Clarke and National Disability Insurance Agency

[2023] AATA 3494

Clarke and National Disability Insurance Agency [2023] AATA 3494 (27 October 2023)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2021/8808

Re:Jamie Clarke

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Member I Thompson

Date:27 October 2023

Place:Adelaide

The decision is set aside and, in substation for such decision, there is a decision that Mr Clarke meets the access criteria under s24 of the NDIS Act.

................................[Sngd]..............................

Member I Thompson

Catchwords

NATIONAL DISABILITY INSURANCE SCHEME – access to the scheme – disability requirements – impairments from polymorphic light eruption and autism spectrum disorder    – permanency- whether there is  substantial reduction in functional capacity - available treatments  - decision set aside

Legislation

National Disability Insurance Scheme Act 2013 (Cth)

National Disability Insurance Scheme (Becoming a Participant) Rules 2016

Cases

Clarke v Secretary, Department of Social Services [2022] AATA 2521

HSPC v National Disability Insurance Agency [2021] AATA 727

Madelaine v National Disability Insurance Agency [2020] AATA 4025

Mulligan v National Disability IInsurance Agency  (2(2015) FCA 544

National Disability Insurance Agency v Davis [2022] FCA 1002

National Disability Insurance Agency v Foster [2023] FCAFC 11

Secondary Materials

Agency’s Operational Guideline – Access to the NDIS

REASONS FOR DECISION

Member I Thompson

27 October 2023

1.The applicant, Jamie Clarke, made an access request to the National Disability Insurance Agency (the Agency) to become a participant in the National Disability Insurance Scheme (NDIS).

2.In Mr Clarke’s request for access to the NDIS his impairments were recorded as polymorphic light eruption (PMLE), autism spectrum disorder (ASD) and Meckel’s diverticulum.[1]

[1] Exhibit 1. T5, 32.

3.After the Agency declined the request [2] , Mr Clarke  sought an internal review of the decision which was subsequently affirmed by a delegate of the Agency  on 17 November 2021.[3] It was noted that Mr Clarke met the age and residency criteria set out in sections 22 and 23 of the National Disability Insurance Scheme Act 2013 (NDIS Act), however it was decided that he did not meet the disability or early intervention requirements in sections 24 and 25 of the NDIS Act.

[2] Exhibit 1, T13, 47.

[3] Exhibit1, T1A, 9.

4.Mr Clarke applied to the Tribunal for review of that decision. In his written application Mr Clarke claimed that the Agency’s decision about access was wrong and it was made “without proper examination of medical records by the NDIS losing highly relevant records and including a decade old job capacity assessment in their place.”.[4]

[4] Exhibit 1, T1, 4.

5.Mr Clarke is 30 years old. He resides in suburban Adelaide and provides support to his young daughter.

ISSUE

6.The issue for the Tribunal to determine is whether Mr Clarke meets the requirements for access to the NDIS. In order to qualify as a participant in the NDIS, an applicant must meet the criteria outlined in s 21 of the NDIS Act.

7.Specifically the Tribunal must determine whether Mr Clarke meets the disability requirements under s 24 of the NDIS Act, or the early intervention requirements under s 25 of the NDIS Act. It is not disputed that he meets the age and residence criteria.

The Hearing

8.An audio-visual hearing in the Tribunal took place at which Mr Clarke was self-represented and the Agency was represented by counsel, Ms Davey.

9.Mr Clarke gave audio-visual evidence from home. The Agency had arranged an occupational therapy assessment which was conducted by Ms Janice Wong. She gave evidence by video. The Tribunal received in evidence a number of documents which included medical reports, notes, written statements, forms and other documents.

LEGISLATIVE FRAMEWORK

10.The NDIS is established by the NDIS Act, and the Agency administers the NDIS. The NDIS comprises coordination, strategic and referral services or activities, funding to persons or entities to assist the participation of people with disability in economic and social life, and funding through individual plans for reasonable and necessary supports for participants in the NDIS.[5]

[5] National Disability Insurance Scheme Act 2013 (Cth) s8.

11.It is important to note the comments of the Federal Court (per Mortimer J) in Mulligan v NDIA, at [34]:

a.It is clear from the legislative scheme that the decision whether a person is or is not a participant is the threshold decision under the scheme, and the decision which enables access to most benefits and funding available under the NDIS. However, what benefits and supports are provided, and how they are funded is subject to a separate decision-making process.[6]

[6] (2015) FCA 544, at [34] per Mortimer J.

12.The question whether an applicant satisfies the access criteria to become a participant in the NDIS involves a consideration of these questions:

a)Does the applicant have a disability that is attributable to one or more intellectual, cognitive, neurological, sensory, or physical impairments, or one or more impairments to which a psychosocial disability is attributable, within the meaning of s24(1) (a) of the NDIS Act

b)Are the impairment or impairments likely to be permanent within the meaning of s24(1)(b) of the NDIS Act

c)Have the impairment or impairments resulted in substantially reduced functional capacity to undertake relevant activities within the meaning of s24(1) (c) of the NDIS Act

d)Do the impairment or impairments, affect the applicant’s capacity for social or economic participation within the meaning of s24(1)(d) of the NDIS Act

e)Is the applicant likely to require support under the NDIS for their lifetime within the meaning of S 24 (1) (e) of the NDIS Act

Does the applicant meet the early intervention requirements within the meaning of s 25 of the NDIS Act

13. The criteria in each of the sections 24 (1) and 25 (1) of the NDIS Act are cumulative. Accordingly, all of the requirements in either of those sections of the NDIS Act must be satisfied to enable a person to become a participant in the NDIS.

14. Under s 209 of the NDIS Act, the Minister has made rules about becoming a participant in the scheme. The National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (the NDIS Rules) are relevant to this case. They form part of the legislation.

15.  The CEO of the Agency has made an Operational Guideline for staff in exercising their functions under the NDIS Act. The NDIS Operational Guideline – Applying to the NDIS (Access Guideline) provides information and guidance regarding the disability requirements and the early intervention requirements.

CONTENTIONS

16. In its statement of issues, facts and contentions prior to the hearing, the Agency accepted that the disability requirement in s 24 (1) (a) &(b) of the NDIS Act is met in relation to Mr Clarke’ permanent impairment of ASD. The Agency did not accept that this impairment resulted in a substantial reduction in functional capacity to undertake one or more of the activities specified in s 24 ( 1) ( c) of the NDIIS Act. The Agency contended that the impairment did not affect Mr Clarke’s capacity for social or economic participation, as required by s 24 (1) (d), while it was also contended that he is not likely to require support under the NDIS for his lifetime as required by s 24 (1) (e) of the NDIS Act.

17. The Agency contended that Meckel’s Diverticulum is not an impairment that results in a disability as required by 24 (1) (a) of the NDIS Act.

18.  The Agency did not accept that Mr Clarke was fully diagnosed   with PMLE. Alternatively, if he has a diagnosis of PMLE, the evidence is not sufficient to conclude that it is an impairment that results in a disability. Rather, it is a temporary reaction to UV light that occurs in spring and summer.

19. The Agency contended that Mr Clarke does not meet the requirements under s 25 of the NDIS Act for early intervention. While the permanent impairment of ASD was sufficient to meet the requirement of s 25 (1) (a) (i), none of the other early intervention criteria are met for ASD, and none at all are met for PMLE and Meckel’s Diverticulum.

20.  While Mr Clarke did not provide a written statement of contentions, he provided a one-page statement of lived experience[7] which provided information about his daily routines and activities. He also filled out a form[8] on NDIS letterhead in which he provided answers to questions about his functional capacity in activities of daily living

[7] Exhibit 2, 193.

[8] Exhibit 2, 194.

EVIDENCE

21.  A letter[9] from Autism SA acknowledged that Mr Clarke is a registered client with a diagnosis of ASD following an assessment on 4 March 2009. The letter stated that the assessment used the prevailing international standards and diagnostic criteria at that time. The letter confirmed that Mr Clarke has an established diagnosis of ASD which is a lifelong condition.

[9] Exhibit 1, T9,  42.

22.  Ms Janice Wong is an occupational therapist with interests in mental health including mood, anxiety and affective disorders. At the request of the Agency, she conducted an assessment of Mr Clarke. She wrote a comprehensive functional capacity report[10] followed by a supplementary report.[11]. She also gave oral evidence by video at the hearing.

.

[10] Exhibit 4, 198.

[11] Exhibit 5, 253.

23.  Ms Wong referred to Mr Clarke’s primary and secondary disabilities as Asperger’s Syndrome (as part of ASD) and PMLE. Ms Wong noted that he has installed a smart home system in his house which enables him to narrate instructions to devices and program the devices to perform functions that include automatic light brightening and dimming in accordance with sunrise and sunset times. He set up the smart home system by himself and he told Ms Wong that he is well versed with computers and programming.

24.  In her report Ms Wong noted[12] that Mr Clarke experiences functional limitations in social interaction, communication, learning and self-management.  She considered that he would benefit from assessments and therapy by a psychologist with regard to cognitive rigidity, distortions and biases; assessment by, a speech pathologist with regard to social and communication skills; further, formal assessment by an occupational therapist regarding his overall global cognition and improvement of skills for independent activities of daily living. She considered that Mr Clarke’s functional deficits are linked to his primary disability of Asperger’s syndrome/ASD.[13]

[12] Ibid, 229 – 230.

[13] Exhibit4,  251.

25.  In the NDIS access request supporting evidence form,[14] a general medical practitioner, Dr Pahuja, recorded Mr Clarke’s primary impairment as PMLE which had been recurrent for 12 years. He confirmed that the impairment is likely to be lifelong

[14] Exhibit 1, T5, 32.

26.  Dr Colin Ooi is a dermatologist with Dermatology SA. He wrote several letters about Mr Clarke’s skin condition following a consultation on 15 February 2021[15]. Mr Clarke was concerned about a rash which seemed to be caused by exposure to sunlight, in summer, for the past twelve years. Dr Ooi described PMLE as a rare condition

[15] Exhibit 1, T8.

27.  Mr Clarke gave oral evidence and provided a written statement of experience about some aspects of his day-to-day life. He has established and programmed an artificial intelligence (AI) system in his house with various customised settings which include turning on lights and providing him with weather reports and UV index readings. He has block out curtains over blinds on the windows to prevent the penetration of any ray of light. He spends most of the day indoors. He does not take the garbage out during the day or collect the mail or use a clothesline. When he leaves home he ensures the trips are as quick as possible. Generally, they are confined to brief shopping trips to collect items that he has ordered online. He drives to and from his daughter’s school which is close by. He takes measures to ensure that he is away from sunlight to the maximum extent possible.

28.  Mr Laurence Field is a clinical psychologist. In a letter dated 30 December 2021[16] he commented upon Mr Clarke’s PMLE and ASD. He noted that the symptoms of PMLE have occasionally led to Mr Clarke’s scratching himself to the point of bleeding and suffering “severe emotional dysregulation.” He noted that the ASD causes sensory hypersensitivity for Mr Clarke which in turn causes emotional dysregulation and it: – “takes a very long time before he could be considered to be emotionally regulated.” Mr Field’s letter included his comments about Mr Clarke’s restrictions in activities of daily living

[16] Exhibit 2, 190.

29.  Ms Tiffany Evans is Mr Clarke’s sister. She provided a written statement[17] in which she confirmed aspects of his daily activities. Among other matters, she mentioned the limitations on his outdoor activities and social life and gave various examples of them.

[17] Exhibit 2, 196.

30.  Mr Connor Lockley, a support worker for Support Services SA Inc, is a friend of Mr Clarke. He wrote and signed a note[18] in which he summarised some observations of Mr Clarke’s activities and routines. He wrote that Mr Clarke stays at home except for shopping and taking his daughter to and from school; he has limited social relationships outside family members; most of his social interactions are online; while Mr Clarke “rarely holds eye contact with people, has a tendency to speak in long drawn out sentences and does ramble on various subjects”.

[18] Exhibit 2, 197.

CONSIDERATION

Disability requirements – whether Mr Clarke has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or one or more impairments to which a psychosocial disability is attributable

31.  The concept of impairment, rather than a definition of disability, is central to the threshold provisions in the legislation.  In Mulligan, the Federal Court (Mortimer J) pointed out that while the NDIS Act refers frequently both to “disability”, without defining it, and to “impairment”, without defining it,[19]  “the undefined statutory phrase ‘people with a disability’ is not to be construed as limited to people who meet the access criteria in Ch3 of the Act. The access criteria have a number of components and thresholds”.[20]The Court pointed out in Mulligan, at [56]:

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.

[19] Mulligan v National Disability Insurance Agency [2015] FCA 544 [16].

[20] Ibid, [18].

32.  The identification of the impairment is fundamental to this part of the review. As the Federal Court pointed out in National Disability Insurance Agency v Davis[21]:

“ what the legislative scheme focuses on is not the name of a person’s disability, nor the diagnosis given to a person – but rather what are the impairments experienced by a person which may require supports so that the person can participate in all aspects of personal and community life. It is the impairment which the scheme contemplates may affect the “functional capacity” of a person.

[21] [2022] FCA 1002[69].

33.  Section 24(1) (a) of the NDIS Act provides that a person meets the disability requirements if:

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.

ASD

34.  Although Mr Clarke was accepted as a client of Autism SA 14 years ago, he has not sought or received services for that impairment. The diagnostic assessment report[22] which was written following his assessment was included in the documents. The report was written by a senior speech pathologist at Autism SA. The diagnosis at that time was made under the DSM IV criteria for Asperger’s Syndrome which required evidence from an early age of behaviours and characteristics in socialisation and restricted or repetitive interests and activities not resulting from significant language or cognitive impairment. The assessment found that Mr Clarke, at that time still only 16 years old, demonstrated qualitative impairment in social interaction, some restricted, repetitive patterns of behaviour, and some of the communication characteristics that are evident in Asperger’s syndrome.

[22] Exhibit 1, T4.

35.  Dr Pahuja reported[23] that Mr Clarke’s ASD causes anxiety when he is present with other people he doesn’t know or in places with which he is unfamiliar.

[23] Exhibit 2, 162.

36. The Agency accepted that Mr Clarke meets this requirement in relation to ASD. The Tribunal is satisfied that the Agency’s concession is correct. The Tribunal finds that Mr Clarke has a disability which results from the impairment of ASD and the requirement in s 24(1)(a) of the NDIS Act is met.

Meckel’s Diverticulum

37.   A letter[24] from SA Health confirmed that Mr Clarke has Meckel’s diverticulum noted in August 2015.

[24] Exhibit 1, T 10, 43.

38. The Tribunal is satisfied that Mr Clarke’s condition of Meckel’s Diverticulum is not an impairment that results in a disability for the purposes of s 24 (1) (a) of the NDIS Act.

39.  There was little evidence about it and it did not feature in any material way as an impairment.

PMLE

40.  Mr Clarke consulted a dermatologist, Dr Ooi, on 15 February 2021 for a rash which was apparently triggered by exposure to sunlight particularly in summer. He had developed that rash annually for about 12 years. At the time of the consultation, he did not have the rash. A firm diagnosis was not possible, however it was acknowledged that there was a possibility that he has a rare skin condition, namely PMLE. Dr Ooi recommended Eleuphrat cream which can be used when symptoms are present.[25] Dr Ooi wrote that[26]: “it is possible that his symptoms could be part of a recurrent form of polymorphous light eruption. This skin condition has onset in spring when more sun exposure takes place. It can happen on one occasion or a couple of occasions and if someone is unlucky it could be a recurrent problem each year.”

[25] Exhibit 1, T 8, 41.

[26] Exhibit 2, 183.

41.  Mr Clarke’s general medical practitioner, Dr Pahuja, described Mr Clarke’s circumstances in this way:[27]

“Jamie has been diagnosed with the condition polymorphic/polymorphous light eruption. This causes heightened sensitivity to sunlight, meaning he is only able to spend a very brief period of time in sunlight each day. Exposure to sunlight causes him to experience an extremely irritating rash, and the more strength there is in the sunlight then the severity of the rash increases. Symptoms also develop more rapidly in stronger sunlight. Wearing sunscreen and protective clothing does very little to reduce these effects.

In addition, when Jamie experiences an exacerbation of this condition he is unable to tolerate any kind of clothing on the affected area of his body. This precludes him from being able to wear clothing or footwear, including items of personal protective equipment, which might be required in a workplace.”

[27] Exhibit 2, 185.

42.  In another letter, Dr Pahuja wrote that Mr Clarke’s PMLE prevents him from any outdoor activity without experiencing an irritating rash. Dr Pahuja added:[28]

“Jamie experiences a rash when striving after a period of time, the period of time is dependent on how bright the sunlight is at the time. This reaction is slower when in a car as the glass windows block out a portion of the ultraviolet light which causes Jamie’s reactions.… Jamie is physically capable of doing anything indoors at home provided he doesn’t stand in direct sunlight from a window.”

[28] Ibid, 169.

43.  In his statement of lived experience and in his oral evidence Mr Clarke described a way of life which is determined by the precautions that he takes to control his PMLE. As he wrote in his statement [29] “I practically never go out beyond picking up food and for my daughter’s schooling.” In written responses to questions from the Agency about his impairments, Mr Clarke commented that walking indoors is fine for him as long as he avoids windows and skylights, while “outdoors I have trouble getting the mail or putting my bins out.” He commented that he can drive but he is limited as to how long. He never travels on public transport. He modified his house with 100% block out curtains. He leaves his home infrequently, “once a fortnight for groceries via a click and collect. For my daughter’s school 8 times in a fortnight. Pickup and drop-off is entirely sheltered and so close to my house I can hear the school bell yet I still drive it.” In response to a question about domestic chores he confirmed that he cooks and cleans, however “washing is never hung out because I cannot tolerate sunlight. I use a dryer or hang washing on chairs. Gardening has been done by paid services when needed or by family when available.”[30]

[29] Exhibit 2, 191.

[30] Exhibit 2, p 194- applicant’s answers to functional questions

44.  The Agency’s Counsel drew attention to a decision of the Tribunal [31](comprising Senior Member Millar) in which Mr Clarke’s application for a Disability Support Pension (DSP) was rejected on social services second review as the Tribunal was not satisfied that his condition of PMLE was fully diagnosed. The claim for the DSP was made on 10 March 2021 and the applicable 13 week assessment period finished on 9 June 2021. It seems that some of Dr Ooi’s correspondence which was considered in the DSP claim is the same correspondence that was before the Tribunal in this review. The first point to note is that the present review is concerned with criteria for eligibility to access the NDIS as a participant. However, the   issue addressed in the DSP review is not the same as the issue to be addressed in this review. Even if they were the same, and even if the evidence was similar in both matters, the Tribunal in the present matter is not bound by the other decision of the Tribunal .. With regard to the assessment period in the DSP claim, 10 March 2021 – 9 June 2021, it was recognised that a subsequent deterioration in Mr Clarke’s existing conditions could not be considered in assessing his qualification for the DSP. This in contrast to this review which covers Mr Clarke’s circumstances through to the time of the hearing, without restrictions such as an assessment period which provides a timeframe and boundary for consideration of  DSP eligibility.

[31] Clarke v Secretary, Department of Social Services [2022] AATA 2521

45.  The transcript from the DSP hearing was included in the material provided in this review. It included evidence given by a member of the Health Professional Advisory Unit which is part of Services Australia. That evidence was directed to the diagnosis of PMLE and in particular correspondence from Dr Ooi. The point which the witness made in that matter is the same point which is apparent in this matter about diagnosis. In particular, there is a question whether Dr Ooi provided an initial opinion about a presumptive diagnosis, with the opinion developing almost by osmosis into a definitive diagnosis in the course of further correspondence with Mr Clarke and his GP. Adding to the concern about the diagnosis was the fact that Dr Ooi has not seen the actual rash and has relied upon Mr Clarke’s account, supplemented by a photograph of the rash. For the purposes of the DSP hearing, evidence about the lack of a biopsy or blood tests was also considered.

46.  Commencing with a letter dated 22 February 2021[32], Dr Ooi wrote that a firm diagnosis of PMLE was not possible, although he could potentially make a firm diagnosis by taking a biopsy of the tissue and sending it  to a pathologist. Mr Clarke had consulted Dr Ooi on 15 February 2021.

[32] Exhibit 1, 41.

47.  On 11 March 2021, Dr Ooi appeared to contemplate a biopsy in the context of a severe outbreak of the rash. He wrote – “I could consider oral prednisolone to bring it under control quickly or could potentially take a biopsy if the rash looked a bit unusual.”[33]

[33] Exhibit 2,p 183

48.   In a letter[34] which he wrote on 19 October 2021, Dr Ooi confirmed that Mr Clarke had sent a photograph of a rash located on the dorsal aspect of his left forearm. Dr Ooi considered that the rash is consistent with a clinical diagnosis of PMLE.

[34] Exhibit 1, T 15,p 57

49.  On 1 April 2022, Dr Ooi wrote[35] that a biopsy is not necessary for a diagnosis of recurrent PMLE. Dr Ooi formed the view that biopsy for Mr Clarke was unrealistic given the length of an episode and “the unpredictable timing coupled with travel times and wait times to see a doctor”.

[35] Exhibit 2,p 174

50. While the NDIS Act focuses on impairments rather than diagnosis, this case concerns a relatively rare condition about which it is helpful to obtain clarification from the medical evidence. Some information about it was provided in an information sheet from the UK National Health Service in which symptoms of PMLE were described as[36]:

“An itchy or burning rash appears within hours, or up to 2 to 3 days after exposure to sunlight.

It lasts for up to 2 weeks, healing without scarring.

The rash usually appears on the parts of the skin exposed to sunlight, typically the head, neck, chest and arms.

The face is not always affected.”

[36] Exhibit 1, T 14

51.  The information sheet also stated that the rash may be a rare occurrence, or it may occur every time the person’s skin is exposed to sunlight. It can range from mild to severe. If the skin is exposed to more sunlight before the rash is cleared up there is potential that it will worsen and spread. The condition is thought to be caused by UV light altering a substance in the skin to which the immune system reacts with the result that the skin becomes inflamed. The information sheet pointed out that there is no cure. Some people with sensitive skin may get the rash in winter and for those people: – “it may be a long term condition to manage with lifestyle changes and creams.”

52.   The Access Guideline[37] describes impairment as a loss or significant change in at least one of “your body’s functions, your body structure, how you think and learn.” The medical evidence from Dr Ooi is not contradicted or challenged by other medical evidence. It is subject however to criticism about its lack of reliability fromits apparent disposition to transcend from presumption to diagnosis. In the absence of evidence contrary to that of Dr Ooi, the Tribunal does not accept the criticism. In considering the evidence about disability, the Tribunal is satisfied that Mr Clarke has a disability that is attributable to a physical impairment, namely PMLE. Accordingly, Mr Clarke satisfies s 24 (1) (a) of the NDIS Act with regard to PMLE.

[37] Guideline Applying to the NDIS p 6 – 7

PERMANENCE – S 24(1)(b) NDIS Act

53. S 24 (1) b) of the NDIS Act requires that

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

54.  . In Mulligan,[38] the Federal Court referred to requirements of the assessment under s 24(1) of the NDIS Act in this way, at [55]:

Using the concept of impairment enables assessment of the severity and permanency of a person’s condition and of the effects of that condition through not only the evidence of an applicant but also medical and clinical evidence.

[38] Mulligan v National Disability Insurance Agency [2015] FCA 544

55. The provisions in s 24 (2) of the NDIS Act address the permanency of impairments that vary in intensity while ss 24(3) and (4) of the Act deal with episodic or fluctuating impairments.

56.  In HSPC v NDIA,[39] the Tribunal (comprising Deputy President Humphries) explained that the references to impairments varying in intensity in s 24 (2) of the NDIS Act and episodic or fluctuating impairments in s 24(3) of the NDIS Act are concerned with the question of permanency (s 24(1)(b) of the NDIS Act) and the issue of NDIS lifetime support (s 24(1)(e) of the NDIS Act). Otherwise, it might be suggested that episodic, substantial reductions in functional capacity would suffice as evidence for entry into the NDIS. The Tribunal rejected that suggestion in HPSC”.[40]

[39] [2021] AATA 727.

[40] As above, at [44].

ASD

57. The Agency accepted that Mr Clarke’s ASD is permanent. The Tribunal is satisfied on the evidence that the concession is correct. The Tribunal finds that Mr Clarke’s ASD is permanent for the purposes of s 24 (1) (b) of the NDIS Act.

PMLE

58.    In Davis, the Federal Court (per Mortimer J) explained the meaning of “permanent” in s 24 (1) (b) in this way:

“The phrase “permanent impairment” in s 24(1)(b) means an impairment which is of an enduring nature. In other words, the question for the decision-maker is whether the impairment(s) experienced by an individual (rather than the cause of the impairments or the specific diagnoses made about a medical condition) has or have an enduring quality so as to require supports funded and/or provided under the NDIS Act on an ongoing basis. “[41]

[41] [2022] FCA 1002 at [130]

59. In deciding whether an impairment is permanent or likely to be permanent for the purposes of the disability requirements of section 24(1)(b), the Tribunal must address the  requirements of the NDIS Rules in particular Rules 5.4 – 5.7 , which provide that:

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

60.  In Davis, the Federal Court discussed the interrelationship between the NDIS Act and the NDIS Rules:

“…r 5.4 and r 5.6 prescribe circumstances where, if the repository of the power is satisfied on the evidence of the applicability of either of those rules, a person’s impairment will be excluded from meeting s 24(1)(b). Relevantly, r 5.4 directs attention to a negative state of fact.”[42]

[42] Ibid, [131]

61.  NDIS Rule 5.4 requires consideration of whether appropriate evidence-based clinical, medical or other treatments would be likely to remedy the impairment. The word “remedy” is not defined in the NDIS Act or in the NDIS Rules An understanding of the meaning of “remedy” in NDIS Rule 5.4 is essential to the issue before the Tribunal. In Davis the Federal Court discussed “remedy” and explained it as follows[43]:

“In this context, “remedy” should be understood to mean more than just relieve or improve. That is because r 5.5 recognises that an impairment may be permanent notwithstanding the severity of its impact on a person may fluctuate, or there are prospects for improvement. These changes in the impacts of an impairment may occur because of, amongst other matters, treatment. Therefore, in r 5.4 the word “remedy” should be understood to mean something approaching a removal or cure of the impairment. That is consistent with the meaning I consider should be given to the statutory phrase “permanent impairment”, as an impairment which is enduring and, while its impacts on a person from time to time might fluctuate, is not an impairment which is likely to be removed or cured.”

[43] [2022] FCA 1002 [136].

62. It was submitted for the Agency at the hearing that if the Tribunal finds that Mr Clarke has a disability from PMLE, it is not permanent as required by s 24 (1) (b) of the NDIS Act.

63.  In a letter [44] dated 19 January 2021 a general medical practitioner, Dr Kanyi, noted that Mr Clarke had the rash for about 12 years mostly in the summer and triggered by exposure to sunlight. In particular in the last two years, he had reported a rash on upper limbs and torso, face and lower limbs, lasting for about two hours, worse in summer (December – February) especially when he is out in the sunlight, and an inability to tolerate sunshine due to the rash and avoiding outdoors

.

[44] Exhibit 2, 180.

64.  In the NDIS access request form,[45] the general medical practitioner Dr Pahuja wrote that the PMLE impairment had been recurrent for 12 years and was likely to be lifelong. In a form [46]which was completed on 21 March 2022 Dr Pahuja noted the date of onset for Mr Clarke’s PMLE as 24 January 2008

[45] Exhibit 1, 32.

[46] Ibid, 167.

65.  With regard to treatment, Dr Ooi wrote[47] that Eleuphrat cream should be applied to the affected areas twice a day until symptoms settle down. He considered that :

“There are no other treatment options that would have a more favourable outcome other than the current treatment or would prevent symptoms. The current medication (Eleuphrat cream) only treats the symptoms and doesn’t entirely prevent them from developing. Once the treatment is applied it takes a brief time to completely be effective and settle down the rash (about half an hour).”

[47] Exhibit 2, 174.

66. Further, in relation to treatments, Dr Ooi initially considered oral prednisolone for a severe outbreak to bring it under control quickly [48]. However, Dr Ooi wrote on 1 April 2022 [49]that Mr Clarke had trialed oral prednisolone which resulted occasionally in rapid heartbeat and shortness of breath. Apparently, vitamin D therapy did not improve his condition and Dr Ooi considered that UV treatment will not cure the condition or lessen the functional impacts. He confirmed that Mr Clarke has tried “hardening” in the past “but this only caused severe episodes and discomfort.” Consistent with this evidence, the National Health Service information sheet,[50] referred to previously, noted that there is no cure for PMLE.

[48] Exhibit 2, 183.

[49] Exhibit 2, 175.

[50] Exhibit 1, T14[51].

67.  Based on the available, medical evidence the Tribunal is satisfied that there are no applicable clinical, medical or other treatments that would be likely to remedy Mr Clarke’s PMLE as a means of something approaching a removal or cure of the impairment.

68. Section 24 (2) of the NDIS Act states that for the purposes of meeting the disability requirements, an impairment or impairments that vary in intensity may be permanent. The evidence suggests some fluctuation in the intensity of the impairment depending upon the season. That is, there is an implication that Mr Clarke is likely to be more prone to the effects of PMLE in warmer weather, particularly in summer and spring. Somewhat by contrast, there is also an implication that any exposure to sunlight during any time of the year may have a negative impact for him and that appears to be why he stays predominantly indoors in a darkened house throughout the year. It is not altogether clear to the Tribunal whether Mr Clarke’s precautionary measures are required to the extent that he implements them. However, the Tribunal is satisfied based on the medical evidence that the severity of the impact on Mr Clarke’s functional capacity may fluctuate and the fluctuations are likely to be more severe in the warmer weather conditions which typically occur in summer and spring.

69.  Assuming the validity of NDIS Rule 5.6, the Federal Court in Davis proceeded on the basis that the Rule:

“… prescribes circumstances where, if the repository of the power is satisfied on the evidence of the applicability of that rule, a person’s impairment will be excluded from meeting s 24(1)(b). Like r 5.4, r 5.6 directs attention to a negative state of fact – whether an impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated. To be clear, although these rules are expressed in objective terms, their purpose is to guide the repository’s formation of a state of satisfaction for the purposes of s 21(1)(c) of the NDIS Act; namely that the repository (here the Tribunal):

is satisfied that, at the time of considering the request:

(i) the person meets the disability requirements (see section 24) …”[51]

[51] Ibid, [158].

70.  The correspondence from Dr Ooi and Dr Pahuja does not suggest that further medical treatment or review is necessary in consideration of the permanency of the PMLE.  

71. The Tribunal finds that Mr Clarke has an impairment from PMLE that is permanent within the meaning of s 24 (1) (b) of the NDIS Act and the NDIS Rules.

REDUCED FUNCTIONAL CAPACITY

72. The next question is whether Mr Clarke meets the requirements which are set out in s 24(1)(c), (d) and (e) of the NDIS Act in relation to his impairments of ASD and PMLE.

73.  Section 24(1)(c) of the NDIS Act - Whether the impairments result in substantially reduced functional capacity to undertake one or more of the following activities: communication, social interaction, learning, mobility, self-care, self-management.

74. Each of the activities specified in s 24(1)(c) of the NDIS Act and their impact on functional capacity will be examined in relation to Mr Clarke’s impairments. The legislation requires:

“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.”[52]

[52] Mulligan v NDIA [2015] FCA at [55].

75. In considering when an impairment results in substantially reduced functional capacity to undertake relevant activities, Rule 5.8 of the NDIS Rules provides that the decision-maker must assess the effect of a person’s impairment on the performance of each of the activities that are set out in s 24(1)(c) of the NDIS Act. If the result is any of the outcomes which are specified in Rule 5.8(a), (b) or (c), then the deeming effect of Rule 5.8 will apply, namely that the impairment results in substantially reduced functional capacity to undertake one or more of the relevant activities. These Rules require consideration of a person’s capacity to participate in the activity without assistive technology, equipment other than commonly used items or home modifications; whether the person usually requires assistance from someone else to undertake the activity; or whether the person is unable to participate in the activity even with assistive technology, equipment, home modifications or assistance from another person.

76.  The Agency’s Operational Guideline clarifies that evidence about reduction in a person’s functional capacity can be considered in relation to:[53]

“different areas of life like home, school, work and the community, and how you carry out tasks and actions. We also consider any other factors that may impact your day to day life.”

[53] Agency’s Operational Guideline, 1 July 2022, p 7.

77.  The Federal Court in NDIA v Foster[54] described the Operational Guideline as providing “non-exclusive content to the range of “tasks and actions” (as referred to in Rule 5.8) that comprise the “activities” the NDIA is required to consider, consistent with the legislative history, context, and purpose.[55]”

[54] [2023] FCAFC 11.

[55] As above, at [62].

78.  In Mr Clarke’s access request supporting evidence form, Dr Pahuja completed the section regarding functional impact of the impairments. For each of the 6 impairments, he ticked the box on the form to indicate that Mr Clarke does not need assistance because of his impairments. He did not suggest that Mr Clarke required assistance specified in the form, namely special equipment, assistive technology, home modifications and assistance from other persons

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

79.  The Agency’s Operational Guideline provides its interpretation of communication. It refers to communications such as:

“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.”

80.  The occupational therapist, Ms Wong conducted an ACIS assessment which is an assessment of communication and interaction skills. It enables data to be gathered on communication and interaction skills in 3 domains, namely, physicality, information exchange and relations. The assessment was administered to determine Mr Clarke’s functional abilities in communication from impacts of ASD. Ms Wong concluded that the results of the assessment were that Mr Clarke has functional limitations in communication and interaction skills. [56]

[56] Exhibit 4,p 216

81.  Mr Clarke told the Tribunal that he is capable of filling in handwritten and digital forms. He is able to complete forms which are required for his daughter’s school.

82.  In evidence, Ms Wong acknowledged that vocabulary and a good grasp of the English language are not features of Mr Clarke’s problems in communication. Ms Wong noted that Mr Clarke has difficulty with verbal and non-verbal communication in a variety of settings. She considered that those difficulties arose out of his primary impairment of ASD. He has problems expressing his thoughts, feelings and needs. She considered that he has difficulty in reciprocal conversation particularly communicating with someone else when their interests are not aligned.[57]

[57] Ibid, 223 – 224.

83.  Ms Wong described Mr Clarke’s reduction in his functional capacity for communication in this way: [58]–

“he has difficulty in understanding others and expressing needs and wants in a socially appropriate manner. His assessment results reflect that his information exchange and relating skills are disruptive to initialising and sustaining ongoing social action. For instance – he has difficulty understanding others’ non-– verbal cues and would engage in lengthy monologues on topics that he is interested in. He has also verbalised that he would not ask for assistance from strangers if he required help when he was outdoors in a supermarket. Additionally he has difficulty in expressing his needs with non—verbal cues such as eye contact or gestures.”

[58] Ibid, 247-248.

84.  It is interesting to consider Ms Wong’s assessment and comments in relation to comments in the assessment report by Autism SA in 2009. At that time Mr Clarke’s mother described him as having difficulty with reciprocal conversation with a preference to talk excessively about computer games. She reported that he was not interested in what others have to say. She thought that he had difficulty understanding abstract language and tended to talk in a pedantic manner. The senior speech pathologist who conducted the assessment considered that he conveyed information in a way that tended to be formal, factual, and data based. The report noted that the communication profile of someone with Asperger’s syndrome would usually reveal poor functional communication skills: – “this may be evident in difficulty maintaining two-way conversations, indulging in lengthy monologues, literal interpretation of language, precise pedantic use of language and poor social communication skills.”[59]

[59] Exhibit 1, T4.

85.  Ms Wong’s supplementary report was directed specifically to considering both ASD and PMLE in relation to Mr Clarke’s activities of daily living. With regard to communication, Ms Wong offered the following comments[60]:

“I  have stated in my functional capacity assessment report that Jamie has a reduction in his functional capacity for communication. He has difficulty expressing his needs and wants by gesture, speech and context appropriate to age. Jamie gave the example of not being able to ask for help or assistance when he was at a supermarket. He stated he has difficulty understanding others when they utilise puns, sarcasm or figures of speech in a conversation.

From a clinical assessment perspective, Jamie’s scores on the Assessment of Communication and Interaction Skills (ACIS) indicated that he has difficulty understanding others and expressing his needs and wants in an appropriate manner. His information exchange and relating skills are disruptive to initialising and sustaining ongoing social action. He was observed to engage in lengthy monologues without answering questions during the Occupational Therapy (OT) assessment sessions. He required multiple prompts from the OT to re-direct his attention and focus on the assessment questions and provide clear succinct answers. This would indicate he has substantially reduced functional capacity in communication.”

[60] Exhibit 5, 253 [256].

86.  In her supplementary report [61]Ms Wong confirmed that Mr Clarke’s substantially reduced functional capacity in communication is most likely to be attributed to his diagnosis of ASD. She noted that she is not aware of any research indicating that PMLE has an adverse effect on communication skills, whereas “research pertaining to the signs and symptoms of persons diagnosed with ASD state that ASD is a neurodevelopmental disability that can cause significant social, communication and behavioural challenges. Persons with ASD also demonstrate restricted, repetitive patterns of behaviour interests.”[62]

[61] Exhibit 5.

[62] Ibid, 256.

87.  In his oral evidence at the hearing Mr Clarke was articulate and thoughtful. He has an effective command of language, he demonstrated a good understanding in his evidence of questions he was asked, indeed his presentation  in giving oral evidence was impressive. The Agency’s Counsel referred to his insight and ability to adapt his communication according to the situation, for example endeavouring to adapt his communication with his former partner to avoid inflammatory exchanges.

88. The Tribunal accepts that Mr Clarke has limitations and difficulties in communication in the ways in which Ms Wong assessed and described. However, having considered all of the evidence and noting Mr Clarke’s composure and articulation in his oral evidence, the Tribunal does not consider that his ASD impairment has resulted in a substantial reduction in functional capacity for communication. The Tribunal is not satisfied that he meets the criterion in s 24(1)(c)(i) of the NDIS Act.

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

89.  As a guide to the elements of social interaction, the Agency’s Operational Guideline refers to socialising as:

“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.”

90.  Ms Wong considered that Mr Clarke’s global cognition is mildly impaired. She observed that he has limitations from “fixation and cognitive rigidity on specific areas of interest, which impacts his ability for cognitive flexibility. This is likely due to his primary disabilities, Asperger’s syndrome/ASD.”[63]

[63] Ibid, 221 – 222.

91.  In a NDIS questionnaire,[64] Mr Clarke said he talks with friends or family members by telephone on a daily basis, he does not interact with them in person unless they visit in his house, and he communicates with them fairly frequently via social media. Ms Wong’s report noted that he has difficulty interacting with the community and she considered that the reduction in functional capacity for social interaction was related to the fact that he does not see the need to behave within limits accepted by others. [65]

[64] Exhibit 2, 194.

[65] Exhibit 5, 253[257].

92.     Ms Wong reported that Mr Clarke prefers interacting with friends through technology rather than meeting them in person. She reported that he has not keen to participate in in-person social groups or community groups.[66] In acknowledging the role of communication in social interaction, Ms Wong considered that Mr Clarke has functional limitations in social interaction and his skills for initiating and sustaining social interactions are ineffective. She wrote that: –

“he has difficulty in engaging in effective information exchange or relating to others. These difficulties are likely due to his primary disability of Asperger’s syndrome/ASD. He would benefit from moderate guidance to improve his social interaction and communication skills[67].”

[66] Exhibit 4, 228.

[67] Exhibit 4, 230.

93.  Ms Wong noted features of Mr Clarke’s reduction in functional capacity for social interaction included difficulties that he has when his interests do not align with the interests of other people. She added that he: –

“… tends to zone out and gloss over details that others say if they are not interesting to him, and he has difficulty with social and emotional reciprocity that is required in a friendship.[68]

[68] Ibid, 240.

94.  The results from the Assessment of Communication and Social Interaction (ACIS) also demonstrated that Mr Clarke’s’ interaction skills are ineffective for initiating and sustaining ongoing social action. Ms Wong noted that Mr Clarke does not speak to others in group settings if he does not know them. She noted that he will not contribute to conversations unless he is specifically addressed. She added that he does not enjoy in-person community environments. His preference for social interaction is with gaming friends online. In her supplementary report Ms Wong wrote that Mr Clarke told her he would not follow work guidelines if they did not accord with his perspectives and world views, that he does not see the need to behave within limits accepted by others, and she recorded his own observation that his refusal to care about what others think or feel about him “borders on psychopathy.” Ms Wong concluded that Mr Clarke has a substantially reduced functional capacity in social interaction.[69]

[69] Exhibit 5, 257.

95.  in a letter[70] written on 31 August 2021, Dr Pahuja commented that Mr Clarke’s ASD causes him anxiety when he is in contact with people whom he doesn’t know or in places and situations with which he is unfamiliar. Similarly, the written note[71] from Mr Lockley confirms that Mr Clarke: “rarely holds eye contact with people, has a tendency to speak in long drawn out sentences and does ramble on various subjects.” The clinical psychologist, Mr Field, reported that Mr Clarke’s social and recreational activities must be conducted inside his house. Mr Field noted that Mr Clarke: “has a couple of friends that he sees occasionally. He has attended some social and recreational events that have been held during night hours.”[72]

[70] Exhibit 2, 169. 

[71] Exhibit 3, 197.

[72] Exhibit 2, 190.

96.  In evidence Mr Clarke described a limited social life which is directed mainly to communicating with his sister and brother. Apart from family contact, he maintains a friendship with Mr Lockley and the parent of a school friend of his daughter. He is largely confined to his house. His communications with friends and family are generally by iPhone and social media. He is emotionally more comfortable with that form of communication. He interacts on occasions for several hours with small groups of people in group chats often associated with gaming. His preferred forms of social interaction, which are limited, arise out of a combination of factors which include physical confinement from PMLE, personal characteristics and personal preferences. His method of coping with PMLE causes significant restrictions in socialising to the extent that the bulk of his social interactions is achieved by means of technology.

97. The Tribunal is satisfied that Mr Clarke’s impairments from ASD and PMLE have an adverse impact on his capacity for social interaction. The Tribunal accepts Ms Wong’s evidence about the substantial reduction in functional capacity. The Tribunal finds that the criterion in s 24(1)(c)(ii) of the NDIS Act is met.

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

98.  The Agency’s Operational Guideline refers to learning as “how you learn, understand and remember new things, and practise and use new skills.”

99.  In his oral evidence Mr Clarke acknowledged that he has skills in technology. He has the ability to break down and rebuild computers, skills in 3 D printing and, and he has created a form of artificial intelligence technology at home which he described in this way:

“I have an AI system set up through my home that I’ve custom programmed. Among my custom settings is my morning which, for days I don’t have my daughter is triggered by a phrase, days I have my daughter is set for 8:45 AM or 7:30 AM for school days which turns on all the relevant lights and gives me a weather report with an additional reading of the UV index for the day, I added this specifically due to my condition, though the entire morning briefing is delivered with all the serenity of the HAL9000, then if I have my daughter it plays her music as a sort of alarm.”

100.    Mr Clarke acknowledged in evidence that he is capable of concentrating when he is enthusiastically engaged with a task, such as a new computer game that interests him.

101.    Ms Wong considered that Mr Clarke has a reduction in functional capacity for learning because of a mild deficit in overall global cognition together with biases and polarised thinking which impede learning. Her views took into account the results of screening assessments which were the all Mental Status Examination (MSE) and the Routine Task Inventory – Expanded (RTI-E).

102.    In her supplementary report, [73]Ms Wong considered that the ASD resulted in a substantial reduction in Mr Clarke’s functional capacity for learning. She emphasised his apparent inability to be open to taking in new information that does not coincide with his perspectives. She conceded that he appears not to have learning deficits in relation to his topics of interest, but she considered that those topics are restricted and narrow. Ultimately, she came to the conclusion that the reduction in functional capacity for learning is substantial. The Tribunal is persuaded only to the extent that Mr Clarke may have deficits, difficulties and reluctance in some aspects of learning, however they do not amount to a substantial reduction.

[73] Exhibit 5.

103. The Tribunal does not consider that the evidence warrants a finding that Mr Clarke has a substantial reduction in functional capacity in learning as required by s 24(1)(c)(iii) of the NDIS Act.

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

104.    The Agency’s Operational Guideline refers to mobility 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.”

105.    Mr Clarke does not have difficulties with mobility when he is indoors. He avoids outdoor activity as much as he can. The restrictions in moving about in the community are the consequences of his PMLE. He drives a car locally when necessary for shopping and school drop-off and pick-up. He told Ms Wong that he could drive for 2 ½ hours during daylight hours without triggering the PMLE   on days where there was cloud cover. Travelling after sunset and before sunrise is less problematic for him. He tries to avoid appointments between 11 AM and 3 PM.

106. The Tribunal is satisfied that Mr Clarke experiences difficulties with aspects of mobility in the community. He has a reduction in functional capacity in mobility. The Tribunal finds that it does not amount to a substantial reduction for the purposes of the criterion in s 24(1)(c)(iv) of the NDIS Act.

Section 24(1)(c)(v) of the NDIS Act – Self Care

107.    The Agency’s Operational Guideline refers to self-care as meaning:

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

108.    The Federal Court stated in Foster that consideration of the matters that comprise self-care involve a requirement that a decision maker must “make a functional, practical assessment of what a person can and cannot do.”[74]

[74] [2023] FCAFC 11, 64.

109.    The Tribunal   in Madelaine v NDIA [75] suggested 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.”

[75] [2020] AATA 4025, 121 .

110.    In oral evidence Mr Clarke acknowledged that he does not require assistance for his own self-care. He has high standards of cleanliness at home and he maintains those standards. He does not have problems with personal care, showering and dressing. He has appropriate skills for cooking simple meals for himself and more nutritious meals for his daughter. He will not go outdoors to do the gardening and relies upon a family member to do it. His health is a concern for him because he is confined to his house, unable to go out for a run or readily participate in an exercise regime outside. Ms Wong considered that Mr Clarke is independent in his self -care requirements and does not have a reduction in his capacity in this area[76].

[76] Exhibit 4, 243.

111. The Tribunal is satisfied that Mr Clarke does not have a substantial reduction in functional capacity for self-care ( s 24(1)(c)(v) of the NDIS Act).

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

112.    The Agency’s Operational Guideline refers to self-management 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.”

113.    Ms Wong acknowledged that Mr Clarke has cognitive capacity and insight which enables him to make appropriate decisions, manage his affairs independently and make and attend appointments independently. Mr Clarke told the Tribunal that he manages his own bank account. He is presently parenting his young daughter at home 6 days per fortnight. He does not need assistance in self-management for himself or with regard to financial responsibilities that he has for his daughter. While Ms Wong considered that he may benefit from moderate guidance to improve his capacity for self-management, it appears to relate to  “limitations in higher-order executive functioning such as insight and judgement.” [77]

[77] Exhibit 4, 229.

114. The Tribunal is satisfied that the requirement in s 24(1)(vi) of the NDIS Act is not met.

Section 24 (1)(c) of the NDIS Act Summary

115.    The Tribunal has considered the factors set out in NDIS Rule 5.8 and is satisfied that Mr Clarke does not come within any of the sub-paragraphs demonstrating substantially reduced functional capacity. Although he   has skills and interests in technology which he has directed towards enhancing his environment at home in a way which he enjoys and uses to advantage in his daily routines, the Tribunal is not satisfied  that he has an inability to participate effectively or completely in the relevant activity without assistive technology, equipment, or home modifications. The evidence does not support a conclusion that he usually requires assistance from other people to participate in the relevant activity. He is able to participate in relevant activities and performs tasks or actions without assistive technology, equipment, home modifications or assistance from others.

116. The deeming provisions in NDIS Rule 5. 8 are not conclusive of all the circumstances in which a person has a substantially reduced functional capacity. In this case, the Tribunal is satisfied that Mr Clarke meets the criteria in one of the specified activities in s 24 (1) (c) of the NDIS Act, namely social interaction. Accordingly, the Tribunal concludes that Mr Clarke meets the requirements under s 24 (1) (c) of the Act

SOCIAL OR ECONOMIC PARTICIPATION – Section 24(1)(d) of the NDIS Act

117.    Mr Clarke’s last employment was several years ago after leaving school. His social life is affected by his impairments of ASD and PMLE. . The clinical psychologist, Mr Field, considered that Mr Clarke cannot attend work or education training outside home because of PMLE and “consequential physical and psychological symptomology[78].”

[78] Exhibit 2, 190.

118. The disability requirement in s 24(1)(d) of the NDIS Act does not require a person's impairment to reduce substantially their social or economic participation. Rather, the impairment needs only to affect the person's social or economic participation.

119. The Tribunal finds that Mr Clarke meets the requirements of s 24(1)(d) of the NDIS Act, as his permanent impairments affect his capacity for social or economic participation.

LIFETIME SUPPORT - Section 24(1)(e) of the NDIS Act – Whether the person is likely to require support under the NDIS for the person’s lifetime

120. Mr Clarke’s impairments are long term and permanent, resulting in a substantially reduced functional capacity in an applicable domain, namely social interaction. The Tribunal is satisfied that it is likely Mr Clarke will require support under the NDIS for his lifetime. Accordingly, he meets the requirement of s 24(1)(e) of the NDIS Act.

DISABILITY REQUIREMENTS - CONCLUSION

121. In this matter, the Tribunal’s finding is that Mr Clarke has a disability attributable to permanent impairments arising from ASD and PMLE. Mr Clarke meets the age requirements under s22 and the residence requirements under s23 of the NDIS Act.

122. Mr Clarke meets the requirements under s 24 (1) (a), (b), (c) (ii), (d) and (e) of the NDIS Act.

123. As Mr Clarke satisfies the disability requirements under s 24 (1) of the NDIS Act, he meets the access criterion under s 21 of the NDIS act.

DECISION

124. The reviewable decision is set aside and, in substitution for such decision, there is a decision that Mr Clarke meets the access criteria under s 24 of the NDIS Act.

I certify that the preceding one hundred and twenty-four (124) paragraphs are a true copy of the reasons for the decision herein of Member Thompson

..........................[Sgnd]...............................

Associate

Date of Decision:

27 October 2023

Date of Hearing:

23 June 2023

Representative for the Applicant:

Self-represented

Counsel for the Respondent:

Ms Julia Davey
Counsel
Nyland Chambers

Ms Tamara Economou
Instructing Solicitor
HWL Ebsworth Lawyers

Ms Mariel Thornley
National Disability Insurance Agency

Annexure A – List of Exhibits

Exhibit no.	Lodged by	Document
1	Respondent	T Documents
2	Respondent	Documents produced under summons 1. Documents produced by Christies Beach Doctors (Dr Prabhu Pahuja) 1.1 Client Service Form 1.2 Handwritten Notes 1.3 Latter from Dr Prabhu Pahuja 1.4 State-wide Standard Outpatient Referral Form, Request for Outpatient Appointment 1.5 Letter from Dr Prabhu Pahuja 1.6 Form completed by Dr Prabhu Pahuja 2. Documents Produced under summons by Dermatology SA (Dr Colin Ooi) 2.1 Letter From Dr Colin Ooi to Administrative Appeals Tribunal 2.2 Letter from Dr Prabhu Pahuja 2.3 Letter from Colin Ooi 2.4 Email from the applicant to Dermatology SA, with attached photograpgh 2.5 Letter from Colin Ooi 2.6 Letter from Colin Ooi to Centrelink 2.7 Email from the Applicant to Dermatology SA 2.8 Email from the Applicant to Dermatology SA 2.9 Summons to produce Documents addressed to Dr Coln Ooi 2.10 Letter from Dr Patrick Kanyi, to Dr Simon Khoury 2.11 Consultation Record by Dr Colin Ooi 2.12 Letter from Dr Colin Ooi to Dr Patrick Kanyi 2.13 Letter from Dr Colin Ooi to Centrelink 2.14 Letter from Dr Prabhu Pahuja
3	Respondent	Material filed by the Applicant 1. Referral letter from Dr Patrick Kanyi, Hackham Medical Centre 2. Letter from Colin Ooi, Dermatology SA 3. Letter from Colin Ooi, Dermatology SA 4. Treating Practitioner’s Report from Mr Laurence Field, Clinical Psychologist 5. Form completed by Dr Prabhu Pahuja, Christie’s beach Doctors 6. Statement of Lived Experience by Applicant 7. Applicant’s answers to Functional Questions 8. Letter from Ms Tiffany Ewins (Applicant’s sister) 9. Letter from Connor Lockley, Support Services SA Inc. and Hireup
4	Respondent	Report prepared by Janice Wong (Occupational Therapist)
5	Respondent	Supplementary Report prepared by Ms Janice Wong (Occupational Therapist)
6	Respondent	Hearing transcript of Clarke and Secretary, Department of Social Services (Social Services second review) [2022] AATA 2521