Hall and National Disability Insurance Agency

Hall and National Disability Insurance Agency [2024] AATA 3151 (4 September 2024)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2022/5584
Re:Brett Hall
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Member, Dr K Dodd
Date:4 September 2024
Place:Perth

The Tribunal affirms the decision under review pursuant to paragraph 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).
......................[Sgd]..................................................
Member, Dr K Dodd
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – access criteria – Klinefelter syndrome – lumbar spondylosis – osteoporosis – osteoarthritis – depression and anxiety – lower back pain – hypopituitarism – whether the impairments are, or are likely to be, permanent – consideration of whether surgical intervention is an appropriate evidence-based treatment – whether impairments have resulted in substantially reduced functional capacity – assistive technology, equipment and home modification – decision affirmed.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 43(1)(a)
National Disability Insurance Scheme Act 2013 (Cth) ss 3, 4, 21, 21(1), 24, 24(1)(a), 24(1)(b), 24(1)(c), 24(1)(d), 24(2), 24(3), 25, 27, 209(1)
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) r 5.4, 5.6, 5.7 5.8, 5.8(a), 5.8(b). 5.8(c)
CASES
Coventry and the National Disability Insurance Agency [2024] AATA 259
Madelaine and National Disability Insurance Agency [2020] AATA 4025
Military Rehabilitation and Compensation Commission v Katterns [2017] FCA 641
Mulligan v National Disability Insurance Agency [2015] FCA 544
National Disability Insurance Agency v Foster [2023] FCAFC 11
National Disability Agency v Davis [2022] FCA 1002
Nika and National Disability Insurance Agency [2021] AATA 2127
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634
Rooney and National Disability Insurance Agency [2021] AATA 3523
SECONDARY MATERIALS
National Disability Insurance Agency, Our Guidelines – Becoming a participant – Applying to the NDIS, (Web Page) < FOR DECISION
Member, Dr K Dodd
BACKGROUND

Mr Hall (the Applicant) is a 63-year-old man who seeks access to the National Disability Insurance Scheme (the NDIS).
He has several medical diagnoses including:
(a)Klinefelter Syndrome;[1]
[1] Klinefelter syndrome is a congenital condition, where males are born with one or more extra X chromosomes.
(b)Postoperative hypopituitarism following trans-sphenoidal surgery to treat acromegaly;[2]
[2] Exhibit Tender Bundle (TB1), p 89.
(c)Osteoporosis;[3]
[3] TB1, p 214.
(d)Bilateral osteoarthritis of his knees;[4]
(e)Chronic back pain from a combination of vertebral osteoarthritis and thoracic vertebra T12 crush fracture;[5]
(f)Degenerative bilateral shoulder joint arthropathy/tendinopathy[6] and large left rotator cuff tear;[7]
(g)Aortic valve replacement for severe aortic stenosis;[8]
(h)Previous coronary artery bypass graft;[9]
(i)Peripheral vascular disease;[10]
(j)Previous right leg deep vein thrombosis (DVT) and pulmonary embolism;[11]
(k)Type 2 diabetes;[12]
(l)Major depression, post-traumatic stress disorder and anxiety;[13] and
(m)Peripheral sensorimotor neuropathy.[14]
[4] TB1, p 215.
[5] TB1, p 215.
[6] TB1, p 215.
[7] TB1, p 515.
[8] TB1, p 209.
[9] TB1, p 89.
[10] TB1, p 89.
[11] TB1, p 209.
[12] TB1, p 209.
[13] TB1, p 209.
[14] TB1, p 532.
The Applicant is in receipt of a disability support pension. He previously worked as a courier up until 2021.[15] He lives alone in a three-bedroom single story house in suburban Perth which he owns.[16] He has a sister who lives in a nearby suburb who provides informal support.
[15] Transcript 3 July 2024, pp 22-23.
[16] Transcript 3 July 2024, p 12.
In April 2022, the Applicant applied to the National Disability Insurance Agency (the Respondent) to access the NDIS by submitting an Access Request Form.[17] In the request form the Applicant’s general practitioner, Dr Rosein Saweris, referred to the following disabilities:[18]
[17] TB1, pp 43-52.
[18] TB1, p 57.
(a)Klinefelter syndrome;
(b)Acromegaly;
(c)Hypopituitarism;
(d)Right DVT and pulmonary embolism;
(e)St Jude’s aortic valve replacement;
(f)Osteoporosis – T12 fracture;
(g)Polyarthritis;
(h)Back pain – osteoarthritis lumbar spine; and
(i)Depression and anxiety.
On 14 May 2022, a delegate of the Chief Executive Officer (CEO) of the Respondent determined that the Applicant did not meet the access criteria set out in the National Disability Insurance Scheme Act 2013 (the NDIS Act) (the Original Decision).[19]
[19] TB 1, p 22.
On 6 June 2022, the Applicant sought an internal review of the Original Decision. A letter dated 1 June 2022[20] and a further supporting evidence statement dated 9 May 2022[21] was provided by Dr Saweris. In the evidence statement, Dr Saweris identified the following as the Applicant’s impairments:[22]
(a)Polyarthritis – in the knees, left shoulder and lumbar spine;
(b)Chronic lumbar pain;
(c)Osteoporosis;
(d)Depression;
(e)Past right leg DVT and pulmonary embolism; and
(f)Aortic stenosis.
[20] TB1, pp 78-80.
[21] TB1, pp, 82-87.
[22] TB1, p 83.
An internal reviewer confirmed the Original Decision on 23 June 2022.[23] The internal reviewer accepted that, with regards to osteoporosis, polyarthritis and chronic lumbar pain, the Applicant has a disability attributable to a physical impairment. They also accepted, regarding depression, that the Applicant lives with a disability attributable to a psychosocial impairment. The internal reviewer was satisfied that these impairments affected his capacity for social and economic participation. They were not satisfied, however, that the impairments were permanent. This is the Reviewable Decision currently before me.
[23] TB1, p 22.
On 6 July 2022 the Applicant applied to the Administrative Appeals Tribunal (the Tribunal) for review of this decision.[24]
[24] TB1, pp 16-20.
THE LEGISLATIVE FRAMEWORK
Amendments to sections 24 and 25 of the NDIS Act came into effect on 1 July 2022. Both the Original Decision and the Reviewable Decision were made prior to these amendments. The Applicant applied to the Tribunal on 6 July 2022, after the amendments came into effect.
Prior to 1 July 2022, a person met the disability requirements under paragraph 24(1)(a) if:
the person has a disability attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or to one or more impairments attributable to a psychiatric condition…
Prior to 1 July 2022, a person met the early intervention requirements under subparagraph 25(1)(a)(ii) if the person:
has one or more identified impairments that are attributable to a psychiatric condition and are, or are likely to be, permanent…
The amendments removed reference to impairments ‘attributable to a psychiatric condition’ and replaced them with impairments to which a ‘psychosocial disability is attributable’.
As the application to the Tribunal occurred after 1 July 2022, the Tribunal must consider this matter under the current NDIS Act.
The objects of the Act are set out in section 3 of the NDIS Act. These include giving effect to Australia’s obligations under the Convention of the Rights of Persons with Disabilities[25]; supporting the independence and social and economic participation of people with a disability; providing reasonable and necessary supports for participants; and enabling people with disability to exercise choice and control in pursuit of their goals. Section 4 sets out general principles guiding actions under the Act. These include that people with disability have the same right as other members of society to realise their potential and should be supported to participate in and contribute to social and economic life. They should also have certainty that they will receive the care and support that they need over their lifetime. I have considered the objects and general principles of the Act in making my decision.
[25] Australian Treaty Series [2008] ATS 12.
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).
(Original emphasis.)
There is no dispute the Applicant satisfies the age and residence requirements. Accordingly, the matters in issue are whether the Applicant satisfies the access criteria in section 24 (the disability requirements) or section 25 (the early intervention requirements) of the NDIS Act.
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.
(3) For the purposes of subsection (1), an impairment or impairments that are episodic or fluctuating may be taken to be permanent, and the person may be taken to be likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the episodic or fluctuating nature of the impairments.
(4) Subsection (3) does not limit subsection (2).
(Original emphasis.)
The requirements of subsection 24(1) of the NDIS Act are cumulative and all criteria must be met.
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 state as follows:
(1)A person meets the early intervention requirements if:
(a)    the person:
(i)has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent; or
(ii)has one or more identified impairments that are attributable to a psychiatric condition and are, or are likely to be, permanent; or
(iii)is a child who has developmentaldelay; and
(b)    the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person's future needs for supports in relation to disability; and
(c)    the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by:
(i)mitigating or alleviating the impact of the person's impairment upon the functional capacity of the person to undertake communication, social interaction, learning, mobility, self-care or self-management; or
(ii)preventing the deterioration of such functional capacity; or
(iii)improving such functional capacity; or
(iv)strengthening the sustainability of informal supports available to the person, including through building the capacity of the person's carer.
Note:        In certain circumstances, a person with a degenerative condition could meet the early intervention requirements and therefore become a participant.
(1A)For the purposes of subparagraph (1)(a)(i) or (ii), an impairment or impairments that are episodic or fluctuating may be taken to be permanent despite the episodic or fluctuating nature of the impairments.
(2)The CEO is taken to be satisfied as mentioned in paragraphs (1)(b) and (c) if one or more of the person's impairments are prescribed by the National Disability Insurance Scheme rules for the purposes of this subsection.
(3)Despite subsections (1) and (2), the person does not meet the early intervention requirements if the CEO is satisfied that early intervention support for the person is not most appropriately funded or provided through the National Disability Insurance Scheme, and is more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or through systems of service delivery or support services offered:
(a)    as part of a universal service obligation; or
(b)    in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
(Original emphasis.)
The Minister may, under section 27 and subsection 209(1) of the NDIS Act, make rules prescribing matters. The rules relevant to this matter are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (the Access Rules), which form part of the legislation. The Tribunal is bound to apply the legislation as enacted, including the Rules.
The NDIS Operational Guidelines also assist in making decisions in accordance with the Act. Operational Guidelines represent government policy and should be applied by the Tribunal unless there is good reason not to do so.[26] The relevant Operational Guideline is Our Guidelines – Becoming a participant – Applying to the NDIS (Operational Guideline).[27] The latest update of the Operational Guidelines is dated 1 February 2024.
[26] Re Drake and Minister for Immigration and Ethnic Affairs(1979) 2 ALD 634.
[27] National Disability Insurance Agency, Our Guidelines – Becoming a participant – Applying to the NDIS, (1 February 2024) (Web Page) <>
The Tribunal must decide whether the Applicant meets the access criteria set out in section 21 of the NDIS Act to become a participant in the Scheme. As mentioned, the Respondent accepts that the Applicant meets the age requirements and the residence requirements specified in sections 22 and 23 of the NDIS Act, which comprise the access criteria under paragraphs 21(1)(a) and (b) of the NDIS Act.
The Respondent accepts the Applicant meets the elements of the disability requirements in paragraph 24(1)(a) of the NDIS Act in that he has a disability attributable to impairments of osteoporosis, polyarthritis, chronic lumbar pain and depression.[28] The Respondent has focused on conditions rather than specifying the nature of the Applicant’s impairments. The impairment or impairments attributable to disability need to be identified with some precision, because the threshold questions on permanency (paragraph 24(1)(b)) and substantially reduced function (paragraph 24(1)(c)) operate not on the concept of disability, but on the concept of impairment.[29] As such, the Tribunal will consider whether it is satisfied that the Applicant has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or one or more impairments to which a psychosocial disability is attributed. However, the Respondent contends that the Applicant’s circumstances do not meet the criteria in paragraph 24(1)(b), because his impairments are not, or are not likely to be, permanent.[30] Therefore if the Tribunal finds the Applicant meets paragraph 24(1)(a), it will consider whether it is satisfied any impairment is permanent.
[28] TB1, p 5 at [28].
[29] Mulligan v National Disability Insurance Agency [2015] FCA 544 (Mulligan) at [51].
[30] TB1, p 6 at [33].
The Respondent contends that the Applicant’s circumstances do not meet the criteria in paragraph 24(1)(c), because his impairments do not result in substantially reduced functional capacity to undertake one or more of the six specified activities of communication, social interaction, learning, mobility, self-care, and self-management.[31] If the Tribunal finds that paragraphs 24(1)(a) and 24(1)(b) are satisfied, it will consider whether the Applicant’s impairments result in substantially reduced functional capacity to undertake one or more of the six specified activities.
[31] TB1, p8 at [46].
The parties agree that the Applicant meets paragraph 24(1)(d), in that his impairments affect his capacity for social or economic participation.[32] Having regard to the evidence, the Tribunal agrees with this view.
[32] TB1, p 12 at [62].
If the Tribunal finds that paragraphs 24(1)(a), 24(1)(b) and 24(1)(c) are satisfied then it will also consider whether the Applicant meets the requirements set out in paragraph 24(1)(e) of the NDIS Act, that he is likely to require support under the NDIS for his lifetime. The Respondent contends that the available evidence does not demonstrate that the Applicant has a lifetime need for supports that are funded by the Scheme.[33]
[33] TB1, p 12 at [65].
If the Tribunal finds that the disability requirements in section 24 of the NDIS Act are not met, it will consider whether the Applicant meets the early intervention requirements set out in section 25. The Respondent contends that the evidence does not support a determination that the Applicant would benefit from early intervention supports in the manner described in paragraphs 25(1)(b) and (c) and that if he would benefit from early intervention supports, those supports can be funded or obtained from other sources.[34]
[34] TB1, p14 at [76].
THE HEARING AND THE EVIDENCE
The application was heard by the Tribunal on 3 and 4 July 2024. The Applicant was self-represented. The Respondent was represented by Ms Jennifer Flinn of Counsel, instructed by Ms Kurewa and Mr Arblaster of the National Disability Insurance Agency.
The parties filed with the Tribunal an agreed Joint Tender Bundle of documents which was admitted into evidence (Exhibit TB1). TB1 included the T-documents filed by the Respondent on 12 July 2022 pursuant to the Respondent’s obligations under section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act), the Respondents Statement of Facts Issues and Contentions dated 20 December 2023 and the evidence previously filed by the Applicant and Respondent during the review process.
Further documents were admitted into evidence at the hearing. These included:
·A chest X-Ray report dated 26 April 2024 (Exhibit A1);
·A list of the Applicant’s medical conditions (Exhibit A2);
·A letter of Dr Berhane responding to targeted questions dated 27 August 2023 (Exhibit R1);
·The current Applying to the NDIS guidelines (Exhibit R2); and
·A series of twelve photographs showing various internal and external areas of the Applicant’s home (Exhibit R3).
The Tribunal had the benefit of oral opening submissions from Ms Flinn and written closing submissions from the parties.
The Applicant gave evidence and was cross-examined. In addition to providing his own oral evidence, the Applicant called his sister Ms Dellaca to give lay evidence in person. None of the Applicant’s treating practitioners were called to give evidence. The Respondent called as a witness occupational therapist Mr Fielke, who also gave evidence in person.

The Tribunal has considered the relevant factual and expert evidence and will refer to evidence in its decision that was specifically relied upon by a party or was directly relevant to the determination of this matter.
CONSIDERATIONS OF CLAIMS AND EVIDENCE
Does the Applicant have a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments, or one or more impairments to which a psychosocial disability is attributable?
As mentioned above, the Respondent accepts that the Applicant satisfies this requirement in relation to osteoporosis, polyarthritis, chronic lumbar pain and depression and refers to these conditions as his impairments.[35] Having reviewed the various medical and radiological reports contained in the Tender Bundle, the Tribunal is satisfied the Applicant has these conditions. However, the legislation requires the decision maker to consider the concept of impairment rather than conditions or diagnoses.[36]
[35] TB1, p 5 at [28].
[36] National Disability Insurance Agency v Davis [2022] FCA 1002 (Davis) at [69].
The Act does not define the term impairment, but it is generally understood as involving a loss of, or damage to, a physical, sensory or mental function.[37] Relevantly, the NDIS Operational Guideline state as follows:
An impairment is a loss or significant change in at least one of:
·your body’s functions
·your body structure
·how you think and learn.
[37] Mulligan at [51].
Pain is not an impairment in itself, but pain might be such that it limits particular bodily functions and therefore constitutes an impairment.[38]
[38] Military Rehabilitation and Compensation Commission v Katterns [2017] FCA 641, [47]-[48].
In the further supporting evidence statement dated 9 May 2022, Dr Saweris states that polyarthritis, chronic lumbar pain and osteoporosis cause the Applicant pain and loss of mobility and that he uses a walking aid.^[39] In a letter dated 1 June 2022, Dr Saweris states that the Applicant’s left shoulder arthritis and rotator cuff tear are limiting his shoulder movement and lifting ability.[40] In a letter dated 20 April 2023 responding to targeted questions posed by the Respondent, Dr Saweris states that pain and joint impairments are impacting the Applicant’s mobility and consequently he uses a walking stick intermittently and has difficulty getting out of chairs, getting off the floor and kneeling.[41]
[39] TB1, p 83.
[40] TB1, p 78.
[41] TB1, p 253.
In a letter dated 2 June 2021, consultant rheumatologist Dr Berhane states that the Applicant has lower back pain with radicular paraesthesia, tingling and numbness in his right lower limb, features consistent with right L5 nerve root compromise.[42] In a letter to Dr Saweris dated 11 April 2023, Dr Berhane wrote that the Applicant has worsening shoulder, back and knee joint pain affecting his mobility and quality of life.[43] In Dr Berhane’s letter of 27 August 2023 he opines that the Applicant’s knee joint pain, stiffness and swelling are impacting his mobility such as with walking, using stairs and getting out of chairs or his bed and that he is not able to get up from the floor and at times struggles with his self-care.[44]
[42] TB1, p 546.
[43] TB1, p 214.
[44] R1, pp 2 & 4.
At the request of the Respondent, Mr Fielke completed a Functional Capacity Assessment (FCA) of the Applicant in his home on 29 March 2023 and compiled a report dated 19 May 2023.[45] In his report, Mr Fielke identifies three musculoskeletal conditions comprising left knee osteoarthritis with associated pain, shoulder arthritis and chronic low back pain.[46] He reports the Applicant experiences throbbing knee pain when mobilising and is unable to obtain a functional kneeling posture due to knee and back pain.[47] Mr Fielke notes the Applicant’s reporting of right foot drop which can result in him experiencing trips and falls.[48] He observed the Applicant to mobilise with a slow and steady gait.[49]
[45] TB1, pp 227-248.
[46] TB1, p 230.
[47] TB1, pp 233-234.
[48] TB1, pp 233-234.
[49] TB1, p 242.
Dr Russell wrote a report dated 4 May 2023 in response to targeted questions from the Respondent, in his capacity as a clinical psychologist who had been providing therapy to the Applicant.[50] Dr Russell notes that the Applicant had first presented in 2019 but disengaged from therapy after three sessions. He subsequently re-engaged in mid-2022 in the context of recent bereavement and elevated stress.[51] Dr Russell described the Applicant experiencing several depressive and anxiety symptoms including low mood, emotionality, difficulty relaxing, anhedonia, social disengagement and persistent low level suicidal ideation.[52] Dr Russell noted cognitive impairments such as concentration issues, a tendency towards flight of ideas and tangential thinking.[53]
[50] TB1, pp 255-257.
[51] TB1, p 255.
[52] TB1, pp 255 & 257.
[53] TB1, p 256.
In October 2023 the Applicant provided an updated Statement of Lived Experienced in which he identified the following impairments: [54]
[54] TB1, pp 224-226.
(a)He can walk a maximum of 50 metres on a flat surface using his walker before having to rest. Despite using his walker, he often trips and sometimes falls.
(b)He uses a walker to get in and out of bed and mobilise around the house.
(c)He avoids stairs as he must pull himself up using the handrails due to pain in his legs.
(d)He does not use public transport as he prefers to drive but anticipates that he would have difficulty negotiating any steps onto a bus.
(e)He uses a walking stick to get into and out of his car.
(f)He uses his walking stick in situations where he does not have his walker.
(g)He has installed handrails in the bathroom and toilet to help him access the shower and get off the toilet.
(h)He cannot cook a large or complex meal due to the pain he experiences when standing for more than ten to fifteen minutes.
(i)He rarely socialises.
At the hearing the Applicant gave evidence regarding his impairments, summarised as follows:
(a)Difficulty bending and the potential for bending to trigger a prolonged period of back pain.[55]
(b)Lower back pain limiting how far he can walk. With his walker he can walk about fifty to one hundred metres before having to stop.[56]
(c)Limited left shoulder movement and inability to raise his left arm above head height.[57]
(d)His right foot is ‘droopy’ and prone to catching on the ground, causing instability and sometimes tripping.[58]
(e)Forgetfulness and repeating himself.[59]
(f)Difficulty mobilising on stairs.[60]
(g)Difficulty lifting heavy items and the potential, particularly if he then turns, to trigger a prolonged period of back pain.[61]
[55] Transcript 3 July 2024, p 12.
[56] Transcript 3 July 2024, pp 23-24.
[57] Transcript 3 July 2024, p 13.
[58] Transcript 3 July 2024, p 18.
[59] Transcript 3 July 2024, p 13.
[60] Transcript 3 July 2024, p 25.
[61] Transcript 3 July 2024, p 28.
The Applicant’s sister Ms Dellaca gave evidence at the hearing regarding her brother’s impairments, summarised as follows:[62]
(a)Poor balance and tripping due to a ‘droopy foot’.
(b)Previous falls due to tripping or slipping.
(c)Learning difficulties at school.
(d)Inability to pick up objects off the floor without falling over.
(e)Difficulty getting in and out of chairs.
(f)Inability to lift anything over five kilograms.
[62] Transcript 3 July 2024, p 56, 59 & 61.
Based on the evidence, the Tribunal is satisfied that the Applicant has a disability that is attributable to physical (mobility) impairments and impairments to which a psychosocial disability is attributable. The Applicant meets the requirements of paragraph 24(1)(a) of the NDIS Act.
The medical evidence is that the Applicant has been diagnosed with aortic stenosis and underwent an aortic valve replacement in 2019.[63] His echocardiogram in 2022 showed a normally functioning St Judes aortic valve replacement and normal left ventricular systolic function.[64] In letters dated 2 and 22 July 2021, the Applicant’s treating cardiologist Dr Purnell notes symptoms of intermittent breathlessness but states ‘from a cardiac point of view he should do well’.[65] During cross examination the Applicant agreed that he did not have any ongoing issues relating to his aortic stenosis.[66] There is no evidence before the Tribunal that since the treatment for Applicant’s aortic stenosis, he continues to suffer an impairment.
[63] TB1, p 89.
[64] TB1, p 88.
[65] TB1, pp 541-542.
[66] Transcript 3 July 2024, p 37.
The Applicant has previously suffered a right above-knee DVT and pulmonary embolism in 2016 and has been on regular anticoagulant treatment since.[67] Although symptomatic at the time, there is no evidence before the Tribunal of any ongoing impairment attributable to DVT or pulmonary embolism.
[67] TB1, pp 83 & 536.
The Respondent contends that the Applicant’s diagnoses of aortic stenosis, right leg DVT and pulmonary embolism are not disabilities that are attributable to a relevant impairment.[68] On the basis of the evidence, the Tribunal agrees with this position.
Is the impairment permanent, or likely to be, permanent?
[68] TB1, p 6.
Evidence of Dr Saweris, General Practitioner
In the further supporting evidence statement dated 9 May 2022, Dr Saweris stated that, with regards to polyarthritis, chronic lumbar pain and osteoporosis, all evidence based therapy has been exhausted and the Applicant’s disability is not likely to improve despite appropriate treatment.[69] Dr Saweris also reported that the Applicant has had past orthopaedic surgery reviews and that surgery was not indicated.[70] She states that knee replacement surgery may be considered when his presentation is of greater severity but considers that this is unlikely to result in improvement.[71] Dr Saweris did not elaborate on her reservations about the potential outcomes of knee replacement surgery.
[69] TB1, p 83.
[70] TB1, p 83.
[71] TB1, p 83.
In her report dated 26 November 2022, Dr Saweris stated that osteoporosis and osteoarthritis of the spine, knees and hips have occurred secondary to the Applicant’s Klinefelter syndrome and acromegaly.[72] She opined that osteoporosis had resulted in minimal trauma fractures to his spine and wrist.[73] Dr Saweris also reported that the Applicant has major depression, post-traumatic stress disorder and anxiety related to biological, social and medical factors.[74] She mentions that he is undertaking psychotherapy, is prescribed desvenlafaxine (an antidepressant medication) and is seeking a psychiatrist review, but takes the view that he is unlikely to benefit further given the complexity of his co-morbid conditions.[75]
[72] TB1, p 209.
[73] TB1, p 209.
[74] TB1, p 209.
[75] TB1, p 209.
In Dr Saweris’ letter of 20 April 2023 she noted that the Applicant was seen by an orthopaedic surgeon on 27 June 2022 for an opinion regarding his left shoulder osteoarthritis and rotator cuff tears and was considered too high risk for surgical intervention at the time.[76] She recorded surgical risks relating to his St Jude’s aortic valve and prescribed medications, such as anticoagulants. With regards to lumbar, shoulder and knee arthritis, Dr Saweris reaffirmed her opinion that these had been fully treated, taking into consideration evidence-based therapy and the Applicant’s general health and comorbid conditions. The Applicant has had a cortisone injection to his left shoulder in June 2022 and a L4/5 facet joint injection in January 2023.[77] She stated that he remained debilitated and symptomatic from his osteoarthritis and was likely to deteriorate further.[78] Dr Saweris reports that the Applicant was admitted to hospital in September 2022 with a knee infection and subsequently presented with ongoing pain and swelling in his left knee. An MRI in February 2023 was indicative of left knee arthritis and a meniscal tear. The Applicant has since been referred for orthopaedic review at Sir Charles Gairdner Hospital to determine the need for knee surgery.[79] With regards to the Applicant’s osteoporosis, Dr Saweris documented that he had a crush fracture of the thoracic spine at T12 and that his last bone density test in May 2022 was normal on current therapy.[80] Dr Saweris stated that the Applicant has been compliant with all recommended therapy. She also stated that he has ‘a degree of intellectual disability’ but did not elaborate any further on this.[81]
[76] TB1, p 253 at [1].
[77] TB1, p 252 at [4].
[78] TB1, p 252 at [4].
[79] TB1, p 252 at [2] and [6].
[80] TB1, p 252 at [3].
[81] TB1, p 253 at [15].
The most recent evidence provided by Dr Saweris on 25 October 2023 is a brief letter to the NDIS.[82] Dr Saweris stated that the Applicant’s shoulder and knee osteoarthritis are permanent, progressive and inoperable. She reported that he had seen two specialists and was deemed high risk due to the medications prescribed for his intercurrent pituitary illness[83] increasing his risk of infection.
[82] TB1, p 219.
[83] The Applicant is on prescribed corticosteroids, thyroxine, androgens and lanreotide for acromegaly and post-operative hypopituitarism. See TB1, pp 89-90 & 538.
Evidence of Dr Berhane, Consultant Rheumatologist
The Applicant has been consulting Dr Berhane over a number of years regarding the management of his rheumatological conditions.
Several letters written by Dr Berhane to the Applicants general practitioner were obtained under summons. They cover a period between February 2017 to October 2022. Of relevance, the following is noted:
(a)On 4 August 2020 the Applicant reported symptoms of his right leg and foot feeling cold and numb which Dr Berhane considered may be a combination of degenerative back changes and a vascular component causing reduced circulation.[84] He recommended a referral to a vascular surgeon regarding peripheral vascular disease in his legs.
(b)On 8 December 2020, Dr Berhane reported that the Applicant was experiencing lower back pain with radicular paraesthesia, tingling and numbness in his right lower limb, features consistent with right L5 nerve root compromise.[85] He detailed the results of an MRI of the lumbar spine performed eight months earlier showing an old compression fracture of L1, features of moderately severe multilevel degenerative lumbar spondylosis & moderate L4/5 central spinal canal and subarticular recess stenosis, particularly on the right, with likely right L5 nerve impingement within the narrowed subarticular recess.[86] Dr Berhane completed a referral to Professor Lee, neurosurgeon, regarding his back pain and right leg sciatica.
(c)On 7 December 2021, Dr Berhane reported that the Applicant was still experiencing lower back pain with features consistent with right L5 nerve root compromise.[87] He had mild osteoarthritic changes in his left knee and knee joint effusion. Dr Berhane indicated that a previous CT scan of the Applicant’s spine showed a fracture of the T12 vertebrae with a twenty percent reduction in height. Treatment consisted of Prolia subcutaneous injections for osteoporosis and tramadol for pain management.
(d)On 19 October 2022, Dr Berhane outlined the Applicant’s worsening ongoing back pain and left knee effusion.[88] In addition, Dr Berhane reported the Applicant suffering from severe degenerative rotator cuff disease of his shoulders, more so on the left. The Applicant informed Dr Berhane that he had seen an orthopaedic surgeon but was told he could not proceed with surgery due to his cardiac circumstances.[89]
[84] TB1, p 550.
[85] TB1, p 562.
[86] TB1, p 562.
[87] TB1, p 554.
[88] TB1, p 558.
[89] TB1, p 558.
More recently, on 11 April 2023, Dr Berhane assessed the Applicant and in his correspondence to Dr Saweris stated the following regarding the Applicant’s progress:[90]
Unfortunately, he has worsening shoulder is [sic], back and knee joint pain and stiffness which is affecting his mobility and/or quality of life. Despite previous left knee arthrocentesis and cortisone injection [he] presented with bilateral knee swelling that is impacting his mobility. He also suffers from severe degenerative rotator cuff disease of his shoulders…These would have been managed surgical [sic] but is contraindicated due to his cardiac circumstances.
[90] TB1, p 214.
In June 2023, Dr Berhane referred the Applicant to the Rheumatology Department at Sir Charles Gairdner Hospital for bilateral knee Yttrium synovectomies in the context of limited effectiveness of repeated knee aspirations followed by cortisone injections.[91]
[91] TB1, p 216.
The most recent evidence from Dr Berhane is from his letter dated 27 August 2023.[92] With regards to the treatment and prognosis of the Applicant’s knee, shoulder and spinal conditions, Dr Berhane stated the following:
[92] R1.
(a)The Applicant has ongoing shoulder pain due to rotator cuff disease that would have been managed surgically but is contraindicated due to his cardiac circumstances.[93]
[93] R1 at [1].
(b)He has worsening bilateral knee pain and swelling.[94]
(c)Given that he is not a good candidate for surgical management, the prognosis for his shoulder and knee condition is of a chronic and ongoing process.[95]
(d)Despite being stabilised, the Applicant’s chronic back, shoulder and knee pain symptoms have not been fully treated.[96]
(e)Professor Lee, neurosurgeon, believed that due to the extensive degenerative changes of the lumbosacral spine, lumbar decompression surgery was not likely to alter his low back pain.[97]
(f)Yttrium synovectomies on his knees may provide temporary symptomatic relief but will not alter disease progression.[98]
(g)With regards to appropriate beneficial evidence based treatments for the Applicant’s back, shoulder and knee conditions, surgical management could be considered but the Applicant would need to be reviewed by his orthopaedic surgeon, cardiologist and consultant physicians concerning his fitness for surgery.[99]
(h)Medical and conservative treatments have been tried. These would not significantly improve his physical impairments.[100]
(i)Treatment with Prolia injections is aimed at preventing deterioration in his bone density rather than back pain management.[101]
(j)He is being prescribed opioid analgesics for pain management that will need to be adjusted depending on his response and tolerance.[102]
(k)Dr Berhane’s understanding is that the Applicant is not currently fit for surgery.[103]
[94] R1 at [3].
[95] R1 at [3].
[96] R1 at [4].
[97] R1 at [6].
[98] R1 at [8].
[99] R1 at [10]-[12].
[100] R1 at [13].
[101] R1 at [2].
[102] R1 [16]-[17].
[103] R1 at [15].
Evidence of Professor Lee, Neurosurgeon
Following a referral from Dr Berhane, Professor Lee assessed the Applicant with regards to neurosurgical options for his degenerative spinal condition. In his letter dated 25 February 2021, Professor Lee explains that while the MRI scan of the Applicant’s lumbosacral spine showed moderately severe L4/5 central canal stenosis, there were no significant leg symptoms to suggest that the canal stenosis was symptomatic.[104]
[104] TB1, p 568.
Professor Lee opined that lumbar decompression surgery is unlikely to alter the Applicant’s episodic back pain given the extensive degenerative changes throughout his lumbar spine but that if the Applicant developed recurrent leg pain or progressive lower limb dysfunction, he would like to review him again.[105]
[105] TB1, p 568.
Evidence of Dr Garbowski, Vascular and Endovascular Surgeon
Dr Garbowski assessed the Applicant following a referral for review of his symptoms of numbness and tingling affecting his feet. Based on his clinical assessment and the results of an angiogram study, Dr Garbowski’s opinion, expressed in a letter dated 21 January 2021, was that the Applicant has mild peripheral vascular disease that could be managed conservatively and that his symptoms were most likely secondary to peripheral neuropathy.[106]
[106] TB1, p 536.
Evidence of Professor Kermode, Neurologist

The Applicant was assessed by Professor Kermode in the context of his symptoms of numbness in the feet and change in his gait. In his letter dated 19 January 2021, Professor Kermode documented lower limb examination findings of marked wasting of the extensor digitorum brevis muscles and adductor brevis muscles and loss of light touch to pinprick in a stocking pattern to 20cm above the ankles.[107] In a subsequent letter dated 9 February 2021, Professor Kermode stated that the clinical history, examination and electrophysiological studies were consistent with a length dependent peripheral sensory motor axonal neuropathy of unknown cause.[108] He recommended expectant management with continued observation.
[107] TB1, pp 607-608.
[108] TB1, p 532.
Professor Kermode stated that the Applicant cancelled a subsequent follow-up appointment in August 2021 as ‘he didn’t need to see me’.[109]
[109] TB1, p 596.
Evidence of Dr Gill, Orthopaedic Surgeon
The Applicant was referred by his general practitioner to Dr Gill for an opinion regarding his shoulder degenerative rotator cuff disease. In his letter dated 27 June 2022, Dr Gill states that the Applicant has a ‘massive rotator cuff tear, subluxed glenohumeral joint and rotator cuff arthropathy’[110] On examination of the left arm he had no more than eighty to ninety percent combined elevation but had relatively preserved external rotation.[111]
[110] TB1, p 515.
[111] TB1, p 515.
He gave the following opinion in respect of surgical treatment and risk:[112]
His left shoulder can really only have one procedure in my view, a reverse replacement or live with the arm the way it is. Given his substantial medical challenges, if this was to happen in the private practice would involve a Physician involvement, probably admission to hospital prior to surgery to place him on Clexane or Heparin depending on Physician advice, having surgery, and then re-Warfarinising the patient hoping to maintain his heart valve but at the same time ability to clot for surgery.
My advice to the patient today is not to have surgery, to consider referral to the Orthopaedic Dept at RPH [Royal Perth Hospital] via his Endocrinology Dept so that he can be considered at a place where his Physician’s work.
It may be in the future his symptomatology necessitates the need for this procedure, that I consider currently on the basis of the information in front of me to be high risk and probably at this time not in the patient’s best interest.
[112] TB1, pp 515-516.
Evidence of Dr Goebel, Orthopaedic Surgeon
Dr Goebel provided a brief support letter for the Applicant dated 15 September 2023. Dr Goebel stated that he had been treating the Applicant for three years for his left shoulder and knee problems.[113] He provided a general opinion that the Applicant is likely to have ongoing problems with mobility and performing daily tasks regardless of whether he undergoes any surgical management.
[113] TB1, p 217.
Evidence of Dr Russell, Clinical Psychologist
As mentioned previously, Dr Russell had been providing psychological therapy to the Applicant and wrote a report dated 4 May 2023 in response to targeted questions from the Respondent. With regards to treatment, Dr Russell stated that although the Applicant was at an early stage of treatment, there was a reasonable likelihood that he would respond to Cognitive Behavioural Therapy to treat his depression.[114] He noted other therapeutic options that may also be effective.
[114] TB1, p 256.
Recent radiological evidence
On the day of the hearing a recent chest x-ray report was accepted into evidence. The report was dated 26 April 2024 and confirmed previous radiological evidence of advanced multilevel spondylosis of the lumbar spine.[115] A new finding of a non-displaced healing right 9^th rib fracture was noted.
[115] Exhibit A1.
Mr Hall’s evidence at the hearing
The Applicant explained to the Tribunal that he was born with Klinefelter syndrome.[116] He was also diagnosed with a benign pituitary gland tumour that was surgically removed but because ‘they didn’t get all the cells’, he is being treated with Lanreotide to supress his growth hormone production. He also needs to take lifelong hormone replacement with cortisone, testosterone and thyroxine. He stated that if he forgets to take his cortisone ‘my organs shut down’.[117] He was born with a heart murmur and eventually had open heart surgery to have an aortic valve replacement.[118] He reported a previous history of osteomyelitis in his spine.
[116] Transcript 3 July 2024, p 10.
[117] Transcript 3 July 2024, p 10.
[118] Transcript 3 July 2024, p 11.
Regarding his shoulder condition, the Applicant stated he had seen a specialist but was told if he had surgery ‘you can’t pick anything up over 3 kilos’.[119] The Applicant explained that as he does not experience any shoulder pain, he decided not to have surgery. His impression was that he would be a candidate for shoulder surgery if he developed severe pain.[120] He does not have any treatment for his shoulder currently other than periodic analgesia if ‘it pinches me occasionally’.[121]
[119] Transcript 3 July 2024, p 13.
[120] Transcript 3 July 2024, p 14.
[121] Transcript 3 July 2024, p 14.
In relation to the Yttrium synovectomy treatment, the Applicant gave evidence at the hearing that he has had this treatment on his right knee which has helped.[122] He is due to have treatment on his left knee in August 2024. On cross examination the Applicant clarified that following the treatment on his right knee, he has not experienced ongoing pain. He is hopeful he will obtain a similar result from treatment on his left knee.[123]
[122] Transcript 3 July 2024, p 16-17.
[123] Transcript 3 July 2024, p 44.
At the hearing, the Applicant was asked whether surgery for his spinal condition had ever been discussed with him. He stated that he had seen Dr Gill and was told that something could be done if his back is ‘excruciating in pain’.[124] The Applicant explained that he did not want back surgery because he had heard of ‘issues’ with the procedure and confirmed that currently he does not experience much back pain.[125] During cross examination he explained that his back pain is intermittent, agreeing that if he is careful with what he is doing he has pain free periods of up to a week or more.[126]
[124] Transcript 3 July 2024, p 16.
[125] Transcript 3 July 2024, p 16.
[126] Transcript 3 July 2024, p 45.
The Applicant explained that he still experiences pain down the side of his left leg and is due for a repeat ultrasound in a few weeks to investigate this further.[127]
[127] Transcript 3 July 2024, p 15.
When asked whether his treating cardiologist, Dr Purnell, had given any opinion on the potential risks associated with any surgical procedures, the Applicant stated he had not.[128] During cross examination he confirmed that he had not sought or obtained an opinion from Dr Purnell regarding his suitability for surgery with regards to any risks associated with his cardiac condition.[129]
[128] Transcript 3 July 2024, p 19.
[129] Transcript 3 July 2024, p 38.
During cross examination, the Applicant was asked about his osteoporosis and treatment with Prolia. The Applicant confirmed his ongoing treatment with Prolia. He also stated that a bone density test in 2022 was normal and a more recent test confirmed normal bone density.[130]
[130] Transcript 3 July 2024, p 42.
The Applicant explained to the Tribunal that his ‘droopy’ foot occurred following a bad fall onto his right side when he was working as a courier.[131] He indicated that he had not seen any professional in relation to this.
[131] Transcript 3 July 2024, p 18.
The Applicant had been seeing a clinical psychologist, Dr Russell, but stopped seeing him towards the end of last year after Dr Russell moved into a different field of work.[132] He had found the sessions helpful but has not sought the services of another psychologist because of financial constraints.[133] He stated that his general practitioner had referred him to a few psychiatrists for assessment, but the referral had either not been accepted or he was told they were not taking on new clients. He was also concerned about being able to afford the cost of seeing a private psychiatrist. The Applicant was asked if he had sought referral to see a psychiatrist in the public health system, but said he was not aware of that availability.[134] He has been taking antidepressant medication prescribed by his general practitioner to assist him in managing his depression.
[132] Transcript 3 July 2024, p 20.
[133] Transcript 3 July 2024, pp 20-21.
[134] Transcript 3 July 2024, p 22.
During cross examination the Applicant stated that he had not consulted his general practitioner about an updated mental health care plan through Medicare.[135]
Are the Applicant’s impairments permanent?
[135] Transcript 3 July 2024, p 41.
For the purposes of paragraph 24(1)(b) of the NDIS Act, the Tribunal must be satisfied that the impairment or impairments are, or are likely to be, permanent. Subsections 24(2) and 24(3) further notes that an impairment that varies in intensity or is episodic or fluctuating may be permanent.
In National Disability Insurance Agency v Davis [2022] FCA 1002 (Davis), Mortimer J considered the phrase ‘permanent impairment’ and stated:[136]
‘The phrase “permanent impairment” in s 24(1)(b) means an impairment which is of an enduring nature. In other words, the question for the decision-maker is whether the impairment(s) experienced by an individual (rather than the cause of the impairments or the specific diagnoses made about a medical condition) has or have an enduring quality so as to require supports funded and/or provided under the NDIS Act on an ongoing basis.’
(Emphasis added)
[136] Davis at [130].
Relevantly, the Access Rules provide the following guidance in considering when an impairment is, or is likely to be permanent:
5.4An impairment is, or is likely to be, permanent (see paragraph 5.1(b)) only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.
5.5An 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.
5.6An 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).
5.7If 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.
(Emphasis added)
In Davis Mortimer J considered the meaning of ‘known, available and appropriate’ within the context of Rule 5.4 and explained the word ‘known’ connotes a treatment which can be identified by an Australian medical professional as suitable for a person’s particular impairment;[137] the word ‘available’ should be understood as directed at what treatments an individual can, in reality, access;[138] and the word ‘appropriate’ means a treatment which has a capacity to ‘remedy’ the impairment and is suitable for the particular individual to undergo.[139] Mortimer J further explained that the word ‘remedy’ means something approaching a removal or cure of the impairment.[140]
[137] Davis at [137].
[138] Davis at [139].
[139] Davis at [137].
[140] Davis at [136].
The Respondent contends that the Tribunal cannot be satisfied that there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the Applicant’s impairments relating to his knees, back, left shoulder, and depression: Rule 5.4 of the Access Rules. Furthermore, they contend that it is not yet known whether each impairment is, or is likely to be permanent, because medical or other treatment may, or is likely to, improve Mr Hall’s conditions: Rule 5.7 of the Access Rules.[141]
[141] Respondent’s Written Closing Submissions, at [12].
The Applicant contends that his impairments are permanent. In written closing submissions prepared by the Applicant’s sister it is stated:[142]
…the severity of the physical impairments that he has are only likely to worsen with deterioration, therefore increasing the loss of functional capacity. The result of comorbidities has meant that Mr Hall needs to be on lifetime Medications, for him to stay alive. Permanency – Forever, Lifelong.
…
Further treatment for physical impairment may be possible but will not reverse the deterioration that has occurred, and could in fact give him less mobility. As stated in Dr. Goebel’s Report… “Mr Hall is likely to have ongoing problems with mobility and performing daily tasks, regardless of any surgical management”.
[142] Applicant’s Written Closing Submissions, p 1.
Lumbar spondylosis and spinal osteoporosis
The Tribunal accepts that the Applicant has physical impairments due to the effects of degenerative lumbar spondylosis and spinal osteoporosis and that he experiences these impairments in the context of restricted back function and episodic lower back pain. The Tribunal is satisfied that the physical impairments relate to his mobility. These include difficulty walking distances, bending, lifting heavy items, getting into and out of chairs, getting on and off the toilet, using stairs and standing for prolonged periods.
The Tribunal accepts that there is radiological evidence of very extensive and multilevel degenerative changes throughout his lumbar spine, at least moderately severe L4/5 central canal stenosis and a milder degree of L3/4 central canal stenosis.[143] The Tribunal accepts that radiological evidence establishes that the Applicant has old compression fractures at T12 and L1 and that while treatment with Prolia has so far stabilised and prevented further deterioration in his bone density, it will not remedy these fractures. The evidence of Dr Berhane is that the Applicant’s lumbar pain is progressive.[144]
[143] TB1, pp 566-568 & Exhibit A1.
[144] R1 at [2].
Based on the evidence, the Tribunal is satisfied that the Applicant suffers impairments from a degenerative condition of his spine that is progressive.
Due to the degenerative nature of his impairment, it is Access Rules Rule 5.7 that is engaged. This rule provides for permanency that the impairment is unlikely to be improved by medical or other treatment. The term ‘improve’ implies a somewhat lower threshold be applied compared to something that is likely to ‘remedy’.
The Applicant has complied with recommended medical and conservative treatment options and physical therapies.[145] Physical therapy has not shown satisfactory outcomes[146] and his pain has continued despite conservative management.[147] The Applicant has tried various types of analgesic medications over the years for pain management.
[145] R1.
[146] R1 at [8].
[147] TB1, p 565.
In closing submissions, the Respondent submits that the Applicant received advice from Dr Gill (orthopaedic surgeon) that if his back pain became severe, he could have surgery.[148] It is also submitted that the Applicant had not obtained an opinion from his treating cardiologist, whether back surgery would be possible, having regard to the condition of his heart. The Respondent contends that there is an insufficient basis to determine that there are no known, available and appropriate evidence-based treatments that would likely remedy or improve the Applicant’s impairments.[149]
[148] Respondent’s Written Closing Submissions, at [9].
[149] TB1, p 8 at [43].
While the Tribunal accepts the Applicant’s lay interpretation of the medical advice he received from his consultation with Dr Gill, the documentary evidence before the Tribunal is that Dr Gill has only provided an opinion regarding the Applicant’s shoulder condition.[150] Furthermore, on the business letterhead of Dr Gill’s letter it is written ‘Orthopaedic Surgeon; Shoulder, Elbow and Wrist Surgery, Joint Replacement’. The Tribunal cannot be satisfied that Dr Gill has provided an opinion regarding the Applicant’s back condition. The evidence is that Professor Lee (neurosurgeon) was specifically consulted regarding the Applicant’s back and radiating lower limb pain. Professor Lee’s opinion was that his episodic back pain is unlikely to be helped by lumbar decompression surgery for stenosis given the extensive degenerative changes.[151]
[150] TB1, p 515.
[151] TB1, p 568.
The Tribunal’s view is that Professor Lee is not opining about remedy or cure but rather that the Applicant’s condition is unlikely to improve with surgery.
While Dr Berhane has broadly stated that the best options for the Applicant’s physical impairments relating to his severe generalised osteoarthritis of the back, shoulder and knees is surgical management, provided his cardiorespiratory status allows it,[152] the Tribunal gives greater weight to the evidence of Professor Lee who has specific qualifications and expertise in the field of neurosurgery. The Tribunal is not satisfied that surgery on the Applicant’s spine is likely to improve or remedy his lumbar spondylosis and spinal compression fractures related to osteoporosis. On balance, the evidence demonstrates that the impairment caused by the Applicant’s lumbar spondylosis and spinal osteoporosis is permanent, or likely to be permanent, within the meaning of paragraph 24(1)(b) of the NDIS Act.
[152] R1, at [12].
Left shoulder mobility impairment
Dr Berhane stated that the rotator cuff disease of the Applicant’s shoulders was degenerative.[153] An MRI in June 2022 showed, in addition to ruptured shoulder tendons and a near circumferential labral tear, mild to moderate osteoarthritis of the glenohumeral joint and moderate osteoarthritis of the acromioclavicular joint.[154] The Tribunal is satisfied that the Applicant suffers impairment from a degenerative condition of his left shoulder. Accordingly, as stated above, it is Access Rules Rule 5.7 that is also engaged.
[153] R1 at [1].
[154] TB1, pp 513-514.
Dr Berhane opined that surgery was contraindicated due to the Applicant’s cardiac condition but also clarified that reverse shoulder replacement could be considered, following review by orthopaedic surgeons and consultant physicians.[155] He also noted that despite being stabilised, his shoulder condition had not been fully treated.[156]
[155] R1, at [1] & [10].
[156] R1, at [4].
Dr Saweris stated that the Applicant’s shoulder condition is considered inoperable due to the high risks of surgery relating to infection risk secondary to his pituitary disease and the effects of medication treatment.[157]
[157] TB1, p 219.
Dr Gill (orthopaedic surgeon) opined that a reverse shoulder replacement may be required in the future if the Applicant’s symptomatology necessitates the need. He considered surgery to be high risk at the time.[158]
[158] TB1, p 515.
The Applicant’s evidence is that he chose not to have shoulder surgery as he does not experience pain in his shoulder and because he was told he would not be able to lift anything heavier than three kilograms following the surgery.[159] No medical evidence has been provided to substantiate this claim.
[159] Transcript 3 July 2024, p 13.
In his brief support letter, Dr Goebel stated that ‘regardless if he has any surgical management for his problems or not he will likely have ongoing problems with mobility and performing simple daily tasks of living’.[160] He did not mention what specific treatments might be available to the Applicant or provide any reasoned opinion about any associated risks and likely outcomes. The evidence provided by Dr Goebel lacked sufficient detail for it to adequately assist the Tribunal. Dr Goebel was not called as a witness and so further clarification as to what extent surgical management may, or may not, improve or remedy his impairment could not be elaborated upon or tested under cross examination. Accordingly, the Tribunal gives Dr Goebel’s evidence less weight.
[160] TB1, p 217.

The issue of the Applicant’s fitness for surgery, as has been raised by Dr Saweris, Dr Berhane and Dr Gill, is of relevance to the Tribunal when determining permanency. A treatment that may improve or remedy an impairment that, due to factors relating to the Applicant’s physical health, might pose a significant and serious risk to his health should not be contemplated as a requirement under the Access Rules. The Tribunal accepts that with regards to the Applicant’s medical history, particularly his aortic valve replacement, history of DVT and pulmonary embolism, and his treatment with anticoagulant and corticosteroid medications, there would likely be a level of risk associated with any surgical treatment. Nevertheless, the Tribunal is faced with a situation in which it has insufficient medical evidence to conclude whether, due to the risk of a treatment, that treatment could be considered not appropriate. Neither the Applicant, his general practitioner, rheumatologist or the orthopaedic surgeons he has consulted have sought the opinion of his cardiologist, endocrinologist or an anaesthetist regarding the Applicant’s operative and post-operative risk. That surgery is contraindicated, has not in the Tribunal’s view, been clearly established on the available evidence.
Considered overall, the Tribunal is unable to be positively satisfied there are no known, available and appropriate evidence-based treatments that would likely improve or remedy the Applicant’s shoulder condition. Accordingly, the Tribunal is not satisfied the Applicant’s impairment attributed to his degenerative rotator cuff shoulder condition is permanent.
Impairments related to knee osteoarthritis
Dr Berhane identifies that the Applicant has degenerative osteoarthritis with bilateral knee effusions for which he has had repeated knee aspirations and Cortisone injections without positive outcome.[161] An MRI of the Applicant’s left knee in 2021 showed, among other things, extensive degenerative tearing of the medial meniscus, moderate joint effusion, mild to moderate medial compartment osteoarthritis, mild lateral compartment osteoarthritis and advanced patellofemoral compartment osteoarthritis.[162] Left knee arthrocentesis revealed non-inflammatory degenerative changes.[163] The Tribunal is satisfied that the Applicant suffers impairment from a degenerative condition of his knees. Accordingly, as stated above, it is Access Rules Rule 5.7 that is also engaged.
[161] TB1, p 216.
[162] TB1, pp 96-97.
[163] R1, at [5].
The Applicant has recently experienced a resolution of pain following Yttrium synovectomy to his right knee and is hopeful of a similar positive response when he receives this treatment on his more problematic left knee in August 2024.[164] The Applicant gave evidence that if this treatment works, he may avoid the need to have a total knee replacement.[165]
[164] Transcript 3 July 2024, p 16.
[165] Transcript 3 July 2024, p 44.
Dr Berhane’s evidence is that while the Applicant may experience temporary symptomatic relief from Yttrium synovectomies, disease progression is unaffected.[166] Dr Berhane opines that the best option for his chronic degenerative osteoarthropathy of the knees is knee replacement surgery but that his fitness for surgery will need to be reviewed by his cardiologist and consultant physicians.[167]
[166] R1, at [8].
[167] R1, at [11]
For the same reasons stated above in paragraph [94], Dr Saweris is of the view that the Applicant’s knee condition is inoperable due to the surgical risk. However, in her 20 April 2023 report she indicated that the Applicant has been referred to Sir Charles Gairdner Hospital to be waitlisted for an orthopaedic review and opinion regarding knee surgery.
At the hearing the Applicant explained that this referral to Sir Charles Gairdner Hospital was for ‘nuclear waste’ treatment (Yttrium synovectomies).[168]
[168] Transcript 3 July 2024, p 17.
The Tribunal considers that there are very likely to be two separate referrals to Sir Charles Gairdner Hospital. Dr Berhane made a referral dated 14 June 2023[169] to the Rheumatology Department for Yttrium synovectomy treatment. Dr Saweris indicates in her letter on 20 April 2023, a date preceding Dr Berhane’s referral, that a referral has been made to the Orthopaedic Department regarding surgical opinion. The outcome of this orthopaedic review is not yet known to the Tribunal although, as suggested by Dr Saweris, the Applicant has likely been placed on a waitlist. Without this further opinion, the Tribunal is not satisfied that the Applicant’s knee condition is inoperable.
[169] TB1, p 216.
In his brief support letter, Dr Goebel stated that the Applicant will likely have ongoing problems with mobility and daily tasks regardless of whether he has surgical management of his knee condition. For the reasons given at paragraph [97], the Tribunal gives this evidence less weight.
As explained above at paragraph [98], the Tribunal considers the Applicant’s surgical risk to be of relevance when making a determination on the issue of permanency. For similar reasons, the Tribunal concludes that there is insufficient medical evidence with respect of the risks of surgery to the Applicant’s physical health to decide on whether such treatment is appropriate or not.
Considered overall, the Tribunal is unable to be positively satisfied there are no known, available and appropriate evidence-based treatments that would likely improve or remedy the Applicant’s knee condition. Accordingly, the Tribunal is not satisfied the Applicant’s impairment attributed to his degenerative osteoarthropathy of his knees is permanent.
Impairments related to foot drop
While the Applicant gave oral evidence of the effects his ‘droopy’ right foot has on his mobility, there was no conclusive medical evidence provided in any of the documents admitted into evidence. The Applicant stated that he had not seen anyone regarding his ‘droopy’ foot.[170]
[170] Transcript 3 July 2024, p 18.
There was evidence from Professor Kermode, neurologist, that the Applicant had a peripheral neuropathy causing symptoms of numbness in his feet[171] and gait change[172]. There were examination findings of muscle wasting to some of the foot muscles and a stocking pattern sensory impairment. That the Applicant was experiencing foot drop was not documented.
[171] TB1, p 532.
[172] TB1, p 607.
Dr Berhane has given evidence of the Applicant’s having radicular paraesthesia, tingling and numbness in his right leg consistent with L5 nerve root compromise but has not mentioned any symptoms of foot drop or noted any impairment on examination other than mild foot tenderness on palpation.[173]
[173] TB1, pp 546 & 554.
On the available evidence, the Tribunal is unable to determine the cause of this impairment. While paragraph 24(1)(b) concerns impairment and not a condition or diagnosis, without an appreciation of the underlying condition, application of the Access Rules regarding permanency becomes problematic.
The Access Rules Rule 5.6 provides that permanency is only likely if the impairment does not require any further medical treatment or review for its permanency to be demonstrated. The Tribunal is not satisfied the evidence demonstrates that the Applicant’s impairment relating to his ‘droopy’ foot does not require any further treatment or review for permanency to be established.
Paragraph 24(1)(b) of the NDIS Act is not satisfied in respect of the Applicant’s mobility impairments resulting from his right foot condition.
Psychosocial impairments
Dr Saweris opines that the Applicant is unlikely to benefit from any further treatment, or from an assessment by a psychiatrist, with regards to his depression, anxiety and post-traumatic stress disorder.[174] The Tribunal accepts that there are several biological, social and psychological factors that may be impacting the Applicant’s mental state, however, in the absence of an assessment by a suitably qualified specialist in psychiatry, the Tribunal is unable to form the same conclusion as Dr Saweris. The Tribunal acknowledges that the Applicant has had difficulty accessing a private psychiatrist who will accept his referral and that he was unaware of his option to request a review by a psychiatrist in the public health system.[175]
[174] TB1, p 209.
[175] Transcript 3 July 2024, p 22.
The Applicant had been receiving psychological treatment form Dr Russell up until he stopped seeing him towards the end of 2023. He reported this treatment had been somewhat effective, as has treatment with an antidepressant medication prescribed by his general practitioner. The Applicant confirmed that it was open to him to see another therapist at the same clinic.[176] He has not discussed with his general practitioner about obtaining an updated mental health care plan through Medicare.[177]
[176] Transcript 3 July 2024, pp 40-41.
[177] Transcript 3 July 2024, p 41.
Dr Russell provided written evidence in April 2023 that the Applicant was in the early stages of treatment, there was a reasonable likelihood that he would respond to treatment and that there were other therapeutic options available that may be effective.
Considered overall, the Tribunal is not satisfied that there are no known, available and appropriate treatments that would likely remedy the psychosocial impairments related to the Applicant’s depression and anxiety or that his impairment does not require further treatment or review in order for its likely permanency to be demonstrated.
Paragraph 24(1)(b) of the NDIS Act is not satisfied in respect of the Applicant’s psychosocial impairments to which a psychosocial disability is attributable.
It follows that that the Tribunal is satisfied that the Applicant’s mobility impairments related to lumbar spondylosis and osteoporosis of the spine are permanent but is not so satisfied in relation to any other impairments. Given the cumulative nature of the disability requirements in subsection 24(1) of the NDIS Act, the Tribunal will go onto consider whether the impairments arising from lumbar spondylosis and osteoporosis of the spine, which are permanent, satisfy paragraph 24(1)(c) of the NDIS Act.
Does the Applicant’s impairment result in substantially reduced functional capacity to undertake one or more of the specified activities?
To satisfy the criteria in paragraph 24(1)(c) of the NDIS Act, the Applicant must demonstrate that his impairments result in a substantially reduced functional capacity to undertake one or more of the following six activities:
(i)Communication;
(ii)Social interaction;
(iii)Learning;
(iv)Mobility;
(v)Self-care; and
(vi)Self-management.
It is enough for an individual to have substantially reduced functional capacity in relation to just one of the stated activities to meet the criteria in paragraph 24(1)(c).
Rule 5.8 of the Access Rules represent deeming provisions that must be applied when the Tribunal is considering whether the Applicant’s impairment results in a ‘substantially reduced functional capacity’ and provide as follows:
An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities—communication, social interaction, learning, mobility, self-care, self-management (see paragraph 5.1(c))—if its result is that:
(a)the person is unable to participate effectively or completely in the activity, or to perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications; or
(b)the person usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in the activity or to perform tasks or actions required to undertake or participate in the activity; or
(c)the person is unable to participate in the activity or to perform tasks or actions required to undertake or participate in the activity, even with assistive technology, equipment, home modifications or assistance from another person.
In Mulligan, Mortimer J held that the legislation requires ‘a relatively high degree of precision by decision-makers… in assessing what a person can or cannot do. The assessment to be undertaken is avowedly functional and multi-faceted.’[178] With respect to Rule 5.8, Mortimer J explained that if an applicant does not fall within the deeming effects of the rule, ‘the statutory task remains to consider whether a person’s functional capacity is substantially reduced in any of the six specified areas.’[179]
[178] Mulligan at [55].
[179] Mulligan at [77].
In National Disability Insurance Agency v Foster [2023] FCAFC 11 (Foster) the Full Court of the Federal Court made clear that it is the assessment with respect to the bundle of tasks and actions within an activity which is relevant, rather than equating impairment to a single task within the activity.[180] The full court explained further that:[181]
…a person will not necessarily be deemed to have substantially reduced functional capacity simply because one task is unable to be completed without assistive technology. The task remains to assess the degree to which the person can participate in the activity.
[180] Foster at [65].
[181] Foster at [88].
The Operational Guidelines state:
Your permanent impairment needs to substantially reduce your functional capacity or ability to undertake activities in one of the following areas:
·Communicating – how you speak, write, or use sign language and gestures, to express yourself compared to other people your age. We also look at how well you understand people, and how others understand you.
·Socialising – how you make and keep friends, or interact with the community, or how a young child plays with other children. We also look at your behaviour, and how you cope with feelings and emotions in social situations.
·Learning – how you learn, understand and remember new things, and practise and use new skills.
·Mobility, or moving around – how easily you move around your home and community, and how you get in and out of bed or a chair. We consider how you get out and about and use your arms or legs.
·Self-care – personal care, hygiene, grooming, eating and drinking, and health. We consider how you get dressed, shower or bathe, eat or go to the toilet.
·Self-management (if older than 6) – how you organise your life. We consider how you plan, make decisions, and look after yourself. This might include day-to-day tasks at home, how you solve problems, or manage your money. We consider your mental or cognitive ability to manage your life, not your physical ability to do these tasks.
Your impairment substantially reduces your functional capacity if you usually need disability-specific supports to participate in or complete the above tasks.
These disability-specific supports include:
·a high level of support from other people, such as physical assistance, guidance, supervision or prompting.
·assistive technology, equipment or home modifications that are prescribed by your doctor, allied health professional or other medical professional.
(Original emphasis.)
However, as explained in Foster:[182]
…Guidelines are merely administrative “tools”. They do not provide a legislative definition of the relevant activities. They do not control the meaning of the phrase “substantially reduced functional capacity”. Nor do they alter the threshold criteria for when a person meets the disability requirements as specified in s 24(1) of the NDIS Act. They are not the equivalent of a statutory provision and are not to be construed in like manner... Rather, they provide non-exclusive content to the range of “tasks and actions” (as referred to in r 5.8) that comprise the “activities” the NDIA is required to consider, consistent with the legislative history, context, and purpose.
[182] Foster at [62].
Communication
The Operational Guideline with respect to communication states:
Communicating – how you speak, write, or use sign language and gestures, to express yourself compared to other people your age. We also look at how well you understand people, and how others understand you.
Dr Saweris recorded that the Applicant requires assistance with expressive and receptive communication skills[183] and mentions ‘IT supportive devices to ease communication – prevent falls? apple watch.’[184]
[183] TB1, p 85.
[184] TB1, p 63.
Dr Berhane stated the Applicant’s communication skills were normal.[185]
[185] R1 at [19a].
Mr Fielke noted in his FCA Report that the Applicant displayed adequate receptive and expressive verbal communication skills during the assessment. The Applicant reported to Mr Fielke that he had appropriate literacy skills and is capable of undertaking communication on social media and can communicate by his phone as required.[186] Mr Fielke concluded that the Applicant did not have any significant reduction in his functional capacity for communication.
[186] TB1, p 236.
In his oral evidence Mr Fielke clarified his opinion that the Applicant did not have a significant reduction in his functional capacity for communication by stating:[187]
We were able to conduct a close to two-hour conservation. So Mr Hall was able to understand my questions. He provided appropriate responses. He sustained employment for many years. He was a courier; attended social outings…so demonstrating a capacity for appropriate verbal, receptive and expressive communication skills. Report[ed] that he was able to read to an appropriate level. Read and write to an appropriate level. And use social media appropriately.
[187] Transcript 4 July 2024, p 11.
Dr Russell noted the Applicant had a tendency for tangential speech[188] and this was observed by the Tribunal at times during his oral evidence at the hearing. Nevertheless, he communicated clearly and effectively at the hearing demonstrating an understanding of the questions asked and being able to articulate his answers, albeit occasionally in an overinclusive way.
[188] TB1, p 257.
In his oral evidence the Applicant stated that he previously worked as a courier and was able to obtain his drivers licences for a standard truck up to three tonnes and for a semi-trailer.[189] He had been able to maintain stable employment and own his home outright.[190] Prior to working as a courier the Applicant qualified as a cabinet maker and had also worked in horticulture.[191] The Tribunal’s view is that the Applicant was able to communicate effectively to function in these employment roles. He retired in 2021 following his return to work after his aortic valve replacement in the context of issues with the new management. He stated that had the company not changed hands, he would likely still be working.[192] He communicates with his doctors, neighbours, members of the public and family and friends. He uses his mobile phone to make phone calls and send text messages. He uses Facebook or Gumtree to sell plants and refurbished furniture.[193]
[189] Transcript 3 July 2024, p 22.
[190] Transcript 3 July 2024, p 3.
[191] Transcript 3 July 2024, p 49.
[192] Transcript 3 July 2024, p 23.
[193] Transcript 3 July 2024, p 50.
The evidence before the Tribunal does not support Dr Saweris’ opinion that the Applicant requires special equipment for his expressive and receptive communication skills. The Tribunal is satisfied that he can speak and write to express himself and understand people and be understood, and that he does so without the assistance of others or the use of assistive technology.
Accordingly, the Tribunal is not satisfied that the Applicant has a substantially reduced functional capacity to undertake communication activities.
Social Interaction
The Operational Guideline with respect to social interaction states:
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.

In closing submissions, Ms Dellaca states:[324]
Mr Hall stated that he has limitations with his mobility, and has now become more reliant on his sister’s assistance when travelling to and from appointments, and attending the appointments with him. Whilst she is accommodating on most occasions, her own health conditions require fatigue management. This means she is not always available, or physically able to help, and this includes home assistance. Mr Hall experiences long periods of not being able to do home duties and everyday tasks, due to pain and fatigue.
[324] Applicant’s Written Closing Submissions, p 2.
The Tribunal accepts that Ms Dellaca provides her brother with support to attend appointments and assists with him with certain home duties when she is able. It is also accepted that during exacerbations of the Applicant’s back pain, he is less able to mobilise and needs to rest and apply heat therapy to his back.[325] Nevertheless, the evidence establishes that the Applicant can substantially, albeit assisted by commonly used equipment or using modified techniques, mobilise around his house and garden, drive to do his shopping and attend medical appointments, drive himself to the beach, do his own laundry, perform cleaning tasks, change his bed linen, prepare his meals, shower and toilet himself, transfer in and out of chairs and the bed and use tools and gardening equipment without the assistance of other people. The Tribunal is not satisfied that the Applicant is captured by the deeming effects of Rule 5.8(b).
[325] Transcript 3 July 2024, pp 16, 45 & 49.
Based on the evidence described above, the Tribunal is also satisfied that the Applicant is not assisted by Rule 5.8(c).
On the basis that the deeming operation of Rule 5.8 is not enlivened in this case, the Tribunal must consider whether the Applicant’s impairments result in a substantially reduced functional capacity in relation to mobility.
On the available evidence, the Tribunal is satisfied that the Applicant is able to effectively perform most mobility tasks either independently, in a modified fashion, with the use of the commonly used items described above or with periodic informal support.
Considered overall, taking into account what the Applicant can and cannot do, the Tribunal is not satisfied that the Applicant’s impairments result in substantially reduced functional capacity in relation to mobility.
Self-care
The Operational Guideline with respect to self-care states:
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.
Dr Saweris recorded that the Applicant requires home and/or environmental modifications to assist his self-care for ‘showering, dressing, medications and cooking – cleaning – access medical and allied services.’[326] Dr Saweris also opined that the Applicant required home modifications to manage arthritis and reduce falls and required special equipment in ‘all aspects of self care’.[327]
[326] TB1, p 65.
[327] TB1, p 87.
Dr Berhane is of the view that the Applicant can engage in self-care tasks but with ‘great struggle’ and gives an example of the Applicant having to sit on the bed to be able to put his pants on.[328]
[328] R1 at [19e].
In his FCA Report, Mr Fielke stated that the Applicant did not have a substantial reduction in his capacity to undertake self-care activities.[329] He recorded the Applicant as independent with regards to showering, toileting, dressing and grooming.[330] He noted the Applicant having to use a cautious approach when dressing himself so not to aggravate his lower back condition, particularly with respect to putting on socks and completing lower limb dressing. Mr Fielke stated the Applicant reported experiencing some knee discomfort with toilet transfer but remained independent to complete the task. The Applicant was independent with meal preparation and feeding himself. Mr Fielke observed the Applicant’s house and yard to be well kept and tidy.[331]
[329] TB1, p 245 at [25].
[330] TB1, p 237.
[331] TB1, p 231.
In addition to the oral evidence outlined in paragraph 188 ((c), (g) – (i) and (k)), the Applicant gave the following evidence at the hearing regarding self-care activities:
(a)He does not have difficulties preparing meals. He mainly makes soups.[332]
(b)He is independent with shaving and brushing his teeth.[333]
(c)He can manage his own medication. He utilises a ‘pill box’ and his phone alarm for compliance support.[334]
(d)In the shower he uses a ‘fluffy thing on a stick’ to wash his back and a scrubbing brush to do ‘my arms and legs if I’m really dirty’.[335]
(e)He can take the rubbish bins out for collection.[336]
[332] Transcript 3 July 2024, pp 28-29.
[333] Transcript 3 July 2024, p 32.
[334] Transcript 3 July 2024, p 33.
[335] Transcript 3 July 2024, p 46.
[336] Transcript 3 July 2024, p 49.
In her oral evidence, Ms Dellaca stated that she visits the Applicant at least weekly and provides general assistance with tidying up, clothes washing, sweeping, cooking or anything else he needs assistance with. She acknowledged that he can complete these tasks himself but she feels that at times he struggles and won’t ask for help.[337] She has not needed to provide him assistance with showering, toileting or personal hygiene tasks. She does not consider his accommodation to be well kept, and that his level of tidiness has probably worsened as he has aged.[338]
[337] Transcript 3 July 2024, p 56.
[338] Transcript 3 July 2024, p 56.
In his updated Statement of Lived Experience, the Applicant stated that he did not require assistance or prompting to complete his self-care needs.[339]
[339] TB1, p 226.
The Tribunal accepts that the Applicant’s sister provides him with informal support with daily living tasks when she visits him weekly and that his general level of tidiness around the house may have deteriorated over time.
The Tribunal is not satisfied, however, that the Applicant usually requires assistance from other people to be able to effectively or completely perform the tasks or actions required to undertake the activity of self-care. The Applicant’s circumstances are not captured by Rule 5.8(b).
Several tasks relating to self-care have already been considered by the Tribunal in the mobility domain above as they rely heavily on an individuals ability to move around and use their arms or legs. These included general house cleaning (vacuuming, mopping and sweeping), washing and hanging out laundry, changing bed linen, preparing and cooking meals, dressing, showering and toileting. For the reasons previously given, the Tribunal is not satisfied that the deeming effects of Rule 5.8(a) are enlivened with respect to these tasks for which there are shared components of mobility and self-care.
The Tribunal considers long handled cleaning equipment, grabbers and showering sponges/brushes as common everyday items of equipment that are easily obtainable, simple to use, relatively inexpensive and not necessarily disability specific.
Based on the evidence described above, the Tribunal is also satisfied that the Applicant is not assisted by Rule 5.8(c).
On the basis that the deeming operation of Rule 5.8 is not enlivened in this case, the Tribunal must consider whether the Applicant’s impairments result in a substantially reduced functional capacity in relation to self-care.
The Applicant can shower and toilet himself independently, assisted by grab rails for stability and transfer. He can cook his meals and feeds himself independently. He attends to his grooming and personal hygiene. He dresses himself using a modified technique to prevent bending and having to raise his left arm above his head. He manages his health by attending medical appointments and adhering to prescribed medications. He can perform general household cleaning tasks without the use of equipment other than commonly used items such as long handled cleaning equipment. The Tribunal accepts that the Applicant’s ability to undertake self-care tasks will intermittently be limited by exacerbations of lower back pain. The Tribunal appreciates that he must use a slower or modified approach for certain tasks due to the limitations on bending his back, kneeling and squatting and that from time to time he requires the assistance of his sister.
Considered overall, taking into account what the Applicant can and cannot do, the Tribunal is not satisfied that the Applicant’s impairments result in substantially reduced functional capacity in relation to self-care.
Self-management
The Operational Guideline with respect to self-management states:
Self-management – how you organise your life. We consider how you plan, make decisions, and look after yourself. This might include day-to-day tasks at home, how you solve problems, or manage your money. We consider your mental or cognitive ability to manage your life, not your physical ability to do these tasks.
Dr Saweris has recorded that the Applicant requires assistance in self-management in ‘all aspects of self-care’.[340] No further medical evidence or clarification was provided.
[340] TB1, p 87.
In his FCA Report, Mr Fielke stated that the Applicant was able to make personal decisions independently, including his financial management, organising and attending medical appointments and purchasing items he needed from the shopping centre.[341] He recorded the Applicant having age-appropriate capacity for planning, organisation and problem solving.
[341] TB1, pp 237-238 & 247.
At the hearing Mr Fielke confirmed that in his opinion the Applicant’s impairments did not result in him having a substantially reduced functional capacity in relation to self-management.[342] When asked what sort of functions he considered regarding the Applicant’s self-management, Mr Fielke stated:[343]
…his ability to previously work independently. His ability to maintain – to live independently. To organise his own medical appointments. To pay his own bills; maintain financial affairs. To live independently at home. Shop, et cetera.
[342] Transcript 4 July 2024, p 11.
[343] Transcript 4 July 2024, pp 11-12.
The Applicant’s evidence is that he independently makes decisions in relation to his finances, budgeting and managing bills.[344] He can organise the purchasing of his own clothing, groceries and other daily necessities and is able to independently plan for and execute shopping for greater quantities of items to store in his pantry and freezer, thus reducing the frequency he needs to do a ‘big shop’.[345] He manages his medications and makes his own medical appointments. He will ask his sister to attend medical appointments with him ‘if I’ve got something that needs another set of ears’.[346]
[344] TB1, p 226.
[345] Transcript 3 July 2024, pp 27 & 45.
[346] Transcript 3 July 2024, p 33.
The Tribunal asked the Applicant whether he ever forgets to take his medication to which he responded that he has in the past but ‘it’s very rare’.[347] He explained that he sets his phone alarm as a reminder. Even if he forgets to set his alarm, he is still able to remember to take his medication, sometimes a little earlier or later.[348] He is aware that forgetting his medication, in particular his cortisone, can lead to serious health consequences. While a mobile phone is a device and the alarm function could be considered to aid self-management in terms of prompting, such an application is commonly used by people in the community and the evidence is that the Applicant does not routinely rely on this.
[347] Transcript 3 July 2024, p 33.
[348] Transcript 3 July 2024, p 34.
The Applicant stated he had not ever forgotten any of his medical appointments.[349]
[349] Transcript 3 July 2024, p 33.
Ms Dellaca gave oral evidence that she generally accompanies the Applicant during his medical appointments so she can ‘listen to what needs to be done, where he needs to go’.[350] At other times she will wait in the waiting room while he meets with his doctor. She confirmed that he makes his own medical and Centrelink appointments. She will check in with him every few weeks to make sure he has been taking his medication.[351] She has previously had to take him to hospital when he has forgotten to take his cortisone correctly, the last occasion being around 2012.
[350] Transcript 3 July 2024, p 55.
[351] Transcript 3 July 2024, p 62.
The Tribunal accepts that the Applicant has occasionally forgotten to take his medication, something that can result in significant health consequences for him. However, he has been able to learn the importance of medication compliance and clearly articulated to the Tribunal the potential consequences of non-adherence.[352]
[352] Transcript 3 July 2024, p 10.
While the Tribunal accepts that the Applicant’s sister provides a level of informal support to confirm his medical management and medication compliance, it is not satisfied that the Applicant usually requires assistance from others with respect to undertaking or participating in the bundle of tasks that encompass the activity of self-management.
The Tribunal’s view is that the Applicant’s circumstances are not captured by Rule 5.8 with respect to this domain.
Considered overall, the Tribunal is not satisfied that the Applicant’s impairments result in substantially reduced functional capacity in relation to self-management activities.
Does the Applicant satisfy the disability requirements of Section 24?
For the reasons given above, the Tribunal has found that the Applicant’s impairments do not result in substantially reduced functional capacity to undertake any of the six specified activities as required by paragraph 24(1)(c) of the NDIS Act. Accordingly, he does not meet the disability requirements. As paragraph 24(1)(c) of the NDIS Act is a mandatory provision, it is not necessary for the Tribunal to consider paragraph 24(1)(e).
Does the Applicant satisfy the early intervention requirements of Section 25?
As the Applicant has not met the disability requirements under section 24, the Tribunal will next consider whether he meets the early intervention requirements.
Section 25 of the NDIS Act sets out the early intervention requirements. The Operational Guideline with respect to early intervention states:
We need to decide that getting early intervention supports means you’ll likely need fewer disability supports in the future.
We need to know that early intervention supports will help you with at least one of the following:
·addressing the impact of your impairment on your ability to move around, communicate, socialise, learn, look after yourself and organise your life
·preventing your functional capacity from getting worse
·improving your functional capacity
·supporting your informal supports, which includes building their skills to help you.
To help us decide if the early intervention will help you in these ways, we look at:
·how your impairment might change over time
·how long you’ve had your impairment
·if there’s been a significant change to your impairment
·if your needs are likely to change soon, such as if you’re finishing school.
As to early intervention requirements, the Access Rules provide as follows:
6.1A person does not meet the early intervention requirements if the CEO is satisfied that early intervention support for the person is more appropriately funded or provided through another service system (service systems is defined in paragraph 8.4) rather than the NDIS.
6.2      However, a person meets the early intervention requirements if:
(a)       the person:
(i)has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent (see paragraphs 6.4 to 6.7); or
(ii)has one or more identified impairments that are attributable to a psychiatric condition and are, or are likely to be, permanent (see paragraphs 6.4 to 6.7); or
(iii)       is a child who has developmental delay; and
(b)the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person’s future needs for supports in relation to disability (see paragraphs 6.8 to 6.11); and
(c)the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by:
(i)mitigating or alleviating the impact of the person's impairment upon the functional capacity of the person to undertake communication, social interaction, learning, mobility, self-care or self-management; or
(ii)        preventing the deterioration of such functional capacity; or
(iii)       improving such functional capacity; or
(iv)strengthening the sustainability of informal supports available to the person, including through building the capacity of the person’s carer (see paragraphs 6.8 to 6.11).
6.3This Part sets out rules relating to some of the elements in paragraph 6.2 above, however, in order to meet the early intervention requirements, all of the requirements in that paragraph need to be satisfied.
…
Deciding whether provision of early intervention supports is likely to benefit the person
6.8Where paragraph 6.2(a) applies to a person, the main way in which the CEO can determine whether the provision of early intervention supports is likely to benefit the person in the ways set out in paragraphs 6.2(b) and (c) above is to consider evidence going to those matters, as indicated in paragraph 6.9 below. However, young children who have an impairment resulting in developmental delay (see paragraph 6.10) or resulting from a particular condition (see paragraph 6.11) will not need to provide further evidence of the matters in paragraphs 6.2(b) and (c).
Where evidence is required
6.9In deciding whether provision of early intervention supports is likely to benefit the person in the ways mentioned in paragraphs 6.2(b) and (c) above, it is expected that the CEO would consider:
(a)the likely trajectory and impact of the person's impairment over time; and
(b)the potential benefits of early intervention on the impact of the impairment on the person's functional capacity and in reducing their future needs for supports; and
(c)evidence from a range of sources, such as information provided by the person with disability or their family members or carers. The CEO may also in some cases seek expert opinion.
(Original emphasis. Notes omitted.)
The Respondent contends that based upon the evidence in Mr Fielke’s report as well as upon the Applicants own evidence, no early intervention supports have been identified that would likely benefit the Applicant in the ways prescribed by paragraphs 25(1)(b) and (c).[353]
[353] Respondent’s Written Closing Submissions, at [33] – [35].
The Applicant has not made any submission regarding access by way of qualifying for early intervention supports.
As the Tribunal has found that the Applicant’s mobility impairments related to lumbar spondylosis and spinal osteoporosis are permanent, it is satisfied he meets the requirements of subparagraph 25(1)(a)(i) of the NDIS Act.
Paragraph 25(1)(b) of the NDIS Act requires that:
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.
The Tribunal notes that at the time of the original application, Dr Saweris indicated that early intervention supports would not be likely to reduce the Applicant’s future support needs.[354] Inconsistently, Dr Saweris subsequently notes in a supporting evidence form that the Applicant is likely to benefit from early intervention supports by way of physiotherapy (to maintain musculoskeletal health and function, reduce falls and delay the need for knee replacement surgery), occupational therapy, podiatry and psychiatrist/psychologist.[355] In her report responding to targeted questions from the Respondent, Dr Saweris clarified, with regards to the Applicant benefiting from any further intervention, that ‘he will required [sic] ongoing pain management reviews, physical therapy, rheumatology for symptomatic relief but unlikely to alter his prognosis or progress of his disease…the treatment outlined…is ongoing and lifelong’.[356]
[354] TB1, p 59.
[355] TB1, p 84.
[356] TB1, p 253.

Dr Berhane stated that the medical and conservative approaches to treatment would not significantly improve the Applicant’s physical impairments.[357] He noted that physical therapy had been restricted due to the Applicant’s pain and physical impairments.[358]
[357] Exhibit R1 at [13].
[358] Exhibit R1 at [14].
In his oral evidence, Mr Fielke did not consider any additional supports, other than those the Applicant is currently utilising, would improve or prevent any deterioration in the Applicants functional capacity.[359]
[359] Transcript 4 July 2024, pp 12-13.
Based on the available medical evidence, the Tribunal is satisfied that the Applicant’s lumbar spondylosis and spinal osteoporosis are long standing and unlikely to improve. Taking into account the view of Dr Berhane that conservative approaches would not significantly improve the Applicants physical impairments and the evidence of Dr Saweris that therapeutic interventions will need to be life long, the Tribunal is not satisfied that the provision of early intervention supports will likely reduce the Applicant’s future needs for support in relation to his disability. Therefore, he does not meet paragraph 25(1)(b) of the NDIS Act.
As the early intervention requirements of subsection 25(1) are cumulative, the Tribunal does not need to consider paragraph 25(1)(c) of the NDIS Act.
CONCLUSION
The Tribunal has found, on the totality of the evidence, that the Applicant’s impairments do not result in a substantially reduced functional capacity to undertake the prescribed activities as required under paragraph 24(1)(c) of the NDIS Act. Furthermore, the Tribunal finds that the Applicant does not meet the early intervention requirements required under paragraph 25(1)(b) of the NDIS Act.
The Tribunal understands that this will be a difficult decision for the Applicant and his sister to receive. The Tribunal’s decision does not seek to diminish the significant nature of the Applicant’s impairments and the impact they have on his life or the valuable support his sister regularly provides him. The Tribunals finding is based on the requisite legislative criteria having not been met at this time.
DECISION
The Tribunal affirms the decision under review pursuant to paragraph 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).

I certify that the preceding 251 (two hundred and fifty-one) paragraphs are a true copy of the reasons for the decision herein of Administrative Appeals Tribunal

........................[Sgd].................................................
Associate
Dated: 4 September 2024

Date(s) of hearing: 3 and 4 July 2024

Applicant: Self-represented

Counsel for the Respondent: Ms Jennifer Flinn

Solicitors for the Respondent: Ms Kurewa and Mr Arblaster of the National Disability Insurance Agency

[2024] AATA 3151

4 September 2024

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Standing

Statutory Construction

Date(s) of hearing:	3 and 4 July 2024
Applicant:	Self-represented
Counsel for the Respondent:	Ms Jennifer Flinn
Solicitors for the Respondent:	Ms Kurewa and Mr Arblaster of the National Disability Insurance Agency