Applicant with the assistance of Dr Hong Zhou, his General Practitioner at the time, in December 2019, including a supporting evidence form completed by Dr Zhou and lodged in March 2021 which sets out the basis upon which the Applicant then satisfied the access criteria.

29. In a letter to the Respondent dated 18 March 2021, Dr Zhou stated: “Mr Stephen Campbell had right knee sports injury in 2006. He has had 4 right knee surgeries in 2013, 2015, 2017, and 2020 for right knee replacement. He has been on bilateral crutches since 2006, over 15 years. He suffers from chronic long term severe right knee pain, lose his mobility gradually, he also suffers from shoulder and upper back and arms back due to long term using crutches, his left knee function deteriorating due to right knee dysfunction. He has been unemployed, had significant weight gain over the years due to immobility, also suffers from depression and anxiety due to his physical medical conditions, all of above medical conditions had impact on his social and personal life.”

30. In the supporting evidence form, Dr Zhou notes that the Applicant had severe knee osteoarthritis, a right knee replacement, chronic pain and was overweight and would benefit from a mobility scooter as mobility was the functional domain in which the Applicant required assistance. Current treatments were identified as diet and exercise for weight reduction and further recommended treatments were identified as physiotherapy, rehabilitation and orthopaedic surgical treatment. As can be seen from the March 2021 letter from Dr Zhou, that further orthopaedic surgical intervention took place in 2020. In a further supporting document,[7] Dr Zhou noted that the Applicant had been using crutches for over 15 years, and further noted that the applicant had chronic back pain, obesity, depression and anxiety. Dr Zhou noted right knee rehabilitation and weight reduction as early intervention supports that were likely to benefit the Applicant by reducing his future need for supports. He was prescribed an anti-depressant (Lexapro). Again, only the domain of mobility was identified by Dr Zhou as an area in which the Applicant required assistance.

    [7] HB, p.46.

31. On 11 November 2020 Dr Sandhu, Orthopaedic PHO at the Princess Alexandra Hospital, wrote to Dr Zhou on behalf of Dr Dekkers, the Orthopaedic surgeon who had undertaken the Applicant’s right knee surgery some weeks earlier. The letter indicated that the Applicant was “on track” to recover from “quite a complicated surgery” and recommended ongoing remedial physiotherapy.[8]

    [8] HB, p.56.

32. On 30 November 2021, an NDIS Application form was completed by the Applicant with the assistance of Dr Nisha, who had by then become the Applicant’s General Practitioner. Dr Nisha identified the Applicant’s main disability as “difficulty mobilising as a result of unsuccessful right knee replacement surgeries” and as having chronic knee and back pain. The Applicant was described as having once-weekly physiotherapy sessions at that time. Dr Nisha noted that knee rehabilitation and assistance with mobility were early intervention supports that were likely to benefit the Applicant by reducing his future need for supports to prevent progression of these degenerative conditions.[9] The functional domains in which the Applicant required assistance were identified by Dr Nisha as mobility, socialising and self-care and it was identified that the Applicant needed a mobility scooter and an electrical lift recliner chair together with hand rails in the shower/toilets and around the house. Dr Nisha further stated, “I have reviewed Stephen on multiple occasions and have noted him to have significantly reduced functional capacity to mobilise and he has appeared to be in significant physical and psychological distress as a result. He is on maximum medical management and is also getting ongoing physiotherapy which hasn’t made much improvement. I feel that a mobility scooter would greatly help Stephen be able to mobilise and get around with much more ease.”

    [9] HB, p.72-73.

1. On 23 June 2022 Dr Parfitt, Orthopaedic surgeon, wrote a letter following a consultation with the Applicant. He noted that the Applicant continued to complain of right knee pain and stated that he felt that the left knee was starting to cause problems and complained of some lumbar spine pain. A recent MRI showed only mild degenerative changes and no stenosis or disc bulges. Dr Parfitt stated that, “At this stage there is nothing about his knee replacement that changing is likely to improve his current function.”[10] He expressed concern about other areas of pain and recommended a rheumatology review to investigate the Applicant’s joint pain.

   [10] HB, p.238.

2. Mr Adam Baldock, Occupational Therapist, undertook a functional assessment of the Applicant and prepared a report dated 14 April 2023.[11] He noted the following relevant information about the Applicant’s circumstances:

   (a)The Applicant is in receipt of Centrelink funded care thrice weekly via Ms Drysdale. Ms Drysdale reported attending the property Monday, Wednesday, and Friday between 9am – 8.30pm. She also reported driving the Applicant to appointments outside of these times and taking Mr Campbell to the beach on Sundays. Ms Drysdale also reported frequently staying the night depending on how the Applicant was feeling. Ms Drysdale reported that her care work sees her complete all cooking, cleaning, laundry, and shopping tasks. She reported that the Applicant’s low level of standing tolerance means he is not capable of completing these tasks independently.

   (b)The Applicant reported a preference to drive either the car or his scooter when required to attend appointments or travel locally. He reported having tried public transport (train) but was not able to cope with the walking to/from the platform etc. Ms Drysdale drives the Applicant to appointments as required. The Applicant does maintain a driver’s licence and reported driving as required when required to attend appointments or social events outside of the local area.

   [11] HB, p.194.

3. Mr Baldock made the following observations about the Applicant’s functional capacity:

   (a)As to mobility, the Applicant was observed to move around utilising two elbow crutches for support but was observed to stumble on several occasions reporting collapse of the knee(s). On all occasions he was able to catch himself. He did not fall during the assessment, although did report having fallen on several previous occasions. When moving around Mr Campbell displayed pain behaviour, groaning, grimacing and jolting with sudden pain onset. Whilst this appeared to be predominately back pain Mr Campbell reported bilateral knee pain also. Mr Campbell was observed and reported a walking capacity (with crutches) of 150-metres. If required to travel further, he will utilise a mobility scooter on loan from a friend. The scooter is parked in a charging bay an estimated 30-metres from Mr Campbell’s front door. Mr Campbell was observed to stand without the support of crutches during the assessment. He was also observed to shuffle in/out of the shower utilising the shower head height adjustment rail for support. And the toilet, utilising the towel rail nearby. Due to reportedly high levels of pain in both the knees when mobilising and the back, together with shoulder, elbow and wrist pain, and a stomach hernia, Mr Campbell maintains a sedentary lifestyle. This has caused him to put on excess weight of which he would benefit from reduction. Likely decreasing pain and improving mobility. An increase in core strength would likely reduce or eliminate Mr Campbell’s back pain. Despite being overweight, Mr Campbell was observed to present with large shoulders and bicep/upper arm muscles which is likely a result of propping on the crutches during mobility.

   (b)As to self-care, Mr Baldock noted that the Applicant reported, and was observed during the functional capacity assessment, to be independent in all activities of self-care. He was able to dress and undress, shower, toilet and groom independently and without assistance, although he was noted to be slow in these task and to experience pain whilst doing so. Mr Baldock noted that the Applicant has modified some tasks as a result of his use of crutches and utilises compensatory techniques to accommodate this. Mr Baldock noted that Ms Drysale completes tasks such as cooking, clearing, laundry and shopping. However, he did not express the view that the Applicant was unable to perform such tasks and noted that the Applicant does attend to some of his own shopping tasks at times. He further noted that the Applicant’s capacity to undertake cooking, cleaning, laundry, and shopping activities may be improved by weight-loss and/or strengthening of the core and joint muscles to increase mobility, lift/carry capability and overall well-being, and that grocery shopping could be completed by the Applicant online.

   (c)Mr Baldock did not consider that the Applicant had limitations on his capacity for communication, social interaction, learning or self-management. Mr Baldock made observations at to various respects in which the Applicant demonstrated independence in these domains.

4. There is little evidence of the physiotherapy protocol undertaken by the Applicant post his 2020 surgery, other than the recommendation from the orthopaedic team that this continue, and a note from Dr Nisha that he was undertaking physiotherapy once a week at the time of lodgement of the access request. There was no available evidence about the Applicant’s participation in pain management or weight loss programmes. For example, it is not clear whether the Applicant has ever attended a pain management clinic or taken steps to manage his weight with diet and exercise. There is limited information as to the receipt by the Applicant of treatment or support from physiotherapists or other allied health specialists or his general practitioner in relation to what Dr Zhou described in 2021 as “obesity”. There is no available evidence about whether the Applicant took up the recommendation of Dr Parfitt that he have a rheumatology review.

5. The Tribunal notes Mr Baldock’s observations that the Applicant is a “heavy-set man,” and that, “his body composition will be contributing to pressure on his back and knees. He would benefit greatly from a reduction in weight which would likely reduce back and knee pain. A reduction in weight would possibly reduce Mr Campbell’s reliance on crutches also. Mr Campbell’s use of crutches is causing him shoulder, elbow, and wrist pain bilaterally. A reduction in crutch use will likely reduce pain through these joints of the upper limbs.” Mr Baldock recommended an in-home exercise physiology program with an Exercise Physiologist together with weight reduction and noted that results from these lifestyle changes could take as long as two years to see results. He further noted that a slow and graded program would be needed to work on the Applicant’s physical body but more importantly his mindset to pain and his understanding that pain does not equal injury.

   CONSIDERATION

   The Disability Requirements

   Section 24(1)(a) of the NDIS Act – does the Applicant have a disability?

6. Paragraph 24(1)(a) of the NDIS Act requires that a 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”. Consistent with Mortimer J’s decision in Mulligan,[12] the term ‘impairment’ is commonly understood as loss of, or damage to, a physical, sensory or mental function.

   [12] Mulligan v National Disability Insurance Agency [2015] FCA 544, [15] – [16].

7. The uncontroverted medical evidence demonstrates that the Applicant has a “disability” arising from the impairments of:

   (a)difficulty walking as a result of dysfunctional right knee;

   (b)severe right knee pain affecting his ability to mobilise;

   (c)pain and fatigue in the shoulders and arms affecting movements of upper limbs; and

   (d)overweightness affecting movement of limbs.

8. The Tribunal is satisfied that these impairments cause a reduction or loss of the Applicant’s ability to function. It follows that the Applicant has a disability within the meaning of paragraph 24(1)(a) of the NDIS Act in relation to these physical impairments.

9. There is insufficient evidence from which the Tribunal can reach a level of satisfaction that the Applicant has a disability as that term is to be understood in paragraph 24(1)(a) of the NDIS Act in relation to Depression and Anxiety. The Applicant’s medical records, including hospital summaries, note the diagnosis of depression. Mr Baldock, Occupational Therapist, noted that the Applicant was prescribed an anti-depressant and appeared to have “a low level of depression impacting motivation” but did not identify any loss of the Applicant’s ability to function. The Applicant’s General Practitioner, Dr Zhou, noted that he Applicant suffered from depression and anxiety due to his physical conditions and that “all of the above” had an impact on his social and personal life. However, without evidence from which the Tribunal could conclude that the Applicant’s mental health has caused a reduction or loss of function, or as to how the Applicant is impaired as a result of loss of mood, anxiety or any other psychosocial impairment, the Tribunal is not satisfied that an impairment arises from the diagnoses of depression or anxiety.

   Section 24(1)(b) of the NDIS Act – are the Applicant’s impairments permanent?

10. Paragraph 24(1)(b) of the NDIS Act requires that the applicant’s ‘impairment or impairments are, or are likely to be, permanent’. Subsection 24(2) of the NDIS Act further notes that ‘an impairment that varies in intensity may be permanent’.

11. The Participant Rules provide the following guidance in considering when an impairment is, or is likely to be, permanent:

    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.

    (emphasis added)

12. These provisions are concerned with the permanence of the “impairment” rather than the condition necessarily.[13] Difficulty accessing treatment, including its affordability, does not necessarily mean that the treatment is unavailable for the purposes of rule 5.4 of the Access Rules.[14] In National Disability Insurance Agency v Davis (‘Davis’),[15] Mortimer J stated that, whilst affordability was not the only feature determining whether a treatment was “available”, it was a relevant consideration in determining whether the treatments was available to a particular individual,[16] and “whether a person can afford a treatment will form part of the factual circumstance a decision-maker may need to examine in deciding if a treatment is one that an individual can in reality access.”[17]

    [13] Schwass and National Disability Insurance Agency [2019] AATA 28, [32], [35].

    [14] Ibid, [46]-[47].

    [15] [2022] FCA 1002.

    [16] Ibid, [138].

    [17] Ibid, [139].

13. Rule 5.4 of the Access Rules requires a person to undertake only “appropriate” treatment so a treatment which might, for example, impose a serious risk to a person’s health is not an appropriate treatment.[18] Rule 5.4 of the Access Rules requires the Tribunal to be positively satisfied of a negative before it can be satisfied of permanency. In other words, there must be evidence before the Tribunal that positively demonstrates that there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.[19]

    [18] Schwass and National Disability Insurance Agency [2019] AATA 28, [48].

    [19] National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth), r 5.4.

14. The Tribunal has already concluded that the Applicant’s conditions of anxiety and depression are not impairments under section 24(1)(a) of the NDIS Act. For completeness, the Tribunal finds that there is insufficient evidence before the Tribunal as to any treatments that might be likely to remedy any impairments of a psychosocial nature of which the Tribunal had been satisfied. Dr Zhou noted that the Applicant’s depression and anxiety related to his physical conditions. This evidence leaves available the conclusion that, if the Applicant’s physical symptoms were addressed or alleviated, so too may his symptoms from anxiety or depression. Mr Baldock noted in his report that, “When asked if he had received any counselling or psychology, Mr Campbell reported an inability to afford this service”. Other than a prescription for the anti-depressant Lexapro, there is no evidence that the Applicant has engaged with a psychiatrist or psychologist or has taken any steps to address or treat any symptoms of depression and anxiety, or that he has explored clinical, medical or other treatments in this regard. On this basis the Tribunal concludes that the Applicant does not have permanent impairments of the kind contemplated by section 24(1)(b) in relation to anxiety or depression.

15. The Respondent submitted that s24(1)(b) of the Act had been met in relation to the physical impairments arising from Severe Knee Osteoarthritis (Right Knee Replacement). The Respondent identified the “specialist evidence of Dr Parfitt to be suggestive of the Applicant having exhausted all known, available and appropriate evidence-based treatments for his physical impairments arising from Severe Knee Osteoarthritis (Right Knee Replacement)” and referred to Dr Parfitt’s letter dated 23 June 2023. The Tribunal notes that Dr Parfitt’s letter does not expressly indicate that there are no known, available and appropriate evidence-based treatment that would likely remove, cure or substantially relieve the Applicant's physical impairments arising from Severe Knee Osteoarthritis (Right Knee Replacement). Instead, Dr Parfitt invites the Applicant to consider a Rheumatology consultation. It is not clear whether the Applicant had undertaken such a consultation or, if so, what the results may be. It is not clear whether this consultation would reveal alternative sources of pain or identify treatment options in the event that the Applicant’s pain is due to the osteoarthritis. However, the Tribunal also accepts that arthritic conditions are generally degenerative. Dr Parfitt does indicate that there is no further intervention required or available for the knee injury and, in that sense, the evidence does indicate that this aspect of the impairment is permanent. On balance, having regard to this evidence and that of the Applicant’s two General Practitioners, the Tribunal has reached the requisite level of satisfaction as to the permanence of the Applicant’s physical impairments relating to his knee, being limited to difficulty walking as a result of dysfunctional right knee. Due to the lack of clear evidence as to the likely the impact of weight loss, exercise and treatment from a Rheumatologist or other relevant medical specialist, the Tribunal finds that this is the only aspect of the Applicant’s impairments that satisfies section 24(1)(b) of the NDIS Act.

16. The evidence as to the prospect of the Applicant’s various other pain conditions and related physical impairments improving with any treatment is inconsistent. His General Practitioners have stated that the pain condition is permanent. Mr Baldock opines that the Applicant’s pain in his back and shoulders is directly connected to the combination of his excessive weight, lack of exercise and engagement of crutches to walk rather than completing rehabilitation of his knees.

17. It follows that the Tribunal is satisfied that the Applicant’s physical impairments arising from Severe Knee Osteoarthritis (Right Knee Replacement), are permanent, but is not so satisfied in relation to any other impairments. Given the cumulative nature of the disability requirements, the Tribunal will go on consider whether the impairments arising from the knee condition, which is permanent, satisfy section 24(1)(c) of the NDIS Act.

    Section 24(1)(c) of the NDIS Act – do the Applicant’s impairments result in substantially reduced functional capacity to undertake communication, social interaction, learning, mobility, self-care or self-management?

18. To meet the criteria in paragraph 24(1)(c) of the NDIS Act, the Applicant must demonstrate that his impairments result in substantially reduced functional capacity to undertake any one or more of the activities specified in subparagraphs (i) to (vi): communication, social interaction, learning, mobility, self-care and self-management.

19. Application of the legislation requires:[20]

    …a relatively high degree of precision by decision-makers (see, for example, the six activities in s 24(1)(c)) in assessing what a person can or cannot do). The assessment to be undertaken is avowedly functional and multi-faceted.

    [20] Mulligan v National Disability Insurance Agency [2015] FCA 544, [55].

20. It is enough for a prospective participant to have substantially reduced functional capacity in relation to one activity: “If the outcome or effect is any of the outcomes or effects specified in r 5.8(a), (b) or (c), the deeming effect of r 5.8 operates”.[21]

    [21] Ibid, [67].

21. Rule 5.8 of the Participant Rules provides:

    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.

    (emphasis added)

    Subsection 24(1)(c)(i) of the NDIS Act – Communication

22. The Access Operational Guidelines relevantly refers to communication as, “how you speak, write, or use sign language and gestures, to express yourself compared to other people your age” together with, “how well you understand people and how others understand you”.

23. The evidence available to the Tribunal, including from the Applicant’s General Practitioners and Mr Baldock demonstrates that the Applicant is readily able to communicate.

24. It follows from the Tribunal’s findings that the deeming effect of Rule 5.8 has no application in this case as the Applicant is not unable to effectively or completely participate in the activity of communication unless he has assistive technology. Neither does the Applicant usually require assistance with communication. The Tribunal is not satisfied in this case that the Applicant has substantially reduced functional capacity to communicate within the meaning of subparagraph 24(1)(c)(i) of the NDIS Act.

    Subsection 24 (1)(c)(ii) of the NDIS Act – Social Interaction

1. The Access Operational Guidelines relevantly refer to social interaction as, “how you make and keep friends, or interact with the community … your behaviour, and how you cope with feelings and emotions in social situations.”

2. The Applicant has an active social life within his local community, including accessing his local shops and visiting with his elderly parents. He is able to undertake a range of activities without assistance. The Tribunal notes the evidence of Mr Baldock that the Applicant attends the park or beach with friends three times weekly. The evidence does not demonstrate that he usually or routinely requires assistance to interact socially. As to the evidence of the General Practitioners, Dr Zhou noted, in 2019, that this was an area in which the Applicant was independent, although in 2021 functional domains in which the Applicant required assistance were identified by Dr Nisha as mobility, socialising and self-care. No particular information was provided by Dr Nisha that would displace the balance of the evidence demonstrating that the Applicant is able to socialise without any substantial reduction in his functional capacity.

3. The Tribunal is not, therefore, satisfied that the Applicant’s impairments would prevent social interaction or that he could do so only with the assistance of others. It follows from the Tribunal’s findings that the deeming effect of Rule 5.8 has no application in this case as the Applicant is not unable to effectively or completely participate in the activity of social interaction unless he has assistive technology. Neither does the Applicant usually require assistance with social interaction. The Tribunal is not satisfied that any such limitations result in a substantially reduced functional capacity for social interaction within the meaning of subparagraph 24(1)(c)(ii) of the NDIS Act.

   Subsection 24(1)(c)(iii) of the NDIS Act – Learning

4. The Access Operational Guidelines refers to learning as, “how you learn, understand and remember new things, and practise and use new skills.”

5. The evidence available to the Tribunal demonstrates that the Applicant is reasonably able to learn new things and stay up-to-date. The Tribunal notes the evidence of Mr Baldock to the effect that the Applicant is able to use a mobile phone, access the news on-line and play computer games. As to the evidence of the General Practitioners, Dr Zhou noted, in 2019, that this was an area in which the Applicant was independent.

6. It follows from the Tribunal’s findings that the deeming effect of Rule 5.8 has no application in this case as the Applicant is not unable to effectively or completely participate in the activity of learning unless he has assistive technology. Neither does the Applicant usually require assistance with learning. The evidence does not trigger the Application of the deemed definition in Rule 5.8 of substantially reduced functional capacity in learning. The Tribunal is not satisfied in this case that the Applicant has substantially reduced functional capacity for learning within the meaning of subparagraph 24(1)(c)(iii) of the NDIS Act.

   Subsection 24(1)(c)(iv) of the NDIS Act – Mobility

7. The Access Operational Guidelines refers to mobility, or moving around, as “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.”

8. The Applicant can walk about 150 meters and does so using crutches. There is no medical evidence to support the need for this, although the length of time for which the Applicant has relied on these crutches suggests that he has developed a dependence upon them. Mr Baldock’s evidence suggests that, with weight loss, exercise and rehabilitation, he may no longer need these crutches. In any event, when the Applicant goes further he either drives or uses a mobility scooter.

9. The Tribunal accepts the Respondent’s submission that a mobility scooter is a commonly used item, particularly for older Australians. The Tribunal does not accept that bilateral elbow crutches are commonly used when employed, as the Applicant has done, over a period of more than 15 years. However, the Tribunal does not accept that the Applicant was prescribed the crutches or directed to continue using them indefinitely after his knee reconstruction surgery. Effective rehabilitation of the knee, which can take place with support from the public health system (particularly when coupled with weight loss and exercise) may rid the Applicant of this dependency.

10. The key question for the Tribunal is whether the Applicant has a substantial reduction in his functional capacity in the domain of movement.

11. The Applicant can mobilise throughout his house without crutches and outside using his car or mobility scooter. Long car trips lead to pain and the Applicant has a clear preference to walk any significant distance outside the home with his crutches. These matters together certainly constitute a reduction in the Applicant’s capacity to move. However, he can move around the home and the community, he does get out and about and he may be somewhat self-limiting because, understandably, some movement causes him pain. As Mr Baldock stated, the Applicant seemed to misunderstand the connection between pain and injury. The factors, when taken together, suggest that the Applicant enjoys a level of independence in his mobility that is inconsistent with a finding that he has a substantial reduction in functional capacity in the domain of mobility, as that terms is understood in section 24(1)(c)(iv).

12. Therefore the evidence available to the Tribunal demonstrates that the Applicant is able to mobilise independently, albeit with some modifications and some restrictions, and at times engaging a mobility scooter to access the community. It follows from the Tribunal’s findings that the deeming effect of Rule 5.8 is not triggered in this case as the Applicant is not unable to effectively or completely participate in the activity of mobilisation unless he has assistive technology. Neither does the Applicant usually require assistance with mobilisation. The evidence falls some way short of satisfying the deemed definition in Rule 5.8 of substantially reduced functional capacity in mobility. The Tribunal is not satisfied in this case that the Applicant has substantially reduced functional capacity in relation to mobility within the meaning of subparagraph 24(1)(c)(iv) of the NDIS Act.

    Subsection 24(1)(c)(v) of the NDIS Act – Self-care

13. The Access Operational Guidelines refers to self-care as, “personal care, hygiene, grooming, eating and drinking, and health. We consider how you get dressed, shower or bathe, eat or go to the toilet.”.

14. As to the evidence of the General Practitioners, Dr Zhou noted, in 2019 and March 2021, that this was an area in which the Applicant was independent, although in 2021 functional domains in which the Applicant required assistance were identified by Dr Nisha as mobility, socialising and self-care.

15. Mr Baldock noted that the Applicant was independent in all activities of self-care. The fact that that the Applicant has modified some tasks as a result of his use of crutches, and utilises compensatory techniques to accommodate this, indicates that he has some impairment in fulfilling some of these task. However, the evidence that he was able to dress and undress, shower, toilet and groom independently and without assistance, even though he was noted to be slow in these task and to experience pain whilst doing so, is not demonstrative of a substantial functional reduction in capacity in this domain.

16. The evidence available to the Tribunal demonstrates that the Applicant is able to undertake self-care in most in settings, albeit with pacing and modification. It follows from the Tribunal’s findings that the deeming effect of Rule 5.8 does not apply in this case as the Applicant is not unable to effectively or completely participate in the activity of self-care unless he has assistive technology. Neither does the Applicant usually require assistance with self-care. The evidence falls some way short of satisfying the deemed definition in Rule 5.8 of substantially reduced functional capacity in this domain.

17. The Tribunal is not satisfied in this case that the Applicant has substantially reduced functional capacity in relation to self-care within the meaning of subparagraph 24(1)(c)(v) of the NDIS Act.

    Subsection 24(1)(c)(vi) of the NDIS Act – Self-management

18. The Access Operational Guidelines refers to self-management in adults as, “how you organise your life. We consider how you plan, make decisions, and look after yourself. This might include day-to-day tasks at home, how you solve problems, or manage your money. We consider your mental or cognitive ability to manage your life, not your physical ability to do these tasks.”

19. The evidence available to the Tribunal, including from the Applicant’s General Practitioners and Mr Baldock demonstrates that the Applicant is readily able to manage his own affairs and make his own decisions.

20. It follows from the Tribunal’s findings that the deeming effect of Rule 5.8 has no application in this case as the Applicant is not unable to effectively or completely participate in the activity of self-management unless he has assistive technology. Neither does the Applicant usually require assistance with self-management. The Tribunal is not satisfied in this case that the Applicant has substantially reduced functional capacity in relation to self-management within the meaning of subparagraph 24(1)(c)(vi) of the NDIS Act.

    Section 24(1)(d) of the NDIS Act – do the Applicant’s impairments affect his capacity for social or economic participation?

21. Paragraph 24(1)(d) of the NDIS Act requires that the Applicant’s impairment or impairments affect his capacity for social or economic participation. There is no requirement that the affect be “substantial”, or otherwise significant. The Respondent accepted that this requirement had been met.[22]

    [22] Respondent’s Outline of Submissions (in closing) dated 21 May 2021, [111].

22. The Tribunal accepts that this conclusion is supported by the evidence set out above. The Tribunal is therefore satisfied that the requirement in paragraph 24(1)(d) of the NDIS Act is met.

    Section 24(1)(e) of the NDIS Act – is the Applicant likely to require support under the NDIS for his lifetime?

23. The Access Operational Guideline states the following:

    You must be likely to need support under the NDIS for your whole life. 
    NDIS supports are investments that help you build or maintain your functional capacity and independence, and help you work, study or take part in social life.
    Even if your needs go up and down over time, or happen episodically , we may still consider it’s likely you’ll need lifetime support under the NDIS. 
    We consider your overall situation to answer this question. 
    When we decide if you’ll likely need support under the NDIS for your whole life, we consider:

    ·your life circumstances

    ·the nature of your long-term support needs

    ·whether your needs could be best met by the NDIS, or by other government and community services.

    For example, you may have an impairment which is caused by a chronic health condition. Many chronic health conditions are most effectively managed or remedied through medical management through the health system.

    If this is the case, we may decide that you don’t have a lifetime need for support under the NDIS.

24. The relevant consideration is whether a prospective participant’s overall circumstances indicate that the person will require support under the NDIS for their lifetime. The purpose of this requirement seems to be to distinguish that subset of people with serious and permanent disabilities who are intended to be the beneficiaries of funded supports.[23]

    [23] Mulligan and National Disability Insurance Agency [2015] AATA 974, [153].

25. The Tribunal has concluded that it has not been established that some of the Applicant’s impairments are permanent, or likely to be permanent and, in any event, the permanent impairment in relation to his knee does not result in him having substantially reduced functional capacity to undertake activities in any of the relevant domains. It would be inconsistent for the Tribunal to make a finding that a prospective participant is likely to require support under the NDIS for their lifetime in circumstances where the evidence shows they do not have a substantially reduced functional capacity to undertake activities in the domains of communication, social interaction, learning, mobility, self-care or self-management. In any event, considering the Applicant’s overall circumstances, there is no basis to conclude that the Applicant cannot manage his impairments through the health system and concerns about the availability or affordability of a support such as a mobility scooter or chair are not sufficient to satisfy section 24(1)(e) of the NDIS Act where the other cumulative requirements of section 24(1) have not been met.

26. For these reasons, the Tribunal does not find that the Applicant will require assistance under the NDIS for his lifetime. Therefore, the Applicant does not meet the requirement of paragraph 24(1)(e) of the NDIS Act.

    Early intervention requirements

27. Rule 2.5(b) of the Participant Rules provides the following general outline of these requirements:

    … a person can access the NDIS through the early intervention requirements without having substantially reduced functional capacity. Instead, the early intervention requirements consider the likely trajectory and impact of a person's impairment over time and the potential benefits of early intervention on the impact of the impairment on the person's functional capacity. The CEO may consider a range of evidence in deciding the potential benefit of early intervention on a person's impairment...

    [emphasis added]

28. The Tribunal has found that the Applicant has a disability as defined in paragraph 25(1)(a) of the NDIS Act and therefore satisfied this requirement. Paragraph 25(1)(b) of the NDIS Act requires that:

    the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person's future needs for supports in relation to disability.

29. The evidence demonstrates that the Applicant has lived with his pain and has been using crutches rather than load bearing on the knees for well over 15 years now, and for most of that time prior to seeking access to the scheme. In those circumstances it is not clear how supports rendered now could be considered “early” or how providing supports now could reduce the Applicant’s need for supports in relation to his disabilities in the future.

30. The Respondent submitted that, as the Applicant’s impairment in relation to his knee condition is permanent and not likely to be remedied, it follows that providing supports now is unlikely to improve the Applicant’s future support needs in relation to his impairments and, in that case, would not meet the requirements in paragraph 25(1)(b) of the NDIS Act. The Tribunal accepts this submission.

31. The Tribunal notes that, in any event, the Applicant has not provided compelling evidence in this case that early intervention supports are likely to benefit him by achieving the stated outcomes in subsection 25(1)(c) of the NDIS Act. Mr Baldock stated that the Applicant would benefit from weight loss and exercise and rehabilitation of the knee but the Applicant contends that he will need more support in the future, not less. These treatments for rehabilitation of the knee and for weight loss are available through the health care system and are more appropriately funded through that system. Such treatments are not, in any event, early in nature given the longstanding nature of the Applicant’s knee condition.

32. The Respondent submitted that, “the Applicant's physical impairments arising from Severe Knee Osteoarthritis (Right Knee Replacement) are not ‘in an early intervention group, comprising individuals for whom there ‘is good evidence that the intervention is safe, significantly improves outcomes and is cost-effective’'[24]

    [24] Mulligan and National Disability Insurance Agency [2015] AATA 974, [71].

33. The Tribunal accepts this submission. In this case, the Tribunal has not reached the requisite level of satisfaction that the Applicant has pursued options available to him for rehabilitation and a rheumatology investigation. He has not always undertaken physiotherapy. He may pursue these options through the health care system. The Applicant has waited a significant number of years to seek access to the NDIS and has done so without demonstrating that any particular interventions will significantly improve his outcomes and are cost-effective. For these reasons, the Tribunal finds that the Applicant does not meet the section 25 criteria for early intervention in this case.

    CONCLUSION

34. For the reasons set out above, the Tribunal finds that the Applicant does not meet the access criteria in sections 24 or 25 of the NDIS Act.

    DECISION

35. The Tribunal affirms the decision under review pursuant to paragraph 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).

    I certify that the preceding 91 paragraphs are a true copy of the reasons for decision of Senior Member K Buxton.

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

    Associate

    Dated: 12 March 2024

    Date listed for determination:             6 March 2024, On the papers

    Applicant:  Mr Stephen Campbell

    Solicitor for the Respondent:             Mr Peter Crethary, HWL Ebsworth Lawyers