Gardner and National Disability Insurance Agency

Gardner and National Disability Insurance Agency [2023] AATA 1287 (22 May 2023)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2019/6148
Re:Mary Gardner
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Member D. Barker
Date:22 May 2023
Place:Sydney

The Tribunal sets aside the decision under review and in substitution decides that Mrs Gardner meets the access criteria under s 21 of the National Disability Insurance Scheme Act 2013 (Cth).
.............[SGD]...........................
Member D. Barker
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – access criteria – disability requirements – chronic pain – major depressive disorder – attention deficit hyperactivity disorder – obsessive compulsive disorder – whether there is substantially reduced functional capacity – decision under review set aside and substituted
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Act 2022 (Cth)
Cases
Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[1979] AATA 179
National Disability Insurance Agency v Foster [2023] FCAFC 11
Mulligan v National Disability Insurance Agency (2015) 233 FCR 201
JLZT and National Disability Insurance Agency [2022] AATA 541
Madelaine and National Disability Insurance Agency [2020] AATA 4025
HPSC and National Disability Insurance Agency [2021] AATA 727
Sheldon and National Disability Insurance Agency [2018] AATA 2560
Secondary Materials
Revised Explanatory Memorandum, National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021 (Cth)
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)
Our Guidelines – Becoming a participant – Applying to the NDIS
Assistive Technology Operational Guideline
REASONS FOR DECISION
Member D. Barker
22 May 2023
INTRODUCTION

This application is about whether the Applicant, Mrs Mary Gardner (Mrs Gardner), should be granted access as a participant to the National Disability Insurance Scheme (the NDIS).
The Applicant contends that Mrs Gardner meets the mandatory access criteria under s 21 of the National Disability Insurance Scheme Act 2013 (Cth) (Act) being:
(a)the “age” access criteria;
(b)the “residence” access criteria; and
(c)the “disability” access criteria.
The National Disability Insurance Agency (NDIA), being the Respondent in this matter, is the relevant Commonwealth agency that administers and delivers the NDIS. The Respondent accepts that in relation to the NDIS access request, Mrs Gardner meets the age and residence access criteria, but contends that she does not meet other threshold requirements in the disability access criteria.
For the reasons set out below, the Tribunal is satisfied that Mrs Gardner meets the “disability” access criteria under s 24(1) of the Act.
Accordingly, the Tribunal sets aside the decision under review and in substitution decides that Mrs Gardner meets the access criteria under s 21 of the Act.
BACKGROUND
Mrs Gardner is a 69-year-old woman, living with her husband in their four-bedroom family home in South Western Sydney, NSW. She has five adult children and 11 grandchildren. Two of her daughters reside elsewhere in the Sydney region, a further daughter and son reside in the Illawarra region of NSW and her eldest son, is currently living in Queensland.
Mrs Gardner trained as an assistant nurse, but ceased work in this vocational arena many years ago as a result of a work-related back injury. Her husband developed chronic obstructive pulmonary disease[1] (COPD) which caused him to cease work and Mrs Gardner has been his carer for more than 20 years.
[1] Report by Dr Clare Wu dated 16 July 2018.
Mrs Gardner has a number of medical conditions including, but not limited to:
(a)Chronic mechanical low back pain (no radiculopathy) - lumbar spondylosis;
(b)Chronic mechanical neck pain (no radiculopathy) - likely cervical spondylosis;
(c)Major depressive disorder (MDD);
(d)Adjustment disorder with anxiety;
(e)Attention deficit hyperactivity disorder (ADHD);[2]
[2] There are references in the evidence to Mrs Gardner having diagnoses of Attention Deficit Disorder (Report of Dr Richa Rastogi, consultant psychiatrist – 26 April 2020), Inattentive Deficit Disorder (Reports of Dr Richa Rastogi, consultant psychiatrist – 26 April 2020, 2 January 2021) and Attention Deficit Hyperactivity Disorder (NDIS Access Request – Supporting Evidence Form, completed by Dr Rastogi - 7 June 2018, Report of Dr Lynda Zerkowski, general practitioner – 23 January 2019). The Tribunal takes these different diagnostic references to be referring to Attention Deficit Hyperactivity Disorder with a predominantly inattentive and distractible presentation. This is on the basis that Attention Deficit Disorder was the diagnostic term used initially in the American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders in relation to what is currently diagnostically conceptualised as Attention Deficit Hyperactivity Disorder.
(f)Obsessive compulsive disorder (OCD);
(g)Syncopal attacks, reduced balance and falls;
(h)Lacunar strokes;
(i)Postural hypotension;
(j)Hypertension;
(k)Gastro-oesophageal reflux;
(l)Irritable bowel syndrome;
(m)Chronic constipation;
(n)Osteoporosis; and
(o)Asbestosis.[3]
[3] Report by Dr Sophia Lahz dated 21 October 2021 at 25-26.
Mrs Gardner, on 7 June 2018, made a request to become a participant in the NDIS. The NDIS access request supporting evidence form, completed by Mrs Gardner’s treating psychiatrist, Dr Richa Rastogi, on 7 June 2018, identified the Mrs Gardner’s primary impairment as OCD, MDD and ADHD. Dr Rastogi identified chronic pain disorder and sciatica with disc prolapse as other impairments that have a significant impact on Mrs Gardner’s life.
On 27 November 2018, a delegate of the Chief Executive Officer (CEO) of the Respondent rejected Mrs Gardner’s access request on the basis that she did not meet the access requirements as set out in section 24 of the Act.
On 17 January 2019, the Mrs Gardner made a request that the decision be internally reviewed by the Respondent.
On 28 August 2019, a NDIA internal reviewer affirmed the original decision. The internal reviewer found that Mrs Gardner had impairments as a result of disability attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or an impairment attributable to a psychiatric condition. The NDIA internal reviewer, however, determined that the aforementioned impairments were not, or likely to be, permanent as there was insufficient evidence that all available and appropriate evidence-based clinical, medical or other treatments treatment options which may remedy these impairments had been completed. As to whether Mrs Gardner experienced substantially reduced functional capacity, or psychosocial function as a result of her impairments, the NDIA internal reviewer noted that as they had determined Mrs Gardner’s impairments were not permanent, for the purposes of the Act, they cannot be satisfied that Mrs Gardner had substantially reduced functional capacity as a result of those impairments.
On 22 September 2019, Mrs Gardner applied to the Administrative Appeals Tribunal (the Tribunal) for review of the internal review decision.
LEGISLATION
The objects of the Act are set out in section 3. It includes, amongst other things, to give effect to Australia’s obligations under the Convention on the Rights of Persons with Disabilities,[4] and facilitate the development of a nationally consistent approach to access to, and planning and funding of, supports for people with disability.[5] The Act also states that, in giving effect to the objects of the Act, regard is to be had to the need to ensure the financial sustainability of the NDIS.[6]
[4] opened for signature on 13 December 2006, [2008] ATS 12, ratified by Australia on 17 July 2008.
[5] Act s 3(1)(f).
[6] Ibid s 3(3)(b).
There are general principles under section 4 of the Act and includes that people with disability be:
·supported to participate in and contribute to social and economic life;[7]
·able to receive the care and support they need over their lifetime and that there be certainty around this;[8]
·supported to pursue their goals and maximise their independence;[9]
·supported to live independently and to be included in the community as fully participating citizens;[10] and
·able to undertake activities that enable them to participate in the community and in employment.[11]
[7] Ibid s 4(2).
[8] Ibid s 4(3).
[9] Ibid s (4)(11)(a).
[10] Ibid s (4)(11)(b).
[11] Ibid s (4)(11)(c).
The provisions relating to access to the scheme are contained in Part 1 of Chapter 3 of the Act. Section 21 of the Act provides that for a person to meet the access criteria, they must meet the age and residence requirements in addition to either the disability requirement (section 24 of the Act) OR the early intervention requirements (section 25 of the Act).
Amendments to sections 24 and 25 of the Act came into effect on 1 July 2022. The Tribunal had not completed its review of Mrs Gardner’s application by the time the amendments commenced. Both the original decision which the NDIA made regarding Mrs Gardner’s request for access to the NDIS, and the NDIA’s internal review decision, were made prior to those amendments. The Tribunal’s decision is made subsequent to those amendments.
At the time that the NDIA made its internal review decision, a person met the disability requirements under section 24(1)(a) if:
‘the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or to one or more impairments attributable to a psychiatric condition.’
The amendments removed the reference to impairments attributable to a psychiatric condition and replaced them with the phrase ‘one or more impairments to which a psychosocial disability is attributable’. From 1 July 2022, a person meets the disability requirements under section 24(1)(a) if:
‘the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable.’
The transitional provisions at Schedule 2, Item 54 of the National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Act 2022 (Cth) provide that:
1) The amendments of sections 24 and 25 of the National Disability Insurance Scheme Act 2013 made by this Schedule apply in relation to the following:
(a) an access request made on or after the commencement of this item;
(b) an access request that was pending immediately before that commencement;
(c) a revocation under section 30 of that Act made on or after that commencement.
As the decision under review relates to the determination of an access request under section 18 of the Act, it follows that the term ‘an access request that [is] pending immediately before’ the commencement covers a decision under review, as in this review, that ‘has not been finalised prior to the commencement’. The Revised Explanatory Memorandum[12] provides, in relation to Schedule 3, Item 56 that the amendment would apply ‘if a decision on their request under section 18 of the Act has not been finalised prior to the commencement’.
[12] Revised Explanatory Memorandum, National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021 (Cth).
With respect to the disability requirements, section 24 of the Act provides:
Disability requirements
(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, 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.
2For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the variation.
(Emphasis added)
The Act also provides, in subsection 209(1), that the Minister may make rules prescribing matters under the Act. Section 27 of the Act further states that the rules may prescribe circumstances in which, or criteria to be applied with respect to assessing whether, a person meets the disability requirements under section 24 or the early intervention requirements under section 25 of the Act. The relevant rules are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (the NDIS Access Rules).
The Operational Guidelines also assist in making decisions in accordance with the Act. Operational Guidelines represent government policy and should be applied by the Tribunal unless there is good reason not to do so.[13] The relevant Operational Guideline is Our Guidelines – Becoming a participant – Applying to the NDIS (the Access Guideline).[14]
[13] Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[1979] AATA 179.
[14] National Disability Insurance Agency, Our Guidelines – Becoming a participant – Applying to the NDIS, (Web Page) <>
The issue in this matter is whether Mrs Gardner meets required criteria to become a participant of the NDIS.
At the time she requested access to the NDIS, Mrs Gardner was 64 years of age and an Australian citizen by birth residing in the Greater Sydney region of NSW. The Tribunal notes that these factors result, in there being no dispute, that Mrs Gardner meets the age and residence requirements. The Tribunal formally finds that in relation to Mrs Gardner’s access request, the provisions in s 22 and s 23 of the Act are met.
The Applicant concedes that Mrs Gardner does not meet the early intervention requirements for entry to the NDIS under s 25 of the Act. In this matter, the Tribunal is therefore required to consider whether Mrs Gardner meets the disability requirements contained in section 24 of the Act.
The Applicant contends that Mrs Gardner meets each of the five criteria in the disability requirements at s 24(1) of the Act.[15] The Respondent accepts that Mrs Gardner meets the disability requirements in s 24(1)(a) and (b) of the Act, but that she does not meet the requirements of s 24(1)(c). Given satisfying s 24(1)(c) is a threshold requirement, the Respondent further contends that s 24(1)(d) and s 24(1)(e) do not arise because s 24(1)(c) is not met.[16]
[15] Applicant’s SoFIC [14].
[16] Opening Submissions, Counsel for the Respondent, 28 March 2023.
In their Statement of Facts, Issues and Contentions (SoFIC) filed on 6 April 2022 for the purpose of the current proceedings, the Respondent contends that through having regard to the independent evidence of Dr Lahz, the Tribunal would not be persuaded that the difficulties encountered by Mrs Gardner as a result of disability attributable to impairments from one or more of her chronic pain, MDD, OCD and ADHD conditions result in Mrs Gardner having substantially reduced functionality in undertaking any one of the activities of communication, social interaction, learning, mobility, self-care or self-management. The Respondent contends that whilst Mrs Gardner may need the use of a walking stick at home or a walker when outside the home, or that Mrs Gardner may take a length of time to enter or alight a bus or take a seat on the bus or dress herself, does not mean that Mrs Gardner’s functional capacity is “substantially reduced” for the purposes of s 24(1)(c) of the Act.[17]
[17] Respondent’s SoFIC [37].
In their SoFIC, dated 9 March 2022, the Applicant submits the Tribunal can be satisfied on the evidence that Mrs Gardner meets the criteria in s 24(1)(c). The Applicant contends that a person only needs to show that they have substantially reduced functional capacity to undertake one of the six activities listed in s 24(1)(c), to meet the criteria. In their SoFIC, the Applicant contended that Mrs Gardner has substantially reduced functional capacity to undertake all six the activity domains referred to in s 24(1)(c), namely: communication (s 24(1)(c)(i)), social interaction (s 24(1)(c)(ii))), learning (s 24(1)(c)(iii)), mobility (s 24(1)(c)(iv)), self-care (s 24(1)(c)(v)), and self-management (s 24(1)(c)(vi)). The Tribunal notes however that at hearing, Counsel for Mrs Gardner submitted that it was no longer contended that Mrs Gardner has substantially reduced functional capacity to communicate due to a disability attributable to impairments from one or more of her chronic pain, MDD, OCD and ADHD conditions, activities, rather than her actual ability to communicate, which was not identified.
Some initial considerations
In their SoFIC, the Respondent noted a degree of difference in Mrs Gardner’s self-reported functional capacity between information provided during her assessment with Dr Lahz in October 2021 and that contained in her Statement of Lived Experience (SoLE), which was prepared in March 2022. The Respondent contends that greater weight should be placed on the former, as the latter was prepared with the benefit of Dr Lahz’s report.[18]
[18] Ibid [38].
The Tribunal considers it to be plausible that Mrs Gardner’s SoLE may have been prepared following her having read Dr Lahz’s report. It is a matter of clear fact that the report of Dr Lahz predates the SoLE prepared by Ms Gardner by some four months and that Dr Lahz’s report was available to Applicant around the time that report was filed with the Tribunal. To this extent, I would consider it also reasonable to contend that Mrs Gardner ‘had the benefit’ of Dr Lahz’s report. I am not, however, of the view that having the ‘benefit’ establishes that Mrs Gardner has not provided reliable information in her SoLE, such that this document should not be accorded due weight.
In considering the weight given to Mrs Gardner’s SoLE and indeed her evidence at hearing, in comparison to information provided by Dr Lahz and the other material before the Tribunal, I am satisfied that the Tribunal has the duty to consider all of this material on its merit. The Tribunal has the duty to consider all of this material on its merits and to be wary of making point-by-point comparisons. The information provided by Mrs Gardner is to be assessed on its reliability as information reflecting her lived experience, physical and psychosocial functioning and responses to the specific questions put to her. The information provided by an expert witness, such as Dr Lahz, Dr Rastogi or Ms Marantz reflects their assessment of Mrs Gardner and responses to specific question posed to them, based on their respective professional qualifications, skills and experience.
As to the overall reliability of information which has been provided by Mrs Gardner, the Tribunal is mindful of submissions made by Counsel for the Applicant at hearing with respect to this issue, who noted that there was no indication Mrs Gardner obfuscated when responding to questions posed by Counsel for the Respondent, or that she overemphasised her impairments. Counsel for the Applicant did however note that Mrs Gardner’s responses were sometimes indistinct, ambiguous, or repetitious and that at other times her demeanor appeared to show she was feeling fatigued and affected by pain. Counsel for the Applicant submitted that Mrs Gardner’s presentation at hearing reflected the physical and mental health conditions she suffers from. I consider this to be a reasonable description of Mrs Gardner’s presentation at hearing and I am satisfied that it can plausibly account for minor inconsistencies in her recall of past events and interactions with health professionals. I am satisfied that such minor inconsistencies or discrepancies do not reflect an intent on the part of Mrs Gardner to misrepresent or be dishonest about her functional capacity and other aspects of her circumstances.

The Tribunal has not developed a concern that Mrs Gardner is an unreliable source of information regarding her health, functional capacities, and wider circumstances. The Tribunal considers information provided by Mrs Gardner, whether this be at hearing or in documentation prepared by her, to be information provided in a straightforward manner without obvious embellishment.
The merit of self-reported information and possible limitations which could arise from this, was a factor which came under discussion at different points of the hearing. With respect to this factor, I have noted a comment made by Ms Marantz, ‘that there’s research that self-report is considered valid in many arenas. So, I would use this information to gain an insight into how that person perceives themselves’, in response to a question regarding the application of screening instruments such as the DASS-21, which relies on self-reported symptom intensity scores. I consider this comment from Ms Marantz to be reasonable and grounded in her professional expertise as an experienced occupational therapist. I am also satisfied it is a comment that is applicable to self-reported information more generally. In summary, the Tribunal is satisfied that there are limitations in the benefit of self-reported information. However, the Tribunal is equally satisfied that this information is a source, in conjunction with other sources of information upon which health professionals, such as those appearing before the Tribunal in this matter, that is used in the course of clinical assessments and treatment.
As to some comment regarding the expert witnesses which the Tribunal has had the benefit from in this matter, I am satisfied that they were of a high standard and appeared clear in their duty to provide impartial assistance to the Tribunal.
With respect to Dr Lahz, the Tribunal accepts that she has worked as a rehabilitation physician since 1994 in different settings including private and public hospitals, a multidisciplinary pain management clinic and a traumatic brain injury rehabilitation service. The Tribunal noted that Dr Lahz was clear regarding any limits, based on her area of expertise, on answers she could give to questions put to her at hearing. The Tribunal is satisfied that Dr Lahz is an experienced health professional with an appropriate understanding of her role as an expert witness who displayed a willingness to adapt her opinion regarding aspects of Mrs Gardner’s functional capacities in the face of more recent information. Therefore, in my view, she displayed a meritorious application of the scientific method and medical model.
With respect to Ms Marantz, occupational therapist, the Tribunal accepts that she has 32 years of experience in hospital, community, rehabilitation, and private practice setting, including 22 years’ experience in the medico-legal field. The Tribunal is satisfied Ms Marantz is an experienced health professional and noted that she was able to, at points where asked questions about her in-home assessment of Mrs Gardner to which she did not have a clear recollection, consult contemporaneous notes in order to provide a response in which she had confidence. Mrs Marantz also impressed the Tribunal as an experienced health professional with an appropriate understanding of her role as an expert witness.
With respect to Dr Rastogi, consultant psychiatrist, the Tribunal was satisfied that she is an experienced psychiatrist and that her capacity to provide impartial evidence was not compromised by the length of time she has provided treatment to Mrs Gardner. To the contrary, the Tribunal formed the view that the longitudinal perspective Dr Rastogi was able to provide regarding changes in Mrs Gardner’s functional capacity, as a psychiatrist who has treated Mrs Gardner since 2012, was of considerable benefit. The expansive nature of some of Dr Rastogi’s responses to questions put to her were, in my view, also of benefit to the Tribunal, notwithstanding they may have at times gone beyond the scope of the specific query put to her. Dr Rastogi was also able to explain that her clinical opinions regarding Mrs Gardner were informed, in addition to Mrs Gardner’s self-reporting, by information provided by Mrs Gardner’s husband, Dr Rastogi’s own observations and assessment, and from observations made by other health professionals who have had contact with Mrs Gardner. Dr Rastogi was able to explain that this reflected the multidisciplinary model of care which she and the mental health professionals whom she is linked to operate from.
For these cumulative reasons, the Tribunal is of the view that in this matter it has had the benefit of information with respect to Mrs Gardner, provided by way of documentation and evidence provided at hearing, in which it can have confidence and which it can view as reliable.
The Disability Requirements
Each of paragraphs (a) to (e) of subsection 24(1) of the Act need to be met in relation to one or more impairments to meet the access requirements on the basis of the disability requirements.
A person meets the disability requirements provided for in s 24(1)(a) if the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable.
The Applicant contends that Mrs Gardner has impairments that are attributable to:
(a)Chronic Pain;
(b)Major Depressive Disorder (MDD);
(c)Attention Deficient Hyperactivity Disorder (ADHD); and
(d)Obsessive Compulsive Disorder (OCD).
The Respondent accepts that Mrs Gardner meets the disability requirements in 24(1)(a) of the Act with respect to the diagnoses of chronic back pain, MDD, OCD and ADHD.
The Tribunal has considered the evidence that is before it is satisfied that Mrs Gardner has disabilities attributable to one or more physical and psychosocial impairments. Accordingly, the Tribunal finds that s 24(1)(a) is met.
The SoFIC filed by both the Applicant and Respondent in this matter agree that the impairments impacting Mrs Gardner as a consequence of the chronic pain, MDD, ADHD and OCD conditions are permanent and upon reviewing the available evidence, the Tribunal has reached a similar conclusion. Accordingly, the Tribunal finds that s 24(1)(b) is met.
The Respondent contends that Mrs Gardner does not meet the provisions in s 24(1)(c) of the Act. Given satisfying s 24(1)(c) is a threshold requirement, the Respondent further contends that it follows that s 24(1)(d) and s 24(1) (e) do not arise because s 24(1)(c) is not met. The Applicant disputes these contentions and submits that the impairments experienced by Mrs Gardner result in substantially reduced functional capacity to undertake five of the activities prescribed in s 24(1)(c), being social interaction, learning, self-management, mobility and self-care. The Applicant further contends that the impairments affect Mrs Gardner’s capacity for social or economic participation (s 24(1)(d)); and that Mrs Gardner is likely to require support under the National Disability Insurance Scheme for the person’s lifetime (s 24(1)(e)).
Based on these submissions received and evidence at hearing, the Tribunal has approached this matter on the basis that the issues in dispute related to s 24(1)(c), s 24(1)(d) and s 24(1)(e).
Does Mrs Gardner’s impairments result in substantially reduced functional capacity?
Section 24(1)(c) requires consideration of whether the impairments result in substantially reduced functional capacity to undertake one or more specified activities. This requires a detailed assessment of the effects of each permanent impairment on the person’s functional capacity.
Rule 5.8 of the of the NDIS Access Rules outlines when an impairment results in ‘substantially reduced functional capacity’ to undertake relevant activities, as follows:
An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities—communication, social interaction, learning, mobility, self-care, self-management (see paragraph 5.1(c))—if its result is that:
(a)the person is unable to participate effectively or completely in the activity, or to perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications; or
(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 Access Guideline explains that a person requesting access to the NDIS permanent impairment needs to substantially reduce your functional capacity or ability to undertake activities in one of the following areas:
- Communicating – how you speak, write, or use sign language and gestures, to express yourself compared to other people your age. We also look at how well you understand people, and how others understand you.
- Socialising – how you make and keep friends, or interact with the community, or how a young child plays with other children. We also look at your behaviour, and how you cope with feelings and emotions in social situations.
- Learning – how you learn, understand and remember new things, and practise and use new skills.
- Mobility, or moving around – how easily you move around your home and community, and how you get in and out of bed or a chair. We consider how you get out and about and use your arms or legs.
- Self-care – personal care, hygiene, grooming, eating and drinking, and health. We consider how you get dressed, shower or bathe, eat or go to the toilet.
- Self-management (if older than 6) – how you organise your life. We consider how you plan, make decisions, and look after yourself. This might include day-to-day tasks at home, how you solve problems, or manage your money. We consider your mental or cognitive ability to manage your life, not your physical ability to do these tasks.
Your impairment substantially reduces your functional capacity if you usually need disability-specific supports to participate in or complete the above tasks.
These disability-specific supports include:
- a high level of support from other people, such as physical assistance, guidance, supervision or prompting.
- assistive technology, equipment or home modifications that are prescribed by your doctor, allied health professional or other medical professional.
In National Disability Insurance Agency v Foster [2023] FCAFC 11 (Foster), the Court notes that the NDIS Access Rules restate the provisions of the Act and ‘do not derogate from the provisions of the Act’.[19] However, the Court states that this is not the case in relation to the Access Guideline, which ‘are merely administrative tools’ which ‘do not provide a legislative definition of the relevant activities.’[20] In Foster, the Court held that meeting a criterion, one criterion, under section 24(1)(c) did not turn on whether or not an applicant met a single aspect of the described criterion. Rather, the task remains to assess the degree to which the person can participate in the activity.[21] The Court also noted in relation to the NDIS Access Rules:
…r 5.8 prescribes circumstances where, if the repository of the power is satisfied on the evidence of the applicability of the rule, the person is deemed to meet the disability requirement if the impairment results in substantially reduced functional capacity to undertake one or more of the activities prescribed in s 24(1)(c).[22]
[19] Foster [57].
[20] Ibid [62].
[21] Ibid [88].
[22] Ibid [59].
“Assistive technology” is defined in the Assistive Technology Operational Guideline, issued by the NDIA on 20 June 2022, in the following way:[23]
[23] As cited in Foster [41].
The World Health Organisation has a universal definition of assistive technology.

Assistive technology is equipment or devices that help you do things you can’t do because of your disability. Assistive technology may also help you do something more easily or safely. Assistive technology will reduce your need for other supports over time.

This could be small things like non-slip mats, or special knives and forks. It could be big things like wheelchairs and powered adjustable beds. It also could be technology like an app to help you speak to other people if you have a speech impairment.

Not all equipment or technology you use is assistive technology. Many people use some equipment as part of their lives, for example, a radio to listen to music, or a standard microwave oven to cook food.

Assistive technology is only the equipment you need because it helps you do things that you normally can’t do because of your disability. It includes items that:
·mean you need less help from others
·help you do things more safely or easily
·help you to keep doing the things you need to do
·allow you to do tasks independently
·are personalised for you.
In Mulligan v National Disability Insurance Agency (2015) 233 FCR 201 (Mulligan), Justice Mortimer noted that the Tribunal should not confine its consideration of whether the applicant in that case had met the third disability requirement under s 24(1)(c) of the Act, by considering their circumstances only through the prism of r 5.8 of the NDIS Access Rules. 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.
THE EVIDENCE
The evidence before the Tribunal includes the following:
(a)the ‘T-Documents’ provided under section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) to the Tribunal by the Respondent after the application for review was made, which comprises evidence provided by Mrs Gardner to the Respondent and other documents that were available to the NDIA internal reviewer at the time of their decision:
·oral evidence and statement of lived experience of Mrs Gardner, dated 9 March 2022;
·letters and/or reports and oral evidence from medical and allied health practitioners who have treated and/or examined and/or assessed Mrs Gardner, namely:
(a)Report by Dr Richa Rastogi, dated 19 September 2019;
(b)Report by Dr Richa Rastogi, dated 30 January 2020;
(c)Report by Dr Richa Rastogi, dated 26 April 2020;
(d)Letter from Respondent to Dr Richa Rastogi - Targeted Questions, dated 20 November 2020;
(e)Letter to Dr Richa Rastogi requesting a report - Respondent's Questions to Dr Rastogi, dated 7 December 2020;
(f)Report by Dr Richa Rastogi, dated 2 January 2021;
(g)Responses to the Respondent’s targeted questions by Mrs Gardner, dated 13 October 2021;
(h)Referral letter to Dr Lynda Zerkowski (General Practitioner) by Dr Richa Rastogi, dated 15 November 2023;
(i)Letter of Instruction to Cherie Marantz (Occupational Therapist), enclosing supporting documents, dated 9 September 2022;
(j)Functional capacity report by Cherie Marantz, dated 25 October 2022;
(k)Statements by Adam Gardner, Felicity West, Emily Gardner, Daniel Gardner and Mariah Gardner (Mrs Gardner’s children), undated;
(l)Letter of Instruction to Dr Sophia Lahz (Rehabilitation Physician), enclosing supporting documents, dated 14 April 2021;
(m)Functional capacity report by Dr Sophia Lahz dated 21 October 2021.
Where relevant, evidence from the documentary evidence before the Tribunal and the evidence provided by Mrs Gardner, Dr Rastogi, Dr Lahz and Ms Marantz at hearing is referred to below.
Evidence of Mrs Gardner
Examination in Chief
Counsel for the Applicant drew Mrs Gardner’s attention to the SoLE she prepared in March 2022 and sought information about how, if at all, her functioning had changed over the 12 months since that statement was prepared. In relation to her social interactions, Mrs Gardner gave evidence that she is not up to talking and avoids friends and neighbours as she feels down a lot and finds talking to them difficult. As to social interactions with members of her family, Mrs Gardner said that at times she is not up to making phone calls to her children and that this has not changed much over the past 12 months. She said that she wishes she could have more conversation with family members but that with her mental health difficulties she does not feel clear in her mind. As to how she has managed attending medical appointments over the last 12 months, Mrs Gardner gave evidence that at times she feels claustrophobic and nervous about attending appointments. She said that as it is a big effort to get to appointments, especially morning appointments, she makes medical appointments in the afternoon where possible.
In relation to changes she has noticed over the last 12 months in her capacity for learning, Mrs Gardner gave evidence that remembering what doctors tell her during appointments can be difficult, as she is forgetful and that times she needs to make written notes about things such as changes in her medication, tests that she needs to arrange and test results. Mrs Gardner indicated that she can be shown a task, but forgets what she has been shown. In relation to Internet banking, she said that she would not try this sort of banking. As a consequence, she has to go to an actual bank branch to arrange transactions where she and her husband do not have direct debit arrangements in place to pay regular household expenses.
In relation to changes she has noted about her mobility, Mrs Gardner gave evidence that she has had increased falls over the past 12 months. Mrs Gardner said she has fallen twice in the last few weeks, once whilst trying to do some housework in the kitchen and the other whilst attempting to sit. Mrs Gardner says she loses her balance and needs to use a walking stick within the home. She said that she has difficulty getting up and down stairs and if outside of her house uses a walker,[24] which had belonged to her mother. She said that she leans on a shopping trolley, in lieu of the walker, when shopping with her husband as this avoids the need to load the heavy walker into their car.
[24] At hearing, Ms Marantz, Occupational Therapist, confirmed that the walker used by Mrs Gardner is a four wheeled walker.
As to how far she can walk with the assistance of the walker, Mrs Gardner gave evidence she can only walk between 25 and 30 metres before needing to sit down and rest. She indicated that the walker has a built-in seat, which she can sit on to rest. Mrs Gardner said that she can still walk to a park near to her home, as the entrance to the park is less than 100 metres from her house. Mrs Gardner indicated that she mostly asks her husband to accompany her when she leaves her home as she is worried about going out on her own due to concerns she may fall because sometimes she forgets where she is. She said that this can complicate getting necessary items, as her husband can get bored easily whilst shopping and certain things like new clothes, and are not really suitable for him to purchase on her behalf.

Mrs Gardner confirmed that she cannot now use public transport such as a bus, as the nearest bus stop is a 10 minute walk uphill and she has difficulty getting on to the bus with her walker. She said that bus drivers may not wait until she has successfully seated herself, as this can take her some time and buses can be quite crowded. She noted that to get to Westmead Hospital, where the rooms of lots of her treating medical practitioners are located, requires catching two different buses.
In response to the apparent inconsistency between the claim in her SoLE that she has difficulty catching buses and her evidence at hearing that she cannot catch buses, Mrs Gardner said that she has not caught a bus for a long time and that her husband drives her to medical appointments. She explained that at the time she wrote her SoLE she had no choice but to occasionally catch a bus, for example, to dental appointments. Mrs Gardner reiterated that she does currently catch buses and that if her husband cannot take her to an appointment, she catches a taxi.
As to her mobility within her home, Mrs Gardner gave evidence at hearing that most of the time she requires the assistance of a walking stick. She said that this is because she can lose her balance. She is not sure if this is caused by a drop in her blood pressure when she transitions from a seated to standing position.
Mrs Gardner gave evidence that at times it is difficult to understand medical terms used by her doctors. She said she can also feel down if talking to other people and they discuss places they have been going to and things that they have been doing, as she herself does not do much.
In relation to changes she has noted over the last 12 months regarding her self-care, and more specifically the frequency in which she is able to shower and wash herself, Mrs Gardner gave evidence that she has been doing this on a daily basis, in part because of how hot the weather has been. She said that in winter during cold weather, her pain is worse and she may go one or two days without showering or washing her face and teeth. In response to a question as to her functioning in self-care on a difficult day, Mrs Gardner said that she can find her electric toothbrush gives her headaches and may, as an alternative, use a normal toothbrush. She said that she may avoid washing her hair, delaying this self-care activity for five or six days and that it can take her longer to get dressed.
Counsel for Mrs Gardner noted that in her SoLE, Mrs Gardner referred to not having prepared a good meal for her husband for three or more years. Counsel sought clarification on what was meant by the reference to a ‘good meal’. By way of response, Mrs Gardner explained that she meant cooking meals like she used to, such as pasta or cannelloni. She said that she finds meal preparation, which may require her to stand, such as cutting vegetables, difficult. Mrs Gardner said that most of the time she is after cooking and that she may just have sandwiches or something out of the freezer or nothing at all. She said that the level of difficulty associated with cooking has not altered over the past 12 months.
In relation to changes she has noted over the last 12 months, with regard to self-management, and with particular reference to unfinished tasks because of the impact of pain or her ADHD, Mrs Gardner gave evidence that she has difficulty sorting out things such as paperwork or cleaning out cupboards. She indicated that she may either commence such a task, then put aside or delay attending to a paperwork task, such as making a claim for the oxygen supplies that her husband needs because of his medical conditions. Mrs Gardner said she can get confused and frustrated when attending to these activities, especially if she must wait on the phone for any length of time. She said that she also finds it difficult if the provider modifies their administrative practices. An example that was provided was when the company that provides her husband’s oxygen required a change to direct debit arrangements, modifying the previous arrangement where they would send statements and receipts.
In relation to getting to medical appointments on time, Mrs Gardner acknowledged this remained a difficulty for her and that sometimes she is late to appointments, especially early appointments because of the difficulty she has getting up and organising herself.
Counsel for Mrs Gardner referred to the details outlined in a section of her SoLE titled ‘daily plan’ and asked Mrs Gardner if that daily plan reflected a good day, a bad day, or a typical day. In response, Mrs Gardner gave evidence that she is now tends to get up earlier than 12:00PM. She said that she can have particular difficulty getting a good night’s sleep if her pain levels are higher because of activities she has done during the day, and that when she is feeling depressed, it can make it difficult for her to face the day.
Counsel for the Mrs Gardner asked her to comment on an apparent inconsistency between a claim in her SoLE, where it was claimed she had not prepared a good meal for her husband and herself for three or more years, and evidence provided by her at hearing where she described the significant time required for her to prepare a meal. Mrs Gardner was asked what sort of meal preparation she can do and if it varies on a day-to-day basis. In response, Mrs Gardner said that around once a fortnight she may cook enough potatoes and carrots to last for a few meals. In conjunction, her husband would cook meat, such as sausages or chops, or a barbecue chicken if he purchases from a local shop. She notes this could provide meals for a few days. She said that other than this, they may eat frozen meals or have separate meals, which for her would tend to involve her making a sandwich.
Counsel for Mrs Gardner noted an apparent inconsistency in relation to self-care. It was noted that Mrs Gardner’s evidence at hearing was that she does not require prompting, whereas in her SoLE, Mrs Gardner puts up notes around her house to remind her of things she needs to do. In response, Mrs Gardner said she sometimes forgets things or appointments, such as phone consultations with her local doctor and may put notes up around the house as reminders of the appointment. Mrs Gardner confirmed that she does not need reminders to attend to activities of daily living, such as washing herself, and that is mainly things such as appointments that she needs prompting. Mrs Gardner said at times, her husband reminds her to take her medications and that sometimes, even if she puts up reminders, she gets distracted and still forgets about an appointment or other activity she was supposed to attend to.
With regard to an apparent inconsistency between the claim in her SoLE that she has an inability to learn about things like internet banking, and her evidence at hearing that she has a lot of direct debit payment arrangements set up, Mrs Gardner explained that the direct debit arrangements were set up by the companies to which payments are made. In response to further questions about her financial and legal affairs, Mrs Gardner gave evidence that she has no involvement with lawyers, other than that associated with her application to become a participant of the NDIS.
As to why she seems to be able to organise her medical appointments, but has difficulty organising or completing other tasks, Mrs Gardner gave evidence that she does not know why this is the case and contended that the medical appointments are important need to be done, but it can be difficult making the arrangements if it is a day upon which she is having difficulty concentrating.
Cross examination
In cross-examination, Mrs Gardner was asked about her contact with her five children and referred to undated written statements from her children, which were provided in association with the review application. Mrs Gardner indicated that to the best of her knowledge, the statements were prepared sometime in 2022.
In relation to her son, Adam, who has lived in Queensland for over 15 years ,Mrs Gardner gave evidence that she speaks to him over the telephone on around a monthly basis, but has not seen him face-to-face since 2017. In relation to her daughter Felicity, Mrs Gardner gave evidence they sometimes speak over the telephone every 2 to 3 weeks, but then conceded that the contention in a written statement prepared by Felicity, which suggested they talk over the telephone every 2 to 3 months, was correct. Mrs Gardner gave evidence that Felicity lives near Penrith and that they do not have face-to-face contact very often, with their most recent contact being on Christmas Day in 2022 when they all gathered at her son Daniel’s place in Wollongong. With respect to how Mrs Gardner got to Daniel’s home, she indicated that her husband drove to Wollongong.
Mrs Gardner indicated that the journey by car to the Illawarra takes a bit over an hour and that she has managed to make this trip, with the assistance of a massage backrest, without needing a rest stop. As to how far she can travel in a car without needing to take a break, Mrs Gardner said two hours or so, but qualified this by saying that if her back pain is really bad, she cannot really do more than an hour before needing to take a break.
In relation to her daughter Emily, who also lives in the Illawarra region, Mrs Gardner said they talk every 2 to 3 weeks and have face-to-face contact a handful of times per year, mostly on occasions such as Christmas or one of the grandchildren’s’ birthdays. Mrs Gardner indicated that she visited Emily’s home in July 2022, and as with the arrangements at Christmas, her husband drove them both to Illawarra.
In relation to her son Daniel, Mrs Gardner gave evidence at hearing that he may call her on a monthly basis and she also calls him at other times. Mrs Gardner said that she may see Daniel face-to-face 3 or 4 times a year and that he also provides her with assistance at other times. For example, he has assisted her with the technology associated with her remote participation in the Tribunal hearing.
In relation to her daughter Mariah, who lives in the Sydney region, Mrs Gardner gave evidence that they do not speak very often and may communicate more regularly through text messages. In response to Mariah’s claim, in a written statement that they speak over the phone every 3 to 4 months, Mrs Gardner said this used to be the case, but does not reflect more recent circumstances where they may talk with each other over the phone twice a month. Mrs Gardner said she has not had face-to-face contact with Mariah since May 2022.
In responding to questions about the impact that her irritable bowel syndrome condition had upon her ability to socialise in or around July 2018, Mrs Gardner conceded that her allergies to things like garlic, onion and spicy foods impact on socialising. For example, Mrs Gardner notes that it impacts her going out to lunch or dinner with other people, as it affects the appropriate dining options and also whether she feels like going out.
As to her husband’s care needs, Mrs Gardner indicated that she does leave him in the house unsupervised, depending on his state of health. She explained that when she was last in hospital in 2022, he was unsupervised, but that she and the children would phone him and some of the children also visited him on a few occasions. Mrs Gardner said she did, however, discharge herself from the most recent hospital admission earlier than she should have because her husband was not well.
In relation to support services which she or her husband have applied for or are currently accessing, Mrs Gardner indicated that they get $30 vouchers towards the $50 cost of lawn mowing services provided through an organisation called Baptist Care and that these vouchers come from her husband’s disability superannuation benefit. She said that her husband has also sought assistance through My Aged Care to provide some in-home help. Whilst this claim has been approved, it is yet to commence because of difficulty sourcing support workers as there are not many people available to provide the support.
In relation to her daily routine as reported in the report of Ms Marantz, Mrs Gardner questioned the accuracy of a comment from Ms Marantz’s report. Ms Marantz report noted that at 4:00PM, Mrs Gardner commences meal preparation and that following dinner, Mrs Gardner puts her feet up and may watch Netflix on her phone. With respect to these points, Mrs Gardner indicated that she does not recall providing Ms Marantz with that information.
Mrs Gardner conceded that she may have watched a Netflix show on her phone some time ago but contended that for quite some time she has not felt like watching things like movies, because she is not in the mood after she has finished dinner. She said that she is usually in pain and wants to go to sleep.
More generally in relation to her usual daily routine, Mrs Gardner said virtually every day she would get up go to the bathroom, and then stay in bed for an hour or so until around noon. Mrs Gardner gave evidence at hearing that it is only when she has appointments and needs to push herself to get organised for the appointment that she gets up in the morning, without then going back to bed.
In relation to why she may not feel able to ‘face the day’, Mrs Gardner gave evidence that it can be because of pain or depression, and that the headaches she has on awakening make her head feel very cloudy such that she cannot focus on what she is doing. She said that she feels like there’s nothing to look forward to and that she can get more upset when she tries to do a thing and either can’t do it, or can’t complete it. She said that by the time she goes to bed, her headaches have normally subsided, but she will have pain associated with her back and neck.
Mrs Gardner was asked about responses she provided in October 2021 to questions put to her in writing by the Respondent. At that time, she reported that she had trouble getting in and out of the shower and could take about 45 minutes to have a shower. At hearing, Mrs Gardner indicated that it may take her 45 minutes to shower if she is washing her hair, as she is very slow and likes to run hot water down her back to relieve pain. She explained that the 45 minutes was inclusive of time taken to undress before showering and then to dry herself and dress after the shower. Mrs Gardner explained that a normal shower, where she is not washing her hair, would only take around 15 or 20 minutes, and this would also include undressing and then getting changed after the shower.
When asked, Mrs Gardner indicated that she uses a plastic stool to sit on in the shower and that she thinks a better shower stool, as recommended by Ms Marantz, would be of benefit. Mrs Gardner confirmed that getting on and off the toilet is not a problem now because of the grab rails that have been installed. Whilst there were times where she may feel dizzy and lightheaded, she is now able to grab the handrails and also use her quad stick.
Mrs Gardner said that she may have dinner usually around 6:00PM or 7:00PM. In relation to meal preparation, Mrs Gardner indicated that she does use some frozen vegetables, such as peas and beans but that she prefers to use fresh potatoes and carrots. Mrs Gardner confirmed that once a fortnight, she may cut up and cook enough potatoes and carrots to last for a couple of days, which would then be eaten in conjunction with sausages or chops cooked by her husband. Alternatively, her husband may purchase a barbecue chicken which would be accompanied by heated up frozen peas or beans. Mrs Gardner gave evidence that, at other times, she may eat a sandwich and she also keeps a store of wheatmeal biscuits available to take with her tablets.
In relation to her SoLE, where Mrs Gardner indicated she washed her husband’s nebuliser masks and bowl and got his medication ready for him in the morning, she gave evidence at hearing that she was doing all of those things at around March 2022. Mrs Gardner notes that she continues to wash his nebuliser masks and mouthpiece most of the time, but that her husband now prefers to manage his own medication. In relation to needing notes put up around her house to prompt her to do things, Mrs Gardner said she does not really need prompts to remember to wash the nebuliser masks and mouthpiece as it is a routine activity. However, she notes that she may forget to do this task if she goes to bed early.
As to how often more generally she needs to write something down to remember it, Mrs Gardner said this is something she needs to do nearly every day to remember things such as doctors’ appointments. She indicated that she keeps a diary at her bed for all appointments, which also records birthdays and similar important dates. She explained that as well as putting a medical appointment in her diary and getting text reminders about a forthcoming appointment, she may also write down the appointment details and stick them on the bathroom or kitchen dining room wall as a further reminder.
Mrs Gardner gave evidence at hearing that she likes to prepare a list of things to ask about prior to going to a medical appointment, and also may take notes about things such as medication issues, tests she needs to arrange, or test results. She said that she may also ask the doctor to write down any new diagnosis or to rephrase it in a less medical term so it is easier for her to understand.
Mrs Gardner was asked about how long it would take to perform a task. Mrs Gardner notes that in undertaking activities, such as going through paperwork or sorting through a cupboard, she may get distracted, or feel that she is not up to finishing the task, or that she needs to lie down. In response, Mrs Gardner explained that it is a bit hard to say as it would vary depending on how she is feeling on the day. Mrs Gardner indicated that it has been happening quite often and that probably after an hour or so, or less, she would need to take a break because she is getting sore or feeling cloudy in the head. Mrs Gardner gave evidence that she may, after taking a break, complete a task such as washing clothes. However, when it comes to sorting through a box, she does not tend to finish the task. Mrs Gardner said, by way of an example, that she has boxes of her mother’s possessions which she has yet to sort through, even though her mother passed away a couple of years ago. She said a further example of how long it can take her to do things is completing the task of hemming her husband’s trousers, which needed to be taken up. She said that she completed one pair a couple of years ago, but that there are still quite a few pairs of trousers that need to be attended to.
At hearing, there was a discussion on the direct debit arrangements for her bank account, and how her direct debit arrangements have been arranged by the companies. Mrs Gardner’s attention was drawn to her SoLE, where she stated that she cannot use the internet for banking and does not remember any instructions that may be given to her if she attends a bank branch. Counsel for the Respondent asked Mrs Gardner if she ever made written notes of instructions as to how to do Internet banking. In response, Mrs Gardner said that she has not taken any such notes and would not in any event feel comfortable using the Internet for banking because she would be nervous and worried about making a mistake. During further discussion of this issue, Mrs Gardner confirmed that she and her husband were victims of an Internet scam a couple of years ago, where her husband purchased something online and money kept being deducted and transferred to someone in Berlin, Germany.
In relation to contact with her treating psychiatrist, Mrs Gardner confirmed Dr Rastogi has treated her since 2012. Mrs Gardner said she is currently having telehealth consultations with a psychologist, Ms Jill Waterhouse. She has had a couple of consultations with a previous psychologist but had persisted with this psychologist due to difficulty understanding her accent. Mrs Gardner indicated that as well as treating her in the community, Dr Rastogi used to be her treating psychiatrist when she had admissions to the Northside Clinic, but that more recently, Dr Rastogi has stopped providing inpatient care and only sees her on an outpatient basis. Mrs Gardner gave evidence that as well as the individual consultations with Dr Rastogi, she has also attended a group program at which on occasion Dr Rastogi would attend and give talks.

In response to questions about the timing of an admission to hospital in 2021, Mrs Gardner said that she was in hospital on a few occasions in 2021, one of which was a few days before she was assessed by Dr Lahz. She indicated she had two admissions to the Northside Clinic, but also other admissions to Westmead Hospital. Mrs Gardner gave evidence that this was because she had quite a few falls and caught pneumonia in 2021. Whilst these conditions were assessed, it was found out that she had some fractures because of the falls and also that she had been having some mini strokes. With regard to the admissions to the Northside Clinic, Mrs Gardner said she was admitted on 28 August 2021 and discharged after 11 days on 5 September. She was readmitted on 21 September 2021 and remained an inpatient until 27 October 2021. Mrs Gardner gave evidence at hearing that she also had two admissions to Northside Clinic in 2022, the first of which was a medication review to trial a new medication, with the second admission been in part to sort out some issues that had arisen in the medication she was taking for her mental health conditions.
Re-examination
In re-examination, Mrs Gardner clarified that the two admissions she had said occurred in 2021 were in fact her two admissions to Northside Clinic in 2022 and also a number of admissions to hospital during 2021 for various different things. She clarified that the circumstance where there was an interrupted admission was in 2022.
As to what else contributed to the need for the admissions to Northside Clinic in 2022, Mrs Gardner gave evidence that she was in a really bad way and couldn’t get out of bed. She said that she was suffering with headaches all day and was not up to doing anything. Mrs Gardner noted that her husband called a local doctor, who referred her to the hospital. Mrs Gardner said she had also described her situation to Dr Rastogi, who told her that “If you need to go, you just have to go.”
Expert evidence
Evidence of Dr Richa Rastogi, Consultant Psychiatrist
In the Applicant’s NDIS Supporting Evidence Form completed by Dr Rastogi on 7 June 2018, she provided the following information in the section requesting details of the functional impact of Mrs Gardner’s impairments:
·Mobility: - Mrs Gardner needs assistance from other persons and in particular requires assistance with driving – she does not drive and cannot use public transport due to pain.
·Communication: - Mrs Gardner does not require assistance.
·Social interaction: - Mrs Gardner does not require assistance.
·Learning: - Mrs Gardner requires assistance and has difficulty with remembering information and needs prompting.
·Self-care: - Mrs Gardner does not require assistance.
·Self-management: - Mrs Gardner needs assistance making decisions and prompting in relation to daily activity.
In a report prepared on 26 April 2020, Dr Rastogi made the following comments:
5.1 Communications
Mrs Gardner struggles with communicating with others due to poor concentration, obsessive thoughts, inability to express her emotions and anxiety
5.2 Social interaction
She is isolated, has no friends and does not socialise at all. She only connects with family. She feels inadequate and lacks confidence. She feels socially scrutinised and is avoidant of social places and situation.
5.3 Learning
She has limited ability to learn new information, take instructions due to impaired concentration and struggles with extreme anxiety and sense of feeling overwhelmed.
5.4 Mobility
She does not drive and cannot use public transport reliant on her husband who is medically unwell himself.
5.5 Selfcare
There is significant self-neglect in terms of maintaining her appearance and selfcare due to depression, chronic pain and limited mobilisation and amotivation preventing her at time to have regular showers even. She has put on excessive weight exacerbating her pain and she has irregular meals and does not exercise with poor motivation.
5.6 Self-management
She struggles with managing her self-care, finances and household duties falling behind and prioritising her finances. She is falling behind her bills, struggles with financial decisions and inappropriate spending with lack of prioritisation.
In a further report prepared on 2 January 2021, Dr Rastogi provides further comment regarding Mrs Gardner’s functioning in the aforementioned activity domains:
1. Communication
Mrs Gardner struggles with communication with her family due to poor emotional
regulation and poor ability to express her needs. She is volatile and she is labile in
her mood impacting her communication. She has difficulty arranging her thoughts,
gets easily flustered and she has poor conflict resolution. She is very avoidant or can
get aggressive as defence mechanism. She is very forgetful and having
concentration lapses. She will benefit from daily lists and prompting and currently
has no support. She would benefit from having a carer support to give her prompts
and assistance, make appointments and help with communication and problem
solving skills. She would benefit also seeing psychologist to help build effective
communication skills.
2. Social interaction
Mrs Gardner is socially avoidant and avoids large crowds and social gatherings. She
is very isolated and has no friends. She does not interact with others and is very
reclusive. Her main company is her husband. She would benefit from1:1 social
interaction with exercise physiologist taking her for walks and also referring her to
woman’s group and small groups for activities and social interaction.
3. Learning
She is very forgetful and has poor comprehension and retention. She is easily
flustered and very disorganised. She has limited capacity to learn new things due to
OCD and depressive cognitions as well as ADHD. She needs guidance with
planning, need prompts and needs activity scheduling. She needs help with
planning, doing work in planned manner and will avoid if it is complex. She will
benefit from white board prompts and having a planner for reminders as well as help
of community services weekly to help with organisation skills and prioritisation. A
referral to psychologist will also help achieve these goals through cognitive
behaviour therapy.
4. Mobility
She does not drive and is reliant on her husband. She does not use public transport
on her own. Her depression and OCD associated with anxiety affect her motivation
and drive and she lacks confidence travelling on her own. She is forgetful and
struggles with going to new places and is very anxious and nervous taking public
transport for same reasons identified above.
5. Self-care
She is able to shower but does not eat properly. She struggles to maintain a routine
due to poor sleep and low energy levels and amotivation. She forgets to eat regular
meals and is very erratic in her pace and functioning. She skips her meals and her
husband prompts her daily. She is able to maintain self-hygiene but occasionally
needs prompting and reminders. She would benefit from a meal plan and structured
diet with help.
6. Self-management
She has poor decision making capacity and needs prompting. She struggles with
finances, planning things and allocating things due to poor prioritisation and being
forgetful. She has difficulty with complex decisions and her judgement is impaired.
She struggles sometimes with simple decisions as to what to wear and eat would
avoid going outside. She has no support and even forgetful to attend appointments.
She would benefit from having home care and community services to help with
transportation, reminders for appointments, meal prep and activity scheduling with
prompts.
At hearing, Counsel for the Applicant put to Dr Rastogi the following contention and question:
The task before the Tribunal is to determine not just whether there is any limitation, or any reduction rather, in her functional capacity for these categories and activities but whether it is a substantial reduction, and that has sometimes been referred to as a considerable or a sizeable reduction. In your view does (Mrs Gardner) have a substantial reduction in her capacity for any of those listed activities.
By way of response, Dr Rastogi stated:
Yes. I do. So, over the period of time I’ve known here there has been a marked reduction in her function ability in all those categories and it has been associated with the progressive psychiatry comorbidities and conditions that has impacted her function quite significantly.
Counsel for the Respondent questioned Dr Rastogi’s basis for stating, back in June 2018, that Mrs Gardner had difficulty remembering information. In response, Dr Rastogi made the following comment:
She (Mrs Gardner) displays quite a bit of short-term memory loss. She was at one time a very good homemaker and a good multitasker, and she was really struggling even to do sometimes basic things. She was quite forgetful. She - her husband would tell us, or say, you know, all who was present, and she would get easily (indistinct) and overwhelmed and was not remembering things like paying bills sometimes. Even in terms of cooking, what to cook and being forgetful. So, there were a lot of things that were coming up. They were quite menial and small at the time, but it was impacting her function quite significantly. She would go to the chemist and the chemist was sometimes calling to say that Mary has got these scripts but she’s forgotten this and she hasn’t got that, and so they were little things that had started to come which was very unlike Mary, because given her OCD she was quite - would - she was quite obsessional about things and cleanliness and would do things in a very orderly manner. So, that was the change we observed in her functioning due to a combination of factors and that put a lot of load on her husband as well because that was causing - even with the medications she was forgetting in terms of I would telling increase the dose or do this and she would forget and call me and say what dose did you tell me, how much you take with dexamphetamine. She was missing her doses. So, there was a lot of these things happening around that time.
In response to a question from Counsel for the Respondent as to what sorts of decisions Mrs Gardner required assistance with or prompting for, Dr Rastogi made the following comment:
Well, it was simple thing like cooking, cleaning, something which she was very house proud of, was getting an issue. She said she would get up and she would take a few hours before she decided what she could make or cook or do things, and that was - that started to become a problem over time. So, when I’m talking about decisions as to what to cook, what to eat, in terms of should I do this or should I do that, should I cook first and clean then.
When asked to clarify whether Mrs Gardner’s self-management activity was affected by motivation or cognitive functional difficulties, Dr Rastogi indicated it was a combination of both of these factors and that her assessment of Mrs Gardner’s functional capacity was based on a combination of Mrs Gardner’s self-reporting, comments from her husband and also observations of Mrs Gardner during admissions to the Northside Clinic.
Dr Rastogi gave evidence at hearing on her observations on Mrs Gardner’s mental health. According to Dr Rastogi, from 2018 to 2020, there was a big change in Mrs Gardner symptoms due in part to her physical symptoms contributing to her psychological decline. In response to a question from Counsel for the Respondent as to the manner in which Mrs Gardner’s severe anxiety was debilitating for her, Dr Rastogi stated that Mrs Gardner was having panic attacks and becoming more and more homebound, and her hoarding was becoming more intense. Dr Rastogi described the circumstances where Mrs Gardner has difficulty performing day-to-day activities was causing a vicious cycle for her, due to her usual obsessional and ritualistic way of doing things.
By way of explaining a statement from a letter prepared by Dr Rastogi on 30 January 2020 in which she stated that Mrs Gardner’s ‘depression is chronic and protracted with treatment resistance needing intensive treatment,’ Dr Rastogi made the following comment:
A treatment resistant depressive disorder in psychiatry terms means someone has tried two or three medications of different groups and has demonstrated poor or partial response to treatment. So, that has been Mary’s case, that she has had residue symptoms with very limited or partial improvement to (indistinct) depressive treatment modality leaving her at a risk of residue impairment as well as risk of relapse as compared to the general population. And hence the need for intensive treatment is because of the relapse rate and the risk she - when I talk about intensive treatment you’re talking of repeated hospital admissions as well as a multidisciplinary team of attending a day program as well as seeing a psychologist.
In relation to deteriorations in Mrs Gardner’s functional capacity between 2018 and 2020, Dr Rastogi gave evidence at hearing that this was caused by a ‘combination of progressive deterioration of her multiple psychological comorbidities.’ In explaining the basis of her clinical opinion with respect to Mrs Gardner’s conditions, Dr Rastogi noted that:
There are various domains. You look first - is the subjective findings for what the patient says. Number two is the objective findings. Number three is the level of functioning as part of a mental state examination in terms of her ability to do her ADLs, in terms of her social interactions, in terms of her day to day activities. So this is just the cross-sectional questions and symptoms that you observe, as well as of course, objectively reported. So it’s based on those factors and her ability to do things over a period of time. As stated before, I’ve had the opportunity to see Mary since a long period of time, and noted a gradual deterioration in her functioning, in her thinking and the OCD or the obsessional thoughts have been very magnified and intense. And that was a deterioration that was noted over that period of time.
In relation to the sources of information upon which her opinion of Mrs Gardner’s functioning was based, Dr Rastogi confirmed that Mrs Gardner’s self-reporting was one source of information. Other sources of information include information provided by her husband and observations made by Dr Rastogi and other health professionals who have had longitudinal contact with Mrs Gardner, such as psychologists involved with the group program Mrs Gardner attended.
With respect to comments made by Dr Rastogi regarding Mrs Gardner’s social interaction, it was noted that these comments were based purely on the self-report of Mrs Gardner and information provided by her husband. However, in relation to learning, Dr Rastogi indicated that she made an assessment based on her own observations, as well as upon the self-report of Mrs Gardner.
Dr Rastogi, in explaining her observations on Mrs Gardner’s self-neglect, made the following comment:
Yes, I have. I have seen it in terms of doing her hair or even trying to put some appropriate makeup which is what she used to present before. We have noticed that there was some evidence of less self-care. And the clothes at times, what she was wearing, have been quite evident to show that - I would not say she was not appropriately dressed, but they were more baggy and more loose which is very unlike Mary previously.
What was the difference in the hair?‑‑‑ Well, she used to be quite immaculately dressed as what I have seen of Mary initially. And yes, her hair was done but it was frizzy, sometimes it wasn’t even dyed at times, and she would just come as if she had just woken up.
When you say would come as if she’s just woken up, is that a reference to not wearing makeup?‑‑‑Not wearing makeup but the hair, just done, she has at times not combed. Her hair was quite frizzy compared - as I’ve said, I’ve seen Mary over the years and that was a change at times in terms of her self-care or putting attention to herself.
Evidence of Dr Sophia Lahz, Rehabilitation Physician
Dr Lahz commented on Mrs Gardner’s functional capacity in a report prepared at the request of the Respondent.[25] The report includes a section with the title ‘Functional Impact of Ms Gardner’s Various Conditions on Domains,’ which is relevant to whether Mrs Gardner’s impairments result in substantially reduced functional capacity. This section relevantly states:
[25] Report of Dr Sophia Lahz dated 21 October 2021.
Communication
I found Ms Gardner an informative but disorganised historian burdened by large amounts of
paperwork which I think should have been furnished to me prior to the appointment
(although that is more an issue for the referring entity than Ms Gardner). I spent the first 45
minutes of the 2.25 hour appointment looking at discharge summaries which I had not hitherto seen.
I noted that Ms Gardner’s memory was poor for some matters, although granted, she has a long and complex medical history with multiple medical specialists involved.
Social Interaction
Ms Gardner’s long-standing severe depression and anxiety as well as chronic pain state and
chronic sleep disturbance have adversely affected social interactions and recreations.
Social interactions are largely confined to those with her husband and adult children.
Ms Gardner reported to have no friends. She is not involved with any hobbies and recreations. Ms Gardner devotes much time to sorting out health issues – her own and those of her husband.
Learning and Memory
Ms Gardner did not demonstrate substantial cognitive impairments at interview. However, I
noticed that her memory, attention and concentration were somewhat reduced by high levels
of stress, anxiety, low mood, pain and chronic sleep disturbance.
Mobility
There is impaired balance of unclear causation, likely multifactorial (medication, stroke, blood pressure fluctuations, psychological, ? cardiac). She is prone to falls and recently fractured her ribs (early 2021). Since early 2021, Ms Gardner has been reliant on a walking frame. She also does not use buses and trains due to poor mobility. Ms Gardner has never held a driving licence. She relies on taxis and her husband for transportation needs
Limb use
She has functional use of her arms although upper limb elevation induces low back pain.
There are painful osteoarthritic knees and overweight body habitus limiting gait.
Low back pain associated with sciatica was reported as Ms Gardner’s main limiting factor for walking.
Self-Care
Ms Gardner is independent with basic self-care albeit with some difficulty due to pain and
loss of balance. She would best carry out dressing and bathing in a seated position for safety
reasons.
Self-Management
Ms Gardner is self-managing her life albeit with difficulty due to chronic pain, anxiety, mood fluctuations and sleep deprivation. She manages her medical and allied health appointments as well as affairs concerned with her husband’s health. Ms Gardner manages her finances and has most accounts set up for direct debit of regular bills.
Ms Gardner does have problems with general organisation, problem solving and motivation – the home is apparently very cluttered and she is unable to get around to cleaning things up secondary to mood state fluctuations and persistent pain.
Ms Gardner is capable of instructing doctors, lawyers and accountants about her wishes
although she needs conclusions in writing and should be encouraged to take notes during or else shortly after discussions about complicated matters.
During the assessment consultation, Mrs Gardner self-reported that she engaged in the following daily tasks and activities: laundry, vacuuming, sweeping ,mopping and chores about the house, albeit she hangs out the laundry “with difficulty” and sweeps and mops “half-heartedly.” Mrs Gardner also shares cooking tasks with her husband and rarely, in the context of COVID-19, ventures to shops. Mrs Gardner also manages the household finances, generally being the person to organise both her and her husband’s medical appointments, manages health insurance matters, and manages other medical matters (home oxygen for her husband).[26]
[26] Report of Dr Sophia Lahz dated 21 October 2021, as cited in Respondent SoFIC [15].
Evidence of Cherie Marantz, Occupational Therapist

There is no evidence that Mrs Gardner invites friends or neighbors to her home. There is evidence that she feels both embarrassed and overwhelmed by the state of clutter and disorganization within her home.[34] The task of the Tribunal in assessing Mrs Gardner’s functioning in the activity of social interaction is to assess on a practical level what she can and cannot do. I am satisfied that the evidence demonstrates she does not, at the present time, have the ability to socially interact with friends or neighbors in her home environment due to the impact of her impairments. It follows that potential social interaction activity, if it were to occur, or be attempted, would need to occur, at the current time, outside of her home environment. On a practical level I am satisfied, for reasons which will be further discussed in relation to the activity of mobility, that an endeavor to socially interact with people outside of her home environment would require Mrs Gardner to rely on her four wheeled walker.
[34] Applicant’s SoLE [23].
Based on these findings, I am satisfied that Mrs Gardner has difficulty making and keeping friends, interacting with the community, and coping with feelings and emotions in a social context. Further to this, I am satisfied that the evidence establishes that Mrs Gardner’s capacity for social interaction has deteriorated over time and at that she can, at the present time, be appropriately regarded as having substantially reduced functional capacity to undertake the activity of social interaction.
Considering these matters, I am satisfied that Mrs Gardner’s functioning is substantially reduced in relation to the activity of social interaction. The Tribunal finds Mrs Gardner is unable to participate in the activity of social interaction, or to perform tasks or actions required to undertake or participate in the activity. This means that r 5.8(c) of the NDIS Access Rules is satisfied.
Learning
In relation to whether Mrs Gardner has a substantial reduction in the activity of learning, which the Access Guideline indicates encompasses understanding and remembering new things, and practicing, and using new skills, she states in her SoLE that she ‘cannot think clearly and wishes [she] had some space in [her] mind to understand and absorb information.’[35] In her SoLE, Mrs Garner goes on to explain that if she is experiencing chronic pain, the ADHD and OCD causes her to focus on the pain and that this contributes to her feeling ‘constantly foggy’ in her mind.
[35] Applicant SoLE [29].
With respect to the activity of learning, Dr Rastogi reports that Mrs Gardner requires assistance and has ‘difficulty remembering information’ and ‘needs prompting.’[36] Dr Rastogi provides further comment regarding this issue in a report prepared in April 2020 where she indicates that Mrs Gardner ‘has limited ability to learn new information, take instructions due to impaired concentration and struggles with extreme anxiety and sense of feeling overwhelmed.’[37]
[36] NDIS access request – supporting evidence form completed by Dr Richa Rastogi on 7 June 2018.
[37] Report of Dr Richa Rastogi dated 26 April 2020.
At hearing, Dr Rastogi gave evidence that Mrs Gardner displays quite a bit of short-term memory loss, despite Mrs Gardner at one time being a very good homemaker and multitasker. By around June 2018, Dr Rastogi notes she was quite forgetful and struggling even to do sometimes basic tasks. As with other activity domains where Dr Rastogi considered there to be a deterioration in Mrs Gardner’s functioning, Dr Rastogi opined that it was due to the impact of the psychiatric comorbidities and conditions affecting Mrs Gardner.
Whilst the report of Ms Marantz states that Mrs Gardner has extreme difficulty and is unable to learn new tasks, with her function in this activity area impacted by poor concentration, Ms Marantz also states that Mrs Gardner cannot learn new information without extensive support. As to what required support would need to involve, Ms Marantz indicated that repetition is needed and that Mrs Gardner may still struggle with a step-by-step document.[38]
[38] Report of Ms Cherie Marantz dated 25 October 2022.
Ms Marantz gave evidence at hearing that Mrs Gardner’s observed difficulty putting a vacuum cleaner together was an example of her difficulty remembering information. Thus, in her opinion, Mrs Gardner has a substantial reduction in functional capacity for learning.
At hearing, Dr Lahz gave evidence that there was a reduction in Mrs Gardner’s ability to learn things and cognitive difficulties that would affect learning and issues with her memory, concentration, and attention. Dr Lahz noted that it was, however, hard to say whether this resulted in Mrs Gardner having a substantial reduction in this activity domain, as she had not assessed her ability specifically to learn things. Dr Lahz commented that assessing this specific factor was not a feature of her assessment and would involve a cognitive assessment with a neuropsychologist.
Mrs Gardner’s SoLE explained that she cannot use internet banking and is unable to remember or follow instructions from staff members at the bank.[39] This issue was also referenced in Ms Marantz’s report, who states that Mrs Gardner ‘has to go to the bank for more difficult transfers of money because she cannot recall how to pay a company direct.’[40]
[39] Applicant SoLE [30].
[40] Report of Ms Cherie Marantz dated 25 October 2022.
At hearing, Mrs Gardner reiterated that she has difficulty remembering instructions and learning new tasks, such as those involved with internet banking. She conceded that she has not taken notes whilst the steps involved with internet banking were explained by bank staff. Further to this, Mrs Gardner gave evidence that she would in any event not use the internet for banking, as she would be anxious that she would make a mistake which would result in a transaction going awry and money going to somewhere other than where was intended. She indicated that her anxiety and worry about this factor is influenced by her and her husband being a victim of an internet scam, where money was taken from their account and going to someone in Germany.
The Tribunal has considered whether Mrs Gardner’s ability to provide her medical history to health professionals reflects on her function in learning. I am satisfied that Mrs Gardner was able to provide the details of her medical history as described in the aforementioned reports, but I am not persuaded that her ability to remember and articulate her medical history demonstrates or equates with Mrs Gardner having an ability to learn new things, or necessarily remember and understand information involved with learning new things and acquiring new skills. Whilst I am satisfied the former is reflective of cognitive functioning, I am not persuaded it is a clear and practical measure of the activity of learning, with functioning in this activity domain fundamentally encompassing the capacity for learning new things, practicing, and using new skills and, in my view, understanding and remembering information connected to this learning activity.
The Tribunal’s assessment of the evidence, with regard to the activity of learning, is that Mrs Gardner has difficulty understanding and remembering information, learning new things, and practicing and using new skills. I am satisfied that her function in this activity domain is affected by the chronic pain and mental health conditions from which she suffers. This is exemplified by the internet banking issue, which can be deemed as an important, everyday skill. The evidence demonstrates her practical inability to acquire this skill is compromised by her cognitive performance, which is adversely impacted by chronic pain, fatigue, poor concentration, and short-term memory problems. There is also, in my view, credible evidence that Mrs Gardner’s rumination on being subject to an internet scam is a further factor compromising Mrs Gardner’s ability to understand internet banking. Counsel for the Respondent submitted that ‘what ultimately is the problem for Mrs Gardner in respect of the online banking example is that she doesn’t feel comfortable.’ In my view, the lack of ‘comfort’ can be equated to anxious and avoidant behavior, which I am satisfied can be a feature of her psycho-social impairment.
As to whether Mrs Gardner’s reduced function in the activity of learning is substantial nature, I am satisfied that it is a considerable or sizeable reduction. The Tribunal finds that Mrs Gardner has substantially reduced functioning in the activity of learning, such that she 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. Therefore, the Tribunal is satisfied r 5.8(c) of the NDIS Access Rules is met.
Mobility
In relation to whether Mrs Gardner has a substantial reduction in the activity of mobility, the Access Guideline indicates that this activity domain encompasses how easily a person applying for access to the NDIS can move around their home and community, how they get in and out of bed or a chair, and how they get out and about and use their arms or legs.
In the SoLE prepared by Mrs Gardner in March 2022 she states that she is increasingly unbalanced when walking, putting her at substantially increased risk of falling.[41]
[41] Applicant’s SoLE [32].
At hearing, Mrs Gardner gave evidence that she has had increased falls over the past 12 months, including twice in recent weeks, once whilst trying to do some housework in the kitchen and the other whilst attempting to transfer from a standing to a seated position. She described feeling anxious about the risk. Dizziness will cause her further falls and injury as a result of any such falls, such as the fractured ribs, which were discovered during an admission to Westmead Hospital in 2022.
As to her mobility activity within her home, Mrs Gardner gave evidence at hearing that most of the time she requires the assistance of a walking stick.[42] She said that this is because she can lose her balance and that she is not sure if this is caused by a drop in her blood pressure when she transitions from a seated to standing position. Ms Marantz reported that ‘Mrs Gardner managed around her home slowly without mobility aids and managed 10 minutes before needed a short break.’[43] At hearing, Ms Marantz confirmed that she observed Mrs Gardner mobilising, albeit slowly, within her home, including upon stairs, without a mobility aid, such as a walking stick.
[42] There was discussion at hearing as to the type of walking stick utilised by Mrs Gardner, which fitted the description of a four legged ‘quad stick’.
[43] Report of Ms Cherie Marantz dated 25 October 2022.
Ms Marantz also gave evidence that she observed that Mrs Gardner doing sit to stand transfers and that she had difficulty doing this after sitting for a while.
In relation to mobility activity outside of her home, Mrs Gardner gave evidence at hearing that she is reliant on the walker that was previously used by her mother. She said that when she is in a store, she uses a shopping trolley to provide her with the sense of stability to give her some confidence she will not fall and as a consequence may not need to use the walker. Mrs Gardner gave evidence that with the assistance of the walker, she can slowly walk between 25 and 30 metres before needing to sit down and rest. Ms Marantz reported that ‘Mrs Gardner can mostly manage short walks with her mobility aids outdoors to get in and out of a vehicle. With using the walker her husband has to put it in the car and he finds it a struggle to manage due to his health issues.’[44] Further to this, Ms Marantz reported that Mrs Gardner is unable to manage lifting her walker into a car and is therefore reliant on someone else to do this. She also reported that Mrs Gardner ‘is at fall risk outside so a walker or walking stick is recommended’[45] and that due to her husband’s declining health affecting his capacity to assist, ‘would benefit from a support worker to navigate shops and different terrain as she cannot be alone.’[46]
[44] Ibid.
[45] Ibid.
[46] Ibid.
As to travelling in a car, Mrs Gardner gave evidence at hearing that she can be seated as a passenger for around an hour before needing to take a break. She indicated that she is able to travel in the car driven by her husband and also on occasion, when public transport is required, in a taxi. Whereas in her SoLE, she stated that she had no choice but to occasionally catch a bus, Mrs Gardner at hearing indicated that she no longer feels able to use this type of public transport, due to the distance and uphill location of her closest bus stop, difficulty boarding a crowded bus and worry that an impatient bus driver will move the bus before she has managed to seat herself. Mrs Gardner indicated that her symptoms of pain, fatigue, dizziness, and anxiety all compromise her ability to travel by bus.
Dr Rastogi has reported, with respect to the activity of mobility, that Mrs Gardner:
does not drive and is reliant on her husband. She does not use public transport
on her own. Her depression and OCD associated with anxiety affect her motivation
and drive and she lacks confidence travelling on her own. She is forgetful and
struggles with going to new places and is very anxious and nervous taking public
transport for same reasons identified above.[47]
[47] Report of Dr Richa Rastogi dated 2 January 2021.
In relation to this activity domain, at hearing, Dr Lahz opined that a person using a taxi did not equate to them having good mobility, which Dr Lahz explained consists of transfers, gait and sometimes assistive technology such as a wheelchair. Dr Lahz noted that a paraplegic with mobility difficulties can take a taxi in a wheelchair and conversely a wheelchair user can be very adept in its use and be viewed as having good mobility function.
Dr Lahz noted that the ability to travel in a taxi needed to be qualified with other information and, in response to further questions from Counsel for Mrs Gardner, confirmed that Mrs Gardner struggled into her consulting room using a four-wheeled walking frame upon which she is reliant. Furthermore, she observed that Mrs Gardner appeared anxious because she was late. Mrs Gardner self-reported to Dr Lahz that she rarely leaves home due to pain or physical and mental health difficulties, had not used public transport apart from taxis for a long time and was prone to falls.
In discussion as to whether difference between Mrs Gardner’s balance during the informal (observed behavior in Dr Lahz’s waiting room) and formal testing, Dr Lahz provided the following response to a question as to whether Mrs Gardner’s anxiety, OCD and ADHD may also play a role in her poor balance:
Balance is a - it’s complex in its, you know, the mechanisms for having good balance of you know, related to, you know, neural pathways in the brain, the cerebellum, and the spinal cord. Certainly, if someone’s got cognitive difficulties that can predispose them to falling because they’re not paying attention to things in their environment. I don’t think that I - I would not say, though, that being anxious makes one’s balance impaired.
Dr Lahz further opined that chronic sleep deprivation associated with depression would also not, in itself, affect balance. Whilst she could not account for fluctuation, Dr Lahz thought that Mrs Gardner’s balance may possibly be reflective of Mrs Gardner’s level of psychological distress. Dr Lahz also thought that this was reflective of Mrs Gardner’s wish to convey the problems she experiences and was not on Mrs Gardner’s part an attempt to obfuscate or lead Dr Lahz ‘down the garden path.’
In considering these matters, I am satisfied that Mrs Gardner’s physical functioning is reduced in undertaking mobility activities. I am satisfied her mobility difficulties extend beyond moving more slowly or differently to others, whether this to be in relation to activity such as getting in and out of bed or a chair, mobilising within her home, leaving the home or moving about in the community. I am satisfied that Mrs Gardner’s mobility activity is affected by chronic pain and concern that she will fall and injure herself and therefore reflect the impact of her physical and psychosocial impairments.
Mrs Gardner relies on assistive technology in the form of grab rails to mobilise and to transition from a seated to a standing position in parts of her home such as the toilet and bathroom. She also uses a walking stick and handrails on stairways. I am satisfied that this type of assistive technology can be appropriately described as “commonly used items” and, as such, I find these items do not indicate substantially reduced functional capacity.
I am satisfied that Mrs Gardner also relies on assistive technology in the form of the four wheeled walker that she utilises to mobilise outside of her home. The walker is used to either maintain her balance or rest upon after walking around 30 metres. The four wheeled walker is reported to have previously belonged to Mrs Gardner’s mother and was not formally prescribed by a medical practitioner, such as a specialist clinician However, her reliance on this assistive technology is noted by Ms Marantz, an experienced occupational therapist, and Dr Lahz, an experienced rehabilitation physician.
The Tribunal in Sheldon and National Disability Insurance Agency [2018] AATA 2560 also considered the use of this type of assistive technology and decided it was not a ‘commonly used item’. I have formed the view that the four wheeled walker, with a built-in seat, is not a ‘commonly used item.’ As such, Mrs Gardner’s reliance on this equipment indicates that her physical and psychosocial impairments cause her substantially reduced functional capacity.
Dr Lahz gave evidence, which I accept, Mrs Gardner has substantially reduced mobility. Ms Marantz and Dr Rastogi also gave evidence, which I accept, that Mrs Gardner has a substantial reduction in her capacity for mobility.
With respect to the activity of mobility, the Tribunal finds that Mrs Gardner 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). Accordingly, r 5.8(c) of the NDIS Access Rules is satisfied.
Self-care
In relation to whether Mrs Gardner has a substantial reduction in the activity of self-care, the Access Guideline indicates that this activity domain encompasses activities related to personal care, hygiene, grooming, eating and drinking, and health. It involves consideration of showering, bathing, dressing, eating, or toileting.
There is no suggestion that Mrs Gardner cannot eat without assistance. As with other activity domains, the Applicant’s contention is that the combined impacts of the chronic pain and mental health conditions constrain both her motivation and physical capacity to prepare meals and ensure she has a good nutritional intake. With respect to this contention, at hearing, Dr Lahz agreed that Mrs Gardner would have a fluctuating capability for cooking and other activities of daily living on days she was more affected by her depressive symptoms.
The Tribunal is satisfied that the evidence establishes that Mrs Gardner can, with some difficulty, in collaboration with her husband, prepare hot meals. This is shown with her contribution being preparing and cooking vegetables such as potatoes and carrots and heating frozen vegetables, whilst her husband prepares the meat. The Tribunal finds that Mrs Gardner and her husband may have hot meals of this type a few times in a fortnight, and that at other times they may eat purchased pre-prepared frozen ‘quick’ meals, or Mrs Gardner may subsist on sandwiches. There was also discussion on the role of biscuits in her diet, however, the Tribunal took from Mrs Gardner’s explanation that she does not have recourse to biscuits as a meal substitute, but rather as food to assist with taking medication.

Mrs Gardner showers on a regular basis, albeit slowly and with the frequency somewhat connected to whether it is summer (hot) or winter (cold). Ms Marantz recommends a Vitalcall for fall risk, a toilet surround for getting on and off the toilet, and a safer shower stool than Mrs Gardner is currently using.[48] Mrs Gardner can dress unaided with the proviso that she does this more slowly than would be the case of someone who did not have her impairments. Dr Lahz suggests that it would be best if Mrs Gardner carries out dressing and bathing in a seated position for safety reasons, as a falls risk management strategy.[49]
[48] Report of Ms Cherie Marantz dated 25 October 2022.
[49] Report of Dr Sophia Lahz dated 21 October 2021.
Dr Rastogi gave evidence that through her longitudinal contact with Mrs Gardner, she has observed evidence of increasing self-neglect affecting Mrs Gardner. In the words of Dr Rastogi at hearing, ‘I would not say she’s unkempt, but that was not what Mary was when I first saw her in the first few years. So, I’m making reference to when I first saw her in and following that over the years in terms of her dressing sense, her ability to self-care, her ability to be more immaculate had decreased.’
Mrs Gardner gave evidence that, at times, her husband reminds her to take her medications. The report of Ms Marantz states that Mrs Gardner reported that she ‘sometimes struggles to remember to take her medication.’ With regard to taking medications in the manner prescribed, Dr Rastogi gave evidence at hearing that notwithstanding the fact that the normal instructions would be provided on the actual packet of medication, she nonetheless had to write the instructions out for Mrs Gardner. In elaborating on this factor, Dr Rastogi stated:
… when we were titrating the dose, even though it was a simple titration, she would still not get that. For example, if a tablet needed to be taken one this week and two from next week, she would struggle even comprehending that for me to write it down and give it to her. I would also provide a copy to her husband because I wasn’t sure whether she would keep it or she would lose it or she would just not see it.
I do not consider instances where Mrs Gardner attends to an aspect of daily living, such as showering, dressing, or cooking, more slowly than be usual for someone of her age to constitute substantially reduced function in the activity of self-care.
I have also considered the guidance in the Access Guideline in reference to the changes in Mrs Gardner’s manner of dressing and presenting herself, which have been observed by Dr Rastogi. Whilst accepting Dr Rastogi’s clinical assessment that the changes she has observed over time reflect the progression of Mrs Gardner’s chronic pain and comorbid mental health conditions, it would appear to me that this is reflective of the impact of the physical and psychosocial impairments affecting Mrs Gardner. With respect to the activity of self-care, the pertinent point is that she continues to have the capacity to dress herself and attend to her personal grooming and hygiene needs, albeit somewhat differently than she may have done so in the past.
Dr Lahz and Dr Rastogi gave evidence that there is a significant reduction in Mrs Gardner’s capacity for self-care. Ms Marantz noted that Mrs Gardner can do things but that it is difficult for her. Whilst accepting this evidence, I am not persuaded, for the purpose of s 24(1)(c) of the Act, in relation to the activity of self-care, this is the case.
Self-management
In relation to whether Mrs Gardner has a substantial reduction in the activity of self-management, the Access Guideline indicates that this activity domain encompasses how a person organises their life, how they plan, make decisions, and look after themselves. The Access Guideline explain that this might include day-to-day tasks at home, how a person solves problems, or manage their money and that what is considered is the mental or cognitive ability of a person to manage their life, not their physical ability to do these tasks.
Ms Marantz reported that Mrs Gardner struggles on a daily basis due to her physical issues, mental health, and fatigue, which impact on her ability to self-manage, plan, make decisions and problem solve. She notes that Mrs Gardner struggles to plan her day as she feels overwhelmed. In her report, Ms Marantz states that Mrs Gardner’s has reduced ability to take responsibility for herself and look after herself, mainly due to her mental health.
With respect to Ms Marantz’s reference to Mrs Gardner struggling on a daily basis due to ‘physical issues, mental health [and] fatigue’, I consider it relevant that she has drawn a connection between these factors and Mrs Gardner’s ability to ‘self-manage, plan, make decisions and problem solve.’ I am satisfied that when Ms Marantz refers to ‘physical issues’, she is not just referring to the physical ability to do self-management tasks. Rather, Ms Marantz is inferring that Ms Gardner’s physical issues interact with her symptoms associated with her mental health condition and as well the level of fatigue affecting her. The interaction with these factors adversely affects Mrs Gardner’s motivation and her ability to undertake cognitive processes needed to effectively participate in self-management activities.
At hearing, Mrs Gardner’s ability to effectively manage her finances and strategies in place to assist her do so were discussed at length.
Dr Rastogi reported that Mrs Gardner struggles with making financial decisions and falls behind in paying bills.[50] Dr Rastogi elaborates further on this in a subsequent report,[51] where she states:
She has poor decision making capacity and needs prompting. She struggles with
finances, planning things and allocating things due to poor prioritisation and being
forgetful. She has difficulty with complex decisions and her judgement is impaired.
She struggles sometimes with simple decisions as to what to wear and eat would
avoid going outside. She has no support and even forgetful to attend appointments.
She would benefit from having home care and community services to help with
transportation, reminders for appointments, meal prep and activity scheduling with
prompts.
[50] Report of Dr Richa Rastogi dated 26 April 2020.
[51] Report of Dr Richa Rastogi dated 2 January 2021.
At hearing, Dr Lahz confirmed that she had assessed Mrs Gardner to be managing, albeit with difficulty, the finances and medical/health appointments for her and her husband. In discussion of whether use of direct debit arrangements suggested Mrs Gardner had reduced functioning in relation to managing financial arrangements, Dr Lahz made, what I view was a reasonable proposition, when noting that Dr Lahz has her own bills set up with direct debit and that she does not regard herself as impaired. With respect to this particular factor, the Tribunal notes that Mrs Gardner has also indicated she had assistance to set up some of these direct payment arrangements. I consider Mrs Gardner’s use of direct debit arrangements to pay a number of regular household and medical expenses to be not unusual or inconsistent with the normal expectations of a person of her age, especially in the era of COVID-19 and the disappearance of many physical bank branches.
With respect to her capacity to make personal and financial decisions, Ms Marantz reports that Mrs Gardner seems to be able to understand bills that need to be paid, but struggles with the process at times.[52]
[52] Report of Ms Cherie Marantz dated 25 October 2022.
The Tribunal accepts that Mrs Gardner does not feel able to engage with internet banking and has not acquired the skills to operate this mode of banking independently. In relation to this issue, I understand ‘internet banking’ to be differentiated from direct debit arrangements that may be set up with entities, such as insurance companies and utility companies. I consider that internet banking involves one off or irregular financial transactions necessitating the use of the internet and a number of steps where bank account and other personal details need to be entered in the correct sequence. I do not consider it unusual that a person who was raised in an era before computers and the internet, when banking transactions took place either in person at bank branches or through written cheques, may find undertaking banking and other financial transactions online or through a mobile phone challenging. Indeed, the challenge and disadvantage faced by people of Mrs Gardner’s generation in response to the closure of local bank branches is discussed frequently in the media.
The Tribunal is aware that Mrs Gardner’s capacity to attend a physical bank branch to conduct banking is compromised by her difficulties in mobility. Whilst the Access Guideline discuss how a person’s physical ability to do this sort of task should not reflect on the functioning in the activity of self-management, I am open to this circumstance being another example where struggle and challenge exacerbates the pain, fatigue and mental health conditions that impact upon Mrs Gardner’s mental and cognitive ability to organise her life.
In relation to the activity of managing financial affairs, the evidence before the Tribunal is that Mrs Gardner continues to take responsibility for this activity within the household, albeit with difficulty. There is evidence that Mrs Gardner may, at times, delay paying a bill, for which direct debit arrangements are not in place, due to factors such as misplacing an account or invoice amidst the overall level of clutter in her house, or because she is feeling depressed, fatigued, pain-affected and demotivated.
The extent of clutter in Mrs Gardner’s home was put forward as an area of self-management activity where there is particular functional difficulty. With respect to this factor, Ms Marantz reports that Mrs Gardner ‘struggles with organisation and lives in clutter’ and that ‘at the time of the assessment clutter was a significant issue in the home and is considered a health risk. Mrs Gardner is clearly not coping with daily activities and needs support. She reports to feel very overwhelmed and struggles with function as a result.’[53]
[53] Report of Ms Cherie Marantz dated 25 October 2022.
At hearing, Dr Rastogi explained why she reported in a letter that Mrs Gardner’s ‘mental health has significantly deteriorated over period of time’ and that ‘[Mrs Gardner] is significantly depressed with severe anxiety that is debilitating her and interfering with her functioning.’[54] Dr Rastogi gave evidence that, as well as having panic attacks, Mrs Gardner ‘was getting more and more home bound and the hoarding had become quite intense to the state it was causing a lot of… hazards at home and we were trying to work out how to help her, but Mary was quite disabled to even address that fact.’
[54] Letter of Dr Richa Rastogi dated 30 January 2020.
In further elaborating on how Mrs Gardner’s functioning in relation to day-to-day activities was affected, Dr Rastogi stated:
It was basically her motivation at that time. So, as we’re talking about she - her sleep had been quite disruptive because of the pain and also because of the severe anxiety. Her appetite was all over the place. She was eating, and not eating, causing a lot of fatigue and tiredness. She was not functioning in terms of ability to perform her day-to-day activities, and with her husband not being present to prompt her or help her and also - and that was causing a vicious cycle with her. Because Mary has always liked to be in control and she always liked things - to do in a, quite ritualistically way, an obsessional way, and because she was not able to do the gardening, she was not able to do the lawn - so things were starting to fall apart and she was really struggling at that time to start, or even do things.
In relation to the activity of self-management, Dr Lahz at hearing gave the opinion that ‘[Mrs Gardner] has… cognitive difficulties but I think overall she is self-managing but it’s not easy.’ Dr Lahz acknowledged that Mrs Gardner had difficulty with general organisation, problem-solving and motivation, but maintained her view that Mrs Gardner ‘is doing her self-management but it’s a struggle.’ With respect to this opinion, Dr Lahz qualified it somewhat by explaining that her assessment of this sort of activity domain is to some extent influenced by her clinical experience working with patients affected by traumatic brain injuries, where the level of impairment can be profound.
Ms Marantz and Dr Rastogi gave evidence, which I accept, that Mrs Gardner’s self-management function is substantially reduced. As discussed above, this is not the view of Dr Lahz.
In considering Mrs Gardner’s functioning in the activity of self-management with reference to the Access Guideline, the Tribunal is satisfied the evidence shows she has difficulty with planning and making decisions with respect of day-to-day tasks at home. An example of this is Mrs Gardner’s difficulty in decluttering her home such that surfaces in utility areas such as the kitchen, laundry, bathroom and living areas are accessible and able to function without undue safety and hygiene risks. Attending to tasks such as going through boxes of her deceased mother’s items is a further activity which Mrs Gardner has difficulty organising.
The Tribunal is satisfied that there is credible evidence that Mrs Gardner feels overwhelmed and unable to effectively manage activities of daily living, which further exacerbates Mrs Gardner’s psychosocial impairments. Mrs Gardner’s fatigue, depression, anxiety and ruminative thinking cumulatively contribute to her overwhelmed state, to a point where she is reported to experience a degree of despair. Thus, these factors affecting her functioning in the activity of self-management are maintained and reinforced.
On the basis of the evidence before the Tribunal, I am satisfied that the extent to which Mrs Gardner’s function in the activity of self-management is considerable and significant and that it can appropriately regarded as substantial.
Considering these matters, I am satisfied that Mrs Gardner’s functioning is substantially reduced in relation to the activity of self-management. I am satisfied weight can be placed upon recommendations in Ms Marantz report. Ms Marantz recommended that a support worker can prompt and coach Mrs Gardner with respect to effectively organising herself and for taking responsibility and looking after herself. Additionally, she recommends that, in addition to a support worker, a guardian may be needed to manage Mrs Gardner’s finances. Ms Marantz notes that Mrs Gardner would also benefit from a declutter service. Having made these findings, the Tribunal notes that the aforementioned supports are not in place at the present time and their proposed benefit is, at this point, hypothetical in nature.
As to considering Mrs Gardner’s functioning in the activity of self-management with reference to the NDIS Access Rules, I do not consider r 5.8(b) or 5.8(c) are applicable as Mrs Gardner is not at present receiving assistance in relation to the activity of self-management. I do, however, consider r.5.8(a) to be applicable, in that I am satisfied the evidence demonstrates Mrs Gardner is unable to participate effectively or completely in the activity of self-management.
SUMMARY
In conclusion, while it is only necessary for Mrs Gardner to demonstrate that her impairments have resulted in substantially reduced functional capacity in one of the specified activities, the Tribunal is satisfied that this is so for four of the specified activity domains of social interaction, learning, mobility, and self-management. On this basis, the Tribunal concludes that Mrs Gardner meets the requirements in s 24(1)(c) of the Act.
Section 24(1)(d) - the impairment or impairments affect the person's capacity for social or economic participation
As to s 24(1)(d) of the Act, the impairments referred to in these reasons clearly affect Mrs Gardner’s capacity for social and economic participation. The Tribunal cannot envisage a circumstance where she would have the capacity to undertake paid employment in the future. The cumulative impacts of her impairments clearly and severely limit her capacity for social participation.
The Tribunal is satisfied that the impairment resulting from Mrs Gardner’s conditions have affected her capacity for social and economic participation. The Tribunal concludes that the requirement under s 24(1)(d) of the Act is met by Mrs Gardner.
Section 24(1)(e) – support required for the person’s lifetime
As to section 24(1)(e) of the Act, Mrs Gardner is likely to require support under the NDIS for her lifetime. Her impairments are long term and permanent and the evidence, in my view, demonstrates their impact upon Mrs Gardner is only likely to progressively increase. I am satisfied that the evidence indicates a need for support for Mrs Gardner under the NDIS for her lifetime.
The Tribunal concludes that Mrs Gardner meets the disability requirement under s 24(1)(e) of the Act.
CONCLUSION
The Tribunal concludes that:
(a)Mrs Gardner meets the “age” and “residence” access criteria under s 21 of the Act; and
(b)Mrs Gardner meets the disability requirements under s 24(1) of the Act and therefore, she meets the “disability” access criterion under s 21 of the Act.
DECISION
Accordingly, the Tribunal sets aside the decision under review and, in substitution, decides that Mrs Gardner meets the access criteria under s 21 of the Act to become a participant under the NDIS.

I certify that the preceding 217 (two-hundred and seventeen) paragraphs are a true copy of the reasons for the decision herein of Member D. Barker

...............................[SGD].....................................
Associate
Dated: 22 May 2023

Date of hearing(s): 28, 29 and 30 March 2023

Counsel for the Applicant:
Ms T Waterhouse

Counsel for the Respondent: Ms A Douglas-Baker

[2023] AATA 1287

22 May 2023

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Standing

Statutory Construction

Procedural Fairness

Remedies

Date of hearing(s):	28, 29 and 30 March 2023
Counsel for the Applicant:	Ms T Waterhouse
Counsel for the Respondent:	Ms A Douglas-Baker