Ditchfield and National Disability Insurance Agency

[2019] AATA 2121

Ditchfield and National Disability Insurance Agency [2019] AATA 2121 (23 July 2019)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number:           2017/5697

Re:Gregory Ditchfield

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

Decision

Tribunal:Member K. Parker


Date:23 July 2019

Place:Melbourne

The Tribunal sets aside the decision under review and in substitution decides that Mr Ditchfield meets the access criteria under s 21 of the National Disability Insurance Scheme Act 2013 (Cth).

.....................[sgd]...................................................

Member K. Parker

Catchwords

NATIONAL DISABILITY INSURANCE SCHEME – access – leg length discrepancy – whether substantially reduced functional capacity – mobility – “commonly used items” – decision to set aside

Legislation

National Disability Insurance Scheme Act 2013 (Cth)

National Disability Insurance Scheme (Becoming a Participant) Rules 2016

Cases

Holmes and National Disability Insurance Agency [2017] AATA 2750

Mulligan v National Disability Insurance Agency [2015] FCA 544

Secondary Materials

Siffert RS, Current concepts review: lower limb length discrepancy. J Bone Joint Surg 1987;69:616-23

Kaufman KR, Miller LS, Sutherland DH.  Gait asymmetry in patients with limb-length inequality.  J Pediatr Othop 1996;16:144-50.

Gurney, B. Leg length discrepancy. Gait and Posture 15 (2002) 195-206

NDIA Operational Guidelines

REASONS FOR DECISION

Member K. Parker

23 July 2019

1. 1.        This application is about whether Mr Gregory Ditchfield should be granted access to the National Disability Insurance Scheme (the NDIS).  He has a leg length discrepancy (LLD) of approximately 20mm that arose from surgery performed on his leg in 1973 following a motorbike accident.  This condition has impaired Mr Ditchfield’s ability to walk normally.  He has required assistance in the form of a raised or built up shoe and specially-fitted orthotics in order to equalise his leg length. 

2. 2. Mr Ditchfield contends that he meets the access criteria under s 21 of the National Disability Insurance Scheme Act 2013 (Cth) (the Act).

3. 3. To gain access to the NDIS, under s 21 of the Act Mr Ditchfield is required to meet:

   a.(a)       the “age” access criteria; and

   b.(b)       the “residence” access criteria; and

   c.(c)       either the “disability” access criteria or the “early intervention” access criteria.

4. 4.        The National Disability Insurance Agency (the NDIA), being the relevant Commonwealth agency which administers and delivers the NDIS, accepts that Mr Ditchfield meets both the “age” and “residence” access criteria, but contends that he does not meet the “disability” or “early intervention” access criterion.

5. 5.        For the reasons set out below the Tribunal is satisfied that Mr Ditchfield meets the “disability” access criteria. The Tribunal sets aside the decision under review and substitutes it for a decision that Mr Ditchfield meets the access criteria under s 21 of the Act.

   background

6. 6.        Mr Ditchfield stated that his involvement in a serious motorbike accident in 1973 caused him to sustain injuries to his right tibia, fibula and femur.  Surgery was performed on his leg and it has left him with a discrepancy in the length of his legs.  Mr Ditchfield stated that he has used a specifically fitted orthotic to assist him with mobility “ever since”.   He claimed that his disability was permanent and ongoing. 

7. 7.        There is no dispute that Mr Ditchfield’s condition of leg discrepancy is permanent and ongoing.  Mr Ditchfield stated that the only time he did not use the raised shoes fitted with orthotics was for mobilising short distances around the home, and that otherwise, he used them both inside and outside of the home.

8. 8.        Mr Ditchfield is aged in his 60s and lives with his wife in Delacombe, Victoria.  At the hearing, he told the Tribunal that his present occupation was that of a “driver”.  Mr Ditchfield said he worked on a part-time basis and that he mostly drove caravans for a “chap” and rental vehicles for Avis rental moving those vehicles from one location to another.   Mr Ditchfield told the Tribunal he had previously worked in a bakery for 30 years.  He said he had worked as a baker from the age of 15 until 1998 which required him to be on his feet.  He said he worked six days a week; between eight and 12 hours per day.

9. 9.        Mr Ditchfield said that used to swim, but now all he did was fishing and hunting.  He said he went for walks in the bush but “not so much lately”.  He said he would go out hunting for the day, but he would not be walking for the whole day as he used either quad bikes or vehicles.

10. 10.      Mr Ditchfield gave evidence at the hearing that he had about three (pairs of) shoes “fitted or prescribed” per year.  He told the Tribunal this involved stripping the soles off a pair of normal shoes and then raising or building up the soles by affixing a moulded orthotic as a new mid-layer of the shoe.   He said the orthotic is moulded from a plaster cast taken of his feet and that a new mould was taken of his feet approximately once every three years. 

11. 11.      Mr Ditchfield confirmed at the hearing that over time the “technology” had improved and it had been helpful in terms of his mobility.  He stated:

    Yes, yes, because it’s straightened my back up and my body up and I don’t get back pain like I did and – yes, yes.  Because of the footwear and the orthotics, I can do, within reason, most things I want to do, yes.

12. 12.      Mr Ditchfield told the Tribunal that he did not need to see any other specialist about his lower leg injury, other than the orthotist, and he stated:

    No, while I’m using it, it’s fine.  If I was without it, it would change the thing completely.

13. 13.      Mr Ditchfield confirmed that he had accessed the Victorian State-wide Equipment Program (SWEP) program but that it had not covered all of his expenses.  He stated:

    No, it sort of – I think they’re allocated so much money and when they first put you on the program, they might – I think it was something like $160 per year to have one shoe done or something like that.  But then, when the funding disappears, you sort of – if you’re not in the front of the line, I don’t think you get it.  And it was hard work trying to get it.

14. 14.      Mr Ditchfield gave evidence that he had about three pairs of fitted shoes which he had funded.  Mr Ditchfield demonstrated his ability to walk in the hearing room without wearing his fitted orthotics.   Mr Ditchfield was asked at the hearing to comment on a suggestion that had been made by an expert witness relied upon by the NDIA that a 20mm leg discrepancy would not have affected the ability of “a 64-year-old male’s ability to mobilise”.  Mr Ditchfield adamantly proclaimed that this suggestion was “rubbish”.    The Tribunal accepts the evidence of Mr Ditchfield.  It was apparent to the Tribunal by direct observation made at the hearing that his 20mm leg discrepancy affected his ability to walk normally and caused him to walk with a noticeable limp.

15. 15.      During cross-examination, Mr Ditchfield said he had originally used a built-up heel; then he used orthotics; and then he said he went onto the full sole.

    Issues

16. 16.      The issue arising in the case is whether Mr Ditchfield satisfies the “disability requirements” under s 24 of the Act. There are five mandatory requirements that Mr Ditchfield must satisfy in order for him to meet the “disability requirements” as set out in subsections 24(1)(a) to (e) (reproduced in the paragraph below).   The NDIA has conceded that Mr Ditchfield meets the requirements in subsections (1)(a), (b) and (d).  However, the NDIA contends that he does not satisfy the requirements as set out in subsections (1)(c) and (e).

    legislative regime

17. 17. Section 24 of the Act 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 to one or more impairments attributable to a psychiatric condition; and

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

    (c)the impairment or impairments result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the following activities:

    (i)        communication;

    (ii)       social interaction;

    (iii)      learning;

    (iv)      mobility;

    (v)       self-care;

    (vi)      self-management; and

    (d)the impairment or impairments affect the person’s capacity for social or economic participation; and

    (e)the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime.

    (2)For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the variation.

18. 18. Section 27(b) of the Act provides that the NDIS rules may prescribe circumstances in which, or criteria to be applied in assessing whether one or more impairments result in “substantially reduced functional capacity” of a person to undertake one or more activities for the purpose of s 24(1)(c) of the Act. Such rules have been prescribed, namely, the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (NDISAccess Rules).  The Tribunal is bound to apply the legislation as enacted, including the NDIS Rules.

19. 19. 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:

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

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

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

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

    [Paragraph 5.8 is made for the purposes of paragraph 27(b) of the Act.]

20. 20. The NDIA has also 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.

21. 21. Section 8.3 of the Operational Guidelines deals with the access criteria under s 24(1)(c) of the Act as reproduced below:

    8.3  Substantially reduced functional capacity to undertake relevant activities

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

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

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

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

    •            Learning: includes understanding and remembering information, learning new things, practicing and using new skills;

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

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

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

    The NDIA does not need to be satisfied that a person's impairment is 'serious', or more serious than another person's. Rather, access to the NDIS is based on a functional, practical assessment of what a person can and cannot do (see Mulligan and NDIA [2015] FCA 44 at [56]).

    The NDIA will not need to consider whether a prospective participant's impairment results in substantially reduced functional capacity in relation to all of the relevant activities for every access request.

    It is sufficient for a prospective participant to have substantially reduced functional capacity in relation to one activity (see Mulligan and NDIA [2015] FCA 44 at 67).

    Which activity the NDIA will need to consider will depend on the circumstances and the evidence presented by the prospective participant. For example, if a prospective participant has an impairment which results in substantially reduced functional capacity to undertake mobility, but otherwise has full cognitive capacity, it may not be necessary for the NDIA to consider whether the impairment results in substantially reduced functional capacity to undertake activities related to cognition.

22. 22. Section 8.3.1 of the Operational Guidelines elaborates upon the circumstances when an impairment results in “substantially reduced functional capacity” to undertake activities, as set out below:

    An impairment results in substantially reduced functional capacity to perform one or more activities when:

    •            the person is unable to participate effectively or completely in the activity or perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items) or home modifications (rule 5.8(a) of the Becoming a Participant Rules); 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 (rule 5.8(b) of the Becoming a Participant Rules); 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 (rule 5.8(c) of the Becoming a Participant Rules).

    The following information provides further guidance in relation to determining when an impairment results in substantially reduced functional capacity:

    By itself, reliance on commonly used items will not result in a substantially reduced functional capacity to participate effectively or completely in an activity. Commonly used items include glasses, walking sticks, non-slip bath mats, bathroom grab rails, stair rails, age appropriate child safety locks, simple adapted kitchen utensils and dressing aids.

    In considering the role played by assistive technology, home modifications and equipment, the NDIA will consider specific needs arising from the prospective participant's impairment, and whether those needs are met (or need to be met) through the use of specialist disability aids and/or equipment.

    Such items would generally be specifically designed to assist in increasing the functional capacity and participation of people with disability and be formally prescribed by a medical practitioner, specialist clinician or allied health professional such as an occupational therapist, physiotherapist or speech therapist.

    When considering whether a person requires assistance from others to participate or perform tasks associated with an activity, the NDIA will have regard to whether a person's need for assistance is consistent with normal expectations of a person of a similar age. For example, children under the age of 2 will not necessarily have a substantially reduced functional capacity because they need assistance to provide for self-care needs.

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

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

    Objectives and guiding principles

23. 23. Section 3 of the Act provides as follows (emphasis added):

    3.        Objects of Act

    (1)       The objects of this Act are to:

    (a)in conjunction with other laws, give effect to Australia’s obligations under the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006 ([2008] ATS 12); and

    (b)provide for the National Disability Insurance Scheme in Australia; and

    (c)support the independence and social and economic participation of people with disability; and

    (d)provide reasonable and necessary supports, including early intervention supports, for participants in the National Disability Insurance Scheme launch; and

    (e)enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports; and

    (f)facilitate the development of a nationally consistent approach to the access to, and the planning and funding of, supports for people with disability; and

    (g)promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the community; and

    (ga)protect and prevent people with disability from experiencing harm arising from poor quality or unsafe supports or services provided under the National Disability Insurance Scheme; and

    (h)raise community awareness of the issues that affect the social and economic participation of people with disability, and facilitate greater community inclusion of people with disability; and

    (i)in conjunction with other laws, give effect to certain obligations that Australia has as a party to:

    (i)the International Covenant on Civil and Political Rights done at New York on 16 December 1966 ([1980] ATS 23); and

    (ii)the International Covenant on Economic, Social and Cultural Rights done at New York on 16 December 1966 ([1976] ATS 5); and

    (iii)the Convention on the Rights of the Child done at New York on 20 November 1989 ([1991] ATS 4); and

    (iv)the Convention on the Elimination of All Forms of Discrimination Against Women done at New York on 18 December 1979 ([1983] ATS 9); and

    (v)the International Convention on the Elimination of All Forms of Racial Discrimination done at New York on 21 December 1965 ([1975] ATS 40).

    Note:In 2013, the text of a Convention or Covenant in the Australian Treaty Series was accessible through the Australian Treaties Library on the website ( objects are to be achieved by:

    (a)providing the foundation for governments to work together to develop and implement the National Disability Insurance Scheme launch; and

    (b)adopting an insurance‑based approach, informed by actuarial analysis, to the provision and funding of supports for people with disability; and

    (c)establishing a national regulatory framework for persons and entities who provide supports and services to people with disability, including certain supports and services provided outside the National Disability Insurance Scheme.

    (3) In giving effect to the objects of the Act, regard is to be had to:

    (a)the progressive implementation of the National Disability Insurance Scheme; and

    (b)the need to ensure the financial sustainability of the National Disability Insurance Scheme; and

    (c)       the broad context of disability reform provided for in:

    (i)the National Disability Strategy 2010‑2020 as endorsed by COAG on 13 February 2011; and

    (ii) the Carer Recognition Act 2010; and

    (d)the provision of services by other agencies, Departments or organisations and the need for interaction between the provision of mainstream services and the provision of supports under the National Disability Insurance Scheme.

1. 24. Section 4 establishes a set of general principles to guide actions taken under the Act, as set out below (emphasis added):

   4  General principles guiding actions under this Act

   (1)People with disability have the same right as other members of Australian society to realise their potential for physical, social, emotional and intellectual development.

   (2)People with disability should be supported to participate in and contribute to social and economic life to the extent of their ability.

   (3)People with disability and their families and carers should have certainty that people with disability will receive the care and support they need over their lifetime.

   (4)People with disability should be supported to exercise choice, including in relation to taking reasonable risks, in the pursuit of their goals and the planning and delivery of their supports.

   (5)People with disability should be supported to receive reasonable and necessary supports, including early intervention supports.

   (6)People with disability have the same right as other members of Australian society to respect for their worth and dignity and to live free from abuse, neglect and exploitation.

   (7)People with disability have the same right as other members of Australian society to pursue any grievance.

   (8)People with disability have the same right as other members of Australian society to be able to determine their own best interests, including the right to exercise choice and control, and to engage as equal partners in decisions that will affect their lives, to the full extent of their capacity.

   (9)People with disability should be supported in all their dealings and communications with the Agency and the Commission so that their capacity to exercise choice and control is maximised in a way that is appropriate to their circumstances and cultural needs.

   (10)     People with disability should have their privacy and dignity respected.

   (11)     Reasonable and necessary supports for people with disability should:

   (a)support people with disability to pursue their goals and maximise their independence; and

   (b)support people with disability to live independently and to be included in the community as fully participating citizens; and

   (c)develop and support the capacity of people with disability to undertake activities that enable them to participate in the community and in employment.

   (12)The role of families, carers and other significant persons in the lives of people with disability is to be acknowledged and respected.

   (13)The role of advocacy in representing the interests of people with disability is to be acknowledged and respected, recognising that advocacy supports people with disability by:

   (a)promoting their independence and social and economic participation; and

   (b)promoting choice and control in the pursuit of their goals and the planning and delivery of their supports; and

   (c)maximising independent lifestyles of people with disability and their full inclusion in the community.

   (14)People with disability should be supported to receive supports outside the National Disability Insurance Scheme, and be assisted to coordinate these supports with the supports provided under the National Disability Insurance Scheme.

   (15)Innovation, quality, continuous improvement, contemporary best practice and effectiveness in the provision of supports to people with disability are to be promoted.

   (16)Positive personal and social development of people with disability, including children and young people, is to be promoted.

   (17)It is the intention of the Parliament that the Ministerial Council, the Minister, the Board, the CEO, the Commissioner and any other person or body is to perform functions and exercise powers under this Act in accordance with these principles, having regard to:

   (a)the progressive implementation of the National Disability Insurance Scheme; and

   (b)the need to ensure the financial sustainability of the National Disability Insurance Scheme.

   Mr Ditchfield’s contentions

2. 25.      Mr Ditchfield contended that he used “assistive technology” in the form of a specially-fitted orthotic in order to undertake the activity of “mobility” and therefore, he satisfied rule 5.8 of the NDIS Access Rules. Mr Ditchfield contended that the specially-fitted orthotic could not be said to be a “commonly used item”.   Mr Ditchfield relied upon the description of “commonly used items” in the Operational Guidelines which described them to include the following:

   glasses, walking sticks, non-slip bath mats, bathroom grab rails, stair rails, age appropriate child safety locks, simple adapted kitchen utensils and dressing aids.

3. 26. Mr Ditchfield also relied upon references in the Operational Guidelines that the NDIA had accepted the significant role that technology (such as the specially fitted orthotics) played for existing NDIA participants with a significant impairment.

4. 27.      Mr Ditchfield referred to the reason provided by the NDIA for denying him access to the scheme as set out below and contended that it was a misinterpretation of the definition of “substantial reduction in functional capacity”:

   It is acknowledged that you have a reduction in functional capacity in mobility, however these are not considered to be a substantial reduction.  It is noted that you are able to “mobilise within the home for short distances without any aid to assist” and although you do require an aid to mobilise long distances due to pain and fatigue, you are still able to mobilise short distances.  This is therefore not considered to be a substantial reduction in functional capacity.

5. 28.      Mr Ditchfield contended that the NDIA’s interpretation:

   a.(a)       was unduly narrow;

   a.(b)       ignored the purpose and objects of the NDIS;

   b.(c)       ignored the evidence from Mr Ditchfield (as confirmed by his treating orthotist); and

   c.(d)       ignored the NDIA’s Operational Guidelines.

d. 29. Mr Ditchfield drew the Tribunal’s attention to the following extract from Chapter 8 of the Operational Guidelines dealing with the disability requirements and referring to examples a “substantial reduction in functional capacity” in the area of mobility as follows:

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

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

a.       30.      Mr Ditchfield contended that the NDIA was ignoring these guidelines by denying him access because he could move short distances around the home.  Mr Ditchfield contended that he was required to wear his orthotic to “leave the home”, “move about in the community” and “perform other tasks” being the examples provided in the above extract from the Operational Guidelines. Mr Ditchfield contended he could not achieve mobility in his daily life merely by moving a few steps within the confines of his home.

b. 31. Mr Ditchfield contended that the Operational Guidelines were not confined to walking, or merely ambulating but instead, referred to “ordinary activities of daily living” and this meant the Tribunal must consider the overall effect of a person’s impairment on their ability to participate in personal or community life. 

c.       32.      Mr Ditchfield also drew the Tribunal’s attention to the observations of Justice Mortimer in Mulligan v National Disability Insurance Agency [2015] FCA 544 (Mulligan) at [51]. The Tribunal has extracted this observation, and notes also her Honour’s observations more broadly at [50] to [56] regarding the construction of the access criteria under the Act (emphasis added):

Some issues of construction

1.50. The access criteria in Ch 3 of the Act are an essential component of the NDIS as conceived. They are designed to impose a number of thresholds on access to the NDIS. By s 13, broad and general provision may be made for persons with disabilities – but access to the NDIS, and the supports, funding and autonomy it is intended to deliver, is reserved for a subcategory of persons with disabilities. One of the issues which this appeal presents is the height of the thresholds set, and the focus of the thresholds, at least through the operation of s 24(1).

1.51. Some general observations should be made about these matters. The term “disability” is used in the Act, and in s 24, as a descriptive concept for the overall effect of a person’s impairments on that person’s abilities to participate in all aspects of personal and community life. Threshold provisions such as s 24 operate not on the concept of disability, but on the concept of an impairment, which, as the Tribunal correctly observed at [19] of its reasons, is generally understood as involving the loss of or damage to a physical, sensory or mental function.

1.52.      Although an impairment may, in general terms (and, for example, in the terms of Art 1 of the Convention on the Rights of Persons with Disabilities extracted above) be responsible for or related to a disability, the threshold in s 24 revolves around the severity and permanency of the effects of the impairments experienced by a person, so as to justify the provision of the “reasonable and necessary supports” to which participants may be entitled, after assessment in accordance with Pt 2 of Ch 3 of the Act.

1.53.      At p 14 of the revised Explanatory Memorandum, the purpose of what became s 24 is described:

Clause 24 sets out the disability requirements a person must satisfy in order to become a participant in the NDIS launch. The disability requirements are designed to assess whether a prospective participant has a current need for support under the scheme, based on one or more permanent impairments that have consequences for the person’s daily living and social and economic participation on an ongoing basis. This clause also implements recommendation 3.2 of the Productivity Commission report.

1.54.      Recommendation 3.2 of the Productivity Commission Inquiry Report, “Disability Care and Support” (31 July 2011), stated:

Individuals receiving individually tailored, funded supports through the NDIS:

•                 should have a disability that is, or is likely to be, permanent, and

•                 would meet one of the following conditions:

•          have significantly reduced functioning in self-care, communication, mobility or self-management and require significant ongoing support

•          be in an early intervention group, comprising individuals for whom there is good evidence that the intervention is safe, significantly improves outcomes and is cost effective

In exceptional cases, the scheme should also include people who would receive large identifiable benefits from support that would otherwise not be realised, and that are not covered by the groups above. Guidelines should be developed to inform the scope of this criterion and there should be rigorous monitoring of its effects on scheme costs.

1.55. Using the concept of impairment enables assessment of the severity and permanency of a person’s condition, and of the effects of that condition through not only the evidence of an applicant, but also medical and clinical evidence. The legislative scheme contemplates a relatively high degree of precision by decision-makers (see, for example, the six activities in s 24(1)(c)) in assessing what a person can or cannot do. The assessment to be undertaken is avowedly functional, and multi-faceted.

1.56.      That being the case, no arbitrary limits are placed on access to the NDIS. No decision-maker need be satisfied a person’s impairment is “serious”, or more serious than another person’s. No qualitative judgments in that sense are called for. Rather, the legislative scheme is based on a functional, practical assessment of what a person can and cannot do. Critically, the scheme makes detailed provision for that assessment, and it is sufficient for a person to have substantially reduced functional capacity in relation to one activity. That, in my opinion, recognises the spectrum of impairments which can be experienced by persons with disabilities, and accommodates different abilities within one person in terms of her or his daily activities. That is why a detailed functional assessment is so important.

1. 33.      Mr Ditchfield contended that he could not “mobilise” for more than a few steps without the use of his orthotic and that when measured against his overall functional level of mobility, it was not sufficient to justify a conclusion that his impairment was not significant.  Mr Ditchfield contended as follows:

   Any suggestion that because the Applicant may be able to walk on a flat surface for 50 metres unaided, ignores the Guidelines and the ruling in Mulligan, and gives an unduly narrow definition of mobility with the Tribunal should reject.

2. 34.      Mr Ditchfield contended that the purpose of the requirement as identified by Justice Mortimer at [153] in Mulligan that the Tribunal is required to consider a prospective participant’s overall circumstances in assessing whether they required support under the scheme for their lifetime as required by s 24(1)(e) of the Act, seemed to distinguish that subset of people with serious and permanent disabilities who are intended to be the beneficiaries of funded supports.

3. 35.      Mr Ditchfield confirmed that he had accessed rebates via the SWEP program.  However, in effect, he contended that the supports he sought could not be categorised as being more appropriately funded through another system, such as the “health” system, because SWEP only provided a subsidy towards the cost of equipment and/or modifications.

4. 36. Finally, Mr Ditchfield conceded that his circumstances did not meet the early intervention access criteria set out in s 25 of the Act as his impairment was long-standing, permanent, and not amenable to early interventions.

   Ndia’s contentions

5. 37.      The NDIA also referred the Tribunal to the definition of “mobility” as provided in the Operational Guidelines and contended that it accords with the natural English meaning of the term and should be adopted as the sense in which “mobility” is used in s 24(1)(c)(iv) of the Act.

6. 38. The NDIA drew the Tribunal’s attention to rule 5.8 of the NDIS Rules and contended that:

   a.(a)       it did not require the Tribunal to form any view about whether Mr Ditchfield’s condition was serious (based on Justice Mortimer’s observations at [56] in Mulligan); and

   b.(b)       the Tribunal is not confined to limiting its evaluation to whether Mr Ditchfield suffered from “substantially reduced functional capacity” by reference to what is set out in rule 5.8.

7. 39. With those caveats, the NDIA contended that the issue in this application centred on rule 5.8(a) (but not exhaustively) and whether Mr Ditchfield was “unable to participate effectively or completely” in the activity of mobility or was unable to perform the tasks required to achieve such participation, without assistive technology, equipment or home modifications. The NDIA contended that this formulation must be understood in the context of the criterion in the Act required a “substantial” reduction in functional capacity.  In relation to the meaning of “substantial”, the NDIA contended as follows:

   “Substantial” in this context means of “considerable size” (as opposed to other senses in the term used in contradistinction of the notion of “formal”, or “imaginary”).  The term connotes a notion that a certain “degree” of impairment is required before a person can access the Scheme, and inherent in that choice by Parliament is that some impairments, although genuine, will not be sufficient to enable that person to access the Scheme.

8. 40.      The NDIA contended that the evaluation of Mr Ditchfield’s impairment needed to take place without the benefit of any assistive technology or equipment other than commonly used items such as glasses or any home modifications.  The NDIA conceded that Mr Ditchfield’s shoe modifications (including the embedded “lift” and the inserted orthotics) are not a commonly used item.

9. 41.      The NDIA contended as follows:

   The inquiry is directed to whether the applicant is unable to participate effectively or completely in the activity of mobility; any ability to achieve effective mobility or complete mobility (in the defined sense) will mean that the criterion is not met.

   Further, the criterion is not met just because participation in the activity of mobility is made more efficient by the use of assistive technology or equipment.  Nor is it met because the applicant might “better” participate in the activity of mobility as a result of the assistive technology or equipment.  Nor is it met because a person might not enjoy the experience of undertaking the activity of mobility without the benefit of the assistive technology or equipment, or may experience discomfort or pain in doing so.

   Rather, the question is a somewhat narrow one, concerning the extent of the applicant’s functional capacity to achieve the activity of mobility.

10. 42. The NDIA contended that where s 24(1)(c) of the Act is not met, it followed that s 24(1)(e) of the Act would not be met as it took s 24(1)(c) as its subject matter and extended it into the future. The NDIA contended that on this basis, s 24(1)(e) of the Act was not met by Mr Ditchfield.

11. 43.      In the NDIA’s Closing Submissions, the NDIA contended that the Tribunal should treat Mr Ditchfield’s evidence at the hearing “with some caution” on account of the following:

    a.(a)       Mr Ditchfield had “incorrectly” answered a question on a Driver Health Questionnaire form submitted by him to the Taxi Services Commission by stating that did not suffer from any physical impediment and that Mr Ditchfield conceded that the correct to answer to this question was “yes”, instead of the “no” answer that he provided seeking to gain a benefit for himself;

    b.(b)       by Mr Ditchfield having provided incorrect information in the past, the NDIA contended that it made it more likely that he might exaggerate the severity of his condition in this application or not be entirely frank about the extent of capabilities and might offer an explanation as to why he was reluctant to engage in discussion about his ability to mobilise without any assistance or without the aid of a walking frame; and

    c.(c)       inconsistencies in Mr Ditchfield’s evidence had the potential to mislead the Tribunal in its consideration of the impact of his condition on his ability to mobilise.

12. 44.      After making detailed contentions of the evidence given at the hearing (which the Tribunal has considered), the NDIA contended that the “real issue” in this application was that Mr Ditchfield could mobilise to a substantial degree, but in doing so, it put him at risk of experiencing discomfort, pain or other consequences associated with his limp or his posture.

13. 45.      The NDIA contended that it was important to consider that the NDIS does not subsidise mobility enhancements per se, or otherwise subsidise a person “better” participating in a relevant activity. 

14. 46.      The NDIA sought to rely upon a previous decision of the Administrative Appeals Tribunal (AAT) in Holmes and National Disability Insurance Agency [2017] AATA 2750 (Holmes) where at [76], Member Professor R McCallum AO found that the criterion in s 24(1)(c)(iv) was not satisfied where a person could mobilise for 50 metres unaided. The Tribunal has considered the Holmes decision and acknowledges that this Tribunal is not bound by it.  Importantly, in cases of this type, the Tribunal reluctant to adopt a measure used in one application before the Tribunal and apply in inflexibly in another application before it, where such measures are not prescribed by the legislative regime or as suggested under policy guidance provided by the NDIA. For one thing, this would present a risk of the Tribunal overlooking the individual circumstances of each applicant seeking review.  This approach is consistent with the observations of Justice Mortimer in Mulligan.  Further, the Tribunal also notes that in Holmes, the applicant was able to walk 50 metres unaided before he had to rest and then after resting, he was able to continue walking.

1. 47.      After hearing all of the evidence, the NDIA put its case in the following way:

   1. (a)       The Tribunal should find that a walking frame is a commonly used item within the meaning of cl 5.8(a) of the Rules.
   2. (b)       That being so, the main issue facing the applicant when mobilising without his modified shoes is stability.
   3. (c)       A strong inference arises that the applicant probably could mobilise substantial distances, well in excess of 50 meters, with a stability aid such as a walking frame.  That may be slow or awkward, and he would have to take some care whilst mobilising, but the mobilisation could occur effectively.
   4. (d)       That the applicant does not try to mobilise in such a way in his ordinary life is understandable – why would he when he has available customised shoes – but this hurts his case upon review.
   5. (e)       The failure to exclude this possibility means that the Tribunal should not be satisfied that the applicant meets the required criterion.  Given this is such an obvious way that the applicant might achieve effective mobilisation, the applicant should have been able to give a clear reason why this inference should be excluded.  He has not.

a.       48.      During the hearing, it was revealed that Mr Ditchfield has pronation of his feet.   The NDIA noted the evidence of one of the expert witnesses that Mr Ditchfield’s pronation and his LLD had both contributed to his difficulty in mobilising. The NDIA contended that Mr Ditchfield’s pronation was “not said to be an “impairment” within the meaning of s 24(1)(a)” of the Act and that without evidence of the relative impact of the LLD and the pronation, the Tribunal could not be satisfied that the LLD was responsible for any impediment to mobilisation suffered by the applicant.

b.       49.      Finally, the NDIA contended as follows:

To the extent that the applicant might suffer pain or other detriments over time in mobilising unaided or mobilising with a walking frame as his only aide, that does not deny that he can mobilise in the relevant sense (or rather, that he has not shown that he cannot mobilise). Rather, the most that can be said of the applicant’s situation is that he can mobilise, in the relevant sense, but with some discomfort and pain, and with some discomfort and pain, and with some risk of developing collateral problems (eg, pain in his joints or other issues associated with his posture). There is no basis in the Act or the Rules that this situation can fit without the requirements of s 24 of the Act. Whether or not one agrees with this policy choice made by the Act, there is no scope for argument about that issue in this review.

Mr Ditchfield’s reply contentions

a.       50.      Mr Ditchfield said that he did not agree with the NDIA that the issue in the case was whether a walking frame could help him ambulate short distances.  Instead, Mr Ditchfield contended that this case was about whether he had a “substantial reduced functional capacity” in the area of mobility.  Mr Ditchfield contended that mobility as defined could not be confined to ambulating. Mr Ditchfield contended that this would ignore the objectives of Act and its overall purpose. 

b.       51.      Mr Ditchfield drew the Tribunal’s attention to the following observations made by Member Professor R McCallum AO in the Holmes decision at [18]:

Of course, sections 24 and 25 are only two provisions in a detailed statute governing the NDIS. These provisions must be interpreted having regard to the entire statute and section 24 and section 25 must be read in conformity with the purposes and objects of the Act. The Parliament of Australia has expressly provided objects and principals in the NDIS Act to give guidance on the interpretation of the statute and these apply to the interpretation of sections 24 and 25.

evidence

Mr Ditchfield’s evidence

a.       52.      Mr Ditchfield tendered a witness statement made by him dated 13 June 2018 (Exhibit “A1”) stating as follows:

a.(a)       he was injured following a motorbike accident on 10 November 1973 which resulted in significant injuries to his right tibia, fibula and femur requiring surgery and hospitalisation for three and half months;

b.(b)       the accident left him with a substantial discrepancy in his right leg length of approximately two centimetres which has been consistent and permanent ever since;

c.(c)       before the accident, Mr Ditchfield participated in sports such as baseball and he regularly rode a bicycle to get around but he had to stop those activities after the accident as his mobility was significantly affected;

d.(d)       he has been prescribed a specially-made orthotic which he has used ever since the orthotic and he uses it when he is walking and driving;

e.(e)       he does not wear the orthotic for very short distances around the home, such as frequenting the bathroom at night or when he is swimming.  Otherwise, he said he does not take off his orthotic until he goes to bed at night;

f.(f)        he must use his orthotic when he leaves the house because he is significantly unbalanced and feels unsafe and unstable.  He also said he is unable to walk for more than a few steps without it causing him pain to the hip, knee and other leg;

g.(g)       even while he is wearing his orthotic he has limp, which is worse when not wearing his orthotic.  He said he had difficulty running with his orthotic on and could not run at all when he is not wearing it.  He said he could only ride a stationary bicycle;

h.(h)       with the aid of the orthotic, he has been able to undertake work as a baker, driving caravans for a company and driving rental cars and confectionary distribution. He said he has been able to raise a family (he has two daughters and five grandchildren under the age of 10), and be an active member of the community;

i.(i)        his orthotics were prescribed and fitted by Emily McNamara, Orthotic and Prosthetist from Ballarat Health Services (who took over from his previous clinician, Rosie, at the same clinic) and that he would see her about three times per year when his orthotic and shoe had worn down;

j.(j)        the cost of modifying his shoes is about $470 ($120 for the shoe build up and $350 for the orthotics) and he estimates that he purchases two pairs of shoes and one pair of boots each year;

k.(k)       his disability is permanent, and it significantly affected his mobility.  He said he was fortunate to have assistance technology available to him which has allowed him to leave his house, undertake employment and access the community.  He said that without the orthotics, he would not have been able to do those things.

1. 53.      At the hearing, Mr Ditchfield was asked a number of times how far he would be able to walk if he was not wearing his orthotics.  Mr Ditchfield’s evidence was unclear, mainly because he explained to the Tribunal that he had never attempted to walk far without using his specially-fitted orthotics. 

2. 54.      During cross-examination, Mr Ditchfield conceded that he would be able to manage moving around for 50 metres in an open environment.  Subsequently, when he was asked how far he could walk unaided without supports around him to hang onto Mr Ditchfield told the Tribunal that, “Look, now I just walk from perhaps one room to another in the house, and that’s about the limit”. 

3. 55.      When asked whether he could manage to walk without his orthotics from his home to a nearby shop which was half a kilometre away, Mr Ditchfield answered “no”.  When he was asked again if he could manage to walk 50 metres, Mr Ditchfield responded as follows:

   I think you’re drawing at straws, a bit, aren’t you?  I mean, what – I don’t know, because I haven’t tested it, right?  If – look, if I – if life-threatening, yes, I could get 50 metres.  We could all do that.  We could crawl.  We could do whatever we wanted to get there.  But what is the point when I’ve got – I’ve got shoes that I can wear to do it and – yes, I don’t – anyway, that’s your line of question.  Yes.

4. 56.      Further, the Tribunal notes the following exchange during cross-examination:

   [COUNSEL FOR NDIA]:  Mr Ditchfield, could you walk the first 50 metres of the pathway to your local shop that you spoke of earlier, along the exact pathway that you would ordinarily take, unassisted by your orthotic or shoe lift?---It’s – you want a yes or no answer, basically, do you?

   The question calls for that?---Yes

   It’s up to you how you answer?---I would say no.

   No.  On what basis do you say that?---Well, I’m – I’m too unsteady on my feet, right?  I would have to have somewhere if I went to fall I would lean on.  If I stood on uneven ground, which the – there’s no footpath.  It’s up and down driveways.  I’d be concerned about that.

   …

   So uneven ground, potential for driveways?---Yes. Yes.

5. 57.      Mr Ditchfield gave evidence that he did not think he would be able to drive without use of the orthotics for the following reason:

   Well, I wore an orthotic for – whatever amount of years, and you get used to your length of your leg with your orthotic on, and if you have tried to put your foot on the brake without a shoe on or something like – your misjudge your brake or your accelerator – no, I – no, I couldn’t.

6. 58.      Mr Ditchfield was asked whether he thought he would be able to adjust with time and he answered “no” and then qualified this by saying he was “not saying never”.

   Mrs Ditchfield’s evidence

7. 59.      Mr Ditchfield is married to Anne Ditchfield who signed a witness statement dated 13 June 2018, relied upon by Mr Ditchfield in this application.  In her statement, Mrs Ditchfield stated as follows:

   a.(a)       she has been married to Mr Ditchfield for 41 years and they had two children in their 30s and five grandchildren aged under ten;

   b.(b)       Mr Ditchfield had used his orthotics every day since the surgeries and that the only time he did not use it was to walk short distances around the home, at which time he was “much less stable” and at times she had seen him lose his balance completely;

   c.(c)       Mr Ditchfield does not attempt to leave the house without his orthotics as he would not be able to do the activities he wanted to do and it would “mean a high risk of falling and injuring himself”;

   d.(d)       she confirmed his involvement in the activities (past and present) involved in by Mr Ditchfield and that “all of these activities could not have occurred without the use of the orthotic”;

   e.(e)       when Mr Ditchfield was wearing his orthotic, he has a small limp which became quite significant if he removed his shoe; and 

   f.(f)        she said that it was not sustainable for him to walk or run more than a few steps without his orthotic.

8. 60.      At the hearing, Mrs Ditchfield confirmed that Mr Ditchfield did not walk outside without his orthotics because he was “too unstable”.  When asked what she meant by “unstable”, Mrs Ditchfield said:

   Well he’s basically unstable.  He wobbles more than what he would normally do.

9. 61.      At the hearing, Mrs Ditchfield said she had seen Mr Ditchfield fall when he was outside without his orthotics on and when asked how frequently this had happened, she said “rarely”.  Later, she said she had only seen him fall once.  Upon being cross-examined about this fall, Mrs Ditchfield clarified that she was inside of the house at the time and Mr Ditchfield was outside of the house and that she had heard a noise following which she looked out the window to see that he had fallen.  Mrs Ditchfield was asked why he was outside without wearing his orthotics and she responded: “Well he may have gone and let the dog out.  I think – I think that’s what it was”.  She said it was not normal for him to do so.

   Radiological findings

10. 62.      The Tribunal notes that Mr Ditchfield underwent a CT scan of his lumbar spine and right lower limb on 18 October 2010 and the following conclusions were made by Dr G Guirki:

    CT LUMBAR SPINE

    CONCLUSION:  Transitional L5-S1 segment.  Broad based posterolateral disc protrusion at L4-5 (last mobile segment) with disc impinging on both L5 nerves, slightly more on the left than the right.

    RIGHT LOWER LIMB

    The old fracture of the mid shaft of the femur is noted.  Union has occurred but there is some angulation of the remaining distal fragment.  The callus formation is remodelled but there is still a lot present.  The knee joint shows minor degenerative change but no sign of a loose body. 

    Gurney (review) article

11. 63.      Mr Ditchfield tendered a medical (review) article by Burke Gurney from the Health Sciences and Services Department of the University of New Mexico entitled, Leg length discrepancy, Gait and Posture 15 (2002) 195-206 (Gurney article). 

12. 64.      The Tribunal notes the observations of the author in the introduction of the Gurney article:

    …

    There is disagreement regarding the role LLD [leg length discrepancy] plays in musculoskeletal disorders and the acceptable amount of LLD necessary to warrant treatment.  Some investigators have tried to quantify a significant LLD, accepting as much as 20 to 30 mm, while others define a significant discrepancy in terms of functional outcomes.  Perhaps the most controversial musculoskeletal disorder associated with LLD is LBP [lower back pain].  Some authors have found a definite association between LLD and LBP while other found none.  Regarding standing posture, several authors have found an association between LLD and scoliosis while one study has found the association less clear.  Regarding gait, several authors have found that relatively small (20-30mm), LLD created significant changes in gait such as increased ground reaction forces, increased energy consumption, and increased lower extremity kinetic energy while other authors have found that these parameters remain relatively unchanged until much larger LDD (60 mm) are realized. 

13. 65.      The author sets out two tables under the heading “Introduction”, setting out an overview of the results of various studies about the extent of LLD necessary to affect the patients, using both objective criteria (Table 1) and subjective criteria (Table 2).  In Table 1, eight of the 19 results show that certain specified problems have arisen where the LLD was 20mm or less.  In Table 2, five of the seven results show that certain specified problems arise where the LLD was 20 mm or less.  Notably, in Table 1, the author refers to a research article by Kaufman KR, Miller LS, Sutherland DH.  Gait asymmetry in patients with limb-length inequality. J Pediatr Othop 1996;16:144-50 (Kaufman article) (see further at paragraphs [67] and [68]), which concluded the problem of “gait asymmetry” could occur where actual LLD (as distinct from artificially induced LLD) was greater than 20 mm; and also an article by Liu which concluded that this problem could occur where the actual LLD was greater than 23 mm.

14. 66.      The authors in the Gurney article concluded as follows:

    There is still controversy regarding the magnitude of LLD necessary to cause musculoskeletal problems.  The articles that find associations between LLD and pathological conditions must be interpreted with caution, as association does not prove a cause effect relationship, and may just represent a coincident finding.

    It is clear that studies using persons with longstanding true LLD are able to cope with larger LLD than those who are subjected to artificial or induced LLD.  This is sensible since given enough time most individuals would be able to reduce the energy and mechanical costs of LLD.  It also appears that younger persons on the whole are able to adapt to larger LLD than older persons.  Again, this is sensible since it has been shown that gait patterns differ considerably between old and young individuals, and that older persons have greater difficulty in mastering novel motor tasks.  The level of activity of the person also seems to play a role.  Individuals who are on their feet most of the day or who are involved in sports seems to be more sensitive to LLD than those who are less active.  Finally, studies that use patient pain levels or satisfaction as an outcome measure seem to differ from those that use more objective outcome measures (Tables 1 and 2).

    The question of whether to treat individuals with LLD should be taken on a case by case basis, although the breakpoint of 20 mm is often used, this number could be considerably higher for younger persons who are inactive and have had LLD their entire life and considerably lower for older persons who are active and have acquired LLD later in life.

    Kaufman (research) article

15. 67.      The Tribunal found the research findings in the Kaufman article to be illuminating, albeit focussed on LLD in children.  This research was based on testing 20 subjects aged between five and 13 with varying LLDs to assess their gait asymmetry. The following conclusions were reported arising from this research (emphasis added):

    Abstract

    …The asymmetry of these parameters increased as the limb-length inequality increased.  In general, a limb-length inequality >2.0cm (3.7%) resulted in gait asymmetry that was greater than that observed in the normal population.  However, the amount of asymmetry varied for each individual.  A static examination can document an anatomical deformity, but this deformity may be compensated for by functional adaptations.  An analysis of the patient’s gait should be performed to identify asymmetries during ambulation.  Dynamic gait findings, such as demonstrated in this study, are needed to support static measurements.

    Results

    …Although it varied within each gait parameter, 45-70% of the variation in gait symmetry was explained by the variance in limb length.  Nevertheless, it can be seen that the ability to generate a gait within the normal range varies among individuals at any limb-length difference.

    …

    The discrepancy that resulted in gait asymmetry exceeding normal was 2.0cm (range, 1.1 to 3.2).  …

16. 68.      In the Discussion section of the Kaufman article, the authors referred to a further article (Siffert RS, Current concepts review: lower limb length discrepancy. J Bone Joint Surg 1987;69:616-23), as support for the following statement:

    In general, it is thought that discrepancies >1.0cm should be actively treated, either operatively or nonoperatively.

    Medical evidence by Dr Kieran Halliburton, treating general practitioner

17. 69.      Dr Halliburton was called as a witness at the hearing.  He has treated Mr Ditchfield as his general practitioner for 40 years.  Dr Halliburton stated that he has never treated Mr Ditchfield for his condition of LLD.  He confirmed that Mr Ditchfield had seen him about his knee and back issues. 

18. 70.      Dr Halliburton said that Mr Ditchfield’s LLD condition was permanent.  Dr Halliburton said he recalled Mr Ditchfield having a knee replacement on the same leg as the leg he injured in 1973.  He said that as far as he knew, the knee replacement surgery did not affect Mr Ditchfield’s need to wear the orthotics.

19. 71.      On 29 March 2017, Dr Halliburton completed and signed a NDIS Access Request – Supporting Evidence Form stating that:

    a.(a)       Mr Ditchfield’s primary impairment was “leg shortening” which he has had for 43 years and that it was likely to be a lifelong impairment;

    b.(b)       Mr Ditchfield did not have another impairment that has a significant impact on him.  Nor did have any other impairments; and

    a.(c)       Mr Ditchfield required assistance, in the form of special equipment (specifically a shoe build up to equalise his leg length), to mobile because of his impairment and he did not require any assistance in relation to communication, social interaction, learning, self-care or self-management.

b.       72.      Dr Halliburton confirmed at the hearing that the information in this form was “true and correct” and that he did not wish to change anything in it.

c.       73.      Dr Halliburton was asked what his prognosis of Mr Ditchfield would be in terms of his day-to-day mobility.  He said:

It would be very poor.  He would, as I said before, he would be left with a gait that involved a limp and the associated problems that would follow on from that would gradually cause significant reduction in his ability to walk, particularly long distances, negotiate steps safely.  Yes, they would be the general problems, yes.

a.       74.      During cross-examination, Dr Halliburton was asked why he had indicated that it was out of the question for Mr Ditchfield to use a walking frame to mobilise instead of the specially-fitted orthotics to which he responded:

Yes.  So we’re in no different a situation to if he was trying to walk without any – without the orthotic and shoe build-up, if he was trying to walk without any added assistance.  So without crutches, without frame, he would have the same problems, and on the frame, of course, he would then have – because as you can see, Greg’s a tall fellow, a well-built fellow, sorry, who – who would then, on a frame add a flexional component to his posture in order to lean on a frame.  And it doesn’t take away the weight-bearing capacity of the shortened leg.  So it doesn’t assist in any way, it might make him more secure as far as falls are concerned, but I think he would be worse off using a frame than he would be standing in an erect – walking in an erect position.

a.       75.      Dr Halliburton also gave the following evidence about Mr Ditchfield’s impairment:

Without the orthotic he can still walk in a stable environment.  I wouldn’t be worried about him falling over easily.  He would be not as steady on his legs as if he had an equal leg length with a build-up, so there’d be – the degree of stability that we’d be talking about would be very minor, but it’s more the impact of the pressure on the joints in the leg and the lower back, that he would be at greater risk of developing problem in those as a chronic pain condition.

a.       76.      When asked how far Dr Halliburton thought Mr Ditchfield could walk without an orthotic, he suggested that Mr Ditchfield was the best person to answer that question.  He gave evidence that Mr Ditchfield could walk more than 50 metres and probably more than 100 metres and that he might be able to mobilise further than that distance.  He qualified his evidence as follows:

But it’s a matter of the degree of discomfort that he would have to endure to do that compared to walking with an equalised leg length.

a.       77.      During re-examination, Dr Halliburton was asked how Mr Ditchfield’s ability to walk on uneven surfaces without his orthotic to which he responded:

Well, that just amplifies that problem even further.  He is already walking on an uneven surface without his shoe build up, hence the limp, and on uneven surfaces that would become more pronounced as well the more pronounced it is, the more pain, more discomfort, and the increased risk of instability becomes. 

[COUNSEL FOR MR DITCHFIELD]:  Do you think that that would have also issues in relation to him leaving his home, for example?  Moving about in the community, obtaining employment, leaving his home for everyday living?---Yes.

a.       78.      Dr Halliburton was given an opportunity to comment on the report provided by Dr Boland and he disputed the main conclusion that a deficit of 20 mm in leg length should not create any great impact on a person and that a shoe build up was not necessary.  Dr Halliburton stated:

I found that to be rather an unusual statement.  It may be a scientific statement that he is making, or a conclusion from scientific information, but from a – personally just my own observation of patients who have leg length discrepancies and other orthopaedic problems, that if somebody has got a 20 millimetre deficit, they definitely will have problems arising from walking with that deficit on a longer term basis.  The taller the person is, the more deficit it is, just because of the mechanics of the body.  I have never seen anyone have a 20 millimetre orthotic or anything near 20 millimetre in thickness to equalise their leg length.  The maximum I was thinking would be likely to be would be something like 7 or 8 millimetres, which would still leave him well short of his equal leg length. 

a.       79.      Dr Halliburton said he has had patients with a LLD less than 20mm and it has had a great impact on them. 

b.       80.      Dr Halliburton told the Tribunal that he had not had an opportunity to observe Mr Ditchfield walking without his orthotics; however, he said he expected to see a “very obvious gait abnormality” because he was such a tall person.

Medical evidence of Ms McNamara, treating orthotist prosthetist

a.       81.      Ms Emily McNamara is a qualified orthotist/prosthetist and at the time of the hearing, was treating Mr Ditchfield.  Ms McNamara prepared an undated report and was also called as a witness to give evidence at the hearing.  Ms McNamara told the Tribunal that her area of expertise was in the assessment, manufacture and fitting of prosthetics and orthotics.

b.       82.      In Ms McNamara’s report she stated that:

a.(a)       Mr Ditchfield had been a long-term client of the Prosthetics and Orthotics Department at the Queen Elizabeth Centre in Ballarat;

b.(b)       Mr Ditchfield had a 2cm LLD and required footwear modifications to be completed on his footwear;

c.(c)       Mr Ditchfield was permanently disabled by his LLD and it influenced his ability to mobilise within his own home and the community;

d.(d)       without the shoe-raise used by him, Mr Ditchfield would be unable to take part in activities of daily living, community-based activities or engage in employment due to his impairment.  She said he would be unable to mobilise around his own home to complete cooking, cleaning, toileting, showering and gardening, without risking his safety; and

e.(e)       Mr Ditchfield was at a high risk of falling when not wearing his shoe raise due to the 2cm LLD and this could potentially lead to further impairment and reduction in physical functioning.

1. 83.      The NDIA caused a summons to be issued addressed to the Ballarat Health Services to obtain a copy of the clinical notes from its Prosthetics and Orthotics Department relating to Mr Ditchfield.  In those documents, the Tribunal notes a record made by Mr Ditchfield’s previous orthotist/prosthetist, Rosalie Ballard, on 1 December 2010, as follows:

   Currently wearing shoe with 2cm sole and heel raise on right side.

   …

   Observed gait, no abnormalities.

2. 84.      The clinical notes also include a report by Peter Ledfers recording that the treatment objectives were to accommodate the right leg shortening with a “20 mm raise” and a “rocker sole”.

3. 85.      Ms McNamara was taken to those records and asked what assessment of Mr Ditchfield had taken place when she saw him as a new patient.  Ms McNamara answered in a generalised manner stating that in an assessment, “he comes in and we undertake some questions about himself and then we undergo sometimes a physical examination where we measure the height difference for in particular with his leg length discrepancy”. Ms McNamara said that they would look at the previous notes and consider whether “all has been going well”.  If not, she said they would modify the raise and look at using a different height but in Mr Ditchfield’s case, it had been going well so they continued with the same 20mm shoe raise on his right side.

4. 86.      Ms McNamara gave evidence that moulds were last taken of his feet in 2015 by a previous employee.  She confirmed that the periodic review of his “foot orthosis” was required. 

5. 87.      Ms McNamara said she had not seen him walk around in his bare feet in the past.  When asked why she had not done so, Ms McNamara responded:

   Just all Mr Ditchfield wears – like, his shoe and foot orthosis most – like when he’s come in to see me, obviously in the initial assessment we did remove his shoes and his foot orthosis which were in his shoe to do the first assessment.  So I guess, we did get him to walk around and stand on the box and measure his leg length discrepancy but from then on we have not, because he is ambulating with the shoe on and there hasn’t been a need to as they are going well.

   Okay.  That’s the one that would have been done by Ms Ballard in 2015?---Yes, that’s the foot orthosis from her.

6. 88.      Ms McNamara was asked to provide her professional opinion as to whether there is a particular number (for the LLD) that had to be reached before a person needed a modification.  She stated:

   Not in my clinical opinion. I think that if someone is having – if they are unable to walk safely or if they feel off balance and they may require some level of shoe raise, dependent on their – also the way they feel as well.  It is – yes, in my opinion someone may need one from five millimetres to even more, depending on their walking.

   So it’s a case by case basis?---Yes, definitely.

7. 89.      Ms McNamara said the fact that Mr Ditchfield was a tall man did not affect his need for an orthotic and that “it should not matter”.  

8. 90.      Ms McNamara said she was unable to comment on whether Mr Ditchfield was able to mobilise without his shoe raise and orthotic because she had not seen him ambulate any further than the small distance he had ambulated in her room at the clinic without his shoe modification and foot orthosis.

9. 91.      Ms McNamara told the Tribunal that she had been working full-time in her present occupation for a total period of 18 months.  She said that during this time, she had seen about five to 10 clients who had a LLD in the vicinity of 20mm and that some of them had reported to her experiences of falling when they had not been wearing their orthotics.

10. 92.      During cross-examination, Ms McNamara was asked whether Mr Ditchfield’s risk of falling would be assisted if he used a walking frame to which she said she did not agree and that it “would help with their arms, but they would still be walking with a limp”.

11. 93.      After further questions by the Tribunal, Ms McNamara concluded after some initial hesitation, that she would expect someone with a LLD in the vicinity of 20mm to be capable of walking 100 metres but she was not sure how effectively they could do, and queried whether they could get that far without having a fall.

12. 94.      Ms McNamara was given a moment to read her colleagues’ clinical notes and upon doing so, she told the Tribunal that Mr Ditchfield’s orthotics for his left and right feet were identical.  She went on to explain that the notes indicated that the orthotics provided support in “the arch of the foot” and she said “because he pronates, so he rolls inwards”.

13. 95.      The Tribunal notes the following exchange:

    [MEMBER]:  Okay.  Are the orthosis – are they motivated by the fact that he has pronation in the feet as quite separate from the leg discrepancy?---Yes.  So due to his pronation which could, ultimately if he is not given the foot orthosis, change his leg length discrepancy, as well due to minor changes in the foot.

14. 96.      Ms McNamara said she could not say precisely, or approximately, how each of the two factors (i.e. Mr Ditchfield’s pronation and his LLD) contributed to his difficulties in walking, except to say that she expected a person with pronation to the extent she had observed with Mr Ditchfield to have increased knee pain, back pain, foot pain and lower limb pain but “it would not necessarily prevent them from walking” (but it may and did with Mr Ditchfield).  However, Ms McNamara said she was unable to categorise the severity of Mr Ditchfield’s pronation, as she had not assessed him for that, and when asked to look at the previous clinicians’ notes at the hearing, she said they did not record the extent of his pronation.

15. 97.      Ms McNamara was invited by the Tribunal to express any opinion she had about Dr Boland’s characterisation of a 20 mm LLD as being a “mild” LLD.  She stated:

    I would say around one centimetre would be mild in my clinical expertise but it really depends on the individual as well.  So for someone, a one centimetre may be a lot more detrimental to them and a two centimetre could also be even – like, it could have a different effect on each individual person.

    Medical evidence by Dr Boland, specialist musculoskeletal physiotherapist

16. 98.      The NDIA sought to rely upon a report prepared by Robert Boland, specialist musculoskeletal physiotherapist, dated 7 August 2018 (one day before the hearing).  Dr Boland prepared this report without the benefit of having examined Mr Ditchfield.  Dr Boland was provided with an extract (selected by the NDIA) from the T-Documents, summonsed medical records and patient health summary from Ballarat Health and Alfred Medical Centre.  A copy of the set of extracted documents provided to Dr Boland was handed up to the Tribunal at the hearing.

17. 99.      The Tribunal accepted Mr Boland’s belated report into evidence and also allowed the hearing to proceed on the basis that Mr Ditchfield was able to apply for an adjournment at the end of the hearing if he felt he had been disadvantaged in relation to the late filing of Dr Boland’s report.

18. 100.     Dr Boland was awarded the qualification of specialist musculoskeletal physiotherapist by the Australian College of Physiotherapy in 2007.  He holds a Bachelor of Applied Sciences (Physiotherapy) conferred in 1984; a Graduate Diploma in Applied Sciences (Manipulative Physiotherapy) conferred in 1990; and a Doctor of Philosophy conferred in 2000.  He has been a part-time academic at The University of Sydney in the discipline of physiotherapy since 1988.  Since November 2003 he has been a musculoskeletal physiotherapy staff educator at the Fairfield Hospital in New South Wales and from March 2018 he has been a specialist musculoskeletal physiotherapist at this hospital.

19. 101.     In Dr Boland’s report, he made a number of assertions about the impacts of a 20mm LDD on a 64 year old male as follows:

    1. Executive Summary

    1.  A leg length discrepancy of 20mm would have no impact on the ability of a 64 year old male’s ability to mobilise.  The person’s age is irrelevant to this opinion nor is the duration of the leg length discrepancy.

    2.  Specifically, a leg length discrepancy of 20mm would have no impact upon the ability of a 64 year old male’s ability to:

    a.        Move around the home to undertake ordinary activities of daily living.

    b.        Git (sic) in and out of a bed or chair.

    c.        Leave the home.

    d.        Move about in the community.

    e.        Perform other tasks requiring the use of limbs.

20. 102.     In the “Discussion” section of his report, Dr Boland stated further that:

    Specifically, a leg length difference of 2 cm would have no impacts upon gait, lower limb function or general capacity with respect to movement.  Therefore, it would not:

    •                  Impair moving around the home.

    •                  Impair getting in and out of a car or chair.

    •            Impair mobilising in the community including using public transport or a motor vehicle.

    •        In addition, it would not impair work capacity, either with respect to capacity to work, or safely undertaking work.

21. 103.     To support his conclusions, Dr Boland sought to reply upon the Gurney article referred to in paragraphs to [63] to [66Error! Reference source not found.].  In particular, Dr Boland stated that Gurney described various authors’ classifications of leg length difference as “mild” if within the range of 20-30mm.  Dr Boland also stated that Gurney cited opinions that appropriate interventions for differences in the “mild” category should “go untreated or be treated non-surgically” and that non-surgical treatment could include a shoe insert (for corrections up to 20mm) or a built-up shoe for corrections over 20mm. 

22. 104.     Dr Boland claimed that the opinion in the literature that a LLD of 20mm could be left untreated, supported his view that Mr Ditchfield, as a 64-year old man, “who had reported no disabilities” and “whose medical reports described no disability”, would not be impacted by a 20mm LLD in terms of his ability to mobilise, and that his age and the duration of the LLD were both irrelevant. 

23. 105.     The Tribunal does not accept Dr Boland’s evidence on the basis that he had not undertaken an examination of Mr Ditchfield.  Further, the Tribunal considers that Dr Boland was unduly selective about the information in the literature he chose to take into account in that he ignored other information about a 20mm LLD, such that it was considered an impairment albeit mild, and that in some case it should be treated with non-surgical intervention such as inserts or shoe raises to correct the LLD.  It seems that Dr Boland ignored that information (or had not addressed it), as it was inconsistent with the seemingly strong opinions he had formed about the likely impacts of a 20mm LLD on a 64-year old man, being that there would be none.  The Tribunal has closely reviewed the Gurney article and considers that Dr Boland’s opinion does not correlate with the information or reflect a fair representation of the information and research results referred to in that article.

24. 106.     Dr Boland also opined that he considered there was no safety risk for a person with a 20mm LLD.  Dr Boland stated that Mr Ditchfield could insert a heel raise inside his shoe on the short side “if the issue is to address the structural impairment of leg length inequality, which is different to functional disability”.   Dr Boland stated:

    However, this would be unnecessary for mobility purposes.  Instead, it would be for cosmetic purposes (to correct or partially correct limb asymmetry between sides).

25. 107.     Dr Boland did not consider that Mr Ditchfield would require any mobility aids to move around the home to undertake ordinary activities of daily living, to get in and out of a chair, to leave the home, to move about in the community or to perform other tasks using his limb.  Dr Boland stated that Mr Ditchfield “has effective and complete mobility”.  This is a remarkable assertion of fact for Mr Boland to have made given that he has never sighted Mr Ditchfield.

26. 108.     At the hearing, Dr Boland told the Tribunal that he had experienced treating persons with LLD but it was rare for someone with such a condition to require treatment.  Dr Boland said he had seen about five people over the last year who had a LLD but “they don’t actually get treatment.  They might be referred and it’s an incidental finding that one would record…”  He said he had not treated anybody for LLD.

27. 109.     Dr Boland said he was not working with orthotists currently, but that he had done so in the past.  At the hearing, Dr Boland described his understanding of the difference in the roles of a physiotherapist and an orthotist.  When asked, Dr Boland stated that he considered that he was more qualified than an orthotist to provide an opinion about the questions asked him by the NDIA, for the following reasons:

    First of all, the issue is relating to assessment of two things: one, alignment, secondly then, the effects of alignment on movement.  So, those two things are routine duties or roles of someone who is a specialist or even a titled musculoskeletal physiotherapist, which is the level below where I am.

28. 110.     Dr Boland gave evidence that when a person had pronation (and no LDD), it was not something that might affect their ability to mobilise.  He explained that most people (about 85%) had a pronated foot and that it was normal.  Dr Boland confirmed that his opinions as expressed in his report would not change if they were referring to a person who had a 20mm LLD and also pronation.

29. 111.     Dr Boland was asked if a person had a 20mm LLD and some pronation and they complained of mobility difficulties, could it be possible that their mobility difficulties were attributable to the pronation.  His response was as follows:

    It could be attributable.  Well, I suppose one would say yes.

1. 112.     During cross-examination, Dr Boland was asked if he agreed whether mobility was a broader concept than simply walking a couple of steps and whether it would encompass such things as walking around a home; participating in employment; achieving mobility without pain and without it leading to other degenerative causes (arising, for example, from an uneven gait); to which he said “yes” for the first three things and “potentially, yes” for the last thing.

2. 113.     Dr Boland confirmed that he had reached the opinions as expressed in his report on the basis of the documentation provided to him relating to Mr Ditchfield’s medical record, the application form (which was later clarified to be the supporting evidence form completed by his treating general practitioner) Mr Ditchfield had submitted and the literature he had reviewed.  Dr Boland said he did not consider that he needed to see Mr Ditchfield on account of his broad view that any person with a 20mm LLD would not affect the variables put to him by the NDIA in its letter of instruction in Question 2.

3. 114.     During cross-examination, Dr Boland confirmed that he was not provided with a copy of Mr Ditchfield’s statement.  When asked whether he considered it important to be provided with this information, Dr Boland evaded answering the question.  Dr Boland also confirmed that he was not provided with a copy of Mrs Ditchfield’s statement or Mr Ditchfield’s “original application, internal review application that he provided the NDIS” or a copy of the report from the treating orthotist.  When put to him by Mr Ditchfield’s counsel, Dr Boland accepted that it was important that he be provided with the information that had been provided to the Tribunal.

4. 115.     During cross-examination, Dr Boland conceded that Mr Ditchfield may have described functional or mobility impairments and that it may not have been provided to him and that if he did, Dr Boland would have to qualify what he was saying in his report.  Dr Boland agreed that the medical material provided to him was only the prosthetic and orthotics records from 2001.  He conceded that he was not aware that in the 1970s various professionals prescribed him with a heel lift initially, and in the 1980s a shoe lift and then as technology improved, orthotics.  Dr Boland said he was aware that Mr Ditchfield had a knee replacement in 2014/2015 but he was not aware that he had been a baker for 30 years or that he had worn some type of fitted orthotic, raised heel or shoe raise every day since the injury in the early 1970s. Dr Boland acknowledged that any perceived absence of information about Mr Ditchfield experiencing functional or mobility impairment may have been because Dr Boland had not been provided with such information.

5. 116.     Dr Boland was taken to the section of the Gurney article which stated:

   It is true that studies using persons with longstanding true LLD are able to cope with larger LLD than those who are subjected to artificial or induced LLD.  This is sensible since, given enough time, most individuals will be able to reduce the energy and mechanical costs of LLD.  It appears that younger persons on the whole are able to adapt to larger LLD than older persons.

6. 117.     Dr Boland then conceded that it was a “fair interpretation” of the above that Mr Ditchfield would have adapted far quicker to his LLD if he was born with it rather than acquiring this condition when he was 19 years of age.  Dr Boland also considered it “true” that people who were on their feet quite a lot of the day - involved in sports, seemed to be more sensitive to LLD than those people who were less active.  Dr Boland accepted that it was “probably fair” to say that Mr Ditchfield, having run a bakery for many years, working six days a week on his feet for between eight to 10 hours per day was more susceptible of the effects of LLD.

7. 118.     Dr Boland was taken to the section of the Gurney article which concluded as follows:

   The question of whether to treat individuals with LLD should be taken on a case-by-case basis.

   …

   Although the break point of 20mm is often used, this number could be considerably for younger persons who are inactive or who have LLD their entire life, and considerably lower for older persons who are active and have acquired LLD later in life.

8. 119.     Dr Boland was asked a question about a part of his report where he had asserted that the Gurney article had described various authors’ classifications of LLD as “mild” if within the range of 20mm to 30mm.  Dr Boland told the Tribunal that this was an error in his report and that it was meant to be zero to 20mm, not 20mm to 30mm.  He accepted that 20mm was the breakpoint and one could use it on a case-by-case basis.  During cross-examination, Dr Boland was asked whether he had ignored the second part of the conclusions in the Gurney article stating that the number could be lower for older people who were inactive and quiet later in life.  Dr Boland refuted this proposition and said he had applied the findings using the medical records and information to work out whether there was a functional impact on Mr Ditchfield.

9. 120.     Dr Boland confirmed that he did not meet Mr Ditchfield and then told the Tribunal he had made himself available to fly down to assess him, but he was told there was “some problem for Mr Ditchfield attending the appointment”.  Dr Boland was asked whether he needed to know Mr Ditchfield’s subjective opinion about the extent of his own mobility to have given his opinion.  He said he said he did not and that the most important things in assessing any form of condition is look at the contemporaneous data, evidence or reports collected in which he would have expected to have seen reports of functional impact (or effects) and if they were significant, evidence about the management that was required.  He conceded there was no doubt that Mr Ditchfield had some issues because he had a knee replacement. 

10. 121.     When asked whether his opinion was altered given the fact that Mr Ditchfield had worn an orthotic and shoe lift for most of his life since the injury, Dr Boland stated that it made him wonder if he was wearing it for the effects of the accident and the effect on his knee.  Dr Boland was taken back to the question asked of him to which he said that this fact did not alter his opinion expressed about Mr Ditchfield.  Dr Boland said he considered he had been provided with enough information to confidently express the opinions he did about Mr Ditchfield.

11. 122.     Overall, the Tribunal found both Ms McNamara’s and Dr Boland’s evidence of limited value as neither of them had made any observations of Mr Ditchfield ambulating or undertaking any other motions using his lower limbs without the use of his raised shoe and orthotics.  In Dr Boland’s case, he had not met Mr Ditchfield.  The articles considered by the Tribunal, being the Gurney article and the Kaufman article, both conclude, with which Dr Boland did not disagree, that impact of LLD of differing lengths will vary between different individuals and will depend on their individual circumstances.  The research conducted, which was limited, tended to reveal that a LLD between 0 and 20mm is considered as a “mild” LLD and whether surgical or non-surgical intervention should take place to correct the effects of an LLD should be assessed on a case-by-case basis.

    consideration

12. 123.     As conceded by both parties and supported by the evidence, the Tribunal concludes that Mr Ditchfield meets each of the “disability requirements” set out in a subsection 24(1)(a), (b) and (d) of the Act.

13. 124. The Tribunal will proceed to a consideration of the central issues in this case, namely, whether Mr Ditchfield meets the other two disability requirements in s 24(1)(c) and (e) of the Act, taking each in turn.

    Section 24(1)(c) – “substantially reduced functional capacity”

    General approach

14. 125.     As cautioned by Justice Mortimer in Mulligan, this Tribunal should not confine its consideration of whether Mr Ditchfield has met the disability requirement under s 24(1)(c) by considering his circumstances only through the prism of rule 5.8. Nor should the Tribunal be concerned with how common the reduction in functional capacity which Mr Ditchfield has, might be with respect to other people. At [77] in Mulligan, Justice Mortimer observed as follows:

    …I note that the Tribunal appears to have approached the concept of “substantially reduced functional capacity” in s 24(1)(c) as if it is exhaustively defined by r 5.8. That is not necessarily the case. As a deeming provision, r 5.8 has the effect of mandatorily including some people in the category of persons with substantially reduced functional capacity if the criteria in r 5.8(a), (b) or (c) are met. In that sense, a decision-maker must turn his or her mind to whether an applicant falls within the deeming effect of r 5.8. That is not necessarily the end of the exercise in terms of s 24(1)(c). The statutory task remains to consider whether a person’s functional capacity is substantially reduced in any of the six specified areas.

15. 126. The Tribunal will begin by considering whether any of the deeming provisions under rule 5.8 apply to Mr Ditchfield’s circumstances, starting with subparagraph (a). When undertaking this assessment, the Tribunal was invited by the NDIA to consider Mr Ditchfield’s capability to do or not do certain activities, in particular, to mobilise, on the basis of him being aided by or using either a walking frame or crutches. The NDIA’s invitation to the Tribunal was based on its assertion that those items should be regarded as “commonly used items”. 

16. 127. The Tribunal does not agree with the NDIA’s characterisation of those particular items based on the guidance provided by the NDIA in its Operational Guidelines as reproduced in paragraphs [20-22] of these Reasons for Decision. The Tribunal considers that the parts of these guidelines as referred to in the next paragraphs are not inconsistent with the NIDS legislative framework and should be followed by the Tribunal.

17. 128.     Specifically, paragraph 8.3.1 provides that, “commonly used items include glasses, walking stick glasses, non-slip bath mats, bathroom grab rails, stair rails, age appropriate child safety locks, simple adapted kitchen utensils and dressing aids”.    The Tribunal notes that neither walking frames nor crutches are included in this list. 

18. 129. Further, the following statement in paragraph 8.3.1 of the Operational Guidelines deals with the concept of specialist disability aids and/or equipment and provides that they would “generally be specifically designed to assist in increasing functional capacity and participation” of people with a disability (first limb); and that they “be formally prescribed by a medical practitioner, specialist clinician or allied health professional” (second limb).  The Tribunal considers that both of those limbs apply to walking frames and crutches.  The Tribunal considers that it would be unusual for a person to commence the use of or cease the use of walking frames and/or crutches without seeking the advice of their treating medical or allied health practitioners.  The prolonged use of such items may assist a person to mobilise but in some case may cause other physical problems such as postural issues as alluded to by Dr Halliburton – see paragraph [74] of these Reasons for Decision.

19. 130.     For those reasons, the Tribunal considers that both a walking frame and crutches do not fall within the definition of “commonly used items” for the purpose of rule 8.8 of the NDIS Access Rules. As such, the Tribunal will consider Mr Ditchfield’s capacity to do or not do certain activities, including the activity of mobility, on the basis that he is not able to use the assistance of either a walking frame or crutch.

20. 131.     On the other hand, a “walking stick” has been expressly identified as a “commonly used item” in the Operational Guidelines. Accordingly, the Tribunal will consider what Mr Ditchfield has the capacity to do or not to do on the basis that he is able to use a walking stick (for instance, to provide some level of assistance with respect to any instability he may experience).

21. 132.     As conceded by the NDIA, the Tribunal also finds that Mr Ditchfield’s raised shoes and orthotics fall within the category of assistive technology or equipment and are not “commonly used items”.  Accordingly, the Tribunal must also undertake this hypothetical exercise of considering what Mr Ditchfield is able to do and not do, on the basis that he is not wearing his usual raised shoes and orthotics. 

22. 133.     Finally, the Tribunal considers that it must assess the impact of Mr Ditchfield’s LLD after taking into account all attributes of his particular constitution, including, for instance, the naturally-occurring profile of his feet being that they pronate.

    Does the deeming provision in rule 5.8(a) apply to Mr Ditchfield?

23. 134.     Mr Ditchfield will be deemed to meet the requirement under s 24(1)(c) if the Tribunal is satisfied that he “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”.

24. 135.     One challenge in this case when undertaking this hypothetical analysis on the bases described in paragraphs [130] to [132], is that the evidence presented to the Tribunal was not directed to (and did not cover) what Mr Ditchfield was able to do and not do, when he was not wearing his raised shoe and orthotics, but was able to use a walking stick.  Mr Ditchfield struggled to give clear evidence about his capabilities on a hypothetic basis because he said he had not tested the limits of his capabilities by attempting activities without using his raised shoes and orthotic.  Similarly (and unfortunately), the clinicians who gave evidence in this case had not observed Mr Ditchfield moving around without wearing his raised shoes and orthotics or when using a walking stick, or in the case of Dr Boland, had not met Mr Ditchfield at all.  This led to a number of speculations by Mr Ditchfield and the expert witnesses about the extent to which Mr Ditchfield was able to mobilise in those circumstances.   This was less than ideal.

25. 136.     Making what it could of the evidence before it, the Tribunal has made the following findings about Mr Ditchfield’s capacity to participate in the activity of mobility, in the absence of wearing his raised shoe and orthotics and in circumstances where he is permitted to use a walking stick:

    a.(a)       The Tribunal finds that Mr Ditchfield is able to walk short distances inside of his home as he does so at present, based on his own evidence.  He is able to get into and out of a chair and his bed.  He is able to attend to self-care activities independently inside the home. 

    a.(b)       The Tribunal finds that Mr Ditchfield is able to drive once outside of the home to mobilise to other places.  The Tribunal does not accept that Mr Ditchfield in unable to drive safely without his shoe raise and orthotics, as initially contended by Mr Ditchfield.  Any difficulty doing so, was expressed in terms of him being unaccustomed to driving without wearing his raised shoes and orthotics. For the Tribunal to apply the present hypothetical analysis consistently, it has considered Mr Ditchfield’s capability on the basis that he was not wearing his raised shoes or orthotics on a regular and consistent basis.  If that were the case, the Tribunal is satisfied that Mr Ditchfield would eventually become accustomed to driving by using his legs at their natural length (i.e. with the 20mm LLD).  Mr Ditchfield reluctantly acknowledged during cross-examination that he was not saying that he would “never” be able to adjust to doing so – see paragraph [58].

    b.(c)       The Tribunal finds that Mr Ditchfield would find it difficult to walk lengthy distances outside of the home, but technically at least, he is able to do so.  Given the limitations of the evidence in this matter as mentioned in paragraph [135], it was difficult for the Tribunal to determine precisely how far Mr Ditchfield was (technically) able to walk outside of the home.  On the basis of the evidence referred to in paragraph [74], the Tribunal finds that Mr Ditchfield is capable of walking at least 100 metres outside of the home.  However, the Tribunal accepts that Mr Ditchfield would experience some pain and instability walking such distances.  The Tribunal also accepts that Mr Ditchfield’s fear of falling was a genuinely held fear and that this would also make him most reluctant to walk lengthy distances outside of the home.  The Tribunal accepts Mr Ditchfield’s evidence in this regard (albeit largely speculative), as supported by Mrs Ditchfield (who has witnessed him fall on one occasion when attempting to walk outside of the home, unaided by the raised shoe and orthotics, albeit without the assistance of a walking stick).  The NDIA contended the Tribunal should be cautious about accepting Mr Ditchfield’s evidence because he had not given a truthful answer to a question asked of him when he applied for his commercial driver’s licence.  However, the Tribunal found Mr Ditchfield to be a forthright and credible witness at the hearing, who at times gave evidence which was against his own interests.  The Tribunal is not satisfied that his evidence was not credible for the reason proffered by the NDIA.  As explained in paragraph [122], the Tribunal does not accept the evidence of Mr Boland or Ms McNamara as to the degree to which Mr Ditchfield was able to mobilise.  The findings of the Tribunal referred to in this subparagraph lend support from the observations referred to in the medical articles referred to in paragraphs [63] to [68] identifying the potential for a LLD of 20mm or less to have a biomechanical and gait symmetry impacts on a person depending on their individual characteristics.

    c.(d)       The Tribunal finds that Mr Ditchfield’s ability to drive once outside of the home, at a general level, allowed him to achieve a good degree of mobility in that he is able to independently drive to the shops and other facilities as required.  However, once Mr Ditchfield reached his destination within the community, the Tribunal finds that he will experience difficulty with mobilising safely and without pain, which in turn, will impede where he can go and the facilities or places he is able to access and use, once outside of the confines of his car.

    d.(e)       The Tribunal finds that Mr Ditchfield is able to achieve one of his occasional recreational activities of making hunting trips into the bush with his friends, which he explained took place by car or quad bike.  However, the Tribunal finds that once out in the bush, it is difficult for Mr Ditchfield to ambulate over uneven or rough bush-like terrain by foot due to the increased risk of him falling and the pain he will experience.  The Tribunal accepts Mr Ditchfield’s evidence in this regard.

e. 137. The Operational Guidelines state that the scope of “mobility” encompasses “leaving the home” and “moving about in the community”. The Tribunal considers that this definition is not inconsistent with any provision of the Act or its rules, and it should be adopted. In fact, it is reflective of the objects and principles set out in ss 3 and 4 of the Act, and in particular, the parts of those provisions highlighted by the Tribunal in bold print in paragraphs [23] and [24].

f.       138.     The Tribunal finds that Mr Ditchfield is able to leave the home and move about in the community in the ways described above.  However, the Tribunal also finds in doing so without his built up shoe and orthotic and even if he were to use a walking stick, there are some significant limitations to his mobility in accessing places and making use of facilities in the community both safely and free of pain, once outside of his car.  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.

g.       139.     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 to 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.

h.       140.     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 Tribunal concludes that because the circumstances set out in rule 5.8(a) apply to him, Mr Ditchfield is deemed to meet the disability requirement under s 24(1)(c) of the Act.

Section 24(1)(e) – support required for the person’s lifetime

a.       141.     There is no evidence before the Tribunal to suggest that surgical intervention is recommended for Mr Ditchfield which may rectify his LLD.  Mr Ditchfield has lived with this disability since the 1970s and has managed to overcome the limitations it has caused to him by seeking out and using the aid of the raised shoes and orthotics prescribed by his successive treating medical and allied health practitioners.  Mr Ditchfield’s LLD condition is permanent and the Tribunal finds that he will require the support (in the form of such aids) for his lifetime to enable him to engage in the activity of mobility and to maximise his full inclusion in the community.

b. 142. The Tribunal concludes that Mr Ditchfield meets the disability requirement under s 24(1)(e) of the Act.

conclusion

a. 143. Based on the conclusions reached in paragraphs [123], [140] and [142], the Tribunal concludes that Mr Ditchfield meets the disability requirements under s 24(1) of the Act and that he meets the access criteria under s 21 of the Act.

b. 144. Accordingly, the Tribunal sets aside the decision under review and in substitution, decides that Mr Ditchfield meets the access criteria under s 21 of the Act.

2.        

3.       I certify that the preceding 144 (one hundred and forty four) paragraphs are a true copy of the reasons for decision of Member K. Parker.

4.        

5.        

6.       …………[sgd]……………………………

7.       Associate

8.       Dated: 23 July 2019

9.        

10.      

11.      

12.     Date of the hearing:  9 August 2018

13.     Date of final closing submissions:                 26 September 2018

14.     Counsel for the Applicant:  Ms M Wilson of counsel

15.     Representatives for the Applicant:                 Pearse Fay (Applicant’s son-in-law)

16.     Counsel for the Respondent:  Mr A Aleksov of counsel

17.     Solicitors for the Respondent:  Bromley Hornsby, Minter Ellison

18.      

19.