Carter and National Disability Insurance Agency
[2024] AATA 2955
•21 August 2024
Carter and National Disability Insurance Agency [2024] AATA 2955 (21 August 2024)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number: 2022/6988
Re:Ms Deborah Carter
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Senior Member J Collins
Date:21 August 2024
Place:Brisbane
Pursuant to section 43(1)(a) of the Administrative Appeals Act 1975 (Cth), the Tribunal affirms the decision under review.
.........................[SGD]............................
Senior Member J Collins
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – access criteria – s24 NDIS Act – s25 NDIS Act – whether applicant meets disability requirements – whether applicant meets the early intervention requirements – whether impairments substantially reduce functional capacity.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) ss 43
National Disability Insurance Scheme Act 2013 (Cth) ss 3, 4, 21, 22, 23, 24, 25, 27, 100, 103, 209
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) rules 2.5, 5.4, 5.5, 5.6, 5.7, 5.8, 6.1Cases
Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390; [1955] HCA 27
Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Constructions Commissions (The Bay Street Appeal) FCAFC 192
G v Minister for Home Affairs [2019] FCAFC 79
G v Minister for Immigration and Border Protection [2018] FCA 1229
National Disability Insurance Agency v Foster [2023] FCAFC 11
Mulligan v NDIA [2015] FCA 544; (2015) 233 FCR 201
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355
Re Drake v Minister for Immigration and Ethnic Affairs (No 2) [1979] 24 ALR 577
Re Schwass v National Disability Insurance Agency [2019] AATA 28Rooney v National Disability Insurance Agency [2021] AATA 3523
Secondary Materials
NDIS - Applying to the NDIS access guidelines, as of 1 February 2024
Productivity Commission Inquiry Report: Disability Care and Support, Report No 54
REASONS FOR DECISION
Senior Member J Collins
21 August 2024
INTRODUCTION
Ms Deborah Carter is a 66-year-old woman. She is separated although not legally divorced from her husband, Mr David Carter. Notwithstanding, Ms Carter and Mr Carter continue to reside together.
In June 2021 Ms Carter applied to the National Disability Insurance Agency (‘the Agency’) for access to the National Disability Insurance Scheme (‘the scheme’).[1]
[1] T Documents, T4 NDIS Access Request Supporting Evidence Form, Sidya Raghavan, general practitioner.
In Ms Carter’s Access Request form to the Agency, her general practitioner (‘GP') Dr Sidya Raghavan referred to the following conditions:[2]
·Complex Regional Pain Syndrome;
·Gastroesophageal reflux disease;
·Depression and anxiety;
·Lumbosacral back pain;
·Hypertension; and
·Multiple squamous cell carcinomas.
[2] T Documents, T4.
Dr Raghavan stated that Ms Carter’s functionality in respect of mobility, communication, social interaction, learning self-care and self-management was impacted upon as a consequence of these conditions.[3]
[3] T Documents, T4.
Ms Carter also identified the following disabilities in her NDIS Access request form: [4]
·Long standing severe joint disease;
·Ruptured right Achilles tendon;
·Nerve damage to legs; and
·Acute keratoconjunctivitis.
[4] T Documents, T4.
That application was refused by the Agency at first instance and again upon internal review.[5] Ms Carter has now applied to the Administrative Appeals Tribunal (‘the Tribunal’) for review of the internal review decision (‘the decision under review’).
[5] T Documents, T1A Internal Review Decision.
Ms Carter states ‘I have several disabilities’ as the basis for her application to the Tribunal.[6] She seeks access to the scheme so that she may receive supports. The supports include assistance with some of the following:
·Dressing herself;
·Showering, including shampooing her hair; [7]
·Managing day-to day tasks such as lifting a kettle, opening jars, cutting up food, making her bed and changing bed linen;
·Accessing the community for socialisation and also health appointments;
·Household cleaning;
·Laundry;
·Gardening and yard maintenance.[8]
[6] T Documents, T1 AAT Application for Review of Decision; Section 103 NDIS Act.
[7] T Documents, T4.
[8] T Documents, T5 Applicant’s Statement; T9; T11 Applicant’s Letter; C2.
For the reasons set out below, the Tribunal affirms the decision under review.
BACKGROUND TO THE APPLICATION TO THE AGENCY
On 6 April 2022 the Agency affirmed its original decision to refuse Ms Carter access to the scheme.[9]
[9] T Documents, T1A.
In affirming its original decision, the Agency was satisfied that Ms Carter had satisfied the age and residence requirements[10] but not the ‘disability requirements’[11] or the ‘early intervention requirements’.[12]
[10] Section 22; section 23 NDIS Act.
[11] Section 24 NDIS Act.
[12] Section 25 NDIS Act.
ISSUES
The issues before the Tribunal are whether Ms Carter meets:
·the disability requirements under section 24 of the NDIS Act, or
·the early intervention requirements under section 25 of the NDIS Act.
Determination of these issues is made pursuant to the National Disability Insurance Scheme Act 2013 (Cth) (‘NDIS Act’), and several other statutory instruments made under it.[13]
[13] National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth).
A Listing Notice was forwarded to both parties on 11 April 2024 advising the hearing of this matter would commence on Monday, 29 July 2024 at 10:00am.[14]
[14] Tribunal Direction dated 11 April 2024; Listing notice dated 11 April 2024.
On Friday, 26 July 2024 Ms Carter forwarded an email to the Tribunal at 10:28 pm wherein she stated:
‘Good afternoon I’m unable to attend the meeting on the 29th August (sic). I’m going to be on a train holiday from Brisbane to Longreach and Winton I booked it in January 2024 when I was in a deep depression.
…………………………………..
…………………………………..
I won’t arrive home until after the 30th July and I can’t cancel my holiday, I’ll lose $3,000 in my booking and I need to do this………….’At 9:33 am on 29 July 2024 the Tribunal forwarded to Ms Carter an email which stated as follows:
Dear Ms Carter
‘We refer to your email of 26 July 2024 received by the Tribunal at 10:28PM Brisbane time. In your email you advised that you would be unable to attend the hearing of your matter scheduled to commence today at 10:00AM for a three-day period.
Please be advised that the hearing of your application will be proceeding as scheduled. The Tribunal is not willing to grant an adjournment of this matter at this late stage in the absence of a satisfactory explanation from you as to why you cannot attend. The Tribunal does not consider your email of 26 July 2024 constitutes a satisfactory explanation.
Accordingly, you will be expected to attend your application via MS Teams at 10:00AM as previously arranged and confirmed in a Listing Notice dated 11 April 2024 and Direction Order (copies enclosed).
The MS Teams link is referred to in the Listing Notice. Please note that if you fail to attend the Tribunal may dismiss your application under section 42A(2) of the Administrative Appeals Tribunal Act 1975 (Cth).’
The hearing of Ms Carter’s application commenced as scheduled on 29 July 2024 at 10:00am. Ms Carter did not attend the hearing either in person or via MS Teams at the scheduled time.
Section 42A of the Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’), provides as follows:
Discontinuance, dismissal, reinstatement etc. of application
Dismissal if party fails to appear
(2) If a party to a proceeding before the Tribunal in respect of an application for the review of a decision (not being the person who made the decision) fails either to appear in person or to appear by a representative at a directions hearing, or an alternative dispute resolution process under Division 3, held in relation to the application, or at the hearing of the proceeding, the Tribunal may:
(a) if the person who failed to appear is the applicant--dismiss the application without proceeding to review the decision;
(8A) If the Tribunal dismisses an application under subsection (2) (other than an application in respect of a proceeding in which an order has been made under subsection 41(2)), a party to the proceeding may, within the period referred to in subsection (11), apply to the Tribunal for reinstatement of the application.
(9) If it considers it appropriate to do so, the Tribunal may reinstate the application and give such directions as appear to it to be appropriate in the circumstances.
Notwithstanding the Tribunal’s power to dismiss Ms Carter’s application based on her failure to appear at 10:00am on 29 July 2024 the Tribunal telephoned Ms Carter at 10:12am. Summarised below is what Ms Carter advised the Tribunal by telephone:
·She was at a local shopping centre buying donuts for her mother;
·She had purchased the ticket for her train holiday in January 2024;
·She had ‘nothing left to add’ to the Tribunal and ‘it’s all been done, done, done’;[15]
·She did not wish to call any witnesses to give evidence at the hearing;
·She wished to have the matter determined ‘on the papers’; and
·She wished to rely on the documentation filed by her in respect of her application.
[15] Recording of proceedings at 20:33, 33:20.
Section 34J of the AAT Act states as follows:
Circumstances in which hearing may be dispensed with
(1) If:
(a) it appears to the Tribunal that the issues for determination on the review of a decision can be adequately determined in the absence of the parties; and
(b) the parties consent to the review being determined without a hearing;
the Tribunal may review the decision by considering the documents or other material lodged with or provided to the Tribunal and without holding a hearing.The Agency subsequently obtained instructions and advised the Tribunal it consented to a hearing of the matter ‘on the papers’.
Based on the specific request of Ms Carter to ‘please’ hear the matter on the papers, the Agency’s consent to having the matter determined on the papers, the submissions made by both parties and the documentation filed, I am satisfied that the issues for determination on this review can be adequately determined in the absence of the parties and ‘on the papers,’ pursuant to subparagraph 34(J)(1) of the AAT Act.
THE NATIONAL DISABILITY INSURANCE SCHEME ACT 2013 (CTH)
The disability requirements are contained in section 24 of the NDIS Act and provide as follows:
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).
The requirements of section 24 of the NDIS Act are cumulative and all criteria must be met.
The early intervention requirements contained in section 25 of the NDIS Act provide as follows:
1.A person meets the early intervention requirementsif:
(a)the person:
(i)has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent;
(ii)has one or more identified impairments to which a psychosocial disability is attributable and that are, or are likely to be, permanent; social interaction;
(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.
(Tribunal emphasis added)
Likewise, the requirements of section 25 of the NDIS Act are cumulative and all criteria must be met.
Section 27 of the NDIS Act provides for the making of rules in relation to the disability requirements and the early intervention requirements. The relevant rules in respect of this review are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (‘the Access Rules’).
The Agency also issues Operational Guidelines in relation to dealing with the assessment of whether a person meets the disability requirements or the early intervention requirements. The relevant guidelines in this review are the NDIS - Applying to the NDIS guidelines (‘the Access Guidelines’).[16] There is no power conferred by the NDIS Act to make these Operational Guidelines, and they are issued in an exercise of executive power.[17] The Tribunal is therefore not bound by any policy set out in the Agency’s Operational Guidelines; however, in Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[18] the Federal Court held that a Tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation. Further guidance for the proposition that the Tribunal is not bound by policy is found in G v Minister for Immigration and Border Protection[19] where Mortimer J held:[20]
‘Justice or injustice is not found within a policy. It is found by looking at the overall circumstances of an individual’s case with the principal focus being on the purpose and context of the statutory power, not the executive policy framed to guide it …’
[16] Ourguidelines.ndis.gov.au: Applying to the NDIS, as of 1 February 2024.
[17] G v Minister for Home Affairs [2019] FCAFC 79 at [18].
[18] [1979] 24 ALR 577 at [590].
[19] [2018] FCA 1229.
[20] Ibid, at [171].
Therefore, unless the Access Guidelines are inconsistent with the provisions or objects of the legislation, they should be considered in any determination of whether Ms Carter meets the disability requirements or the early intervention requirements.
Whether Ms Carter meets the disability requirements, or the early intervention requirements is a question of fact to be determined on the balance of available evidence. The Tribunal is required to undertake a ‘fact-finding task’[21] with a relatively high degree of precision and be positively satisfied[22] that Ms Carter meets either the disability requirements or the early intervention requirements.
[21] National Disability Insurance Agency v Davis [2022] FCA 1002 at [42].
[22] Mulligan v National Disability Insurance Agency (2015) 233 FCR 201 at [55] cited in Re Schwass and National Disability Insurance Agency [2019] AATA 28 at [29]; National Disability Insurance Agency v Davis [2022] FCA 1002 at [61].
MS CARTER’S POSITION
Ms Carter contends that she meets both the disability requirements and the early intervention requirements. She maintains that her disability is attributable to impairments that arise as a consequence of the following diagnoses:
·Osteoarthritis (‘OA’);
·Right Subacromial Bursitis (‘RSB’);
·Complex Regional Pain Syndrome (‘CRPS’);
·Multiple Squamous Cell Carcinoma (‘MSCC’);
·Cataracts;
·Lumbar Sacral pain;
·Anxiety and Depression;
·Bilateral neuropathic pain (‘BNP‘);
·Hypertension;
·Hyper Cholesterolaemia;
·Insomnia;
·Short Term Memory Loss;
·Gastroesophageal reflux disease (‘GORD’).[23]
[23] T Documents, T3; T4; T6; T7; T13; T15; T16.
THE AGENCY’S POSITION
The Agency has accepted that Ms Carter meets the criteria in subsection 24(1)(a) of the NDIS Act in relation to impairments attributable to OA, RSB, CRPS, MSCC, anxiety and depression, cataracts, lumbosacral pain, BNP and cataracts.[24]
[24] Respondent’s Statement of Facts, Issues and Contentions, page 3.
The Agency does not accept that Ms Carter:
·has disability that is attributable to an impairment that arises as a consequence of insomnia, hypertension, hypercholesterolaemia and short-term memory loss for the purposes of subsection 24(1)(a) of the NDIS Act.
·meets the criteria in subsections 24(1)(b), 24(1)(c), 24(1)(d) and 24(1)(e ) of the NDIS Act in relation to impairments attributable to OA, RSB, CRPS, MSCC, anxiety and depression, cataracts, lumbosacral pain, BNP and cataracts.[25]
·meets the criteria in subsections 25(1)(a), 25(1)(b), 25(1)(c) and 25(3) of the NDIS Act in relation to impairments attributable to OA, RSB, CRPS, MSCC, anxiety and depression, cataracts, lumbosacral pain, BNP and cataracts.
[25] Respondent’s Statement of Facts, Issues and Contentions.
In the Agency’s statement of facts issues and contentions Ms Carter’s diagnosis of GORD is not referred to. Notwithstanding, I have proceeded with this review on the basis that this diagnosis is relevant to this review and ought to be considered.
THE EVIDENCE
I have considered all the written evidence filed with the Tribunal in the joint bundle, and the further documentation filed by Ms Carter shortly prior to the hearing.[26] I will refer in my decision to the evidence, that in my view, is directly relevant to the determination of this matter.
[26] B1; B2; B3; B4.
Section 24 NDIS Act: The Disability Requirements
Subsection 24(1(a): Does Ms Carter have a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or to one or more impairments attributable to a psychosocial disability?
The Agency refers to the evidence which identifies the following impairments:
·OA;
·RSB;
·CRPS;
·MSCC;
·Anxiety and depression;
·Cataracts;
·Lumbosacral pain;
·BNP;
·Cataracts.[27]
[27] T Documents, T3, T6.
The Agency accepts that Ms Carter has a disability attributable to various impairments arising as a consequence of her OA, RSB, CRPS, MSCC, anxiety and depression, cataracts, lumbosacral pain, BNP and cataracts.[28]
[28] Respondent’s Statement of Facts, Issues and Contentions, page 3.
Based on the evidence this is a reasonable and proper concession. I am satisfied that section 24(1)(a) is satisfied with respect to OA, RSB, CRPS, MSCC, anxiety and depression, cataracts, lumbosacral pain, BNP and cataracts.
In relation to Mc Carter’s diagnosis of GORD, I am also satisfied that Ms Carter suffers from a physical impairment as a consequence of her GORD. At the age of 3 Ms Carter ingested caustic soda which severely damaged her oesophagus.[29] As a result she suffers from extreme oesophageal burning, regurgitation reflux which results in spontaneous and unpredictable vomiting.[30] Ms Carter has had multiple operations in respect of this injury which included an oesophageal bypass in 1987.[31] Therefore based on the evidence I am satisfied that section 24(1)(a) is also satisfied with respect to GORD.
[29] T Documents, T9.
[30] T Documents, T9.
[31] T Documents, T9
The issue as to whether Ms Carter has impairments as a result of her insomnia, hypertension, hypercholesterolaemia or short-term memory loss that result in a disability is not necessary to considered. This is on the basis of the cumulative requirement of section 24(1) of the NDIS Act and in the context of my decision that Ms Carter does not satisfy section 24(1)(c) of the NDIS Act as is referred to in paragraphs 40 to 144 of this decision.
Subsection 24(1)(c): Do Ms Carter’s impairments result in a substantially reduced functional capacity for her to engage in activities of communication, social interaction, learning, mobility, self-care or self-management?
THE TRIBUNAL’S TASK
In order to satisfy subsection 24(1)(c) of the NDIS Act the Tribunal must undertake, with a high degree of precision, a functional, practical assessment of what Ms Carter can and cannot do with respect to the activities in subsection 24(1)(c) of the NDIS Act.[32] This assessment requires consideration of the ‘bundle’ of tasks and actions that ‘form’ any given activity being considered.[33]
[32] National Disability Insurance Agency v Foster [2023] FCFCA 11 at [64].
[33] Ibid at [65].
In respect of the operation of subsection 24(1)(c) of the NDIS Act, in Mulligan Mortimer J held: [34]
‘The legislative scheme contemplates 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’.
………….
‘...No decision-maker need be satisfied a person’s impairment is “serious”, or more serious than another person’s. No qualitative judgments in that sense are called for. Rather, the legislative scheme is based on a functional, practical assessment of what a person can and cannot do’.
[34] Mulligan v National Disability Insurance Agency [2015] FCA 544 at [55]-[56].
In Foster the Full Court also considered the interpretation of subsection 24(1)(c) of the NDIS Act. The following observation was made in relation to the activity of self-care:[35]
‘In the context of all the matters that comprise the concept of self-care, a decision-maker is required to make a functional, practical assessment of what a person can and cannot do.
Rather than using the assessment tool, being the Guidelines, to reach a conclusion as to whether or not Mr Foster had substantially reduced functional capacity to undertake self-care by assessing his functional capacity with respect to the bundle of tasks and actions forming the concept of ‘self-care’, the Tribunal applied the Guidelines in such a way as to equate Mr Foster’s impairment with the single task of toileting and deemed that to be the relevant activity for which functional capacity was required to be assessed. That was an error’.
(Tribunal emphasis)
[35] Foster at [64]-[65].
An understanding of the use of the word ‘substantially’ as a descriptor of ‘reduced functional capacity’ is a necessary starting point of the Tribunal’s task in determining whether Ms Carter satisfies subsection 24(1)(c) of the NDIS Act.
The principles of statutory interpretation and construction
The principles of statutory interpretation and construction have long been established. In Project Blue Sky Inc v Australian Broadcasting Authority (‘Blue Sky’) the following principles were set out by the High Court: [36]
‘The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. . . The meaning of the provision must be determined 'by reference to the language of the instrument viewed as a whole.’
[36] [1998] HCA 28; 194 CLR 355 at [69].
In Blue Sky their Honours also referred to Commissioner for Railways (NSW) v Agalianos[37] in which Dixon CJ stated that:
‘... the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed.’
[37] (1955) 92 CLR 390; [1955] HCA 27 at [397].
In Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Constructions Commissions (‘The Bay Street Appeal’) FCAFC 192, Allsop CJ made the following relevant observation:[38]
‘The principle is clear: Meaning is to be ascribed to the text of the statute, read in its context. The context, general purpose and policy of the provision and its consistency and fairness are surer guides to meaning than the logic of the construction of the provision. The purpose and policy of the provision are to be deduced and understood from the text and structure of the Act and legitimate and relevant considerations of context, including secondary material: See Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at 381 [69].’
[38] At [3].
The intended purpose of the scheme
On 31 July 2011 in response to a request to undertake an inquiry into a National Disability Long-term Care and Support Scheme, the Productivity Commission provided the Productivity Commission Inquiry Report (‘PCI Report’) titled Disability Care and Support, Report No 54.
The NDIS was modelled on the recommendations of the PCI Report. The PCI Report is therefore a highly relevant secondary material. It assists in the interpretation of the NDIS Act including its structure, also the purpose and objectives of the NDIS Act in the administration on the NDIS scheme.
The PCI Report proposed that the NDIS scheme would have three main functions. Associated with each function were three different populations of ‘customers’ who were described in terms of ‘tiers’.
The tier one included ‘every Australian’ on the basis that the NDIS scheme would provide to every Australian ‘insurance against the costs of support in the event that they acquire a significant disability’[39] (the first function).
[39] PCI Report, page 158.
The tier two included ‘People with, or affected by, disability’ who could approach the Agency for ‘information and referral services (as distinct from individually tailored funding)’ (the second function).
The tier three was described as a ‘much smaller group’[40] of ‘People with disability for whom NDIS-funded, individualised supports would be appropriate’[41] (the third function).
(Tribunal emphasis)
[40] PCI Report, page 12.
[41] PCI Report, page 159.
The estimated population of the third tier was in the vicinity of 330,000 people. It was intended that the NDIS scheme would only fund supports for persons in tier three.
Persons in tier three were identified as ‘people with intellectual, physical, sensory, or psychiatric disabilities, who have significantly reduced functioning’. Persons in tier three were further identified as those who have ‘significantly reduced functioning in self-care, communication, mobility or self-management and require significant ongoing support’.[42]
[42] PCI Report, page 14.
The PCI Report stated:[43]
The National Disability Insurance Agency would apply this third criterion judiciously rather than routinely. It would be constrained by guidelines, and monitored rigorously for its effects on scheme costs. If the Agency were to use this criterion loosely, it could pose a risk to the overall financial sustainability of the scheme.
(Tribunal emphasis)
[43] PCI Report, page 15.
Relevantly Recommendation 3.2 of the PCI Report stated:
Individuals receiving individually tailored, funded supports through the NDIS:
• should have a disability that is, or is likely to be, permanent, and
• would meet one of the following conditions:
– have significantly reduced functioning in self-care, communication, mobility or self-management and require significant ongoing support
- be 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
The PCI Report identified that the scheme would not cover people:
• acquiring new catastrophic injuries, which would be covered by the NIIS as it developed (though people with injuries acquired before the establishment of the NIIS would be covered by the NDIS)
• with certain health conditions for which the publicly-funded healthcare system was best suited. For example, the care needs of people with terminal cancer would be best addressed in a palliative care setting. People with less severe musculoskeletal and psychological conditions would also typically receive assistance from the health system.
• people acquiring a disability after the age pension age
• people defined as having disabilities, but for whom the NDIS is not needed. For example, a person whose periodic back pain sometimes prevents them from picking up an object from the floor without assistance, and a person with asthma who could not communicate while having an attack are both defined as having a disability using current disability classification systems. (The latter would be defined as having a severe disability.) These people would not typically need (or want) funded support.
In considering the ‘Assessment criteria’ to be implemented with the NDIS scheme the Productivity Commission referred to the International Classification of Functioning (ICF) — the World Health Organisation’s (WHO) framework for measuring health and disability at both individual and population levels. This framework listed nine ‘activities and participation’ domains of relevance as follows:[44]
[44] PCI Report, pages 309-310.
• communication — communicating by language, signs and symbols, carrying on conversations, and using communication devices and techniques
• mobility — walking, running or climbing, changing location or body position, carrying, moving or manipulating objects, and using various forms of transportation
• self-care — attending to one’s hygiene, dressing, eating and looking after one’s health
• domestic life — carrying out everyday tasks such as acquiring necessities (like a place to live and goods and services), preparing meals, caring for household objects and assisting others
• interpersonal interactions and relationships — relating with strangers, formal and informal social relationships, family and intimate relationships
• learning and applying knowledge — learning, applying the knowledge that is learned, thinking, solving problems, and making decisions
• community, social and civic life — engaging in community, civil and recreational activities
• general tasks and demands — carrying out single or multiple tasks, organising routines and handling stress
• major life areas — carrying out responsibilities at home, work or school and conducting economic transactions.
In addition to identifying the cohort to whom the NDIS scheme would apply the PCI Report emphasised the importance that the NDIS was not to respond to the shortfalls ‘in mainstream services by providing its own substitute services’. The PCI Report stated:[45]
To do so would weaken the incentives by governments to properly fund mainstream services for people with a disability, shifting the cost to another part of government (such as from a state government to the NDIS, or from one budget ‘silo’ to another). This ‘pass the parcel’ approach would undermine the sustainability of the scheme and the capacity of people with a disability to access mainstream services. If governments and departments thought that the NDIS would address both specialist and mainstream service needs, people with a disability may well be seen as a lesser priority for the generic services provided by government.
[45] PCI Report, page 238.
The objects and principles of the NDIS Act
In July 2013 and following on from the PCI Report the NDIS Act came into effect.
Subsection 3(1) provides the objects of the NDIS Act. These objects are subject to a caveat contained in subsection 3(3) which provides that in giving effect to the objects of the NDIS Act regard is to be had to ensuring:
·the financial sustainability of the NDIS scheme;
·the provision of services by other agencies, Departments or organisations; and
·the need for interaction between the provision of mainstream services and the provision of supports under the scheme.
Section 4 of the NDIS Act provides the general principles guiding the actions of the Agency under the NDIS Act in administering the NDIS scheme. Included as a guiding action is subsection 4(4) which states as follows:
People with disability should be supported to receive supports outside the National Disability Insurance Scheme and be assisted to co-ordinate these supports with the supports provided under the National Disability Insurance Scheme’.
To become a ‘participant’ in the NDIS scheme a person must meet the ‘access criteria’. Chapter 3 of the NDIS Act provides for when a person becomes a ‘participant’ in the NDIS scheme. The requirements are three-fold. A person must meet both the age[46] and residence[47] requirements. The third requirement is the satisfaction of either the ‘disability requirements’[48] or the ‘early intervention requirements.’[49]
[46] Section 22 NDIS Act.
[47] Section 23 NDIS Act.
[48] Section 24 NDIS Act.
[49] Section 25 NDIS Act.
Relevant to this review are the ‘disability requirements’ which are set out in paragraph [22] of this decision. In respect of section 24 of the NDIS Act the Explanatory Memorandum[50] provides as follows:
Clause 24 sets out the disability requirements a person must satisfy in order to become a participant in the NDIS Launch. The disability requirements are designed to assess whether a prospective participant has a current need for support under the scheme, based on one or more permanent impairments that have consequences for the person’s daily living and social and economic participation on an ongoing basis. This clause also implements recommendation 3.2 of the Productivity Commission report.
[50] Revised Explanatory Memorandum, National Disability Insurance Scheme Bill 2013 (Cth), page 14.
The relevance of the Access Rules
By operation of section 209 of the NDIS Act, the Minister through the legislature may make rules prescribing matters to modify and prescribe the operation of the NDIS Act. In an application for access to the NDIS scheme the relevant rules, as prescribed by section 27 of the NDIS Act are the ‘Access Rules’. Rule 5.8 of theAccess Rules outlines when an impairment results in “substantially reduced functional capacity” to undertake relevant activities and provides as follows:
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.
(Tribunal emphasis)Particularly relevant is the deeming effect of Rule 5.8[51] and the ability of the legislature to mandatorily include certain persons into the ‘category’ of persons with a ‘substantially’ reduced functional capacity for the purposes of subsection 24(1)(c) of the NDIS Act.[52]
[51] Paragraphs [134-137], Reasons for Decision.
[52] Respondent’s Statement of Facts, Issues and Contentions, page 3.
The threshold requirement for subsection 24(1)(c) of the NDIS Act
I am satisfied that the term ‘substantially’ in the context of ‘reduced functional capacity’ carries a ‘high threshold’ for the following reasons:
·The recommendation of the Productivity Commission which was that the NDIS scheme provide supports only to a subcategory of persons within a much larger category of the persons who have a disability;[53]
·The Productivity Commission recommendation that the NDIS scheme provide supports ‘judiciously rather than routinely’. This is logical and central to the operation of the NDIS scheme and ensuring its financial sustainability;
·The NDIS scheme was never intended to provide support to ‘every person with a disability’;
·Rather, as part of one of its functions the NDIS scheme was intended to support persons with disability to receive supports outside of the NDIS scheme through mainstream services. This would of course include persons with a disability who do not fall within the sub-category of persons for whom the NDIS scheme was intended;
·The NDIS scheme was not intended to respond to shortfalls in other mainstream services, including those provided by relevant state and territory governments;
·The intention of providing supports to only a subcategory of persons with a disability is reinforced by the ability of the legislature to prescribes Rules in relation to access to the NDIS scheme. By way of example Rule 5.8 of the Access Rules operates to categorise certain persons ‘into’ the category of persons with a ‘substantially’ reduced functional capacity; and
·The concept of prescribing Rules in relation to a category of certain persons who would be mandatorily ‘excluded’ from the category of persons with a ‘substantially’ reduced functional capacity is an unrealistic if not impossible task. Notwithstanding, the Access Guidelines assist the decision maker with an informed approach by way of practical examples and circumstances in which access will not be granted.
[53] Mulligan at [50].
I am satisfied that the Tribunal’s satisfaction of what constitutes a ‘substantially’ reduced functional capacity for an applicant seeking access to the NDIS scheme requires a high threshold. My assessment of Ms Carter’s functional capacity in respect of the activities in subsection 24(1)(c) of the NDIS Act will therefore be made on that basis.
The consideration of Ms Carter’s functional capacity relates specifically to her ‘daily life activities’. Relevantly the current Access Guidelines states as follows:
You may be eligible under the disability requirements if you have one or more impairments that are likely to be permanent and this substantially impacts your ability to do daily life activities.
…………….
To meet the disability requirements, we must have evidence of all of the following:
• You have a disability caused by an impairment.
• Your impairment is likely to be permanent.
• Your impairment means you have a substantially reduced functional capacity to do one or more daily life activities. These activities include moving around, communicating, socialising, learning, undertaking self-care, or self-management tasks.
(Tribunal emphasis)
Communication
The Access Guidelines describe communication as follows:
Communicating – how you speak, write, or use sign language and gestures, to express yourself compared to other people your age. We also look at how well you understand people, and how others understand you.
In Madelaine v National Disability Insurance Agency (‘Madelaine’) the Tribunal considered ‘communication functionally’ in respect of an earlier (and not dissimilar) version of the Agency’s Operational Guidelines.[54] In Madelaine the Tribunal described communication functionality to be of 'a fairly basic kind: telling a family member about something that has happened, explaining to a doctor in what part of the body pain is experienced, asking for help to reach something and so on’. (Tribunal emphasis)
[54] [2020] AATA 4025 at [79].
Ms Carter provided two reports from Ms Bridget Webster, occupational therapist who conducted four functional capacity assessments of her between 26 August 2021 and 5 January 2022.
Ms Carter identified to Ms Webster during her assessment her difficulty with her memory and recall, also her difficulties in finding the correct word when she was trying to explain something.[55]
[55] T Documents, T14, Report by Bridget Webster, occupational therapist.
In her report dated 8 October 2021 Ms Webster stated ‘Debbie reported she is able to communicate her day-to-day needs’. In her report dated 5 January 2022 Ms Webster confirmed her earlier opinion. She also stated that ‘Debbie was able to engage in conversation with the OT whilst making a tea and did not appear distracted during the task’.[56] Ms Webster noted Ms Carter’s ability to operate a telephone but noted Ms Carter’s report of increased difficulty using technology in recent months.[57]
[56] T Documents, T14.
[57] T Documents, T14.
Ms Carter provided a number of statements to the Tribunal.[58] Her statements were typed and she used grammatically acceptable language. In her statements she referred to talking with her grandchild on the telephone[59] and belonging to and attending a sewing group.[60]
[58] T Documents, T9; C2: Applicant’s outline of her conditions.
[59] C2, page 967.
[60] C2, page 968.
Ms Janice Albert provided correspondence dated 3 December 2021 in support of Ms Carter’s application. In her correspondence Ms Albert refers to Ms Carter’s difficulties and to the assistance that she has provided Ms Carter with over the years. Ms Albert states, ‘Some days Deb just needs company and I do those days as well. We sit and chat’.[61]
[61] T Documents, T12, Letter from Janice Albert, page 56.
In January 2024 Mr Glen Dwyer, occupational therapist assessed Ms Carter at the request of the Agency. Mr Dwyer provided a report dated 9 February 2024 to the Tribunal. Ms Carter explained to Mr Dwyer that her symptoms were relatively constant, with the same functionality on most days. She stated that approximately two or three days per month she will experience a ‘bad day’ and on those days she just ‘sits on the couch and watches Netflix’ and ‘does nothing’.[62] Ms Carter reported that she was having a typical day on the day of Mr Dwyer’s assessment.
[62] D4, Report by Glen Dwyer, occupational therapist, page 1008.
Mr Dwyer described Ms Carter in his assessment as being ‘Independent in the domain of communication’.[63] He stated:
‘Ms Carter communicated clearly in English during this assessment. There were no reported or observed deficits in relation to her expressive communication skills.
I note she regularly communicates with the ladies from her sewing club (held weekly) as well as communicating with clients in the sale of her clothing items.
Ms Carter is not restricted in her capacity for writing and keying, however she paces this task due to right wrist pain.During this assessment she was observed to compile a text message (see below). Her statement of lived experience is evidence of her written communication skills’.[64]
[63] D4, page 1007.
[64] D4, page 1019.
Mr Dwyer’s report included a photograph of Ms Dwyer using her mobile telephone to compile a text message. Mr Dwyer also stated that there were no reported or observed deficits during the assessment in relation to Ms Carter’s capacity to understand others. Mr Dwyer concluded that Ms Carter was independent in the activity of communication.
Having considered the evidence and in light of what is a high threshold I am satisfied that Ms Carter’s impairments do not result in her having a substantially reduced functional capacity in relation to the activity of communication.
Ms Carter was able to prepare and formulate written statements to the Tribunal in which she provided expressive and very detailed information in relation to her diagnoses and impairments. Ms Carter can use a mobile telephone to speak and to text. She is also able to verbally communicate, in person, with a variety of other persons including, grandchildren, children, members of her sewing group, walking group and coffee group and also Ms Albert. She is also able to communicate with her former husband, with whom she lives, and does so regularly when she requires his assistance.
I am satisfied that Ms Carter does not have a substantially reduced functional capacity to undertake the activity of communication.
Social Interaction
The Access Guidelines refers to ‘socialising’ as follows:
Socialising – how you make and keep friends, or interact with the community, or how a young child plays with other children. We also look at your behaviour, and how you cope with feelings and emotions in social situations.
Relevantly, in Madelaine the Tribunal held ‘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.’[65]
[65] Madelaine at [87].
In Kilgallin and National Disability Insurance Agency the Tribunal observed the following in relation to the threshold requirements for ‘social interaction’: [66]
‘Social interaction as referred to in 24(1)(c)(ii) doesn’t, in our view, mean social interaction with the whole of the community. It means social interaction with elements of the community, sections of the community.’
[66] [2017] AATA 186 at [18].
Ms Carter states that her daughter and her children provide her with regular assistance. Ms Carter has three children and six grandchildren. A number of these family members visit her regularly.[67]
[67] T Documents, T10, Report by Bridget Webster, occupational therapist.
Despite separation from her husband they continue to reside together. Ms Carter advised Mr Dwyer that she and Mr Carter have a ‘reasonable’ relationship and that they support each other as needed’.[68]
[68] D4.
Ms Carter enjoys taking her grandchildren to ‘the local Highfields parks’ on the basis that ‘they love it there’. She also enjoys taking her grandchildren to Peacehaven Botanic Park.[69]
[69] T Documents, T11 page 54.
Ms Carter is also able to participate in a walking group and states ‘…walking with a group of 60-90 year old’s so many thing in common. They are more active than some 15-year old’s plus we have a lady from the Heart Foundation walk with us. It’s my happy place. It’s probably the only place I seem to control my swearing – I just walk and try to shut up even though they are extremely friendly to me.’[70]
[70] T Documents, T9 page 34.
In her report dated 8 October 2021 Ms Webster stated ‘Debbie currently works around 20-25 hours over 3-4 days per week with her children’s clothing sewing business. Debbie attends markets on the weekend and sells her items. Debbie receives support from a friend named Kai for this work and also managing the website and general invoices. Debbie attends an over 50’s social group and a sewing group around once per month.’[71]
[71] T Documents, T10.
In her report dated 5 January 2022 Ms Webster stated that Ms Carter reported ‘significant retraction from social engagement due to concerns ability her ability to maintain social communication and emotional regulation during social tasks, particularly with family members.’[72]
[72] T Documents, T14 page 61.
Ms Carter enjoys sewing and has friends who her share the same interest. She works as a part-time seamstress. She makes clothes which she was selling at a local monthly market with one of her grandchildren assisting her.[73] In her statement dated 21 August 2022 Ms Carter referred to having to cancel her market dates on the basis of no longer having the capability to attend.[74]
[73] T Documents, T17 Statement by David Scott Carter.
[74] C7, Internal Review Request.
In respect of Ms Carter’s ability to socially interact Mr Dwyer stated:
·The majority of Ms Carter’s friends are through a local sewing group and she sees her friends weekly at a local community centre.
·In addition, Ms Carter usually has another weekly outing with friends to go for coffee.
·In between the sewing group and coffee group, Ms Carter communicates with her friends mainly through Facebook.
·Ms Carter is able to interact with the community independently through her weekly sewing group and weekly coffee group. She is able to drive independently, which enables her access to community-based events.[75]
[75] D4.
Mr Dwyer’s opinion was that Ms Carter is independent in the activity of social interaction.[76]
[76] D4.
Having considered the evidence I am satisfied that Ms Carter does not meet the threshold of having a substantially reduced functional capacity to undertake the activity of social interaction as a consequence of her permanent impairments. Ms Carter is able access the community and social groups.[77] She is also able to enjoy the company of her family including her grandchildren. She attends a sewing group, coffee group and walking group. She is able to socialise with friends and family in person. She is also able to use a telephone to speak and to text.
[77] T Documents, T10.
I am satisfied that Ms Carter does not have a substantially reduced functional capacity to undertake the activity of social interaction.
Learning
The Access Guidelines describe learning as follows:
Learning – how you learn, understand and remember new things, and practise and use new skills.
In Madelaine the Tribunal described the reference in the Guidelines to learning as follows:[78]
‘What the Guideline foreshadows is having the cognitive capacity to absorb and apply new skills. The phrase practising and using new skills should not be interpreted as meaning that any inability to utilise a skill connotes an inability to learn.’
[78] At [93].
Ms Carter previously worked as bookkeeper. In her statement dated 12 May 2021 she stated ‘I am forgetting how to spell simple words and hard words; I was brilliant at spelling.’[79]
[79] T Documents, T5.
Ms Carter also states “Apart from my sewing which I love I can no longer retain information- I get so confused…’[80]
[80] T Documents, T9 page 33.
In July 2021 Ms Webster administered a Montreal Cognitive Assessment. Ms Carter was assessed as having cognitive impairment with a score of 20/30.[81] Ms Webster qualified this assessment with the following statement ‘This is a screening tool that has been used to assess some areas of functional capacity but should not be considered a formal assessment of cognition. However, it does indicate areas that require support and indicates the need for on-going review of her level of cognition’.[82]
[81] T Documents, T10 page 41.
[82] T Documents, T10.
Ms Carter advised Ms Webster that she was forgetful, had difficulty with memory recall of new information, takes increased time to complete her sewing tasks due to decreased attention and often loses items such as scissors and measuring tapes when sewing. Ms Carter explained that she becomes frustrated with her memory and requires routine for certain tasks.[83] Ms Webster’s opinion was that Ms Carter would benefit from occupational therapy support to develop a cognitively supportive routine, develop strategies for problem solving and supporting attention in various tasks.
[83] T Documents, T14.
In respect of Ms Carter’s ability to engage in the activity of learning Mr Dwyer stated:
·Ms Carter runs her own business and has done so for many years; and
·In addition to the management and administrative duties associated with her business, as a part of her business she makes children’s clothing by sewing them herself. The sewing of these items of children’s clothing involves using various templates and patterns.
Mr Dwyer acknowledged Ms Carter’s requirement to pace herself at times whilst she was experiencing high pain levels or fatigue however reported ‘she did not demonstrate any specific cognitive deficits. Her capacity for understanding and remembering information and learning new skills is intact. In my opinion, Ms Carter maintains her independence in this domain, and this is anticipated to remain the situation in the future.’[84]
[84] D4.
I acknowledge that Ms Carter does experience difficulties with her memory and that she now takes longer with certain tasks which includes her sewing. Her capacity for functioning in the domain of learning is reduced but I am not satisfied that it is ‘substantially’ reduced. Undertaking tasks slowly or differently to others does not necessarily equate with a substantially reduced functional capacity. In Foster it was noted ‘The task remains to assess the degree to which the person can participate in the activity.’[85]
[85] Foster at [88].
I am persuaded by the opinion of Mr Dwyer’s assessment which was more recently conducted. Despite her forgetfulness and memory problems Ms Carter still continues to function in this domain. This includes operating her own business which includes an administrative component and the sewing of children’s clothing.
Having considered the evidence I am not satisfied that Ms Carter meets the requisite threshold of having a substantially reduced functional capacity to undertake the activity of learning.
Mobility
The Access Guidelines describe mobility as follows:
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.
In Madelaine, the Tribunal held (albeit in respect of an earlier version of the NDIS Operational Guidelines) that the threshold requirements to achieve functional capacity with respect to mobility are ‘relatively modest’, stating that:[86]
‘A person has functional capacity if they can move about their home, get in and out of a bed or a chair, and mobilise in the community. Movement in the home does not need to be achieved by walking, a person might even crawl from room to room. The Concise Oxford Dictionary defines mobile as movable, not fixed, free to move.
The use of the phrase move around...to undertake ordinary activities of daily living in the Guideline is significant. It implies some expectation of how far a person needs to be able to move to undertake ordinary daily activities, say, getting to the bathroom to wash or toilet, getting to the kitchen to prepare food, perhaps getting to the front letterbox to collect mail. Implicit in this concept is that the distances involved will be relatively short. Significantly, the concept does not include being able to move around in the community for the purpose of accessing services, such as shops, the bus stop or the local park – the phrase moving about in the community is not qualified in the same way that move about the home is qualified by to undertake ordinary activities of daily living. To define mobility by the ability to reach local services would be to make it a function of where one lived. A better application of the concept is to ask whether a person can move about in shops or a park once they have reached them, say by car or public transport.’
(Tribunal emphasis)
[86] Madelaine at [104]-[105].
In her statement of 12 May 2021 Ms Carter stated that ‘Several days a week I am not capable of walking my dog.’[87] In his statement of 24 January 2022, Mr Carter stated that walking her dog was now beyond Ms Carter, notwithstanding she is still able to play with her dog.[88]
[87] T Documents, T5 page 23.
[88] T Documents, T17.
On 8 October 2021 Ms Webster provided the following report in respect of Ms Carter’s mobility:
·She was able to mobilise in her flat level home;
·She had no aids to assist her with mobility;
·She used a slow pace and when exiting her home from her laundry holds onto the door frame;
·She was observed to complete an independent sit to stand transfer from her lounge chair to a standard office chair and a controlled transfer from standing to sitting;
·There were no reported difficulties with bed transfers;
·She was able to complete independent toilet transfers without requirement of a rail;[89]
·She mobilises within the community without aids; and
·She is able to drive and ‘feels safe and confident to drive within town’.[90]
[89] T Documents, T10 page 43.
[90] T Documents, T10.
Ms Webster recommended the purchase of non-slip mats for Ms Carter to reduce her falls risk, falls prevention education from a physiotherapist, assessment and intervention from an exercise physiotherapist in relation to her transfers and a referral to her GP for her driving status.[91]
[91] T Documents, T10.
In a subsequent report dated 5 January 2022 Ms Webster confirmed her previous opinion and also reported:
·a timed Up and Go test indicated that Ms Carter has a risk of falling; and
·a recent history of falls within the community on unsteady ground.[92]
[92] T Documents, T14.
At the time of Mr Dwyer’s assessment in January 2024 Ms Carter stated that she walks in a local park on average 2-3 times each week. She also undertakes self-directed therapy on a daily basis.[93] Mr Dwyer’s assessment was over a 40 continuous minutes period and included mobilisation on level floor surfaces inside her home, the sloping driveway, the uneven ground of her yard areas and all entrances. She was observed to mobilise around her home and yard areas independently and without the use of any walking aids. Ms Carter did advise Mr Dwyer that on occasions when outdoors she uses a single point walking stick.
[93] D4.
Mr Dwyer reported that Ms Carter was able to:
·access her letterbox;
·reach a variety of shelving and storage areas in her home. Mr Dwyer suggested that frequently used items be stored on a more accessible level between approximately shoulder height and waist level;
·drive a car with a manual transmission;
·reach her clothesline with her non-dominant hand and peg on her clothes with one-hand;
·use a laundry trolley to access her clothesline;
·complete safe and independent bed transfers and chair transfers;
·complete a toilet transfer however when rising reach for an adjacent wall and window ledge. Mr Dwyer recommended the installation of a grab rail adjacent to the toilet in order to provide Ms Carter with a safe and stable fixture to assist her with toilet transfers;
·complete shower transfers, this included accessing the shower cubical without difficulty and lowering herself onto a shower chair;
·access public transport which includes taxis and bus services; and
·complete car transfers without difficulty.
Mr Dwyer stated that Ms Carter has a sewing room with multiple sewing machines and workstations. She had a stock of 18 racks of clothing in her garage with each rack containing 60 completed items of clothing which are for sale. Ms Carter also has an office area in her home that she accesses to manage online sales and her Facebook group.
Mr Dwyer explained that Ms Carter had modified various lifting tasks to compensate for the reduced functional capacity of her right shoulder and wrist. In this regard she relied on her left upper limb when undertaking tasks such as lifting and carrying baskets.
Mr Dwyer stated that Ms Carter reported that her last major fall was in October 2023. This fall occurred in the context of tripping over items that had been left near a doorway.
In order to maximise her safety and independence in the domain of mobility Mr Dwyer recommended:
·Assistive equipment and minor home modifications;
·Occupational therapy to demonstrate safe use of equipment; and
·Ongoing occasional use of her walking stick for confidence when mobilising outdoors.
I am not persuaded that Ms Carter’s functional capacity is substantially reduced and I am persuaded by the opinion of Mr Dwyer. My considerations include the following:
·Ms Carter is able to drive a motor vehicle with a manual transmission;[94]
·She is able to mobilise in her home and complete transfers which include her toilet, shower, bed and chairs;
·She is able undertake cleaning tasks to an extent which include vacuuming and sweeping;[95]
·She is able to access her letterbox;
·She is able to reach shelving in her home and undertake moderate laundry tasks; and
·She enjoys participating in a walking group and playing with her dog.
[94] T Documents, T5 page 22.
[95] T Documents, T5.
I accept the Agency’s contention that Ms Carter does not reach the requisite threshold under subsection 24(1)(c) of the NDIS Act in respect of the activity of mobility.[96]
[96] Respondent’s Statement of Facts, Issues and Contentions page 8.
Self-care
The Access Guidelines describe self-care as follows:
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.
Ms Carter will only have a substantially reduced functional capacity in the activity of self-care where there are ‘significant gaps’ in her capacity to maintain her personal health, safety and well-being. As the Tribunal explained in Madelaine in respect of the activity of self-care:[97]
‘Extrapolating from this provision, it may be said that having a substantially reduced functional capacity to care for oneself imports the idea that there are significant gaps in one’s capacity to maintain personal health, safety and well-being.’
[97] Madelaine at [121].
As a consequence of her shoulder bursitis and difficulty in lifting her arm Ms Carter explained that she requires assistance with washing her hair. As such she will usually get her hairdresser or Mr Carter to wash her hair.[98]
[98] T Documents, T5; T9 page 32.
Ms Carter also stated: ‘I manage washing and folding most of the time.’[99]
[99] T Documents, T5 page 23.
Ms Webster stated in her report dated 8 October 2021 that ‘Debbie is independent with most of her self-care tasks, including toileting, dressing and brushing teeth. Debbie has difficulty washing and brushing her hair due to reduced range of motion in her right shoulder and neck. Debbie has occasional bowel accidents’.[100]
[100] T Documents, T10.
Ms Webster also reported that Ms Carter:
·required support for washing her hair due to her decreased range of motion of her right shoulder;
·required only minimal assistance with fastening clothing such as buttons or zips and was able to complete her personal hygiene tasks independently, however with some difficulty brushing her hair. Ms Webster recommended the purchase of a long-handled brush, the installation of a long-handled shower hose and other long handled shower aids to increase Ms Carter’s independence in showering;[101]
·was able to feed herself however required some assistance with cutting food; and
·was able to wipe a kitchen bench.[102]
[101] T Documents, T10 page 44.
[102] T Documents, T10 page 47.
The Agency contends that despite Ms Carter having some difficulty with self-care tasks, as a whole Ms Carter can complete domestic tasks in a modified manner and with the support of assistive technology. In Foster it was noted ‘a person will not necessarily be deemed to have substantially reduced functional capacity simply because one task is unable to be completed without assistive technology. The task remains to assess the degree to which the person can participate in the activity.’[103]
[103] Foster at [88].
Based on the evidence I am not satisfied that Ms Carter has significant gaps in her capacity to complete tasks within the activity of self-care.
In respect of Ms Carter’s ability to manage her self-care Mr Dwyer stated in his report:
·Ms Carter reported no difficulty in her toileting, feminine hygiene, or in washing her hands;
·She is independent with the majority of showering tasks noting the use of a shower chair. She does however perform a shower task slowly and carefully so as to avoid aggravating her symptoms;
·She washes her hair once a week in the laundry tub with the assistance of Mr Carter;
·She is able to dress herself with the use of modification strategies such as sitting when trying to access her feet;
·She is independent in the tasks of cleaning teeth, washing her face, shaving, brushing her hair, applying makeup and cutting nails;
·Her diet is comprised of mainly soft foods such as yoghurt, soup, eggs and bread in the context of her gastric condition and she is independent in respect of preparing her own meals;
·She is able to access the supermarket for the purposes of light items with Mr Carter having responsibility to complete ‘the main weekly shop;’
·She is able to complete short sessions of light cleaning of accessible surfaces, such as wiping the kitchen bench or vanity units. She is also able to complete short sessions using her stick vacuum and tile cleaner;
·She is able to undertake light laundry tasks. Mr Dwyer stated that a change in the layout of her laundry which included raising the level of her washing machine and the use of a clothes airer would increase her independence with laundry tasks;
·She is able to make her own bed however requires the assistance of Mr Carter to change bed linen;
·She is able to use a dishwasher; and
·She can make and attend medical and allied health appointments.
Mr Dwyer suggested Ms Carter use the following aids:
·a long-handled hair washer, toe washer and sponge;
·a hair dryer stand;
·a grab rail next to the toilet;
·a dressing stick;
·a bottle opener, jar opener and tin opener;
·a clothes airer;
·long handled light weight dustpan and broom; and
·a handy reacher.
I note the recommendation by both Mr Dwyer and Ms Webster that Ms Carter be assisted with various items of assistive technology and home modifications.[104]
[104] Paragraphs [134-138], Reasons for Decision.
Relevant to this application, Rule 5.8(a) of the Access Rules requires the Tribunal to assess whether Ms Carter can participate effectively or completely on the basis that she is unaided by assistive technology, equipment or home modifications other than ‘commonly used items.’
(Tribunal emphasis)
The interpretation of ‘commonly used items’ was considered by the Tribunal in Rooney and National Disability Insurance Agency (‘Rooney’).[105] In Rooney, the Tribunal identified the indicia in respect what are to be considered ‘commonly used items’ for the purpose of Rule 5.8(a) of the Access Rules. This indicium included items which are:
·generally accessible;
·can be used without the need for complex or specialised customisation or installation;
·are relatively simple to use; and
·are relatively inexpensive.
[105] [2021] AATA 3523.
I am satisfied that the items of assistive technology and the home modifications recommended by Ms Wester and Mr Dwyer all fall within the range of ‘commonly used items’. On this basis Ms Carter cannot rely on the deeming operation of Rule 5.8(a) of the Access Rules to establish that she has a substantially reduced functional capacity in relation to her self-care.
I am therefore satisfied that Ms Carter’s ability to self-care is not substantially reduced. Ms Carter is able to undertake most tasks of self-care with slight modifications and the assistance of various commonly used items such as a shower chair and long-handled assistive technology.
Self-management
The Operational Guidelines describe self-management as follows:
Self-management – how you organise your life. We consider how you plan, make decisions, and look after yourself. This might include day-today 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.
In her report dated 8 October 2021 Ms Webster stated, ‘Debbie manages the finances and medication.’[106] Ms Webster also referred to Ms Carter’s ability to:
·telephone and make health appointments;[107] and
·access photographs and documents through her mobile phone.[108]
[106] T Documents, T10 pages 47, 48.
[107] T Documents, T10 page 46.
[108] T Documents, T10 page 46.
Mr Dwyer stated Ms Carter operates her online clothing business ‘Woo Hoo Look At You’ from her home. She handmakes children’s clothing (newborn to size 10) in a range of styles based around African, Indigenous and contemporary Australian themes.
In Mr Dwyer’s report he describes Ms Carter as being ‘independent in regards to all self-management activities’. He described Ms Carter as having excellent administrative skills noting that she continues to manage her own online clothing business.
Mr Dwyer also provides the following examples of Ms Carter’s independence in the domain of self-management:
·she organises all her own medical and therapy appointments;
·she has her own bank account and she manages her own finances;
·she is able to budget and manage money;
·she manages the household bills; and
·she manages her own online business.
Mr Dwyer’s report concludes, ‘Based on my observations during this assessment, Ms Carter has the capacity for planning, problem solving and making decisions without assistance. In my opinion, Ms Carter does not have any requirements for assistance in the domain of self-management.’
Mr Dwyer’s evidence was persuasive and reflective to an extent of the evidence of Ms Webster. Having considered this evidence I am satisfied that Ms Carter does not meet the requisite threshold of having a substantially reduced functional capacity to undertake the activity of self-management.
Subsection 24(1)(e): Is Ms Carter likely to require support under the National Disability Insurance Scheme for her lifetime?
On the basis that Ms Carter has failed to meet subsection 24(1)(c) of the NDIS Act I am not required to consider the remaining criteria. Notwithstanding, I make the following observations having regard to the requirements under subsection 24(1)(e) of the NDIS Act.
The correct approach in relation to whether Ms Carter is likely to require support under the National Disability Insurance Scheme for her lifetime was recently considered in Foster with the following observation:[109]
‘The focus of s24(1)(e) is on whether a prospective participant is likely to require support under the NDIS, or whether those support needs are most appropriately met by other systems.’
(Tribunal emphasis)
[109] Foster at [93].
Mr Dwyer identifies that many of the supports which would meet Ms Carter’s needs are available through various community-based services. In this regard Mr Dwyer identifies a number of support service providers which include the following;
·The Queensland Community Supports Scheme (‘QCSS’). The QCSS provides low intensity supports and is available to persons who are not eligible for the NDIS. For those who are eligible this scheme provides assistance with:
(i)shopping;
(ii)recreational activities such as local social groups;
(iii)visits to the doctor or another health professional;
(iv)meal preparation;
(v)cleaning and household chores;
(vi)personal care, such as showering and dressing; and
(vii)basic home maintenance like mowing, cleaning windows or gardening.
·The Queensland Community Transport program for support with transport options in the local community;
·The Taxi subsidy scheme and lift payment;
·Crisis Assessment and Treatment Team (CATT);
·My Aged Care Services through the Commonwealth Home Support Programme and Home Care Packages whereby supports can include:
(i)Bathing, hygiene and grooming;
(ii)Meals and food preparation;
(iii)Domestic assistance including house cleaning and laundry;
(iv)Home modification such as the installation of grab rails and ramps;
(v)Assistive aids to maximise independence;
(vi)Transport and community access; and
·Home care supports through other providers such as Anglicare, Catholic Health care and Uniting.
The evidence establishes that Ms Carter does require some support in relation to her disability on the basis of the recommendations made particularly by Mr Dwyer. There is however no evidence that Ms Carter has made any inquiries through these service providers such that the Tribunal can be positively satisfied that Ms Carter’s support needs are not best met by another service system.
It would in my view be in Ms Carter’s interest to make the relevant enquiries.
Section 25 NDIS Act: The Early Intervention Requirements
There is no evidence before the Tribunal that suggests that the supports sought by Ms Carter are early intervention in nature and are likely to reduce her future support needs.
Furthermore, for the reasons provided in [146] to [148] I am also not satisfied that for the purposes of subsection 25(3) of the NDIS Act that the Tribunal can be positively satisfied that Ms Carter’s future needs for support are not best met by another service system.
Having failed to meet these mandatory criteria under section 25 of the NDIS Act Ms Carter cannot meet the early intervention requirements.
Conclusion
Ms Carter does not satisfy either the disability requirements or the early intervention requirements to become a participant in the scheme.
Pursuant to section 43(1)(a) of the Administrative Appeals Act 1975 (Cth), the Tribunal affirms the decision under review.
I certify that the preceding 154 (one hundred and fifty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member J Collins.
.........................[SGD]..........................
Associate
21 August 2024
Date of Hearing: 30 July 2024
Representative for the Applicant: Ms Deborah Carter
(Self-represented)
Counsel for the Respondent: Mr Ben McGlade
Solicitor for the Respondent: Taylor Hawcridge
(Maddocks Lawyers)
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