Davis and National Disability Insurance Agency
[2023] AATA 1437
•30 May 2023
Davis and National Disability Insurance Agency [2023] AATA 1437 (30 May 2023)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2021/2935
Re:Davis
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Senior Member O'Donovan
Date:30 May 2023
Place:Canberra
The decision under review is affirmed
..................[SGD]...........................
Senior Member O’Donovan
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – whether the applicant qualifies to become a participant in the scheme – whether the applicant meets the disability requirement – whether the applicant meets the early intervention requirement – decision affirmed
LEGISLATION
National Disability Insurance Act, s 21, 24, 27, 209
National Disability Insurance Scheme (Becoming a Participant) Rules 2016, Rule 5.8
CASES
Mulligan v National Disability Insurance Agency [2015] FCA 544
Mulligan and National Disability Insurance Agency [2015] AATA 974
Ditchfield and National Disability Insurance Agency [2019] AATA 2121
Madelaine and National Disability Insurance Agency [2020] AATA 4025
Re Costello and Department of Transport (1979) 2 ALD 934
Saitta Pty Ltd v Commonwealth (2000) 106 FCR 554
Re Tomago Aluminium Co Pty Ltd & Collector of Customs (1988) 17 ALD 583National Disability Insurance Agency v Foster [2023] FCAFC 11
SECONDARY MATERIALS
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (American Psychiatric Association Publishing, 5th ed, Text Revision, 2022)
REASONS FOR DECISION
Senior Member O'Donovan
30 May 2023
The applicant is seeking to become a participant in the National Disability Insurance Scheme (NDIS). She suffers from a number of conditions:
(a)Functional neurological disorder (FND);
(b)Fibromyalgia;
(c)Depression and anxiety;
(d)Hearing loss.
In order to qualify to become a participant in the NDIS, it is necessary to meet a number of criteria – the age requirements, the residence requirements and either, the disability requirement or the early intervention requirement.[1]
[1] National Disability Insurance Scheme Act 2013 (Cth) s 21(1).
The respondent concedes that the applicant meets the age and residence requirements criteria for qualification but contends that the applicant does not meet the disability requirement or the early intervention requirement. The applicant at the hearing did not press any claim that she met the early intervention requirement but, given that there is evidence on that issue, I will deal with it at the end of these reasons for the sake of completeness. The primary focus of submissions was however on the applicant’s satisfaction of the disability requirement.
The disability requirements are specified in section 24 of the National Disability Insurance Act 2013 (the NDIS Act).
Section 24 provides as follows:
(1)A person meets the disability requirements if:
(a)the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable ; and
(b)the impairment or impairments are, or are likely to be, permanent; and
(c)the impairment or impairments result in substantially reduced functional capacity to undertake one or more of the following activities:
(i) communication;
(ii) social interaction;
(iii) learning;
(iv) mobility;
(v) self-care;
(vi) self-management; and
(d)the impairment or impairments affect the person's capacity for social or economic participation; and
(e)the person is likely to require support under the National Disability Insurance Scheme for the person's lifetime.
(2)For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the National Disability Insurance Scheme for the person's lifetime, despite the variation.
(3)For the purposes of subsection (1), an impairment or impairments that are episodic or fluctuating may be taken to be permanent, and the person may be taken to be likely to require support under the National Disability Insurance Scheme for the person's lifetime, despite the episodic or fluctuating nature of the impairments.
(4)Subsection (3) does not limit subsection (2).
Section 27 provides for the making of rules relating to the disability requirements as follows:
The National Disability Insurance Scheme rules may prescribe circumstances in which, or criteria to be applied in assessing whether:
(a)…; or
(b)one or more impairments result in substantially reduced functional capacity of a person to undertake one or more activities for the purposes of paragraph 24(1)(c); or
(c)…; or
Rules have been made in relation to the disability requirements. For present purposes the relevant rule, found in the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (the Rules), is Rule 5.8. It provides as follows:
An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities – communication, social interaction, learning, mobility, self-care, self-management (see paragraph 5.1(c)) – if its result is that:
(a)The person is unable to participate effectively or completely in the activity, or to perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications; or…
In relation to the disability requirements specified in the NDIS Act, the respondent does not contest the proposition that the applicant:
(a)Has disabilities which arise from certain impairments; and
(b)those disabilities, with the possible exception of the applicant’s depression and anxiety, are permanent.
The focus of the contest is whether or not the applicant’s conditions result in substantially reduced functional capacity to undertake the activities specified in section 24.
The key controversy in this matter arises from the fact that when the applicant was assessed by an occupational therapist in early 2022, the occupational therapist observed and recorded the applicant demonstrating significant functional capacity with limited evidence of a reduction in functional capacity. However, the respondent’s neurologist identified in her report dated 29 November 2021, a number of areas in which the applicant had diminished functional capacity. The applicant submits that the reason for the radically different conclusions reached by the two health professionals is that the applicant’s main condition, FND, manifests most seriously in unfamiliar environments, whereas the occupational therapist assessed her in her own home.
A further issue that has arisen is whether Rule 5.8 lowers the threshold in section 24 such that the applicant need only show that she is unable to ‘participate fully’ in the identified activities in order to satisfy the disability requirement.
I have structured my reasons as follows. First, I identify the impairments which I am satisfied the applicant suffers from and which the respondent concedes should be treated as permanent. Second, I consider whether those impairments either collectively or separately have resulted in the applicant having substantially reduced functional capacity to undertake specified activities or substantially reduced psychosocial functioning in undertaking the specified activities – i.e., whether the applicant meets the statutory threshold without the assistance of the deeming provisions in the Rules. Third, I consider whether the applicant comes within the Rules which deem her to have met the statutory threshold. Finally, I consider whether the applicant meets the early intervention requirements.
Evidence
The evidence tendered during the hearing consisted of the T-Documents, Supplementary T Documents and one exhibit marked A1 which is a report from Dr Bruce Whitmill dated 12 July 2021. After the hearing, the respondent filed a subset of the summonsed material which had been referred to by one of the witnesses during her evidence. It consisted of records prepared while the applicant was in hospital in 2019 and 2021. I have marked it as Exhibit R1.
The applicant gave evidence at the hearing and was cross examined. Two experts gave oral evidence in addition to the reports which they had provided. One was Jenny Greenfield, an occupational therapist. The other was Dr Anna Schutz, a consultant neurologist.
The applicant’s permanent impairments
The respondent accepts in its Statement of Facts, Issues and Contentions that the applicant suffers from FND, fibromyalgia and hearing loss. It accepts that all of these conditions are permanent. The respondent also accepts that the applicant suffers from anxiety and depression. It does not accept that the applicant’s anxiety and depression are permanent. However, the position taken by the respondent is that nothing turns on that. The respondent accepts that because it is very difficult to separate out the functional impact of each of the applicant’s conditions, for present purposes the Tribunal can proceed on the basis that if reduced function is identified, the respondent would not quibble with the conclusion that it was the product of one of the applicant’s impairments which are permanent.
The most significant condition from which the applicant suffers is FND. This condition first manifested in 2010. She was at home and began to feel unwell and then slumped in her chair. She was rushed to hospital in an ambulance and was initially thought to have had a stroke which affected her right side. In her evidence, the applicant’s memory is that as a result of this episode, she was in hospital and a rehabilitation facility for a total of three months. Contemporaneous records suggest that the applicant’s memory on this was poor and that in fact she was in hospital and undergoing rehabilitation for only 3 weeks.[2]
[2] T2 p 30.
Since 2010 the applicant has had at least three similar episodes where she has suffered stroke like symptoms which were serious enough to result in a hospital admission. The two most recent were in 2019 and 2021. However, tests have not revealed any underlying physical cause. The applicant was diagnosed as suffering from FND in March 2019.
DSM-5-TR (the 5th edition of the Diagnostic and Statistical Manual of Mental Disorders) provides the following criteria for a diagnosis of FND:
1. One or more symptoms of altered voluntary motor or sensory function.
2. Clinical findings provide evidence of incompatibility between the symptom and recognised neurological or medical conditions.
3. The symptom or deficit is not better explained by another medical or mental disorder.
4. The symptom or deficit causes clinically significant distress or impairment in social, occupational, or other important areas of functioning or warrants medical evaluation
The respondent accepts that diagnosis.
In addition to FND the applicant suffers from fibromyalgia, which is a chronic disorder characterised by widespread pain and fatigue. She also suffers from anxiety and depression.
Each of these conditions have fluctuating impacts. The applicant reports herself on bad days as experiencing some or all of the following symptoms:
(a)An increase in generalised pain;
(b)Increase in fatigue levels;
(c)Feeling foggy in the head;
(d)Increased generalised weakness in the right upper limb and lower limb;
(e)Increased altered sensation in the right upper and lower limbs;
(f)Increased anxiety symptoms; and/or
(g)Increased depression symptoms.
The first three symptoms were reported as related to fibromyalgia, the next two due to FND and the sixth and the last symptoms related to anxiety and depression.
As noted above the applicant also has acute episodes where she experiences stroke like symptoms. These occur every few years and result in hospitalisation followed by a period of rehabilitation lasting a few weeks. I have factored in the functional impact of the acute episodes in considering whether the applicant’s functioning is substantially reduced, but given that there are long periods between acute episodes which are more representative of the applicant’s functional capacity, I have primarily focussed on the evidence about these periods.
Two reports are centrally relevant to this question – the report of Occupational Therapist Jenny Greenfield and Consultant Neurologist Anna Schutz.
Each report touches on the applicant’s functioning at the time of the report but also incorporates information about the applicant’s functioning immediately following an acute episode of FND.
In reaching my conclusions about the applicant’s functioning, I also had the benefit of seeing the applicant give her own evidence and observe her cognitive functioning.
Jenny Greenfield
Ms Greenfield is a qualified and experienced occupational therapist. She met with the applicant on three separate occasions in January and February 2022. The assessments were undertaken at the applicant’s home. She also spoke to the applicant on the telephone on 24 February 2022.
She prepared a report dated 28 February 2022.
She undertook the assessment of the applicant at the request of the respondent’s solicitor.
Ms Greenfield was briefed with a comprehensive set of documents from the applicant’s treating health professionals. She also took a history from the applicant when she met with her. It is important to note that on two of the three days where Ms Greenfield assessed the applicant, the applicant reported that she was having a bad day. As the applicant has a fluctuating condition, it is relevant that she was assessed and observed on days where the functional effects of the condition were said to be bad. Ms Greenfield also had access to material which recorded the impact of the applicant’s FND when she was suffering an acute episode.
Ms Greenfield records that the medical records show that when the applicant was discharged from hospital after being diagnosed with FND in 2019, she was mobilising independently and unaided on flat and uneven ground for greater than five hundred metres and was able to independently ascend and descend thirty steps. She was also reported as independent with all personal activities of daily living including dressing her upper and lower body, grooming, toileting and bathing. As at 2019 there is nothing to suggest that the applicant was suffering from substantially reduced physical function post-discharge.
The records reviewed by Ms Greenfield also include a discharge summary report, developed by Dr Ramires at Orange Health Service and dated 1 February 2021, which states that the applicant was admitted to hospital on 9 January 2021 via ambulance with the sudden onset of ‘right hemiplegia on the background of functional neurological disorder’. The discharge summary records that the applicant progressed well in rehabilitation and was able to mobilise independently at discharge. It also notes that psychiatrist Michael Murphy advised that the applicant will require ongoing support to manage her condition of FND. He stated that FND is characterised by ‘a chronic relapsing/remitting illness with associated symptoms that mimic a stroke’. He indicated that the applicant would require regular contact with a clinical psychologist who specialises in FND, and ‘mobility aids will likely decrease readmission and improve inter-episode function’.[3] The applicant saw Occupational Therapist Emma Dwyer a few days after discharge. In her report of 10 February 2021 Ms Dwyer noted the fluctuating nature of the applicant’s condition, with good days and bad days. The report indicated that the applicant’s capacity to perform tasks within the home varies from being independent without aids to being dependent on others for some tasks and requiring the use of a walking stick for mobility. The applicant was reported as using an over-the-toilet aid, shower chair and rails which she ‘uses on poorer performance days’. The report advised that the applicant’s ability to access the community ranges from being completely independent in completing community access tasks to avoiding the task due to not being able to complete it and needing full assistance for this. Accordingly, the documentary material available to Ms Greenwell show that in 2021, there are times when the applicant is completely independent in terms of function and times where she exhibits substantial disability.
[3] T20 p 95
The applicant advised Ms Greenfield that leading up to an acute episode of FND she experiences the symptoms of confusion, forgetfulness and mood swings and when she has an acute episode her main symptoms are right hemiparesis and altered sensation on her right side.
When Ms Greenwell saw the applicant it was 2 years after the applicant last suffered an acute episode of FND and so any symptoms she is exhibiting now are likely to be chronic. The applicant advised Ms Greenfield that her chronic symptoms consist of:
-Right sided weakness in the upper limb and lower limb;
-Altered sensation in the right hand described as reduced capacity to distinguish between hot and cold and sharp and dull and the constant feeling of pins and needles;
-Altered sensation in her right lower limb with a constant feeling of pins and needles.
The applicant advised that she had three or four bad days each month where she experiences greater right-sided weakness and altered sensation.
On a bad day she reported experiencing difficulty with fine motor skills such as buttons, reduced grip strength and reduced balance when mobilising, resulting in the need for a walking aid.
The applicant also advised Ms Greenfield that she sees a Pilates therapist every three to four weeks for sessions to address her ongoing pain.
In relation to her fibromyalgia, the applicant advised Ms Greenfield that she has experienced fibromyalgia symptoms for approximately ten years or more. She stated that she was not certain as to when she began to experience these symptoms, but she experiences chronic pain symptoms throughout her body, fatigue and on occasion spasms and cramps. The symptoms are not limited to one specific area of her body. She stated that she is in constant pain and that her pain symptoms vary in intensity depending on whether she is having a good day or a bad day. When she is having a bad day, she experiences an increase in her pain and fatigue levels. Her Pilates sessions reduce her pain in the short term, but she does not experience an ongoing benefit.
The applicant suffers from anxiety and depression, but she has not received treatment from a psychologist since approximately 2020.
In relation to her hearing loss the applicant reported that she requires hearing aids due to bilateral hearing loss and following her last acute episode of FND her hearing has deteriorated and her hearing aids are no longer effective.
On a bad day the applicant described herself as experiencing some or all of the following symptoms:
(a)An increase in generalised pain;
(b)Increase in fatigue levels;
(c)Feeling foggy in the head;
(d)Increased generalised weakness in the right upper limb and lower limb;
(e)Increased altered sensation in the right upper and lower limbs;
(f)Increased anxiety symptoms; and/or
(g)Increased depression symptoms.
The first three symptoms were reported as related to fibromyalgia, the next two due to FND and the sixth and the last symptoms related to anxiety and depression.
When the applicant was assessed for the purposes of these proceedings on 27 January 2022 she was having a bad day. She advised that she was experiencing all of the symptoms identified at paragraph 41 above except depression.
The applicant advised that at the third assessment on 9 February 2022 she was also having a bad day. She was experiencing:
(a)An increase in fatigue levels;
(b)An increase in anxiety symptoms; and
(c)An increase in depression symptoms.
The applicant also gave a history of falls.
Ms Greenfield reported that the applicant lives in her own home, but her daughter and her partner live with her every second week. The applicant confirmed this arrangement in her evidence,[4] but also indicated that her daughter had not been able to stay with her recently because her daughter’s room was affected by a kitchen renovation.[5]
[4] Transcript p 11 line 30.
[5] Ibid.
The applicant’s son lives in Parkes and the applicant performs babysitting for his 2-year-old son on an as needs basis. In her evidence to the Tribunal the applicant confirmed that she can drive to Parkes but when she does so she usually takes a friend.[6]
[6] Transcript page 23 line 15.
She also receives three hours of support from SASH – Safe and Supported at Home. This was arranged after her discharge from Orange District Hospital in February 2021. The service comes twice a week and helps with tasks like cleaning and changing sheets. She also has a contractor attend the house weekly in the warmer months to do mowing and gardening. He comes less frequently in the cooler months.
The results of the functional assessment were as follows:
Mobility – The applicant was observed to walk in and around her home at a slow to normal pace on several surfaces including tiled, carpeted and laminated within the home and grass, asphalt, sloped gutter and concrete footpath outside the home. She walked without the need for walking aid and throughout the assessments was observed by the assessor to be steady on her feet. The applicant reported stumbling once. She reported having a walking stick in her car which she used outside the home when she was feeling unstable on her feet. Outside the home she was able to walk approximately 300 meters without the need for any aid or any type of support.
Stairs – The applicant advised that she finds stairs difficult to negotiate, whether ascending or descending. Whenever there are stairs, she will use the handrail.
Transfers – The applicant was observed to be independent in transferring from her bed, lounge room chair assisted by pressing on the armrests, dining chair without pressing on the table, transferring from the toilet without pulling on the door frame – in this context she resisted getting an over the toilet aid – and from a car at seat height using the frame of the car.
Mobility Aids – The applicant advised that she has two walking sticks – one in her car and one at home. She said she might use a walking stick in the community when she is having a bad day. She did not use a walking stick inside the home. She stated that she had Canadian crutches which she might use on a bad day, but her preference was to use a walking stick.
Sitting capacity – The applicant was observed to sit for durations of more than one hour but indicated that sitting for extended periods on occasions could result in neck stiffness
Bending – The applicant was observed to pick a peg up off the ground without the need for support. She could reach into the bottom shelf of a kitchen cupboard. She reported if she was required to do repeated bending, she would end up with lower back pain.
Reaching – The applicant was observed reaching with both hands above her head. She was observed hanging items on the clothesline.
Standing – The applicant was observed to stand for 5 minutes without support or reports of pain.
Upper limb/hand function and reach – The applicant claimed she had weakness arising from her FND. She could however cut hard vegetables with sharp knives. She could write, and she could grip the steering wheel of her car. She was observed performing fine motor tasks.
Lifting and carrying – The applicant reported being able to carry a large bag of dog biscuits (7.5kg) 2-3 meters. She could also lift her grandson who she estimated weighed 10 kgs.
Self-management – The applicant advised that she is able to arrange her own appointments including participating in softball committee activities. She uses her phone to arrange them but also texts. She performs the grocery shopping. She uses lists to help her but for regular items she remembers. She manages her own finances. During the visit the applicant was observed to be arranging ongoing work with a contractor that was at her home.
Activities of daily living:
Toileting – Independent in all aspects of toileting although she normally uses her left hand due to right hand weakness.
Dressing – Independent in all aspects of dressing but on bad days pins and needles diminish fine motor skills so she avoids buttons etc. On 9 February the applicant was observed tying up shoe laces, doing up a button on a pair of pants using both hands and pulling up a zipper using both hands. The applicant appeared not to own a shirt with multiple buttons. She says she no longer buys clothes with multiple buttons to minimise the need to perform fine motor tasks.
Showering/bathing:
Usually showers standing but on a bad day leans on the wall or uses a shower stool. She uses a shower stool 3-4 days a month. On the day of the visit the shower stool was ‘somewhere in the shed’. She indicated it was there because she did not normally keep it in the house when her daughter was there. The applicant did not think that she needed a grab rail to enter or leave the shower. She advised she was independent in all aspects of showering including hair washing. She occasionally gets it done by a friend who is a hair dresser when she is feeling fatigued.
Grooming:
The applicant advised that she is independent in all aspects of grooming.
Feeding:
The applicant is independent in all aspects of feeding.
Domestic Activities of Daily Living:
Meal preparation – The applicant is independent in all aspects of meal preparation. When her daughter is not at home, she will have simple meals like eggs on toast. When friends come for dinner, she will often try new recipes. She is able to follow recipes. She is able to chop vegetables on a good day. On bad days she would use pre-prepared meals. On a bad day where she was unable to cook, she experienced the following symptoms – anxiety, depression, right upper limb fatigue/weakness/altered sensation or pain through her body from fibromyalgia.
Cleaning the kitchen – the applicant was able to perform independently all aspects of cleaning the kitchen. She could do this even on a bad day.
Cleaning the bathroom – The applicant is able to clean the bathroom except for the shower which is done by SASH.
Vacuuming – On a good day the applicant could vacuum the whole house. On a bad day she could only vacuum one room.
Mopping – The task of mopping is performed only by SASH.
Dusting – The applicant is independent in most aspects of the task.
Changing bed sheets – The applicant cannot lift the mattress to put on the top sheet under the mattress. She cannot put the doona in the doona cover due to right arm weakness. The SASH worker would normally make up the bed.
Laundry – The applicant is independent in washing and hanging laundry using a front loader and a trolley. She is independent in ironing. The applicant was observed to use both hands when doing laundry including fine motor tasks like pegging. On bad days the applicant does not do laundry.
Shopping – The applicant is independent in shopping which she does in the town of Orange or shops located at North Orange. On a bad day she would normally avoid going to the shops.
Lawn mowing and gardening – as discussed above.
Childcare responsibilities – The applicant has a two-year-old grandson who lives in Parkes. The grandchild was present on 9 February 2022. He was cared for by the applicant’s daughter throughout. The applicant advised that on multiple occasions she is solely responsible for the care of the child. She advised she is able to pick him up, bathe him, change his nappies and prepare his meals. She advised that she does not find it difficult.
Recreation and Leisure – Prior to her first FND episode in 2010 the applicant enjoyed strenuous leisure activities like water skiing, motor bike riding, horse riding. After the episode she was unable to continue due to loss of strength. She now has more sedentary recreational activities such as catching up with friends, going on day trips playing board games etc. The applicant also reported being an active committee member for the softball team. She no longer did canteen duty but watched games and was successful in getting sponsors for the team by making phone calls and speaking to people in person. She reported that Committee politics were likely to cause her to cease working on the Committee.
Driving and Transport – The applicant could drive to Orange in the day or night without difficulty. She was able to drive to Parkes in the daytime to pick up her grandson, a drive of about 80 minutes. On longer drives she needed music or conversation to manage her anxiety. Recently she had picked her grandson up from Manildra and returned to Orange, a round trip of 100 minutes. On bad days she would be unable to perform drives out of town.
Work and Study – In 2010 at the time of her first FND episode the applicant was working at the Orange Chiropractic Centre. She couldn’t continue in the role after her episode of FND. Resume documentation provided to Ms Greenfield indicated that the applicant stopped work at the Chiropractic Centre in August 2012. She advised she had not had a real job since then. Up until 2020 she helped a friend in a cleaning business doing ‘easy’ tasks. She believes she could not do regular work because of her fluctuating capacity and bad days. She has been in receipt of a Disability Support Pension since 2020.
It is clear from the report that during acute episodes of FND the applicant has substantially reduced functional capacity. These episodes however are relatively rare and the effects last only a few weeks. It is also clear that the applicant has a small number of bad days each month which to some degree reduce her functional capacity and psychosocial functioning. However, even on these days her functioning is not substantially reduced. On other days each month the applicant is capable of complex tasks which require significant physical capacity such as minding her grandson which indicate that the applicant does not have substantially reduced functional capacity in any of the areas identified in section 24.
Ms Greenfield was questioned at the hearing of the matter. She came across as a sensible and considered witness. She had observed the applicant exhibiting a high level of function on the days upon which she assessed her, and she confirmed this in her oral evidence. She rightly regarded the fact that the applicant was able to care for a two-year-old unassisted as important evidence of a high level of independent functioning both physical and cognitive. As she did not observe the applicant functioning outside of her home environment she was not in as strong position to comment on that, but she noted that she had recorded matters, reported by the applicant, which demonstrated a significant ability to travel to other towns, to engage in a social activities, and to undertake complex domestic activities within the Orange area.
Dr Schutz
A report was also obtained from Dr Anna Schutz, a consultant neurologist and neurophysiologist. She was asked to determine whether or not the applicant meets the disability requirements.
Her report stands in stark contrast to the observations of Ms Greenfield.
Ms Schutz saw Ms Davis on 2 November 2021 via telehealth. Ms Schutz took a history which is broadly consistent with the history which the applicant has given to others. She did however appear to proceed on the basis that the applicant lived with her daughter 100% of the time. She noted ongoing symptoms as including right sided weakness, hemiparesis and right upper limb sensory loss. She noted a history of falls including a recent fall involving a fractured ankle which she attributed to the applicant’s deficits arising from her FND. She noted that the applicant’s FND was causing tremors, myoclonic jerks and dystonic posturing of the applicant’s hands and feet. She noted that the applicant was in constant pain but with varying intensity. She noted that activities of daily living require modification but are able to be completed. She noted significant cognitive issues with significant memory impairment and general cognitive blunting. Planning and executive function was noted as significantly affected.
Her conclusions can be summarised as follows:
Communication and Social Interaction – The applicant has great difficulty communicating in busy environments. She finds it difficult to distinguish speech from the various sounds that she is hearing and this is typical with FND. If she becomes overwhelmed, she experiences significant word finding difficulty and slurred speech. Both Dr Schutz and her staff noted many instances of miscommunication and misunderstanding.
Learning – The applicant reported a significant deficit in learning. She can learn small, simple tasks but complicated new concepts will be very difficult to learn. The applicant reported significant deficits in memory which were observable during the consultation, both for simple and complex information she was trying to convey.
Mobility – The applicant is able to move around the house independently on a good day but duration and distance are limited by pain. On a good day she is able to walk a kilometre. On a bad day she reverts to crutches or a wheelchair for movement around the house.[7] She is not able to move about in the community for extended periods and is not able to mobilise any distances longer than a kilometre. She has difficulty navigating uneven surfaces and will routinely fall in these terrains. Her physical capacity to perform activities of daily living is affected due to right sided sensory abnormalities making it difficult to do fine motor tasks such as cooking, dressing with small buttons, eating, grooming and doing household tasks.
Self-care – There are no specific difficulties.
Self-management – There is a significant cognitive deficit as a result of the applicant’s FND. She has no capacity to organise or plan or make decisions. She is unable to make short trips to visit family members, and she is unable to plan the route, or the items that she will take. Every outcome needs to be considered, and every minute detail becomes overwhelming. Problem solving and decision making is affected. In her finances the applicant has made significant financial errors in the past. She has paid money from and into the wrong accounts, leaving her without services at times.
[7] ST6 p 273.
Dr Schutz also noted that the applicant requires physical supports for personal activities of daily living, in the form of a shower chair and toilet chair and that if the applicant requires a wheelchair to mobilise, she requires assistance to propel the chair. Meal preparation and cooking is performed by her daughter when she is present or by friends. Bills are supervised by her daughter. Friends and family are required to travel anywhere that is not routine and local. Dr Schutz confirmed the fibromyalgia diagnosis and noted that most patients with FND require intensive psychotherapy on an ongoing basis.
Dr Schutz expressed the opinion that the applicant’s cognitive capacity is substantially reduced and has a substantial impact on communication, social interaction, learning and self-management. She agreed that physical capacity is not substantially reduced in respect of mobility and self-care. Psychosocial support and psychotherapy are imperative for the maintenance of function. Dr Schutz also contends that intensive psychosocial support and psychotherapy is relevant to the early intervention criteria, especially paragraph 25(1)(b), in reducing the future need for support. The interventions are likely to reduce relapses both in terms of frequency and severity and therefore reduce future needs overall. It can also prevent deterioration as ongoing psychotherapy treats one of the perpetuating factors of FND in the applicant – namely anxiety and trauma history.[8] Dr Schutz did not regard mainstream community support for the applicant (in the form of psychological services) as adequate. In Dr Schutz’s opinion regular therapy access through NDIS has the potential to reduce hospital presentations and healthcare service consumption.
[8] I have read and accept Dr Schutz’s account of the applicant’s traumatic experiences but have not formally recorded them in this decision as they involve highly personal and distressing details about the applicant.
In Dr Schutz’s assessment hospital admissions in 2012 and 2014 may have been avoided and an inpatient rehabilitation admission may have been avoided if the applicant had received ongoing psychotherapy.
Dr Schutz was questioned by the respondent’s counsel at the hearing. A number of the observations within Ms Greenfield’s report which were inconsistent with the contents of Dr Schutz’s report were put to her. Dr Schutz did not regard them as sufficient for her to change her view of the applicant’s overall function.[9] This failure to reconsider her views in light of the functional levels recorded by Ms Greenfield caused me to doubt the objectivity with which Dr Schutz was approaching the matter. There were many things described in Ms Greenfield’s report which should have caused Dr Schutz to consider whether she had accurately assessed Ms Davis’ level of function in her report. Dr Schutz described the applicant as having no capacity to organise her life or plan or make decisions. Ms Greenfield had observed the applicant on the phone to building contractors making decisions. Dr Schutz described meal preparation as a task performed by the applicant’s daughter or friends. It is clear from Ms Greenfield’s report that it is a task performed regularly by the applicant. Despite this, there was no modification of Dr Schutz’s view of the matter or any adequate explanation as to why altering the underlying facts presented in her report (which were influential enough to be recorded in her report) did not, when altered, influence her assessment of the applicant’s function and the appropriate response.
[9] Transcript p 39.
For that reason I do not place much weight on the report of Dr Schutz and prefer the functional assessment conclusions reached by Ms Greenfield.
The applicant’s evidence
The applicant also gave evidence in the proceedings. She was a straightforward person who gave clear evidence to the Tribunal about how her conditions manifest. She was able to understand the questions asked of her and gave responsive answers. I did not detect any confusion on her part or slurred speech.
The applicant gave evidence which conveyed a picture of a highly functional individual who perhaps in an ideal world would receive more support, but who was generally coping well. For example, she was having her kitchen re-done and was dealing with the builder herself. Renovating a kitchen, even with the assistance of a builder, involves decision making and thought which the applicant, although challenged by the process, was able to undertake.[10] The applicant was also able to undertake trips outside of Orange to collect her grandson which, although she considered the journeys challenging, were within her capacities.
[10] Transcript p 11-12.
The applicant’s evidence in relation to her mobility was at times difficult to understand particularly when considered against the reports she made to health professionals. To Ms Greenfield she reported regular use of a walking stick. The applicant told Dr Schutz that on bad days she used a wheelchair. In the Tribunal her evidence was that she had used cuff-crutches twice in the last three months, had not used a walking stick in the last few months and didn’t like to be seen using aids.[11] I am satisfied that the applicant’s need to use equipment to maintain mobility fluctuates over time. After an acute episode of FND I am satisfied that the applicant does have restrictions on mobility. However, over time the applicant is able to eliminate her dependency on walking aids and at present is functionally mobile in a wide range of environments without any walking aids. She does however continue to use them occasionally.
[11] Transcript p 12-13.
In assessing the applicant’s functional capacity generally, I am satisfied that the most appropriate basis on which to proceed is to consider what was observed by Ms Greenfield. I accept that this assessment occurred in the applicant’s house where she is most comfortable and least affected by FND and her other impairments, but I have taken that into account in forming my views. The applicant’s evidence concerning her kitchen renovations, her interactions with her grandson and her activities with friends all conveyed a strong impression of someone who enjoyed good levels of function in a range of circumstances.
Does the applicant meet the disability requirements?
Disability requirements
In order to qualify for admission to the NDIS, an applicant must demonstrate substantially reduced functional capacity in 6 key areas. ‘Substantially’ is a ‘significant threshold for an applicant to satisfy’.[12] More is required than to simply show that functioning in the relevant areas is affected. Based on the conclusions in the report of Ms Greenfield and my own interactions with the applicant, I am not satisfied that she has substantially reduced functional capacity to undertake the activities specified in paragraph 24(1)(c). The applicant was a clear communicator with the Tribunal and there is no evidence that she had any difficulty in her dealings with Ms Greenfield. While Dr Schutz gave a very different account of the applicant’s difficulties, I am satisfied that Ms Greenfield obtained a more realistic picture of the applicant’s ability to communicate. Ms Greenfield’s report of her communications with the applicant was more consistent with the applicant’s communication capacity demonstrated in the course of the Tribunal hearing.
[12] Rooney and National Disability Insurance Agency [2021] AATA 3532 at [22].
The respondent submits and I accept that the available material does not suggest a substantial reduction in the applicant’s functional capacity to undertake social interaction. Ms Greenfield’s report demonstrates that the applicant has regular and significant social interactions including attending social events with friends, at friend’s homes and in her own home.[13] She describes leisure activities which include meeting up with friends and cooking for friends as well as other outings.
[13] ST 343
In relation to learning, Ms Greenfield’s report notes that the applicant is able to learn new recipes and she did not identify any significant deficits in learning.
As noted above the applicant’s accounts of her mobility varied. It is unclear on the evidence whether she needed any assistance from mobility aids. I am sure that she requires rehabilitation in this regard following acute episodes of FMD, but it is not clear to me whether significant difficulties with mobility are ongoing. There are certainly times when the applicant benefits from the added stability of a walking stick outside of her home, but how often she uses it is unclear. I am not satisfied that she suffers from substantially reduced functional capacity to undertake mobility. There is however some reduction in function which creates a risk of falls and occasions where assistance from a walking stick or crutch is an appropriate precaution.
In relation to self-care, I am satisfied that there is some reduction in capacity. The applicant has some difficulties with buttons and so avoids them. Whether she needs the on-going assistance of a toilet over-seat or a shower seat is unclear. The fact that the shower seat was in her shed on the day of Ms Greenfield’s visit suggests the item is not essential. As the applicant lives alone some weeks and on some occasions is the exclusive carer of her 2-year-old grandson, I am satisfied that she is independent in self-care with few restrictions.
The same is true in relation to self-management. If she can undertake building renovations where she is dealing directly with the builder, and care for a two-year-old on occasions, I am not satisfied that she has any significant difficulty with self-management. She did report to Dr Schutz that she makes errors when managing her own finances, but the kinds of mistakes she identified were not in my assessment evidence of significant cognitive decline that was interfering with self-management.
Accordingly, if the provisions of section 24(1)(c) are applied, the applicant does not meet the disability requirements. The Rules however include a deeming provision which, on its face at least, significantly lowers the threshold provided for in the NDIS Act.
Deeming provisions
The evidence before the Tribunal is that the applicant sometimes needs to use a walking stick or Canadian crutches in order to mobilise as a result of her condition and sometimes needs aids in relation to self-care. The applicant has however demonstrated a significant ability to move unassisted over a wide variety of terrain and engage in self-care without assistance. This raises for consideration whether, notwithstanding that the applicant cannot establish that she has substantially reduced functional capacity in the areas identified in section 24(1)(c), she nevertheless qualifies when the deeming provisions in the Rules are applied.
The relevant rule is Rule 5.8 which provides as follows:
When does an impairment result in substantially reduced functional capacity to undertake relevant activities?
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; …
This rule is made under section 27 of the NDIS Act which provides:
The National Disability Insurance Scheme rules may prescribe circumstances in which, or criteria to be applied in assessing whether:
(a)…
(b)One or more impairments result in substantially reduced functional capacity of a person to undertake, or psychosocial functioning of a person in undertaking, one or more activities for the purposes of paragraph 24(1)(c):…
On its face, Rule 5.8 prescribes a circumstance in which one or more impairments results in substantially reduced functional capacity.
Subsection 209(9) of the NDIS Act provides:
To avoid doubt, the National Disability Insurance Scheme rules may not do the following:
…
(e)directly amend the text of this Act.
The interaction between the threshold set in section 24(c) and Rule 5.8 has been the subject of consideration by the Tribunal and the Federal Court on a number of occasions. Despite this, significant uncertainty persists as to how the threshold in the NDIS Act interacts with the self-evidently lower threshold in the Rules.
Justice Mortimer in Mulligan v National Disability Insurance Agency [2015] FCA 544 (Mulligan) confirmed what is obvious from the text of Rule 5.8 - that it defines the circumstances in which a person must be taken to have “substantially reduced functional capacity” for the purposes of s 24(1)(c) of the NDIS Act.[14] Her Honour further confirmed that Rule 5.8 is a deeming provision which has the effect of mandatorily including some people in the category of person with substantially reduced functional capacity if the criteria in the rule are met.[15] Her Honour also noted that the concept of ‘substantially reduced functional capacity’ is not exhaustively defined by Rule 5.8 and so, while a decision maker must turn their mind to whether an applicant falls within the deeming effect of Rule 5.8 (the Rule), that is not necessarily the end of the exercise.[16]
[14] See paragraph [66].
[15] See paragraph [77].
[16] Ibid.
Her Honour’s remarks make clear that there are two paths to satisfying the disability requirements set down in paragraph 1(c) of section 24 – either by meeting the terms of the paragraph itself or by meeting the terms of the deeming provision provided for in the Rule.
It is worth re-iterating at this point that the threshold which must be met in the Rule is a much lower threshold than the threshold specified in the NDIS Act. The lowest specified threshold in the Rule is the following:
An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities…if its result is that:
(a)the person is unable to participate …completely in the activity, or to perform tasks or actions required to…participate…completely in the activity, without…equipment (other than commonly used items such as glasses)…
Not being able to completely participate in an activity without equipment is a significantly easier threshold to meet than establishing a substantially reduced functional capacity to undertake an activity.
Since the Mulligan decision, the large variance between the threshold specified in the Rule and paragraph 24(1)(c) of the NDIS Act has, over the course of a number of decisions, been ignored, applied or resulted in the Rule being specifically disregarded by the Tribunal in the course of its decision making. No consistent approach seems to have emerged.
When, following remittal by the Federal Court, the Mulligan decision was re-considered by the Tribunal in Mulligan and NDIA [2015] AATA 974 (Mulligan AAT), the Tribunal did not address the tension between the two thresholds, notwithstanding that one of the experts specifically relied upon the low threshold in Rule 5.8 in reaching his opinion that the disability requirements were satisfied.[17] In reaching the conclusion that Mr Mulligan did not meet the disability requirement, the Tribunal seemed not to specifically address the threshold in Rule 5.8 and applied only section 24 of the NDIS Act.
[17] See paragraphs [109] to [116] and [120] to [125]
The Tribunal considered a similar issue in the matter of Ditchfield and National Disability Insurance Agency [2019] AATA 2121 (Ditchfield), and because it applied the lower threshold in Rule 5.8 it found that the statutory threshold was met. The Tribunal found that the applicant was capable of walking at least 100 metres outside of his home but would experience pain and instability walking such distances, even with a walking stick (which the Tribunal characterised as a commonly used item). The evidence was that the applicant’s fear of falling would make him reluctant to walk lengthy distances outside the home. The Tribunal found that the applicant was mobile enough to access the community but once outside his car there were some significant limitations on his mobility in accessing places and making use of facilities in the community both safely and free of pain. The Tribunal concluded:
This being the case, the Tribunal considers that Mr Ditchfield falls short of being able to “leave the home” and ‘move about the community” “effectively or completely”. This qualifier, i.e. “effectively or completely” appearing in rule 5.8(a) is critical to the Tribunal reaching its conclusion about whether this deeming provision applies to Mr Ditchfield. The Tribunal does not accept the interpretation of this provision as contended by the NDIA – see paragraph [41]. Instead, the Tribunal considers that it must give those words, “effectively or completely” their ordinary and natural meaning.
The Macquarie Dictionary Online defines “effective” as meaning “serving to effect the purpose; producing the intended or expected result” and “complete” as “having all its parts or elements: whole; entire; full”. The Tribunal considers that this could not be said of Mr Ditchfield’s capacity to mobilise if he is able to drive places or facilities within the community but is unable to leave the car park to go inside of those facilities, or walk around those places, without experiencing pain or risking falling over. The Tribunal is satisfied that Mr Ditchfield’s mobility to this extent is both incomplete and ineffective…Accordingly, the Tribunal concludes that without wearing his raised shoes and orthotics and despite being permitted to use a walking stick, Mr Ditchfield is unable to participate effectively or completely in the activity of ‘mobility’, including to ‘leave the home’ and to ‘move about in the community’.
The upshot of this analysis is that if there is an identified deficiency in a person’s ability to leave their home and move about in the community then they will not be able to participate fully in the activity of mobility and the criteria in paragraph 24(1)(c) will be met. However, this approach has not received significant support in subsequent decisions.
The significance of the low threshold in Rule 5.8 as compared with the terms of the NDIS Act was identified as an issue by Deputy President Humphries in the decision Madelaine and National Disability Insurance Agency [2020] AATA 4025. It is worth setting out the factual conclusions reached by the Deputy President and the differing consequences if those facts are applied against the threshold in Rule 5.8 and the threshold applied in section 24(1):
Taking this evidence in toto, the Tribunal finds, applying the criteria in the Guideline, that Ms Madelaine is able to undertake many essential tasks relating to personal hygiene, grooming, dressing, cooking, feeding herself and administering medication. Despite the conflicting evidence, it considers that she can shower (however reluctantly) and in any case has an alternative form of bathing herself. She cannot clean her house but the Tribunal notes that this is not recorded as a criterion for self-care. She also cannot cut hard foods, but other, more pliable foods are available for the purposes of nutrition. On the other hand, the Tribunal finds that she cannot always wipe effectively after toileting, she cannot cut her toenails and her capacity to self-administer medication is sometimes compromised by forgetfulness or hand tremors. It should be noted that the evidence does not show that she is only unable to do these things on bad days.
Applying these findings, firstly, to the provisions of s 24(1)(c), it can reasonably be concluded that Ms Madelaine does not have substantially reduced functional capacity to undertake self-care. The things she cannot do, in relation to toileting, grooming and meeting her health needs, indicate some slight reduction in functional capacity, but not so as to amount to a substantial reduction. It could be said that such gaps as there are in her capacity to undertake self-care do not significantly compromise the maintenance of her health, safety and well-being.
However, a different outcome arises from the application of the deeming provision in Rule 5.8. By reason of the deficiencies in her capacity for toileting, grooming and health care, it should reasonably be concluded that she is unable to participate... completely in the activity of self-care (emphasis added). If, for example, she cannot complete the necessary tasks associated with toileting, she cannot be said to perform the tasks required to undertake that activity completely. Toileting is obviously a key component of self-care. Similarly, if medications are dropped and irretrievable, she cannot care for her own healthcare needs completely. On this basis, the Rule requires that she be deemed to have a substantially reduced functional capacity for self-care pursuant to s 24(1)(c).
As can be seen, Rule 5.8 applies a different regime for entry to the Scheme than that outlined in s 24(1)(c). The latter denies her entry, but the former facilitates it. In Drake, Brennan J postulated these rules with respect to the application of ministerial policy by the Tribunal:
These considerations warrant the Tribunal’s adoption of a practice of applying lawful ministerial policy, unless there are cogent reasons to the contrary...
When the Tribunal is reviewing the exercise of discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful...
(Emphasis added.)
In this case, it appears that the ministerial policy – Rule 5.8 – imposes a different (and lower) threshold for access to the Scheme than that outlined in s 24(1)(c). In these circumstances, it must be doubted that the rule reflects the intention of the Parliament in enacting s 24. Delegated legislation cannot take away what is clearly conferred by a substantive law, nor, conversely, can it enlarge the ambit or scope of that law beyond what was legislatively intended.
On this basis, employing the discretion in the Tribunal described by Brennan J in Drake, I will apply the entry criteria as outlined in s 24(1)(c) and disregard those in Rule 5.8, to the extent of the latter’s inconsistency with the former.
The key insight from this passage is that it is possible for the application of Rule 5.8 to produce different and more liberal outcomes than an application of the statutory test in section 24. I agree with that conclusion. However, unlike the learned Deputy President, I do not consider it to be a course open to me to simply disregard Rule 5.8 on the basis that it enlarges the scope of section 24 beyond what was legislatively intended.
There are a number of barriers to me doing so.
First, while there is scope for the Tribunal to consider, for the purposes of making a decision, whether any delegated legislation with which it is dealing is valid (see for example Re Costello and Secretary, Department of Transport (1979) 2 ALD 934 cited with approval in Saitta Pty Ltd v Commonwealth (2000) 106 FCR 554 at [103]), it is not always appropriate to do so (see Re Tomago-Aluminium co Pty Ltd and Collector of Customs (1988) 17 ALD 583. In the present matter, it has not been put to me that Rule 5.8 is invalid and should be disregarded on that basis, consequently it would not be appropriate to proceed on the basis that it is.
Second, I do not regard the Participation Rules to be in the same category as ministerial policy. They are delegated legislation made by the Minister with the approval of the Commonwealth and the states and territories and are not of a kind which I can simply disregard (like guidelines). Unless the Rules are invalid, they must be applied.
Third, it is far from clear that Rule 5.8 is invalid. It undoubtedly sets down a different test to that provided for in section 24, but section 27 of the NDIS Act authorises the prescription of criteria to be applied in assessing whether one or more impairments results in substantially reduced functional capacity. The rule making power is restricted by the injunction in section 209(9)(e) that it cannot directly contradict the text of the legislation, but it is not clear whether a Rule which merely waters down the effect of the text of the NDIS Act falls foul of that provision.
In those circumstances I am not prepared to proceed on the basis that Rule 5.8 in its current form should be treated as invalid. As a consequence, it is necessary to consider whether the applicant meets the test in Rule 5.8.
A Full Court of the Federal Court recently considered the significance of the phrase ‘effectively and completely’ in the context of Rule 5.8 in the matter of National Disability Insurance Agency v Foster.[18] It considered the question in the context of an applicant who needed an appliance to urinate but who was in all other senses independent in self-care. The Full Court emphasised that the task in Rule 5.8, just as it is under section 24(1), is to assess the degree to which the person can participate in the activity.
[18] [2023] FCAFC 11.
The Full Court noted that if the adverb ‘completely’ is given its ordinary meaning, what is being asked by the Rule is an assessment of whether a person’s impairment results in substantially reduced functional capacity to participate ‘wholly” or “perfectly” in the designated activities, including mobility and self-care. The Full Court identified this as ‘an impossible bar for almost everyone’ which I take to mean that if the phrase is applied literally, almost everyone with an impairment will be able to establish a deemed ‘substantially reduced functional capacity’ because they cannot participate completely in a designated activity.
In order to avoid the consequence that Rule 5.8 has the effect of lowering the disability requirement to a de minimus level, the Court widened its focus away from the specific acts which the applicant could not perform without assistive technology, to a more general assessment of the persons capacity to undertake the activity of self-care and with the benefit of assistive technology. Whether, in the specific case, the second part of that approach is permissible in light of the text of Rule 5.8 is not for me to judge, but the approach taken by the Full Court highlights two things.
First, the text of Rule 5.8 if applied literally, creates an exceptionally low threshold for deeming when an impairment results in ‘substantially reduced functional capacity’. It is surprising that the Commonwealth agreed to the making of such a rule which so radically altered the threshold prescribed in the text of the NDIS Act.
Second, to overcome the broad access outcomes which the words used in Rule 5.8 produce if applied literally, it is permissible to take a wider perspective on what the ‘activity’ of ‘mobility’ is, rather than focus narrowly on ‘tasks or actions…required to …participate…completely…in the activity’.[19] This is permissible notwithstanding the text of Rule 5.8.
[19] See in particular paragraph [89].
Applying this broad-brush approach to Ms Davis, albeit with some misgivings, I am satisfied that she enjoys a high level of mobility functioning when not subject to the immediate effects of an acute episode of FND. In the home context, including outside, she is mobile and does not require the assistance of any equipment. So much was observed by Ms Greenfield.
When she is away from her home she is at risk of a fall and on occasion may use a walking stick or cuff crutches. Use of such equipment is rare,[20] and she can mobilise without the use of the equipment.
[20] Twice in the last three months – see transcript at p 12.
The evidence indicates that the applicant is able to mobilise in a wide variety of contexts albeit with some limitations as to distance and some associated risks, none of which have sufficient impact on her overall ability to mobilise so as to bring her within the terms of Rule 5.8.
In relation to the other activities which are governed by Rule 5.8, I am satisfied that the applicant can participate effectively and completely in communication, social interaction, learning, self-care and self-management except when her FND is acute. The minor daily impacts of her condition identified in Ms Greenwell’s report are not sufficient to justify a different conclusion.
Early intervention Requirement
Under section 25 of the NDIS Act, a person meets the early intervention requirements if:
(a)…
(i) ….
(ii) ….
(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; …
As noted at the outset, the applicant did not press the contention that she met the early intervention requirements in any noticeable way at the hearing. Accordingly, I will deal with the issue very briefly.
The evidence that could support the conclusion that the provision of early intervention supports for the person is likely to benefit the person by reducing the person’s needs for supports is to be found in the report of Dr Schutz. Dr Schutz identified the applicant as having significant cognitive issues which affected her learning and communication and psychosocial participation.
Those reports are at odds with the observations of Ms Greenwell, the Tribunal’s own observation of the applicant’s participation in the hearing and the applicant’s own description of the activities which she engages in. Ms Greenwell identified activities which demonstrated the applicant’s ability to learn (preparing new recipes), to operate independently (caring for her grandson) and to participate socially (preparing meals for friends).[21] When these are considered in a context where the applicant has been living alone (because her daughter’s room is filled with kitchen items) while arranging a kitchen renovation, and her demonstrated an ability to communicate to a high standard in the context of the Tribunal hearing, I am not prepared to put weight on Dr Schutz’s assessment. I am not satisfied that the applicant is exhibiting the kinds of disability which Dr Schutz identified in her report and which will be addressed by psychological intervention.
[21] ST8 p 321, 327.
In the circumstances I am not satisfied that the provision of early intervention supports is likely to benefit the applicant by reducing the applicant’s future needs for supports.
Conclusion
The decision under review is affirmed.
I certify that the preceding 107 (one hundred and seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member O'Donovan
.........................[SGD]...............................................
Associate
Dated: 30 May 2023
Date(s) of hearing: 8 November 2022 Date final submissions received: 10 March 2023 Applicant: Self-represented Counsel for the Respondent: Mr Nicholas Swan Solicitors for the Respondent: HWL Ebsworth
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