Goodwin and National Disability Insurance Agency

Goodwin and National Disability Insurance Agency [2021] AATA 1438 (21 May 2021)
Division:National Disability Insurance Scheme Division
File Number(s): 2019/5752
Re:Shane David Goodwin
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal: Member I Thompson
Date:21 May 2021
Place:Adelaide

The Tribunal affirms the decision under review.
............................[Sgnd]............................................
Member I Thompson
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – access to the scheme – disability requirements – early intervention requirements – consideration of medical history – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975
National Disability Insurance Scheme Act 2013
National Disability Insurance Scheme (Becoming a Participant) Rules 2016
Cases
Mulligan v NDIA (2015) FCA 544
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Kilgallin and National Disability Insurance Agency [2017] AATA 186
Secondary Materials
Operational Guideline – Access to the NDIS
REASONS FOR DECISION
Member I Thompson
21 May 2021
INTRODUCTION

The applicant, Shane Goodwin, made an access request to the National Disability Insurance Agency (NDIA) to become a participant in the National Disability Insurance Scheme (NDIS).
Mr Goodwin’s request for access to the NDIS listed his disabilities as a right shoulder injury, chronic pain disorder, lower back pain and visual impairment together with difficulties in his short term memory associated with anxiety, depression and a pain disorder. [1]
[1] Exhibit A, p 20
The NDIA declined the request by letter dated 15 October 2018.[2] Mr Goodwin sought an internal review of that decision which was subsequently affirmed by a delegate of the NDIA on 13 August 2019.[3] The NDIA was satisfied that Mr Goodwin meets the age and residency criteria outlined in ss 22 and 23 of the National Disability Insurance Scheme Act 2013 (the NDIS Act), however it was not satisfied that he meets the disability or early intervention requirements in ss 24 and 25 of the NDIS Act. Mr Goodwin applied to the Tribunal for a review of that decision.
[2] Exhibit A, p 26
[3] Exhibit A, p 5
The hearing in the Tribunal took place on 1 February 2021. Mr Goodwin attended in person and was self-represented. The NDIA was represented by counsel, Mr Lipari.
Mr Goodwin is 57 years old. He gave evidence at the hearing. He was honest and forthright in giving evidence. He provided written statements [4]prior to the hearing and his wife, Karen Goodwin, also provided a written statement about his daily activities and routines. The NDIA had arranged for Mr Goodwin to be assessed by an occupational therapist, Ms Carly Clarke. She wrote a detailed report following the assessment and gave evidence by telephone.[5] The Tribunal received in evidence a quantity of documents which comprised numerous medical reports, medical notes, hospital discharge summaries, letters, and other documents relating to Mr Goodwin.
[4] Exhibit C, attachments 6,7,8,18
[5] Exhibit E, p 50
Mr Goodwin has a complex medical history and suffers from several conditions which include chronic pain disorder, sciatica, depression, anxiety, conversion disorder, congenital toxoplasmosis, blepharitis and asthma.
THE NATIONAL DISABILITY INSURANCE SCHEME (NDIS)
In order to qualify as a participant in the NDIS, an applicant must meet the criteria outlined in s 21 of the NDIS Act. In addition to age and residence requirements, a person must meet the disability requirements in s 24(1) or the early intervention requirements in s 25.
In this case there is no dispute that Mr Goodwin meets the age and residence requirements. Generally, the age requirements are met if the person was under 65 years old when an access request was made. The question is whether he meets the disability requirements under s 24, or the early intervention requirements under s 25 of the NDIS Act.
Disability requirements – Section 24 of the NDIS Act provides that a person meets the disability requirements if:
(1) A person meets the disability requirements if:
(a)the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or to one or more impairments attributable to a psychiatric condition; and
(b)the impairment or impairments are, or are likely to be, permanent; and
(c)the impairment or impairments result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the following activities:
(i)communication;
(ii)social interaction;
(iii)learning;
(iv)mobility;
(v)self-care;
(vi)self-management; and
(d)the impairment or impairments affect the person's capacity for social or economic participation; and
(e)the person is likely to require support under the National Disability Insurance Scheme for the person's lifetime.
(2) For the purposes of subs (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.
Early intervention requirements – Section 25(1) of the NDIS Act provides that a person meets the early intervention requirements if:
(1)   A person meets the early intervention requirements if:
(a)    the person:
i)has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent; or
ii)has one or more identified impairments that are attributable to a psychiatric condition and are, or are likely to be, permanent; or
iii)is a child who has developmental delay; and
(b)    the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person's future needs for supports in relation to disability; and
(c)    the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by:
(i)mitigating or alleviating the impact of the person's impairment upon the functional capacity of the person to undertake communication, social interaction, learning, mobility, self-care or self-management; or
(ii)preventing the deterioration of such functional capacity; or
(iii)improving such functional capacity; or
(iv)strengthening the sustainability of informal supports available to the person, including through building the capacity of the person's carer.
Note: In certain circumstances, a person with a degenerative condition could meet the early intervention requirements and therefore become a participant.
Section 25(3) of the NDIS Act provides that if a person meets the requirements in s 25(1), he or she will not meet the early intervention requirements if:
… the CEO is satisfied that early intervention support for the person is not most appropriately funded or provided through the National Disability Insurance Scheme and is more appropriately funded or provided through other general systems of service delivery or support services.
It is important to note the comments of the Federal Court in Mulligan v NDIA[6]:
It is clear from the legislative scheme that the decision whether a person is or is not a participant is the threshold decision under the scheme, and the decision which enables access to most benefits and funding available under the NDIS. However, what benefits and supports are provided, and how they are funded is subject to a separate decision-making process.[7]
[6] (2015) FCA 544
[7] Ibid, at [34] per Mortimer J.
The concept of impairment, rather than a definition of disability, is central to the threshold provisions such as s 24. The Federal Court went on to say in Mulligan at [56]:
No decision maker needs to be satisfied a person’s impairment is ‘serious’, or more serious than another people. No qualitative judgments in that sense are called for. Rather, the legislative scheme is based on a functional, practical assessment of what a person can and cannot do. Critically, the scheme makes detailed provision for that assessment, and it is enough for a person to have substantially reduced functional capacity in relation to one activity.
Under s 209 of the NDIS Act the Minister has made rules about becoming a participant in the scheme. The National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (the NDIS Rules) are relevant to this case. The NDIS Rules form part of the legislation. Under r5.8 the decision maker must assess the effect of a person’s impairment on the performance of each of the NDIS activities that are set out in s 24(1)(c). If the result is any of the outcomes which are specified in r 5.8(a), (b) or (c) then the deeming effect of r 5.8 will apply.
The CEO of the NDIA has made Operational Guidelines for staff in exercising their functions under the NDIS Act. Unless there is good reason not to do so, the Operational Guidelines represent government policy and should be applied by the Tribunal.[8] The Operational Guideline – Access to the NDIS provides information and guidance regarding the disability requirements (s 8) and the early intervention requirements (s 9) and will be referred to later in this decision.[9]
[8] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
[9] Exhibit F, Operational Guideline – Access to the NDIS, p 83.
ISSUES
The NDIA does not accept that Mr Goodwin satisfies the disability requirements in s 24 of the NDIS Act or the early intervention requirements in s 25 of the NDIS Act.
Before the hearing commenced the NDIA provided a Statement of Issues Facts and Contentions in which it was not disputed that Mr Goodwin sustained significant injuries to his back and shoulder in a workplace accident in 2007, and it was also not disputed that he has a diagnosis of chronic pain disorder, congenital toxoplasmosis, depression and anxiety.
At the commencement of the hearing, the NDIA conceded that Mr Goodwin has a disability attributable to impairments and meets the requirements of s 24(1)(a) of the NDIS Act. The NDIA conceded that the impairments are permanent and Mr Goodwin meets the requirements of s 24(1)(b) of the NDIS Act. The permanency is conceded in relation to the impairments from chronic pain, sciatica, congenital toxoplasmosis, depression, anxiety and conversion disorder. Specifically, however, the NDIA contends that the evidence does not support a finding that Mr Goodwin has a substantially reduced functional capacity in any of the domains of daily living and therefore he does not meet the requirements of s 24(1)(c) of the NDIS Act.
As a result of the NDIA concessions, s 24(1)(a) and (b) were not in contention, which meant that a principal issue in dispute was whether Mr Goodwin’s permanent impairments led to a substantial reduction in his functional capacity.[10]
EVIDENCE
[10] Exhibit B
Mr Goodwin
Mr Goodwin gave evidence by affirmation. He told the Tribunal that he resides in a regional town with his family where he has lived since 1989. His last employment was in 2007 and it came to an end because of an accident at work. He receives the disability support pension which was granted about 2 years ago.
Mr Goodwin currently divides his time between his family home and his brother’s place nearby. He stays at his brother’s place so that he can drive his 7-year-old grandson to school in the morning and home again in the afternoon. Each trip is about a 5-minute drive. He said in evidence that he enjoys that activity and his involvement with his grandson gives him “reason for living.” During the day he does not do very much, he makes a few cups of coffee for himself. He no longer does any cooking which he used to enjoy but does not enjoy anymore.
Before the hearing Mr Goodwin provided 3 written statements which provide information about his medical problems and their effects. In evidence he confirmed information in the statements was accurate to the best of his ability. Mr Goodwin was aware of a written statement provided by his wife but was not familiar with its contents.
Prior to recent retirement, Dr Wells was Mr Goodwin’s general medical practitioner for many years. Mr Goodwin is now seeing other doctors at the same medical practice and currently he is being examined because of pain in his chest and left arm. He thinks it is different from the chronic pain that he suffers.
Mr Goodwin gave evidence about continuing problems arising out of the injuries in the workplace accident which occurred in February 2007. He said that he has undergone 3 operations on his right shoulder, and he continues to have pain when he moves the shoulder. He tore a muscle in his left calf and had problems with his stomach. Several years later he was suffering pain in his back which he understands is attributed to the workplace accident and two operations followed. He has pain in the central area of his back and pain which radiates down his legs, more so on the left leg. He has pain in the balls of his feet and numbness. He has difficulty wearing shoes because of the pressure on the sides of his feet. He said that he has had quite a few falls and near falls.
Mr Goodwin described chronic pain which affects his right shoulder, lower back and legs. A specialist, Dr Clothier, treated him for chronic pain. He was unable to get a referral to a pain management unit because of the long waiting lists. He said that chronic pain has affected him for 13 years. He described the pain as constant, sharp and it affects him, at times, as nerve pain and at other times a muscle pain throughout his body.
Mr Goodwin told the Tribunal about his hearing loss and his understanding about a tumour which he has on a nerve in the right ear. He described a noise which he has in his head as buzzing and whirring. He has suffered with tinnitus from his teenage years. He said there are 3 letters which he does not hear properly and misinterprets. Background noise in social situations is more problematic for him, otherwise he does not have much difficulty with hearing in face to face conversations.
Mr Goodwin also has problems with his eyesight. In his left eye he has only peripheral vision. Blinking always causes pain in his right eye which is the result of a vacuole which he likens to a lens , or a clear cataract being inside a lens that pokes out and causes pain every time he blinks. It adversely affects his vision, his reading capacity is reduced and he is finding it progressively harder to read. He still holds a driver’s licence, however, he anticipates he will lose it sometime in the future because of problems with his eyes. Although his current driver’s licence is not subject to conditions relating to vision, Mr Goodwin has to pass a practical driving assessment every 2 years. He drove to the hearing which was a trip lasting about one hour.
Mr Goodwin told the Tribunal about depression and anxiety which he suffers. He has received treatment from a psychiatrist, Dr Harvey, three or four times per year since 1997. Medication for pain management has been prescribed at various times by Dr Wells through collaboration between Dr Wells, Dr Harvey and Dr Clothier. Norspan patches were the most effective in reducing his pain levels on occasions by 10 to 15%. Eventually he reached a point where the patches were no longer working and rather than try stronger medication he chose to persist without any. Mr Goodwin said that Dr Harvey treated him for conversion disorder which he described as affecting pathways to his brain that turn him into a vegetable. For example, he might walk towards a closed door with the intention of opening it and instead of opening it, he freezes, stays there, and eventually walks back to where he came from. He is not sure of the cause and triggers of this problem.
MEDICAL EVIDENCE
A report dated 12 August 2014 by a consultant occupational physician, Dr Wilkins, referred to the workplace injury which Mr Goodwin sustained in February 2007 and noted “despite three surgeries for his right shoulder, numerous medications, Tens and physical therapy as well as psychological counselling and multiple analgesia, Mr Goodwin developed intractable chronic pain syndrome which now affects most of his body.”[11] Dr Wilkins considered that Mr Goodwin had no capacity for work because of multiple symptoms including quite severe pain and episodic blackouts.
[11] Exhibit C, attachment 13
Mr Goodwin had been referred to a consultant in rehabilitation and pain medicine, Dr Clothier, in February 2010. Following subsequent assessments Dr Clothier reported on 7 April 2014 that Mr Goodwin had a poor prognosis because of severe restrictions in his right shoulder movement with significant pain together with generalised pain which affected his neck and back. Dr Clothier noted that Mr Goodwin was angry and depressed and would benefit from psychological support, while recommendations were made to Dr Wells about medication management.[12]
[12] Exhibit C, attachment 16
Mr Goodwin was referred for an eye test because of problems with reading and difficulties with distance vision. On 21 October 2015 Dr Cugati, an eye physician and surgeon, reported that Mr Goodwin has poor vision in his left eye from likely congenital toxoplasmosis. In addition, examination of the right eye provides evidence of gland disease and a small vacuole in the lens. It was recommended that he use dark glasses to reduce glare.[13]
[13] Ibid
More recently, Mr Goodwin’s, general medical practitioner, Dr Patrick Wells, listed Mr Goodwin’s conditions in a report written on 26 November 2018:[14]
1)Poor vision in left eye – peripheral vision only due to toxoplasmosis when in the womb
2)Asthma – currently well managed on seretide
3)Chronic pain syndrome – following an injury to the right shoulder at work. He currently has little use of the right arm. He is not on any medication at present
4)Low back pain with sciatica: he recently had an L5-S1 microdiscectomy at the RAH. I believe this has not worked, so he is still seeing the doctors the RAH”
[14] Exhibit A, p 29
Following microdiscectomies in September 2018 and April 2019 to help with relief from left sided leg pain, a neurosurgery consultant, Dr Adam Wells reported that Mr Goodwin has “ a background of sharp, stabbing pain and numbness in his left leg as well as some in his right leg… He has had a previous discectomy in 2018 with short-lived improvement lasting 1 week. He has had no improvement with medical management. On examination, he had mild weakness in the left lower limb with power 4/5 for hip flexion and extension, 3/5 for knee flexion and extension and 4/5 in dorsi and plantarflexion. He additionally had decreased sensation in his left leg along the lateral surface, approximately in the L5 distribution. Other than that, the remainder of his examination was unremarkable.”[15] According to the report Mr Goodwin was managed post-operatively and reviewed by a physiotherapist without issue.
[15] Exhibit C, attachment 11
Mental health
In a report dated 10 October 2016 Mr Goodwin’s psychiatrist, Dr Harvey, noted that Mr Goodwin developed a chronic pain disorder after the injury to his right shoulder at work in 2007. He reported that Mr Goodwin was severely incapacitated by chronic pain disorder with a poor prognosis regarding capacity to work. Dr Harvey wrote: – “in the years that I have been treating Mr Goodwin he has suffered with depression and anxiety, conversion disorder and chronic pain disorder. In the past he has been treated with most classes of antidepressant medication (to assist him with depression and sleep disturbance that has resulted from his chronic pain problems) again with minimal benefit.”[16]
[16] Exhibit A, p 14

Dr Harvey reviewed Mr Goodwin on 29 August 2018 and 21 October 2019 and noted that Mr Goodwin was reporting an increase in anxiety, continuing difficulties with poor concentration and memory. Investigations were underway at the Royal Adelaide Hospital for light-headedness and vertigo and an apparent acoustic tumour.[17]
[17] Exhibit D, attachment 16
Significantly, Dr Harvey distinguished Mr Goodwin’s chronic pain disorder from the pain associated with his musculo--skeletal right shoulder injury. Dr Harvey wrote to Centrelink that the chronic pain disorder is a psychiatric condition. In a letter dated 14 August 2017 Dr Harvey wrote: – “the diagnosis of a pain disorder is based on the definition of DSM 4 and DSM 5 with the characteristics of the pain being- 1 Pain is spread more generalised. 2. It cannot be explained by organic pathology. 3. Is associated with psychiatric symptoms. – (in this patient’s case, mild depressed mood, anxiety symptoms and functional neurological symptoms such as his visual difficulties and blackouts). 4. There is increasing dysfunction associated with it; and 5. The pain is the focus of clinical attention.”[18]Dr Harvey described the functional impact on activities involving Mr Goodwin’s mental health function as severe. The description was given in a letter to Centrelink in the context of criteria relevant to Mr Goodwin’s claim for the disability support pension. Those criteria do not apply to an assessment of eligibility for the NDIS. Nonetheless, opinions and conclusions which Dr Harvey conveyed in that letter about difficulties which Mr Goodwin has in carrying out activities of daily living can be considered in the context of the relevant criteria under the NDIS Act.
[18] Exhibit E, p 148
CONSIDERATION
Dr Harvey provided written information in support of Mr Goodwin’s access request to join the NDIS in which recorded Mr Goodwin’s disabilities as the right shoulder injury, chronic pain disorder, lower back pain and visual impairment.[19]
[19] Exhibit A, p 19
The Tribunal is satisfied on the evidence that the concessions by the NDIA regarding s 24(1)(a) and (b) of the NDIS Act are correct. The Tribunal finds that Mr Goodwin has a disability which results from impairments caused by right shoulder injury, low back injury, poor vision in the left eye, chronic pain disorder together with depression and anxiety. The Tribunal finds that those impairments are permanent.
The next step is to decide whether Mr Goodwin meets the requirements which are set out in s 24(1)(c), (d) and (e) of the NDIS Act.
Section 24(1)(c) NDIS Act - Whether the impairments result in substantially reduced functional capacity to undertake one or more of the following activities: communication, social interaction, learning, mobility, self-care, self-management
Each of the activities specified in s 24(1)(c) NDIS Act and their impact on functional capacity will be examined in relation to Mr Goodwin’s impairments.
The legislation requires:
a relatively high degree of precision by decision- makers (see, for example, the six activities in s 24(1)(c) in assessing what a person can or cannot do. The assessment to be undertaken is avowedly functional and multi-faceted.[20]
[20] Mulligan v NDIA [2015] FCA 544 at [55].
It is enough for a prospective participant to have substantially reduced functional capacity in relation to one activity: ‘If the outcome or effect is any of the outcomes or effects specified in r 5.8(a), (b) or (c), the deeming effect of r 5.8 operates’.[21]
[21] Ibid, at [67].
In considering when an impairment results in substantially reduced functional capacity to undertake relevant activities, r 5.8 of the Rules provides that: -
5.8 An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities—communication, social interaction, learning, mobility, self-care, self-management (see paragraph 5.1(c))—if its result is that:
(d)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 NDIS Activity, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications; or
(e) 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 NDIS Activity; or
(f) 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.
In s 8.3.1 of the Operational Guidelines the following passage appears in relation to considering when an impairment results in substantially reduced functional capacity:
“By itself, reliance on commonly used items will not result in a substantially reduced functional capacity to participate effectively or completely in an activity. Commonly used items include glasses, walking sticks, non-slip bathmats, bathroom grab rails, stair rails, age appropriate child safety locks, simple adapted kitchen utensils and dressing aids.
In considering the role played by assistive technology, home modifications and equipment, the NDIA will consider specific needs arising from the prospective participant's impairment, and whether those needs are met (or need to be met) through the use of specialist disability aids and/or equipment.
Such items would generally be specifically designed to assist in increasing the functional capacity and participation of people with disability and be formally prescribed by a medical practitioner, specialist clinician or allied health professional such as an occupational therapist, physiotherapist or speech therapist.
When considering whether a person requires assistance from others to participate or perform tasks associated with an activity, the NDIA will have regard to whether a person's need for assistance is consistent with normal expectations of a person of a similar age. For example, children under the age of 2 will not necessarily have a substantially reduced functional capacity because they need assistance to provide for self-care needs.
A person will be unable to participate effectively or completely in an activity if they cannot safely complete one or more of the tasks required to participate in an acceptable period. Undertaking a task more slowly or differently to others will not necessarily mean a person cannot participate effectively or completely in an activity.
When considering whether a fluctuating or episodic impairment results in substantially reduced functional capacity to undertake relevant activities, the NDIA will consider the impact on the person's ability to function in the periods between acute episodes.[22]
[22] Exhibit F, Operational Guidelines – Access, pp 95–96.
Allied health evidence
The Tribunal received a written report and heard oral evidence from an occupational therapist, Ms Clarke.[23] The NDIA requested she make a full functional assessment of Mr Goodwin and an assessment of his disability support needs. She conducted functional assessments at Mr Goodwin’s home on 4 June 2020 and 15 June 2020. In evidence Mr Goodwin thought he could recall reading her report which contained a few mistakes but, as far as he was concerned, nothing major. He did not express any concerns about the way in which the assessment was conducted and he thought that he got on well with her, as he did with other occupational therapists who had assisted him in previous years.
[23] Exhibit D
Ms Clarke is an experienced occupational therapist. She has completed numerous occupational therapy assessments through her career including assessments in aged care services, veterans’ affairs, the disability sector, medico legal and insurance matters. Her assessment of Mr Goodwin included a cognitive screening tool often used by occupational therapists and the scoring and profile results were included in the body of her report. In her evidence she said that Mr Goodwin performed well in all but two aspects of the screening test which includes cognition in areas such as orientation, attention, language, calculations and reasoning. However, in the section on attention he was asked to recall a series of numbers and could not recall more than three digits. Similarly, in the memory registration section when he was asked to recall words from a group, he took several attempts to recall those words.
Ms Clarke’s report included an assessment of Mr Goodwin’s active range of motion. She noted that he uses his left arm in activities of daily living with a range and strength which she described in evidence as quite good. However, the range and strength in the right arm by comparison is limited, particularly in the right shoulder. His right lower limb is stronger than his left, apparently due to the back injury. An assessment of grip strength demonstrated that Mr Goodwin’s strength was significantly reduced in his right hand.
Ms Clarke’s report included a detailed summary of the results of a functional independence measure assessment which she conducted. The breakdown of those results is included in the report. The total scoring suggests that Mr Goodwin was performing in the average to above average range. However, Ms Clarke emphasised that this measure applies only in the areas of personal care and mobility and is not applicable in other areas of activities of daily living.
Section 24(1)(c)(i) NDIS Act – Communication
The NDIA contended that Mr Goodwin does not have reduced functional capacity in communication. It was submitted that he is able to communicate effectively.
Section 8.3 of the Operational Guideline refers to communication as including: ‘being understood in spoken, written or sign language, understanding others and expressing needs and wants by gesture, speech or context appropriate to age’.[24]
[24] Exhibit F, Operational Guideline – Access, p 98.
Ms Clarke reported[25] that Mr Goodwin communicated appropriately during her assessment of him and he demonstrated an ability to express himself and understand the assessment process. She noted that he prefers to make reminder notes, for example prior to a consultation with a doctor. She commented that Mr Goodwin reports that he experiences dysarthria at least weekly, however she did not observe this during her assessment.
[25] Exhibit D
In a written statement[26] Mr Goodwin noted difficulties that he has with hearing as he cannot hear certain spoken letters and misinterprets some parts of conversation. In that way he sometimes finds it hard to hear and understand what people are saying.
[26] Exhibit C, attachment 8
In the supporting evidence form provided with Mr Goodwin’s request to access the NDIS, Dr Harvey does not suggest that Mr Goodwin needs assistance with communication.[27]
[27] Exhibit A, p 16
Having heard Mr Goodwin give evidence and noting the lack of medical or allied health evidence about adverse impacts on communication, the Tribunal is satisfied that Mr Goodwin does not have a substantially reduced functional capacity to communicate within the meaning of s 24(1)(c)(i) of the NDIS Act.
Section 24 (1)(c)(ii) – Social Interaction
The NDIA acknowledged that Mr Goodwin’s social life and involvement in the community, including his recreational activities were reduced following the accident in 2007, but nonetheless contended that Mr Goodwin does not have a substantially reduced functional capacity for social interaction.
Section 8.3 of the Operational Guideline refers to social interaction as including:
making and keeping friends (or playing with other children), interacting with the community, behaving within limits accepted by others, coping with feelings and emotions in a social context.[28]
[28] Exhibit F, Operational Guideline – Access, p 98
In the access request form Dr Harvey recorded that Mr Goodwin does not need assistance with social interaction.
In her report, Ms Clarke referred to Mr Goodwin’s self reporting about difficulties interacting with the wider community which led to social withdrawal following his injury and deterioration in mental health. Ms Clarke also noted that Mr Goodwin interacted appropriately with her during the assessment and he told her that he is generally able to communicate appropriately with his family and with doctors. Ms Clarke commented in her report that Mr Goodwin’s “physical disability and mental health are clearly impacting significantly on his ability to engage in society[29]” Ms Clarke considered that the combination of Mr Goodwin’s physical problems and mental health issues have a significant impact on his ability for social interaction.[30]
[29] Exhibit D, p 17
[30] Exhibit D, p 16
In the letter which Dr Harvey wrote on 14 August 2017 to Centrelink he reported that Mr Goodwin: – “has limited social contacts outside of his immediate family which include his brother. His wife normally transports him to appointments. Mr Goodwin has over the years become increasingly socially withdrawn and avoidant fearing an escalation of pain symptoms or that he could blackout and collapse.”
In a statement dated 14 August 2020 Mr Goodwin wrote: – “I do not go to the pub to socialise; I go there most of the time with my family members to eat. I get to the shops but I rarely go shopping, this to me is rehabilitation getting out of home. I hate shopping.”[31] In another statement Mr Goodwin summarised the social and sporting life which he enjoyed before his injury. He enjoyed participating in numerous sports and community activities[32]
[31] Exhibit C, attachment 6
[32] Exhibit C, attachment 8
Mr Goodwin told the Tribunal about his activities presently in the community. He said they are currently affected and limited by the Covid pandemic, but in more normal times his social activities comprise occasional dinners at a local hotel with his family and occasional visits to the RSL on Friday nights. In the past he also was involved with a car club but not so much presently. It appears from his evidence that he gets on well with other people while also not seeking out large crowds or groups of people particularly because of difficulties with his eyesight and hearing. Generally, he wears sunglasses whenever he is away from home as they help in reducing the impact of black circles which interfere with his vision.
Mr Goodwin’s social life is more limited than it was prior to his injury in 2007. In evidence he says that he has little contact now with friends and his friendship group is mainly within his family. Mrs Goodwin’s written statement mentions a couple of friends whom he has, one of whom sometimes takes him out, which tends to give him some happiness and sense of self-worth.[33]
[33] Exhibit E, p 52
The Tribunal accepts that Mr Goodwin’s capacity and willingness for social interaction has diminished in the years following the accident. Nonetheless the evidence suggests that he retains a functional capacity to interact socially. Mr Goodwin continues to keep a small number of friends. He is still able to interact within the community and he does so. There is no suggestion in the evidence that he does otherwise than behave within acceptable limits and cope appropriately within a social context. He still has occasional outings in the community which include going to the hotel for dinner, going out with his friend, taking his grandson to and from school and to the park. He values those activities, especially those which involve him taking responsibility for his grandson, which is a responsibility that he welcomes and indeed cherishes. It takes him away from his home, into the community where he has some interactions with others both during the week and on weekends. It is a positive progression from early last year when Mrs Goodwin described his average day as: “… Walking down to the letterbox, walking around the house on the footpath outside the gate and back again.” [34]
[34] Exhibit E, p 50
The Tribunal is satisfied on the evidence that Mr Goodwin’s impairments have an adverse impact on his capacity for social interaction. However, the Tribunal is not satisfied that individually or together they have resulted in a substantially reduced functional capacity for social interaction within the meaning of s 24(1)(c)(ii) of the NDIS Act.
Section 24(1)(c)(iii) – Learning
While the NDIA acknowledged the concerns which Mr Goodwin has about memory loss, it contended that there was no evidence of a substantially reduced functional capacity in relation to learning.
Section 8.3 of the Operational Guideline states that learning ‘includes understanding and remembering information, learning new things, practising and using new skills.’[35]
[35] Exhibit F, Operational Guideline – Access, p 98
Ms Clarke’s opinion expressed in her report[36] was that Mr Goodwin is likely to be able to learn new skills. His reduced recall would have some impact in that regard, however he demonstrates ability to use external memory cues in a positive and practical way.
[36] Exhibit D, p 17
In the access request form Dr Harvey wrote that Mr Goodwin needs assistance from other persons because of short-term memory difficulties arising out of anxiety, depression and pain disorder.
In his written statement Mr Goodwin referred to disorientation, memory loss, headaches, balance issues, dizziness and hearing loss making it hard for him to learn new things. [37] In giving evidence he also mentioned some problems that he has with short-term memory. It is more difficult for him to remember things that people have told him. It is easier for him if something is in writing and he can refer to it. Mr Goodwin told the Tribunal that he uses an iPad regularly. He can see the words better on an iPad than in smaller print forms. He watches YouTube.
[37] Exhibit C, attachment 8
The Tribunal accepts that Mr Goodwin has some difficulty with his memory. The difficulty can be overcome or at least addressed to a workable extent by making and referring to notes and similar commonly used memory aids. The Tribunal is not satisfied that there is satisfactory evidence of a substantially reduced functional capacity in learning as required by s 24(1)(c)(iii) of the NDIS Act
Section 24(1)(c)(iv) – Mobility
The NDIA acknowledged that Mr Goodwin’s mobility is affected by chronic pain and vision loss. Reliance was placed, however, on Ms Clarke’s report, to submit that a reduced functional capacity in mobility is not substantial.
Section 8.3 of the Operational Guideline provides a definition of mobility:
this means the ability of a person to move around the home (crawling/walking) to undertake ordinary activities of daily living, getting in and out of bed or a chair, leaving the home, moving about in the community and performing other tasks requiring the use of limbs.[38]
[38] Exhibit F, Operational Guideline – Access, p 98
In Ms Clarke’s report her comments about Mr Goodwin’s mobility include the following: -
“… Whilst Mr Goodwin is able to mobilise independently, he is slow and reports frequent falls due to his legs giving way. He has a maximum walking tolerance of approximately 50 metres – to his letterbox and back before he needs a rest. He was observed to walk on grass and on compacted gravel but stated he avoids anything rougher or undulating due to the risk of falls. He has a walking stick and four wheeled walker but does not use them unless he is in significant pain. He stated approximately once a month, he is unable to walk at all and scoots around seated on his four wheeled walker seat.”[39]
[39] Exhibit D, p 17
In evidence Mr Goodwin was in general agreement with Ms Clarke’s comments.
Moving around the home to undertake activities of daily living
Mr Goodwin has some difficulty negotiating stairs, for example in the family home he must take care negotiating steps inside and outside the home. He tends to exit the house by the back door with one step rather than the front door which has three steps. Inside the house there is one step to the toilet.
Getting in and out of bed or a chair

Mr Goodwin told the Tribunal about transfers. Standing up from his lounge room chair requires the use of his left arm and hand for support. The lounge room chairs are taller than the kitchen chair which he finds uncomfortable. In the kitchen he uses his left arm and hand for balance on the kitchen table to support him when he stands up.
Ms Clarke noted that Mr Goodwin was able to get on and off a queen size bed, 600mm high, independently. She recorded that he gets on and off chairs independently and he also told her that he is careful with transfers as he takes care to minimise pain in his back and shoulder.[40] Mr Goodwin told the Tribunal that getting out of bed is problematic in the mornings and he must be careful not to stand up to quickly otherwise he feels lightheaded.
[40] Exhibit D, p 11
Leaving the home; moving about in the community
In a written statement, Mr Goodwin pointed out that he accompanies his wife to the local shops once a week. Sometimes he waits in the car while his wife does the shopping. Sometimes he goes into the shops and walks about although he is restricted because of pain when he is moving around. Pushing a supermarket trolley causes pain. He can carry some small light things. [41]
[41] Exhibit C, attachment 7
Ms Clarke’s report noted that Mr Goodwin drives a car. He prefers to drive locally rather than drive on longer trips.
Falls
In evidence Mr Goodwin expressed concerns about falling when he is away from home. He said he has had numerous near falls and occasional complete falls. His strategy to prevent himself from completely falling over generally involves squatting or leaning on something if it is nearby. He said that he is prone to falls which can occur, for example, if his left leg gives way and he tries to maintain balance using his right leg. In that situation he might lose control for a few seconds. He has had problems walking because of his right foot “dropping”. He wears a type of footwear which reduces the risk of falling. Until recently, he has not received medical treatment for injuries caused by falling. He said that he has sustained bruising on his face, possibly about once a year, caused by falling onto the ground
In his written statement[42] Mr Goodwin mentioned a hard fall which occurred in July 2020 which resulted in a broken tooth that required dental treatment. While his right leg has worsened, he stated that his left leg is the worst and is the cause of his falls and near falls.
[42] Exhibit C, attachment 6
Occasionally Mr Goodwin accompanies his grandson to a bike park. Generally, he drives to the park which is a distance of 200 to 300 metres. He has also ridden a pushbike to the park and he has found this easier than walking
Ms Clarke’s report summarised comments that Mr Goodwin made to her which were to the effect that he has a heavy fall about once a month and a near fall daily, his “right knee goes down and then the whole of his left leg”.[43] He reported to Ms Clarke that he can get himself up again generally by kneeling on one leg and pulling up on furniture. In evidence Ms Clarke acknowledged this falls history as very concerning.
[43] Exhibit D, p 7
Walking
In his written statement Mr Goodwin described an average day as sitting at home in the recliner chair and walking to the letterbox as many times as possible for exercise.[44]
[44] Exhibit C, attachment 7
Mr Goodwin told the Tribunal that he can walk short distances without physical assistance. He uses a walker depending on whether he is feeling pain in the back and, as he described it, burning and numbness. As best he can he tries to walk around the house without assistance. He finds that he is becoming more reliant for stability and support by using the walker. He is starting to use a walking stick more often than he would like to.
Performing other tasks requiring the use of limbs
Ms Clarke concluded that Mr Goodwin’s shoulder and back condition together with chronic pain syndrome “are clearly impacting his ability to mobilise.”[45]
[45] Exhibit D, p 17
The evidence indicates that Mr Goodwin has a reduced functional capacity in some aspects of mobility. The risk of falling is an area of considerable concern. However, the question for the Tribunal is whether there is a reduction in functional capacity which is substantial. Each case will depend on its own circumstances and each person’s circumstances and characteristics are unique.
The evidence does not support a conclusion that the deeming provision of NDIS Rule 5.8 applies in relation to Mr Goodwin’s mobility. In considering s 8.3.1 of the Operational Guideline, the evidence suggests that Mr Goodwin may need to rely upon assistance to a limited degree, or receive some benefit by using items which the Guideline describes as commonly used items, such as walking sticks, bathroom grab rails, stair rails. This contrasts with the specialist disability aids, equipment and other forms of assistance to which the Guideline refers.
The Tribunal finds that Mr Goodwin’s impairments have resulted in a reduced walking capacity and a reduced capacity for the aspects of mobility discussed above, however they have not substantially reduced his functional capacity in mobility within the meaning of s 24(1)(c)(iv) of the NDIS Act.
Section 24(1)(c)(v) – Self Care
The NDIA submitted that Mr Goodwin does not satisfy this criterion.
Section 8.3 of the Operational Guideline refers to self-care as meaning:
activities related to personal care, hygiene, grooming and feeding oneself, including showering, bathing, dressing, eating, toileting, grooming, caring for own health care needs.[46]
[46] Exhibit F, Operational Guideline – Access, p 98
Showering
Mr Goodwin wrote that he tries to avoid showering as much as he can as he says :- “it is the hardest thing I do all day.”[47] Mr Goodwin’s evidence is that he is mostly able to manage showering. He uses a scrubbing brush to wash his feet. Drying the lower legs is beyond his reach.
[47] Exhibit C, attachment 7
Dressing
Mr Goodwin’s evidence is that he can manage getting dressed. Some improvisation occurs, such as using slip on clothing as much as possible.
Ms Clarke wrote in her report that Mr Goodwin completes showering, dressing and grooming without hands-on assistance for most of the week. She added: –
“however, he is unable to wash or dry his lower legs and perineum due to the pain in his right shoulder, back and legs. He stated he lets the water run down these parts and lets them air dry after the shower. He stated he can only tolerate 10 minutes in the shower due to the pain associated whilst standing for this period.”[48]
[48] Exhibit D, p 17
Mr Goodwin told the Tribunal that he agreed with those comments and he added that light-headedness can also cause him to spend less time in the shower
Ms Clarke also noted that Mr Goodwin could be assessed for any benefits that might accrue from installation of grab rails in the shower and toilet and additional long handled aids for drying.
Eating
Ms Clarke’s report noted that Mr Goodwin can hold a fork and spoon in his left hand. He has difficulty holding a knife in his right hand apparently because of reduced strength in the left arm and pain in the left shoulder. He told Ms Clarke that he chooses food that does not require cutting so that he can maintain independence.[49]
[49] Exhibit D, p 9
Years ago Mr Goodwin enjoyed cooking. Now he finds it much harder and cooks for himself only occasionally. He prepares a light meal for himself if necessary. He can use a microwave and a kettle. In addition, he is conscious both of his finances and his weight and restricts himself to one main meal per day which is generally in the evening and not cooked by him. He tends not to assist with meal preparation because of difficulties that he has concentrating. Likewise, on the occasions when he does cook he loses concentration and, as he put it, he “tends to burn stuff”. He told the Tribunal that he can and does assist with stacking the dishes, washing them and putting them away in drawers and cupboards although he prefers not to handle anything made of glass.
Ms Clarke noted that Mr Goodwin might benefit from an assessment for the potential suitability of a “perching stool” in the kitchen to enable him to sit at the kitchen table or bench and assist with preparation of meals.[50]
[50] Exhibit D, p 19
Toileting
According to Ms Clarke’s assessment, Mr Goodwin is able to adjust clothing for toileting, maintain perineal hygiene using his left hand and adjust clothing left handed.[51] She reported that Mr Goodwin demonstrated ability to get on and off the toilet while holding the toilet paper holder with his left arm to steady him. Her report also included comments about Mr Goodwin’s self reporting of issues with sphincter control.
[51] Exhibit D, p 11
Health care
Mr Goodwin told the Tribunal that he takes responsibility for his medical appointments. Currently he is not taking any medication.
Ms Clarke concluded in her report that Mr Goodwin would benefit from further assessment by an occupational therapist to assess the usefulness of additional aids or equipment to maximise independence in self-care. That may lead to an improvement in his capacity for self-care which is currently impacted by the shoulder and back injuries [52]. The types of potential aids and equipment, namely grab rails in the bathroom, long handled aids for drying, a perching stool in the kitchen, a suitable high back chair to sit on outside, all come within the concept of commonly used items rather than the specialist disability aids and equipment which the Operational Guidelines describe.
[52] Exhibit D, p 18
The Tribunal is not satisfied that Mr Goodwin’s impairments have resulted in a substantially reduced functional capacity in self-care within the meaning of s 24(1)(c)(iv) of the NDIS Act.
Section 24(1)(c)(vi) – Self-management
The NDIA submitted that Mr Goodwin does not meet this criterion.
The Operational Guideline refers to self-management as meaning:
the cognitive capacity to organise one’s life, to plan and make decisions, and to take responsibility for oneself, including completing daily tasks, making decisions, problem-solving and managing finances.[53]
[53] Exhibit F, Operational Guideline – Access, p 98
Ms Clarke reported that Mr Goodwin demonstrated an ability to solve routine problems as part of the assessment that she conducted. However, he experiences more difficulty trying to solve complex problems including management of finances because of difficulties that he has with memory recall and concentration. He described difficulties to her that he has in making decisions that have an impact on his family. He pointed out that his wife manages all the household decisions and planning of activities. Ms Clarke reported that he can make his own appointments and manage his medication.[54]
[54] Exhibit D, p18
Ms Clarke told the Tribunal that her impression from the cognition assessment was that the main difficulty which Mr Goodwin would encounter is in the management of finances. Ms Clarke’s assessment was that he has difficulty remembering numbers and applying them at appropriate times during electronic banking processes. Those difficulties would be compounded if he was trying to pay a series of bills in one session.
Mr Goodwin told the Tribunal that that he takes responsibility for himself and for his decision-making. When he is depressed, he describes himself as being grumpy for a few days when the physical pain gets him down. He sees a link between the extent of physical pain and his mental health condition. He described his form of anxiety over the last couple of years as thinking that his heart is about to stop, and that he is about to cease breathing.
Mr Goodwin reiterated that he used to enjoy managing the family finances and keeping track of them. However, his wife took over this task about two years ago.
The key consideration in the interpretation of this Operational Guideline is a person’s ‘cognitive capacity’, which relates to making decisions, taking responsibility and solving problems.
The Tribunal is not satisfied that Mr Goodwin’s impairments have resulted in a significantly reduced functional capacity in self-management.
Section 24 (1)(c) Summary
The Tribunal has considered the factors set out in the NDIS Rule 5.8. and is satisfied that Mr Goodwin does not fall within any of the sub paragraphs demonstrating substantially reduced functional capacity. Mr Goodwin’s circumstances do not indicate that he has an inability to participate effectively or completely in the relevant activity without assistive technology, equipment or home modifications. The evidence does not support a conclusion that he usually requires assistance from other people to participate in the relevant activity, although he may occasionally require physical assistance or assistance from other people. He does participate in relevant activities and perform tasks or actions without assistive technology, equipment, home modifications or assistance from others. In Kilgallin and National Disability Insurance Agency[55] the Tribunal pointed out that: – “a failure to fall within the provisions of Rule 5.8 of the Becoming a Participant Rules 2016 does not define all the circumstances in which a person might have a substantially reduced functional or psychosocial lack of capacity: per Mortimer J in Mulligan v NDIA [2015] FCA 544 at [77]. But it certainly guides the Tribunal to the kinds of factors which need to be considered in deciding whether a person has reduced capacity.”[56]
[55] 2017 AATA 186
[56] Ibid, at [26]
Section 24(1)(c) of the NDIS Act specifies that a person’s impairment must result in a substantially reduced functional capacity, or psychosocial functioning in undertaking one or more of the specified activities. In this case, in reference to each of the legislative criteria set out in s 24(1)(c) and in reference to each of the deeming provisions in Rule 5.8 the Tribunal is satisfied that Mr Goodwin does not meet the criteria in any of them. Accordingly, the Tribunal concludes that Mr Goodwin does not meet the requirements under s 24(1)(c) of the Act.
Section 24(1)(d) – Social or Economic Participation
Section 8.4 of the Operational Guideline provides in part that:
This disability requirement does not require a person's impairment to reduce, substantially reduce or affect to any degree their social or economic participation. Rather, the impairment merely needs to affect the person's social or economic participation. Therefore, people who retain substantial capacity for social or economic participation may still satisfy this disability requirement (see Mulligan and NDIA [2015] AATA 974 at [140]).[57]
[57] Exhibit F, Operational Guideline – Access, p 101
The Tribunal finds that Mr Goodwin meets the requirements of s 24(1)(d) of the NDIS Act as his impairments affect his capacity for social and economic participation.
Section 24(1)(e) - the person is likely to require support under the National Disability Insurance Scheme for the person's lifetime
Mr Goodwin does not meet the requirements of s 24(1)(c) of the NDIS Act to become a participant in the NDIS. Accordingly, it is not necessary for the Tribunal to decide whether he meets the criteria in s 24(1)(e) of the NDIS Act
DISABILITY REQUIREMNTS - CONCLUSION
Mr Goodwin meets the age requirements under s 22 and the residence requirements under s 23 of the NDIS Act.
Mr Goodwin meets the requirements under s24(1)(a), (b), and (d) of the NDIS Act.
Mr Goodwin does not satisfy the requirements under s 24(1)(c) the NDIS Act. He must satisfy all the requirements in s 24(1) in order to meet the disability requirements. Accordingly he does not fulfil the disability access criteria to become a participant in the NDIS.
EARLY INTERVENTION REQUIREMENTS
Section 25 of the NDIS act sets out the requirements for access to the NDIS under the early intervention criteria. Those provisions have been set out earlier.
The NDIA contended that Mr Goodwin’s conditions were long-standing, and they were investigated and treated in the process of his workers compensation claim in the years that more closely followed his accident at work.
Section 2.5(b) of the NDIS Rules includes the following passage about the rationale for the early intervention requirements as an alternative to accessing the scheme through the disability requirements: – “… A person can access the NDIS through the early intervention requirements without having substantially reduced functional capacity. Instead, the early intervention requirements consider the likely trajectory and impact of a person’s impairment over time and the potential benefits of early intervention on the impact of the impairment on the person’s functional capacity.”
As already discussed and determined, Mr Goodwin’s impairments are permanent and therefore s 25(1)(a) of the NDIS Act is satisfied.
Section 9 of the Operational Guidelines provides guidance about the purpose and potential benefits of early intervention. It states: – “Early intervention support is available to both children and adults who meet the early intervention requirements. The intention of early intervention is to alleviate the impact of a person’s impairment upon their functional capacity by providing support at the earliest possible stage. Early intervention support is also intended to benefit a person by reducing their future needs for supports.” [58]
Mr Goodwin’s work accident occurred in 2007. Fourteen years have passed with multiple medical interventions which take this case well away from the expectations of possible benefits through early intervention. Provision of support for Mr Goodwin now and into the future does not come within the concept of early intervention support being provided “at the earliest possible stage.”
The Tribunal is not satisfied that the provision of early intervention supports which is contemplated by s 25(1)(b) & (c) of the NDIS Act is applicable to Mr Goodwin’s long-standing conditions.
Section 25(3) of the NDIS Act applies even if Mr Goodwin satisfies s 25(1) and (2) in that he may not meet the early intervention requirements because the supports are not most appropriately funded or provided through the NDIS and are more appropriately funded or provided through other systems or support services.
Although it is not now necessary to decide the point, it is quite possible that the support for Mr Goodwin’s conditions would not be most appropriately funded or provided through the NDIS as required by s 25(3) of the NDIS act given that supports for his physical impairments and mental health issues may be more appropriately delivered through the health system.
In its submissions prior to and during the hearing, the NDIA did not seek to detract from the significance of the injury which Mr Goodwin sustained in the workplace accident and the various impacts in the aftermath of the accident. While the NDIA agreed that Mr Goodwin no longer attends to daily activities in the way he did prior to the accident, it acknowledged correctly that this is not the relevant test for access to the NDIS.
DECISION
The reviewable decision is affirmed.

130.    I certify that the preceding one hundred and twenty nine [129] paragraphs are a true copy of the reasons for the decision herein of Member Thompson.

..................[Sgnd]..............................
Administrative Assistant Legal
Dated    21 May 2021
Dates of hearing:  1 February 2021
Applicant’s Representative:  Self-represented
Respondent’s Representative:                   Domenic Lipari, NDIA

[2021] AATA 1438

21 May 2021

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