Fountain and National Disability Insurance Agency (NDIS)
[2025] ARTA 166
•28 February 2025
Fountain and National Disability Insurance Agency (NDIS) [2025] ARTA 166 (28 February 2025)
Applicant:Leisa Fountain
Respondent: National Disability Insurance Agency
Tribunal Number: 2022/2847
Tribunal:General Member J Toohey
Place:Brisbane
Date:28 February 2025
Decision:The Tribunal affirms the decision under review that the Applicant does not meet the access requirements in section 21 of the National Disability Insurance Scheme Act 2013 (Cth).
.................................[SGD]...................................
General Member Justin Toohey
Catchwords
National Disability Insurance Scheme – Access – Becoming a Participant Rules – Commencement of the Administrative Review Tribunal – Getting the NDIS Back on Track – Fibromyalgia – Post-Traumatic Stress Disorder – Spinal Degeneration – Substantially Reduced Functional Capacity – Assessing Activities and Tasks
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No.1) Act 2024 (Cth)
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)Cases
FBJV v National Disability Insurance Agency [2021] AATA 913
Mulligan v National Disability Insurance Agency [2015] FCA 544
National Disability Insurance Agency v Davis [2022] FCA 1002
National Disability Insurance Agency v Foster [2023] FCAFC 11
Wiggill and National Disability Insurance Agency (NDIS) [2025] ARTA 115
Secondary Materials
Operational Guideline: Applying to the NDIS, published 14 October 2024Statement of Reasons
SUMMARY
I have found that the Applicant does not have impairments that result in a substantially reduced functional capacity to undertake one or more of the activities set out in section 24(1)(c) of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act). At this point in time, the Applicant does not quality for access to the NDIS. Ms Fountain does have reduced capacity in some activities, such as mobility and self-care. However, at this time, I am not satisfied that the reduction is substantial for the purpose of the NDIS Act and Rules. Similarly, while Ms Fountain is frequently assisted by her friend Ms Badland, at this time, Ms Fountain does not usually require assistance to effectively participate in one or more of the activities set out in the NDIS Act. Ms Fountain’s impairments are likely to become worse over time and it may be that she will meet the eligibility requirements in the NDIS Act at some point in the future. I have set out my reasons for reaching this decision below.
ISSUE
The issue before the Tribunal is whether the Applicant, Ms Fountain, meets the access criteria to be a participant of the National Disability Insurance Scheme (NDIS) in accordance with section 21 of the NDIS Act. The Applicant does not seek access based on the early intervention requirements in section 25 of the NDIS Act.
BACKGROUND
Ms Fountain is a 56-year-old woman who lives by herself in a rural location[1] with regular support from her friend Ms Badland. Ms Fountain is impacted by symptoms from fibromyalgia, post-traumatic stress disorder (PTSD), spinal degeneration, generalised anxiety disorder (GAD) and major depression.
[1] In Fernvale, which is north of Ipswich and around 1-hour drive from Brisbane.
The Tribunal is reviewing a decision made by a delegate of the Chief Executive Officer (CEO) of the National Disability Insurance Agency (Agency) on 3 March 2022 which affirmed an earlier decision that the Applicant did not meet the criteria for access to the NDIS. Ms Fountain was granted an extension of time to apply for a review by the Administrative Appeals Tribunal (AAT) on 30 May 2022. This application was made under section 103 of the NDIS Act and section 25 of the Administrative Appeals Tribunal Act 1975 (AAT Act).
The Tribunal held a hearing by video on 6 and 7 February 2025. The Applicant represented herself with support from Ms Badland. As Ms Badland was also a witness, it was agreed that she should not be present for the evidence of other witnesses, including the Applicant. This limited the level of support that Ms Badland was able to provide Ms Fountain during the hearing. I commend Ms Fountain for managing the hearing process so capably, given this must have been a very challenging circumstance for her, especially with her PTSD and anxiety.
The Agency was represented by Counsel, Mr Nolan as instructed by Sparke Helmore Lawyers. I also commend Mr Nolan for managing the issues before the Tribunal sensitively, particularly with respect to the Applicant’s history of trauma. I am grateful to the Agency’s legal representatives for arranging Dr Moodley to provide evidence at the hearing. In my view, this is an example of better practice in assisting the Tribunal in circumstances where an Applicant is self-represented and has impairments and limited resources.
RECENT TRIBUNAL AND NDIS ACT AMENDMENTS
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.[2]
[2] This paragraph is approved for use in all Tribunal decisions.
The National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 (Cth) (Back on Track Act) commenced on 3 October 2024 and made significant amendments to the NDIS Act. As Ms Fountain’s request for access to the NDIS was made before 3 October 2024, section 126 of the Back on Track Act provides that the NDIS Act, Rules and Guidelines apply as they existed before commencement of the Back on Track Act.[3]
OVERVIEW OF THE NDIS DECISION-MAKING FRAMEWORK[4]
[3] I have used a similar paragraph in other recent decisions.
[4] I have used a similar overview in other matters dealing with access to the NDIS.
Chapter 1, Part 2 of the NDIS Act sets out the objects and principles of the Act including, for example, that the NDIS Act is to support the independence and social and economic participation of people with disability,[5] and that decision-makers are to have regard to the need to ensure the financial sustainability of the scheme.[6] Section 21(1) of the Act sets out that a person meets the criteria to become a participant in the NDIS if:
(a)the CEO is satisfied that the person meets the age requirements (see section 22); and
(b)the CEO is satisfied that, at the time of considering the request, the person meets the residence requirements (see section 23); and
(c)the CEO is satisfied that, at the time of considering the request:
(i)the person meets the disability requirements (see section 24); or
(ii)the person meets the early intervention requirements (see section 25).
[5] Section 3(1)(c).
[6] Section 3(3)(b).
A person meets the disability requirements in section 24(1) of the NDIS Act if:
(a) the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable; and
(b)the impairment or impairments are, or are likely to be, permanent; and
(c)the impairment or impairments result in substantially reduced functional capacity to undertake one or more of the following activities:
(i)communication;
(ii)social interaction;
(iii)learning;
(iv)mobility;
(v)self-care;
(vi)self-management; and
(d)the impairment or impairments affect the person’s capacity for social or economic participation; and
(e)the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime.
Section 27 of the NDIS Act provides for the making of rules in relation to the disability requirements and the early intervention requirements. The relevant rules in respect of this review are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Becoming a Participant Rules). Rule 5.8 of the Becoming a Participant Rules states:
When does an impairment result in substantially reduced functional capacity to undertake relevant activities?
5.8 An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities—communication, social interaction, learning, mobility, self-care, self-management (see paragraph 5.1(c))—if its result is that:
(a)the person is unable to participate effectively or completely in the activity, or to perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications; or
(b)the person usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in the activity or to perform tasks or actions required to undertake or participate in the activity; or
(c)the person is unable to participate in the activity or to perform tasks or actions required to undertake or participate in the activity, even with assistive technology, equipment, home modifications or assistance from another person.
The Federal Court in Mulligan held that it is sufficient for a person to have substantially reduced functional capacity in relation to one activity.[7] The Full Court in Foster found that it is not sufficient for a person to have substantially reduced functional capacity to undertake a single task within the bundle of tasks and actions that form part of an activity.[8]
[7] Mulligan v National Disability Insurance Agency [2015] FCA 544, [56].
[8] National Disability Insurance Agency v Foster [2023] FCAFC 11, [65].
The NDIS Operational Guidelines also assist in making decisions in accordance with the NDIS Act. Operational guidelines represent government policy and should be applied by the Tribunal unless there is good reason not to do so.[9] The relevant operational guideline is Applying to the NDIS.[10]
[9] Re Drake and Minister for Immigration and Ethnic Affairs(No 2) (1979) 2 ALD 634.
[10] Pre-legislation version accessed at While the date on this guideline is 14 October 2024, which is after the Back on Track Act amendments, Counsel for the Agency confirmed that the only post-amendment update was to change references to the AAT to ART.
SUMMARY OF EVIDENCE
The Tribunal was provided with a joint hearing bundle by the parties, and this was accepted into evidence at the hearing.[11] This bundle of documents included:
(a)the ‘T-documents’,[12]
(b)reports from the Applicant’s treaters, such as:
(i)her general practitioner, Dr Moodley, and
(ii)Dr Naras, specialist physician,
(c)statements from the Applicant, her sister, and another friend Ms Withers,
(d)an independent functional capacity assessment report from Mr Glen Dwyer, occupational therapist.
[11] The page numbering in the joint hearing bundle is adopted throughout these reasons.
[12] Which are all the records that the Agency considered when making the decision under review as required by section 37 of the AAT Act.
At the start of the hearing, the Tribunal accepted a supplementary report from Mr Dwyer and the accompanying briefing letter which were lodged after preparation of the joint hearing bundle. The Tribunal also accepted 18 pages of clinical notes from Ms Jacqueline Wood, the Applicant’s former treating psychologist. These records were provided to the Tribunal as part of an earlier summons process and the Applicant requested that they be considered as evidence. The Tribunal had the benefit of written submissions from the Agency and oral evidence from the Applicant, Ms Badland, Dr Moodley and Mr Dwyer.
CONSIDERATION
Age and residence requirements[13]
[13] Sections 22 and 23 of the NDIS Act.
The parties agree that the Applicant satisfies the age and residence requirements. I am satisfied that these requirements are met.
Disability requirements
I must consider whether the Applicant meets the disability requirements in section 24 of the NDIS Act.
Disability attributable to impairments which affect social and economic participation
There is no dispute that Ms Fountain has a disability attributable to impairments[14] which affect her capacity for social and economic participation.[15] Based on the information before me, including the reports of Dr Moodley, I agree that these requirements are met. I disagree with the Agency’s description of the Applicant’s mental health symptoms as being cognitive impairments.[16] Based on government health resources, I agree that depression and anxiety can cause at least temporary cognitive impairments.[17] However, I consider it more accurate to say that the Applicant’s anxiety, depression and trauma stress responses are impairments to which a psychosocial disability is attributable.
[14] NDIS Act, section 24(1)(a). Agency’s Statement of Facts, Issues and Contentions, at page 9.
[15] NDIS Act, section 24(1)(d). Counsel for the Agency advised that this was not contested, based on the Applicant receiving the disability support pension.
[16] Agency’s Statement of Facts, Issues and Contentions, at paragraph 2.
[17] are likely to be permanent
In assessing whether impairments are likely to permanent, the Becoming a Participant Rules state:
5.4An impairment is, or is likely to be, permanent (see paragraph 5.1(b)) only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.
5.5An impairment may be permanent notwithstanding that the severity of its impact on the functional capacity of the person may fluctuate or there are prospects that the severity of the impact of the impairment on the person’s functional capacity, including their psychosocial functioning, may improve.
5.6An impairment may require medical treatment and review before a determination can be made about whether the impairment is permanent or likely to be permanent. The impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated (even though the impairment may continue to be treated and reviewed after this has been demonstrated).
5.7If an impairment is of a degenerative nature, the impairment is, or is likely to be, permanent if medical or other treatment would not, or would be unlikely to, improve the condition.
The Agency submits that the Applicant’s impairments are not permanent for the purpose of section 24(1)(b) of the NDIS Act. In respect of the Applicant’s physical impairments arising from fibromyalgia and degeneration of the spine, the Agency’s submissions are mainly based on the letter of Dr Thomsett dated 17 June 2021.[18] In this letter, Dr Thomsett said that: some improvements had been made; the Applicant was ‘happy with her function and does not wish to engage with our multidisciplinary service’; and made recommendations to her GP for further adjustments to the Applicant’s medication. The Agency submits:
… the specialist evidence available supports a finding that the treatments undertaken are known, available and appropriate evidence-based treatments that would likely remove, cure or substantially relieve the Applicant’s physical impairments arising from Fibromyalgia and Degeneration of the Spine.[19]
[18] Pain Medicine Registrar, Persistent Pain Management service, Princess Alexandra Hospital, at T3.
[19] NDIS Act, section 24(1)(b). See the Agency’s Statement of Facts, Issues and Contentions, at page 10.
The Agency cites the Tribunal decision in FBJV[20] and the Federal Court decision in Davis[21] for the proposition that the word ‘remedy’ in Rule 5.4 of the Becoming a Participant Rules is to be understood to mean something approaching a removal or cure of or substantially relieve the impairment.[22] However, FBJV was considering the phrase ‘substantially relieve’ in the operational guideline that was published at that time. This phrase is no longer used in the current operational guideline Applying to the NDIS which instead says:
Your impairment will likely be permanent if your treating professional gives us evidence that indicates there are no further treatments that could relieve or cure it.
[20] FBJV and National Disability Insurance Agency [2021] AATA 913 [117].
[21] National Disability Insurance Agency v Davis [2022] FCA 1002 [136].
[22] Agency’s Statement of Facts, Issues and Contentions, page 9.
This current wording is consistent the Federal Court’s decision in Davis in which Justice Mortimer (as the Chief Justice then was) held that:
In this context, “remedy” should be understood to mean more than just relieve or improve. That is because r 5.5 recognises that an impairment may be permanent notwithstanding the severity of its impact on a person may fluctuate, or there are prospects for improvement. These changes in the impacts of an impairment may occur because of, amongst other matters, treatment. Therefore, in r 5.4 the word “remedy” should be understood to mean something approaching a removal or cure of the impairment. That is consistent with the meaning I consider should be given to the statutory phrase “permanent impairment”, as an impairment which is enduring and, while its impacts on a person from time to time might fluctuate, is not an impairment which is likely to be removed or cured.
The decision from the court in Davis is a precedent that the Tribunal is required to follow and must be preferred to the earlier decision of the Tribunal in FBJV which applied a guideline which is no longer current. I do not consider that the phrase ‘likely to remedy the impairment’ in Rule 5.4 extends to treatments that might ‘substantially relieve’ an impairment.
In her oral evidence, the Applicant said she did not continue with Dr Thomsett due to the travel time to the hospital and that there wasn’t anything further they could do for her. She denies saying that she was ‘happy with her function’. In his report, Dr Moodley has clearly stated that the Applicant’s impairments are permanent and that there are no treatments or procedures to improve her conditions.[23] The Agency specifically asked Dr Moodley whether any treatments were likely to approach the removal or cure of the Applicant’s impairments and Dr Moodley was unequivocal in his response ‘No’.
[23] Letter dated 2 May 2022, at A2 of the joint hearing bundle.
The Agency also contends that the Applicant’s impairments arising from depression, anxiety and PTSD are not permanent. The Agency refers to the summonsed material from Ipswich Psychology indicating that the Applicant was ‘progressing slowly with her therapy sessions’ and that, as at 15 September 2020, further sessions were recommended.
At the hearing the Agency also asked Dr Moodley about the report of Dr Naras in which he says:
She was also advised to continue psychological support. She will also benefit from assessment by a psychiatrist.[24]
[24] Letter dated 1 November 2023, at A2 of the joint hearing bundle.
Dr Moodley said that he referred the Applicant for further counselling with a psychologist which might assist with coping strategies. He had not arranged a referral to a psychiatrist but considers this could assist with optimising her medication. Overall, Dr Moodley was not optimistic that these treatments would assist the Applicant in ameliorating her impairments. He agreed these treatments might ‘help a little bit’ with the Applicant’s functioning in relation to communication and social interaction.
In her oral evidence, the Applicant said that she had not attended a psychologist following Dr Moodley’s most recent referral. The Applicant explained that, based on her previous counselling experiences, the sessions usually required going into past trauma and she found this too distressing. The Applicant said she had made a booking with a psychologist but then cancelled. Dr Moodley did not appear to be aware of this.
Based on the evidence before me, I am satisfied that the Applicant has permanent physical impairments from her fibromyalgia and spinal degeneration as well as permanent impairments (related to her PTSD, GAD and major depression) to which a psychosocial disability is attributable. I am satisfied that there are no known, available and appropriate evidence-based treatments that would be likely to remedy the impairments. While there are psychological and psychiatric treatments that have been recommended, I consider that these treatments are not likely to remove or cure the Applicant’s impairments.[25] There are prospects that these treatments may improve her functioning in some activities.[26] The Applicant’s physical impairments are degenerative and the treatments are unlikely to improve these impairments.[27]
[25] Rule 5.4 as described in Davis.
[26] Rule 5.5.
[27] Rule 5.7.
Substantially reduced functional capacity in one or more activities
Importantly, in addition to being permanent, to be eligible for the NDIS, Ms Fountain’s impairments must also result in a ‘substantially reduced functional capacity’ in respect of one of the activities listed in section 24(1)(c).
At the hearing, the Applicant explained that her impairments had deteriorated since the time of Mr Dwyer’s assessment, which was conducted on 5 June 2023. In summary, the deterioration Ms Fountain described included that:
(a)she has developing vertigo as a new symptom of fibromyalgia and driving less due to this,
(b)there are new welts on her back, which are extremely painful, for which she is getting a further CT scan,
(c)her pain is worse, and more frequent, meaning that she lays down most of the time,
(d)at times she has not been able to move quickly enough to make it to the bathroom,
(e)Ms Badland now does the shopping, organises her medicines, and puts out the bins,
(f)she no longer gardens, and does not socialise, other than with Ms Badland,
(g)she now showers around once a week and dries herself under a fan,
(h)when she is in the community, she can only walk about ten minutes before needing to rest,
(i)she can no longer access the low freezer drawer,
(j)it is harder to put shoes and socks on,
(k)she has cut her hair short as it was too hard to manage,
(l)she is now too anxious to answer the phone.
The Applicant did also report some improvements due to modifications that she has made in her environment. Ms Fountain now has a top-load washing machine which she finds easier to take washing out of and she can hang this washing on the airer. She has also purchased a shower chair and uses this in the shower and from toilet transfers.
The Applicant also said that she now experiences more ‘flares’ of her fibromyalgia and that her ‘bad days’ can now last for months at a time, and that she only experiences ‘good days’ around one or two days per month. She also described her functioning on the day of Mr Dwyer’s assessment as being a ‘pretty good day’ and that this was similar to how she felt at the hearing. This is slightly different from Dr Moodley’s oral evidence. While Dr Moodley agreed that Ms Fountain had deteriorated, he said that two of seven days per week were ‘satisfactory’ with the remaining being worse.
The Applicant’s reported deterioration (and modifications) were put to Mr Dwyer at the hearing. Mr Dwyer said that the ‘gold standard’ would be to reassess Ms Fountain’s functional capacity. However, from the points summarised above, Mr Dwyer’s view was that Ms Fountain has retained a ‘good reserve of functional capacity’. For example, he said that being able to mobilise for ten minutes in the community was ‘quite functional’, as was being able to complete light laundry tasks with a top-loading washing machine and airer. He considered that these indicators of functional capacity would be transferable to other tasks.
I also asked Mr Dwyer about how his report accounted for the fluctuations in the Applicant’s impairments. He described this as a nuanced process where he ‘cross-referenced’ his observation of activities during the assessment, with the person’s reporting on what they can and can’t do, the ratio of their good and bad days, along with the written background material in the brief. In relation to Ms Fountain, he considered that all this information came together in a way that created a very clear picture for him of the Applicant’s functioning at the time of his assessment and that he was confident in his assessment. During the hearing the Applicant was also asked to comment on Mr Dwyer’s specific findings in relation to each functional activity, which are discussed further below.
I note that, in another recent decision,[28] I expressed some concerns with how Mr Dwyer’s assessment accounted for fluctuations in that Applicant’s impairments. I am less concerned about this issue in Ms Fountain’s matter as: Mr Dwyer is more confident in his conclusions here; these conclusions are not contradicted by other allied health assessments of function; and, Mr Dwyer provided a better explanation of his methodology in terms of integrating his direct observations with other sources of information.
[28] Wiggill and National Disability Insurance Agency (NDIS) [2025] ARTA 115, at paragraphs 35 to 43.
Communication
In Mr Dwyer’s report, he assessed the Applicant as being independent in respect of each of the communication functions assessed, meaning that the Applicant is able to complete communication tasks without assistance or assistive technology. Mr Dwyer said that there we no deficits in the communication domain as observed during his assessment. At the hearing the Applicant agreed with this assessment and also agreed that she did not have a substantially reduced functional capacity with the activity of communication. Having considered the material before me, I am not satisfied that the Applicant has a substantially reduced functional capacity to undertake the activity of communication.[29]
[29] Section 24(1)(c)(i).
Social interaction
With regard to social interaction Mr Dwyer’s report was more mixed. While Mr Dwyer considered that the Applicant was independent in most social interaction tasks, he also noted that the Applicant used ‘modified techniques’ with respect to making and keeping friends and interacting with the community. The modifications he reported were that Ms Fountain kept in touch with friends mainly by phone, or by them visiting her home, and that she accessed the community about once per month. He also described how Ms Fountain had experienced family violence and lost contact with her children.
The Applicant now describes only having one friend, and only accessing the community for monthly medical appointments. Overall though, during the hearing, the Applicant said that she can interact with others but chooses not to. This is mainly due to her high levels of continuous pain. While I am concerned that there are risks for Ms Fountain in becoming more socially isolated, it is positive that Ms Badland remains in frequent contact and stays with her several times per week. This requirement in the NDIS Act focuses on functional capacity as opposed to frequency of social interactions. In my view, the Applicant retains a reasonable level of function with regards to being able to socially interact. She certainly demonstrated a good capacity to engage with others during the hearing process itself and I was impressed with her patience and resilience throughout. This is also an area which Dr Moodley agreed might benefit from additional psychological or psychiatric treatment. Based on the information before me, I do not consider that the Applicant has a substantially reduced functional capacity to undertake the activity of social interaction.[30]
[30] Section 24(1)(c)(ii).
Learning
Mr Dwyer assessed Ms Fountain as being independent in the activity of learning. He did report some impacts on her function, saying:
No deficits in this domain relevant to Ms Fountain’s circumstances, noting she is not attempting any formal study or courses at the present time.
It is acknowledged that the effects of chronic pain and fatigue can impact on Ms Fountain’s concentration levels, however this issue does not impair her ability to the extent that it prevents her from conducting her day-today [sic] activities.
For example, during this assessment there was no indication that she experiences any specific cognitive deficits and she demonstrated clear understanding throughout this assessment. She sustained concentration sufficiently for the duration of the assessment (2.5 hours), with no requirement for specific assistance.[31]
[31] Page 41 of the joint hearing bundle.
At the hearing, Ms Fountain said that her memory is impacted, and this does affect her
day-to-day functioning. For example, she said that she can no longer read a book as she forgets what has happened. Ms Fountain did acknowledge that she is able to remember to take her medicine (using the tablet organiser prepared by Ms Badland) and pay bills (mostly paid through direct debits). During the hearing Ms Fountain required regular breaks and did need some points to be repeated or rephrased. However, overall, my observation was that Ms Fountain sustained a reasonable level of concentration and this is consistent with the conclusion reached by Mr Dwyer. While Ms Fountain’s pain and fatigue do appear to be impacting her concentration and memory, at this point in time, I am not satisfied that the Applicant has a substantially reduced functional capacity to undertake the activity of learning.[32]
[32] Section 24(1)(c)(iii).
Mobility
With regard to mobility, Mr Dwyer reported that the Applicant:
(a)Was independent, or used a single point walking stick, in accessing the main entrances and all rooms/areas within her home.
(b)Used a modified technique (avoiding storing items on higher or lower shelves) to access cupboards, storage and shelving.
(c)Was independent, or used a modified technique (would benefit from a shower stool and raised toilet seat), for bed, chair, floor, toilet, shower, and car transfers.
(d)Was independent, or used a modified technique, for driving (noting she would benefit from a higher vehicle with automatic transmission).
(e)Would have difficulty using public transport if it was available in her area.
(f)
Was independent, or used a modified technique (rests after walking for
15–20 minutes), for mobilising in the community and accessing essential services.
As noted earlier, Ms Fountain says that there are some areas in which her mobility has declined. In particular, she says that she now: drives less; does not garden; cannot access the low freezer drawer; is sometimes unable to make it to the bathroom in time; needs to rest after 10 minutes of walking, and that she relies on Ms Badland to put the bins out. In her evidence, Ms Badland said that she occasionally helped Ms Fountain with transferring off her lounge or bed. Ms Badland also completed shopping, heavier cleaning, and drives Ms Fountain to appointments.
Otherwise, Ms Fountain largely agreed with Mr Dwyer’s assessment. I note that Mr Dwyer considered it would be best if a new functional capacity assessment was conducted. Based on the summary of changes since his assessment, Mr Dwyer considered that Ms Fountain retained a reasonable level of function. From Dr Moodley’s evidence, I accept that Ms Fountain’s functional capacity is expected to decline over time. It may be that a future functional capacity assessment shows that Ms Fountain has a substantially reduced functional capacity. The Applicant can apply again for access to the NDIS if required. Based on the current information before me, I do not consider that Ms Fountain has a substantially reduced functional capacity to undertake the activity of mobility.[33]
[33] Section 24(1)(c)(iv).
Self-care
Mr Dwyer considered that the Applicant was independent, or used a modified technique or common assistive technology, to complete most self-care tasks. Mr Dwyer reported that Ms Fountain required physical assistance with: cutting her toenails; heavier domestic tasks such as changing her bed linen, scrubbing a bathroom or floor cleaning; and yard maintenance. At the hearing, Ms Fountain said that she now showers less often, but can still shower independently, and that the use of a shower stool has reduced her risk of falls. Ms Fountain confirmed she was able to make meals using packaged salad mixes, an
air-frier, or microwave, and could wash some dishes and wipe down a bench when needed.
In her evidence, Ms Badland confirmed that she does not assist Ms Fountain with her hygiene, dressing or grooming tasks other than to cut her toenails. Ms Badland advised that she stayed with the Applicant for around half of the week, mostly on weekdays. Ms Badland works variable shifts and is often away in the evening. While Ms Badland completes most of the cooking, she said that Ms Fountain was a keen cook who aimed to prepare more complex meals when she was able to. Ms Badland confirmed the Applicant’s evidence that she often did not have much appetite and usually ate simple meals that were pre-prepared or just required reheating.
While I accept that the Applicant’s ability to self-care is impacted by her pain and fatigue, I am not satisfied that her impairments meet the threshold of resulting in substantially reduced functional capacity. As the Full Court of the Federal Court explained in Foster, the NDIS was only intended to cover a subset of persons with a disability, being a much smaller group of people with significant care and support needs.[34] The Full Court also found that it is not sufficient for a person to have a substantially reduced functional capacity to undertake a single task within the bundle of tasks and actions that form part of an activity. It is the activity as-a-whole in which the Applicant must have a substantially reduced functional capacity.[35] When I look at the tasks that make up the activity of self-care, I consider that Ms Fountain is independent, or able use a modified technique or common assistive technology, to complete most of these tasks.
[34] National Disability Insurance Agency v Foster [2023] FCAFC 11, discussing the context of the NDIS being in response to a Productivity Commission report, at paragraph 47.
[35] National Disability Insurance Agency v Foster [2023] FCAFC 11, [65].
Ms Badland is providing a very commendable level of support to the Applicant. Still, there are multiple days and nights per week that Ms Fountain is on her own and she is mostly able to manage effectively during these times. Ms Fountain does not usually require the assistance of others to complete self-care tasks. Overall, I do not consider that Ms Fountain has a substantially reduced functional capacity to undertake the activity of self-care.[36]
[36] Section 24(1)(c)(v).
Self-management
Mr Dwyer reported that the Applicant is independent in respect of the tasks required for the activity of self-management. Ms Fountain agreed with this assessment. Based on the information before me, I do not consider that Ms Fountain has a substantially reduced functional capacity to undertake the activity of self-management.[37]
[37] Section 24(1)(c)(vi).
Likely to require lifetime support of the NDIS
I have found that Ms Fountain’s impairments do not, at this time, result in a substantially reduced functional capacity. I do not need to consider the additional requirement in section 24(1)(e) of the NDIS Act that a person is likely to require support under the Scheme for the person’s lifetime. I note that Ms Fountain has requested support under the Queensland Community Support Scheme (QCSS). Ms Fountain advises that she is waiting for further contact from the QCSS but that she has initially been advised that services are not available in her rural location. The QCSS website says that the QCSS it is not available to those who are eligible for the NDIS.[38] It is outside of the scope of the Tribunal to comment on whether services are available to Ms Fountain under the QCSS. However, now that I have confirmed that Ms Fountain is not presently eligible for the NDIS, I would encourage Ms Fountain to provide this update to the QCSS.
[38]
I am not satisfied that the Applicant meets the disability requirements as set out in section 24 of the NDIS Act. The Applicant is not presently eligible to become a participant of the NDIS. The decision of the Agency under review is affirmed.
Dates of hearing: 6 and 7 February 2025 Representative for the Applicant: Self-represented Solicitors for the Respondent:
Counsel for the Respondent:
Ms H Jonkers, Sparke Helmore Lawyers
Mr P Nolan, Darrow Chambers
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