Croker and National Disability Insurance Agency

[2021] AATA 3654

Croker and National Disability Insurance Agency [2021] AATA 3654 (14 October 2021)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2019/6200

Re:Clayton Croker

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Emeritus Professor P A Fairall, Senior Member

Date:14 October 2021

Place:Sydney

The decision under review is affirmed.

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

Emeritus Professor P A Fairall, Senior Member

CATCHWORDS

NATIONAL DISABILITY INSURANCE SCHEME – access – physical impairment relating to hands and wrists – whether the applicant meets the disability requirements – permanency – substantial reduction in functional capacity – whether the applicant needs the NDIS for life – early intervention requirements – decision under review affirmed

LEGISLATION

National Disability Insurance Scheme Act 2013 (Cth)

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

CASES

Joufian and National Disability Insurance Agency [2020] AATA 1883

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634

Schwass and National Disability Insurance Agency [2019] AATA 28

SECONDARY MATERIALS

Operational Guideline – Access to the NDIS

REASONS FOR DECISION

Emeritus Professor P A Fairall, Senior Member

14 October 2021

INTRODUCTION

1. The National Disability Insurance Agency (‘the Agency’) is responsible for managing the National Disability Insurance Scheme (‘the NDIS’) established under the National Disability Insurance Scheme Act 2013 (Cth) (‘the NDIS Act’). Access to the NDIS requires that a candidate satisfies five disability access requirements.[1] In 2019, the applicant applied for access to the scheme. On 16 September 2019, an internal review officer (‘IRO’) affirmed the Agency’s initial rejecting of his application. The IRO found that he satisfied only three of the five disability requirements required under subsection 24(1) of the NDIS Act. The applicant therefore applied to the Administrative Appeals Tribunal (‘the Tribunal’) for review of the IRO decision.[2]

   [1] NDIS Act, section 24.

   [2] Application filed 30 September 2019: T1/1-5.

2. His application for review was heard on 2 August 2021. The applicant was self-represented and gave oral evidence. The respondent was represented by Mr Nicholas Swan of counsel, assisted by Ms Sarah Wise from the Agency. The Tribunal was provided with an extensive file of medical reports, stretching back to 1987.[3]

   [3] See Appendix A.

3. The applicant hopes to secure some modest domestic support under the scheme, to assist with domestic chores such as vacuuming and dusting, because of a chronic pain condition in his hands and wrists. Some of his main goals were to establish some independence, and cardiovascular fitness.

4. His general practitioner, Dr Paula Knight, completed the NDIS access form.[4] She also completed a Medical Report relating to support required for study at TAFE.[5]  There is also a referral which sets out his medical history.[6]

   [4] Dated 27 February 2019: T7/24-30.

   [5] Dated 27 February 2019: T8/32.

   [6] Dated 17 January 2019: T6/21.

5. In the Access Request – Supporting Evidence form, Dr Knight stated that his primary impairment was “repetitive strain injury, hands and wrists”. She said that he had suffered the impairment since the 1990s. She said that it was likely to be life-long. He had tried pain relief, anti-inflammatories, physiotherapy, and splints for wrists. She said that they improved symptoms but did not cure his condition. She answered the question whether he had another impairment that had a significant impact in the negative.[7]  She did not think there were any early intervention supports that would have any benefit.[8]

   [7] T7/26.

   [8] T7/27.

6. In terms of the functional impact of his impairment, she said that he did not need any assistance for mobility, communication, social interaction, learning, or self-care. With regard to learning, Dr Knight noted he was “[h]aving assistance from TAFE NSW as struggles to learn new practical hand based skills as exacerbates symptoms”. She said that he needed assistance with self-management. She said that he was struggling with cleaning jobs “as greatly exacerbates symptoms”.[9]

   [9] T7/28-30.

7. Ms Jane McDonald is an occupational therapist employed by the Sydney Local Health District, and working in the area of Chronic Pain Management at Royal Prince Alfred Hospital (‘RPAH’). She provided a written report and gave oral evidence in support of the applicant’s claim.[10] She said that when he uses his arms in everyday activities he is significantly impaired. She said that he was able to walk, and to use his mind, but the use of his arms is a significant impairment in his life.[11]

   [10] TB/182-185.

   [11] Transcript, 2 August 2021, 36.

8. The respondent concedes that the applicant has a disability,[12] attributable to a physical impairment which affects his capacity for social or economic participation.[13] 

   [12] NDIS Act, paragraph 24(1)(a); Transcript, 2 August 2021, p 9.

   [13] NDIS Act, paragraph 24(1)(d); Respondent’s Statement of Facts, Issues and Contention (RSFIC), para [27].

9. The respondent does not, however, concede that the impairment is, or is likely to be, permanent,[14] or that it is results in a substantially reduced functional capacity,[15] or that he is likely to require support under the scheme for his lifetime.[16] The respondent also contends that it is not appropriate for the applicant to be approved for access under the early intervention provisions of the NDIS Act.[17]

   [14] NDIS Act, paragraph 24(1)(b); RSFIC, paragraphs [18]-[21].

   [15] NDIS Act, paragraph 24(1)(c); RSFIC, paragraphs [22]-[26].

   [16] NDIS Act, paragraph 24(1)(e); RSFIC, paragraph [28].

   [17] RSFIC, paragraph [32].

10. The question for the Tribunal is therefore whether the applicant satisfies each of the disability requirements under subsection 24(1) of the NDIS Act. The volume of medical information provided to the Tribunal and the idiopathic nature of his condition has complicated the task somewhat.

11. I have decided that the applicant does not satisfy the scheme’s access requirements, and is therefore not entitled to the support requested. I therefore affirm the decision under review. The reasons for my decision are set out below.

    LEGISLATION

12. The objects of the NDIS Act are set out in subsection 3(1) of the NDIS Act. They include giving effect to Australia's obligations under various international conventions;[18] supporting the independence and social and economic participation of people with disability; and providing reasonable and necessary supports, including early intervention supports, for participants in the NDIS.

    [18] The Convention on the Rights of Persons with Disabilities; the International Covenant on Civil and Political Rights;  the International Covenant on Economic, Social and Cultural Rights; the Convention on the Rights of the Child;  the Convention on the Elimination of All Forms of Discrimination Against Women; the International Convention on the Elimination of All Forms of Racial Discrimination. The text of a Convention or Covenant in the Australian Treaty Series is accessible through the Australian Treaties Library on the website (>

    In giving effect to the objects of the NDIS Act, regard is to be had to the need to ensure the financial sustainability of the NDIS; the broad context of disability reform provided for by government policy and the Carer Recognition Act 2010 (Cth); 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 NDIS.

13. Subsection 209(1) of the NDIS Act confers a rule-making power on the Minister, which has been exercised to make the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (‘the Participant Rules’).

14. The CEO of the Agency has also provided Operational Guidelines (‘the Guidelines’) to assist staff to make decisions in accordance with the NDIS Act.[19] The Guidelines do not form part of the legislative framework, but should be applied by decision-makers unless there are sound reasons not to do so.[20]

    [19]T15/91; National Disability Insurance Agency, Access to the NDIS Operational Guideline, < Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634, 645.

THE STATUTORY PROVISIONS

Subsection 21(1)(c) of the NDIS Act relevantly provides that a person meets the access criteria if…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 relevantly provides:

(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.

APPLYING THE DISABILITY REQUIREMENTS

Does the applicant have a disability attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments, or attributable to a psychiatric condition, as required by paragraph 24(1)(a)?

The applicant gave oral evidence that he suffered a repetitive strain injury (‘RSI’) sometime around 1987, while working as a butcher. He said that he receives “disability”, but the Tribunal was not provided with any records from the Department of Social Services relating to a disability support pension. In oral and written evidence, the applicant also related his impairment to heart illness, myocardial infarction, tinnitus, depression, asthenia, deteriorations in hearing and sight, and general ageing.[21] 

[21] Applicant’s Written Submissions, 2 July 2021; Applicant’s Statement of Lived Experience, 13 October 2020; Transcript, 2 August 2021, 15

He told the Tribunal that his impairment consists of bilateral hand pain (tingling, a sensation of heat), which can spread to other parts of the body, making it difficult for him to handle or lift objects. He also claims to suffer from lethargy.

Minor housekeeping chores such as dusting or vacuuming had to be done in short bursts. He said that he would vacuum for 30 seconds twice a day.[22] He has a mini gym at home, but found that even a small amount of exercise required a recovery sleep time of two to three hours.[23]

[22] Transcript, 2 August 2021, 18.

[23] Transcript, 2 August 2021, 15.

The Tribunal has been provided with an extensive file of medical reports, stretching back to 1987. Nerve conduction studies conducted when he first experienced symptoms were normal with no indication of carpel tunnel syndrome.[24] One of his many treating doctors described the applicant in 1997 as “a difficult diagnostic problem that remains unresolved after seven years of multiple assessments and investigations”,[25] adding: “I am unable to find any subjective signs that point to an underlying organic diagnosis.”[26] He was assessed by a specialist immunologist that year, who reported that he had “significant symptoms with minimal clinical findings” and that a “previous review in 1994 by Neurology with nerve conduction studies was normal, with no indication of carpal tunnel syndrome”.[27] A 2018 report from the Sydney Hospital & Sydney Eye Hospital refers to a 27 year history of bilateral hand pain.[28]

[24] T4/17-19.

[25] TB/272.

[26] TB/273.

[27] Medical report, 15 May 1997, St Vincent’s Hospital Sydney; TB/271.

[28] Report dated 12 July 2018: T4/17-19.

In terms of his mental health, he was treated for anxiety neurosis and somatisation disorder in 2004.[29] In 2005, a consultant psychiatrist, Dr Michael Prior, was asked to provide a psychiatric assessment for Health Services Australia.[30] Dr Prior noted that the applicant had last seen a psychiatrist in 1993,[31] and concluded his report by stating:

[29] Medical referral: 19 February 2004; TB/267-8.

[30] Medical Report, 1 August 2005; TB/293.

[31] TB/296. He saw Dr Fisher on three occasions.

2. DIAGNOSIS AND SEVERITY

He has no current psychiatric diagnosis. He does not fulfil criteria currently for an adjustment disorder or major depression or any of the major anxiety disorders. His main complaint is his 'RSI’. This RSI might represent an undifferentiated somatoform disorder in the absence of organic pathology or a physiological/pathological explanation for his physical symptoms. I am unable to clarify this as I have had no access to background information.

3. OPINION ON OPTIMAL TREATMENT

If he has a somatoform disorder, then this tends to be notoriously difficult to treat particularly if protracted and chronic. In some cases, cognitive behavioural strategies can be effective, but this is not universally so.

4. PROGNOSIS

The prognosis depends upon the diagnosis. If he does have an undifferentiated somatoform disorder of 15 years+ duration, then the prognosis appears guarded.

5. WORK CAPACITY

He has no psychiatric, psychological or cognitive incapacity to work or study. Any incapacity would be, in his eyes, from his 'RSI’.

6. ADDITIONAL COMMENTS

There was no chance to peruse and study background file material prior to assessment of him and the dictation of my report as above. However, subsequently I have been able to view and study the background documentation.

None of the material in the background documentation changes my opinion as stated above.

[Here referred to various medical reports]

Rather than him having a somatoform pain disorder which is an Interchangeable term for a persisting pain disorder (DSM-IV R) or chronic pain disorder, I feel that his diagnosis is more akin to an undifferentiated somatoform disorder in that his pain is not constant and that other symptoms, particularly the hotness of his hands and the dropping of things, tend to be the more distressing and prominent symptoms. Both somatoform pain disorder and undifferentiated somatoform disorder are classified under the rubric of somatoform disorders in DSM-IV R. Irrespective of the diagnosis, the prognoses and treatment options are similar. [32]

[32] TB/300-302.

I referred in the Introduction to the medical report of the applicant’s general practitioner, Dr Knight. Her report proceeds on the basis that he has a disability attributable to a physical impairment. I also note the report provided by the occupational therapist, Ms McDonald, in relation to functional capacity, along with her oral testimony, which is considered in more detail below.[33]

[33] TB/182-185.

In 2020, Dr Knight referred him for a number of tests. On 26 March 2020, a hand surgery registrar, reported that he had been “extensively investigated with no organic cause identified” and that the “management of his symptoms through the complex pain clinic would be the most appropriate course of action”.[34] On 6 July 2020, he attended the Institute of Rheumatology and Orthopaedics.[35] The medical notes state:

[N]eatly dressed, appears stated age. good eye contact and rapport via Telehealth, nil psychomotor agitation or retardation, speech normal rate and flow, logical and coherent thought form, nil depressive or psychotic content, concerned with facilitating referral to ENT re: tinnitus and with securing NDIS support, nil perceptual disturbance, minimal insight regarding functional deficit associated with pain condition, oriented Via TeleHealth, normal appearance of hands with minimal wasting normal ROM fingers and wrists.[36]

[34] TB/198.

[35] TB/214-222.

[36] TB/216.

Dr Knight referred him to the Pain Management clinic at the RPAH noting that:

[H]e was under the care of Sydney hand clinic for many years without however having a formal diagnosis for the cause of his pain. They have since discharged him as they feel there is nothing further they can add and feel he needs the input of the chronic pain team. Clayton’s pain limits his day to carry out daily task such as cleaning and cooking. He is unable to work due to it. He is actively undertaking uni course a limited amount so his proactive in trying to do what he can. He does resort to alcohol to help with the pain rather than pain relief which I have advised against. I have concerns over his mental health and alcohol so I have referred him to a psychologist as well.

I would be very grateful for your review. [37]

[37] TB/196.

The Report prepared by the clinic dated 13 July 2020 is somewhat inconclusive.[38] The author, Dr Jennifer Long, Trainee Specialist, notes the applicant’s long history of pain, and the lack of any diagnosis. There is a reference to his experience of “heat or burning sensation[s]”, localised to his hands, 80% of the time. There is a reference to him seeing a psychologist for six sessions in February to March 2020 (who diagnosed mild depressive illness), having hypersomnia (sometimes sleeping 20 hours), but with minimal anxiety symptoms and no social anxiety or agoraphobia. Most of the Report relates to treatments of the past, although there is a reference to new onset of visual disturbance and gastro-intestinal (‘GI’) symptoms. The applicant was said to be ambivalent but willing to engage with non-pharmacological strategies for pain-management.

[38] The Report is headed ‘Final Report’: TB 170-172.

On 27 July 2020, the applicant attended the RPAH again. The clinical notes state: “Transient episodes of visual disturbance. Longstanding bilateral neuropathic pain of unclear aetiology”.[39] On 17 August 2020, he attended the Institute of Rheumatology and Orthopaedics.[40]

[39] TB/212.

[40] TB/207-8.

Dr Knight was also concerned about his mental health and provided a mental health plan.[41] He had some sessions with a psychologist.[42] The sessions were aimed to address mood changes relating to his pain, and to reduce his alcohol use.[43] His mental health plan was reviewed on 6 October 2020.[44] There is some reference to mild depression in the reports, but Dr Knight was of the view that his depression was not severe.[45]

[41] TB/181.

[42] Ms Lyn Capon: TB/289.

[43] TB/181.

[44] TB/276.

[45] TB/279.

Consideration

Despite numerous tests and various treatments over the past almost three decades, there is no clinical diagnosis or explanation for the applicant’s reported symptoms. No organic cause has been found.[46] Some physicians refer to the possibility that his pain symptoms are the result of an underlying mental disorder, but at this stage, psychiatric hypotheses are tentative and inconclusive. None of the treating physicians have suggested that the applicant is malingering or lying about his symptoms.

[46] NSW Health Progress Clinical Notes, 19/12/2019: TB/250-251.

The Tribunal is required to determine whether, as a matter of fact, and on the available evidence, the applicant has a disability attributable to an impairment.[47] 

[47] T15/103.

Paragraph 8.1 of the Guidelines state:

For the purposes of becoming a participant in the NDIS the focus of 'disability' is on the reduction or loss of an ability to perform an activity which results from an impairment. The term 'impairment' commonly refers to a loss of, or damage to, a physical, sensory or mental function.

The narrower definition of 'disability' employed by the NDIS seeks to target those people with disability who have a significant impairment to their functional capacity. This functional definition of disability focuses on outcomes for people with disability that are in the most need (Explanatory Statement to the Becoming a Participant Rules.).

The NDIA must be satisfied that a person has a disability that is attributable to one or more impairments which results in a reduction or loss of an ability to perform certain activities.

It is important to note that a person may have a disability without meeting all, or even any, of the disability requirements. For example, a person may have a temporary disability, or a permanent disability that has a minimal effect on functioning.

For the purpose of determining access, the NDIS Act is not concerned with what caused a person's disability. All people with disabilities who meet the access criteria can be participants, whether the disability came about through birth, disease, injury or accident (see Mulligan and NDIA [2015] FCA 44 at [16]). [48]

[48] T15/102-103.

1. The last point is important in the present context. The scheme does not require a conclusive medical diagnosis as a precondition for granting access, although a clear medical diagnosis may more readily allow a decision-maker to determine whether a disability is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments, or to a psychiatric condition, or perhaps, both.

2. The respondent accepts that the applicant suffers from a strain injury to both hands and wrists, based on Dr Knight’s medical report, and her supporting access request. The respondent accepts that this disability is attributable to a physical impairment.[49]

   [49] T7/26.

3. In light of Dr Knight’s medical report (and the oral evidence and written report of Ms McDonald), I am satisfied that the applicant has a disability relating to the use of his hands and wrists. However, the extent to which his disability is attributable to a physical impairment or psychiatric condition, or to both, is unclear on the medical evidence. That it is related to one or the other is not in doubt.

   Is the impairment ‘permanent’, as required by paragraph 24(1)(b)?

4. Access to the scheme depends upon a disability being attributable to one or more impairments. Regardless of the specific basis for attribution, the impairment must be permanent.

5. The concept of permanence is governed by the Participant Rules.[50] Part 5 provides:

   [50] T14/48.

   When is an impairment permanent or likely to be permanent for the disability requirements?

   5.4      An impairment is, or is likely to be, permanent (see paragraph 5.1(b)) only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.

   5.5      An impairment may be permanent notwithstanding that the severity of its impact on the functional capacity of the person may fluctuate or there are prospects that the severity of the impact of the impairment on the person's functional capacity, including their psychosocial functioning, may improve.

   5.6      An impairment may require medical treatment and review before a determination can be made about whether the impairment is permanent or likely to be permanent. The impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated (even though the impairment may continue to be treated and reviewed after this has been demonstrated).

   5.7      If an impairment is of a degenerative nature, the impairment is, or is likely to be, permanent if medical or other treatment would not, or would be unlikely to, improve the condition.[51]

   [51] T14/59-60.

6. The original decision-maker found that the impairment was not permanent,[52] although the IRO was satisfied that the impairment was permanent.[53]

   [52] T11/37.

   [53] T2/12.

7. The question of permanence is difficult in this case because the pain condition is idiopathic. It is of unknown or unascertained origin. It also appears to fluctuate in intensity. A further complication, as noted in the previous section, is that the impairment may be attributable to either a physical impairment or a psychiatric condition.

8. The respondent accepts that the applicant has suffered from bilateral hand disability for the past 27 years, but contends that it is not a permanent condition, as defined in paragraph 5.4, because the applicant has failed to participate in relevant treatment programs which might offer some relief.[54]

   [54] See Schwass and National Disability Insurance Agency [2019] AATA 28 at [43]-[49]; Joufian and National Disability Insurance Agency [2020] AATA 1883 at [44]; RSFIC, paragraph [18].

9. It may be thought somewhat incongruous that an impairment that has lasted some 27 years is not permanent or likely to be permanent. (Where the cause of pain is unascertained, it is perhaps more appropriate to ask whether his impairment is likely to be permanent, rather than whether it is permanent.)

10. The applicant gave evidence that he had tried various pharmaceutical products, as prescribed, but had little success with any of them. He said that he had some success with Mobic which interferes with pain sensors from hand to brain, and with an anti-inflammatory called Meloxicam which applies some analgesia “but unfortunately it…was…causing more other issues than its inflammatory benefits were giving”. He said that after talking to his doctor he stopped taking various medications because they did not work. He did not like to use anti-inflammatory medications prescribed for pain relief due to his concerns about side-effects. He said he had not really explored the side effects with his general practitioner.[55] He did not take medication specifically for pain control, because he suffered from bouts of diverticulitis. He did, however, use analgesics when he knew he would be under stress, such as when he moved house. He said that, on a day to day level, he tried to keep the pain to a minimum and avoid the use, or the need to use them.[56]

    [55] Transcript, 2 August 2021, 30.

    [56] Transcript, 2 August 2021, 31.

11. He denied that he was reluctant to take medications. He said that he had tried many “but the success of their use has been minimal”.

12. He had some success with splints over the years but discontinued wearing them because they slowed him down.[57] He had little time for the hand exercises, or forgot to do them because he was doing chores. [58] He stopped doing the hand exercises because they were monotonous and boring.[59]

    [57] According to various medical reports in 1994, 2000, 2004, 2006 and 2008: Transcript, 2 August 2021, 24, 27 and 45.

    [58] Transcript, 2 August 2021, 22.

    [59] Transcript, 2 August 2021, 24.

13. There was an extensive discussion about his use of alcohol, which is referenced in many of the reports. I do not propose to explore that issue in any detail, other than to say that the applicant admitted that he was very alcohol dependent until last year but was no longer using alcohol for pain relief, and that his drinking was under control. He smoked the occasional cigar and had a few drinks a couple of times a week.

    Consideration

14. Various pharmaceutical, mechanical (splints) or physical (physiotherapy) remedies have been tried with limited success. None of the prescribed treatments has been entirely successful, whether the use of splints, the taking of analgesics, or hand exercises.

15. The word ‘remedy’ in Rule 5.4 is somewhat ambiguous. It may refer to some amelioration or mitigation of the impairment, or to something that neutralises or removes it altogether. Some of the remedies have mitigated the impairment slightly, but none have provided a substantial improvement, or removed the impairment.

16. I accept, in terms of rule 5.4, that there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.

17. I also note Rule 5.6, which states that the impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated.

18. It is unlikely that further tests will provide any sense of the likely permanence of his impairment, considered purely as a physical impairment.

19. The position is less clear with regard to potential psychiatric causes. As noted above, the extent to which his disability is attributable to a physical impairment or psychiatric condition is unclear on the medical evidence. The most recent comprehensive psychiatric assessment appears to have been 16 years ago by the consultant psychiatrist Dr Prior. His conclusion was that he might have an undifferentiated somatoform disorder.

20. It may well be that the applicant suffers from an underlying psychiatric condition to which his impairment and his disability is attributable. However, there is no clear diagnosis supporting a psychiatric condition. Dr Knight has some concern about his mental health, but I do not think that it is appropriate to require further assessment in order to attach a diagnostic label - so as to determine whether the condition is likely to create a permanent impairment. Even assuming that his impairment is attributable, wholly or in part, to a recognised but untreated psychiatric condition (such as undifferentiated somatoform disorder), I think that, after such a protracted period, it would be justified to find that his impairment is likely to be permanent. As noted by Dr Prior, such disorders are very difficult to treat, and therefore, if “he does have an undifferentiated somatoform disorder of 15 years+ duration, then the prognosis appears guarded.”[60] I am satisfied that the impairment is likely to be permanent, whether it is regarded as a physical impairment, or attributable to a psychiatric condition.

    [60] Dr Michael Prior, Medical Report, 1 August 2005: TB/301.

    Is there a substantially reduced functional capacity, as required by paragraph 24(1)(c)?

21. Part 5 of the Participant Rules states:

    5.8 An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities—communication, social interaction, learning, mobility, self-care, self-management (see paragraph 5.1(c))—if its result is that:

    (a) the person is unable to participate effectively or completely in the activity, or to perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications; or

    (b) the person usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in the activity or to perform tasks or actions required to undertake or participate in the activity; or

    (c) the person is unable to participate in the activity or to perform tasks or actions required to undertake or participate in the activity, even with assistive technology, equipment, home modifications or assistance from another person.

22. Paragraph 8.3 of the Guidelines state:

    8.3 Substantially reduced functional capacity to undertake relevant activities

    The NDIA must be satisfied that an impairment results in substantially reduced functional capacity of a prospective participant to undertake one or more relevant activities (section 24(1)(c)).

    The NDIA is required to consider whether any permanent impairment, or permanent impairments when considered together, result in substantially reduced functional capacity to undertake one or more of the following activities:

    oCommunication: includes being understood in spoken, written or sign language, understanding others and expressing needs and wants by gesture, speech or context appropriate to age;

    oSocial interaction: includes making and keeping friends (or playing with other children), interacting with the community, behaving within limits accepted by others, coping with feelings and emotions in a social context;

    oLearning: includes understanding and remembering information, learning new things, practicing and using new skills;

    oMobility: this means the ability of a person to move around the home (crawling/walking) to undertake ordinary activities of daily living, getting in and out of bed or a chair, leaving the home, moving about in the community and performing other tasks requiring the use of limbs;

    oSelf-care: means activities related to personal case, hygiene, grooming and feeding oneself, including showering, bathing, dressing, eating, toileting, grooming, caring for own health care needs; or

    oSelf-management: means the cognitive capacity to organise one's life, to plan and make decisions, and to take responsibility for oneself, including completing daily tasks, making decisions, problem solving and managing finances.

23. Paragraph 8.3.1 of the Guidelines states:

    A person will be considered to be unable to participate effectively or completely in an activity if they cannot safely complete one or more of the tasks required to participate in an acceptable period of time. Undertaking a task more slowly or differently to others will not necessarily mean a person cannot participate effectively or completely in an activity.

    When considering whether a fluctuating or episodic impairment results in substantially reduced functional capacity to undertake relevant activities, the NDIA will consider the impact on the person's ability to function in the periods between acute episodes.[61]

    [61] T15/105.

    Ms McDonald’s evidence

24. Ms McDonald described his impairment as follows, in her Report to the Tribunal dated 11 February 2021:

    Joint pain especially in hands. Hands get swollen and puffy to the point his ring and watch become tight. He then gets cramping pain in his hands with further activity which will escalate to sharp stabbing pain if he continues with the activity. When relaxing or attempting to sleep he then gets burning sensation in his hands which then affects his sleep and then his function on the next day.[62]

    [62] TB/182.

25. She described his aspirations as follows. She said that he would like to have assistance to complete his domestic activities at home in order to remain living safely at home; and that he would like support to increase his access to the community; to increase his social participation and to increase involvement in art work and university studies; and be more involved in activities outside the home.

26. She said that he had no issues with mobility or communication, or with learning or self-care. He had replaced buttons with cuff-links.

27. In terms of social interactions, he needed ongoing support from a psychologist to manage the emotional demands of living with a fluctuating disability that can vary from day to day. 

28. In terms of self-management, he needed assistance with domestic chores – specifically laundry, food preparation, changing linen on bed, mopping, vacuuming, and shopping, as well as assistance with setting up easel so that he could paint, and ensuring that the equipment was set up and safe.

29. She concluded that the applicant:

    has a disability that is likely to permanently and substantially reduce his functional capacity in a number of areas including social or/and economic participation. [The applicant] is likely to permanently require assistance from the NDIS to effectively manage the impacts of his condition.

    Based on [the applicant’s] needs and aforementioned goals and aspirations, it is my recommendation that the following services, supports, modification and/or equipment are required to support him to maintain functional capacity and manage with the impacts of his permanent disability:

    He requires domestic assistance to enable him to complete his chores with decreased pain. This will enable him to continue to pursue his other activities. He would also use the domestic assistance to set up safely his art equipment.[63]

    [63] TB/182-185.

30. In her oral evidence, Ms McDonald stated that she had had two or three sessions (she was at home due to COVID-19 and did not have access to her file) with the applicant, and conducted an assessment on 11 February 2021.[64] She could not recall whether she had seen the applicant in person or by videoconference (Telehealth). She had not conducted any functional assessment at his home. His impairment consisted of pain, and one had to rely on personal reporting. She said that he appeared to reach a pain threshold very quickly. She said that he appeared to lack energy and her recollection was that his pain threshold was reached in around 15 minutes for some activities and up to 30 minutes for other tasks. He could not record notes in a lecture when he is attending university. He had someone taking notes for him.

    [64] Transcript, 2 August 2021, 33-36.

31. She said that they talked about changing his stance, or his technique, and having shorter periods of activity. However, they were never actually able to find a short enough period of activity, and then increase this period, so that he could actually complete a task from beginning to end without a significant increase in pain. It was apparent that she had not made much progress in terms of pain management.

32. She said that a lot of what we do in our day-to-day lives depends on the use of our arms. In her view, he was substantially impaired as a result of the issue with his wrists and arms. The particular activities that were affected were social interactions and self-management.

33. I note that his general practitioner Dr Knight thought that he was adversely affected only in relation to self-management.

    Consideration

34. The question whether the applicant experiences a substantially reduced functional capacity is a question of fact.

35. The relevant question under this paragraph is whether the impairment results in a substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of six activities.

36. I consider each of the functional activities in turn.

    oCommunication: includes being understood in spoken, written or sign language, understanding others and expressing needs and wants by gesture, speech or context appropriate to age;

37. There is no evidence to suggest that the applicant is unable to participate effectively or completely in communicating his needs and wants.

    oSocial interaction: includes making and keeping friends (or playing with other children), interacting with the community, behaving within limits accepted by others, coping with feelings and emotions in a social context;

38. The applicant gave evidence that since December 2020 he had lived in a house divided into six separate living areas, and shared some facilities. He has private bedroom but everything else, including the kitchen, is shared. There were no common areas other than the bathrooms, kitchen, laundry and clothes lines. He said that the common area is cleaned by an independent cleaner.

39. Ms McDonald said that he needed ongoing support from a psychologist to manage the emotional demands of living with a fluctuating disability that can vary from day to day. By contrast, Dr Knight did not consider that he required assistance to interact socially because of his impairment.[65] Given that Dr Knight was his general practitioner for five years, and that by contrast, Ms McDonald interviewed him twice or three times by teleconference, I prefer Dr Knight’s evidence. 

    [65] T7/29.

40. The evidence (including his oral testimony) does not support a finding that he is unable to participate effectively in this environment.

    oLearning: includes understanding and remembering information, learning new things, practicing and using new skills;

41. The evidence is that the applicant is able to participate in educational activities, including studying law and philosophy and fine arts at tertiary level. At Dr Knight’s request, TAFE NSW has provided some additional support in relation to notetaking. His evidence does not support a finding that he is unable to participate effectively in a learning environment.

    oMobility: this means the ability of a person to move around the home (crawling/walking) to undertake ordinary activities of daily living, getting in and out of bed or a chair, leaving the home, moving about in the community and performing other tasks requiring the use of limbs;

42. In terms of mobility, I note that the applicant is able to walk, take public transport and generally get around unaided. He said that he did a large shop every two weeks. The supermarket was about 100 meters away. He purchased vegetables. He said he did the shopping but did not use the online delivery service. The supermarket charged 10%, about an extra $10. He used click and collect. He carried the shopping bags home in order to save the delivery fee. I am satisfied that the applicant does not require assistance to be mobile because of his impairment.

    oSelf-care: means activities related to personal case, hygiene, grooming and feeding oneself, including showering, bathing, dressing, eating, toileting, grooming, caring for own health care needs; or

1. The applicant was able to cook for himself, but tried to keep it as basic as possible. He had steak and roast vegetables, fried eggs on toast, salads, and bought pre-packed meals.  He supported himself with his own meals daily. He was able to do the dishes but if he didn’t keep it to a minimum, then there was always a chance of some exacerbation.

2. In terms of cleaning, he said that the cleaner did the bathrooms and kitchens. He was responsible for his bedroom and the veranda. He cleaned his own living area, carefully moderating or ‘pacing’ his activities. He said that he was able to do household chores such as cleaning and washing/laundry but there would be repercussions. He said that when he did cleaning he would need a period of recuperation. Sometimes his hands became inflamed. His hands and joints would swell up, and then there would be pain. In terms of vacuuming, he said that he did it but there wasn’t a large space to cover. He said that on occasion he vacuumed for about 30 seconds twice a day. 

3. He was asked whether he might be excessively preoccupied by cleaning, as suggested by Dr Knight. He said that he was not fanatical about cleaning but did not want to be overcome by dust mites. He said that he spent an average of five or ten minutes in the morning cleaning. He was able to study and conduct business matters. He was getting tired because of the strain of personal hygiene and cleaning and shopping. He said that the chores got worse as one ages.

4. He agreed that his wrist injury was not preventing him from doing these household tasks. He said that the injury did not prevent him from doing things but there would always be some pain. If he vacuumed for 30 seconds his pain was minimal but the fear of it was real. He employed pacing as a technique – “where you avoid doing a whole task in one go”. He said that it took a long time to do something – doing chores at a small amount each day. That worked but he was using a lot of time and energy doing these sorts of activities. He said he would sleep two hours in the afternoon because he had done a little bit of cleaning.

5. He wanted to devote his time to studies and fitness, but the majority of his time was spent on personal hygiene and domestic duties.

6. He was able to work out in his home gym, a multi-function gym assembled and used for fitness purposes. He did leg and bench presses. The weights were in the order of 20-30 kgs. The exercises tended to favour his legs rather than his hands.

7. I note that a person will be considered to be unable to participate effectively or completely in an activity if they cannot safely complete one or more of the tasks required to participate in an acceptable period of time. I am not satisfied that his self-care needs are such that they cannot be completed in an acceptable period of time.

8. The evidence suggests that the applicant is able to participate effectively in cleaning and self-care but that he gets tired and needs to moderate his activities.

9. I am not satisfied that his capacity for self-care is substantially impaired.

   oSelf-management: means the cognitive capacity to organise one's life, to plan and make decisions, and to take responsibility for oneself, including completing daily tasks, making decisions, problem solving and managing finances.

10. Dr Knight indicated that, in her opinion, the applicant’s capacity for self-management was substantially impaired. With respect, I must disagree with her assessment. There is nothing to suggest that he lacks the cognitive capacity to organise his life, plan and make decisions, and to take responsibility for himself. There is no suggestion that he lacks financial management skills.

11. I note that the applicant has multiple goals and is able to pursue them in a systematic way. One example is his pursuit of access to the NDIS itself. I note that he has also undertaken studies at tertiary level and made adjustments where necessary. For example, he was able to liaise with his doctor and TAFE to obtain special consideration in the form of notetaking assistance.

12. The Tribunal was not provided with the applicant’s academic record, but there is little to suggest that he is unable to pursue his intellectual and artistic ambitions.

13. It is apparent that the applicant has an energy deficit, and is required to moderate his activities. There is some evidence that on occasion he suffers from chronic lethargy and sometimes sleeps up to 20 hours a day. Nevertheless, for the most part he lives an active life involving study, the arts and personal fitness.

14. Having reviewed each of the relevant capacities, I am not satisfied that his ability to undertake any of them is substantially impaired.

    Does the applicant’s impairment affect his capacity for social or economic participation, as required by paragraph 24(1)(d)?

15. I note the applicant’s claim, which is not disputed by the respondent, that he has been in receipt of disability support pension since the onset of his disability.

16. In giving effect to the objects of the NDIS Act, a decision-maker should have regard to the provision of services by other agencies, departments or organisations, as well as the need for interaction between the provision of mainstream services and the provision of supports under the NDIS.[66] It is therefore somewhat disappointing that the Tribunal was not provided with information relating to the applicant’s pension status.

    [66] NDIS Act, section 3(3)(d).

17. I am satisfied that his capacity for social or economic participation is affected. I note that the respondent also concedes that this is so.

    Is the applicant likely to require support under the National Disability Insurance Scheme for his lifetime, as required by paragraph 24(1)(e)?

18. The evidence establishes that the applicant’s impairment (whether considered purely as a physical impairment, or attributable to a psychiatric condition) is deeply ingrained. Interventions have been for the most part unsuccessful. The applicant has gone to some length in seeking assistance from health professionals. More recently, he has focused on obtaining NDIS assistance so that he can live more comfortably with his impairment.

19. Dr Knight and Ms McDonald each considered that he will need life-long support from the NDIS.

20. The respondent contends that the evidence does not support such a finding.

21. My assessment is that the applicant’s impairment is permanent, but that he does not experience a substantially reduced functional capacity to undertake relevant activities. I am therefore not satisfied that he is likely to require support under the NDIS for his lifetime. 

    The Early Intervention Requirement

22. Section 25 of the NDIS Act relevantly provides:

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

    …

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

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

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

    (ii) preventing the deterioration of such functional capacity; or

    (iii) improving such functional capacity; or

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

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

23. The respondent notes that the applicant has experienced a physical impairment for the past 27 years. He is now 59 years of age. In essence, the respondent contends that it is too late in the day to consider access under section 25 of the NDIS Act.

24. I accept the respondent’s contention that the applicant has failed to establish that the provision of early intervention supports would mitigate or alleviate the impact of his impairment; or prevent the deterioration of such functional capacity; or improve such functional capacity; or strengthen the sustainability of informal supports available to him.

    CONCLUSION

25. My finding that the applicant does not satisfy paragraph 24(1)(c) of the NDIS Act relating to substantial functional impairment means that he does not meet all of the disability requirements in subsection 24(1). He is therefore not eligible for access to the scheme.

    DECISION

26. The decision under review is affirmed.

I certify that the preceding 99 (ninety-nine) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member

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

Associate

Dated:  14 October 2021

Date(s) of hearing:	2 August 2021
Applicant:	In person
Counsel for the Respondent:	Mr N Swan
Solicitor for the Respondent:	Ms S Wise, National Disability Insurance Agency

APPENDIX A

Materials before the Tribunal

oSection 37 Documents filed 31 October 2019

oLetter from Applicant outlining medical appointments dated 20 December 2019

oReport by Dr Jennifer Long (Trainee Specialist) dated 13 July 2020

oReport by Dr Stephen Gibson, (Consultant) OPD Pain Clinic dated 20 July 2020

oMRI Report by Dr Jennifer Long (Trainee Specialist) OPD Pain clinic dated 9 September 2020

oList of treating professionals for Applicant dated 21 September 2020

oApplicant’s Statement of Lived Experience dated 13 October 2020

oAppointment confirmation with pain management clinic dated 27 October 2020

oMental Health care plan by Dr Paula Knight (General Practitioner) dated 14 December 2020

oReport by Jane McDonald (Occupational Therapist) dated 11 February 2021

oReport by Dr Stephen Gibson (Consultant) OPD Pain Clinic dated 15 February 2021

oApplicant’s Written Submissions dated 2 July 2021

oRespondent’s Statement of Facts, Issues and Contentions dated 9 July 2021

Materials tendered by the Respondent

oSection 37 Documents filed 31 October 2019

oRespondent’s Statement of Facts, Issues and Contentions dated 9 July 2021

Material from Respondent’s Tender Bundle relevant to the various criteria

oApplicant’s Impairments and Diagnosis: pages 34, 35-37, 44, 186, 196, 198, 200-201, 206, 208, 230, 250-251, 267, 271, 273, 276, 289, 292, 300-301

oTreatment – Splints: pages 35-37, 38, 44, 57, 209, 230, 240, 260, 262, 266, 268, 284

oTreatment – Medications: pages 39, 44, 170-172, 175, 181, 183, 187, 224, 274-276, 286-287, 289

oTreatment – Physiotherapy: pages 37, 44, 175, 187, 208-209, 280-281

oTreatment – Self-pacing: pages 37, 38, 202, 187, 209

oTreatment – Heat/cold applications: page 37

oTreatment – Occupational Therapist: pages 202-203

oTreatment – Surgery: page 57

oFunctional Capacity: pages 35-37, 38, 46-48, 170-172, 174, 184-185, 201-203, 208-209, 223-224, 252-253, 276, 289