Grant and National Disability Insurance Agency

Grant and National Disability Insurance Agency [2023] AATA 1206 (16 May 2023)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2021/5917
Re:Yvonne Grant
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Senior Member D Connolly
Date:16 May 2023
Place:Sydney

The Tribunal affirms the decision under review pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).
.......................[Sgd].................................................
Senior Member D Connolly
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – access criteria – whether the impairment is permanent when surgery has been suggested – whether there is substantially reduced functional capacity – osteoarthritis – cervical spondylosis – lumbar spondylosis –– cervical spine disc degeneration –– decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)
CASES
Military Rehabilitation and Compensation Commission v Katterns [2017] FCA 641
Mulligan v National Disability Insurance Agency [2015] FCA 544
National Disability Insurance Agency v Davis [2022] FCA 1002
National Disability Insurance Agency v Foster [2023] FCAFC 11
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634
SECONDARY MATERIALS
National Disability Insurance Agency, Our Guidelines – Becoming a participant – Applying to the NDIS, (1 August 2022) (Web Page) < FOR DECISION
Senior Member D Connolly
16 May 2023
BACKGROUND TO REVIEW

The Applicant, aged 59, seeks review of a decision made by the National Disability Insurance Agency (the Respondent), which affirmed an earlier decision to refuse her request for access to the National Disability Insurance Scheme (the NDIS) under provisions of the National Disability Insurance Scheme Act 2013 (Cth) (the Act).
The Applicant lives with her husband in their own 2 bedroom, single level home.[1] They have no children. She has been diagnosed with osteoarthritis, cervical and lumbar spondylosis and cervical spine disc degeneration, along with other medical conditions, for which she takes various medications, including:
·Bursitis in the hip, thigh, and shoulder
·Asthma
·Migraines
·Degenerative disc disease
·Neuropathic pain.
[1] This, and the following biographical information, comes from the report dated 7 July 2022 prepared by Ms Emma Steele, Occupational Therapist, at the request of the Respondent (Ms Steele’s Report). It is generally consistent with the information recorded in other medical reports, discussed in more detail in my consideration of the evidence.
The Applicant stopped working in 2008 due to flare-ups of arthritis and spinal conditions, causing pain. She commenced study in 2010 but was prevented from pursuing further employment due to pain and reduced function.
In March 2021, the Applicant made a request to become a participant in the NDIS, claiming her impairments were caused by osteoarthritis, cervical and lumbar spondylosis and cervical spine disc degeneration. She claimed her disability impacted her functional capacity in the domains of mobility, socialising, learning, self-care and self-management.[2]
[2] T-Documents (T)27, 85
On 8 April 2021, a delegate of the Chief Executive Officer (CEO) of the Respondent determined the Applicant did not meet the access criteria set out in the Act because the delegate was not satisfied her impairments were permanent under subsections 24(1) and 25(1) of the Act. An internal reviewer confirmed the decision on 19 August 2021. The internal reviewer accepted the Applicant lives with a disability that affects her capacity to undertake daily tasks. However, the internal reviewer was not satisfied there were no further available treatment options, including surgical intervention, that may relieve her impairment, and therefore the impairment could not be considered permanent.
On 20 August 2021 the Applicant applied to the Administrative Appeals Tribunal (the Tribunal) for review of the internal review decision.
The parties consented to the matter being determined without a hearing. This issue was discussed at a directions hearing on 18 April 2023 when I confirmed their consent. I am satisfied that the issues for determination in this matter can be adequately determined in the absence of the parties. I have proceeded to determine the matter in the absence of a hearing under section 34J of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). In determining this matter, I have considered all the materials that were filed by the parties before the Tribunal, including documents filed by the Respondent pursuant to subsection 37(1) of the AAT Act (the T-documents).
LEGISLATION
The access criteria
To become a participant in the NDIS, the Applicant must satisfy the access criteria set out in subsection 21(1) of the Act, which provides as follows:
(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).
There is no dispute the Applicant satisfies the age requirements and the residence requirements. I must decide whether the Applicant satisfies the access criteria 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 the Applicant does not meet the disability requirements, I will consider whether she meets the early intervention requirements set out in section 25 of the Act which state as follows:
1A 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 developmentaldelay; 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.
2The CEO is taken to be satisfied as mentioned in paragraphs (1)(b) and (c) if one or more of the person's impairments are prescribed by the National Disability Insurance Scheme rules for the purposes of this subsection.
3Despite subsections (1) and (2), the person does 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 offered by a person, agency or body, or through systems of service delivery or support services offered:
(a)as part of a universal service obligation; or
(b)in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
The Minister may, under subsection 209(1) of the Act, make rules prescribing matters. The rules relevant to this matter are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (the Access Rules), which form part of the legislation.
The NDIS Operational Guidelines also assist in making decisions in accordance with the Act. Operational Guidelines represent government policy and should be applied by the Tribunal unless there is good reason not to do so.[3] The relevant Operational Guideline is Our Guidelines – Becoming a participant – Applying to the NDIS (Operational Guideline).[4]
[3] Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[1979] AATA 179; (1979) 2 ALD 634.
[4] National Disability Insurance Agency, Our Guidelines – Becoming a participant – Applying to the NDIS, (1 August 2022) (Web Page) <>
I note in Mulligan[5] Mortimer J held that the legislation requires “a relatively high degree of precision by decision-makers… in assessing what a person can or cannot do. The assessment to be undertaken is avowedly functional and multifaceted.”[6] Mortimer J also explained that the legislation requires that it is based on a functional, practical assessment of what a person can and cannot do.[7]
[5] Mulligan v National Disability Insurance Agency [2015] FCA 544.
[6] Ibid, [55].
[7] Ibid, [56].
ISSUES
The Applicant seeks to rely on the pain, joint stiffness and range of movement limitations associated with osteoarthritis, cervical and lumbar spondylosis and cervical spine disc degeneration to meet the access criteria. I will first consider whether I am satisfied that the Applicant has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments, as required by paragraph 24(1)(a) of the Act.
The Respondent has not accepted that the Applicant’s impairment is permanent.[8] If I find the Applicant meets paragraph 24(1)(a) of the Act, I will consider whether any of her impairments are permanent such that paragraph 24(1)(b) of the Act is met.
[8] Respondent’s Statement of Facts, Issues and Contentions dated 17 February 2023 (Respondent’s SFIC), 2-5.
The Respondent contends the Applicant has not demonstrated a substantially reduced functional capacity in any of the specified domains in subparagraph 24(1)(c)(i) and therefore does not meet paragraph 24(1)(c) of the Act.[9] If I find paragraphs 24(1)(a) and (b) are met, I will also consider whether the Applicant’s impairments result in substantially reduced functional capacity to undertake any of the following activities: communication, social interaction, learning, mobility, self-care or self-management.
[9] Respondent’s SFIC, 5-10.
If I am not satisfied the Applicant meets the disability requirements, I will then consider whether she meets the early intervention requirements. The Respondent contends that the Applicant does not satisfy paragraph 25(1)(a) of the Act as it has argued her impairments are not permanent. If I find the Applicant’s impairments are permanent, I will consider whether she meets other requirements in section 25 of the Act.
CONSIDERATION OF CLAIMS AND EVIDENCE
Does the Applicant have a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments?
The Respondent has accepted the Applicant satisfies this requirement in relation to osteoarthritis, cervical spondylosis and lumbar spondylosis and refers to these conditions as her impairments.[10] Based on various radiological reports provided by the Applicant (the most recent of which I have cited below[11]) I accept the Applicant has these conditions. But that is not the question the legislation asks. I must be satisfied the Applicant has a disability attributable to impairment. The impairment attributable to disability needs to be identified with some precision, because the threshold questions on permanency (paragraph 24(1)(b)) and substantially reduced function (paragraph 24(1)(c)) operate not on the concept of disability, or conditions, but on the concept of “impairment”.[12]
[10] Respondent’s SFIC, 2.
[11] CT Scan Cervical spine, dated 14 December 2022, confirming a diagnosis of cervical spondylotic degenerative change and narrowing of the spinal canal.
MRI Lumbar spine dated 8 July 2016, finding mild, minor background spondylotic changes.
T23, 51-52 Whole body bone scan confirming arthritic activity with increased activity localised at the thumb joints.
[12] Mulligan v National Disability Insurance Agency [2015] FCA 544, [51].
The concept of “impairment” is generally understood as involving the loss of, or damage to, a physical, sensory or mental function.[13] Pain is not an “impairment” in itself,[14] but pain might be such that it limits particular bodily functions and therefore constitutes an “impairment”.[15]
[13]Ibid.
[14] Military Rehabilitation and Compensation Commission v Katterns [2017] FCA 641 at [47].
[15] Ibid at [48].
In her request for internal review, the Applicant made the following statement:
I cannot do the basic things around the home…I get meals in to relieve me from needing to cook, all my time is spent managing my condition and associated disability…
I am seeking strengthening my muscles to support my damaged joints…(so that I will be) able to go for a walk and gardening when I wish to, but I cannot do these things because I am exhausted from having to attend to my health and domestic tasks without assistance…[16]
[16] T30C, 128.
I have considered the reports of Dr Penelope Savvas[17], the Applicant’s consultant physician in rheumatology, who in June 2021 reported that the Applicant finds it difficult to manage her housework, cooking, shopping and exercise as a result of pain, and that she finds it difficult to manage activities for prolonged periods.
[17] T15, 37-39; T16, 40-41; T30B, 119.
I have also considered the report by Ms Steele, occupational therapist, dated 7 July 2022, who noted, among other things, that the Applicant had limitations in mobility. Mr Xia Sheng, occupational therapist, reported in February 2021 that the Applicant had mobility issues limiting her capacity to complete activities of daily living.[18]
[18] T26
On the basis of these, and other, reports filed with the Tribunal, I am satisfied the Applicant has an impairment which causes some disability. I am therefore satisfied she has a disability that is attributable to a physical impairment and she satisfies paragraph 24(1)(a) of the Act.
Is the impairment permanent, or likely to be, permanent?
The Respondent has argued in its updated statement of facts, issues and contentions (SFIC), filed in April 2023, that the Applicant’s impairment is not permanent because there are known treatments which would be likely to remedy her impairments. The Respondent submitted the following:
In National Disability Insurance Agency v Davis[19] Mortimer J considered the meaning of the word “permanent” in section 24(1)(b) of the Act and the word “remedy” in the (Access) Rules. Her Honour said that the correct meaning of “permanent impairment” in s 24(1)(b) is that the impairment(s) has or have an enduring quality, and stated at [130] as follows:
“The phrase “permanent impairment” in s 24(1)(b) means an impairment which is of an enduring nature. In other words, the question for the decision-maker is whether the impairment(s) experienced by an individual (rather than the cause of the impairments or the specific diagnoses made about a medical condition) has or have an enduring quality so as to require supports funded and/or provided under the NDIS Act on an ongoing basis.”
As to the construction of the word “remedy” in rule 5.4 of the (Access) Rules, including the requirement that treatment “would be likely to remedy the impairment”, Her Honour stated at [136] that the word “remedy” should be understood to mean more than just relieve or improve, rather it should be understood to mean something approaching removal or cure.[20]
[19] [2022] FCA 1002
[20] Respondent’s SFIC, [16]-[17].
The Respondent further submitted with respect to the Applicant’s cervical spondylosis that the evidence demonstrates there are known, available and appropriate evidence based treatments likely to remedy the Applicant’s impairment. It was noted that Dr Nicholas Little (the Applicant’s neurosurgeon) stated in a letter dated 16 May 2016 that “surgical options range from doing nothing … to microforaminotomy alone on the right at C5/6 through to a hybrid anterior discectomy and arthroplasty fusion at C5/6 and C6/7”[21].
[21] T13, 35.
I note however that Dr Little went on to say that he was comfortable with the Applicant taking an expectant approach for the moment but if things progressed or were not satisfactorily treated the option was available. I am not satisfied Dr Little was advising the Applicant to have the surgery at that time; he was merely explaining the options available to her. I note the Applicant’s evidence indicates she has not consulted him since 2016.
I also note that Dr Savvas in 2022, in response to targeted questions, stated:
Neurosurgery on the cervical spine could be performed to fuse the arthritic segments in her neck in an attempt to reduce neck pain. Unfortunately, this is just making the best of a bad situation and leads to further problems with the cervical spine in time. If a cervical spine fusion was to be performed this would lead to accelerated degeneration of the cervical spine above and below the level of the fusion after a period of a few years, so it is not a cure and is only an option to help manage pain with no guarantee of success. Also, this is a very invasive procedure with quite significant risks attached.[22]
[22] Dr Savvas’ Response to List of Targeted Questions regarding Applicant’s Conditions dated 21 February 2022 (Dr Savvas’ Response), 2.
I note Dr Savvas has also stated that the Applicant had exhausted all possible treatments and there were no plans for any new treatments.
Dr Silva, orthopaedic surgeon, who examined the Applicant in August 2022 at the Respondent’s request, opined that the Applicant does not require surgery, but that physiotherapy may assist. He also noted she has had injections in the cervical spine.[23]
[23] Dr Silva’s Orthopaedic Assessment and Opinion dated 14 September 2022 (Dr Silva’s Assessment), 6.

Dr Nazha, pain physician and interventional pain specialist, referred to by the Applicant’s GP, confirmed in February 2023 that the Applicant has had cervical nerve root injections. He did not think she was a candidate for interventional pain therapies (that is, surgery) but formed the view she may benefit from a referral to a rehabilitation physician.[24]
[24] Dr Nazha’s Report dated 22 February 2023 (Dr Nazha’s Report), 2.
Having considered all the medical evidence, I am not satisfied surgery on the Applicant’s cervical spine is likely to remedy her neck pain, reduced range of movement and limitations to the extent that it would approach removing or curing the impairment. I am persuaded by Dr Savvas’ evidence that the benefit may only be temporary, it may cause other issues for the Applicant and that it comes with significant risks.
I have considered Dr Nazha’s suggestion that the Applicant may benefit from seeing a rehabilitation physician but I note Dr Savvas’ view that the Applicant has exhausted all treatment options as she has trialled numerous medications, had physiotherapy, exercise physiology, acupuncture, cortisone injections, and has been reviewed by a clinical psychologist. While I note the Applicant’s general practitioner, Dr Gillian Moreland, has now referred the Applicant to a rehabilitation physician[25], I am not satisfied this referral is likely to result in the Applicant’s cervical spine impairment being remedied in the way Her Honour in National Disability Insurance Agency v Davis describes, given the range of treatments she has had over several years, as reported by Dr Savvas, who has been treating her since 2016.
[25] Dr Moreland’s Referral Letter to Dr Shafi dated 30 March 2023.
Accordingly I am satisfied the Applicant’s impairment attributed to her cervical spondylosis is permanent.
The Respondent has also argued that the Applicant’s lumbar spondylosis has not been fully treated and so cannot be considered permanent, citing Dr Silva’s report which states the Applicant “has had no treatment of significance in the lumbar spine…except for common analgesia”.[26] I note however that the Applicant has taken other opioid based medications in the past such as Tramadol, but had an adverse side effect leading to significant abnormal liver function test results after 12 months.[27] She has also had physiotherapy[28], exercise physiology[29] and has consulted the Senior Staff Specialist at the Central Coast integrated pain service.
[26] Dr Silva’s Assessment, 6.
[27] Dr Savvas’ Response, 2.
[28] T22, 50. and Letters from physiotherapist Mr Peter Farmer dated 6 November 2020 and 24 January 2022
[29] T24, 53.
The Respondent has cited Dr Moreland’s reference to the Applicant’s preference to delay surgery as evidence that her lumbar spondylosis impairment is not permanent.[30] However, I am of the view Dr Moreland was instead referring to Dr Little’s suggestion that the Applicant could consider surgery on her cervical spine as one of several available options. I also note that Dr Little has indicated he is content with the Applicant adopting an “expectant approach”. The Respondent also referred to Dr Silva’s suggestion that the Applicant could wear a lumbar corset while doing housework. I accept this might assist the Applicant by restricting her range of movement while she is doing housework but I am not satisfied it is likely to result in the Applicant’s lumbar spine impairment being remedied in the way Her Honour described.
[30] T19, 45.
Considered overall I am satisfied the Applicant’s impairment attributed to her lumbar spondylosis is permanent.
In relation to the Applicant’s osteoarthritis, the Respondent has cited Dr Silva’s report that the Applicant “has had no treatment of significance in…the thumbs except for common analgesia…. and refuses to have surgery but a cortisone injection to each of those thumbs would be of benefit”.[31]
[31] Dr Silva’s Assessment, 6.
Dr Savvas noted that the Applicant has osteoarthritis affecting her hands, particularly the base of her thumbs, which makes it difficult for her to grip and hold things for prolonged periods. The symptoms in her hands can flare up and last for several days. This interferes with her fine hand function.[32]
[32] Dr Savvas’ Response, 3.
I accept that the Applicant’s function in her hands may not be at the optimal capacity given she has not explored the options mentioned by Dr Silva. However, I note she is now wearing a CMC restriction splint while doing housework. I also note that Dr Steve Marchalleck, orthopaedic surgeon, has recently recommended surgery on her hands. He has advised the Applicant that her decision as to whether she has the surgery would depend on how impaired she feels from the point of view of her hands. He also expressed the view that her arthritis in her hands would be bad enough to be considered significantly impaired. He noted however that she reported her primary issue is the pain in her neck.[33]
[33] Dr Marchalleck’s Report dated 3 February 2023 (Dr Marchalleck’s Report), 1.
I am not satisfied the Applicant’s impairment to her hands caused by bilateral thumb arthritis is permanent because treatment options recommended by Dr Marchalleck and Dr Silva have not been explored. There is no evidence before me to indicate that these treatment options are unlikely to remedy the Applicant’s hand impairment, or that there are significant risks in having the surgery. I am satisfied the surgery is likely to remedy this impairment.
Considered overall, while I am not satisfied the Applicant’s hand impairment is permanent, I am satisfied her physical impairments associated with her cervical and lumbar spondylosis are permanent. As recorded by Dr Marchalleck, her hand impairment is not her primary issue – it is her cervical pain and limited range of movement that causes her the most impairment. Accordingly, I am satisfied the Applicant meets paragraph 24(1)(b) of the Act.
Does the Applicant’s impairment result in substantially reduced functional capacity to undertake one or more of the specified activities?
Rule 5.8 of the Access Rules sets out the matters the Tribunal must consider when determining whether the Applicant’s impairment results in substantially reduced functional capacity and states as follows:
An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities—communication, social interaction, learning, mobility, self-care, self-management (see paragraph 5.1(c))—if its result is that:
(a)the person is unable to participate effectively or completely in the activity, or to perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications; or
(b)the person usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in the activity or to perform tasks or actions required to undertake or participate in the activity; or
(c)the person is unable to participate in the activity or to perform tasks or actions required to undertake or participate in the activity, even with assistive technology, equipment, home modifications or assistance from another person.
The Operational Guideline states:
Your impairment substantially reduces your functional capacity if you usually need disability-specific supports to participate in or complete the (specified) 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.
At the time of making her application, completed by Dr Moreland, the Applicant claimed her impairment results in substantially reduced functional capacity to undertake mobility, socialising, learning, self-care and self-management tasks.[34] In her response to the Respondent’s SFIC, arguing that she does not have substantially reduced functional capacity in any of the domains set out in paragraph 24(1)(c) of the Act, the Applicant has referred to the various medical reports filed with the Tribunal, which I discuss below. I have also taken into account all of the other evidence before me in making my findings as to whether I am satisfied the Applicant meets this provision.
[34] Applicant’s NDIS Request Form: Section 2 - Completed by the Treating Professional dated 12 March 2021 (NDIS Request Form Section 2), 18-20.
Communication
The Operational Guideline with respect to communication currently states as follows:
Communicating – how you speak, write, or use sign language and gestures, to express yourself compared to other people your age. We also look at how well you understand people, and how others understand you.
While Dr Moreland did not indicate that the Applicant’s impairment results in reduced functional capacity in communicating, in her response to the Respondent’s SFIC the Applicant has referred to Dr Savvas’ report of 21 February 2022 in which she states:
Ms Grant is not cognitively impaired by her conditions. However, she has disrupted sleep as a result of pain, that she experiences when lying down, affecting the cervical spine. This leads to fatigue. She also takes medication that contributes to fatigue as this is a recognised side effect of Amitriptyline and Pregabalin. As a result of her fatigue she has lapses in concentration so it may be difficult for her to maintain a conversation of more than 30 minutes.[35]
[35] Dr Savvas’ Response, 2.
I note Ms Steele reported that the Applicant:
was able to answer the majority of questions asked of her throughout the assessment but referred to her husband on numerous occasions to clarify details and recall history/events. Ms Grant was observed to fatigue during the assessment and her concentration reduced.[36]
[36] Ms Steele’s Report, 4.
In response to the targeted question as to whether she considered the Applicant to have any reduction in her functional capacity for communication, Ms Steele responded “No”.[37]
[37] Ms Steele’s Report, 17.
Mr Sheng recorded that the information in his report came from a doctor’s handover letter and the Applicant’s self-reporting. Having read that report I am of the view the Applicant was able to communicate with Mr Sheng regarding her various conditions, the medications and other treatments she has received, her circumstances, her functional capacity in activities of daily living and her mobility. Mr Sheng reported he observed “nil verbal communication issues” but he noted she has difficulty with spelling.[38]
[38] T26, 62.
I note that the Applicant has self-reported information to the various doctors she has consulted, including Dr Savvas, Dr Moreland, Dr Nazha, Dr Marchalleck, Dr Little and Dr Silva. Apart from Dr Savvas’ comments above, none of those doctors has indicated any significant concern regarding the Applicant’s capacity to communicate. Dr Silva was asked if there was any evidence that the Applicant’s condition causes any impairment in communication and he responded “No”.[39]
[39] Dr Silva’s Assessment, 5.
On the basis of the information before me, while I accept that the Applicant becomes fatigued and this may impact on her concentration and ability to maintain a conversation for more than 30 minutes, I am not satisfied she has difficulty understanding people or being understood. I accept her husband assisted her during the 3-hour assessment by Ms Steele but I am not satisfied this demonstrates she was unable to participate effectively or completely in communicating. Nor am I satisfied this means she usually requires assistance from other people to communicate. Accordingly, I am not satisfied the Applicant has a substantially reduced functional capacity to undertake communication activities.
Social interaction
The Operational Guideline with respect to social interaction currently states as follows:
Socialising - how you make and keep friends, or interact with the community, or how a young child plays with other children. We also look at your behaviour, and how you cope with feelings and emotions in social situations.
Dr Moreland reported that the Applicant needs assistance with social interaction because she is socially isolated outside immediate family, and she is no longer able to participate in recreational activities she once enjoyed. She opined that the Applicant requires support to explore social and recreational activities aligned to her capabilities.[40]
[40] NDIS Request Form Section 2, 19.
With respect to this domain, Dr Savvas has also reported that the Applicant is socially isolated outside immediate family. Her main activity is seeing her brother but she has to rest the day before, as the travel to see him (from the Central Coast to Sydney by train) leads to significant exhaustion and can aggravate her pain. She reported that increased activities exacerbate the Applicant’s pain.[41]
[41] Dr Savvas’ Response, 3.
Ms Steele reported that the Applicant’s community access is limited to attending medical appointments and shopping on a regular basis. She also travels to Sydney once a month (to visit her brother). She spends the majority of her time at home conserving her energy for basic activities of daily living. She stated:
Ms Grant is socially isolated and no longer has any friends due to the pain and reduced functional capacity attributable to her osteoarthritis, cervical spondylosis and lumbar spondylosis. It is common for many others in Ms Grant’s situation to lose their capacity for social interaction. As Ms Grant cannot access activities and social events because of her reduced mobility; reduced sitting and standing tolerances; falls risk; pain; increased fatigue; and reduced concentration, she avoids them and friends stop inviting.[42]
[42] Ms Steele’s Report, 14.
However, Ms Steele also reported that the Applicant is able to interact with others in social situations by telephone and social media, and she can do this from her home.
Mr Sheng commented that the Applicant is socially isolated and lacks social support.[43]
[43] T26, 62.
The Applicant reported, in response to targeted questions, that she visits her brother every 3 weeks. She has one friend who she speaks with infrequently because her friend works. Her friend visits her when she has time, and the Applicant visited her friend with her husband, by car.[44]
[44] Applicant’s Response to Targeted Questions (undated) (Applicant’s Response), 6.
I accept the Applicant experiences some social isolation, although she does have regular contact with her brother, some contact with a friend and regular interaction in the community when she shops and attends medical appointments. However, the issue I must consider is whether she has substantially reduced functional capacity in social interaction. In doing so I am guided by the Operation Guidelines which indicates I should consider whether she can make and keep friends and interact with the community.
There is nothing before me to indicate the Applicant behaves inappropriately when out in the community. The evidence does not indicate that she is unable to cope with her feelings or emotions in social situations. I am satisfied she is able to maintain relationships because, despite being impaired by her conditions for several years, she has remained married to her husband, continues to visit her brother, and on her own evidence, has a friend with whom she has irregular but ongoing contact.
With respect to this domain, the Applicant has referred to evidence that she suffers from dry eye for which she consults the Dry Eye Institute who manage this condition with medication and advice. It is not clear why the Applicant considers this condition affects her capacity to interact socially. In any case, I am not satisfied the Applicant’s dry eye condition results in the Applicant having a substantially reduced functional capacity to interact socially.
While I accept the Applicant’s impairments lead her to conserve her energy for activities of daily living, and this reduces her capacity to engage with her community, overall, I am not satisfied the Applicant has a substantially reduced functional capacity to interact socially.
Learning
The Operational Guideline with respect to learning currently states as follows:
Learning – how you learn, understand and remember new things, and practise and use new skills.
With respect to this domain the Applicant has referred to Dr Savvas’ report, recording that the Applicant is not cognitively impaired by her conditions but they cause disrupted sleep, which, along with medication she takes, lead to fatigue. This reduces her concentration span so she is unable to read more than 1-2 paragraphs before she has to stop. As Dr Savvas did not indicate that she was subjected to cognitive testing, I assume her report regarding the Applicant’s capacity to read is based on self-reporting.
Ms Steele reported that the Applicant’s capacity for learning is impacted by fatigue, pain and functional impairments as they reduce concentration and ability to retain new information. I note she undertook a Montreal Cognitive Assessment (MOCA) and the Applicant’s score “suggests a mild cognitive impairment”.[45]
[45] Ms Steele’s Report, 4.
Mr Sheng reported that the Applicant was previously studying but she can no longer do this because of her reduced attention and cognitive skills due to chronic pain. He noted however that she does read occasionally but is unable to sustain one position for extended periods due to her pain issues, suggesting her capacity to read is not a learning issue but a problem with sitting for extended periods.
I note the Applicant’s evidence that she was completing a Master of Applied Linguistics which she had to forgo because of pain and the effects of her medications.[46] I accept the Applicant’s impairment has impacted on her capacity to complete tertiary study. However, I am not satisfied this means that she cannot learn, understand and remember any new things, or practise and use new skills. I note the evidence from the Central Coast integrated pain service that she reported she continues with her craft activities which include knitting and crocheting. I am of the view these activities require some functional capacity in learning. The pain service also recorded that she reported reading to distract herself.[47]
[46] Applicant’s Response, 6.
[47] T18, 44.
I also note the Applicant reported to Ms Steele that she and her husband recently purchased an automatic car with reverse camera and parking sensors because she could no longer drive her manual Land Rover. The evidence indicates she has been able to adjust to this different car and its functions as she reported driving in her local area. I am of the view this reflects the Applicant’s ability to learn new things and practise new skills, as reversing with a camera is different to reversing while looking over one’s shoulder.
I have taken into account Ms Steele’s report that, on the day of the assessment the Applicant’s score in the MOCA suggested a mild cognitive impairment. While I accept the Applicant’s pain and the effect of her medication may impact on her capacity to learn, and understand new things to some degree, the evidence also indicates she is able to learn new things and practice new skills. Overall, I am not satisfied the Applicant has a substantially reduced functional capacity to undertake learning activities.
Mobility
The Operational Guideline with respect to mobility currently states as follows:
Mobility, or moving around – how easily you move around your home and community, and how you get in and out of bed or a chair. We consider how you get out and about and use your arms or legs.
The Respondent has accepted that the Applicant has some reduction in her functional capacity with respect to mobility. However, it has submitted that she does not have a substantially reduced functional capacity.

In her response to the Respondent’s SFIC the Applicant has referred to Dr Savvas’ response to targeted questions[48], recording that the Applicant is unable to walk longer than 200 to 300 metres without significant pain, which makes it difficult for her to leave home. Dr Savvas notes the Applicant is able to transfer from a chair independently.[49]
[48] Dr Savvas’ Response, 3.
[49] Ibid.
The Applicant has also referred to Dr Marchalleck’s report recommending she has surgery on her thumb(s) to relieve the pain and impairment to her hands due to arthritis. While I take this into account, I have found that the Applicant’s hand impairment is not permanent because it has not been fully treated and I am satisfied the surgery recommended by Dr Marchalleck is likely to remedy the condition.[50]
[50] Dr Marchallek’s Report, 1.
The Applicant has referred to Ms Steele’s report recording the following:
Ms Grant was observed to independently mobilise inside her home leaning on furniture and benches. Outdoors Ms Grant uses a walking stick for support. Due to her ankle restrictions, Ms Grant is unable to walk on inclines or uneven ground. Ms Grant walks slowly and shuffles at times.
When going shopping, Ms Grant uses a shopping trolley to lean on as she cannot walk unaided as she falls. Ms Grant is able to walk the length of her driveway and return to her home which is approximately 250m. This is the maximum she can walk without needing to sit to rest. If she is required to walk further distances e.g. when shopping, her feet swell and cause increased pain. Ms Grant has only two pairs of shoes she can wear to accommodate her foot oedema and talus pain – these were prescribed by a podiatrist.
Ms Grant is reported to have frequent falls. The most recent was on 14.6.22. After travelling to Sydney to visit her brother on the train, Ms Grant crossed the road and fell hitting her head on the concrete. She cut her chin, lip and right hand/wrist. She had a black eye and was disoriented. A CT scan was conducted and she is awaiting the results.[51]
[51] Ms Steele’s Report, 5-6.
I note in her access application, Dr Moreland did not mention frequent falls. In February 2023 Dr Nazha did not record frequent falls. Nor did Dr Savvas. Dr Silva described her gait as normal, did not mention any falls and did not think she needed a walking stick. Mr Sheng recorded that the Applicant reported she stumbled and fell in the backyard, without major injury, but she has had multiple near miss incidents during grocery shopping. Overall, I accept the Applicant may have fallen in June 2022 but I am not satisfied the Applicant has had frequent falls.
Ms Steele also reported that the Applicant negotiates threshold stairs in her home by holding on to the doorframe for support. However, she does not have handrails. When she is in the community, she uses handrails but avoids stairs when possible. She also reported that the Applicant is able to transfer from a dining chair, and she uses furniture to assist her transfer from the lounge, which Ms Steele considered to be very low, and transfers from bed by rolling on her side. She transfers from her car independently. She also transfers from the toilet and shower independently. She no longer uses the bath due to the difficulty getting in and the risks of slipping and falling while trying to stand up in the bath.
Ms Steele reported that the Applicant can sit for 25 minutes and stand in one spot for a few minutes. She dresses independently. She toilets independently but cannot wipe her perineal area from behind due to spondylosis. Ms Steele was concerned this may put her at risk of urinary tract infections (UTIs) but there is no evidence to suggest she suffers recurrent UTIs. The Applicant needs minimal assistance with grooming as her husband cuts the back of her hair. She eats independently.
I take into account that the Applicant can only walk up to 250 metres. However, I note her evidence that she does the shopping albeit by leaning on the trolley. I am satisfied this would require her to walk more than 250 metres. She also drives a car in her local area and reported to Ms Steele a driving tolerance of 25 minutes. She travels by train from the Central Coast to Sydney to visit her brother. She transfers from a chair, her lounge and her bed independently or with minimal assistance. She mobilises independently in her own home. She avoids stairs, and relies on handrails when in the community, but she can use them.
I accept the Applicant mobilises with pain. However, having considered what she can and cannot do, and the assistance she requires, I am not satisfied she needs a high level of support from other people with respect to mobility as a result of her impairment. Considered overall, I am not satisfied the Applicant’s impairments result in a substantially reduced functional capacity in relation to mobility.
Self-care
The Operational Guideline with respect to self-care currently states as follows:
Self-care – personal care, hygiene, grooming, eating and drinking, and health. We consider how you get dressed, shower or bathe, eat or go to the toilet.
In the Respondent’s updated SFIC the Respondent cited Foster,[52] in which the Full Federal Court:
determined that the Tribunal is to reach a conclusion as to whether an applicant has a substantially reduced capacity to undertake the task (e.g. self-care) “by assessing his [or her] functional capacity with respect to the bundle of tasks and actions forming the concept of self-care.” As such, the activity to be assessed is "self-care" as a whole, not a specific task or action within self-care, such as "toileting".[53]
[52] National Disability Insurance Agency v Foster [2023] FCAFC 11
[53] Respondent’s Updated SFIC dated 17 April 2023 (Respondent’s updated SFIC), [65].
In response to the Respondent’s updated SFIC, the Applicant has referred to Dr Savvas’ response to targeted questions and her earlier reports which address the Applicant’s mobility limitations and her hand osteoarthritis. Dr Savvas also comments that the Applicant’s cervical pain interferes with her activities of daily living and her hand osteoarthritis leads to difficulty with fine motor skills.
I take into account Dr Savvas’ view that the Applicant is generally independent with her activities of daily living but has difficulty due to fatigue. She reported she sometimes misses showers and has difficulty reaching her perineum from behind, and that sometimes she requires a little assistance with getting dressed. She noted that the Applicant feeds herself but cannot sit for prolonged periods at a dining table due to cervical spinal and lumbar pain. She reported the arthritis in her hands makes it difficult for her to grip and hold things for prolonged periods when she has a flare-up. The Applicant also referred to Dr Marchalleck’s comments regarding her hand limitations.
I note Ms Steele reported that the Applicant showers independently, but only on every second day to conserve energy and minimise pain. She dresses herself sitting on her bed and can put on socks but finds this difficult. She toilets, brushes her teeth and eats independently. She has medication reminders on her phone which prompt her to take her medication and her husband checks that she has done so. I accept her husband supervises her medications, as reported by Ms Steele. However she recommended the Applicant would benefit from the pharmacy dispensing her medications in a Webster pack, a type of assistance I consider to be commonly used.
Regarding food preparation, I accept Ms Steele’s report that the Applicant is fatigued in the evening and so purchases ready-made meals, which she has been doing for some time. She can however prepare light meals for her breakfast and lunch. Her husband cuts vegetables and lifts heavier appliances for her as she is unable to do this because of her arthritis in her hands. She shares the washing up with her husband.
Regarding housework and laundry, I accept Ms Steele’s report that the Applicant breaks her domestic tasks into smaller components and spreads them across the week to avoid pain and conserve energy. I accept she cleans the bathroom, kitchen and toilets and does light dusting, and that her husband attends to the heavier cleaning tasks such as mopping and vacuuming floors. I note from Ms Steele’s report that the Applicant takes the bins to the street curb at the end of her driveway, but that they are never very full. She also attends to the laundry tasks 1-2 times per week and hangs clothes on airers to avoid carrying baskets to the garden and reaching overhead to hang out washing. I also note she changes her bed linen once a fortnight with the assistance of her husband.
Ms Steele has reported that the Applicant breaks her shopping into smaller amounts to avoid the need to carry heavier loads and to minimise the time she is out. She completes her shopping by leaning on the shopping trolley for support. Ms Steele also reported that the Applicant is able to do some light gardening, weeding, watering and trimming plants by sitting. She uses an electric pruner due to the arthritis in her hands.
I have also considered Mr Sheng’s earlier assessment which is, in the main, consistent with Ms Steele’s report. He also noted that the Applicant is able to shave her legs by sitting on the edge of the bath, that she has difficulty cutting tough ingredients, lifting a full kettle of water and she requires a full day’s rest after cleaning the bathroom or floor. Mr Sheng also reported the Applicant could iron clothes independently.
I am satisfied the Applicant is, in the main, either independent or only requires minimal assistance in self-care. I find she attends to her own personal care, hygiene, toileting, grooming, eating and drinking, and requires only minimal assistance. She gets some assistance from phone prompts and her husband for medication management. She is able to do some gardening, laundry and housework but requires assistance for heavier duties.
Taking into account the Court’s guidance in Foster, considered overall, while I accept there are some limitations on the Applicant’s capacity, I am not satisfied her impairments result in a substantially reduced functional capacity in relation to the self-care activities listed in the Operational Guideline; personal care, hygiene, grooming, eating and drinking, and health. I am not satisfied the Applicant’s impairments result in a substantially reduced functional capacity to undertake self-care.
Self-management
The Operational Guideline with respect to self-management relevantly states as follows:
Self-management – how you organise your life. We consider how you plan, make decisions, and look after yourself. This might include day-to-day tasks at home, how you solve problems, or manage your money. We consider your mental or cognitive ability to manage your life, not your physical ability to do these tasks.
The Respondent has submitted in their SFIC that the Applicant does not have a substantially reduced functional capacity in this domain because she is able to make her own appointments and catch public transport.
In her response to this, the Applicant has referred to Dr Marchalleck’s report regarding her hand impairment. I take this into account but, for the reasons given above, have found that this is not a permanent impairment.
The Applicant also referred to Dr Savvas’ report[54] in which she stated the Applicant has impaired concentration and fatigue as a result of her medication, and would benefit from therapy to develop coping strategies and improve concentration. She indicated the Applicant will require a support person to accompany her for appointments and to develop strategies to concentrate and remember information.
[54] T30B, 122.
Ms Steele reported that the Applicant attends medical appointments and shopping on a regular basis, and that she travels (to Sydney) by train monthly.[55] I note other evidence indicates the Applicant attends appointments by herself. Dr Silva stated she attended her consultation with him unaccompanied and travelled to Sydney by train.[56] Having regard to his evidence, I am not satisfied the Applicant requires a person to accompany her to appointments.
[55] Ms Steele’s Report, 9.
[56] Dr Silva’s Assessment, 2.
I note Ms Steele reported that the Applicant’s husband manages the majority of the finances and that the Applicant completes transactions at the shops only. While the Applicant was a bookkeeper and payroll officer, due to reduced concentration and cognitive fatigue, she can no longer perform these tasks. Ms Steele also reported that the Applicant is able to make personal decisions independently, in conjunction with her husband.[57] I am of the view this is nothing out of the ordinary as it is often the case that spouses consult each other with respect to personal decisions and money management. I also note the Applicant has stated that she has her own bank account “as a pocket money account” and that she and her husband have other accounts in both names, but that her husband manages those.[58]
[57] Ms Steele’s Report, 17.
[58] Applicant’s Response, 5.
I take into account that, in response to a targeted question about self-management, Dr Savvas stated the Applicant “is not cognitively impaired. She is able to organise her life and plan and make decisions, and can take responsibility for herself. Her husband pays the bills, but any other financial decisions are done in association with her husband.”[59]
[59] Dr Savvas’ Response, 3.
Considered overall, I accept the Applicant gets some assistance from her husband, who manages their finances. While I accept her capacity to manage money may be impacted by fatigue and lower concentration, I am not satisfied this is because she has substantially reduced functional capacity in self-management. The Applicant continues to make and attend her medical appointments and to shop, and is responsible for those financial transactions. I am not satisfied the Applicant’s fatigue and lower concentration result in substantially reduced functional capacity to undertake self-management tasks.
Does the Applicant satisfy the disability requirements?
For the reasons given above, I find the Applicant’s impairments do not result in substantially reduced functional capacity to undertake any of the specified activities (mobility, self-care, communication, social interaction, learning, and/or self-management) as required by paragraph 24(1)(c) of the Act. Accordingly, she does not meet the disability requirements.
Does the Applicant satisfy the early intervention requirements?
The Respondent has submitted the Applicant does not meet the early intervention requirements because her impairments are not permanent. For the reasons given above I have formed a different view and found her impairment is permanent. However, as I have found that the Applicant does not meet the disability requirements, I must consider whether she meets the early intervention requirements.
Rule 2.5(b) of the Access Rules explains the rationale for the early intervention requirements, as an alternative to accessing the NDIS 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.
I note at time of application, the Applicant’s treating doctor, Dr Moreland indicated that early intervention supports would not be likely to reduce the Applicant’s future support needs.[60]
[60] NDIS Request Form Section 2, 16.
Having regard to all the medical evidence before me, I am satisfied the Applicant’s cervical and lumbar spondylosis conditions are long-standing, and there have been no early intervention treatments identified. Mr Sheng formed the view the Applicant may benefit from further assessment to identify assistive technology and equipment which may help the Applicant. However, Ms Steele stated the Applicant is already using commonly used items, strategies and modifications.[61] Taking into account Dr Savvas’ view that the Applicant’s impairment is long term and unlikely to improve, I am not satisfied the benefits from further assessment will have any significant impact on her functional capacity. I am not satisfied the provision of early intervention supports is likely to benefit the Applicant by reducing her future needs for supports in relation to disability. Therefore, she does not meet subsection 25(1)(b) of the Act.
[61] Ms Steele’s Report, 16.
Accordingly, I am not satisfied the Applicant meets the early intervention requirements to enable her to become a participant of the NDIS under section 25 of the Act.
CONCLUSION
I find the Applicant does not meet the disability requirements in section 24 of the Act, nor the early intervention requirements in section 25 of the Act, to access the NDIS. Therefore, the Respondent’s internal review decision dated 19 August 2021 is correct.
DECISION
The Tribunal affirms the decision under review pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).

I certify that the preceding 107 (one hundred and seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member D Connolly

................................[Sgd]........................................
Associate
Dated: 16 May 2023

Date of hearing: 10 May 2023

Advocate for the Applicant: Mr M Charlton, Synapse Australia

Solicitors for the Respondent: Ms S Hardie, HWL Ebsworth Lawyers

[2023] AATA 1206

16 May 2023

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Date of hearing:	10 May 2023
Advocate for the Applicant:	Mr M Charlton, Synapse Australia
Solicitors for the Respondent:	Ms S Hardie, HWL Ebsworth Lawyers