Coventry and National Disability Insurance Agency - [2024] AATA 259

Coventry and National Disability Insurance Agency [2024] AATA 259 (26 February 2024)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number: 2022/1548
Re:Gary Coventry
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Deputy President Mischin
Date:26 February 2024
Place:Perth

The decision under review is affirmed.
............................[Sgd]............................................
The Hon. Michael Mischin, Deputy President
CATCHWORDS
NATIONAL DISABILITY INSURANCE AGENCY – access to scheme – disability requirements – Ankylosing Spondylitis – whether the Applicant meets the disability requirements in section 24 or the early intervention requirements in section 25 of the National Disability Insurance Scheme Act 2013 (the NDIS Act) – whether the Applicant’s impairments result in substantially reduced functional capacity to undertake one or more of the activities listed in section 24(1)(c) of the NDIS Act – whether there are other service systems that would be more appropriate to provide the assistance the Applicant seeks.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Becoming a Participant) Rules 2013 (Cth)
CASES
Ditchfield and National Disability Insurance Agency [2019] AATA 2121
Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634
Galea and National Disability Insurance Agency [2022] AATA 2263
Goodwin and NDIA [2021] AATA 1438
HPSC and NDIA [2021] AATA 727
Kilgallin and NDIA [2017] AATA 186
Madelaine and National Disability Insurance Agency [2020] AATA 4025
Mulligan v National Disability Insurance Agency (2015) 149 ALD 408
National Disability Insurance Agency v Foster [2022] FCAFC 11
National Disability Insurance Agency v Davis [2022] FCA 1002
Nika and National Disability Insurance Agency [2021] AATA 2127
O'Keeffe and National Disability Insurance Agency [2023] AATA 82
Rooney and National Disability Insurance Agency [2021] AATA 3523
Toltz and National Disability Insurance Agency [2023] AATA 49
SECONDARY MATERIALS
National Disability Insurance Scheme – Operational Guideline – Access
National Disability Insurance Scheme – Operational Guideline – Applying to the NDIS
REASONS FOR DECISION
Deputy President the Hon. Michael Mischin
26 February 2024
BACKGROUND

The Applicant is a 67-year-old man (born 14 December 1956) who seeks access to the National Disability Insurance Scheme (NDIS or the Scheme). The Applicant suffers from a genetic condition called Ankylosing Spondylitis (AS), a type of inflammatory arthritis that mainly affects the spine and large joints.
On or around 14 October 2021, two months before his 65^th birthday, the Applicant applied for access to the Scheme as a participant by submitting an ‘NDIS Access Request – Supporting Evidence Form’.[1]
[1] Exhibit R1 T5 18-25, Access Request – Supporting Evidence Form Dr Belinda Lacy dated 14 October 2021.
On 15 November 2021, a delegate of the Chief Executive Officer (CEO) of the National Disability Insurance Agency (NDIA or Agency) decided under section 20 of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) to refuse the Applicant’s Request (Reviewable Decision) on the basis that the Applicant did not meet all the statutory criteria for access to the Scheme.
The Applicant sought, under section 99 of the NDIS Act, an internal review of the Reviewable Decision.
On 22 January 2022, a delegate of the CEO made an internal review decision under section 100(6) of the NDIS Act confirming the Reviewable Decision.[2] The delegate found that the Applicant satisfied the age requirements (section 22 of the NDIS Act) and the residence requirements (section 23), but not the disability requirements (section 24), nor the early intervention requirements (section 25).[3]
[2] Exhibit R1 T2.
[3] Exhibit R1 T5.
On 24 February 2022, the Applicant lodged an application with the Tribunal seeking a review of the internal review decision denying him access to the Scheme.[4]
[4] Exhibit R1 T1.
LEGISLATIVE AND LEGAL FRAMEWORK
The objects of the NDIS Act, set out in section 3(1). Section 3(3) of the Act mandates that:
In giving effect to the objects of the Act, regard is to be had to:
(b)the need to ensure the financial sustainability of the National Disability Insurance Scheme; and
(c)…
(d)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 National Disability Insurance Scheme.
By section 18 of the NDIS Act, a person may make an access request to the Agency to become a participant in the Scheme. Section 20 requires the CEO to consider that request.
A person can become a participant if they meet the ‘access criteria’ identified in section 21(1) of the NDIS Act, namely if:
(a) the CEO is satisfied that the person meets the age requirements (see section 22); and
(b)the CEO is satisfied that, at the time of considering the request, the person meets the residence requirements (see section 23); and
(c) the CEO is satisfied that, at the time of considering the request:
(i) the person meets the disability requirements (see section 24); or
(ii) the person meets the early intervention requirements (see section 25).
Section 24 of the NDIS Act provides that:
(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 to one or more impairments attributable to a psychiatric condition; and
(b) the impairment or impairments are, or are likely to be, permanent; and
(c) the impairment or impairments result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the following activities:
(i) communication;
(ii) social interaction;
(iii) learning;
(iv) mobility;
(v) self-care;
(vi) self-management; and
(d) the impairment or impairments affect the person’s capacity for social or economic participation; and
(e) the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime.
(2) For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the variation.
Rules have been made under the Act to assist in its interpretation and application. Sections 27 and 209 of the NDIS Act allow the making of rules to assist those exercising the relevant powers under the NDIS Act to determine who becomes a participant. Relevant to this case are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (the Becoming a Participant Rules).[5] The Rules, inter alia, prescribe circumstances in which impairments will result in substantially reduced functional capacity to undertake the activities in section 24(1)(c), and whether early intervention supports are likely to benefit a person.[6]
[5] Becoming a Participant Rules r 2.2.
[6] Exhibit R1, T11 38-69.
The NDIA has also published operational guidelines to assist decision-makers with the application of the NDIS Act and its Rules. The operational guidelines represent government policy and, to the extent that they are consistent with the relevant legislation, should be applied by the Tribunal unless there is a sound reason not to do so.[7]
[7] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634; Madelaine and National Disability Insurance Agency [2019] AATA 4025 (Madelaine) at [9].
Guidelines applicable at the time of the decision under review included the ‘National Disability Insurance Scheme – Operational Guidelines – Access’ (Access Guidelines).[8] By the time of the hearing, these had been replaced by the guideline ‘Applying to the NDIS’ dated 1 July 2022. That has since been replaced by the ‘Applying to the NDIS guideline’ of 26 June 2023, and the ‘Applying to the NDIS guideline’ of 22 December 2023 (Applying Guideline). As the last would now inform the approach the Respondent would take to the question of whether access should be granted to the Scheme, I have taken that latest guideline into consideration in my assessment of this application for review. To the extent relevant to this application, there is no material difference between the guidelines of 1 July 2022, 26 June 2023, and 22 December 2023.
[8] Exhibit R1, T12 70-132.
I shall consider the Rules and the Applying Guideline in due course.
ISSUES BEFORE THE TRIBUNAL
The Tribunal must decide whether the Applicant, to become a participant in the Scheme, meets the ‘access criteria’ set out in section 21 of the NDIS Act. As mentioned, the Respondent accepts that the Applicant meets the age requirements and the residence requirements specified in sections 22 and 23 of the NDIS Act, which comprise the access criteria under sections 21(1)(a) and (b) of the NDIS Act.
The Respondent further accepts that, on the evidence before the Tribunal, the Applicant meets those elements of the disability requirements in section 24(1)(a) and (d) of the NDIS Act; in short, that he has a disability that is attributable to physical impairments, and that those impairments affect his capacity for social and economic participation.[9]
[9] Transcript 19.
However, to satisfy the access criteria in section 21(1)(c) of the NDIS Act the Applicant must also satisfy:
(a)the disability requirements criteria in section 24(1)(b), (c) and (e), or
(b)the early intervention requirements criteria in section 25(1)(b) and section 25(3).
An ‘impairment’ is not defined in the legislation but is generally understood to involve the loss of or damage to a physical, sensory, or mental function.[10] It is not merely a reduction in a person’s capacity to do things which an unimpaired person would be able to do.[11]
[10] Mulligan v National Disability Insurance Agency [2015] FCA 544 (Mulligan) at [51] per Mortimer J.
[11] Schwass and National Disability Insurance Agency [2019] AATA 28 at [34]-[35].
As to section 24(1)(b), the Respondent in its Statement of Issues dated 8 November 2022 accepted that the impairments attributable to the Applicant’s AS satisfied the criterion of permanence required by section 24(1)(b) of the NDIS Act.[12] In its Statement of Facts, Issues and Contentions dated 10 February 2023, the Respondent accepted that the Applicant’s:
(a)‘Restricted neck active range of movement, stiffness and pain’;
(b)‘Restricted spinal active range of movement, stiffness and pain’;
(c)‘Restricted capacity for visual scanning of environment when ambulating’; and
(d)‘Restricted capacities for forward bending, twisting, reaching below knee height, carrying and lifting, pushing and pulling, kneeling and squatting’,
arising from AS were permanent impairments, and no treatment would be able to remedy or cure those impairments.[13]
[12] Respondent’s Statement of Issues dated 8 November 2022 2.
[13] Respondent’s Statement of Facts, Issues and Contentions dated 10 February 2023 at [26]; Transcript 12.
However, the Respondent contends that there is insufficient evidence for the Tribunal to be satisfied that the Applicant’s restricted tolerances for walking, standing and activity endurance are permanent impairments attributable to the Applicant’s AS, rather than – at least in part – to his being overweight.[14]
[14] Respondent’s Statement of Facts, Issues and Contentions dated 10 February 2023 at [27]; Respondent’s Closing Submissions dated 29 May 2023 at [3(a)], [5]; Transcript 12.
So far as section 24(1)(c) is concerned, the key question is whether the Applicant’s permanent impairments have resulted in a ‘substantially reduced functional capacity’ in one or more of the six specified activities of communication, social interaction, learning, mobility, self-care, and self-management.[15] The Respondent submits that the threshold of ‘substantially reduced’ is a high one.[16] The Applicant must also establish that he needs lifetime support from the Scheme as required by section 24(1)(e).
[15] Respondent’s Statement of Facts, Issues and Contentions dated 10 February 2023 at [27]; Transcript 11.
[16] Transcript 12.
The Respondent submitted that the Tribunal should not be satisfied that the Applicant meets the ‘early intervention’ requirements of section 25. The Respondent contended that the evidence before the Tribunal does not demonstrate that providing early intervention supports are likely to benefit the Applicant by reducing his future needs for support, as required by section 25(1)(b), and have one of the benefits contemplated by section 25(1)(c).[17] The Applicant did not press for access to the Scheme based on early intervention and, as the issue was not explored further at the hearing, it does not arise for determination.[18]
[17] Respondent’s Statement of Facts, Issues and Contentions dated 10 February 2023 at [79]; Transcript 12.
[18] Transcript 12.
HEARING & EVIDENCE
The application was heard by the Tribunal over two days, on 16 and 17 May 2023. The Applicant was unrepresented but was accompanied and assisted by a support person from an advocacy service. The Applicant gave evidence in person.[19]
[19] Ibid 5-41.
The Respondent called as a witness Occupational Therapist Dierdre Richards, who also spoke to a report she had prepared.[20] No other person gave oral evidence.
[20] Ibid 44-53; Exhibit R2 T2.
The Tribunal was provided with two tender bundles, incorporating the T-documents[21] and Supplementary T-documents.[22] These included:
(a)A report and treatment plan of Physiotherapist Breanna Bailey dated 18 June 2018;[23]
(b)Reports of Rheumatologist Dr Kathryn Over dated between 9 October 2019 and 16 November 2022;[24]
(c)An Occupational Therapy Home Assessment by Occupational Therapist Lydia Hanrahan dated 15 June 2021,[25] her report dated 30 June 2021,[26] and her Client Note Summary spanning the period 28 April 2021 to 22 December 2021;[27]
(d)The Applicant’s ‘NDIS Access Request – Supporting Evidence Form’ completed by treating General Practitioner Dr Belinda Lacy dated 14 October 2021,[28] and a report from Dr Lacy dated 6 December 2021;[29] and
(e)A report of Occupational Therapist Dierdre Richards dated 20 July 2022.[30]
[21] Exhibit R1, Transcript 3.
[22] Exhibit R2, Transcript 3.
[23] Exhibit R2 ST5 377.
[24] Exhibit R1 T3 14 and T8 32; Exhibit R2 ST3 201; Exhibit R2 ST4 221-235.
[25] Exhibit R2 ST3 208-211.
[26] Exhibit R1 T4 15-17; also appearing in Exhibit R2 ST3 198-200.
[27] Exhibit R2 ST3 163-168.
[28] Exhibit R1 T5 18-25.
[29] Exhibit R1 T7 31.
[30] Exhibit R2 ST2 139-160.
I have considered the relevant factual and expert evidence and refer to parts of the evidence in these reasons.
THE EVIDENCE
The Applicant told the Tribunal that he was formerly a beef and sheep farmer who had worked his life on the land. He was Victorian Beef Producer of the Year in 2014 and 2015. His occupation necessarily involved considerable physical work. He is now on a pension.[31]
[31] Transcript 5-6.
The Applicant was diagnosed with AS in 2017 although he had the symptoms for quite some time before that.[32] He said it affects his sacroiliac joints, and his neck and spine. He has trouble walking and standing for any period of time.[33] His AS prevents him from bending, and from moving his head to look up or down or from side to side,[34] but he does not have difficulty moving his arms.[35]
[32] Exhibit R1 T3 14, report of Rheumatologist Dr Kathryn Over dated 17 May 2021.
[33] Transcript 5.
[34] Ibid 7.
[35] Ibid 23.
The Applicant says he inherited his AS from his father, who also suffers from the condition. His father, at the time of the hearing, was 91 years old. The Applicant says that he is worse than his father was at his age.[36]
[36] Ibid 6.
The Applicant was residing on a farm he was leasing outside the town of Benalla. He lived in a house he shared with a friend, one ‘Andrea’, who would assist with his personal care and housekeeping. When he could no longer do farm work he relinquished the lease, sold his equipment and, early in 2023, moved into a unit owned by his son in Tongala.[37] He and his friend Andrea are no longer housemates, but she also lives in town.
[37] Ibid 6, 17.
The Applicant lives in a single-storey two-bedroom one-bathroom unit in a group of four, with a separate toilet, a kitchen, a combined lounge and dining area, and laundry.[38] There are no stairs, only an access step at the front and back doors. It has an attached single garage[39] with a remote-controlled door.[40] The bathroom comprises a shower recess with a sliding screen door, single vanity, and bath.[41] The unit is located two blocks away from the supermarket, a chemist, and a doctor’s clinic,[42] and three to four blocks away from his son’s home.[43]
[38] Exhibit R2 ST4 140, report of Occupational Therapist Dierdre Richards dated 20 July 2022.
[39] Transcript 7; Exhibit R2 ST4 140, report of Occupational Therapist Dierdre Richards dated 20 July 2022.
[40] Transcript 9.
[41] Exhibit R2 ST4 141, report of Occupational Therapist Dierdre Richards dated 20 July 2022.
[42] Transcript 7.
[43] Exhibit R2 ST2 147, report of Occupational Therapist Deirdre Richards dated 20 July 2022.
Rheumatologist Dr Kathryn Over had been treating the Applicant for some three to four years.[44] In her report of 13 January 2021 in support of the Applicant seeking a disability pension, Dr Over said that the Applicant ‘has extensive changes affecting the whole of his spine which are permanent and will not alter. These cause significant stiffness and he has a great deal of pain with mobility. [Medications have reduced the inflammation] but the spinal changes are permanent. His symptoms are stable and will not alter. He is on maximum treatment’.[45] There is no more recent medical assessment but, according to the Applicant, it is ‘gradually getting worse’.[46]
[44] Transcript 13.
[45] Exhibit R2 ST4 226, report of Dr Kathryn Over dated 13 January 2021.
[46] Transcript 5.
Occupational Therapist Lydia Hanrahan prepared a report dated 30 June 2021 based on an assessment of the Applicant she carried out on 15 June 2021[47] for the purpose of his applying for a disability support pension.[48] The assessment was done in the Applicant’s former residence in Benalla.[49]
[47] Exhibit R1 T4 15-17, report of Occupational Therapist Lydia Hanrahan dated 30 June 2021.
[48] Transcript 14.
[49] Exhibit R1 T4 15, report of Occupational Therapist Lydia Hanrahan dated 30 June 2021.
Ms Hanrahan described the Applicant as having been diagnosed with AS ‘which has contributed to a restricted range of movement (ROM) in his spine and neck (spinal stiffness) as well as … episodes of pain’.[50] He is unable to bend his neck and spine, needing to maintain a straight spine due to his limited range of movement. His inability to bend limits his ability to reach down. He cannot look up. He is required to move his entire body and lower limbs to look in sideways directions, due to his inability to twist or rotate his neck and spine. This limits his ability to visually scan his surrounding environment and address obstacles. He requires support from surrounding surfaces or railing to push himself up from a seated position.[51]
[50] Ibid.
[51] Ibid 16-17.
Occupational Therapist Diedre Richards prepared a more detailed and comprehensive report dated 20 July 2022, following an assessment on behalf of the Respondent of the Applicant’s functional abilities.[52] Her assessment also took place at the Applicant’s residence in Benalla, although the Applicant provided her with some information relating to the Tongala unit pending his move into it. Accordingly, her observations based on the location and physical configuration of his home are of premises in which he no longer resides. Further, any observations regarded the assistance he then received for day-to-day tasks – particularly from his friend and then housemate Andrea – must be considered against the fact that they no longer share accommodation.
[52] Exhibit R2 ST2 139-160, report of Occupational Therapist Dierdre Richards dated 20 July 2022.

Ms Richards reported that the Applicant’s diagnoses included AS, hypertension, obesity, and sleep apnoea.[53] She detailed the limitations to the Applicant’s physical functioning as follows:
[53] Ibid 143.
(a)Upper limb function: right hand dominant; bilateral upper limb and grip strength within normal range, but bilateral shoulder flexion restricted to 130º; able to touch both hands to top of head, back of neck and opposite shoulder, but unable to touch hand to same side shoulder; normal fine motor control and coordination; reported intermittent elbow pain due to AS but resolved with medications;
(b)Lower limb function: bilateral lower limb active range of movement and strength within normal range;
(c)Cervical spine: neck extension restricted to 5º and flexion to 10º; left rotation severely restricted to 15º and right rotation to 20º; no functional lateral rotation to either side; reported stiffness upon waking;
(d)Lumbar spine: lumbar flexion to 65º with hands able to touch knee level; left lateral flexion to 15º and right lateral flexion to 10º to touch level of mid-thigh; unable to rotate/twist trunk; reported stiffness upon waking and after walking;
(e)Reaching: able to reach overhead to lowest shelf of overhead kitchen cupboard, but difficulty seeing when reaching overhead due to restricted neck movement; unable to pick up an object from the floor from standing position, dependant upon long-handled reacher; unable to reach to the floor from a seated position on Kingston chair or electric lift recliner chair such as to pick up remote control from the floor, dependent upon long-handled reacher;
(f)Sitting tolerance: observed to sit in Kingston chair for 45 minutes during interview, reported unrestricted sitting tolerance in Kingston chair with frequent changes of position; reported unrestricted sitting tolerance in electric lift recliner chair but generally sits upright to watch television due to restricted active neck range of movement;
(g)Standing tolerance: observed and reported maximum standing tolerance of five minutes; tends to lean against surfaces/furniture;
(h)Carrying/lifting: observed to lift and carry filled kettle and a 2-litre milk container; reported unable to lift anything heavier than one piece of split and cut ready to burn firewood;
(i)Kneeling: unable;
(j)Squatting: observed to perform ¼ squat with support of single-point walking stick;
(k)Pain: reported average pain ratings on the Numerical Pain Rating Scale as:
(i)‘Constant neck pain at 3/10, increasing to 8-9/10 at worst. Aggravated by neck movements’;
(ii)‘Bilateral [sacroiliac] joint pain only when walking, rated at 5/10 but resolves at rest’; and
(iii)‘Intermittent pain in knee and ankles: reported unknown if attributable to AS’.[54]
[54] Ibid 141-142.
Ms Richards summarised the Applicant’s functional impairments arising from his AS to be:[55]
·Restricted neck active range of movement, stiffness and pain;
·Restricted spinal active range of movement, stiffness and pain;
·Restricted tolerances for walking, standing and activity endurance;
·Requirement for gait aids;
·Restricted capacity for visual scanning of environment when ambulating; and
·Restricted capacities for forward bending, twisting, reaching below knee height, carrying and lifting, pushing and pulling, kneeling and squatting.
It is the first two and last two that the Respondent accepts as permanent impairments arising from the Applicant’s AS.[56]
[55] Ibid 143.
[56] Paragraph 19 supra, n 13.
Ms Richards considered that the Applicant’s mildly impaired dynamic standing balance and use of gait aids presented a risk for trips or falls, but could not comment on the extent that medications and other conditions, such as blood pressure, might contribute to fall risks.[57] The Applicant had a fall in his bedroom in the year before the Richards report was written,[58] when he tripped and fell beside his bed.[59] With the assistance of the bed he was able to pull himself up from the floor and onto the bed. He did not report seeking medical attention or sustaining any injury as a result of the fall, and has not suffered a fall since.[60]
Mobility
[57] Exhibit R2 ST2 148, report of Occupational Therapist Deirdre Richards dated 20 July 2022.
[58] Transcript 27.
[59] Ibid; Exhibit R2 ST2 147, report of Occupational Therapist Deirdre Richards dated 20 July 2022.
[60] Exhibit R2 ST2 146-147, report of Occupational Therapist Deirdre Richards dated 20 July 2022.
Unassisted
The Applicant’s ‘NDIS Access Request – Supporting Evidence Form’ was completed by his General Practitioner Dr Belinda Lacy and dated 14 October 2021. It has a section, to be completed by a health professional, for detailing the functional impact of his impairments. The part related to ‘Mobility’ asks ‘Does the person require assistance to be mobile because of their impairment/s’. The answer ‘Yes’ has several options, including ‘Yes, needs special equipment’ and ‘Yes, needs assistive technology’, and asks the health professional completing the form to describe the type of assistance required. Dr Lacy ticked ‘No, does not need assistance’.[61]
[61] Exhibit R1 T5 22, Access Request – Supporting Evidence Form Dr Belinda Lacy dated 14 October 2021.
Ms Hanrahan observed that the Applicant ‘ambulates with nil mobility aid’; uses a single-point walking stick outdoors; and must move slowly and carefully to maintain a straight spine. She had the ‘impression’ that the Applicant is ‘at risk of sustaining a fall whilst mobilising, due to anticipated decreased reactions times and limited ability to visually scan his surrounding environment and address obstacles that may present’.[62]
[62] Exhibit R1 T4 16-17, report of Occupational Therapist Lydia Hanrahan dated 30 June 2021.
Ms Richards noted that the Applicant was using the single-point stick, forearm crutches or a four-wheeled walker, and had a mobility scooter.[63]
[63] Exhibit R2 ST2 141, report of Occupational Therapist Deirdre Richards dated 20 July 2022.
Ms Richards observed that the Applicant was able to move about his home without a walking stick, but would intermittently hold onto furniture or walls and surfaces.[64] When giving his evidence, the Applicant appeared to agree that he could move about his current home without a stick, as it was more compact now, and he could ‘go from bits of furniture to bits of furniture too’. However, he uses a stick inside on ‘bad’ days.[65] He estimated that about 20 days a month were ‘bad’ days.[66]
[64] Ibid 144.
[65] Transcript 23-24.
[66] Ibid 37.
Single-point walking stick
Ms Richards observed the Applicant to ambulate with his single-point walking stick along an unmade driveway from his Benalla house to the front paddock, a distance of approximately 130 metres. After resting for five minutes, he walked another 130 metres to return. During his five-minute rest break, the Applicant stood independently. In a timed two-minute walk test, the Applicant completed approximately 75 metres, compared with a ‘normative age and gender mean distance’ of 183 metres. He reported avoiding traversing other surfaces, and Ms Richards reported him saying at the time that it was the furthest distance he'd completed ‘in months’.[67]
[67] Exhibit R2 ST2 144 & 145, report of Occupational Therapist Deirdre Richards dated 20 July 2022.
In his evidence, the Applicant said that it was ‘probably the best day I’ve had in two years’.[68] He estimated that he would now be able to go 20 to 30 metres with his walking stick.[69] When giving evidence, Ms Richards could give no reason why in a period of 10 months since her assessment the Applicant’s walking distance would have suffered such a significant reduction down to 20 to 30 metres.[70]
[68] Transcript 9.
[69] Ibid 24.
[70] Ibid 46.
Four-wheeled walker
The Applicant testified that he is able to walk about outside using a walking stick, although on ‘bad’ days he uses his four-wheeled walker. He prefers to use the walker if he has to carry something, or if he may need to sit down, as the seat on the walker is higher than that of chairs. Depending on his hips, he ‘might be able to go a block’ with his walker before having to sit and rest, after which he expects that he would be able to continue.[71] He has never tried to use his walker to go to the shops, but doesn’t think he could do it as it is too far; he would use it to get around the shops once he was there.[72]
[71] Ibid 24-25, 26; Exhibit R2 ST2 144-145, report of Occupational Therapist Deirdre Richards dated 20 July 2022.
[72] Transcript 26-27.
Forearm crutches
The Applicant testified that he sometimes uses crutches if a single walking stick is ‘not enough’.[73] They are less cumbersome than the walker, but they do not have a seat he can resort to if he tires. He could probably go further with them than with a walking stick, but he has never tried.[74]
[73] Ibid 25; Exhibit R2 ST2 145, report of Occupational Therapist Deirdre Richards dated 20 July 2022.
[74] Transcript 26-27.
Mobility scooter
The Applicant purchased a mobility scooter which he parks in his garage,[75] and which he uses to go to the shops and to his son’s place.[76] He parks his scooter at the front of the shopping centre and gets about inside with his walking stick.[77] If he wants to go elsewhere than the shops, he must get someone to drive him.[78]
[75] Ibid 26-27.
[76] Ibid 8, 9.
[77] Ibid 26-27.
[78] Ibid 8.
Driving
The Applicant can no longer drive a vehicle, as his restricted range of neck movement does not enable him to look from side to side while doing so.[79] His inability to drive was one of the factors which contributed to his move to Tongala.[80] Ms Hanrahan reported that the Applicant relied on Andrea ‘for all transport, shopping and community access tasks’,[81] including medical appointments.[82] Ms Richards reported that at the time of her assessment the Applicant was being transported by Andrea and occasionally by his son in their private vehicles; although the Applicant had a Disabled Parking Permit, he did not have a Multi-Purpose Taxi card. He uses his walking stick when attending appointments, as those driving him can use his Disabled Parking Permit to park close to his destination.[83]
[79] Ibid 5; Exhibit R1 T3 14, report of Rheumatologist Dr Kathryn Over dated 17 May 2021; Exhibit R1 T4 16, report of Occupational Therapist Lydia Hanrahan dated 30 June 2021; Exhibit R2 ST2 155, report of Occupational Therapist Deirdre Richards dated 20 July 2022.
[80] Transcript 6.
[81] Exhibit R1 T4 16, report of Occupational Therapist Lydia Hanrahan dated 30 June 2021.
[82] Transcript 25.
[83] Exhibit R2 ST2 144 & 146, report of Occupational Therapist Deirdre Richards dated 20 July 2022.
Other features of mobility, endurance
Ms Richards observed that the Applicant had a ‘reduced stride length & slowed gait’ and walked with his stick ‘in right hand & mildly hunched posture with eyeline focused to the ground’. The Applicant ascended and descended the front access step to his Benalla home slowly with his walking stick and required the balancing support of the door frame.[84]
[84] Ibid 145.
The Applicant reported to Ms Richards that he was unable to negotiate a flight of stairs or inclines. However, in his evidence to the Tribunal he said he would be able to get up a set of stairs if he ‘had to’ but avoids doing so as it is ‘just too hard’, so he doesn’t bother.[85]
[85] Transcript 27.
The Applicant told the Tribunal that there were days that he would feel ‘good’ physically, without aches and pains. That would depend on whether he exerts himself ‘a little bit’. If he doesn’t do ‘anything’ for four or five days, he will have a ‘good’ day. If he walks around too much, or tries to lift ‘something’ he can’t, ‘it might take [him] four or five days to get over it’[86] – he would be in too much pain and ‘wouldn’t be able to walk around much or stand up’ and would ‘have to sit and rest for a few days’.[87] The Applicant said that he was always a ‘pretty big, solid bloke and strong, but now [he is] flat out being able to carry something [and] walk with it’.[88]
[86] Ibid 16.
[87] Ibid 16.
[88] Ibid 5.
Ms Richards, when examining the Applicant’s outdoor mobility, observed him to ‘display signs of fatigue and reduced activity tolerance, such that he required a halfway rest break. At the conclusion of his outdoor walking, he required a seated rest break’.[89] Ms Richards, in her notes taken during the assessment, recorded that the Applicant had described the date of the assessment as an ‘average’ day. He did not speak of ‘good’ and ‘bad’ days. She was asked by the Respondent’s counsel:
Did you discuss with him at all whether or not he had good and bad days? --- Yes, we discussed whether symptoms were fluctuating or episodic. … he did describe that pain could be increased at times in his neck.[90]
[89] Exhibit R2 ST2 146, report of Occupational Therapist Deirdre Richards dated 20 July 2022. Ms Richards also commented on the Applicant’s ability to use public transport and the restrictions on his ability to do so ‘due to his restricted mobility and balance, walking and standing tolerances, endurance and dependence upon gait aids.’ She considered that due to the Applicant’s then rural residence location, public transport options were limited and unviable and that he ‘would be unable to walk to and from a local bus or train station in the first instance.’ However, at the time of her assessment, the Applicant was living on his farm outside Benalla, rather than in Tongala. The Tribunal has no evidence as to the proximity and availability of public transport in Tongala or the use the Applicant might reasonably make of it.
[90] Transcript 45.
Ms Richards, after detailing her observations of the Applicant’s ability to walk, reported:
Factors that are impacting [the Applicant’s] capacity for mobilising include: pain in his back and [sacroiliac] joints, restricted neck and spinal active range of movement, restricted activity tolerance, fatigue and weight. These factors combine to restrict his walking speed and tolerance, balance and his ability to negotiate inclines, uneven terrain, steps and stairs. [The Applicant] noted that his [sacroiliac] joint pain resolves when he ceases walking.
[The Applicant’s] restricted neck and spinal active range of movement results in the need to rotate his whole body to scan the environment for areas or objects outside of his peripheral vision range.[91]
Other activities
[91] Exhibit R2 ST2 145, report of Occupational Therapist Deirdre Richards dated 20 July 2022.
Shopping
The Applicant says shopping is ‘hard’ because he cannot get around a supermarket and look up or down shelves. The Applicant said he attends the shops only to buy bread and milk.[92] He has Andrea or his son[93] do other grocery shopping for him, making up a list for them of articles to purchase, as ‘it’s easier’.[94] He has not tried online shopping or home delivery: he doesn’t know whether the shop in Tongala provides such a service, as it is a town of only some 2,500 people.[95]
[92] Transcript 8.
[93] Ibid 34.
[94] Ibid 8.
[95] Ibid 34-35.
Ms Richards recorded the Applicant having reported that he required ‘assistance for trolley use, bending, reaching & retrieving, carrying & lifting tasks’.[96]
[96] Exhibit R2 ST2 155, report of Occupational Therapist Deirdre Richards dated 20 July 2022.
Sitting and standing
Ms Hanrahan reported that the Applicant requires a raised chair height to maintain a straight spine and is unable to get up independently from standard chairs or couches; has significant difficulty transferring off a standard height toilet; and relies on surrounding surfaces or railing to push himself up.[97] The Applicant initially said that he cannot sit on regular height chairs as they are too low for him and he cannot get back up, but later testified that sitting and rising from normal height chairs is difficult and uncomfortable, but possible.[98] It was not explained whether this was with or without the aid of a walking stick.
[97] Exhibit R1 T4 16, report of Occupational Therapist Lydia Hanrahan dated 30 June 2021.
[98] Transcript 5, 28.
The Applicant can transfer independently from his Kingston chair – a height adjustable chair with arm rests – which he uses for sitting at the dining table.[99] He also has in his living room an electric lift recliner chair, so that he can get out of it independently.[100]
[99] Ibid 27-28; Exhibit R2 ST2 148, report of Occupational Therapist Deirdre Richards dated 20 July 2022.
[100] Transcript 5; Exhibit R2 ST2 148, report of Occupational Therapist Deirdre Richards dated 20 July 2022.
Ms Hanrahan noted in 2021 that the Applicant could transfer on and off his bed independently. Although he was at risk of a fall due to the momentum he required to move from a supine position to sitting in the edge of the bed while maintaining a straight spine, he felt safe managing these transfers.[101] In Benalla, at the time of Ms Richards’ assessment, he had rigged up an elevated bed so that he could get into and out of it. The Applicant presently uses an adjustable hospital bed which he can get into and out of by himself.[102] The Applicant did not mention any difficulties in this regard.
[101] Exhibit R1 T4 16, report of Occupational Therapist Lydia Hanrahan dated 30 June 2021.
[102] Transcript 28.
Showering and washing
Ms Hanrahan noted that the Applicant was able to complete washing tasks independently while standing in the shower.[103] Ms Richards observed that the Applicant required intermittent physical assistance with showering. His then shower at Benalla lacked ‘adequate space in the recess to accommodate body size & shower chair. Does not have adaptive aids. Unable to reach feet. Showers two to three times per week. Intermittent assistance required to wash feet’.[104] The Applicant has since moved to Tongala and has a new bathroom arrangement. He testified that he showers daily.[105]
[103] Exhibit R1 T4 16, report of Occupational Therapist Lydia Hanrahan dated 30 June 2021.
[104] Exhibit R2 ST2 151, report of Occupational Therapist Deirdre Richards dated 20 July 2022.
[105] Transcript 29.
The Applicant’s difficulty is bending to wash his legs and feet, due to the range of movement with his back, but also due to the size of the shower space.[106] He needs to be able to stretch out, and requires more room to bend.[107] Ms Richards recommended the Applicant use a long-handled sponge and foot dryer to assist him with washing his feet;[108] although he uses a long-handled washer, he says that he still cannot reach his feet.[109] Once a week the Applicant gets the assistance of his friend Andrea to wash his feet, otherwise he wouldn’t do it.[110]
[106] Ibid 30.
[107] Ibid 37.
[108] Ibid 47.
[109] Ibid 29.
[110] Ibid 30.
The Applicant testified that he has no difficulties in drying himself.[111]
[111] Ibid 38. Ms Hanrahan had noted that the Applicant’s limited range of movement made him require the assistance of his friend Andrea to dry and dress his lower limbs ‘on his worse days’: report of Occupational Therapist Lydia Hanrahan dated 30 June 2021.
Grooming
The Applicant has no restrictions on his ability to brush his hair, or his teeth. However, he said that he does not shave; he sports a beard as he cannot lift his head to shave under his chin.[112] Ms Richards observed the Applicant requiring intermittent ‘assistance to cut toenails’.[113] The Applicant told the Tribunal that Andrea does it for him about every three weeks; without her help he does not know what he would do.[114]
[112] Transcript 30; Exhibit R2 ST2 151, report of Occupational Therapist Deirdre Richards dated 20 July 2022.
[113] Exhibit R2 ST2 151, report of Occupational Therapist Deirdre Richards dated 20 July 2022.
[114] Transcript 5, 30-31; his support person volunteered that he would need a podiatrist: he has never seen one.
Dressing

The Applicant testified that he has trouble putting on socks and shoes. He puts on his socks with a device he obtained from a disability shop, which he says ‘works 90 per cent of the time’.[115] He has no trouble with slippers and thongs and uses a long-handled shoehorn to don elastic-sided shoes.[116] He requires Andrea’s help with dress shoes, but he does not need to wear them very often.[117]
[115] Ibid 5, 31: the Applicant describes it as a ‘sock puller oner’, presumably a variety of dressing stick or what Ms Richards described as a ‘sock donner’.
[116] Ibid 31; cp 5.
[117] Ibid.
The Applicant said he wears front-opening and buttoning garments, rather than T-shirts and polo shirts, so that he does not have to pull them over his head.[118] Ms Richards observed him to don and remove pull over tops independently, though slowly.[119] He has no trouble putting on button up shirts.[120] He said that if he is having a ‘bad’ day – perhaps once a week – he would need Andrea’s help putting on pants.[121]
[118] Ibid.
[119] Exhibit R2 ST2 151, report of Occupational Therapist Deirdre Richards dated 20 July 2022.
[120] Transcript 31.
[121] Ibid 32.
Cooking, eating, drinking
The Applicant is independent with meal preparation[122] and can do his own cooking.[123] He can wash the dishes and wipe down benches.[124] He does not have a dishwasher; he considers that he would not be able to bend down to put dishes into it anyway.[125]
[122] Exhibit R1 T4 16, report of Occupational Therapist Lydia Hanrahan dated 30 June 2021.
[123] Transcript 9, 34.
[124] Ibid.
[125] Ibid 38.
The Applicant experiences no difficulties eating, but has intermittent difficulty drinking when required to tip his head back due to the limited range of movement of his neck.[126] He can drink out of a bottle of water and out of a mug or cup, but not out of a can.[127] He has not had to resort to using a straw to drink out of mugs and hopes not to have to do so.[128]
[126] Ibid 29.
[127] Ibid 37; Exhibit R2 ST2 151, report of Occupational Therapist Deirdre Richards dated 20 July 2022.
[128] Transcript 37.
Toileting
As with normal height seating, the height of the toilet makes it difficult for the Applicant get up off, and down on, it. He has a raised toilet seat, which ‘helps’. Having handrails in his toilet would also assist, but he has not investigated having handrails installed.[129]
[129] Ibid 33.
Wiping himself appears to have been a problem. Ms Hanrahan had noted that the Applicant’s limited range of movement made him require the assistance of his friend Andrea to complete his post-toileting hygiene due to his inability to twist and reach his perennial area.[130] She recommended a ‘bottom wiper’, but the Applicant didn’t like the look of them and how they worked and so came up with an alternative.
[130] Exhibit R1 T4 16, report of Occupational Therapist Lydia Hanrahan dated 30 June 2021.
Ms Richards noted that the Applicant required ‘assistance with toilet hygiene wiping, approximately once per month but has ongoing difficulty performing this independently … access to perineal area limited by body size, reduced access space with raised toilet seat & narrow access between the adjacent shower & wall’.[131] He has since moved to Tongala and a new bathroom and toilet arrangement: there is no evidence of the physical constraints of his current toilet.
[131] Exhibit R2 ST2 151, report of Occupational Therapist Deirdre Richards dated 20 July 2022.
The Applicant testified that he does not need assistance toileting or with post-toilet hygiene but considers a sink or bidet would be better. He has not investigated acquiring one.[132] He would rather have a higher toilet without an extender seat and, if he obtained one, he would incorporate a bidet. He has not done so to date due to the cost, which he estimates to be around $700-$1,000.[133]
[132] Transcript 33.
[133] Ibid 38.
Laundry
The Applicant is independent with laundry tasks.[134] Ms Richards reported that the Applicant was ‘[a]ble to load/remove items from top loading machine & hang small garments on indoor airer’ but required ‘assistance for sheets, towels & hanging items on outdoor line’.[135] He confirmed that he could load his washing machine and is able to hang washing on an airer,[136] but not on any line above his head as he is unable to look and reach up to hang clothes on an overhead line.[137] Andrea hangs larger articles like sheets on the clothesline.[138] The Applicant does not have a clothes dryer.[139]
[134] Exhibit R1 T4 16, report of Occupational Therapist Lydia Hanrahan dated 30 June 2021.
[135] Exhibit R2 ST2 154, report of Occupational Therapist Deirdre Richards dated 20 July 2022.
[136] Transcript 34.
[137] Exhibit R1 T4 16, report of Occupational Therapist Lydia Hanrahan dated 30 June 2021.
[138] Transcript 34.
[139] Ibid 38.
Cleaning & home maintenance
The Applicant cannot wash or vacuum the floors and gets Andrea to do it, ‘and stuff like that’.[140] This is because it is ‘too sore’ for him to stand and bend, and if he stands too long he gets too sore and then has to sit down.[141] Both Ms Hanrahan in her 2021 report and Ms Richards in her 2022 report noted that ‘Andrea completes all house work and heavy cleaning tasks’. Neither say to what extent the Applicant is unable to perform them,[142] but Ms Richards says it is because of the Applicant’s functional impairments. Ms Richards also recorded the Applicant reporting that Andrea does other home maintenance tasks such as changing light globes.[143] His Tongala unit’s lawn is maintained by a contractor.[144]
[140] Ibid 34; Exhibit R2 ST2 153, report of Occupational Therapist Deirdre Richards dated 20 July 2022.
[141] Transcript 9.
[142] Exhibit R1 T4 16, report of Occupational Therapist Lydia Hanrahan dated 30 June 2021.
[143] Exhibit R2 ST2 153, report of Occupational Therapist Deirdre Richards dated 20 July 2022.
[144] Transcript 34.
Weight and range of movement
The Respondent raises the question of the Applicant’s weight as a factor contributing to his functional limitations, particularly his ‘restricted tolerances for walking, standing and activity endurance’ and his ‘requirement for gait aids’.[145]
[145] Paragraph 20, 37 supra; n 14.
The Applicant testified that his weight at the time of the hearing, and for a few years leading up to it, was ‘about’ 140kg. He doesn’t weigh himself, only when he goes to the doctor.[146] Ms Richards reported him at the time of her assessment to be approximately 185cm tall and weighing approximately 150kg with a Body Mass Index of 43.8.[147] Ms Richards did not measure the Applicant’s dimensions when she assessed him; he self-reported his height and weight and said that his weight had been stable at 150kg for the past few years.[148] The Applicant, in evidence, agreed that he had ‘estimated’ for her.[149] I infer that the estimate was based on the Applicant’s most recent attendance with his doctor.[150]
[146] Transcript 18-19.
[147] Exhibit R2 ST4 141 & 143, report of Occupational Therapist Dierdre Richards dated 20 July 2022; Transcript 18-19; a Body Mass Index of between 18.5-24.9 is regarded as the ‘healthy range’; 25-29.9 as ‘overweight’; 30 and over as ‘obese’.
[148] Exhibit R2 ST4 141 & 143, report of Occupational Therapist Dierdre Richards dated 20 July 2022; Transcript 52.
[149] Transcript 19.
[150] Documentary evidence before the Tribunal includes a report from Dr Over of a consultation on 1 June 2022. If the Applicant is correct about being weighted only when he sees his doctors, his ‘estimate’ may have been based on being weighed on that occasion; Exhibit R2 ST4 222, report of Dr Kathryn Over dated 1 June 2022.
The documentary evidence reveals that the Applicant was seen by Physiotherapist Breanna Bailey of North East Life on 18 June 2018. Ms Bailey noted the Applicant’s ‘Restricted ROM globally throughout the cervical, thoracic, lumbar spine and hip joints. Pain only in the cervical spine’. Her recommendation for Planned Treatment was ‘Stretching program for the spine and hip joints. Also a cardiovascular exercise program’, the goals being ‘To maintain current ROM and improve aerovic [sic: ‘aerobic’] capacity and function. To reduce pain levels’.[151]
[151] Exhibit R2 ST5 377, report of Physiotherapist Breanna Bailey dated 18 June 2018.
The Applicant testified that he had seen a physiotherapist in about 2018, who had given him some ‘stretching’ exercises to try and help him with his range of movement, which he tries to do when he can – some are ‘just daily things you do anyway’. However, he estimated that his range of movement has decreased by ‘[p]robably 50 per cent’ since then. The Applicant could not recall the cardiovascular exercise program, or doing any of the exercises.[152]
[152] Transcript 19-20, 35.
The Applicant told the Tribunal that doctors had recommended ‘portion control’ as an option for managing his weight and he had been ‘careful’ about it. He has not gone back to his doctor or physiotherapist and asked for exercises he could do to assist with weight loss.[153]
[153] Ibid 19-20. In the Applicant’s Closing Submissions dated 26 June 2023, it is submitted that ‘The applicant confirms that a cardiovascular exercise program would exacerbate his hypertension symptoms’. The Applicant made no mention of this in his evidence. While evidence before the Tribunal of the Applicant’s medical history makes mention of hypertension, it was not a basis upon which the Applicant sought access to the Scheme. No impairment attributable to hypertension was raised, or evidence provided of treatment for hypertension or how hypertension affects the Applicant’s functional capacity. I accept the Respondent’s submission, in its Reply to the Applicant’s Closing Submissions dated 30 June 2023, that ‘there is insufficient evidence before the Tribunal that would allow the Tribunal to be satisfied that the Applicant meets any of the criteria in s 24(1) of the [NDIS Act] in relation to any impairment attributable to hypertension’. This applies likewise to other medical conditions referred to in the Applicant’s history.
Ms Richards considered that:[154]
[The Applicant’s] BMI [body mass index] score places him in the obese range. The functional impacts of obesity are well documented including increased mechanical joint loading and risk for joint pain, restricted mobility, reduced gait speed, lower limb strength and balance, increased difficulty with transfers, restricted activity tolerance and endurance and restricted capacity for forward bending and twisting due to girth and body dimensions.
To her it was
… clear that [the Applicant’s] weight contributes to his current assessed functional capacity in the above-mentioned domains.
[154] Exhibit R2 ST2 143, report of Occupational Therapist Deirdre Richards dated 20 July 2022; Transcript 44.
Ms Richards considered that commenting on the extent of the contribution the Applicant’s weight makes to his functional capacity, or the extent to which losing weight would remedy his impairments or increase his activity tolerance and endurance, to be outside her area of expertise.[155] However, she observed in giving evidence that:[156]
… in general terms for someone in the general community you would expect that a reduction in body weight and in body dimension, particularly abdominal girth, will result in improvements in capacity for bending, reaching, kneeling, squatting, reduced lower limb pain, increased endurance, increased walking and standing tolerances.
…
… in the general population it would be expected that losing weight would result in improvements in activity tolerance, endurance, fatigue.
[155] Exhibit R2 ST2 143, report of Occupational Therapist Deirdre Richards dated 20 July 2022; Transcript 44-45;
[156] Transcript 45.
Ms Richards recorded that the Applicant had reported at the time of his assessment that he had attempted, and was attempting, to lose weight by reducing portion sizes. He did not report any other weight loss attempts or interventions.[157]
[157] Exhibit R2 ST2 144, report of Occupational Therapist Deirdre Richards dated 20 July 2022.
During her giving evidence, Ms Richards was referred to Ms Bailey’s recommendation that the Applicant undertake a stretching program for the spine and hips and a cardiovascular exercise program. Ms Richards observed that exercise is considered a normal treatment modality for AS. Having regard to the Applicant’s risk factors such as sleep apnoea, obesity, and hypertension, any cardiovascular program would need to be medically cleared, but could be conducted with either a physiotherapist or exercise physiologist. It may involve something as simple as walking on a treadmill, using a pedal exerciser, arm ergometer, or hydrotherapy, to increase his heartrate but not aggravate his symptoms.[158]
[158] Transcript 52.
Even if the Applicant were to lose weight, he would still require assistance to cut his toenails. However, Ms Richards considered that he would have the capacity to be independent with other self-care tasks, with assistive technology and in an environment that supported that technology. She was not able to assess his current home environment at Tongala.[159]
[159] Ibid 50.
Ms Richards considered that the Applicant’s ability to toilet and clean himself would be made easier by a loss of weight and with equipment such as a bidet and long-handled equipment. While she would not expect losing weight to have a ‘real’ functional impact on his neck, there is ‘potential’ for improvement in his forward bending, both when sitting and standing, from the reduction in the abdominal girth currently preventing him from doing some of those activities. He would still have restrictions with his spine and the stiffness in his sacroiliac joints, but his pain may be reduced, which may result in improved tolerances for bending, forward reaching, standing, and walking. However, it is ‘hypothetical’ because it was impossible to understand at this time what contribution weight has made to his pain and movement.[160]
[160] Ibid 51.
Specifically, Ms Richards considered that the Applicant’s deficits in functional capacity in social interactions are reasonably attributable to the combined effects of both his AS and weight.[161] His ‘level of function’ with respect to tasks of personal care[162] and domestic tasks[163] is ‘reasonably impacted by the effects of his current weight’’[164] and functional limitations regarding personal care and domestic tasks ‘are reasonably attributable to the combined effects of [his] AS and weight’.[165]
[161] Exhibit R2 ST2 150, report of Occupational Therapist Deirdre Richards dated 20 July 2022.
[162] Ibid 152.
[163] Ibid 154.
[164] Ibid 152.
[165] Ibid 153, 155.
Assistive Technology and Equipment; Home modifications
Ms Hanrahan recommended several items of equipment that the Applicant would benefit from to ‘increase functional independence and decrease risk of falls’, being:[166]
(a)‘Raised Toilet Seat – to increase safety with toilet transfers’;
(b)‘Trial or purchase of bottom wiper to promote independence with post-toilet hygiene’;
(c)‘Electric Lift Recliner – To increase independence and safety with transfers from lounge chair’; and
(d)‘Bed transfer assessment and trial of assistive aids’.
[166] Exhibit R1 T4 17, report of Occupational Therapist Lydia Hanrahan dated 30 June 2021.
The Applicant has purchased items (a) and (c), the latter through the Victorian Government’s State-wide Equipment Program (SWEP), and was using both items before moving to his unit in Tongala.[167] As to item (b), the Applicant has eschewed using a bottom wiper and considers that he does not need assistance toileting or with post-toilet hygiene.[168] As to item (d), he made no complaint about the hospital-type bed he is using.[169]
[167] Transcript 14-15.
[168] Paragraphs 68-70 supra.
[169] Transcript 28.
Ms Hanrahan concluded her report saying that the Applicant ‘would benefit from supportive services in the future to assist with his care needs and lower the burden of care on his friend, Andrea’.[170] Since the move into his Tongala unit, he and Andrea no longer reside together, although she lives in the same town and assists him from time to time. Although she continues to provide informal assistance, it is less frequent and intensive compared to when they were living together.
[170] Exhibit R1 T4 17, report of Occupational Therapist Lydia Hanrahan dated 30 June 2021.
Ms Richards noted that the Applicant was using the following, self-funded, items:[171]
[171] Exhibit R2 ST2 141, report of Occupational Therapist Deirdre Richards dated 20 July 2022.
(a)A single-point walking stick;
(b)Forearm crutches;
(c)A four-wheeled seat walker;
(d)A four-wheeled mobility scooter;
(e)A Kingston chair;
(f)Long-handled reachers;
(g)A ‘sock aid’;
(h)A long-handled shoehorn;
(i)A raised toilet seat with lid;
(j)An adjustable king single bed; and
(k)A CPAP machine.[172]
She also noted he also had a bariatric single-motor electric lift recliner chair acquired thorough the SWEP.
[172] ‘Continuous Positive Airway Pressure’, for the Applicant’s sleep apnoea; not raised as a condition contributing to his impairments.
Ms Richards recommended that the Applicant’s capacity for self-care would reasonably be assisted using assistive technology items, including a:[173]
·Bariatric shower chair, shower handrails, adjustable height handshower and long handled sponge and foot dryer;
·Bariatric raised toilet seat with armrests or throne rails; and
·Review of alternative sock donner.
[173] Exhibit R2 ST2 152, report of Occupational Therapist Deirdre Richards dated 20 July 2022.
Ms Richards recommended that the Applicant use a bariatric shower chair to assist in self-care activities but noted that there was not adequate space in the shower of his Benalla residence to accommodate it. She considered that it would be difficult to fit a bariatric-sized shower chair into an average, 850 or 900mm square, shower recess due to the dimensions of the chair, and to allow a person in a seated position to have their legs within the recess.[174] She foreshadowed that an assessment of the need for any modifications at Tongala may range from the removal of a shower screen door to accommodate a bariatric shower chair, to increasing the size of the shower recess.[175]
[174] Transcript 46.
[175] Exhibit R2 ST2 152, report of Occupational Therapist Deirdre Richards dated 20 July 2022.
Ms Richards considered that podiatry services would assist the Applicant by cutting his toenails,[176] and that he would ‘reasonably benefit from handrails to negotiate single steps.’ However, there are ‘no further commonly used assistive technology (AT) items that would improve his functional mobility capacity’.[177]
[176] Transcript 47.
[177] Exhibit R2 ST2 146, report of Occupational Therapist Deirdre Richards dated 20 July 2022.
The Applicant considers his residence to be ‘pretty good’ although he would:
(a)change the bathroom to have more room to have a stool upon which to sit to try to wash his feet.[178] The Applicant testified that he now has a standard 900mm x 900mm shower recess, which he does not think large enough to accommodate a shower chair. He has not tried to use one;[179]
(b)change the toilet to raise it another five or six inches (13-15cm). He said that this would enable him to sit down and rise from the toilet more easily.[180] The Applicant has not investigated whether he could obtain under the SWEP a higher toilet seat with a bidet to replace the raised toilet seat he currently uses;[181]
(c)install a ramp at the front and back doors.[182] Ramps would assist him because of the pain taking a step causes to his sacroiliac joints; and
(d)put up handrails as he says he has ‘got to hang on to something’. [183] He has not had handrails installed due to the cost, although he has not looked at the prices.[184] He has not inquired whether handrails could be installed under the SWEP or through My Aged Care.
[178] Transcript 7.
[179] Ibid 29.
[180] Ibid 7.
[181] Ibid 38-39; Paragraph 70 supra.
[182] Transcript 7.
[183] Ibid 8, 27.
[184] Ibid 38.

The Applicant has not registered himself with My Aged Care.[185] He has not checked whether some of the assistance he would like or requires would be available under My Aged Care.[186]
[185] Ibid 39.
[186] Ibid 40.
CONSIDERATION
On the evidence available to the Tribunal, the Respondent’s concession that the Applicant meets the Scheme entry criteria in section 24(1)(a) and (d) is reasonable and proper.
It remains for the Tribunal to consider whether the Applicant meets the Scheme entry criterion prescribed by section 24(1)(b) and (c).
The Respondent accepts that the Applicant has several restrictions resulting from his impairments, particularly in tasks related to mobility and self-care, but contends that they do not amount to a substantially reduced functional capacity for the purposes of section 24(1)(c).[187] In substance, the Respondent submits that although from time-to-time he may require extra time, pacing strategies, or the use of ‘commonly used’ items, the Applicant is able to participate in all six activities specified by section 24(1)(c).
[187] Respondent’s Closing Submissions dated 29 May 2023 at [17], [27], [33].
The Rules provide as follows regarding substantially reduced functional capacity:
5.8An 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 … — 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.
Rule 5.8 is a deeming provision. If a person’s circumstances are caught by its terms, the person must be taken to have a substantially reduced functional capacity for the purposes of section 24(1)(c).[188]
[188] Mulligan (n 10) at [66]-[67] per Mortimer J.
Rule 5.8(a) deems that an impairment results in a substantially reduced functional capacity if the person is unable to participate ‘effectively or completely’ in the activity, or perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, non-commonly used equipment, or home modifications.[189] ‘Completely’, however, does not import ‘wholly’ or ‘perfectly’.[190] 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. Further, ‘[u]ndertaking a task … differently to others will not necessarily mean a person cannot participate effectively or completely in an activity’.[191]
[189] National Disability Insurance Agency v Foster [2022] FCAFC 11 (Foster) at [66].
[190] Ibid at [86].
[191] Ibid at [66], [67].
It remains for the decision-maker to assess the degree to which the person can participate in the activity.[192] The Respondent has provided a variety of examples where the Tribunal has considered similar issues and circumstances to those before me. While not binding on me, it is important that there be consistency in the way the Tribunal deals with matters coming before it for review, and some of the matters referred to have features in common with the case before me. I must, however, come to my own assessment of the facts and the degree the Applicant’s impairments affect his functional capacity in the six activities specified by section 24(1)(c).
[192] Ibid at [83], [88].
The Applying Guideline contains the following guidance for assessing functional capacity:[193]
[193] Applying Guideline 8-9.
Your permanent impairment needs to substantially reduce your functional capacity or ability to undertake activities in one of the following areas:
·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.
·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.
·Learning – how you learn, understand and remember new things, and practise and use new skills.
·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.
·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.
·Self-management (if older than 6) – 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.
Your impairment substantially reduces your functional capacity if you usually need disability-specific supports to participate in or complete the above tasks.
These disability-specific supports include:
·a high level of support from other people, such as physical assistance, guidance, supervision or prompting.
·assistive technology, equipment or home modifications that are prescribed by your doctor, allied health professional or other medical professional.
To help us decide if you’re eligible, we need to know your capacity and where you need more help. We get this information from your NDIS application.
If you have more than one permanent impairment we will consider them together, to see if they substantially reduce your functional capacity.
We consider how you’re involved in 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.
Your needs might go up and down each day or each month. Progressive Multiple Sclerosis (MS) can be a good example of this. We consider your ability over time, taking into account your ups and downs.
However, Guidelines
… are merely administrative “tools”. They do not provide a legislative definition of the relevant activities. They do not control the meaning of the phrase “substantially reduced functional capacity”. Nor do they alter the threshold criteria for when a person meets the disability requirements as specified in s 24(1) of the NDIS Act. They are not the equivalent of a statutory provision and are not to be construed in like manner … Rather, they provide non-exclusive content to the range of “tasks and activities” (as referred to in r 5.8) that comprise the “activities” the NDIA is required to consider, consistent with the legislative history, context, and purpose.[194]
[194] Foster (n 189) at [62].
Accordingly, the Guidelines cannot define or limit what may constitute the activities specified by section 24(1)(c) or prescribe what amounts to a substantially reduced functional capacity in those activities. By operation of rule 5.8 if an impairment results in an inability to participate effectively in the activity without assistive technology, rather than a task forming part of an activity, the person is deemed to have substantially reduced functional capacity to undertake that activity.[195]
[195] Ibid at [54].
This raises the question of what is to be considered ‘assistive technology’ or equipment ‘other than commonly used items’ that fall within the scope of rule 5.8(a) of the Rules. The qualification ‘other than commonly used items such as glasses’ in rule 5.8(a) applies to ‘equipment’, not to ‘assistive technology’. The Applying Guideline purports to qualify rule 5.8 by referring to assistive technology, equipment or home modifications ‘that are prescribed by your doctor, allied health professional or other medical professional’.[196] Neither party submitted that the Guideline was inconsistent with the NDIS Act or the Rules. However, as noted, the Agency’s operational guidelines cannot be inconsistent with the Scheme’s legislation, and rule 5.8 provides no such qualification.
[196] Applying Guidelines 8-9.
The Respondent asserts that any aids that the Applicant uses, including his walking stick, are ‘commonly used items’. By implication, the Respondent considers that they are not assistive technology. The Respondent refers to the Tribunal Decision of Rooney and National Disability Insurance Agency[197] for indicia of what can be considered ‘commonly used items’: namely, items that are generally accessible, can be used without complex or specialised customisation or installation, are relatively simple to use, and are relatively inexpensive.[198]
[197] [2021] AATA 3523 at [18]-[27].
[198] Respondent’s Statement of Facts, Issues and Contentions dated 10 February 2023 at [55]; Respondent’s Submissions in Reply dated 24 March 2023 at [7]. Reference is made to: Goodwin and National Disability Insurance Agency [2021] AATA 2263 at [88], [102] (long-handled aids for drying, perching stool in kitchen, and high back chair to sit outside, all ‘commonly used’ items); Madelaine (n 7) at [110] (not necessary to decide whether four-wheeled walker a ‘commonly used’ item); Ditchfield and National Disability Insurance Agency [2019] AATA 2121 at [128] (walking frame and crutches not ‘commonly used’ items); Toltz and National Disability Insurance Agency [2023] AATA 49 at [57]-[60] (large computer monitor a ’commonly used’ item; prescription glasses requiring frequent updating due to progressive cornea changes, computer magnification, screen reading and dictation technology, not ‘commonly used’ items); O’Keefe and National Disability Insurance Agency [2023] AATA 82 at [81] (no finding as to whether a walking stick was a ‘commonly used’ item).
The evidence is that the Applicant, at his own expense or with funds provided by SWEP, has acquired a variety of items. These include:
(e)A single-point walking stick to steady him;
(6)Forearm crutches which he uses when a walking stick is ‘not enough’;
(7)A four-wheeled walker with a seat upon which he can rest when tired or in pain, and to enable him to ambulate further;
(8)A four-wheeled mobility scooter to enable him to travel to the local shops more easily and convey items he might not be able to carry;
(9)A Kingston chair to enable him to sit and rise more easily without needing to bend;
(10)A bariatric electric lift recliner chair for his living room, which he can sit and rise from without needing to bend;
(11)A long-handled showering device, to enable him to wash his lower limbs and feet;
(12)Long-handled reachers to be able to pick things up without bending;
(13)A long-handled shoehorn to assist him to don shoes without bending;
(14)A ‘sock aid’ to enable him to don socks without bending;
(15)A raised toilet seat, to facilitate his sitting and rising without bending; and
(16)An adjustable king single bed into and out of which he can easily transfer.
The Applicant has employed some aids that have been recommended by his medical practitioners and occupational therapists, while not utilising others. Ms Hanrahan, for example, recommended a raised toilet seat to ‘increase safety with toilet transfers’ and the electric lift recliner ‘to increase independence and safety with transfers from lounge chair’.[199] Ms Richards, noting the items that the Applicant was using, considered that he would ‘reasonably benefit from’ the continued use of the walking stick or walker for outdoor mobility, the scooter for longer distances, a quad-motor (rather than single-motor) electric lift recliner chair,[200] and should be reviewed for an alternative ‘sock donner’.[201] These recommendations and suggestions, while supporting the Applicant’s use of these several items, fall short of what might even be described as an informal prescription. None of the items, in my view, are ‘disability-specific’. They can be used as readily by those without a disability as those with one and are not necessarily designed or intended to address the needs of those with a particular disability.
[199] Paragraph 85 supra; Exhibit R1 T4 17, report of Occupational Therapist Lydia Hanrahan dated 30 June 2021.
[200] Exhibit R2 ST2 147, report of Occupational Therapist Deirdre Richards dated 20 July 2022.
[201] Ibid 152.
The question posed by rule 5.8(a) remains whether the Applicant is, without any of these items, unable to participate effectively or completely in a relevant activity, or perform tasks or actions required to participate effectively or completely in the relevant activity. That entails an assessment of what the Applicant can and cannot do because of his impairments, not how much better he could do if he received certain assistance.[202]
[202] Madelaine (n 7) at [73].
By operation of rule 5.8, if an impairment results in an inability to participate effectively in one of the specified activities without home modifications, the person is deemed to have substantially reduced functional capacity to undertake that activity.[203]
[203] Foster (n 189) at [54].
The Applicant appears not to have made any significant home modifications calculated to enable him to participate effectively in any of the relevant activities, or perform tasks or actions required to undertake or participate in any of the activities. The installation of a remote-controlled garage door does not, in my opinion, a relevant home modification. The Applicant has considered installing ramps at the front and rear of his home in place of the single steps to facilitate his access and egress, and handrails for support. These would seem reasonable improvements. However, the presence or absence of these home modifications does not settle the question of whether the Applicant’s functional capacity is substantially reduced. As it happens, their absence has not prevented him from mobilising, or otherwise undertaking the critical activities specified by section 24(1)(c).
Lastly, rule 5.8(b) deems that an impairment results in a substantially reduced functional capacity if 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’.
The Applicant’s physical impairments requires some assistance in home care tasks related to his ability to self-care, such as vacuuming his home, washing the floors, heavy cleaning, and tasks that require him to bend. The Applicant regularly relies upon and receives assistance from his friend Andrea, and without that assistance the job is either left undone or requires substantially greater time and effort on his part. However, the Applicant can substantially, albeit sometimes with greater difficulty than others, dress and groom himself, shower and toilet himself, prepare meals and feed himself, do his own laundry, and light cleaning. He made no mention in his evidence of difficulty in performing other day-to-day domestic tasks: for example, making his bed and changing the linen; taking down, folding and putting away laundry; or disposing of household refuse. Although he relies upon Andrea and his son to shop for anything more than milk and bread, it is because it is ‘easier’, not necessarily because he cannot purchase and convey home necessaries himself. He does not ‘usually’ require relevant assistance from other people.
It remains to consider the activities specified by section 24(1)(c).
Section 24(1)(c)(i) – Communication
The Applying Guideline describes ‘Communicating’ 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.
The Applicant confirmed during his evidence that he does not experience any impairment in this respect.[204] There is no evidence before the Tribunal to indicate a reduction in his capacity to undertake the activity of communication.[205]
[204] Transcript 21.
[205] Exhibit R2 ST2 157, report of Occupational Therapist Deirdre Richards dated 20 July 2022.
Section 24(1)(c)(ii) – Social interaction
The Applying Guideline describes ‘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.
The Applicant’s evidence was that he used to keep to himself when living on the farm, but would socialise with neighbours, either by calling in on them or running into them. He did not, in any event, have a large social circle or social life beyond the farm.[206]
[206] Transcript 36.
Ms Richards reported that the Applicant, at the time of her assessment, had ceased working approximately two years previously, and that he was not then involved in any remunerative or volunteer work or study. He was restricted to home-based sedentary activities such as watching television, reading, using his iPad and accessing the internet. He reported to her that he only left home to attend medical appointments or – rarely – accompanying Andrea on a drive where he remained in the car for the duration of the outing. He previously enjoyed using his boat, fishing, shooting, cooking on the barbeque, going to second-hand bookshops, butchery and making sausages. He has since sold his boat.[207]
[207] Exhibit R2 ST2 150, report of Occupational Therapist Deirdre Richards dated 20 July 2022.
The Applicant testified that he does not ‘go out and socialise’ because it is difficult for him physically to get out of the house, and he can’t drive. Further, he doesn’t like being in groups of people because he cannot turn his head to look at and speak to them, and chairs are too low for him to sit on.[208]
[208] Transcript 22.
The Applicant testified that he socialised only with his son and Andrea. He has no problems interacting with them or inviting them over to visit. There was nothing in relation to his impairments that would stop him from inviting them over, other than a ‘bad day’ of severe pain.[209] Other people do not visit him much now and he did not have friends with whom he socialised, but his condition would not prevent him socialising with them.[210] He does not speak to friends or family over the telephone, but this was not due to his impairments.[211]
[209] Ibid 22.
[210] Ibid 36-37.
[211] Ibid 23.
The Applying Guideline’s focus is on the personal skills necessary for social interaction, rather than the location or frequency of opportunities to practice such skills.[212]
[212] Madelaine (n 7) at [87]; Nika and National Disability Insurance Agency [2021] AATA 2127 at [241].
The Applicant’s social interactions have been limited by choice, informed to a degree by his physical limitations. There are certain physical tasks he cannot undertake, and he finds it awkward and uncomfortable to engage with people on social occasions. However, he can engage with his family and others and does so. He does not claim to have impairments that restrict his functional capacity to socially interact, rather than where he can socialise and what activities he is limited in performing when engaging in social interactions. There is no evidence before the Tribunal that the Applicant does not have the skills to properly interact or engage with family, friends, or people in the community, or behave within the social limits accepted by others.

There is no evidence before the Tribunal to indicate a substantial reduction in his capacity to undertake the activity of social interaction.
Section 24(1)(c)(iii) – Learning
The Applying Guideline describes ‘Learning’ as:
how you learn, understand and remember new things, and practise and use new skills.
The Applicant confirmed during his evidence that he does not experience any impairment in this respect.[213] There is no evidence before the Tribunal to indicate a reduction in his capacity to undertake the activity of learning.[214]
[213] Transcript 23.
[214] Exhibit R2 ST2 157, report of Occupational Therapist Deirdre Richards dated 20 July 2022.
Section 24(1)(c)(iv) – Mobility
The Applying Guideline describes ‘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.
The Respondent accepts that the Applicant experiences a reduced capacity by reason of his physical impairments. It takes him additional time to walk from place to place and get about his home and in public. The Respondent seems to accept that the Applicant requires resorting to a walking stick or aid such as his four-wheeled walker. However, it contends that he can mobilise at home and in the community with those two aids.[215]
[215] Respondent’s Closing Submissions dated 9 May 2023 at [23].
In the absence of more recent medical evidence and functional capacity assessments, I am left in doubt as to the degree of the Applicant’s current mobility and his dependence on aids.
The evidence of the Applicant’s ability to mobilise is inconsistent. Indoors, it appears that he can get about without assistance, or by supporting himself on furniture or with his single-point walking stick. Outdoors, Ms Richards observed and measured him to be able to use his stick to travel some 260 metres over an uneven surface, with a five-minute standing rest halfway, on what he described to her as an ‘average’ day.[216] The Applicant testified that now he was only able to walk some 20-30 metres with the aid of his stick.[217]
[216] Transcript 45; Exhibit R2 ST2 144, report of Occupational Therapist Deirdre Richards dated 20 July 2022.
[217] Transcript 24.
First, where there is conflict, I prefer to rely upon the measurements and information recorded by Ms Richards for the purposes of preparing her expert report and opinion, rather than the Applicant’s recollections and estimations at the hearing.
Second, the assessment of the Applicant’s functional capacity must be more holistic than relying on what he regards as his ‘good’ or ‘bad’ days. This is reflected in the Applying Guideline, which observes that ‘Your needs might go up and down each day or each month. Progressive Multiple Sclerosis (MS) can be a good example of this. We consider your ability over time, taking into account your ups and downs’.[218] In any case, what might constitute ‘good’ and ‘bad’ days is problematic. Ms Richards noted the Applicant telling her that his neck pain fluctuated, not his ability to walk, although I accept that pain can make the task unpleasant and more difficult, and limit endurance.
[218] Applying Guideline 9; paragraph 101 supra.
Otherwise, the most recent available medical evidence was to the effect that his condition and symptoms were stable and would not alter.[219] It may well be that his condition is no longer stable, but his own evidence was that it is just ‘gradually’ getting worse. That militates against a decline from being able to walk for 130 metres with the aid of a single-point stick to only being able to manage below a quarter of that distance ten months later. It is also inconsistent with the available assessments of functional capacity; there was no evidence of such a marked decline between the assessment made by Ms Hanrahan in mid-2021 and that by Ms Richards a year later in 2022. Ms Richards was not able to offer an explanation why his mobility would have declined so remarkably in the ten months since her assessment.
[219] Exhibit R2 ST4 223-226, Reports of Rheumatologist Dr Kathryn Over dated 13 January 2021 to 16 November 2022.
I accept that the Applicant has difficulty with mobility. His mobility is improved and extended, and difficulties eased, with his walker and his mobility scooter. His impairments prevent him from driving a vehicle, but that is only one aspect of mobility. However, he can mobilise within his home to the extent described and, with only a single-point stick to steady him, able to navigate outside and in the community to a reasonable extent. The Applicant’s walking stick is an item that is readily available, unsophisticated, simple to use, and inexpensive. It is a single-point stick, which suggests that he does not require the level of support and stability a four-point walking stick would provide. In my assessment, the Applicant’s reliance upon his walking stick does not deem him to have a substantially reduced functional capacity with respect to mobility.
I accept that he needs to keep his back straightened, is unable to bend or look up and down, and his ability to look to the side is impaired. This prevents, or makes it more difficult, for him to rise from chairs of normal height. It prevents him reaching down to pick things up off the floor and may be inhibiting his ability to squat without the support of a walking stick, and his ability to kneel.
It means that he must move more slowly and with greater caution. However, he can ambulate some reasonable distance; was able to mobilise over uneven ground when on his rural property at Benalla; can move into and out of his home across a step; can move within his home without the aid of a stick, albeit supporting himself on furniture and walls from time to time; can confidently transfer into and out of his bed; and can get onto and off chairs if of a suitable height or by utilising some support.
There is also the question of the Applicant’s weight. In giving his evidence, the Applicant complained that Ms Richards in her 2022 report had claimed that his weight ‘was causing all [his] problems’.[220] She does not. She does, however, draw attention to the question of the degree to which the Applicant’s weight and body dimensions contribute to his functional limitations.
[220] Transcript 9.
I am satisfied that the Applicant’s obesity contributes to his difficulty in movement and mobility and aggravates the difficulties he is experiencing from his AS, his lowered tolerance to bodily activity, the stresses upon to his body, and his resultant pain and fatigue. Apart from some unspecified level of regard to portion sizes, he seems not to have engaged in a program of weight loss, or cardiovascular and aerobic exercise.
It is reasonable to infer that the Applicant’s tolerance and endurance of physical activity, and his ability to undertake certain physical tasks, will be improved should he reduce his weight, and consequent girth size, from the 140-150kg he currently carries. Suitable cardiovascular and aerobic programs also have the potential of assisting his range of movement and improving his fitness and endurance.
I am not satisfied on the available evidence that his functional capacity for mobility for the ordinary activities of daily living has been substantially reduced by his AS impairment. I am also not satisfied that, to the extent that his functional limitations are contributed to by his weight, they are permanent.
Section 24(1)(c)(v) – Self-care
The Applying Guideline describes ‘Self-care’ as:
personal care, hygiene, grooming, eating and drinking, and health. We consider how you get dressed, shower or bathe, eat or go to the toilet.
The evidence is that the Applicant is independently able – albeit perhaps with difficulty, additional time, pacing, and modified strategies – to eat and drink; groom himself; clean his teeth; put his laundry into and remove it from a washing machine; hang smaller items of laundry on a clothes airer; prepare and cook meals; wash and put away dishes; do light cleaning; and toilet and clean himself.
The Applicant cannot drink from a can; shave himself under his chin; vacuum and mop floors or do other heavy cleaning; put on socks without a sock donner; put on shoes without a shoehorn, and dress shoes without someone’s assistance; wash his lower limbs without a long-handled washing device; hang out larger items of laundry on an overhead line; cut his toenails; or do any gardening or garden maintenance. For these he either draws on the use of equipment or relies on the assistance of another. To the extent that the items of equipment are assistive technology, they are not disability specific and can be considered ‘commonly used items’.
Andrea provided a level of informal support with respect to housekeeping, personal care, and transport when they were housemates in Benalla. Since the move to live alone in his unit in Tongala, that level of informal support has declined. However, he still receives assistance from time-to-time from her or his son to put on dress shoes, to cut his toenails, to wash his feet, for grocery shopping, and for transport to appointments with specialists and to social occasions too far for him to travel to himself.
The Respondent raises the question of the scope of what comes within the activity of ‘self-care’: specifically, whether it includes household chores such as hanging out laundry, vacuuming, mopping floors, and garden maintenance.[221] It appears to me that the focus of the Applying Guideline is upon an applicant’s ability to carry out personal maintenance and hygiene, rather than maintenance and the hygiene of their environment, which may depend more on a person’s mobility. However, for the purposes of this decision, I am prepared to accept that ‘hygiene’ in the Applying Guideline includes laundry and domestic cleaning, given that the Applying Guideline informs applicants that in assessing functional capacity ‘We consider how you’re involved in 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’ [emphasis added]. I observe that it is the Respondent’s prerogative to issue operational guidelines and update them, as it sees fit. It may be helpful if the Respondent Agency were to reveal its approach to assessing self-care in its Applying Guideline.
[221] Respondent’s Closing Submissions dated 9 May 2023 at [32].
That aside, the Respondent submits that the Applicant’s reduced functional capacity to perform these tasks:
(a)does not result from impairments attributable to his AS, rather than his weight and girth; and
(b)do not amount to a substantial reduction in functional capacity.
As to the first proposition, I accept that the Applicant has a restricted range of movement of his neck and spine, and restricted ability to bend, twist, reach below knee height, carry and lift, push and pull and kneel and squat. I accept that this has impaired his ability to perform the identified tasks. However, in my estimation his reduced capacity is at least in part a consequence of the weight he is carrying and his girth, which place additional stress upon his body, limit his range of movement, and contribute to his pain and fatigue following exertion. I consider it significant that, apart from her observations on the issue of the Applicant’s weight, Ms Richards thought that the Applicant would reasonably be assisted by a bariatric shower chair and bariatric raised toilet seat. It is reasonable to infer that his ability to ambulate and perform the tasks necessary for self-care would be easier, and his endurance and tolerance greater, should he lose weight. In that respect, I am not satisfied that the Applicant’s impairment of his range of movement, to the extent it is attributable to his weight, is permanent.
In my assessment, the Applicant has not established that he has a substantially reduced functional capacity in respect of his personal hygiene. Except for being unable to wash his lower limbs without the use of a long-handled washer, wash his feet, and cut his toenails, he can effectively undertake the bulk of the range of tasks comprising the activity of self-care. There is no significant ‘gap’ in his ability to care for himself, although he may require assistance in some tasks from time-to-time or, in the case of washing, resort to a commonly used bathroom item.[222]
[222] Madelaine (n 7) at [121].
While I accept that he requires the assistance of others to perform some tasks involved in these chores, I am not satisfied that his capacity to undertake the activity of self-care has been substantially reduced.
Section 24(1)(c)(vi) – Self-management
The Applying Guideline describes ‘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.
The evidence did not reveal any mental or cognitive issues, and the Applicant did not point to any impairment in respect of self-management; on the contrary, the evidence supports him having normal insight, and an ability to make appropriate decisions. He was confident that he ‘could look after’ himself.[223]
[223] Exhibit R2 ST2 157-158, report of Occupational Therapist Deirdre Richards dated 20 July 2022; Transcript 23.
I am satisfied that the Applicant suffers no impairment with respect to self-management.
Section 24(1)(e) – likely to require support under the National Disability Insurance Scheme for the person’s lifetime
The focus of section 24(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.[224]
[224] Foster (n 189) at [93].
The nature of the supports that the Applicant was hoping for from the Scheme should he be a participant was not explored in detail. I infer from his evidence that he would be seeking some bathroom modifications to enable him to use a bariatric shower stool; installation of a raised toilet pedestal; installation of ramps at the front and rear doors of his unit; provision of handrails in some places; some items of equipment; and perhaps assistance to wash his feet, cut his toenails, and to perform some domestic tasks such as cleaning, doing laundry, and shopping.
The Applicant has obtained some items under the SWEP. He turned 65 years-of-age on 14 December 2021. As at the date of the hearing he had not explored the availability of other equipment under the SWEP, or what may be available from My Aged Care. There was no evidence as to what services might be available from his local government.
The Respondent made no submission in respect of section 24(1)(e) other than the Applicant is not likely to require the support of the Scheme for his lifetime as he did not satisfy the disability requirements under section 24(1)(b) and section 24(1)(c).
Given my findings concerning the Applicant’s functional capacity, it is not necessary for me to consider section 24(1)(e) and whether he is likely to require support under the NDIS for his lifetime.
CONCLUSION
Having regard to the above, I am not satisfied that the Applicant’s impairments that are attributable to his AS result in a substantially reduced functional capacity to undertake any of the activities specified in section 24(1)(c) of the NDIS Act.
Accordingly, I affirm the decision under review.

I certify that the preceding 158 (one hundred and fifty-eight) paragraphs are a true copy of the reasons for the decision herein of Administrative Appeals Tribunal

..................................[Sgd].......................................
Associate
Dated: 26 February 2024

Date(s) of hearing: 16-17 May 2023

Applicant: In person

Counsel for the Respondent: Ms Sarah Thompson

Solicitors for the Respondent: HWL Ebsworth

Date(s) of hearing:	16-17 May 2023
Applicant:	In person
Counsel for the Respondent:	Ms Sarah Thompson
Solicitors for the Respondent:	HWL Ebsworth