Gan and National Disability Insurance Agency (NDIS)
[2025] ARTA 54
•3 February 2025
Gan and National Disability Insurance Agency (NDIS) [2025] ARTA 54 (3 February 2025)
Applicant/s: Ms Poh Gan
Respondent: National Disability Insurance Agency
Tribunal Number: 2023/7233
Tribunal:General Member D Heron
Place:Brisbane
Date:3 February 2025
Decision:The Tribunal affirms the decision under review pursuant to paragraph 105(a) of the Administrative Review Tribunal Act 2024 (Cth).
...............[SGD]..................
General Member D Heron
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – access – rheumatoid arthritis – substantially reduced functional capacity criteria not met – whether applicant meets disability requirements – NDIS Act s24(1)(c) – whether applicant meets early intervention requirements – decision under review affirmed.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Becoming a Participant) Rules 2016
CASES
Madelaine and National Disability Insurance Agency [2020] AATA 4025
Mulligan v NDIA [2015] FCA 544
National Disability Insurance Agency v Davis [2022] FCA 1002
National Disability Insurance Agency v Foster [2023] FCAFC 11
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] 24 ALR 577
Rooney and National Disability Insurance Agency [2021] AATA 3523
SECONDARY MATERIALS
National Disability Insurance Scheme - Operational Guidelines – Becoming a Participant – Access, (Web Page) < align="center">Statement of Reasons
BACKGROUND
Ms Poh Geok Gan (the Applicant) is a 61-year-old woman who seeks access to the National Disability Insurance Scheme (the NDIS).
Ms Gan has been diagnosed with rheumatoid arthritis (RA) and the associated stiffness and pain. Ms Gan is not employed and is in receipt of the disability support pension (DSP).
Ms Gan owns her own home in a Brisbane suburb and has resided there since 2010. She has two adult children with whom she has regular phone contact, who both live interstate. Ms Gan is separated from her spouse and does not have any informal or paid supports to provide assistance on a day-to-day basis.
Ms Gan’s youngest adult child resided at the home with her until August 2022, when her daughter relocated permanently to regional New South Wales for work purposes. Ms Gan has lived alone since this time, with her daughters visiting her yearly or on alternate years.[1]
[1] Joint Tender Bundle (JTB), Part D, Functional Capacity Assessment, page 113
On 5 June 2023, Ms Gan made an NDIS access request to become a participant in the NDIS. The Access Request Form stated RA as well as major depression, chronic pain from fibromyalgia and cervical spondylosis as her primary disabilities. Ms Gan has since clarified that she is only seeking NDIS access on the basis of impairments attributable to her RA.
Dr Joseph O’Callaghan, rheumatologist, stated in the Access Request Form that Ms Gan has been experiencing impairments attributable to RA for over 10 years.[2]
[2] JTB, T9, Access Request Form dated 5 June 2023 page 54
On 8 July 2023, the National Disability Insurance Agency (the Respondent) determined Ms Gan did not meet the access criteria in the National Disability Insurance Scheme Act 2013 (Cth) (the Act) as it was not satisfied her impairments resulted in substantially reduced functional capacity.[3]
[3] JTB, T10, Original Decision dated 8 July 2023 page 61
An internal reviewer confirmed this decision on 4 September 2023.[4] On 28 September 2023 Ms Gan applied to the Administrative Appeals Tribunal (AAT) for a review of this internal decision.[5] This is the Reviewable Decision before me.
[4] JTB, T2, Internal Review Decision, dated 4 September 2023 page 33
[5] JTB, T1, AAT Application for Review of Decision, dated 28 September 2023 page 23
The hearing was conducted on the papers with the consent of both parties, on 18 December 2024. In determining this matter, I have considered all the material filed by the parties, including the documents filed in the agreed Joint Tender Bundle (the JTB).
RECENT TRIBUNAL AND NDIS ACT AMENDMENTS
On 14 October 2024, the Administrative Appeals Tribunal (the 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), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 (Back on Track Act) commenced on 3 October 2024 and made significant amendments to the Act. As Ms Gan’s request for access was made before 3 October 2024, the Act, Rules and Guidelines apply as they existed before the commencement of the Back on Track Act.
LEGISLATIVE FRAMEWORK
The access criteria
Before turning to the issues, I note the following aspects of the statutory regime regarding access to the NDIS. To become a participant, the following access criteria in subsection 21(1) of the Act must be satisfied:
(1)A person meets the access criteria 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).
The parties agree that Ms Gan satisfies the age requirements and the residence requirements. The two main questions before me are whether Ms Gan satisfies the access criteria in section 24 (the disability requirements) or satisfies section 25 (the early intervention requirements) of the Act.
Section 24 of the Act states:
(1)A person meets the disability requirements if:
(a)the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable; and
(b)the impairment or impairments are, or are likely to be, permanent; and
(c)the impairment or impairments result in substantially reduced functional capacity to undertake one or more of the following activities:
(i)communication;
(ii)social interaction;
(iii)learning;
(iv)mobility;
(v)self-care;
(vi)self-management; and
(d)the impairment or impairments affect the person’s capacity for social or economic participation; and
(e)the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime.
(2)For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the national Disability Insurance Scheme for the person’s lifetime, despite the variation.
If I find that Ms Gan does not meet the above disability requirements, I must then consider whether she meets the early intervention requirements set out in section 25 of the Act. This section states that:
1.A person meets the early intervention requirements if:
(a)the person:
(i)has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent; or
(ii)has one or more identified impairments that are attributable to a psychiatric condition and are, or are likely to be, permanent; or
(iii)is a child who has developmental delay; and
(b)the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person’s future needs for supports in relation to disability; and
(c)the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by:
(i)mitigating or alleviating the impact of the person's impairment upon the functional capacity of the person to undertake communication, social interaction, learning, mobility, self-care or self-management; or
(ii)preventing the deterioration of such functional capacity; or
(iii)improving such functional capacity; or
(iv)strengthening the sustainability of informal supports available to the person, including through building the capacity of the person’s carer.
(d)the CEO is satisfied any early intervention supports that would be likely to benefit the person as mentioned in paragraphs (b) and (c) would be NDIS supports for the person.
Note: In certain circumstances, a person with a degenerative condition could meet the early intervention requirements and therefore become a participant.
The relevant rules to this matter are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (the Access Rules), which form part of the legislation.
The NDIS Operational Guidelines also assist in making decisions in accordance with the Act on whether a person meets the disability requirements or the early intervention requirements. The Federal Court in ReDrake and Minister for Immigration and Ethnic Affairs (No 2) [1979] 24 ALR 577 held that relevant government policy should be applied by the Tribunal unless there is good reason not to do so.[6]
[6] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179
Issues
To meet the disability requirements, I need to be satisfied that Ms Gan meets all the criteria set out in section 24 of the Act.
The issue that the parties disagree on is whether Ms Gan’s impairments result in substantially reduced functional capacity to undertake any of the following activities: communication, social interaction, learning, mobility, self-care or self-management. I rely on the explanation provided in Rooney and National Disability Insurance Agency [2021] AATA 3523[7] that ‘substantially’ takes its ordinary meaning.
[7] Rooney and National Disability Insurance Agency [2021] AATA 3523
Evidence
In support of her NDIS access request, Ms Gan provided evidence of medical records and forms dated between 23 September 2020 and 15 December 2023.[8]
[8] JTB, T3, T4, T5, T6, T7, T8
Ms Teresa Smith-Burchell, an independent occupational therapist, assessed Ms Gan in her home on 11 April 2024. Ms Smith-Burchell provided this functional capacity report dated 13 May 2024 and a supplementary functional capacity report dated 10 July 2024.
Also before me is the following material:
·Carer Impact Statement, dated 6 January 2024 authored by Ms Gan’s two daughters Kay Lynn Ng and Kay Tee Ng[9]
·Rheumatologist Dr Joseph W. O’Callaghan Further Access Request – Supporting Evidence Form and covering letter, dated 15 December 2023[10]
·Applicant’s Lived Experience Statement[11]
·Applicant’s responses to Respondent’s targeted questions, dated 15 July 2024.[12]
[9] JTB, C2, Carer Impact Statement dated 6 January 2024 page 77
[10] JTB, C1, Supporting Document Dr J O’Callaghan dated 15 December 2023 page 69
[11] JTB, C4, Applicant’s Statement of Lived Experience undated page 85
[12] JTB, C4, Applicant Response Targeted Questions dated 15 July 2024 page 80
Consideration of Claims and Evidence
Impairment
The Respondent accepts in its Statements of Facts, Issues and Contentions that the Applicant meets the disability criteria under paragraph 24(1)(a) of the Act on the basis of her physical impairments attributable to RA.[13]
[13] JTB, A1, Respondent’s Statement of Facts, Issues and Contentions dated 13 September 2024
Ms Gan in her handwritten Statement of Lived Experience outlined that her condition fluctuates and ‘on bad days’ due to pain and weakness she is unable to get out of bed until late in the day and has ‘great difficulty walking to the kitchen and [will] usually skip my meal’.[14]
[14] JTB, T Documents, Part C, Statement of Lived Experience, undated page 85
Ms Smith-Burchell advised in her assessment that Ms Gan’s impairment affects movement in her neck area with pain and stiffness, in her knees due to pain, lower back, fingers, wrists and reduced strength.[15]
[15] JTB, T Documents, Part D, Functional Capacity Assessment Report of Ms Teresa Smith-Burchell dated 13 May 2024 page 98
Ms Gan’s daughters provided a Carer Impact Statement to the Tribunal that discussed their fear that Ms Gan ‘will inevitably be seriously injured from a fall one day, particularly noting her debilitating health and reduced mobility. As she lives on her own, we are always worried that no one would be around to assist her should she be seriously injured at home’.[16]
[16] JTB, T Documents, Part C, Carer Impact Statement, dated 6 January 2024 page 78
On the evidence before me, I am satisfied that Ms Gan has a disability attributable to a physical impairment resulting from her RA and that paragraph 24(1)(a) of the Act has been met.
Permanency
To meet the disability requirements under paragraph 24(1)(b) of the Act the impairment or impairments are required to be permanent. Fluctuations in intensity or impairments that are variable can still be considered permanent as subsection 24(2) of the Act provides that impairments that vary in intensity may be permanent, and the person may be considered likely to require support under the NDIS for the person’s lifetime, despite this variation.
Permanency is established under rule 5.4 of the Access Rules if there is no known, available and appropriate evidence-based clinical, medical or other treatments that are likely to remedy the impairment. The definitions of ‘known, available and appropriate
evidence-based clinical, medical or other treatments likely to remedy’ have been clarified in National Disability Insurance Agency v Davis [2022] FCA 1002.[17]
[17] National Disability Insurance Agency v Davis [2022] FCA 1002 AT 137-139
Having regard to Ms Gan’s treatment history including pharmaceutical interventions, reviews by a rheumatologist and maintenance physiotherapy, I accept on the evidence before me that there are no further medical or evidence-based treatments that may remedy her impairment.[18]
[18] JTB, T7, Centrelink Form SU415 Dr Suresh Khirwadkar GP dated 16 June 2021 page 51
I am satisfied that the requirement in paragraph 24(1)(b) of the Act in relation to the Applicant’s physical impairment is met.
Substantially Reduced Functional Capacity
I turn to rule 5.8 of the Access Rules, a deeming provision[19] for substantially reduced functional capacity. I will need to consider whether the Applicant’s circumstances are captured in this provision. Rule 5.8 states that:
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.
[19] Madelaine and National Disability Insurance Agency (2020) AATA 4025
Considering Ms Gan’s circumstances under the deeming rule is only part of the statutory task. If this provision is not met, I will progress to consider whether the Applicant’s functional capacity is substantially reduced in any of the six domains.[20]
[20] Mulligan and NDIA [2015] FCA 544 at 77
As I’ve stated, the term ‘substantially’ in the context of ‘reduced functional capacity’ carries a significant threshold provided for by the Act that will need to be met.[21] Paragraph 24(1)(c) calls for more than ‘to simply show that functioning in the relevant area is affected’.[22]
[21] Rooney and National Disability Insurance Agency [2021] AATA 3523 at 22
[22] Davis and National Disability Insurance Agency (2023) AATA 1437 at 65
Communication
Dr O’Callaghan did not indicate that Ms Gan has substantially reduced functional capacity in communication in the Access Request Form.[23]
[23] JTB, Part B, Access Request Form, dated 5 June 2023 page 54
During Ms Smith-Burchell’s functional assessment in Ms Gan’s home she was asked to demonstrate, or alternatively simulate all tasks requested where possible.
Ms Smith-Burchell explained Ms Gan demonstrated independence in the domain of communication.[24]
[24] JTB, Part D, Functional Capacity Assessment dated 13 May 2024 page 112
I refer to the handwritten Statement of Lived Experience where Ms Gan has outlined her communication to family by telephone two to three times a week. This 12-page handwritten statement was well-structured, articulate, expressive and in it she wrote that she is independently able to communicate at medical appointments and shops.[25]
[25] JTB, Part C, Applicant’s Statement of Lived Experience, undated page 85
I am satisfied on the evidence that Ms Gan is able to express herself, and she is able to understand people, and be understood. Accordingly, I find Ms Gan does not have a substantially reduced functional capacity to undertake communication activities.
Socialising
In their Carer Impact Statement Ms Gan’s daughters describe how they ‘have painfully witnessed how a previously confident, sociable and high-energy person has retracted to the anxious, depressed and guarded person our mom has become’.[26]
[26] JTB, Part C, Carer Impact Statement, dated 6 January 2024 page 78
This social isolation concern was echoed by Ms Gan where she explained to the independent occupational therapist that she stopped attending Church due to mobility issues and diffidence about her decline. Ms Smith-Burchell in her report noted Ms Gan ‘suggested she did not want other people in the church to be aware of the reduced capacities which may be associated to reduced self-confidence associated with the diagnosis of Major Depression.’[27]
[27] JTB, Part D, Functional Capacity Assessment dated 13 May 2024 page 98
In response to the question ‘Do you interact with friends or family in person, if so how often?’ in the Applicant Targeted Questions Ms Gan answered that ‘when well and able’ she interacts with friends once a week in the library or shops.[28] She explains that she only gets to interact with family ‘on festival time like Easter, Christmas and New Year because we all live in different countries’.
[28] T Documents, Part C, Statement of Lived Experience undated page 92
While it is accepted that Ms Gan does not use computers, she has weekly phone calls with her two adult children, her daughters visit her yearly or on alternate years, and she has irregular contact with extended family overseas. The Tribunal has described the socialisation domain as being ‘about personal skills needed for social interaction, and only marginally about opportunities to exercise those skills.’[29]
[29] Madelaine and National Disability Insurance Agency [2020] AATA 4025 at 87
During the independent functional capacity assessment, it was reported that Ms Gan interacted socially during the appointment without any concerns. In the Access Request Form Dr O’Callaghan reported that Ms Gan does not require assistance in the domain of social interaction.[30]
[30] JTB, T9, Access Request Form page 47
Having considered the evidence I have formed the view that Ms Gan does not have substantially reduced functional capacity in the socialising domain.
Learning
Dr O’Callaghan reported in the Access Request Form that Ms Gan does not require assistance in the domain of learning.[31]
[31] JTB, T9, Access Request Form page 48
Ms Smith-Burchell indicates that Ms Gan enjoys reading religious books, and was able to demonstrate various yoga poses, Pilates and prescribed physiotherapy exercises during the assessment. Ms Gan continues to drive her automatic vehicle and has learned to use Uber if unable to drive to pre-planned medical appointments.
It is my view that to comprehend and remember information to engage in reading, recall exercises and follow directions to drive confirms that Ms Gan does not require assistance in the domain of learning, and it follows therefore that paragraph 24(1)(c) is not met in relation to the domain of learning.
Self-Management
Ms Gan described independence in regard to all self-management activities to the independent occupational therapist. This is consistent with her handwritten Statement of Lived Experience indicating she does not require assistance to take her medication and she is able to independently manage her banking. Further Ms Gan states she can independently organise medical appointments, manage her accounts and her budget.[32]
[32] JTB, C4, Applicant’s Responses to Targeted Questions page 94
I am therefore satisfied that Ms Gan does not have substantially reduced functional capacity in the domain of self-management.
Self-Care
I turn next to the issue of whether Ms Gan has substantially reduced functional capacity within the self-care domain.
In her report Ms Smith-Burchell outlines that Ms Gan reported having her ‘good days’ as a rare occurrence at a maximum of one to two days a week with the other weekdays listed as ‘bad days’ marked by difficulty mobilising from her bed with reduced eating and high pain levels. On the day of the functional assessment Ms Gan described it as being a ‘good day’. I accept that as the Applicant has a fluctuating condition, it is relevant that she was observed and assessed when the effects of her impairments were said to be good.
Dr O’Callaghan in his Further Supporting Evidence Form under self-care wrote that Ms Gan has ‘difficulty dressing with zips and buttons, can’t wash her hair, difficulty preparing meals and house-keeping’.[33] In his cover letter he indicated that Ms Gan required assistance in the domains of self-care and mobility.
[33] JTB, T Documents, Part C, Supporting Evidence Form, Dr O’Callaghan dated 15 December 2023 page 71
In relation to dressing Ms Gan describes in her handwritten letter that she has difficulty especially with fastening buttons due to pain and swelling in her fingers, opting for clothes that can be ‘slipped on’ – however, struggles with getting clothes on and off due to restricted arm stretching movement. She refers to sitting to put on her pants due to balance and mobility and that she can only wear slip-on shoes, as she cannot bend to do the laces, buttons or zips.
Ms Smith-Burchell’s assessment established that Ms Gan is independent with utilising a modified technique for all aspects of dressing. Ms Smith-Burchell also notes Ms Gan is independent with cleaning her teeth, washing her face, brushing her hair and cutting her own nails.
Ms Gan reports in her Statement of Lived Experience that while she is able to take short quick showers that she is only able to shower on ‘good days’. She explains that she is unable to have clean hair as she cannot stretch her hands up to reach her head.[34]
[34] JTB, Part C3, Applicant’s Responses to Respondent’s Targeted Questions page 84
Showering was not directly observed by Ms Smith-Burchell during her assessment; however she drew assumptions on functional capacity based on observations of other tasks with similar functional demands. This was then supplemented by information directly provided by Ms Gan.[35] Ms Smith-Burchell explains: ‘During the assessment she was able to demonstrate her ability to wash her body and hair. She reported squatting to then sit on the shower floor to complete showering and hair washing.’[36]
[35] JTB, D1, Functional Capacity Assessment dated 13 May 2024 page 112
[36] JTB, D1 page 120
In her handwritten statement Ms Gan states that on ‘bad days’ when impacted by pain and swelling she can fail to make it to the toilet in time. Ms Smith-Burchell’s functional capacity report states Ms Gan relies on the use of continence aids in the community for this reason.
In relation to toileting Ms Smith-Burchell reports Ms Gan’s functional capacity as being independent with all aspects of toileting and grooming.[37]
[37] JTB, D1 page 120
In Ms Gan’s Responses to Targeted Questions[38] she outlines that she is ‘unable to cook a good meal…I cannot stand for long enough to prepare, wash, cut and cook any meals from start to finish. Therefore, I eat microwave heat up food from the supermarket and only eat 1 main meal a day. During my very painful and sick days where I can’t walk, I do not eat hot meals. I just have water and bread or biscuits.’
[38] JTB, T Documents, Part C, Applicant’s Response to Targeted Questions dated 15 July 2024 page 83
Ms Gan’s daughters state in their Carer Impact Statement that Ms Gan ‘is a good cook, however, due to her rheumatoid arthritis, she is unable to stand for long enough to prepare and cook better meals. As a result of this, the quality of her diet has dramatically decreased as she increasingly relies on microwavable meals.’[39]
[39] JTB, Part C, Carer Impact Statement dated 6 January 2024 page 78
In her Lived Experience Statement regarding ‘bad days’ Ms Gan states that her daughters ‘order online groceries and take away food to send to my house door.’[40] For the purposes of eating and drinking Ms Gan states she uses lightweight cutlery to assist with her reduced finger and hand strength. She demonstrated sitting on her stool in the kitchen to complete tasks such as washing up and kitchen cleaning.
[40] JTB, Part C, Lived Experience Statement undated page 89
With regards to domestic activities like housecleaning and laundry Ms Gan reported to the independent occupational therapist that she rarely completes household cleaning tasks due to difficulty, attempting to undertake vacuuming tasks every 4–6 weeks.[41] She reports laundry to be a challenging task as it is located downstairs and holding the basket of clothes while descending the internal staircase is difficult. She was able to demonstrate how she currently completes her laundry once downstairs via sitting on a stool to access the washing machine and dryer.[42]
[41] JTB, Part D, Functional Capacity Assessment dated 13 May 2024 page 141
[42] JTB, Part D, Functional Capacity Assessment dated 13 May 2024 page 121
Ms Smith-Burchell’s assessment contained photos of all of the rooms within the home including a street view and yard view. The large home appears in the photos as organised, tidy and well maintained both inside and out.
Overall, I accept there are some self-care tasks that Ms Gan finds difficult to complete, however I am of the view from the evidence provided that Ms Gan has lived independently since August 2022 and has not or does not usually require assistance from other people to perform self-care tasks.
I am satisfied that Ms Gan is able to care for herself without assistive technology, equipment (other than commonly used items) or home modifications by undertaking some tasks more slowly using techniques she has modified or adopted to suit her individual needs.
I note Ms Gan can arrange and drive to her own medical appointments, using Uber where needed. On the evidence she is able to participate independently in appointments with her medical professionals. I am satisfied she is able to perform the tasks associated with maintaining her health needs.
I am satisfied Ms Gan is able to independently perform the tasks of personal care, hygiene, grooming, eating and drinking. She describes using techniques in a modified fashion to dress, shower, eat and drink. I accept there are limitations in Ms Gan’s capacity due to pain and range of movement however I am not satisfied on the evidence that her impairments result in a substantially reduced functional capacity in relation to the self-care activities.
Accordingly, I do not find that rule 5.8 is enacted nor that the threshold for substantially reduced functional capacity in self-care has been met.
Mobility
Much of the evidence before me provides particularised detail about the internal staircase and the layout of the Applicant’s home. Ms Smith-Burchell’s report describes the home as:
A 2 (two) storey home built on a downward reclined block of land, on a hilled street. The upstairs storey is accessed by the front entrance and has 3 (three) large bedrooms; an open plan kitchen and dining room; a lounge area with a small side deck area; a large rear deck area; a small front garden area and 2 (two) bathrooms – 1 (one) bathroom has a separate toilet. The downstairs area has the laundry; garage; a lounge area and a bathroom with a separate toilet.[43]
[43] JHB, Part D, Functional Capacity Assessment page 108
In Ms Smith-Burchell’s report is ‘Photo 9’ that shows the straight internal staircase against one solid wall with the caption: 14 stairs with left side ascending stair rail.[44]
[44] JHB, Part D, Functional Capacity Assessment page 110
Ms Gan’s daughters in their Carer Impact Statement express that:
Living in a two-storey house, our mom struggles daily going up and down the staircase. The living area of the house is upstairs (including the kitchen, living room, bedrooms and bathrooms), while the laundry, TV room and access to the garage is downstairs. In this regard, our mom requires frequent access to both levels of the house.[45]
[45] JHB, Part C, Carer Impact Statement, page 78
Ms Smith-Burchell reported that during the functional capacity assessment Ms Gan was observed to walk independently throughout the large two-storey home. Ms Gan was witnessed walking slowly with some reliance on walls and door frames to provide support, requiring rest breaks at approximately 15-minute intervals.[46]
[46] JTB, D1, Functional Capacity Assessment dated 13 May 2024 page 139
During the assessment Ms Gan demonstrated how she is able to lower herself to the squatting position and then rise from this position with some reliance on a wall for balance. Ms Gan explained that this demonstrated action is one of her practised yoga poses. She also undertook this movement when demonstrating accessing her freezer located underneath her fridge, using the fridge for balance to locate and retrieve cold items. She was also able to undertake the action of prolonged sitting for two periods – one period of 45 minutes and one period of 1 hour and 15 minutes – during the assessment.[47]
[47] JTB, D1, Functional Capacity Assessment dated 13 May 2024 page 140
Ms Smith-Burchell reported that Ms Gan is able to drive to access the local shops. Ms Gan explained she attends the shops on days and times when it is less busy, uses the trolley for balance and asks other shoppers to access items on low shelves where needed. Following grocery shopping, she will take two to three days to transfer the items from the downstairs garage area to the upstairs kitchen area. Ms Gan describes a modified way that she takes her groceries up to the kitchen. She was able to describe how she will carry items often one at a time up the stairs to complete this task.
I have had regard to Ms Smith-Burchell’s recommendation of assistive equipment such as toilet commode, falls alarm, kitchen trolley and installing grab rails to ensure safe transfers. The other recommendation provided was the stair lift for safety on the internal stairs.
I note that at the time of the assessment, Ms Gan is not using equipment or assistive technology in the home, managing to feed, shower, transfer and negotiate the stairs herself albeit at a slower pace and via a modified method. This is an important consideration as my role is to make a point in time assessment of whether Ms Gan has a substantially reduced functional capacity.
In her Statement of Lived Experience, her daughters’ Carer Impact Statement and the independent functional assessment were descriptions of falls due to weakness in Ms Gan’s legs and knees experienced since April 2023. One fall was described as happening in a takeaway food store and the three other particularised falls occurred on the internal staircase or inside the home.
Ms Gan reported there have been occasions where she could not ascend or descend the stairs due to these falls. On these occasions she reports remaining upstairs for several days.[48] She describes ‘after my falls, my physio sessions were increased by my physiotherapist. My medication Methotrexate has been increased by Dr O’Callaghan. I have heat treatment for pain and swollen knees.’[49]
[48] JTB, Part C3, Applicant’s Responses to Targeted Questions page 81
[49] JTB, Part C3, Applicant’s Responses to Targeted Questions page 82
Ms Gan’s daughters outlined that they are ‘very fearful that she will inevitably be seriously injured from a fall one day, particularly noting her debilitating health and reduced mobility. As she lives on her own, we are always worried that no one would be around to assist her should she be seriously injured at home.’[50] It is clear on the evidence that Ms Gan’s daughters worry for her safety given she has experienced falls in the past due to weak leg/knee strength.
[50] ibidem
Ms Smith-Burchell reports that Ms Gan currently walks up and down the stairs by holding on to the solid wall on one side and the handrail on the other side stepping slowly. She was observed undertaking this action during the assessment and was classified as being ‘modified/independent’.[51] When she is in the community, Ms Gan reports avoiding stairs when possible. Ms Smith-Burchell reported that Ms Gan is able to transfer from bed to standing independently and to and from her car independently.
[51] JTB, Part D1, Functional Capacity Assessment dated 13 May 2024 page 114
Dr O’Callaghan initially reported Ms Gan did not require assistance in the domain of mobility.[52] However, he subsequently confirmed she does require support with her mobility in the form of modifications.[53] Specifically, Dr O’Callaghan reported Ms Gan has difficulty getting up a step into her bathroom, she needs modifications to get into the shower, she sits on a chair in the shower, she needs bars for the toilet to assist her sitting and standing and she has difficulty navigating stairs such that she will require a stair lift.
[52] JTB, Part B, Supporting Evidence Form – Access Request dated 5 June 2023 page 58
[53] JTB, Part B, Further Access Request – Supporting Evidence Form dated 15 December 2023 page 74
Ms Smith-Burchell states that Ms Gan:
43.25.1was observed to mobilise unaided, slowly on flat surfaces, including timber floors and tiled floors. She relied on various walls and door frames during the assessment when mobilising. She mobilised for approximately 15 minutes;
43.25.2 the Applicant can navigate the stairs in her home, albeit slowly and with dependence on the rail. She can complete transfers with reliance on furniture for support; and
43.25.3 the Applicant can drive to access the community for shopping. In the supermarket she will rely on the shopping trolley to assist her with walking.[54]
[54] JTB, Part D, Functional Capacity Assessment Report, pages 17–22, 40–41
While Ms Smith-Burchell observed Ms Gan’s ability to walk independently for approximately 15 minutes before needing a break, Ms Gan reports in her Statement of Lived Experience that on a ‘good day’ she can walk between 45 minutes to 1 hour without a break on flat surfaces.[55]
[55] JTB, Part C, Applicant’s Statement of Lived Experience (undated), page 85
On the evidence I accept that Ms Gan can independently descend and ascend the stairs slowly, and I am not satisfied that her previous falls or her risk of falls satisfies substantially reduced functional capacity.
Overall, on the evidence before me about mobility Ms Gan’s circumstances are not captured by rule 5.8 and with respect to the statutory threshold, I am not satisfied that she does have substantially reduced functional capacity in the mobility domain.[56]
[56] JTB, Part A, Respondent’s Statement of Facts Issues and Contentions 13 September 2024 page 10.
Early Intervention Requirements
The evidence does not show that provision of early support will reduce Ms Gan’s future support needs, given that:
·Ms Gan reports that her physical impairment has steadily worsened; and
·Dr O’Callaghan expects that Ms Gan’s function will not be resolved with any further intervention.
There is no evidence before me that the provision of early intervention supports would be likely to reduce Ms Gan’s future support needs. Rather, her support needs are likely to increase alongside age-related decline. Given Ms Gan lives alone, the provision of early intervention supports strengthening the sustainability of informal supports is also not satisfied.
Conclusion
I find that Ms Gan’s impairments do not result in a substantially reduced functional capacity to undertake the prescribed activities as required under paragraph 24(1)(c) of the Act and therefore does not meet the criteria in either of sections 24 or 25.
For that reason, I find Ms Gan does not meet the access criteria on the basis of either the disability requirements or the early intervention requirements of the Act.
Decision
The Tribunal affirms the decision under review pursuant to paragraph 105(a) of the Administrative Review Tribunal Act 2024 (Cth).
Date of hearing: 18 December 2024
Applicant’s Representative: Self-represented
Solicitors for the Respondent: Maddocks
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