Goodwin and National Disability Insurance Agency (NDIS)
[2025] ARTA 2
•3 January 2025
Goodwin and National Disability Insurance Agency (NDIS) [2025] ARTA 2 (3 January 2025)
Applicant/s: David Goodwin
Respondent: National Disability Insurance Agency
Tribunal Number: 2022/8153
Tribunal:Deputy President K Dordevic
Place:Sydney
Date:3 January 2025
Decision:The Tribunal affirms the decision under review pursuant to subsection 105(a) of the Administrative Review Tribunal Act 2024 (Cth).
...........................[SGD].............................................
Deputy President K Dordevic
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – access to scheme – reviewable decision of Chief Executive Officer – becoming a participant – age and residence requirements met – permanence – substantially reduced functional capacity – weight attributable to medical evidence – disability and early intervention requirements not met – decision affirmed
Legislation
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)Social Security Act 1991 (Cth)
Cases
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
National Disability Insurance Agency v Foster [2023] FCAFC 11
Mulligan v National Disability Insurance Agency [2015] FCA 544
National Disability Insurance Agency v Davis [2022] FCA 1002
Madelaine and National Disability Insurance Agency [2020] AATA 4025
Timofticiuc and National Disability Insurance Agency [2021] AATA 3015Rooney and National Disability Insurance Agency [2021] AATA 3523
Secondary Materials
National Disability Insurance Scheme (Becoming a Participant) Rules 2016
Statement of Reasons
BACKGROUND
This issue requiring determination by this Tribunal is whether Mr Goodwin may become a participant in the National Disability Insurance Scheme (the NDIS or the scheme). To become a participant, Mr Goodwin must meet the access criteria as prescribed in section 21 of the National Disability Insurance Scheme Act 2013 (the Act).
Mr Goodwin sought access to the scheme on 27 July 2022. On 8 August 2022 a delegate of the Chief Executive Officer (the CEO) of the NDIS determined that Mr Goodwin did not meet the access criteria.[1] Mr Goodwin lodged a timely review to that decision, which was confirmed on 31 August 2022 by a different delegate of the CEO.
[1] T1A, folios 10 to 14.
On 4 October 2022 Mr Goodwin made an application to the NDIS Division of the Administrative Appeals Tribunal (the AAT) for an independent review of the decision. From 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). This decision and statement of reasons is made by the Tribunal.[2]
[2] Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.
The Tribunal held a video hearing by Microsoft Teams on 6 and 7 November 2024. Mr Goodwin was represented by Mr Cameron Mason, an Advocate from the Rights Information and Advocacy Centre. The Respondent, the National Disability Insurance Agency (the Respondent or the NDIA) was represented by counsel, Mr Tim Maybury.
The Tribunal accepted into evidence various documents contained in the joint hearing tender bundle. In addition, the Tribunal accepted into evidence a letter of support from Dr Rajini Kajarajan, general practitioner of St George Medical Group dated 3 October 2024, noting that the Respondent raised no objection. The Respondent did seek to enter into evidence information about support services available to Mr Goodwin on the second day of hearing, however after concerns were raised about Mr Goodwin’s ability to consider these documents the matter was not pressed.
The Tribunal also had the benefit of oral testimony provided under affirmation from Mr Goodwin, his carer Ms Colleen Millard and Mr Elliot Mate, occupational therapist.
LEGISLATIVE FRAMEWORK
To be granted access to the NDIS and so become a participant of the scheme, Mr Goodwin must satisfy the access criteria set down in section 21 of the Act which provides:
(1) A person meets the access criteria if:
(a) the CEO is satisfied that the person meets the age requirements (see section 22); and
(b) the CEO is satisfied that, at the time of considering the request, the person meets the residence requirements (see section 23); and
(c) the CEO is satisfied that, at the time of considering the request:
(i) the person meets the disability requirements (see section 24); or
(ii) the person meets the early intervention requirements (see section 25).
It is not in dispute, and I so find, that at the time of his application Mr Goodwin met the age and resident requirements set down in sections 22 and 23 of the Act.
Therefore, I must determine whether Mr Goodwin meets the access criteria as set down in section 24 (the disability requirements) or section 25 (the early intervention requirements).
Section 24 of the Act states:
(1)A person meets the disability requirements if:
(a) the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable; and
(b) the impairment or impairments are, or are likely to be, permanent; and
(c) the impairment or impairments result in substantially reduced functional capacity to undertake one or more of the following activities:
(i) communication;
(ii) social interaction;
(iii) learning;
(iv) mobility;
(v) self care;
(vi) self management; and
(d) the impairment or impairments affect the person’s capacity for social or economic participation; and
(e) the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime.
(2)For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the variation.
If Mr Goodwin does not satisfy the disability requirements, the Tribunal must then consider whether he meets the early intervention requirements set down in section 25 of the Act:
(1) A person meets the early intervention requirementsif:
(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 a 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.
…
Subsection 209(1) of the Act permits the Minister to make rules prescribing certain matters. Section 27 of the Act provides that NDIS rules may make provision for determining any matter for the purposes of sections 25 and 26 of the Act, including methods or criteria, or matters that may, must or must not be taken into account, or circumstances in which a matter can be taken to exist or not exist.
The rules relevant to this application are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (the Access Rules), which form part of the legislation. Relevant to the issue of permanency of an impairment set down at paragraph 24(1)(b) of the Act, the Access Rules relevantly state:
5.4 An impairment is, or is likely to be, permanent (see paragraph 5.1(b)) only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.
5.5 An impairment may be permanent notwithstanding that the severity of its impact on the functional capacity of the person may fluctuate or there are prospects that the severity of the impact of the impairment on the person's functional capacity, including their psychosocial functioning, may improve.
5.6 An impairment may require medical treatment and review before a determination can be made about whether the impairment is permanent or likely to be permanent. The impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated (even though the impairment may continue to be treated and reviewed after this has been demonstrated).
5.7 If an impairment is of a degenerative nature, the impairment is, or is likely to be, permanent if medical or other treatment would not, or would be unlikely to, improve the condition.
As to the issue of substantially reduced functional capacity as set down in paragraph 24(1)(c) of the Act, the Access Rules state:
5.8 An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities—communication, social interaction, learning, mobility, self-care, self-management (see paragraph 5.1(c))—if its result is that:
(a) the person is unable to participate effectively or completely in the activity, or to perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications; or
(b) the person usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in the activity or to perform tasks or actions required to undertake or participate in the activity; or
(c) the person is unable to participate in the activity or to perform tasks or actions required to undertake or participate in the activity, even with assistive technology, equipment, home modifications or assistance from another person.
The NDIS Operational Guidelines are also relevant to making decisions in accordance with the Act. Operational Guidelines represent government policy. The case law is well established; to the extent that policies are consistent with the legislation, decision-makers should have regard to them unless there are cogent reasons not to.[3] In assessing Mr Goodwin’s claim the relevant operational guideline is Applying to the NDIS[4] (the Access Guideline).
[3] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at [635].
[4] Dated 14 October 2024.
The case law developed in this jurisdiction is also of assistance. In the matter of Mulligan[5] Mortimer J (as she then was) stated that the legislative regime:
contemplates a relatively high degree of precision by decision-makers (see, for example, the six activities in s 24(1)(c)) in assessing what a person can or cannot do. The assessment to be undertaken is avowedly functional, and multi-faceted.
…No qualitative judgements 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…[6]
[5] Mulligan v National Disability Insurance Agency [2015] FCA 544 (Mulligan).
[6] Mulligan, at [55]-[56].
This approach was endorsed by the Full Court in Foster.[7]
CONSIDERATION
Disability requirements
[7] National Disability Insurance Agency v Foster [2023] FCAFC 11 (Foster) at [64].
Does Mr Goodwin have a disability attributable to an impairment?
The Respondent does not dispute that Mr Goodwin suffers from physical impairments as a result of his chronic pain and osteoarthritis.[8] These findings are supported by the radiology and medical reports in evidence from as early as October 2005.
[8] Most recently conceded at page 3 in the Respondent’s Statement of Facts, Issues and Contentions (RSFIC) dated 7 October 2024.
Mr Goodwin’s other medical conditions include ischaemic heart disease, diabetes, chronic anxiety and depression.[9] It is understood that Mr Goodwin is not relying on these conditions for the purposes of paragraph 24(1)(a) of the Act.[10]
[9] T2, folio 42, T11, folio 67.
[10] C3, folio 377.
Specialist review undertaken by Mr Nathan Donovan, orthopaedic surgeon, confirmed the diagnosis of diffuse idiopathic skeletal hyperostosis and spine bridging osteophytes of the cervical spine and lumbar spondylosis with multilevel degenerative change, canal stenosis and foraminal stenosis. Mr Donovan also confirmed bilateral hip, ankle, subtalar, midfoot and first MTRP joint arthritis in addition to right knee arthritis with lateral compartment full thickness cartilage loss and clawing of lesser toes.[11]
[11] C6, folio 399.
Mr Donovan stated that Mr Goodwin’s physical impairments result in grossly restricted movement, particularly of the cervical spine with stiff residual movement. Mr Goodwin is unable to stand for prolonged periods due to pain, and is unable to bend down, twist to reach or look behind himself. Mr Donovan also noted that Mr Goodwin has marked reduction in hip flexion, adduction and rotation, which presents difficulty in dressing including his shoes and socks.[12]
[12] C6, folio 400.
Mr Goodwin has long-standing chronic lower back pain due to disc prolapse and spinal stenosis. He also suffers from chronic bilateral knee and ankle pain due to osteoarthritis. I am satisfied that Mr Goodwin has a disability that is attributable to a physical impairment, so satisfying paragraph 24(1)(a) of the Act.
Are Mr Goodwin’s impairments permanent?
As Mortimer J in Davis explained, it is the impairment, and not the medical condition, that must be permanent:
The critical point is that “permanent” is used as an adjective in s 24(1) to the noun “impairment” (or in the plural, “impairments”). The focus of the text, consistently with the purposes of the scheme, is on whether the impairments experienced by individuals (rather than the cause of the impairments or the specific diagnoses which might be applied to a medical condition) have an enduring quality so as to fit within the conceptual emphasis of the scheme.[13]
[13] National Disability Insurance Agency v Davis [2022] FCA 1002 (Davis), [86].
Therefore, the Tribunal must be satisfied that there are no treatments that may remedy the impairment. Mortimer J went on to explain that ‘remedy’ means something approaching a removal or cure of the impairment.[14]
[14] Davis, [136]-[137].
I have already set down the relevant Access Rules at paragraph 13.
The Respondent’s position up until hearing was that Mr Goodwin’s impairments are not permanent on the basis that there was insufficient evidence to establish this limb of the disability requirements. In reaching this conclusion, the Respondent relied on Mr Donovan’s opinion that Mr Goodwin may benefit from further physiotherapy, inter-articular or PRP injections, knee replacement or weight loss and that there was no evidence of a neurological assessment following Mr Goodwin’s referral to St Vincent’s Neurological Clinic in October 2022.[15]
[15] RSFIC, pages 4 to 5.
However, at hearing the Respondent abandoned this argument and accepted that Mr Goodwin’s impairments are permanent. In my view, this was an appropriate concession given Mr Donovan’s concluding remarks which suggest that though there may be some symptomatic improvement following surgical, pharmaceutical or allied health intervention Mr Goodwin would continue to experience limitations because of his restricted mobility and pain which would still necessitate ongoing support:
Mr Goodwin suffers from multifocal pathology associated with degenerative change,
restriction in motion and pain which grossly restrict his freedom of movement in daily
activities. Irrespective of interventions, Mr Goodwin will continue to have limitations for the foreseeable future.There is not a curative intervention for Mr Goodwin. He has multifocal problems, of which some may be improved symptomatically with surgery or intervention, however, on the whole, Mr Goodwin will continue with impairments and require ongoing support with housing modifications and aids. In future he may require a carer given the gross limitations he has and his age.[16]
[16] C6, 403 to 404
After consideration of the medical evidence, and placing particular reliance on Mr Donovan’s conclusion, I am satisfied that the impairments arising from Mr Goodwin’s diagnoses of chronic pain and osteoarthritis are permanent within the meaning set down in paragraph 24(1)(b) of the Act.
Do Mr Goodwin’s impairments result in substantially reduced functional capacity?
The Tribunal must next determine whether Mr Goodwin’s impairments result in substantially reduced functional capacity in at least one of the six domains of communication, learning, self-care, self-management, social interaction and mobility.
As the Tribunal understands it, Mr Goodwin submits that he has substantially reduced functional capacity in the domains of mobility, self-care and social interaction.
The Respondent accepts that Mr Goodwin has some reduced functional capacities in one or more of the activities listed in subsection 24(1)(c). However, the Respondent contends that Mr Goodwin does not have substantially reduced functional capacity in those activities.
Access Rule 5.8 (already been set down at paragraph 14 above) provides guidance as to when an impairment results in substantially reduced functional capacity. The Operational Guideline in respect to whether an impairment substantially reduces a person’s functional capacity relevantly states:
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.
The test in subsection 24(1)(c) is one of objective functional capacity and requires the Tribunal to consider both what the person can and cannot do.[17] A person will not necessarily be found to have a substantially reduced functional capacity simply because one task cannot be completed without assistive technology. Instead, the degree to which the person can participate in the activity must be assessed.[18] The test is one of objectivity and not a subjective comparison.[19] The Tribunal must also distinguish between what the person does not do, as opposed to what they cannot do.[20]
[17] Mulligan at [55].
[18] Davis, at [88].
[19] Madelaine and National Disability Insurance Agency [2020] AATA 4025 (Madelaine) at [109].
[20] Timofticiuc and National Disability Insurance Agency [2021] AATA 3015 at [96].
In Mulligan[21] Mortimer J explained that Access Rule 5.8 defines when a person must be found to have a substantially reduced functional capacity and is a ‘deeming provision’[22] of this Rule; that is, that Rule 5.8 operates by reference to each of the activities set down in each of the six subparagraphs 24(1)(c)(i) to (vi). The decision-maker must make a factual assessment of each of the outcomes or effects of the person’s impairments in each of the six activities. However, her Honour made clear that this is the first part of the statutory task required by paragraph 24(1)(c) of the Act. The decision maker must then proceed to consider whether, regardless of Rule 5.8, a person’s functional capacity is substantially reduced in any of the six domains of activity.[23]
[21] Mulligan at [66]-[67].
[22] Mulligan at [77].
[23] Ibid.
MR GOODWIN’S EVIDENCE
Mr Goodwin’s evidence is summarised as follows. He has been in receipt of disability support pension since 1995. Since that time he has gone backwards; his conditions are getting progressively worse. He initially had three back discs out, now there are five. These are putting pressure on his spine and his doctor has told him it will only get worse and this is stressing him out.
Mr Goodwin reported a history of falls at his home. At the recommendation of Ms Gemma Smith, occupational therapist, he organised a fall detector. He thinks he most recently used it in December 2023 or January 2024 when he experienced chest pain. He has never used the fall detector for a fall.
Mr Goodwin explained that he used to be able to bend down and pick things up but he can no longer do so. He has about a dozen ‘reachers’ (sticks that assist him in picking up items, particularly from low heights) around his unit to allow him to pick up things. He has a tendency to break them when he gets frustrated, so has bought a few of them for between $2.50 to $10 each. He uses a walking stick when mobilising around the home. He prefers not to use a walking aid when he goes shopping but does carry a portable one with him. Usually he uses a shopping trolley to assist him mobilising at the shops. He must stop at short intervals when at the shops given his pain. He will also sit regularly and Ms Millard will continue shopping without him. He described it as “break, stop, break, stop” and it will usually take about four hours to complete his shopping, including travel and the time it takes him to get in and out of the car.
Mr Goodwin reported that whilst he can dress independently, it can take him up to 45 minutes just to dress. He keeps his clothing simple; he wears t-shirts and tracksuit pants. Mr Goodwin reported that he uses a shoehorn not just to put on his shoes, but to also assist in dressing, including his underwear and pants. He also uses a sock slide. The shoehorn and sock slide were given to him, so he could not comment on their cost.
Mr Goodwin reported that he can manage most aspects of grooming, including dying his beard in the Richmond Football Club colours and shaving his head with a hand razor. After cutting his toe he now visits a podiatrist every 10 weeks.
Mr Goodwin confirmed that he has difficulties in cleaning his perineal and perianal areas. After toileting he usually uses an old t-shirt to ensure the areas are clean instead of toilet paper. On other occasions he will have to shower after toileting, especially in the morning. Mr Goodwin confirmed that shower and toilet rails were installed in his home, as well as a shower nozzle. He uses a foot scrubber (purchased on eBay for $7) and long handled sponge when showering. He used a hair dryer to dry his feet after a shower.
He can only go shopping once a fortnight, and that is only with the assistance of Ms Millard, his carer. He enjoys these days as he has some ‘human interaction’, including talking to the staff at the chemist and at the registers. He may see some of Ms Millard’s acquaintances at the shops and stop to have a brief conversation with them. Mr Goodwin went on to explain that his loss of functioning has had a significant impact on his mental health. His pain symptoms have had a significant impact on his relationships. He now has only three people that he speaks to on a regular basis, including Ms Millard and his sister. Otherwise he does not really like people. He has some acquaintances; someone he might see on the street and have a ‘little chat’ with. He often feels despondent and angry, particularly when in pain.
After these trips he is “out of action”; it used to only be for about a day, now it can take him about three or four days to recover. He has extreme difficulty in using his own car because he cannot bend to enter and exit the vehicle. He tends to limit his driving as going straight to and from the doctor.
Mr Goodwin reported that completing household tasks is time consuming and exacerbates his pain symptoms. He reported that each month he flips his mattress. Most recently it took him an hour and a half to do this because he was in ‘agony’. It can take him 25 minutes just to put a pillowcase on. He can use his washing machine without assistance and can hang his washing on the clothes line on good days and can use clothes airers on other days.
Mr Goodwin explained that he did have a cleaner, but this stopped upon him reaching 65 years of age. He has not looked into home support packages now that he is over 65 years of age. He understands that there is a budget in such programs and once the money has run out no more assistance is provided. He also has heard that he will need to meet some of these costs and he simply cannot afford to do that.
Later in the hearing he described himself as a ‘hoarder’. Since the cleaner ceased his floors have not been vacuumed. He explained that he is ‘not worried about it’.
Mr Goodwin explained that he lives with his two cats. He described caring for them, including feeding them as ‘probably the easiest part of my life’. He can clear his cats’ litter tray without assistance.
His pain also significantly impacts on his functioning. Sometimes he calls Ms Millard at about 8pm and he is in so much pain she talks to him until 1am to take his mind off it. He rarely leaves his home. Even though his doctor has recommended that he walk every day, he does not as he has no-one to assist him should he fall over. There have been occasions where he has remained on the ground for up to an hour after a fall before someone comes to his aid.
He cannot engage in activities that used to give him pleasure such as gardening and going to the football. Even though he would like to catch up with his football friends he has to be “in the right place” to go. It stresses him out that he cannot take part in everyday events that he used to. He has maintained his interest in painting Warhammer figurines, but in the last 12 months or so was not motivated to undertake the activity.
MS MILLARD’S EVIDENCE
Ms Millard confirmed that she is in receipt of carer payment in respect of the care she provides Mr Goodwin. This involves them speaking on the telephone every evening at 7.30pm and her transporting him to the shops once a fortnight. She drives slowly and takes bends carefully to ensure she does not cause him additional back pain. When they return from the shops she will carry in the shopping from the car. Mr Goodwin puts the shopping away himself, as he is particular about where things should go. She used to clean his house, but it became too much for her.
When the legal test for carer payment[24] was raised at hearing, Ms Millard amended her evidence regarding the care she provided, stating that she and Mr Goodwin go out for lunch ‘quite often’ but not on the day they go shopping. They occasionally attend the football together, but only if her team is also playing. She also transports him to appointments. She does assist him in making his bed. She is also trying to assist Mr Goodwin to ‘declutter’ but he is resistant to such assistance. There are other visits she makes to his house which she characterised as ‘hanging out’ but may include wiping down kitchen benches or taking out the bins or tidying the coffee table.
[24] Section 198 of the Social Security Act 1991 states that, amongst other criteria, to be qualified for carer payment the person must provide “constant care”. The Social Security Guide relevantly states a 1.1.C.310 that a carer provides constant care if they personally provide care on a daily basis for a significant period and are expected to provide at least the equivalent of a normal working day of personal care on an active, supervisory or monitoring basis.
Ms Millard confirmed that she does not assist Mr Goodwin with communication, self-care or meal preparation. However, she does assist him in writing out a menu plan before they go food shopping. She reported that Mr Goodwin uses Centrepay and so does not require assistance in paying bills, but then went on to say that there is the ‘occasional bill’ which she will pay for him at the post office. Mr Goodwin looks after his cats without her assistance.
Ms Millard reported that Mr Goodwin did have friends visit him, but these visits eventually stopped. She understands that they stopped visiting as Mr Goodwin would ask them to assist him in garden maintenance.
FUNCTIONAL CAPACITY ASSESSMENTS
In evidence is what appears to be part of a report prepared by Ms Nicolette Knighton, occupational therapist dated 29 October 2019.[25] Given the full report is not in evidence, the basis on which the findings were made and the period of time that has elapsed I gave it little weight.
[25] T8, folios 56 to 58.
In a report dated 5 July 2022 Ms Gemma Smith, occupational therapist, undertook a functional assessment.[26] Ms Smith administered a WHODAS 2.0 assessment which gave a general disability score that indicates that Mr Goodwin experiences severe disability in managing his daily activities, significantly impacting on his mobility, self-care and activities. The Oswestry Low Back Disability Questionnaire indicated a disability in the severe range. The FROP=Com questionnaire indicated that he is at high risk of falls and the Home Falls and Accidents Screening Tool indicated that he would benefit for occupational therapy intervention to minimise his falls risks and transfers from chair, toilet and bed.
[26] T15, folios 81 to 98.
In respect to communication, non-expressive, non-verbal or receptive language difficulties were noted in the assessment, though he reported severe difficulties with understanding people when he is frustrated. It was noted that he was verbose and tangential at times. It was suggested that this may demonstrate low awareness of social cues and conversational turn taking. It was reported that Mr Goodwin was able to use communication technology including the internet and a mobile phone. Hehad no hearing difficulties and used reading glasses.
As to learning, Mr Goodwin reported moderate difficulties in concentrating on an activity for 10 minutes. He reported being easily distracted and forgetful and so relies on reminders on his telephone for medication, appointments and birthdays. He manages his own finances. Mr Goodwin reported severe difficulties in problem-solving, though it was noted that he had employed problem-solving in purchasing reachers, sock donners and shoe horns. As for learning new skills Mr Goodwin reported relying on friends to support him with new activities. He reported modifying his transfer techniques following occupational therapy.
Mr Goodwin reported severe difficulty in pursuing leisure and other interests due to his chronic pain. By way of example, he had previously enjoyed working on his motor vehicle, attending car shows, cooking and gardening but can no longer engage in these activities because of his back pain. He requires several days of rest prior to and following attendance at football games. He reported that he has no social life because of his pain. He has extreme difficulty in dealing with people because he ‘doesn’t like people’ and he also becomes easily frustrated when in pain.
Mr Goodwin reported that he is able to undertake grooming and showering tasks, though these are time consuming because he must complete these activities slowly. He denied any concerns with showering. He reported severe difficulty in dressing the lower part of his body due to his pain. He reported difficulties in completing hygiene following a bowel movement and sometimes must shower. Mr Goodwin reported that he has between four to six hours sleep per night. He uses an alarm to ensure he takes his medications. He reported mild difficulty in eating due to upper limb and shoulder pain.
Mr Goodwin reported extreme difficulty in meeting his household tasks, including cleaning. He cooks in bulk as he is unable to cook every day due to pain. He must rest frequently when preparing meals. He is independent in washing and drying clothing. He cannot sweep or mop due to his back pain. His neighbours wheel his bins out to the curb each week. He can change lightbulbs. He has difficulties in collecting his mail. After completing his shopping once a fortnight he avoids unnecessary activities for two to three days due to his pain.
The core supports recommended by Ms Smith were assistance with household cleaning, yard maintenance, shopping and to complete recommendations from allied health professionals. It was also recommended that Mr Goodwin have a perching stool, grab rails at access points to his home and in the toilet and an aid to increase the height of his toilet as well as assistance with social and community participation and transport.
Mr Eliot Mate, occupational therapist, completed a functional capacity assessment on 3 November 2023.[27]
[27] E1, folios 1558 to 1605.
Mr Mate reported that Mr Goodwin is independent in the domains of communication, social interaction, learning and self-management.
As to mobility, Mr Mate recommended that Mr Goodwin be provided with assistive equipment to safely and independently conduct transfers, including from his bed and when toileting. It was also recommended that a hand rail be installed at the entrance to his home, that Mr Goodwin sell his car and purchase a car that is higher from the ground, that he be provided a falls detection alert system and trial a handy car bar as well as be provided with subsidised taxis.
As to his self-care, it was recommended that Mr Goodwin be provided with commercial household cleaning, gardening, a bidet. It was also suggested that Mr Goodwin keep in stock pre-prepared frozen meals.
It was noted that Mr Goodwin experiences difficulties in undertaking strenuous activities, moderate manual handling, repetitive or sustained upper limb movement, frequent bending, twisting of the lumbar spine, prolonged sitting, standing or walking, traversing uneven ground, prolonged periods of driving, unsupported squatting or kneeling, lifting greater than 10kg, bending or sustaining activities when experiencing chronic pain.
Mr Mate reported that Mr Goodwin is able to walk about 200 to 300 metres with a single point stick. He was observed to stand and walk around his home for five to 10 minutes at a time, though would frequently stop and seek out support.
ASSESSMENT OF THE EVIDENCE
The Tribunal’s first task is to determine if Mr Goodwin’s circumstances are captured by the deeming provision. If the deeming provision does not apply, I must then consider the evidence regarding his functional capacity in each domain and determine whether he meets the statutory threshold.
In undertaking the assessment of Mr Goodwin’s functional capacity I adopt the Tribunal’s reasoning in Rooney[28] where it was held that the word ‘substantially’ in paragraph 24(1)(c) of the Act takes its ordinary meaning and so establishes a ‘significant threshold’ that a prospective applicant must meet.
[28] Rooney and National Disability Insurance Agency [2021] AATA 3523 at [22].
Communication
The Respondent contends that Mr Goodwin’s impairments do not result in a substantially reduced functional capacity to undertake communication activities.
Mr Goodwin has no apparent hearing or visual difficulties. There is no evidence that Mr Goodwin has no expressive, receptive or non-verbal communication difficulties.
I find on the basis of the reports in evidence and Mr Goodwin’s presentation at hearing that Mr Goodwin’s impairments do not result in substantially reduced functional capacity to undertake communication activities. Despite reaching this conclusion, I do accept Ms Smith’s assessment that Mr Goodwin can be tangential and verbose and this may demonstrate limited awareness of social cues and conversational turn taking. Certainly, his presentation at hearing was consistent with this assessment.
I conclude that Mr Goodwin is able to participate effectively and completely in communication activities without assistance from a person, assistive technology and equipment or home modifications.
Social interaction
The Respondent contends that Mr Goodwin’s impairments do not result in a substantially reduced functional capacity to undertake social interaction activities. It submitted that whilst Mr Goodwin’s social interactions were reduced and he had difficulty in interacting with his community, he had modified independence in the domain of social interaction.
After having the benefit of Mr Goodwin and Ms Millard’s oral testimony I accept that Mr Goodwin’s social circle has diminished. Mr Goodwin reports that he has really only three close relationships and some acquaintances. Apparently, he has lost friends due to him asking for assistance in maintaining his garden.
I also accept that due to his pain symptoms Mr Goodwin can become irritable and his low mood has meant that he has lost interest in social interactions that he once found enjoyable, including meeting at a local park for Warhammer games. I accept that there has been a marked reduction in Mr Goodwin’s social life and that his chronic pain and subsequent compromised mobility, has caused the dramatic change in his capacity to make and keep friends, interact with others in his community and cope with his feelings of frustration. Ms Millard assists him to participate in social interactions at his local shopping centre once a fortnight by driving him to and from the shops.
On the other hand, Mr Goodwin reports that he has a close and long-term friendship with Ms Millard. They speak every day and, according to Ms Millard, see each other frequently between their fortnightly shopping trip. Mr Goodwin reported that he enjoys people watching whilst at the shops and enjoys his interactions with shopkeepers. Though physically demanding, he will travel from his home in Bendigo to Melbourne by train to watch football with his friends. He is able to engage in social interactions without assistance technology.
For these reasons, I am not persuaded that the criteria set down in rule 5.8 are met. Mr Goodwin does not require assistance from others, assistive technology, equipment and assistance to participate in social activities. Further, the evidence does not support a broader finding that Mr Goodwin has a substantially reduced functional impairment with respect to social interaction.
Learning
The Respondent contends that Mr Goodwin’s impairments do not result in a substantially reduced functional capacity to undertake learning activities.
Whilst Mr Goodwin has self-reported some cognitive issues such as poor short-term memory, there is no medical evidence to support a finding of cognitive impairment. Without such evidence I am of the view that it would be imprudent to rely on Mr Goodwin’s assertion alone.
I find on the basis of the medical reports in evidence and Mr Goodwin’s presentation at hearing that Mr Goodwin is able to participate effectively and completely in learning activities without the benefit of assistance from others, assistive technology, equipment or home modifications. I therefore conclude that his impairments do not result in substantial reduced functional capacity in activities involving learning.
Mobility
The Respondent contends that though Mr Goodwin’s impairments require him to utilise modified techniques to complete mobility tasks and that he would benefit from some assistance equipment and community supports; the impact of his impairments on his capacity to mobilise are not sufficient to give rise to a finding that Mr Goodwin has a substantially reduced functional capacity to undertake mobility activities.
Mr Goodwin confirmed at hearing that he mobilises in the home with either a single-point stick or by using walls or furniture to assist him. Mr Goodwin can undertake chair, bed, toilet, shower and car transfers with various degrees of difficulty and safety. His capacity to undertake such transfers diminishes. The occupational therapy assessments in evidence indicate that he would benefit from frames or bars to assist in transfers when he experiences an exacerbation of his pain levels.
As his car is low to the ground he requires transport assistance from his carer who has a higher sitting car. He generally tends to avoid driving due to his ability to transfer in and out of his car, as well as to check his blind spots. However, he reports that does drive to local appointments, such as attending his general practitioner. Mr Goodwin reported that he is able to use public transport at hearing, but he usually rests some days before he undertakes larger journeys and is in pain for some days afterwards.
Mr Mate observed that Mr Goodwin had a standing tolerance of about 20 minutes (with something to hold onto) and a walking tolerance of about 200 to 300 metres before requiring rest.[29] Mr Goodwin reported that he prefers not to use his walking stick when shopping and instead uses a trolley for balance. Mr Goodwin reported that he has a fall detection device but he has only ever used it when he has had heart palpitations. His evidence as to the frequency of his falls was inconsistent and therefore I placed little reliance on it when reaching my conclusion about the impact that his impairments have on this domain.
[29] E1, folio 1566.
Mr Mate determined that Mr Goodwin has difficulty in transferring from low heights, particular on days when he is experiencing higher levels of pain and when a rail is not available.[30]
[30] E1, folio 1576.
I find that Mr Goodwin requires a walking stick. I am satisfied that a walking stick falls into the category of ‘commonly used items’ as set down in Rule 5.8 and as considered in Rooney[31] in that it is inexpensive and generally accessible.
[31] Rooney and National Disability Insurance Agency [2021] AATA 3523 at [24] to [28].
The evidence provided in Mr Mate’s report suggests that Mr Goodwin would benefit from the provision of a car bar, bed pole and perching stool. I find that these items are also commonly used items in that they are generally accessible and relatively inexpensive.[32]
[32] E1, folio 1581 to 1582.
I accept that Mr Goodwin uses a rail to access his shower and toilet. However, there is no evidence to suggest that he would be unable to shower or toilet either effectively or completely without the benefit of these rails. Whilst I accept that the installation of a transfer rail at his front door would be beneficial[33] Mr Mate’s report indicates that Mr Goodwin is nevertheless able to complete this transfer activity effectively and completely without such a rail.
[33] E1, folio 1580.
I am not persuaded that the independent evidence before me gives rise to a finding that the deeming provisions set down in Rule 5.8 are satisfied in respect of activities requiring mobility. Further, I am not persuaded that Mr Goodwin’s impairments result in substantial reduced functional capacity in activities involving mobility as required by subparagraph 24(1)(c)(iv) of the Act.
Self-care
The Respondent contends that though Mr Goodwin’s impairments require him to utilise modified techniques to complete self-care tasks and that he cannot complete heavy cleaning or garden maintenance, the impact of his impairments on his capacity to undertake self-care do not establish that Mr Goodwin has a substantially reduced functional capacity to undertake self-care.
The evidence of Mr Mate and Ms Smith was not contested by Mr Goodwin in respect of his self-care. He confirmed that he is able to independently shower, toilet and dress with assistive technology, including a transfer rail, long-handled sponge, foot scrubber, shoe horn, sock slider and hairdryer. When toileting he uses cotton material to clean his perineal and perianal areas and frequently showers after bowel movements. He requires assistance with cutting his toenails and so visits a podiatrist frequently.
Mr Goodwin testified that he is able to perform all laundry tasks, including stripping and making his bed though this takes considerable time given his impairments. He places most items at table height to avoid bending. He uses assistive technology such as reachers to access items from lower than table height.
Mr Goodwin can complete only light cleaning tasks, usually at table height, including washing up and cleaning his kitchen bench tops. He is unable to undertake activities involving heavy cleaning and garden maintenance tasks.
Mr Goodwin confirmed that he prepares his own meals and has no difficulties in feeding himself. He requires assistance in transporting himself to and from the shops and in transporting his shopping from his car into his home. He prefers not to use online shopping as he does not like giving out his credit card details.
I find that Mr Goodwin has purchased, without the apparent recommendation of an allied health professional, assistive equipment to aid in his self-care. He testified that he purchased online a long-reaching back scrubber, sock donner, foot scrubber and reachers. He uses these to dress, wash and to launder. I am satisfied that these items fall into the category of ‘commonly used items’ as set down in Rule 5.8 and as considered in Rooney in that they are generally accessible, readily available, do not require customisation and are inexpensive.
I am satisfied that Mr Goodwin is able to complete activities involving light cleaning and shopping but requires assistance from his carer to carry his shopping and to be transported to and from the shops. I accept the unequivocal medical evidence that heavy cleaning and garden maintenance tasks are beyond his capacity.
Foster decided that it was an error to apply the NDIA’s guidelines in a way as to equate a person’s inability to undertake one task forming part of self-care (in that case, toileting) and to deem this to be the relevant activity for which functional capacity was required to be assessed. Katzmann, Perry and Derrington JJ observed that:
64In the context of all the matters that comprise the concept of self-care, a decision-maker is required to make a functional, practical assessment of what a person can and cannot do.
65Rather than using the assessment tool, being the Guidelines, to reach a conclusion as to whether or not Mr Foster had substantially reduced functional capacity to undertake self-care by assessing his functional capacity with respect to the bundle of tasks and actions forming the concept of “self-care”, the Tribunal applied the Guidelines in such a way as to equate Mr Foster’s impairment with the single task of toileting and deemed that to be the relevant activity for which functional capacity was required to be assessed. That was an error.[34]
66The question to which the Tribunal should have directed itself was whether Mr Foster’s impairment, about which there was no dispute, resulted in Mr Foster’s having substantially reduced functional capacity (s 27(b)) to undertake the activity of self-care (s 24(1)(c)). For the purposes of the NDIS, the activity is not “toileting”; the activity is “self-care”. In considering that question, the Access Rules directed the Tribunal to consider whether Mr Foster was unable to participate “effectively or completely” in self-care “without assistive technology”. The “assessment tools” set out in the Guidelines cannot dictate the answer to that question.
67Self-evidently Mr Foster is able to toilet himself. His impairment inhibits his ability to urinate; he is able to void his bowels. He remains capable of voiding his bladder independently as and when required, albeit with the use of a catheter. This was an agreed fact. As the Guidelines explain, consistently with a multi-faceted, functional assessment, “[u]ndertaking a task … differently to others will not necessarily mean a person cannot participate effectively or completely in an activity”.
[34] Foster at [64]-[65].
On balance, I am not persuaded that the deeming provisions set down in Rule 5.8 are satisfied in respect of activities requiring self-care. In reaching this conclusion I accept that Mr Goodwin would benefit from the installation of a bidet, as well as the provision of heavy cleaning and property maintenance services. Nevertheless, he is able to attend to activities of toileting completely and effectively without the benefit of a bidet. That he requires assistance in the area of heavy household and garden maintenance does not, in my view, establish that his functional capacity is substantially reduced when performing activities of self-care.
I conclude that Mr Goodwin’s impairments do not result in substantial reduced functional capacity in activities involving self-care as required by subparagraph 24(1)(c)(v) of the Act.
Self-management
Both Mr Goodwin and the Respondent agree that Mr Goodwin’s impairments do not result in a substantially reduced functional capacity to undertake self-management activities.
I find on the basis of the reports in evidence and Mr Goodwin’s presentation at hearing that Mr Goodwin is able to participate effectively and completely in self-management activities without assistance from a person, assistive technology and equipment or home modifications.
Conclusion
Having concluded that Mr Goodwin does not satisfy paragraph 24(1)(c) of the Act, I am not required to consider whether Mr Goodwin’s impairments affect his capacity for social or economic participation and whether he is likely to require NDIS supports for his lifetime as set out in paragraphs 24(1)(d) and (e) of the Act.
I conclude that Mr Goodwin does not meet the disability requirements in accordance with section 24 of the Act.
EARLY INTERVENTION REQUIREMENTS
I next considered whether Mr Goodwin satisfies the criteria for early intervention set down in section 25 of the Act.
Are Mr Goodwin’s impairments permanent?
As already set out at paragraph 11 above, a person meets the early intervention requirements if the person has impairments that are, or are likely to be, permanent or the person is a child who has developmental delay. Access Rules 6.4 to 6.7 with respect to section 25 of the Act mirror Rules 5.4 to 5.7 relating to section 24.
Self-evidently, Mr Goodwin is not a child who has developmental delay. Therefore, subparagraph 25(1)(a)(iii) of the Act is not made out.
I have already concluded that Mr Goodwin’s impairments are permanent. Therefore, paragraph 25(1)(a) of the Act is satisfied.
Will the provision of early intervention supports reduce Mr Goodwin’s future needs for support?
For the same reasons as outlined above, the Tribunal finds that Mr Goodwin’s impairments are permanent, and the Tribunal is satisfied that Mr Goodwin satisfies paragraph 25(1)(a) of the Act.
The Tribunal has already referred to Mr Donovan’s medical report, whereby it was determined that ‘irrespective of interventions’ Mr Goodwin will continue to experience limitations and that there is ‘not a curative intervention’ for him. Mr Donovan went on to opine that ‘on the whole, Mr Goodwin will continue with impairments and require ongoing support with housing modifications and aids. In future he may require a carer given the gross limitations he has and his age’.[35]
[35] C6, folios 403 to 404.
I conclude that no early intervention supports would achieve the requirements of paragraph 25(1)(b) of the Act.
Having concluded that Mr Goodwin does not meet the requirements of paragraph 25(1)(b) of the Act, I am therefore not required to consider paragraphs 25(1)(c) and (d) of the Act.
As section 25 of the Act is not met, Mr Goodwin does not meet the early intervention requirements that would enable him to become a NDIS participant under this provision.
CONCLUSION
Mr Goodwin does not meet the disability requirements set down in section 24 of the Act, nor does he meet the early intervention requirements in section 25 of the Act. Therefore, the decision under review is correct and so is affirmed.
DECISION
The Tribunal affirms the decision under review pursuant to subsection 105(a) of the Administrative Review Tribunal Act 2024 (Cth).
Date(s) of hearing: 6 and 7 November 2024 Advocate for the Applicant: C Mason, Advocate, The Rights and Information Advocacy Centre Counsel for the Respondent: Tim Maybury, 6 St James Hall Chambers Solicitors for the Respondent: M Noakes, Maddocks Lawyers
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