Guy and National Disability Insurance Agency
[2024] AATA 1212
•27 May 2024
Guy and National Disability Insurance Agency [2024] AATA 1212 (27 May 2024)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2022/5895
Re:Clifford Guy
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:M P Hunter
Date:27 May 2024
Place:Sydney
The decision under review is set aside and, in substitution, the Tribunal decides that the Applicant meets the access criteria under section 21 of the National Disability Insurance Scheme Act 2013 (Cth).
....................................[SGD]....................................
M P Hunter
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – access request – chronic pain – whether there is substantially reduced capacity – assistive technology – access granted – decision set aside and substituted.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)CASES
Cooper and National Disability Insurance Agency [2024] AATA 420
Beezley v Reparation Commission [2015] FCAFC 165
Holmes and National Disability Insurance Agency [2017] AATA 2750
Madelaine and the National Disability Insurance Agency [2020] AATA 727
Mulligan v National Disability Insurance Agency [2015] FCA 544
MHZQ and National Disability Insurance Agency [2019] AATA 810
National Disability Insurance Agency v Foster [2023] FCAFC 11Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634; (1979) 2 ALD 60.
SECONDARY MATERIALS
National Disability Insurance Agency, Our Guidelines: Applying to the NDIS,
National Disability Insurance Agency, Our Guidelines: Assistive Technology (equipment, technology and devices)
REASONS FOR DECISION
M P Hunter
27 May 2024
This application is about whether Mr Clifford Guy (the Applicant) should be granted access as a participant to the National Disability Insurance Scheme (the NDIS).
The Applicant is 59 years old. He has worked as a journalist, and a television presenter and has written a number of songs. Until his parents passed away in 2020, he had been their full-time carer for around 17 years. He lives in Nara Glen NSW, on a 115 acre property and shares ownership of the property, with his partner from whom he has separated. The Applicant’s ex-partner lives in the main house on the property with their son, who is approximately 14 years old. The Applicant has a bedroom in a separate granny flat on the property and accesses the main house for kitchen and laundry facilities. The Applicant also has an adult daughter from a previous relationship.
By application dated 20 January 2022, the Applicant applied to become a participant in the NDIS. He sought access on the basis of his chronic pain, due to degenerative disease, arthritis, cervical spondylosis, cervical radiculopathy, and osteoarthritis, as well as depression, anxiety and Post Traumatic Stress Disorder (PTSD).
On 10 February 2022, a delegate of the Chief Executive Officer (CEO) of the National Disability Insurance Agency (the Respondent) determined that the Applicant did not meet the access requirements set out in the National Disability Insurance Scheme Act 2013 (the Act).
The Applicant requested an internal review by the Respondent, and on 17 June 2022, another delegate of the CEO (the Respondent Internal Reviewer) confirmed the decision that Mr Guy did not satisfy the access criteria to become a NDIS participant (the internal review decision).
On 12 July 2022, the Applicant applied to the Administrative Appeals Tribunal (the Tribunal) for review of the internal review decision pursuant to section 103 of the Act.
A hearing was conducted by Microsoft Teams video on 6 and 9 February 2024. The Applicant was unrepresented, the Respondent was represented by counsel. The Tribunal heard oral evidence from the Applicant, Mr Anup Mangipudi, independent occupational therapist, and Mr Gary Stretton, independent occupational therapist. The Applicant was observed to participate in the hearing while lying down. He claimed to have taken additional medication in order to “get through” the Tribunal hearing. When questioned he said that he had consumed 10 mg of Targin a few hours before the hearing when he first woke, then another two just before the hearing. He had also consumed standard Panadol. He was observed to remain engaged in the hearing process, could answer questions, and, when offered a break, declined. The hearing was broken up into three intervals over the two days. The Tribunal is satisfied that the Applicant had an opportunity to engage meaningfully in the hearing process and comment on issues of concern, particularly whether he had a substantially reduced functional capacity. These issues were set out in the Respondent’s Statement of Facts Issues and Contentions which was provided to the Applicant with reasonable notice, approximately three months before the hearing. At the conclusion of the hearing, the parties were given time to file closing submissions in writing.
LEGISLATIVE FRAMEWORK
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 and the residence requirements set out in sections 22 and 23 of the Act, and so the Tribunal finds. The Tribunal must decide whether the Applicant satisfies the access criteria in section 24 (the disability requirements) or section 25 (the early intervention requirements).
As to the disability 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, the Tribunal will consider whether he meets the early intervention requirements set out in section 25 of the Act which relevantly states as follows:
A person meets the early intervention requirementsif:
(f)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
(g)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
(h)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.
Under paragraph 24(1)(b) of the Act, the Minister may also make rules prescribing certain matters. The relevant rules in the Applicant’s case are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (the Access Rules) which form part of the legislative framework.
Access Rules
5.4 An impairment is, or is likely to be, permanent (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.
The NDIS Operational Guidelines 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.[1] The relevant Operational Guideline is Our Guidelines – Becoming a participant – Applying to the NDIS (Operational Guidelines).[2]
[1] Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[1979] AATA 179; (1979) 2 ALD 634; (1979) 2 ALD 60.
[2] National Disability Insurance Agency, Our Guidelines – Becoming a participant – Applying to the NDIS.
The Operational Guidelines state:
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.
ISSUES AND EVIDENCE
As discussed in Mulligan,[3] the legislative framework requires that the Tribunal must be positively satisfied that the requirements of the Act are established in relation to a disability or early intervention before access to the scheme can be granted. As a practical matter, it is the Applicant who is to provide evidence and information sufficient to meet the statutory requirements and satisfy the Tribunal that the criteria are met.[4]
[3] Mulligan v National Disability Insurance Agency [2015] FCA 544 [55].
[4] Beezley v Reparation Commission [2015] FCAFC 165 [68].
In arriving at its decision, the Tribunal has considered not only the oral evidence at hearing but various documents including the documents filed by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act) (Exhibit R1 T-Documents), a joint hearing bundle (JTB), a Statement of Facts Issues and Contentions filed by the Respondent dated 16 November 2023 (RSFIC), documents filed by the Applicant and Respondent at hearing Exhibits A1 and R2, the Respondent’s closing submissions of 22 February 2024 and the Applicant’s correspondence of 12 and 18 March 2024, as well as his closing submissions of 15 March 2024 with annexures. It is noted further that the closing submissions of the Applicant were provided to the Respondent for consideration and comment and no objection or comment has been provided.
Does the Applicant have a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments?
Firstly, the Tribunal will consider whether it is satisfied that the Applicant has a disability that is attributable to one or more intellectual, cognitive, sensory or physical impairments, as required by paragraph 24(1)(a) of the Act.
In their RSFIC the Respondent has not taken issue with whether the Applicant satisfies paragraph 24(1)(a) of the Act and this was confirmed at the Tribunal hearing.[5]
[5] Transcript 6 February 2024 at p.7 paragraph 40
The undisputed medical evidence demonstrates that the Applicant has a “disability” arising from the impairments of:
a) chronic pain, caused by spondylosis, degenerative disease, arthritis and osteoarthritis cervical, mid thoracic and lumbar spine, knee pain caused by arthritis and osteoarthritis, arthritis of the hands, wrists and feet.
b) a psychosocial impairment as a result of diagnoses of depression, anxiety and PTSD.
The Tribunal is satisfied that these impairments cause a reduction or loss of the Applicant’s ability to function. It follows that the Applicant has a disability within the meaning of paragraph 24(1)(a) of the NDIS Act in relation to these physical and psychosocial impairments.
It is also accepted that, at the time of application, the Applicant had the condition of Hashimoto’s thyroiditis. However, the evidence does not demonstrate to the Tribunal that the Applicant has an impairment due to this condition.
Are the Applicant’s impairments permanent or likely to be permanent?
The Tribunal next considered whether the evidence demonstrated that the Applicant’s impairments are permanent such that paragraph 24(1)(b) of the Act is met.
The position of the Respondent is that the criterion in paragraph 24(1)(b) has been met in relation to the Applicants chronic pain, depression, anxiety and PTSD. However, the Tribunal must reach its own conclusion on this issue.
In the NDIS Access Request Supporting Evidence Form[6] from Dr Zong-Yuan Zhao, General Practitioner, dated 20 January 2022, reports that the Applicant has had his cervical and lumbar pain for over 10 years, is reported to have seen a rehabilitation physician, and is on opioids. Further, the Applicant has had treatment from a psychologist and psychiatrist.
[6] Exhibit R1, T1K.
In his supporting letter of 23 January 2022,[7] Dr Zhao reports that previous x-ray and CT imaging of the Applicant’s cervical and lumbar spine show cervical radiculopathy and lumbar degenerative changes, and there is definite evidence to suggest that these findings and symptoms have been going on for at least 10 years if not much more and these findings are not reversible. Additionally, the Applicant is reported to have been on anti-depressants for a very long time (>10 years) and seeing a psychologist Susan Priest and psychiatrist Dr Alan Doris.
[7] Exhibit R1, T1L.
In a report of 13 December 2019, commenting on the Applicant’s bone scan, Dr Alan Ting, notes finding of heterogeneity in the Applicant’s spine reflecting degenerative disease and active arthritis. There is active arthritis in the shoulders, both hands, wrist, and the knees and feet.[8]
[8] Exhibit R1, T1A.
Dr Susan Priest, psychologist and psychotherapist, in her report dated 2 December 2020, comments that psychological based interventions would not change the primary underlying medical and physical health situation of the Applicant.[9]
[9] Exhibit R1, T1B.
In an addendum dated 18 December 2020, Dr Priest reports that the Applicant’s condition is worsening and has reached crisis point. He was not expected to recover to any major degree.[10]
[10] Exhibit R1, T1D.
In his report dated 4 June 2021, Dr Alan Doris,[11] diagnosed the Applicant with Major Depressive episode which is chronic in the context of unremitting spinal pain, and on a background of a personality structure with probable prominent “cluster B” traits. Dr Doris assessed that stability with the Applicant’s medication and better control of the Applicant’s pain was likely to have a considerable benefit on his mental health.
[11] Exhibit R1, T1G.
Consultant rehabilitation specialist and pain physician, Dr Jenny Jin, in her report dated 22 December 2020,[12] sets out that she had been treating the Applicant for six years. She documents a 10 year history of chronic cervical, mid thoracic and lumbar spine pain, and that over the years the applicant has tried physiotherapy, chiropractic, yoga, acupuncture, dry needles, and massage plus. In addition, he has attended pain clinics for ongoing treatment. So far there is no significant change in regard to pain and his severe impairment and disability remains. He was referred to Dr Tim Siu, neurosurgeon for assessment in March 2015. The Applicant was told that surgery is not likely to help with his symptoms. Further the Applicant’s conditions were reported as stabilised, chronic in nature and unlikely to change in the future.
[12] Exhibit R1, T1E.
The evidence is that the Applicant has a lengthy period of treatment for both his chronic pain and his psychosocial conditions. To the extent that the Applicant may be a candidate for a right knee replacement in the future, the specialist evidence is that he will, for the foreseeable future, undergo long term conservative management. In the internal review decision the Respondent did not consider the Applicant’s pain in his knees to be permanent. On review the Respondent has not taken issue with the Applicant’s pain arising from his arthritis and osteoarthritis to his knees. The Tribunal confirmed at hearing that the Applicant had not undergone knee replacements and there was no current plan for such procedure. It accepts that at the time of hearing the evidence the condition was fully treated insofar as it is a part of the Applicant’s condition of chronic pain.
The Tribunal is also satisfied that the Applicant’s chronic pain, depression, anxiety and PTSD, are or are likely to be permanent, and they also meet the requirement of paragraph 24(1)(b) of the Act.
Do the Applicant’s impairments result in substantially reduced functional capacity to undertake one or more of the specified activities?
Paragraph 24(1)(c) of the NDIS Act requires an analysis of whether the impairment results in substantially reduced functional capacity to undertake one or more of the activities specified in the subsection. Those activities are communication, social interaction, learning, mobility, self-care and self-management.
Each of the activities specified in paragraph 24(1)(c) of the NDIS Act and their impact on functional capacity will be examined in relation to the Applicant’s impairments. According to Mulligan[13] the legislation requires:
... a relatively high degree of precision by decision-makers (see, for example, the six activities in s 24(1)(c)) in assessing what a person can or cannot do. The assessment to be undertaken is avowedly functional and multi-faceted.[14]
[13] Mulligan v National Disability Insurance Agency [2015] FCA 544.
[14] As above at [51].
The Full Court of the Federal Court of Australia in Foster[15] found that an individual criterion, under paragraph 24(1)(c) did not turn on whether a person impairment is ‘serious’ or more serious than another person’s, rather access is based on a functional, practical assessment of what a person can and cannot do.
[15] National Disability Insurance Agency v Foster [2023] FCAFC 11 at [44].
Some initial considerations
In closing submissions, the Respondent has contended that the Applicant in his evidence at hearing was often non-responsive and instead focused on difficulties that he was having, rather than volunteering information about the full extent of his functional capacity and circumstances more broadly. The Applicant stated, and the Tribunal observed, that he was in significant pain throughout the hearing. The Tribunal considers that his affect was consistent with that observed by his treating psychiatrist, Dr Doris, as ‘quite reactive’.[16] There was a range of emotion from anger to frustration to sadness. The Respondent has particularly submitted that the Applicant was less than forthcoming in his evidence about his property and his relationship with his ex-partner. It was the case that the Applicant showed considerable irritability at times to questions from the Respondent on these matters. These are also matters identified by Dr Priestly, Dr Doris and Dr Zhao as among the Applicant’s greatest stressors.
[16] Exhibit R1, T1G.
With respect to the Applicant’s responses at hearing to questions about his property, it is noted that on the morning of the first day of hearing the Respondent filed additional material obtained from online searches in relation to his property and the Applicant’s marketing of himself and the property. The late service of this material took the Applicant by surprise and he was clearly aggravated by not having the opportunity to consider the material. When the hearing commenced the Applicant had only been informed that the material was sent, and not himself viewed it, this presented certain difficulty for him in answering the questions posed by the Respondent’s counsel. The Tribunal also observed that this material was not new, the sale of the property is something discussed by the Applicant and his treating professionals throughout submissions in the T-Documents and the JTB. When Mr Stretton visited the property in July 2023, it was on the market for sale. At the time of hearing the Applicant gave evidence that the property was not currently for sale,[17] it had not been on the market for some time because he was not in a position to show anybody or do anything with the property. Whether or not the property is for sale is not a matter that goes to the core of the issues for the Tribunal to determine. However, the Respondent has submitted that the Applicant’s claims while marketing the property, as recently as 31 March 2023, and in an article[18] written about the property on the website, indicate that there is information suggesting commercial activities undertaken on the property particularly, with respect to accommodation and commercial tourism. It is not disputed by the Applicant that he has spent considerable time in the past undertaking heavy manual work in the process of developing and maintaining his property. The Applicant has written in submissions about trying to build something on the property that would support his family while he undertook carer responsibilities for his parents.[19] While the property may have potential for tourism development, and it is accepted that there was an area for potential campsites and sheds, and a site for a café and amenity block, the Applicant gave evidence at hearing that these were either in disrepair or incomplete. The material filed on the hearing day by the Respondent demonstrates no past or present active commercial use of the property. Aside from photographs replicated in an article by Fiona Kilman, there is no evidence of the Applicant’s ongoing involvement in any of these activities. The Applicant’s evidence was that Ms Kilman embellished because she wanted to make a good story and help sell the property.[20] The Tribunal accepts the submission of the Applicant that the photographs shown in this article depict the Applicant’s son at a considerably younger age than his current 14 years. It accepts that the photographs are not recent. Whether the Applicant was able in the past to wheel his son, as a small child in a wheelbarrow on the property several years prior to the filing of this application, is not material to the current evidence before the Tribunal of the Applicant’s conditions. The Tribunal is not satisfied that the Applicant obfuscated when responding to questions posed by Counsel. It does note, as mentioned above, he was clearly irritated and confused as to the relevance of the material which had taken him by surprise, and the Respondent’s questions. Throughout his evidence and submissions the Applicant has expressed concern with the disrepair of his property. With respect to the advertised reasons for the sale of the property being plans to move or work overseas, the Applicant described this as hope and wanting.[21] The Tribunal approaches both the Applicant’s evidence on this issue and the Respondent’s submissions with care. It is not however satisfied that the Applicant intended to misrepresent or be dishonest as to his circumstances.
[17] Transcript, 6 February 2024, p 9, 5.
[18] Exhibit R2.
[19] JTB, p 45.
[20] Transcript 6 February 2024, p 11, 15-20.
[21] Transcript 6 February 2024, p 11, 40-45.
The Respondent has also submitted that the Applicant’s use of medication is a significant issue as the Applicant seeks to attribute times when he can function reasonably to excessive (and inferentially unreasonable) amounts of medication and that there is no independent evidence of this. It is clear from the evidence that the Applicant is prescribed pain medication. Dr Zhao states in his letter of 23 January 2020 that the Applicant had been prescribed opioid medication for a long time which only partially improves his daily function.[22] The Applicant has been hospitalised following a fall for an acute onset of chronic thoracic pain and discharged with additional pain medication.[23] The Respondent has not at any time put any targeted questions to the Applicant’s treating professionals regarding this issue. The Tribunal observes that the Applicant has been open about his concern as to his reliance on medication and his attempts to reduce his dosage. Dr Doris has, in the past, made recommendations regarding the reduction of the Applicant’s medication and the interaction of prescriptions.[24] The submissions of the Applicant to the Tribunal and the Respondent are imbued with his concerns about his reliance on medication to undertake daily activities. Again, the Tribunal is not satisfied from the evidence that there is an intent by the Applicant to misrepresent this or be dishonest about his functional capacity and other aspects of his circumstances. The Applicant has voiced that he did not wish to be in a position where he is relying on the NDIS, he submitted he did not wish to put himself ahead of others and persistently attempted to minimise any potential reliance on the NDIS stating he just needed a little help. The Tribunal does not consider that he has overstated the impact of his disability on his functioning and rejects the Respondent’s submissions in this regard.
[22] Exhibit R1, T1L.
[23] JTB A7.
[24] Exhibit R1, T1G.
It is the Applicant’s use of pain medication to manage his conditions and Mr Mangipudi’s reporting of this that the Applicant took issue with immediately upon the production of his report and responses to targeted questions dated 24 May 2023. Mr Mangipudi reported that the Applicant claimed to be a pain tolerant person who did not tend to take medication, relying on yoga and exercise instead and would only take medication when in severe pain. Throughout the conduct of the matter the Applicant has stated his reliance on pain medication and his desire that this was not the case. The Tribunal does not accept that Mr Mangipudi has correctly captured the information presented by the Applicant. There is also no other evidence that at the time of Mr Mangipudi’s assessment the Applicant engaged in exercise or yoga. The Applicant has constantly objected that this statement grossly overstated his mobility and capacity. The Tribunal does note that Dr Jin had reported in 2020 that the Applicant had done yoga in the past,[25] however, it is clear on the evidence that the assessment that the Applicant could undertake this at the time of Mr Mangipudi’s report is incorrect. The Respondent has conceded this, and the Tribunal was not impressed by Mr Mangipudi’s attempts to obfuscate rather than concede the matter in his evidence at hearing claiming that as the Applicant meditated at times this was an element of yoga the Applicant performed. It does not accept his assessment of the Applicant’s use of pain medication or his claim that the Applicant manages this with yoga and exercise. There is no other evidence of any exercise being performed by the Applicant. Mr Mangipudi has also commented on the Applicant having bilateral knee replacements and his condition deteriorating from there. This is also factually incorrect. When this issue was brought to his attention at hearing, Mr Mangipudi offered that the Applicant had said he did have some treatment arthroscopy in his knees. I would consider that as a surgery.[26] The Tribunal does not consider the two treatments the same or comparable and Mr Mangipudi’s attempts to equate them raise doubts for the Tribunal about his assessment and the assumptions upon which it is based.
[25] Exhibit R1, T1E.
[26] Transcript 9 February 2024, p 50, 30-35.
Aside from these matters, there are further factual errors that the Tribunal discerns in Mr Mangipudi’s responses to targeted questions, such as the description of the Applicant using the bed post and frame for transfers,[27] when the pictures contained in his report show a bed head and no posts or frame around the Applicant’s bed.[28] Mr Mangipudi recommends in his report that the Applicant would benefit from having his toilet rails installed[29] and then responds to targeted questions that the Applicant used toilet rails in raising from the toilet.[30] His responses to targeted questions appear generally to undermine the body of his report. For example, he sets out that the Applicant is experiencing difficulty with shower and toilet transfers in his report,[31] yet, in response to targeted questions, claims he performed the task at a normal pace with normal effort.[32] In his report Mr Mangipudi reports both the Applicant having a functional normal range of movement[33] and also experiencing restricted movements.[34] In his report he sets out that the Applicant experiences pain which is aggravated when sitting on a visual analogue pain scale, further that the Applicant experienced difficulty sitting, makes recommendations for aids to assist the Applicant while sitting,[35] yet in response to targeted questions states no pain behaviour was observed while the Applicant was sitting.[36] These contradictions are of little assistance to the Tribunal. The Tribunal has significant concerns that the assessment conducted by Mr Mangipudi is factually flawed. Further, it has difficulty reconciling the comments in Mr Mangipudi’s report with his responses to the targeted questions. The Tribunal approaches Mr Mangipudi’s evidence with considerable care and it is not satisfied that significant reliance can be placed upon it.
[27] JTB R3.
[28] JTB R2 p 55.
[29] JTB R2 p 60.
[30] JTB R3 p 70.
[31] JTB R2 p 60.
[32] JTB, R3, p 70.
[33] JTB, R2, p 57.
[34] JTB, R2, p 61.
[35] JTB, R2, p 58, 59, 61.
[36] JTB, R3, p 68.
Ms Carla Minnican, occupational therapist prepared a report at the request of the Applicant. This report dated 26 May 2022, was completed via Zoom, a method that the Respondent has submitted is suboptimal for such an assessment and undermines the usefulness of her report. The Tribunal does not accept that the report is without utility. The Tribunal discussed with the independent occupational therapist qualified by the Respondent, Mr Gary Stretton, at the hearing, the process of assessment via Zoom. He acknowledged that it was not his preference but if the circumstances called for it, he could. He identified difficulties in following someone around their house and looking at their mobility on different surfaces. The Tribunal is mindful of the limitations in Ms Minnican’s report and has approached it accordingly. It notes Ms Minnican has commented on matters she directly observed as opposed to being reported to her. It is also the case the Mr Stretton identified his independence in his report and his overriding duty to provide impartial assistance to the Tribunal. In the event of any conflict, the evidence of Mr Stretton is preferred.
Evidence of Functional Capacity
In completing the Applicant’s supporting evidence form as part of his NDIS application, Dr Zhou stated that the Applicant required assistance in the activities of mobility and self-care.[37]
[37] T1K.
Applicant’s evidence
In his correspondence to the Respondent at the time of his application, dated 25 January 2022,[38] the Applicant said that the areas of most concern were mobility, self-care and socialising. He then detailed the following functional impairments:
·His sleep was terrible due to spine, knee and arthritic pain and inflammation, which rendered him constantly tired and sore.
·Getting out of bed takes an hour at least, often more as his feet and legs are too painful to walk as is his neck and spine. Often his arms were numb.
·He was exhausted by the time that he did the most basic self-care tasks like getting dressed, showering, brushing his teeth and making breakfast.
·Putting on shoes brought tears due to the bending required and stairs were now impossible for him to use.
·All aspects of his house cleaning and property maintenance were impossible for him to do. No ladders, mowing, room cleaning, vacuuming, bending, mopping, reaching or any activity requiring him to undertake exertive physical movements can be done without severe pain and risk of losing his balance.
·The result is a depressive state on top of his pain and even his creative skills as a journalist were impacted by pain, inability to focus and stress.
·He never socialised due to lack of zest, desire and depression, rendering him totally isolated and feeling long periods of hopelessness.
[38] Exhibit R1, T3.
On 21 September 2022, the Applicant wrote, The severe pain I experience every minute of every day, other than when I am so drugged up my brain finally gives up to sleep, makes it difficult to put my clothes on…[39]
[39] JTB, A2.
At hearing, the Applicant gave evidence that he felt at his age he did not feel like he should be resigned from the community just because he had injuries and needed a little help. He wanted support so he could sleep properly, get some proper treatment and get things done that he could not do. He could not bend and pick up things properly, he could not put his underwear on properly. He claimed that he could not keep getting his son to help him. He claimed to try and try but every time he woke in the morning his back was stiff as and he could not walk because of his arthritis. He said did not know where to go for help.
The Applicant said that his son and ex-wife were living in the main house on and off. He did not know their movements but claimed he would usually see them during the week at some stage.
The Applicant was asked about landscaping equipment on his property and he denied using it. He claimed that sometimes he would have to push himself past his acceptable threshold and get a broom. He did not have a choice and there was no one else to do things. When asked if he used the broom around the house the Applicant said that he did not because he had the assistance of a Safe and Supported at Home (SASH) worker to do it.
The Applicant was asked by the Respondent if it was fair to say if he felt up to it, he could mow the lawn. The Applicant responded that he never felt up to it, however he did concede that he tried to do it four months prior to the hearing, and said he spent days crying in pain afterwards because of it. The Applicant also spoke of his property deteriorating, six foot tall grass and weeds because he could not do things. He claimed that he could not sell property because he could maintain it. He said he would close the curtains and stay in his room because if he opened the curtains, the disrepair would bring him to tears. If he tried to do things, take extra tablets and push just to do a little, then he could not move for days and not sleep properly.
The Applicant was asked about his meal preparation and he said that he usually just ate sardines and cheese if no one else was there. For breakfast he just had coffee. If he ate lunch, it would be a tin of sardines or tuna. If his ex-partner and son were around, sometimes she would cook for him — which was nice. He did not eat meals with them. He very rarely did shopping, and had not driven for about 5 weeks prior to the hearing. His ex-partner would pick up his prescriptions and he had telehealth appointments now. He only relied on his ex-partner out of necessity, he claimed that he did not have a choice and that she needed to live her own life. The Applicant was asked about his claims in an email dated 4 January 2024, that his ex-partner and son were going to move away to Brisbane and he would be alone. The Applicant responded that at the time they were going to stay, everyone was at their wit’s end and it was not their job to be looking after him.
The Applicant said he walked with a walking stick. He said it was not worth the risk to walk around his property and he claimed most of the time he walked only from his granny flat to the main house or his car. Around his room he could lean on things and may not use the stick. Depending on the day, he said he could walk 150 metres; sometimes the medication works better and because he feels trapped, he will try to walk further. In relation to these times, the Applicant said he would try to be a proper father and walk with his son to the orchard and talk to him about the trees and things in nature.
The Applicant was asked about his falls and attributed his falls to pain which would just grab and take his breath away. In the past if his neck is not too stiff and he was feeling ok then he will drive. It was the only thing he had left but it was getting to the stage where he did not drive anymore because he could not, he did not feel safe. He did not have those days of feeling good anymore.
When asked about showering, the Applicant responded that he had a shower chair and he just wobbled in there and let the water run over him — he would usually just sit down. He did not have any hair and did not shave, he would probably trim his beard every three weeks. There were times when he would lay in bed and have fears because he knew that it was going to hurt just to get out of bed to take a pee, but he did not have any choice. Sometimes he did not get there in time and he had wet himself. His ex-partner and Ms Cameron (who has been assisting the Applicant with domestic tasks pursuant to a temporary SASH funding grant) have to clean up after him. He said that his ability to attend to self-care depends on when it is and if his back had locked up. There is the occasional time when he could do it and feel okay and that gave him some hope.
The Applicant said that his condition varied day to day and that sometimes he felt like he had an eel up his spine with razorblades. Sometimes he could not even put on his underwear and he will lay on the bed for four or five hours until such time as he could potentially do it. Other times he will not do it and he will lay in bed all day because he could not move. Other times he could walk to the office and get a drink from the fridge or he could drive to the shop it depended how his medication and his brain were functioning on the day. He had good moments intermittently.
Dr Zhong -Yuan Zhao, general practitioner
In his supporting letter of 23 January 2022,[40] Dr Zhao reports that the applicant’s medical complaints related to two general areas, chronic pain and major depression which are interrelated. He comments that;
Previous x-ray and CT imaging of cervical and lumbar spine shows cervical spondylosis and findings consistent with cervical radiculopathy and lumbar degenerative changes. These findings would affect his mobility and impact his ability to sleep well and perform personal grooming and ability to look after his house…
Clifford reports that he struggles on some days to get out of bed or out of the house at all which affects his ability to socialise and communicate and maintain normal human relationships. He is also experiencing relationship difficulties with his current partner which are making his depressive symptoms fluctuate.
[40] Exhibit R1, T1L.
On 13 March 2024, Dr Zhao reported, in his medical certificate, that the applicant has been ‘suffering severe disabling pain and dramatically reduced functional capacity for many years now, due to his permanent medical conditions with his spine, knees and chronic degenerative arthritis to many parts of his body.’
Dr Susan Priest, psychologist
Dr Priest recorded a history of ‘chronic anxiety with acute exacerbations and panic attacks, as well as occasional flashbacks.' She also recorded that the Applicant felt overwhelmed, fatigued, helplessness and despair much of the time. Dr Priest noted that the Applicant: ‘[c]annot see a way through the ongoing stresses and intense physical and emotional symptoms. Gets irritable, upset and angry at times, with his situation and with himself.’[41]
[41] Exhibit R1, T1B.
With respect to further treatment, Dr Priest had the following to say (errors in original):
… [the Applicant is] Now unable to function physically in roles as carer for others, care of household, no longer primary income provider because of significantly impaired health. Major adjustment issues are ongoing along with further “loss” of self- and heightened self-judgement. Feels guilty about inability to manage the limits imposed by health issues.[42]
[42] As above.
Dr Jenny Jin, Consultant Rehabilitation & Pain Physician
In her report of 22 December 2020,[43] Dr Jin indicated that she had been treating the Applicant for 6 years. At that time, she reported that ‘his current symptoms include constant pain in neck, mid thoracic and low back. It radiates to both arms and hands. It is associated with swelling and feeling of pins and needles. It is very difficult for him to function. He has stiffness in the morning. It takes a long time for him to get up from bed and carry-on personal care. It is difficult for prolonged sitting or standing. He has poor sleeping pattern and he is frequently woken up by pain.’ She further states that ‘as a result of chronic pain and loss of function he suffers from depression and that the Applicant had significant limitation in range of movement of cervical spine affecting his ability to turn his neck without turning his body trunk and bending forward to pick up or dress.’
[43] Exhibit R1, T1E.
Dr Alan Doris, psychiatrist
In his letter of 4 June 2021,[44] Dr Doris records:
Cliff describes a very disturbed sleep pattern with middle insomnia. His sleep is disturbed by pain. He describes feeling tired all the time and that he is excessively introspective. He feels other people underestimate the amount of distress that he feels and his mood is often one of anger. Though Cliff was explicit in saying that he had never physically harmed Sandy or anyone else Sandy recounted two occasions of the last three years where he has put a hand on her and on one occasion this led to her reporting the incident to her lawyer. A recent incident at the family farm led to police involvement and removal of his guns.
[44] Exhibit R1, T1G.
Carla Minnican, occupational therapist
According to a World Health Organisation Disability Assessment Schedule 2.0 (WHODAS 2.0) self-assessment administered by Ms Minnican in 2021, the Applicant scored as experiencing extreme levels of difficulty in day-to-day activities on account of his disabilities.[45]
[45] R1, T1Q.
In a letter prepared on 5 July 2022, which she identifies as addressing the decision of the Respondent Internal Reviewer, Ms Minnican states the following:
While Cliff can complete the listed daily mobility and self-care tasks in a slow or modified manner, his current performance of these tasks is considered unsafe and unsustainable in the long term. He is at risk of falls and/or further injury without intervention.[46]
[46] Exhibit R1. T1Q.
Gary Stretton, occupational therapist
Mr Stretton attended the Applicant’s premises on 27 July 2023. He reports[47] that on the day of the assessment the Applicant reported that he was experiencing a day typical of most, where has was able to perform most basic functions with medication. He also administered the WHODAS 2.0 to the Applicant and his responses provided a score of 70.45%, and an overall assessment of severe difficulty. The Applicant has maintained since the service of Mr Stretton’s report that he had taken additional medication on the day of the assessment in order to function and proceed with the assessment. Upon questioning Mr Stretton claimed that he did recall that and had only documented the Applicant’s usual dosage although he recalled that the Applicant mentioned he had been previously on a higher dosage. Mr Stretton claimed that it would be unusual for him not to document but he did not remember. He claimed that the assessment process would have been the same. He agreed that the Applicant taking more than his standard dose would have put him in less pain. The Tribunal accepts that the Applicant did take additional pain medication to assist him on the day, however it is not accepted that it was at a level three or four times his normal dose.
[47] JTB, R4.
Mr Stretton described the process of his assessment and commented that it was wholistic, commencing with a review of written information which formed the background of his report, and then he would undertake and interview component talking with a person about treatments and medication, and then talk about the activities that are relevant, and then he would ask them, depending on their diagnosis, and the relevance of activities to simulate certain things. Curiously, Mr Stretton was provided with no medical evidence as to the Applicant’s diagnoses or treatment, and only documents A5, A2, A3 and A16 of the JTB.
Lay witness statements
The Applicant’s ex-partner, Ms Sandra Salidu, in her letter of 10 October 2023, largely supports the Applicant’s contentions and states that she and her son will not be able to continue to provide the Applicant with the support that he needs.[48]
[48] JTB, A21.
Ms Belinda Cameron has been assisting the Applicant with domestic tasks pursuant to a temporary SASH funding grant. She wrote a letter of support for the Applicant on 11 October 2023, and comments that, although the Applicant was independently mobile, he was limited to light activities around the home due to his back problem. She claims to have witnessed the Applicant’s good days and bad. On most days it would only take a misstep, a slight twist or bending down to pick something up that brings a grimace and expression of pain, but on a “bad day” there is nothing that he can do and even lying on the couch does not bring relief.[49]
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.
The Applicant writes in his submission to the Respondent and the Tribunal on 14 December 2023:
Depression alone, through inability to do any more than I am doing; loneliness, stress, sleeplessness, pain and having to over medicate to survive, will cause me to lose this battle without doubt, no matter how stoic a man I once was. Everyday, feelings of hopelessness override hope, because I can see no way out of this spiral if I am abandoned. I am now nauseas more often through overbearing stress, for I will not have to occasional assistance of my son and former partner very soon, and it has already become almost non-existent, as they have their lives to get on with.[50]
[50] JTB, A27.
Dr Zhou comments, in his letter of 23 January 2022, that the Applicant reports that he struggles on some days due to his mood to get out of bed or out of the house at all which affects his ability to socialise and communicate and maintain normal human relationships. Relationship difficulties with his partner were reported to make his depressive symptoms fluctuate.[51]
[51] Exhibit R1, T1L.
The Respondent contends that although the Applicant has some reduced capacity for socialising, this appears to be mostly on account of his mobility. While the Applicant’s mobility is a factor, the Tribunal does not agree that this is mostly the reason for a reduction in capacity for the Applicant to engage in social interaction. There is evidence before the Tribunal that the Applicant’s skills required for social interaction are affected. Dr Priest when commenting on the Applicant’s current mental health at the time reported that he now feels overwhelmed fatigued, helpless and despairing most of the time. That the Applicant cannot see a way through the ongoing stresses and intense physical and emotional symptoms.[52]
[52] Exhibit R1 T1B
Ms Minnican comments that the Applicant reports that he no longer has any friends and is often lonely. She states that the Applicant’s ‘disability makes social interaction difficult as he is unable to predict his pain levels in advance to commit to any social plans. His fluctuating pain, functional capacity and fatigue limit his ability to travel to and from social events. He often becomes distracted and focused on his pain which causes him to zone out of conversations and disrupts the natural flow of social interactions.’[53]
[53] Exhibit R1, T1O
The Respondent also identifies that the Applicant was able in the past to strike up and maintain a relationship with a Russian woman online and whom he met in Thailand. The evidence from the Applicant at hearing was that this travel occurred in 2019, and while there he also had a breakdown because he was over-dosing on medication, he stated he had been overmedicating on massive doses of Targin and venlafaxine, and he could not remember booking the trip.[54] His actual evidence was that this relationship ended years ago and other than his visit to Thailand they never actually met in person. The Tribunal is unable to view the evidence of the relationship, particularly at the time of decision as a positive indicator of the Applicant’s ability to socialise.
[54] Transcript 6 February 2024, p 18, 10.
The Respondent has also claimed that the fact that the Applicant has maintained a relationship with his partner who continues to support him despite them being separated indicates that social interaction is not a significant issue for the Applicant. On the evidence however, both the Applicant and Ms Salidu note the impact of the Applicant’s impairments to the breakdown of their relationship. Ms Salidu writes that the Applicant’s pain and reduced mobility have had a detrimental effect on his outlook on life and his mental wellbeing, ‘and that their family structure has been devastated by this as have they as individuals.’[55] The Applicant’s continues to share a property with Ms Salidu and they co-parent, although the Applicant does not live in the main house on the property but in a granny flat. They are trying to sell this home. On the evidence, his care needs are such that he is reliant on Ms Salidu for assistance, and she undertakes domestic tasks, shopping, providing him with some meals, collecting his medication and accompanying him to some appointments. While Ms Salidu provides him with this assistance, it is not the evidence that she provides ongoing companionship. The Applicant does not know where Ms Salidu will go when their home sells, and he does not have an expectation that she will continue to assist him in the future. The Applicant could not answer questions posed by the Respondent with any certainty as to when Ms Salidu is currently living at the property on a weekly basis and offered that he would usually see her once a week. He did not know whether she still kept chickens at the property.
[55] JTB, A21.
There is also evidence that the Applicant’s behaviour has been inappropriate at times. His treating psychiatrist, Dr Alan Doris, reports in 2021, that Ms Salidu had recounted two occasions of the last three years where the Applicant had put a hand on her and on one occasion this led to her reporting the incident to her lawyer. He also makes comment of a recent incident at the family farm led to police involvement and removal of his guns. Dr Zhao issued a letter in relation to this event on 12 May 2021, which resulted in that Applicant being served with and AVO and charges before the court.[56] In his evidence at hearing the Applicant said that these charges were dropped.
[56] Exhibit R1, T1H.
As to the Applicant’s relationship with his son, the Applicant laments in his evidence that these interactions often involve him relying on his son for support. He will go out with his son to undertake grocery shopping, his son assists him with light housework such as washing, putting on his shoes, bringing him food from the main house. Mr Stretton records that his son was at the time of his assessment undertaking gardening tasks such as mowing. The Applicant submits that he would sooner disappear and end his life than dump the responsibilities for caring for him on his son.[57] He repeats in submissions feelings of guilt, consistent with those reported by Dr Priest, associated with the limitations of his impairments and how their impact on their interactions, with these negative feelings exacerbating his depressive condition, making him further disinclined to engage.
[57] JTB A28.
When asked about his involvement with his adult daughter at the hearing, the Applicant said that he was not involved, but they would talk from time to time, but this would elapse. He referred to her having a busy life.[58] In submissions the Applicant has claimed that it grinds on his heart that he considers himself unable to be there to provide parental support for his daughter.[59] The Applicant reports that he does not have any contact with his siblings.[60]
[58] Transcript 6 February 2024, p30, 35.
[59] JTB A28.
[60] JTB R4.
There is no material before the Tribunal that the Applicant behaves inappropriately when out in the community. There is also no evidence that the Applicant interacts socially with the community. He reports that he never socialises due to lack of zest, desire and depression.[61] He does not invite friends or neighbours into his home. He is at time unable to engage with his SASH assistant, Ms Cameron, and reports he would try at times he felt good to sit up and talk with her when she came to work.[62]
[61] Exhibit R4 T3.
[62] Transcript 6 February 2024, p13, 20
Mr Stretton comments that the Applicant was previously an avid fisherman and enjoyed travel but now spends most of his time in bed, watching documentaries or researching potential treatments for his impairments. He also observed at the time of the assessment that the Applicant interacted with him appropriately, maintained eye contact and had behaviour within socially acceptable limits.[63] The Tribunal does not equate an assessment for the purposes of the review application with a community social interaction. Without the benefit of any medical evidence or diagnosis as to the Applicant’s conditions in his briefing material, the Tribunal cannot be satisfied as to the extent that consideration of the Applicant’s diagnosed conditions informed his assessment. It does note Mr Stretton’s comments that in addition to his remote location, he noted that a barrier to the Applicant acting effectively in social situations was his lack of motivation to engage due to pain and low mood.[64]
[63] JTB R4.
[64] JTB R4
The only friends that the Applicant reports he has some friends in the United States that he probably talked to periodically, or every couple of months, on Zoom. He has no social support networks.
As discussed above the Applicant’s conduct at hearing was consistent with his presentation as described by his treating mental health professionals. He was fatigued, irritable, angry, argumentative, and prone to despair.
On the evidence the Tribunal is satisfied that the Applicant has difficulty making and keeping friends, interacting with the community, following conversations and coping with feelings and emotions in a social context. The evidence even indicates that even the Applicant’s familial relationships are falling away as over time his capacity for social interaction has deteriorated. On a practical level, even if the Applicant’s property was not situated in a rural location, the evidence does not suggest that the Applicant could interact with friends or neighbours even in the home environment. The Tribunal is satisfied the psychosocial impairments suffered by the Applicant, in conjunction with the chronic pain he experiences, result in him avoiding social interaction with people, his irritability, despair, low self-worth, feeling of helplessness and negative life circumstances lead him to believe that he has nothing to contribute and that he does have a substantially reduced functional capacity to undertake the activity of social interaction.
The Tribunal finds that the Applicant is unable to participate in the activity of social interaction or perform the tasks or actions required to undertake or participate in the activity. Accordingly, the Tribunal finds that the Applicant’s impairment of Chronic pain has resulted in a substantially reduced functional capacity within the meaning of subparagraph 24(1)(c)(ii) of the Act.
Mobility
The Operational Guidelines 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 acknowledges in its RSIFC that the Applicant does have some reduction of capacity with respect to mobility. Yet, it contends that the evidence does not demonstrate that the Applicant reaches the threshold required to establish a substantially reduced functional capacity in the activity of mobility.[65]
[65] RSFIC at 5.1.19.
The Applicant uses a walking stick, shower chair and toilet commode to undertake activities of self-care. As noted above in determining whether the Applicant meets paragraph 24(1)(c), the Tribunal is bound to apply the legislation enacted, including the Access Rules.
In Mulligan,[66] Mortimer J, explained that rule 5.8 of the Access rules operates by reference to the activities in paragraph 24(1)(c) and has a deeming effect of mandatorily including some people in the category of persons with substantially reduced functional capacity. But that this is not the end of the exercise, and a decision-make must consider whether the persons functional capacity is substantially reduced in any of the six specified domains.[67]
[66] Mulligan v National Disability Insurance Agency [2015] FCA 544.
[67] Ibid [77].
The current rule 5.8(a) of the Access Rules requires the Tribunal to consider whether the Applicant can participate effectively and completely in the activity of mobility on the basis that he is unaided by assistive technology, equipment (other than commonly used items such as glasses) or home modifications.
The Tribunal firstly considered the meaning of effectively and completely, and has had regard to the reasoning of the Full Court of the Federal Court in Foster,[68] that a person will not necessarily have a substantially reduced functional capacity simply because one task is the relevant domains is unable to be completed without assistive technology, the significance of the task to the overall concept of the activity is also relevant.[69]
[68] Foster and the National Disability Insurance Agency [2021] AATA 4738.
[69] Ibid [88].
The evidence at hearing of the Applicant was that he was using his walking stick around his yard, but most of the time in his room he could rely on the furniture for balance. Ms Minnican reports that the Applicant required a walking stick.[70] At the later time of Mr Mangipudi’s assessment in March 2023, the Applicant was observed to walk without the walking stick, although used it during outdoor access and in the community.[71] At the time of Mr Stretton’s assessment in July 2023 the applicant was using a walking stick throughout the assessment. Mr Stretton reported that the Applicant was able to walk without it but felt safer using it particularly on days when he was experiencing high pain levels.[72] Mr Stretton repeated this evidence at the hearing, which was not challenged by the Applicant. Mr Stretton also commented at the hearing that the walking stick had been inherited from the Applicant’s father who he had nursed through ill-health, it was not prescribed by a professional specifically for him. The Applicant was asked whether the walking stick was prescribed for him, and he responded that he did not know that a person could have a walking stick prescribed by a doctor, but when asked whether it had been recommended by any doctor to him, he claimed that it was just like a given.[73] The Respondent has submitted that a walking stick is a commonly used item, the Tribunal does not automatically accept this assumption. However, it is not necessary for the Tribunal to make the determination whether or not a walking stick is equipment or assistive technology because the evidence would suggest that the Applicant can mobilise inside his home without the walking stick. The Tribunal is unable to reach a positive degree of satisfaction that he is wholly and completely dependent on the item for the purposes of rule 5.8 of the Access Rules.
[70] R4 T10.
[71] JTB R2.
[72] JTB R4.
[73] Transcript 6 February 2024, p 23 8-15.
As to other items used by the Applicant, he also uses a shower chair to undertake showering and a toilet commode for toileting. The shower chair has not been prescribed by for the applicant it is another item that was previously used by his father. The Applicant also uses a toilet commode for transfers on and off the toilet. It was in use at the time of Mr Mangipudi’s report and he recommended the use of the item. Mr Mangipudi describes both these items as standard items. There is no evidence that they had been specifically modified for the Applicant’s needs, or that they have been specifically prescribed for him. It appears that these items also have been repurposed after prior use from his father. The Tribunal finds that these are commonly used items despite the Applicant’s reliance upon them to mobilise in his bathroom.
The Respondent has cited the decision of Madelaine[74] in its RSIFC as an example of the correct approach to the task of assessing a person’s function capacity. In that decision the Tribunal noted that:
[a] person has functional capacity in relation to this activity if they can move about their home, get in and out of bed or a chair, and mobilise in the community. Movement in the home does not need to be achieved by walking, a person might even crawl from room to room. The Concise Oxford Dictionary defines mobile as movable, not fixed, free to move.[75]
The Tribunal in this matter did not draw a distinction between adults and children with its emphasis on crawling. It is further noted that the Operational Guidelines have since been revised and in particular the word crawling has been removed. It is accepted that the threshold requirements for an Applicant to achieve functional capacity in relation to mobility are relatively modest, but they should also be consistent with the general guiding principles of the Act including that people with a disability have a right for respect of their dignity.
[74] Madelaine and the National Disability Insurance Agency [2020] AATA 4025.
[75] As above [104].
The Respondent has also cited previous decisions of the Tribunal, in particular Holmes[76] and MHZQ[77] where applicants who were capable of walking up to 50 metres were not to found to have substantially reduced functional capacity with respect to mobility. These decisions are not binding, and while they may be a point of comparison, such an approach may ignore the reality of people such as the Applicant who live in rural areas and in separate accommodation. In assessing the Applicant’s mobility the Tribunal has also had regard to how easily the Applicant moves around his home and community.
[76] Holmes and National Disability Insurance Agency [2017] AATA 2750.
[77] MHZQ and National Disability Insurance Agency {2019] AATA 810.
The evidence is that the Applicant’s condition fluctuates. In circumstances where a person has significant pain, it is entirely likely that they limit their movement within a range that does not produce pain or at least minimises it. Even though they would be physically capable of doing more if and when they can tolerate their symptoms. This is where the interaction with the Applicant’s pain medication comes into the assessment. Logically, when a person takes more pain killers, they experience less pain. Consequently, there is an element of complication to the assessment of the Applicant’s functional impairment in the domain of mobility. The Applicant and Mr Stretton report that the Applicant uses higher doses of medication to increase his mobility, he relies on the medication to “cut through the pain”. The Applicant does not want to over-medicate, he acknowledges that it cannot be sustained, while there may be short term benefit, the consequential pain of pushing himself to mobilise further but cause issues with his mental health, drowsiness, brain fog, gastro-intestinal problems and constipation. He relays that he has worked to reduce his medication overall.
Just as the assessment should not be characterised by what the Applicant is only able to do on a bad day, an Applicant’s functional capacity should not be unduly determined by what they can do on a good day. A holistic approach is appropriate rather than focusing on atypical instances of impairments and incapacity.
On an average day, the Applicant accepts that he can walk 150 metres with the support of his walking stick. This is a day when the Applicant identifies that his medication is working and he may try to access part of his yard. On a bad day, which Mr Stretton documents in July 2023 as the Applicant reporting to be 2-3 days per week, the Applicant remains in bed.[78] On these days the Applicant states he can barely make it to the bathroom. The Applicant has to mobilise around 30 metres one way to access the main house, which contains the kitchen, living room and laundry. The Applicant was in July 2023, leaving the house once a fortnight to undertake shopping. At this time he was assessed as needing to stop and rest on an average day after 5 minutes because of pain and fatigue.[79] The shops are located some distance from his home, The evidence at hearing was he now hardly ever goes out. He has pain, numbness and/or loss of function in his left hand[80] and is not able to carry anything that requires bilateral lifting.[81] If measured in the severity of how it effects his actual ability to mobilise around his home and the community on his current symptoms his access to the kitchen and other areas of the main house and the community are outside his capacity several days per week.
[78] JTB R4.
[79] JTB R4.
[80] Exhibit R1, T10.
[81] JTB R4.
The Applicant walks with extreme care on uneven surfaces. He moves cautiously avoiding twisting or sudden movements that may aggravate his pain. He does not traverse stairs, but is able to manage the small ramp into the main house. He cannot bend and is unable to squat. He is able to use his upper limbs to access things at weight to shoulder height. His forward and side flexion are limited. Mr Stretton commented that the Applicant will rest after mobilising for five minutes. His standing tolerance was limited to 15 minutes in July 2023. The Applicant was further assessed by Mr Stretton as having considerable difficulty with the transfer of getting up out of a lounge.[82]
[82] JTB R4.
Falls
The Tribunal has also considered the evidence of the Applicant’s falls under the functional domain of mobility. On the material before the Tribunal the Applicant has had around eight significant falls since he lodged the review application and been hospitalised as a consequence of four them. Most incidents have occurred when he has been accessing the bathroom.
Ms Minnican commented in her report of 26 May 2022, that the Applicant scored 14/20 on the falls risk assessment tool which denoted a medium risk of falls but that the Applicant’s regular consumption of opioid pain medication automatically places him in the high-risk category.[83] She also commented that the Applicant reports having three falls in last few months. These falls occurred while walking on the uneven outdoor path between his dwelling and the main house. One of the falls resulted the Applicant remaining bedbound for several days due to severe back pain.
[83] Exhibit R1, T1O.
On 8 October 2022, in his correspondence to the Respondent the Applicant reports that he has had two more falls and was lucky to stay out of hospital.
On 16 October 2022, in his correspondence to the Respondent the applicant reports being in a state of complete stress, helplessness and pain, and comments that he is responding to the Respondent ‘despite my circumstances which leave me on medication and mostly in bed.’[84]
[84] JTB A6.
On 14 November 2022, the Applicant submitted a discharge summary from Coffs Harbour Medical Campus. The Applicant reported that ‘(u)unfortunately after a nasty fall in the bathroom due to severe spinal vertebral spasm and loss of balance/mobility, I was rushed to hospital via ambulance on 8 November 2022 where I remained for 3 days.’[85] The discharge summary is consistent with the Applicant’s submission and reports the complaint of ‘acute onset thoracic pain and nasty fall in the bathroom due to several spinal/vertebral spasms. Loss of balance.’[86]
[85] JTB A9.
[86] JTB A7.
On 17 July 2023,[87] the Applicant reports;
I had another fall, this time in my bathroom; due to pain and resulting loss of balance.
This fall further damaged and inflamed by existing cervical spinal degeneration – injuries; my knee and hip. I was admitted to hospital on July 3rd and have been recovering ever since in bed with intense migraines, severe spinal pain and increased mobility restrictions. God knows what I would have done were it not for the assistance of my 13 year old son. This is TOO MUCH on him.
[87] JTB A18.
Ms Salidu states in her letter of 10 October 2023, that the Applicant has had numerous falls inside his room attempting to get to the bathroom and that she and that Applicant’s son were in constant vigilant alert as to his mobility.[88]
[88] JTB A21.
On 14 December 2023,[89] the Applicant referred to another hospitalisation and claimed that he had ‘applied through Coffs Harbour Hospital for the [report] from this most recent fall and nerve pain attack.’ He further claimed:
I am seriously fearful of more falls and severe pain attacks stemming from my spinal conditions and increasing lack of sleep. I am barely managing to get through each day; overdosing on medication to mask the pain - forcing myself to do tasks I have been strongly advised by all medical experts to not do. I am eating poorly, restricting thorough personal hygiene to every 2 weeks, and existing as simply as possible, with zero social interaction.
I do not over-medicate or do tasks that hurt me and place me at risk by choice; I have no choice, and I know and feel mentally and physically, this path of masked-pain, hobbling survival is a sure one to permanent admission to hospital and a wheelchair or worse, without enough help to get my life back in some capacity.[90]
[89] JTB A27.
[90] JTB A27.
Discharge Referral Notes from Coffs Harbour Health Campus dated 30 November 2023,[91] provided by the Applicant post hearing, documents:
Presenting complaint:
Triage Presenting Information: L) sided thoracic pain
Acute on chronic back pain
Fall on to knees yesterday post spasm
Nil trauma to chest or abdo
Increasing discomfort since.
[91] Applicants Final Submissions.
On 4 January 2024, the Applicant claimed that his correspondence was ‘the first time in 4 weeks he had been able to get out of bed, other than to go to the toilet …..’ He further reported:
In a desperate attempt to clean in my filthy room, another acute nerve attack shot from my spine-vertebrae down my left side, closing my eyes in pain, and forcing me to try to make it to my bed quickly to avoid falling on the floor. I lost balance, jammed my foot and broke it, falling onto my bed in agony.[92]
[92] JTB A28.
Post hearing the Applicant has advised he was again taken hospital after another bad fall on the way to the bathroom.[93] The Discharge Referral Notes from Coffs Harbour Health Campus dated 20 February 2024, that were submitted with the Applicant’s final submissions document ‘the presenting complaint is pain, upper limb and shoulder.’
[93] Applicant’s Final Submissions.
The Respondent has argued that it appears the Applicant’s falls have been occasional and that the cause is unclear on the medical evidence and that rather than being caused by a balance or vestibular issue, it appears to be the onset of pain which could occur anywhere in the body. However, the Respondent has accepted, and the Tribunal has so found, that there is a permanence to the Applicant’s chronic pain condition. The Respondent also makes reference to Mr Stretton’s recollection of the Applicant describing a toothache at hearing.[94] The Tribunal notes in his responses to questions annexed to his report, Mr Stretton does not attribute any falls to a toothache, instead comments that the Applicant reported four falls, all which were related to intense ‘blackout’ pain rather than balance issues.[95] Mr Stretton stated when questioned at the hearing that he had did not have professional experience in the assessment of this kind of pain.[96] He was also not briefed with any medical evidence relating to the Applicant’s condition. On the evidence the Tribunal is satisfied that the Applicant’s falls are caused by his chronic pain, the condition for which he is seeking access to the NDIS.
[94] Transcript, 9 February 2024 at p 42, 35-40.
[95] JTB R4.
[96] Transcript 9 February 2024, p 43, at 5.
It is acknowledged that there are contributing factors to the Applicant’s fall being his medication and his lack of sleep. These contributory factors that are both reported consequences of the Applicant’s accepted disability, his chronic pain and his attempts to manage this pain and are not in the assessment of the Tribunal a separate issue.
It is apparent on the Applicant’s evidence that there has been a deterioration of the impact of his conditions on his functional capacity since he was last assessed by Mr Stretton. The Respondent has argued in final submission while this is possible, there is no medical evidence to support such a proposition.[97] The medical evidence is that the conditions which result in the Applicant’s chronic pain are degenerative. Mr Stretton also confirmed in his evidence that it was ‘quite possible’ that the Applicant had gone downhill without support since the time of his assessment.[98]
[97] Respondents Closing Submissions 3.21.
[98] Transcript 9 February 2024, p 48 at 44.
The Tribunal is satisfied that the Applicant’s chronic pain has an adverse effect on his capacity to move around his home, and his capacity to move about in the community and to perform tasks that require the use of his limbs. The Tribunal is satisfied that the Applicant’s physical function is reduced with respect to undertaking mobility activities, and these extend beyond moving more slowly or differently to others. The Applicant’s mobility activity is affected by his chronic pain and concern he will fall and further injure himself. They therefore reflect the impact of his physical and psychosocial impairments. On a holistic assessment of the things that the Applicant can and cannot do in the domain of mobility, the Tribunal is satisfied that the Applicant has a substantially reduced functional capacity.
Accordingly, the Tribunal finds that the Applicant’s permanent impairments have resulted in a substantially reduced functional capacity within the meaning of subparagraph 24(1)(c)(iv) of the Act.
Self-care
The Operational Guidelines with respect to self-care state 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 Tribunal’s consideration of the domain of self-care, it is noted that some considerations overlap with the domains of mobility and it has consider activities of the Applicant that are relevant to his self-care.
The Applicant stated at hearing that in the good moments, which did not happen very often, he will have to be very careful because he does not want to overdo it. He could dress himself slowly, he could groom himself slowly, he could go the pantry to get a tin of sardines, and sometimes he will take the dirty clothes on his bed and throw them in the laundry. Sometimes he would wash up. Sometimes he drives but that is increasingly rare.[99] He utilises a range of strategies to function on his own, and has restricted the activities that he engages in, modifies his movements, paces himself, increases his medication, improvising and doing small bursts of activity.
[99] Transcript 6 February 2024, p 29., 15-20.
Dr Zhao reports that the Applicant’s chronic pain impacts his ability to sleep.[100] This is corroborated by the evidence of the Applicant, Ms Minnican,[101] Dr Jin,[102] and Ms Salidu. He is reportedly waking up to 8 times per night. This contributes to his physical fatigue, his psychosocial condition and his ability to undertake daily tasks. This domain is also impacted by the Applicant’s falls.
[100] Exhibit R1 T1L
[101] Exhibit R1 T10
[102] Exhibit R1 T1E
The Applicant is reliant upon his shower chair and toilet commode to for self-care to shower and toilet. In his evidence at hearing the Applicant claimed that he just wobbled there on the chair on the shower and let the water run over him. Also, on his bad days the Applicant reports being bedridden, and he may be unable make it to the bathroom. This is not a new claim, as suggested by the Respondent in their closing submissions. Ms Salidu has referenced the Applicant’s difficulties in this regard in her letter of support of 10 October 2023. The Applicant gave evidence at hearing with respect to lying in bed in so much pain that he would put off going to the bathroom because he knew it was going to hurt and it would often be the case he could not get there in time.[103] On these occasions his evidence is he would have to rely upon the assistance of Ms Cameron or Ms Salidu to clean up after him. He has modified ways to dress his lower body, seated or lying down or at times requiring the assistance of others to put on his underpants. The Applicant referred in his evidence to times when he may take hours to dress or he just could not manage this task. This is not just moving slowly in taking hours to attend to his dressing the Applicant is not completing these tasks within a reasonable timeframe. The Applicant has adapted to require minimal grooming. He does not have any hair. He has grown a beard which he reports that he trims every couple of weeks. He is unable to reach his toenails and his family will assist with this task. The Applicant requires assistance from others with these tasks.
[103] Transcript, 6 February 2024, p 24, 30-35.
With respect to his meal preparation, the Applicant agreed that he is able to prepare a simple meal when he feels up to it. However, when asked about the meals he prepares himself, the evidence of the Applicant at hearing was that he did not eat breakfast and would rely instead on a cup of coffee. For lunch he may have some tinned tuna or sardines and dinner would be something similar.[104] Mr Mangipudi also reports that the Applicant can make simple meals, that he was struggling to stand and work in the kitchen for prolonged periods and would at times rely on Ms Salidu.[105] Mr Stretton was asked about what he understood to be the Applicant’s simple meals, and he also referred to the Applicant specifically mentioning tuna. Mr Stretton further said the Applicant would have a meal of eggs or sweet potatoes, and that the Applicant had a microwave in his granny flat which he was able to heat up meals brought to him.[106] These meals brought to him would be meals prepared by Ms Salidu, not meals that the Applicant had pre-prepared. It is accepted that the Applicant can feed himself and does not have difficulty eating or swallowing. Yet, on the spectrum of simple meals, the evidence of the task the Applicant can undertake is the barely the preparation of a meal, rather the heating of an ingredient. In his submissions of 4 January 2024, the Applicant claimed that food was a serious problem for him. On days when he remains in bed the Applicant spoke of going thirsty rather than enduring the pain of mobilising to get a glass of water.[107] Generally, on the evidence however, the Applicant can get food for himself, however other than the opening of a can or heating up an ingredient, he relies on others for the preparation of meals. The extent of the Applicant’s reliance on Ms Salidu and his son for assistance borne out in the Applicant’s submission of 24 October 2023, in their absence the Applicant writes:
“I have run out of water here, my son and former partner can no longer care for me, and I will have little choice but to admit myself to hospital. I haven’t left my bed for 6 days and I can’t fend for myself. Please help…”[108]
[104] As above p 14, 1-5.
[105] JTB R2.
[106] Transcript 9 February 2024, p 45, 7-15.
[107] Transcript 6 February 2024, p 28, 28.
[108] JTB A24
The Applicant does not undertake cleaning of his granny flat. His cleaning demands are modest, his granny flat consists of a bedroom and bathroom. Ms Cameron undertakes this cleaning for him weekly. He cannot reach or bend to use a vacuum or pick items up off the floor. The Applicant requires physical assistance for tasks such as mopping, sweeping, vacuuming, cleaning windows and surfaces. The Applicant can do some light tasks at waist height. He conceded that if he had dropped food on the floor, he could manipulate a broom to sweep the ants away. He did not say he could pick up the food. When the Applicant was questioned about washing the dishes, some days he said he could not manage it, he would mostly leave things for Ms Cameron. He reported often re-using items and commented that he did not use a lot of things as his meal preparation is extremely simple. He does not generate a lot of washing. But on a good day he can wash a cup and he will try to wash it if he is using the main kitchen and Ms Salidu and his son are home. Overall he is substantially reliant on others for cleaning duties.
The Applicant on a good day can put his washing, item by item, into the machine. He is assisted by his son to hang out his clothes on the airer which photographs depict inside the laundry of the main house. Mr Stretton comments that he does not use the clothesline. The evidence does not suggest that the Applicant could mobilise outside to access the line with washing, or that he could lift or hang the items overhead on a line. The Tribunal is not satisfied that the Applicant can remove items from the washing machine. During the hearing Mr Stretton also commented that removing wet items from the washing machine was different matter for the Applicant.[109] As the Applicant cannot carry and mobilise between his granny flat and the main house, he requires the assistance of others to deliver his laundry to his room or anything else he needs. His clothes are reported to be left on furniture in the room for his easy access.[110] He requires substantial assistance to complete this task.
[109] Transcript 9 February 2024, p44, 8
[110] JTB R4.
The process of grocery shopping was at the time of Mr Stretton’s assessment in July 2023, a task performed around fortnightly. The Applicant has been able to drive himself to the shops. When he goes, he will be accompanied by his son who carry the shopping basket or will push the trolley for the fifteen minutes that the Applicant is able to mobilise around the shopping centre. The Applicant is unable to carry the groceries and mobilise, his son will carry any bags and transfer them to and from the car. The Applicant requires physical assistance to complete this task. He maintains that he will undertake shopping trips on a good day and will load with pain killers prior to such activity. At the time of Mr Stretton’s assessment. the Applicant had not considered online shopping, because he felt that he needed a reason to leave his home. At the hearing the Applicant indicated that it was something he was starting to explore, as all the hope in the world would not get him to the shops on days when he just can’t.[111] Even if the Applicant does shift to ordering his groceries online, the Applicant’s impairments are such that the Tribunal is not confident that he would be able to collect his groceries from where they are left and put them away, given the evidence of his inability to bend, his left hand weakness, the fact that he mobilises with a walking stick and his limitations on carrying. He requires assistance with this task.
[111] Transcript 6 February 2024, p 25, 5-10.
The Applicant has in the past been able to drive 30 minutes to attend medical appointments. He has been independent attending such appointments in the past, although Ms Salidu claims she has at times accompanied him. At hearing it was the evidence of the Applicant that he is reliant on telehealth for medical appointments and the assistance of Ms Salidu to collect his prescriptions. His evidence at hearing was that he does not feel safe to drive the distance now. After his falls he has required the assistance of the ambulance on repeated occasions to obtain medical treatment. The evidence is that the Applicant requires assistance to access medical treatment. However, he has the capacity to understand and administer his own prescribed medication.
The Applicant’s property is large, it is one that requires ongoing maintenance. It is one of the reasons that the Applicant has stated he has applied for access to the NDIS. While there has been discussion about attempts to sell the property, it is not currently on the market and remains currently one of his day-to-day responsibilities. It is something that has previously brought him pleasure and he had ambition to develop into a kind of ‘eco-retreat’. The evidence is unclear whether this actually ever happened, and as discussed above the Tribunal is satisfied, despite any inferences made by the Respondent, that there is no ongoing commercial activity at the property. His property has been his life for over a decade and it is part of his self-care. The Applicant’s driveway requires maintenance for the purposes of accessing his home, the Applicant is unable to undertake this. The lawn around his yard requires mowing, this is something that Mr Stretton report’s that the Applicant’s son has been responsible for. As he cannot maintain even the area around his room causes him to leave the curtains closed. The need for maintenance around his property is something that Applicant claims he lies in bed and ruminates on. He has pushed himself past his limits in order to try to address the disrepair. He tried at least four months ago to tend to the lawn. It was something he claimed left him bedridden and crying for days. He cannot bend to undertake the activities of weeding. Due to pain, fatigue and his inability to walk around outside without his walking stick he cannot rake leaves or do chores that require him to use equipment such as a ladder, whipper snipper, hedger to trim bushes or manoeuvre bins. He requires substantial assistance for these tasks.
When the Tribunal considers the group of tasks that form the actions of self-care, and what tasks within this that the Applicant can and cannot do, it is apparent that he relies on assistance for a number of these tasks. Particularly, the activities of meal preparation, shopping, health care, domestic cleaning and property care. In this regard the Tribunal has considered the application of rule 5.8(b) of the Access Rules. The term ‘assistance’ in rule 5.8(b) incorporates physical assistance, guidance, supervision and prompting. The Tribunal is satisfied that the type of assistance that the Applicant requires, or needs, is physical assistance. He does not need to be guided, supervised, or prompted. The Tribunal is also satisfied that particularly in the activity shopping, seeking medical treatment, household maintenance and domestic tasks that the Applicant requires a high level of assistance. The Tribunal would still find that the Applicant usually required assistance in the domain of self-care because of his inability to complete key domestic tasks, meal preparation, seeking medical treatment and undertaking shopping or household maintenance without physical assistance.
Accordingly, the Tribunal finds that the Applicant’s impairment of Chronic pain has resulted in a substantially reduced functional capacity within the meaning of subparagraph 24(1)(c)(v) of the Act.
While it is only necessary for the Applicant to demonstrate that his impairments have resulted in a substantially reduced functional capacity in one of the specified activities, the Tribunal is satisfied that this is so for three of the specified activity domains of mobility, self-care and social interaction. On this basis the Tribunal concludes that the Applicant meets the requirements in paragraph 24(1)(c) of the Act.
Do the Applicant’s impairments affect his capacity for social or economic participation?
The Tribunal is satisfied on the evidence that the Applicant’s impairments discussed in these reasons clearly affect his capacity for social and economic participation. The Respondent has not taken issue with this. While the Applicant hopes he may in the future be able to write songs or children’s books, or do voice over work, such ambition is within the limitations of his current conditions and is not in the form of any sustained or regular employment in the future.
The Tribunal finds that the requirements of paragraph 24(1)(d) of the Act are met by the Applicant.
Will the Applicant require support for his lifetime?
While access to the NDIS may reduce further deterioration and deconditioning of the Applicant, the Tribunal is satisfied that the Applicant’s conditions are long-term, permanent and degenerative.
In his statement of lived experience to the Agency on 25 January 2023, the Applicant set out that he needed help by way of property maintenance inside and out, some aids such as a lift chair, lumbar supported office chair to help him use email, and for showering. He claimed to need a mobility unit for getting around his property and he would like to set up his dwelling for greater comfort and support to avoid excessive pain or falling. He wanted some help so his son was not overly impacted by watching his decline. [112]
[112] Exhibit R1 T3
To the extent that the Respondent’s submissions on this issue stem from the fact that the Applicant had not established that he had a substantially reduced functional capacity in any of the domains set out in paragraph 24(1)(c) of the Act, for the reasons given above the Tribunal disagrees with this.
The Respondent’s has also argued that the support that the Applicant requires is largely in the form of domestic assistance, and items of equipment to assist with toilet transfers and improve his capacity to a dress himself. It is acknowledged that the Applicant has attempted in his evidence and submissions to diminish his needs in an attempt to justify his request for assistance, he has frequently claimed that he just wants a little help, and consequently that he would not be a burden on the NDIS. The Tribunal has found, as set out above, the assistance required by the Applicant is not just for household domestic tasks. It is not satisfied on the evidence that the two hours of assistance per week through SASH currently meets the needs of the Applicant, given that he continues to rely heavily on his ex-partner and son. Further, the Applicant has repeatedly submitted that his SASH package is for a limited time and the Respondent has not demonstrated that the Applicant will continue to remain eligible. It is not satisfied that other services such as the SASH will be sustained or can adequately address the Applicant’s disability needs.
The Tribunal is satisfied that the evidence indicates that the Applicant is likely to require support his lifetime under the NDIS.
The Tribunal finds that the Applicant meets the requirements of paragraph 24(1)(e) of the Act.
Conclusion
There is no dispute that the Applicant’s meets the requirements of sections 22 and 23 of the Act.
For the reasons given above, the Tribunal is satisfied that the Applicant meets the disability requirements set out in section 24 of the Act.
As the Applicant meets the disability requirements it is not necessary for the Tribunal to consider whether he meets the early intervention requirements.
Accordingly, the Tribunal finds that the Applicant meets the access criteria set out in section 21 of the Act.
DECISION
The decision under review is set aside and, in substitution, the Tribunal decides that the Applicant meets the access criteria under section 21 of the National Disability Insurance Act 2013 (Cth).
I certify that the preceding 137 (one hundred and thirty-seven) paragraphs are a true copy of the reasons for the decision herein of M P Hunter
........................................................................
Associate
Dated: 27 May 2024
Date(s) of hearing:
6 and 9 February 2024
Applicant:
In person
Counsel for the Respondent:
Mr Nesbeth, Sir Anthony Mason Chambers
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