Crossley and National Disability Insurance Agency

Crossley and National Disability Insurance Agency [2023] AATA 667 (30 March 2023)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2022/1242
Re:Mr Daniel Crossley
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Ms T Bubutievski, Member
Date:30 March 2023
Place:Sydney

The Tribunal affirms the decision under review pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).
...............................[SGD].........................................
Ms T Bubutievski, Member
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – access – plantar fasciitis – osteoarthritis – lower back pain – anxiety and depression – obsessive compulsive disorder - hoarding disorder – permanence - whether substantially reduced functional capacity – whether best funded by the NDIS – decision under review affirmed
LEGISLATION
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Becoming a Participant) Rules 2016
National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Act 2022
CASES
Mulligan v National Disability Insurance Agency (2015) 233 FCR 201
Kilgallin and National Disability Insurance Agency [2017] AATA 186
Madelaine and National Disability Insurance Agency [2020] AATA 4025
HPSC and National Disability Insurance Agency [2021] AATA 727
Young and National Disability Insurance Scheme (2014) ALD 694
SECONDARY MATERIALS
Revised Explanatory Memorandum, National Disability Insurance Scheme Amendment (Participant Guarantee and Other Measures) Bill 2022 (Cth)
‘Our Guidelines: How we make decisions’, National Disability Insurance Agency (Web Page, 8 November 2022) Guidelines: Applying to the NDIS’, National Disability Insurance Agency (Web Page, 1 August 2022) FOR DECISION
Ms T Bubutievski, Member
30 March 2023

This application is about whether Mr Daniel Crossley (Mr Crossley) should be granted access to the National Disability Insurance Scheme (the NDIS). Mr Crossley applied for access to the NDIS on the basis of chronic pain in the groin and right leg resulting from a nerve injury.
Following his application to become a participant, the National Disability Insurance Agency (NDIA or the Agency) decided, on 24 September 2021, that Mr Crossley was ineligible to access the NDIS as he did not meet the disability requirements, specifically that he did not have a substantial functional impairment. Mr Crossley sought internal review of this decision by the Agency and on 14 February 2022 an Agency decision maker affirmed the decision. It is this reviewable decision of the Agency which is the subject of Mr Crossley’s application to this Tribunal, on 15 February 2022, for external merits review under section 103 of the National Disability Insurance Scheme Act 2013 (Cth) (the Act).
It is not disputed that Mr Crossley has chronic pain in the groin and right leg following an operation for a hernia repair which resulted in nerve injury. The mesh placed to repair the hernia subsequently became infected and had to be removed, causing further injury. Mr Crossley has had a number of subsequent surgical procedures in an attempt to alleviate his symptoms, with minimal success.
Mr Crossley contends that he meets the access criteria under section 21 of the Act.
To gain access to the NDIS, under section 21 of the Act, Mr Crossley is required to meet:
·the “age” access criteria;
·the “residence” access criteria; and
·either the “disability” access criteria or the “early intervention” access criteria.
The Agency accepts that Mr Crossley meets both the “age” and “residence” access criteria but contends that he does not meet the “disability” or “early intervention” access criteria.
The parties to this proceeding consented to the matter being determined without a hearing and the Tribunal is satisfied that the issues for determination in this matter can be adequately determined in the absence of the parties. The Tribunal confirmed the consent of the parties in a directions hearing on 2 February 2023 and proceeded to determine the matter in the absence of a hearing under s 34J of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act).
LEGISLATIVE FRAMEWORK
Before proceeding further, it is necessary to note that amendments to sections 24 and 25 of the Act came into effect on 1 July 2022. The Tribunal had not completed its review of Mr Crossley’s application by the time the amendments commenced. Both the original decision which the Agency made regarding Mr Crossley’s access request, and the Agency’s internal review decision, were made prior to those amendments. The Tribunal’s decision is made subsequent to those amendments.
At the time that the Agency made its internal review decision, a person met the disability requirements under section 24(1)(a) if:
‘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.’
The amendments removed the reference to impairments attributable to a psychiatric condition and replaced them with the phrase ‘one or more impairments to which a psychosocial disability is attributable’. From 1 July 2022, a person meets the disability requirements under section 24(1)(a) if:
‘the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable.’
The transitional provisions at Schedule 2, Item 54 of the National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Act 2022 (Cth) provide that:
1The amendments of sections 24 and 25 of the National Disability Insurance Scheme Act 2013 made by this Schedule apply in relation to the following:
(a)an access request made on or after the commencement of this item;
(b)an access request that was pending immediately before that commencement;
(c)a revocation under section 30 of that Act made on or after that commencement.
As the decision under review relates to the determination of an access request under section 18 of the Act, it follows that the term ‘an access request that [is] pending immediately before” the commencement covers a decision under review, as in this review, that “has not been finalised prior to the commencement’. The Revised Explanatory Memorandum[1] provides, in relation to Schedule 3, Item 56 that the amendment would apply ‘if a decision on their request under section 18 of the Act has not been finalised prior to the commencement’. The Tribunal must therefore determine this matter under the law as amended.
[1] Revised Explanatory Memorandum, National Disability Insurance Scheme Amendment (Participant Guarantee and Other Measures) Bill 2022 (Cth).
Section 24 of the Act provides as follows:
1A person meets the disability requirements if:
(a)the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable; and
(b)the impairment or impairments are, or are likely to be, permanent; and
(c)the impairment or impairments result in substantially reduced functional capacity to undertake one or more of the following activities:
(i)     communication;
(ii)    social interaction;
(iii)   learning;
(iv)   mobility;
(v)    self-care;
(vi)   self-management; and
(d)the impairment or impairments affect the person’s capacity for social or economic participation; and
(e)the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime.
2For 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.
The early intervention requirements are set out in section 25 of the Act:
1A person meets the early intervention requirementsif:
(a)the person:
(i)     has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent; or
(ii)    has one or more identified impairments to which a psychosocial disability is attributable and that are, or are likely to be, permanent; or
(iii)   is a child who has developmentaldelay; and
(b)the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person's future needs for supports in relation to disability; and
(c)the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by:
(i)     mitigating or alleviating the impact of the person's impairment upon the functional capacity of the person to undertake communication, social interaction, learning, mobility, self-care or self-management; or
(ii)    preventing the deterioration of such functional capacity; or
(iii)   improving such functional capacity; or
(iv)   strengthening the sustainability of informal supports available to the person, including through building the capacity of the person's carer.
Note: In certain circumstances, a person with a degenerative condition could meet the early intervention requirements and therefore become a participant.
1A For the purposes of subparagraph (1)(a)(i) or (ii), an impairment or impairments that are episodic or fluctuating may be taken to be permanent despite the episodic or fluctuating nature of the impairments.
2The CEO is taken to be satisfied as mentioned in paragraphs (1)(b) and (c) if one or more of the person's impairments are prescribed by the National Disability Insurance Scheme rules for the purposes of this subsection.
3Despite subsections (1) and (2), the person does not meet the early intervention requirements if the CEO is satisfied that early intervention support for the person is not most appropriately funded or provided through the National Disability Insurance Scheme, and is more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or through systems of service delivery or support services offered:
(a)as part of a universal service obligation; or
(b)in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
Section 27 of the Act provides that National Disability Insurance Scheme Rules may prescribe the circumstances in which, or criteria to be applied in, assessing whether one or more impairments result in substantially reduced functional capacity for the purposes of paragraph 24(1)(c). Those rules are presently in the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (the Rules). The Tribunal is bound to apply the legislation as enacted, including the Rules.
Specifically, rule 5.8 of the NDIS Access Rules elaborates upon when an impairment is taken to have resulted in a ‘substantially reduced functional capacity’ to undertake any one or more of the relevant activities in relation to subsection 24(1)(c) of the Act and provides as follows:
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:
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
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
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.
[Paragraph 5.8 is made for the purposes of paragraph 27(b) of the Act.]
The objects of the Act are set out in section 3 of the Act. These include giving effect to international treaty obligations; supporting the independence and social and economic participation of people with a disability; and providing reasonable and necessary supports for participants. Section 4 sets out general principles guiding actions under the Act. These include that people with disability have the same right as other members of society to realise their potential and should be supported to participate in and contribute to social and economic life to the extent of their ability. They should also have certainty that they will receive the care and support that they need over their lifetime. The Tribunal has considered the objects and general principles of the Act in making its decision.
The NDIA has issued Operational Guidelines including in relation to the access criteria under the Act (Operational Guidelines). The Operational Guidelines are published on the NDIA’s website.[2] The way they are written has changed significantly over time to make them more user friendly for potential applicants to and participants in the NDIS, but the important parts of the content have not been greatly altered. The Tribunal also had regard to the Operational Guidelines in coming to its decision.
[2] ‘Our Guidelines: How we make decisions’, National Disability Insurance Agency (Web Page, 8 November 2022)
The Respondent lodged a bundle of documents pursuant to its obligations under s 37 of the AAT Act on 8 March 2022 (T Docs), comprising 197 pages. This included documents provided to the Agency by Mr Crossley in support of his application. It also lodged an independent expert report from Ms Anna Nicholls, Occupational Therapist, dated 12 September 2022, comprising 48 pages; the letter of instruction to Ms Nicholls, dated 12 July 2022 and comprising 14 pages; a set of targeted questions for Mr Crossley’s treating professionals dated 2 June 2022, comprising 15 pages; and a Statement of Facts, Issues and Contentions (SOFIC) dated 11 January 2023. During the course of the Tribunal proceedings, the Respondent also lodged three Statements of Issues (SOI) on 23 May 2022, 14 October 2022 and 15 November 2022.
Mr Crossley lodged a statement on 26 May 2022, comprising 2 pages; a medical certificate from Dr Lachlan McIntosh, dated 1 September 2022; a letter from Dr Lachlan McIntosh dated 28 October 2022, comprising one page; a response to the Respondent’s SOI and the report of Ms Nicholls, dated 30 October 2022, comprising 12 pages; and a response to the SOFIC of 11 January 2023 plus several emails, lodged on 25 January 2023, totalling 7 pages.
ISSUES BEFORE THE TRIBUNAL
It was common ground between the parties that Mr Crossley met the age requirements in section 22 and the residence requirements in section 24 at the time that he applied for access to the NDIS. The issues for determination are whether Mr Crossley meets the disability requirements for access to the scheme, and if not, whether he meets the early intervention requirements.
In considering the disability requirements, the Agency decided that Mr Crossley met the criteria in section 24(1)(a) of the Act, as having a disability attributable to chronic pain in the right groin and leg due to nerve injury from a groin hernia repair. It also decided that Mr Crossley’s impairments are, or are likely to be, permanent [3] (section 24(1)(b)).
[3] T Docs at T1A 10.
The Agency did not accept that Mr Crossley’s impairments result in a substantially reduced functional capacity.[4] Hence, the internal reviewer concluded that the criteria in section 24(1)(c) were not met.[5] Further, they decided that the requirements of section 24(1)(e) – that Mr Crossley would require the support of the scheme for his lifetime - and section 25 – the early intervention requirements - were also not met.
[4] Ibid, 10-11.
[5] Ibid.
In their SOFIC, the Respondent advances a view that a substantially reduced functional capacity means a relatively high level of impairment, and that the evidence before the Tribunal does not establish that Mr Crossley’s functional impairment reaches the requisite level:
“… The Respondent contends that the word “substantially” has a very important purpose in the Act and carries a high threshold. Its meaning should be considered in the context that the NDIS was not intended to provide support to every person with a disability. Rather, access to NDIS was intended to minimise the impact of those who are suffering “the consequences of disability” such as “isolation, poverty, loss of dignity, stress, hopelessness and fear of the future”. The word also needs to be understood in the context of ensuring the financial sustainability of the NDIS.
23. The Respondent contends that section 24(1)(c) of the Act also looks at the person’s functional capacity to undertake the various activities of daily living. Accordingly, the consideration goes beyond what the person is in fact doing or not doing and extends to what activities the Applicant is capable of doing or not doing. A consideration of medical and allied health evidence is required to determine the Applicant’s functional capacity….”10
The Respondent says that as Mr Crossley does not have a substantially reduced functional capacity in any domain, he does not meet the criteria for access to the NDIS. He consequently cannot require the support of the NDIS for his lifetime.
The Respondent further says that Mr Crossley’s disability is of a longstanding nature and there is no evidence to establish that it would benefit from early intervention, nor have any early interventions been identified.
Mr Crossley contended that his disability is permanent and causes him to have a substantially reduced functional capacity in a number of domains including communication, mobility, self-care, social interaction, learning and self-management. He specifically addresses these issues in detail in his Impact Statement of 8 November 2021:[6]
[6] T-Docs at T13.
Communication
… I find it extremely difficult to express my needs written or verbally as I can become disorientated with words when the nerves don’t stop reacting.
I am afraid that if I tell people I have had falls or incontinence that I will be removed from my home and will no longer have my independence….
Mobility
…The degree of which I can mobilise daily is severely restricted. It’s debilitating because I need to be able to function within different room environments: the kitchen to cook and to attend to ablutions in the bathroom. In the kitchen, bending over into low drawers and cupboards is a constant struggle. Even though I have upgraded what I can in the kitchen with fridges, shelving and dishwashers bending down is difficult not to have my leg collapse and buckle….
…It can be weeks and months without leaving the house, on the days I do leave the house, I do so under great distress, mentally and physically. Getting dressed poses its own problems…
Social Interactions
…I don’t leave the house unless I am going to see the doctor or for emergencies. On the days I do leave the house it is for as quick as possible, usually getting home and sleeping depending on how the nerves reacted….
…since the disability I have had to sacrifice my lifestyle and friendships in order to mentally make it through life. I have been to family court, and had my daughter removed from my care in direct relation to my disability and as I was unable to express what I am going through effectively…..
Learning
…I don’t believe I have a disability of the mind; I do however have a mind that never gets a break or rest from the mental and physical issues my disability has. The never ending drum of information into my brain impacts my ability to focus on and retaining information…..
Self-care
…Getting dressed at home is limited to a loose pair of shorts, that is it... if I put on underwear or other clothing, the tension from the clothing causes the nerves to react causing vomiting from the nerves relentless onslaught. So at home I mostly wear no clothes. However I have to carry a pair of shorts in case someone does turn up at the house. Due to the paroxysm nature of my nerves reactions, having someone help me get dressed has made this process dramatically worse and not better at all.
Toileting... 4 Hours to poo
In the morning to attend the toilet, can take up to 4 hours, this length of time is not just because I cannot get off the toilet, as there are no rails around the toilet for manoeuvring or helping me to re-position….
Showering
Due to the nerve reactions I am unable to shower at the start of the day, this causes a nerve reaction that has me unable to function within my home and in the community. However, even at night at the end of the day I am sometimes unable to shower to clean myself. I will just sleep on the couch because I can’t get to the shower or bed….
Self Management
…Managing finances is and due to this disability being permanent, always will be a constant struggle, the DSP is barely enough to live on and pay bills and food... let alone replace clothes, maintain my home, car, pool, yard and cleaning.
….I have troubles expressing myself without having first worked on a solution to the problem…

The question the Tribunal must answer is whether Mr Crossley’s impairments result in substantially reduced functional capacity to undertake one or more of the activities listed in section 24(1)(c) of the Act. The case law has established several important principles about how to undertake that assessment. In Mulligan v National Disability Insurance Agency (Mulligan)[7], it was found that what is being assessed is what Mr Crossley can and cannot do, not what he actually does. It is sufficient for an applicant to have substantially reduced functional capacity in relation to just one activity[8]. The relevant test is not how much better Mr Crossley’s life would be if he had access to NDIS supports, although such access would be likely to improve his quality of life.[9] His functional capacity should not be characterised only by what he is able to do on a bad day, but by what he can do overall, taking account of both the bad days and the days that are better.[10]
[7] Mulligan v National Disability Insurance Agency (2015) 233 FCR 201 [56].
[8] Ibid.
[9] Madelaine v NDIA [2020] AATA 4025, [72]-[73].
[10] Ibid, [76].
For the reasons set out below, the Tribunal is satisfied that the evidence does not establish that Mr Crossley’s disability results in a substantially impaired functional capacity in any domain. This means that the requirements of section 24 of the Act for access to the NDIS are not met. The Tribunal is also satisfied that the early intervention requirements under section 25 of the Act are not met.
FACTS
The Legal Test
For the Tribunal to be satisfied that Mr Crossley meets the disability requirements for access to the NDIS, the Tribunal must be able to find that Mr Crossley has substantially impaired function in at least one of the six domains as set out in section 24 of the Act. The test is not that he might have a substantial functional impairment or that he is likely to have such an impairment. The test is that he does have such an impairment and that impairment is caused by his disability. The Tribunal must reach a level of positive satisfaction that the requirements of the Act are established (as set out in Mulligan). To reach a level of positive satisfaction the Tribunal must be satisfied that the evidence supports a finding that Mr Crossley has a substantial functional impairment. The Tribunal therefore examined the evidence available about Mr Crossley’s function in each of the domains.
Ms Nicholls’s Report
It is usual in such cases for a person’s level of functional impairment to be independently assessed. Mr Crossley was independently assessed by an occupational therapist, Ms Nicholls. The conclusion Ms Nicholls came to was that Mr Crossley exhibited self-limiting behaviour in the movements of his right leg and hip and likely has near-normal functioning. She was of the view that Mr Crossley was overreporting his limitations and they were not consistent with his presentation, home and functional abilities. Mr Crossley was understandably distressed by her findings. He also made several complaints about the manner in which her assessment had been conducted. The Respondent offered Mr Crossley the opportunity to have a further independent assessment by an alternative occupational therapist. Mr Crossley declined this offer. While the Tribunal understands his reason for doing so, it does mean that the only functional assessment in evidence before the Tribunal is this one. While there are other forms of medical and psychological evidence presented, none contain a functional assessment. The Access Request - Supporting Evidence form completed by Dr Merwe Hartsleif on 8 November 2021 specifically says that no functional assessment has been performed.[11] Mr Crossley’s psychologist, Mr Flanagan, gives an opinion about the level of Mr Crossley’s functional impairments in a report dated 4 September 2021, but it is clear that this is based on previous medical reports and Mr Crossley’s report of his history and capacity, not a functional assessment performed by a professional who has been trained and qualified to conduct such observations and physical assessments. It can be given weight in Mr Flanagan’s scope of practice only. [12] This means that as the only assessment of Mr Crossley’s function, Ms Nicholls’ report must be given considerable weight by the Tribunal unless it has a good reason not to accord it such weight.
[11] T-Docs at T12.
[12] T-Docs at T10.
Ms Nicholls’s CV, as attached to her functional assessment of Mr Crossley, discloses that she qualified as an occupational therapist in 1992, and also holds a Graduate Diploma in Occupational Health & Safety. She is the Director of North Queensland Therapy Services, and a Director of Alliance Rehabilitation. She has worked for the Commonwealth Rehabilitation Service and Kings College Hospital in the UK. She has been a lecturer at James Cook University since 2000. She is a qualified driving assessor; a full member of OT Australia; and is a registered occupational therapist in accordance with the Australian Health Practitioner Registration Agency. The Tribunal is satisfied that Ms Nicholls holds appropriate qualifications to complete a functional assessment and has significant experience in the area. Her functional assessment must be given weight in this decision.
Nonetheless, the Tribunal is cognizant of Mr Crossley’s concerns about the manner of the assessment, particularly that he felt that he was pushed to continue after he wanted to stop and was photographed without consent. Further, Ms Nicholls’s report contains some conclusions about Mr Crossley likely being a golf player and having a more active social life than he has disclosed as a result of examining the social media posts of himself and his partner but there is no indication that Ms Nicholls ever put these propositions to Mr Crossley for him to make a response. He has since responded in writing to the Tribunal to deny both suggestions. Mr Crossley told the Tribunal that he felt that he had been defamed by Ms Nicholls. Mr Crossley was of the view that Ms Nicholls’s report should not be used to make any findings about his capacity.
The Respondent submitted that it relies on Ms Nicholls’s assessment only to the extent set out in its SOFIC of 11 January 2023. The Respondent clarified its submission to make it clear that it does not rely on a number of the opinions expressed by Ms Nicholls, including her view of the social media posts; a conclusion that Mr Crossley is able to play sports and rollerblade; that he is able to lift 30 kilogram bags of chicken feed; that he has a “side business” renting out rooms in his house and is seeking the NDIS to pay for renovations for this purpose; and that a fall Mr Crossley had during the assessment, which was unobserved by Ms Nicholls, was not genuine.[13] The Tribunal is satisfied that the SOFIC does not include any of these issues as relevant factors in the Respondent’s position, although it does rely on Ms Nicholls’s report in relation to what she observed about Mr Crossley’s function on the day of the assessment. The Tribunal is satisfied that this is a reasonable manner in which to treat the contents of Ms Nicholls’s report and excludes the inflammatory content.
[13] Respondent’s Submissions dated 17 March 2023.
Does Mr Crossley have a substantial functional impairment?
The Tribunal examined the evidence about Mr Crossley’s function in each of the relevant domains.
Communication
Mr Crossley indicated that he has trouble expressing himself verbally and in writing due to being distracted by his nerve pain. He also says that he has some fear around telling people about his situation. The Operational Guidelines set out what communication is for the purpose of the Act:
• 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.[14]
[14] ‘Our Guidelines: Applying to the NDIS’, National Disability Insurance Agency (Web Page, 1 August 2022) >
If a person is able to do all these things it is unlikely that they have a substantial functional impairment in communication.[15] The Tribunal is satisfied that Mr Crossley’s disability does not cause him any physical problems in speaking, writing or communicating. It accepts that it may cause him some difficulties expressing himself and understanding others, because he is distracted by his pain. He sometimes needs assistance from others, particularly to express himself in writing.
[15] HPSC and National Disability Insurance Agency [2021] AATA 727, [50].
Dr Hartsleif advises that Mr Crossley does not need any assistance with communication.[16] Mr Flanagan does not list communication as an area in which Mr Crossley is impaired, although he notes that his concentration is highly variable.[17] Ms Nicholls did not find that Mr Crossley has an impairment in this area.[18]
[16] T-Docs at T12.
[17] T-Docs at T10.
[18] Report of Ms Anna Nicholls, dated 12 October 2022.
The Tribunal cannot conclude that Mr Crossley has a substantial functional impairment in the domain of communication, although it accepts his evidence that he has intermittent difficulty. The requirements of section 24(1)(c)(i) of the Act are not satisfied.
Social interaction
Mr Crossley contends that his social interaction is substantially impaired. His evidence is that he only leaves the house on good days and that he has been unable to maintain many friendships from prior to his injury. He is not able to casually socialise with friends and did not travel to his father’s funeral in central NSW.
The Operational Guidelines focus on whether or not a person has the skills to engage in social interaction and how they behave when they do so, rather than any opportunity for social interaction which may be present in their lives or any barriers which may make accessing social interaction more difficult for the person.[19] The Tribunal accepts that Mr Crossley’s pain does create a barrier which makes it more difficult for him to engage in social interaction, but there is minimal evidence to suggest that it affects his skills to do so.
[19] ‘Our Guidelines: Applying to the NDIS’, National Disability Insurance Agency (Web Page, 1 August 2022) >
Dr Hartsleif states that Mr Crossley does not need any assistance with social interaction.[20] In response to further questioning, Dr Hartsleif advised that he would expect Mr Crossley’s social interactions outside the home to be limited because of his difficulties mobilising and wearing clothing, not because his skills in social interaction are affected by his disability.[21]
[20] T-Docs at T12.
[21] Responses to Targeted Questions of Dr Merwe Hartslief dated 2 June 2022.
Mr Flanagan reports that Mr Crossley will only engage in such activities when he is in less pain and that he rarely travels further than the local shops.[22]
[22] T-Docs at T10.
Mr Crossley reports that he has a partner who is supportive and sometimes stays over. He stays in touch with a couple of friends via text message. He is engaged in the hobby of astrophotography.[23] He also rents out rooms in his house and so has to engage with the other occupants of his home.[24]
[23] T-Docs at T13,
[24] Report of Ms Anna Nicholls, dated 12 October 2022.
In Kilgallin and National Disability Insurance Agency[25], the Tribunal was also faced with the circumstances of an applicant who had significantly reduced their social interactions as a result of their disability. In that case, the Tribunal found that the applicant may well have reduced psychosocial functioning in undertaking such activities, but the skills required for social interaction were not significantly affected. The Tribunal finds this to be Mr Crossley’s situation - he engages in social interactions much less frequently than prior to his injuries and when he does so he may be affected by pain. Further, his pain may be aggravated after engaging in social interaction. Nonetheless, the Tribunal could not form a view that Mr Crossley has a substantially reduced functional capacity to undertake the activity of social interaction outlined in section 24(1)(c)(ii).
[25] [2017] AATA 186.
Learning
Mr Crossley describes a racing mind and impairment of memory.[26] He states that he attempted to study at James Cook University around 10 years ago and found it very difficult to retain information for the exams.[27]
[26] T-Docs at T13.
[27] Ibid.
The Tribunal notes that no cognitive testing of Mr Crossley has been undertaken, and there is no suggestion that his medical condition is associated with learning disability. Dr Hartsleif states that Mr Crossley does not require any assistance with learning.[28] Mr Flanagan says that Mr Crossley has variable concentration but described himself as having a “thirst for knowledge, artwork and socialising” when he is able.[29] Ms Nicholls could not find that Mr Crossley has a significant impairment in this area, being involved in the complex hobby of astrophotography involving cameras and computers.[30]
[28] T-Docs at T12.
[29] T-Docs at T10.
[30] Report of Ms Anna Nicholls, dated 12 October 2022.
The Tribunal accepts that Mr Crossley may have a subjective sense of having greater difficulty learning than he did in the past. There is insufficient evidence for the Tribunal to conclude that Mr Crossley has a substantial functional impairment in learning as required by section 24(1)(c)(iii) of the Act.
Mobility
Mr Crossley submits that he is substantially impaired in this domain. He says that at home he can have his legs buckle, causing him to fall over, when trying to bend into low drawers and cupboards. He is also very sensitive to changes in the temperature of the floor and changes in flooring and surface obstacles. He describes this as causing him “nerve reactions” which buckle him over and cause him to fall. He said that he is sometimes unable to lift his feet high enough to walk and the pain may cause him to vomit and returned to bed. He is unable to walk on the decking outside his home due to vibration. He says that all the doors into and out of his home have one step and that he has fallen attempting to access his home or carry shopping indoors. [31]
[31] T-Docs at T13.
Mr Crossley states that his mobility problems also limit his ability to access the community due to the difficulties he has approaching his car, getting in and out of his car, using the pedals with his right leg, tolerating the sensation of the seatbelt, and opening and closing the gate to his property. Mr Crossley states that the nerve sensations cause him to fall, and to be unable to tolerate sitting in his vehicle. He may not venture into the community for weeks at a time, and many of his attempts to do so may end with him either lying down wherever he is or going back to bed because he cannot make it out of the house. He notes that he has now sustained a ligament tear in his left knee, which compromises his ability to support himself on his good leg. Mr Crossley further states that the pain and the resultant loss of function affects his emotional well-being: “not making it to the toilet has emotionally broken me on many occasions”.[32]
[32] T-Docs at T13.
Mr Flanagan’s evidence is that Mr Crossley has hyperalgesia and allodynia.[33] He notes that Mr Crossley will not leave the house when his pain is particularly troublesome and will also only engage in social and recreational activities when he is feeling less pain.[34] Dr Hartsleif states that Mr Crossley needs home modifications, assistance with gardening and a vehicle modified for hand controls because of the nerve reactions associated with unstable footing and changes in temperature.[35] The Tribunal finds that recommendations about physical changes to their environment that a person requires due to a disability are outside the scope of practice of both a psychologist and a surgeon.
[33] T-Docs at T5.
[34] T-Docs at T10.
[35] T-Docs at T12.
Kerry Stingel, occupational therapist, reported on 3 September 2021 that they had conducted five sessions with Mr Crossley and were of the opinion that he may benefit from more work on sensory re-education and desensitisation, and also states that Mr Crossley would benefit from a home assessment by an occupational therapist to give advice about modifications, assistive technology and equipment which may help Mr Crossley to remain as active and independent as possible over time.[36]
[36] T-Docs at T9.
The only assessment of Mr Crossley’s mobility is that performed by Ms Nicholls. Mr Flanagan and Dr Hartsleif give their opinions based on Mr Crossley’s own account of his difficulties. Kerry Stingel reports that Mr Crossley has advised that he has difficulty walking short distances and managing the different types of flooring and uneven temperatures in his home, but specifically notes that Mr Crossley has not yet had an in-home assessment by an occupational therapist. Although there are some shortcomings to Ms Nicholls’s report, as it is the only in-home assessment of Mr Flanagan’s functional capacity, including his mobility, by a person qualified to make such an assessment the Tribunal must consider the evidence it gives in this regard. Ms Nicholls observations are that Mr Crossley is able to mobilise within his own home, although he supports himself on furniture and door frames. She has recorded that he was able to sit down and stand up from his lounge, bed and toilet and demonstrated his use of the bath in a modified manner. Ms Nicholls noted that Mr Crossley limps on his right leg. Her view was that he self-limits his movements of his right leg and hip but has near-normal functioning in mobility.[37]
[37] Report of Ms Anna Nicholls, dated 12 October 2022.
The concept of mobility in the NDIS refers to how a person moves around their home and uses their arms and legs to undertake the ordinary activities of daily living. It also refers to what a person physically can do, as opposed to what they actually in fact do. Doing activities more slowly than a normal person or in a modified way does not mean that a person has a reduced functional capacity. In the case where a person has significant pain, it is entirely likely that they limit their movements to within a range that does not produce pain, or at least minimises it, even though they would be physically capable of doing more if they were able to tolerate an increase in their symptoms. This imports some degree of complication to an assessment of Mr Crossley’s functional impairment in mobility.
In Madelaine and National Disability Insurance Agency[38] the Tribunal considered the threshold for functional capacity in mobility and decided that a person has functional capacity in mobility if they can “move about their home, get in and out of the bed or chair, and mobilise in the community”[39]. It acknowledged that the threshold is a modest one which only involves short distances around a person’s home and around community facilities once they are transported there. Further, it came to the view that “significantly, the concept does not include being able to move around in the community for the purpose of accessing services, such as shops, the bus stop or the local park.”[40]
[38] [2020] AATA 4025.
[39] Ibid, [104].
[40] Ibid, [105].
On the evidence of Mr Crossley, his treating professionals and Ms Nicholls, Mr Crossley is able to mobilise around his home very carefully and slowly with the support of furniture and fittings. He does not use a walking stick or any other form of mobility aid. He does modify his activity to try and control his symptoms. He is able to mobilise in the community on a good day. He is not able to do so for extended periods of time and is not reliably able to do so. He is limited in his ability to access community facilities due to the symptoms he experiences from driving to those facilities impacting on his ability to function when he gets there. Mr Crossley receives support services to assist him with gardening and some housework.

The only functional assessment of Mr Crossley’s mobility concluded that Mr Crossley has near-normal mobility but limits his activity. This is not inconsistent with the other available evidence, which indicates that Mr Crossley only engages in certain activities when his pain is not too bad, and that certain other activities aggravate his pain, so he seeks to avoid them. The Tribunal is satisfied that Mr Crossley does have impaired mobility as a consequence of his disability. The Tribunal finds that the level of impairment varies according to how severe Mr Crossley’s pain and sensitivity is at any given time. These findings are consistent with the functional assessment. What would be inconsistent, however, is a finding that Mr Crossley has a substantial impairment of mobility. There is no functional assessment before the Tribunal which disputes the evidence put by Ms Nicholls or which would lead to this conclusion. The evidence of Mr Flanagan and Dr Hartsleif is not specific enough to really assess Mr Crossley’s overall functionality and their comments are based on Mr Crossley’s own reports to his treating professionals, not a functional assessment. The Agency offered Mr Crossley a further independent occupational therapy assessment as he was so dissatisfied with the assessment of Ms Nicholls. While the Tribunal can understand Mr Crossley’s reasons for refusing, the lack of any functional assessment in support of his own position critically damages his case. The Tribunal could not find, on the evidence before it, that Mr Crossley has a substantial impairment of mobility as required by section 24(1)(c)(iv) of the Act.
Self-care
Self-care refers to personal care, hygiene, grooming, eating and drinking, dressing, washing and toileting. Mr Crossley does not indicate that he has any difficulty with eating or drinking. He does say that although he can perform the physical activities of dressing, the feeling of the clothes on his body can make him ill. When at home he prefers to wear no clothes or only a loose-fitting pair of shorts. He states that he is unable to shower in the morning due to “nerve reactions” and that he frequently has to shower at night or not at all because he is unable to step into the tub or his nerves will react too badly. Toileting takes him longer than it does a normal person. In his initial documents he indicated that it could take him up to 4 hours to pass a bowel motion.[41] He has subsequently indicated that it now takes less than two hours following further surgery.[42] He has developed haemorrhoids from extended sitting on the toilet.[43] Mr Crossley states that he has difficulty rising from the toilet because there are no rails. He states that toileting aggravates his nerve reactions, which may result in him vomiting or needing to return to bed. He says that he has been incontinent because he has been unable to reach the toilet in time.[44]
[41] T-Docs at T13.
[42] Response to OT report 30 October 2022.
[43] Medical Certificate by Dr Lachlan McIntosh dated 1 September 2022.
[44] T-Docs at T13.
Mr Crossley describes difficulties with his mental health as a result of the pain, but Mr Flanagan notes that Mr Crossley’s mental health is stable, with “minimal clinically observable symptoms”. Mr Flanagan says that Mr Crossley has a moderate impairment in self-care and independent living.[45]
[45] T-Docs at T10.
Ms Nicholls reports that Mr Crossley does not require any assistance with self-care tasks and is independent on and off the toilet. His home is not reported to have any commonly used items such as grab rails in the shower or toilet.[46] There is no functional assessment of Mr Crossley’s self-care which disputes this evidence or establishes that Mr Crossley requires the assistance of another person or disability specific aids to engage in self-care activities.
[46] Report of Ms Anna Nicholls, dated 12 October 2022.
The evidence before the Tribunal indicates that Mr Crossley needs to engage in self-care activities in a modified manner, and that some activities, like toileting, take him much longer than they would take a person without a disability. The Tribunal also accepts that Mr Crossley avoids self-care activities when his pain is bad and that engaging in self-care frequently causes an increase in his symptoms. The Tribunal has no doubt that Mr Crossley has a reduced functional capacity in the activities of self-care, but the evidence before it does not establish that this is a substantial impairment as required by section 24(1)(c)(v) of the Act.
Self-management
Self-management takes into account planning, decision-making, financial management, problem-solving and day-to-day tasks around the home. Self-management is about the cognitive function required to undertake these activities, not the physical capacity to do so. Mr Crossley has indicated that he subjectively feels impaired in his decision-making and cognitive function due to the distraction of his pain. He also states that he has trouble expressing himself if he has not first worked on a solution to a particular problem.[47]
[47] T-Docs at T13, T16.
Mr Crossley has not had any cognitive or neuropsychological assessments which would confirm that he is cognitively impaired. In his response to this question, he largely focuses on the inadequacy of disability support pension to meet his financial needs.[48] Limited financial resources are not a factor which is taken into account under this criterion. The evidence before the Tribunal does not establish that Mr Crossley has a cognitive or neurological impairment which substantially impacts on his ability to perform self-management functions. The Tribunal cannot find that Mr Crossley has a substantial impairment in self-management as required by section 24(1)(c)(vi) of the Act.
[48] T-Docs at T13.
The test set out in Mulligan requires that the Tribunal must be positively satisfied that the requirements of the Act are established in relation to a disability before access to the scheme can be granted. The Tribunal finds that at the present time there is insufficient evidence about Mr Crossley’s functional impairments to allow the Tribunal to reach the requisite level of positive satisfaction. The Tribunal affirms the Agency’s decision that Mr Crossley does not meet the requirements for access to the scheme under section 24(1)(c) of the Act.
Does Mr Crossley meet the early intervention requirements?
Section 25 of the Act sets out the requirements for access to the NDIS under the early intervention criteria. At the time the Agency made its internal review decision, a person met the early intervention requirements under section 25 (1)(a)(i) and (ii) if the person:
(i)has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent; or
(ii)has one or more identified impairments that are attributable to a psychiatric condition and are, or are likely to be, permanent…
In tandem with the amendment to section 24(1)(a), which removed the reference to an impairment attributable to a psychiatric condition, an amendment on 1 July 2022 to section 25(1)(a) did the same. The amendment removed the reference to impairments attributable to a psychiatric condition. From 1 July 2022, the person meets the disability requirements under section 24 (1)(a)(ii) if the person:
(ii) has one or more identified impairments to which a psychosocial disability is attributable and that are, or are likely to be, permanent…
Section 2.5(b) of the NDIS Rules includes the following passage about the rationale for the early intervention requirements as an alternative to accessing the scheme through the disability requirements:
‘A person can access the NDIS through the early intervention requirements without having substantially reduced functional capacity. Instead, the early intervention requirements consider the likely trajectory and impact of a person’s impairment over time and the potential benefits of early intervention on the impact of the impairment on the person’s functional capacity.’
Mr Crossley’s condition is long-standing, and there have been no early intervention treatments identified. The occupational therapist who was treating Mr Crossley identified that he may benefit from a home assessment and further sessions working on desensitisation.[49] It is noted that neither of these things are covered under the referral from Mr Crossley’s general practitioner. The fact that the health system is unable to provide the extra assistance that Mr Crossley requires does not mean that the NDIS must fill that gap (Young and National Disability Insurance Agency).[50] Mr Crossley does not fulfil the early intervention requirements to enable him to become a participant of the NDIS under section 25 of the Act.
[49] T-Docs at T9.
[50] [2014] AATA 401.
CONCLUSION
The Tribunal is satisfied that Mr Crossley does not meet the disability requirements in section 24 of the Act, nor the early intervention requirements in section 25 of the Act to access the NDIS. The Agency’s decision on internal review dated 14 February 2022 is correct.
DECISION
The Tribunal affirms the decision under review pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).

I certify that the preceding 70 (seventy) paragraphs are a true copy of the reasons for the decision herein of Ms T Bubutievski, Member

...................................[SGD].....................................
Associate
Dated: 30 March 2023

Date(s) of hearing: On the Papers

Date final submissions received: 17 March 2023

Applicant: In person

Solicitors for the Respondent: Mr P Crethary, HWL EBSWORTH LAWYERS

[2023] AATA 667

30 March 2023

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Appeal

Date(s) of hearing:	On the Papers
Date final submissions received:	17 March 2023
Applicant:	In person
Solicitors for the Respondent:	Mr P Crethary, HWL EBSWORTH LAWYERS