Harrison and National Disability Insurance Agency - [2024] AATA 610

Harrison and National Disability Insurance Agency [2024] AATA 610 (5 April 2024)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2023/0991
Re:Ms Judith Harrison
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

Decision

Tribunal:Senior Member D Connolly
Date:5 April 2024
Place:Sydney

The decision under review is set aside and, in substitution, the Tribunal decides that the Applicant meets the access criteria under section 21 of the National Disability Insurance Act 2013 (Cth).

...............[SGD].....................

Senior Member D Connolly

CATCHWORDS

NATIONAL DISABILITY INSURANCE SCHEME – access criteria – rheumatoid arthritis - whether there is substantially reduced functional capacity – whether supports needed are most appropriately met by other systems – whether the Applicant is likely to require support under the NDIS for a lifetime – decision set aside and substituted

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

National Disability Insurance Scheme Act 2013 (Cth)

National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)

CASES

Mulligan v National Disability Insurance Agency [2015] FCA 544

National Disability Insurance Agency v Foster [2023] FCAFC 11

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634

ZJSG and National Disability Insurance Agency [2023] AATA 2784

Young and National Disability Insurance Agency [2014] AATA 401

Secondary Materials

National Disability Insurance Agency, Our Guidelines – Becoming a participant – Applying to the NDIS, (Web Page) < FOR DECISION

Senior Member D Connolly

BACKGROUND TO REVIEW

The Applicant, aged 58, seeks review of a decision made by the National Disability Insurance Agency (the Respondent), which affirmed an earlier decision to refuse her request for access to the National Disability Insurance Scheme (the NDIS) under provisions of the National Disability Insurance Scheme Act 2013 (Cth) (the Act).
The Applicant has been diagnosed with rheumatoid arthritis and associated joint deformity, stiffness and pain. She also has been diagnosed with osteoarthritis and sleep apnoea, and takes medication to manage other conditions: seizures; severe hypertension resulting in minor strokes and impaired kidney function; and hyperparathyroidism.
The Applicant lives alone in a two-bedroom unit in a Melbourne suburb. She does not have a partner, children, any other informal support network, or paid supports. She has three siblings with whom she has regular phone contact but, generally speaking, they do not provide her with support. One sister accompanies her to some medical appointments.
The Applicant has been in receipt of disability support pension since 1997. She was working in part-time employment in a reception/administrative role, before the 2020 COVID-19 lockdowns when she was made redundant. She continues to search for employment in a role where she can be seated.
In December 2022, the Applicant made a request to become a participant in the NDIS. Her treating general practitioner, Dr Mark Epstein, stated her main disability is rheumatoid arthritis, along with osteoarthritis and severe hypertension. He claimed her disability impacts her functional capacity in the domains of mobility, socialising, learning and self-care.
On 23 January 2023, a delegate of the Chief Executive Officer (CEO) of the Respondent determined the Applicant did not meet the access criteria set out in the Act because the delegate was not satisfied her impairments result in substantially reduced functional capacity. An internal reviewer confirmed the decision on 10 February 2023. The internal reviewer accepted the Applicant’s rheumatoid arthritis results in permanent physical impairments but was not satisfied her functional capacity is substantially reduced.
On 20 February 2023, the Applicant applied to the Administrative Appeals Tribunal (the Tribunal) for review of the internal review decision.
The hearing was conducted by video conference on 7 and 8 February 2024. The Tribunal heard oral evidence from the Applicant, Ms Belinda Baker, the Applicant’s sister-in-law, and Ms Teresa Barry, independent occupational therapist.

LEGISLATION

The access criteria

To become a participant in the NDIS, the Applicant must satisfy the access criteria set out in subsection 21(1) of the Act, which provides as follows:
1.A person meets the access criteria if:
1.the CEO is satisfied that the person meets the age requirements (see section 22); and
2.the CEO is satisfied that, at the time of considering the request, the person meets the residence requirements (see section 23); and
3.the CEO is satisfied that, at the time of considering the request:
1.the person meets the disability requirements (see section 24); or
2.the person meets the early intervention requirements (see section 25).
There is no dispute the Applicant satisfies the age requirements and the residence requirements. I must decide whether the Applicant satisfies the access criteria in section 24 (the disability requirements) or section 25 (the early intervention requirements).
Section 24 of the Act states:
1.A person meets the disability requirements if:
1.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
2.the impairment or impairments are, or are likely to be, permanent; and
3.the impairment or impairments result in substantially reduced functional capacity to undertake one or more of the following activities:
1.communication;
2.social interaction;
3.learning;
4.mobility;
5.self care;
6.self management; and
2.the impairment or impairments affect the person’s capacity for social or economic participation; and
3.the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime.
1.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.
The Minister may, under subsection 209(1) of the Act, make rules prescribing matters. The rules relevant to this matter are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (the Access Rules), which form part of the legislation, and are set out below.
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. The relevant Operational Guideline is Our Guidelines – Becoming a participant – Applying to the NDIS (Operational Guideline).
I note 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 multifaceted.” The Full Federal Court explained the legislation requires that it is based on a functional, practical assessment of what a person can and cannot do.

ISSUES

Dr Epstein has indicated that the Applicant has a disability associated with the impairments resulting from rheumatoid arthritis, osteoarthritis and severe hypertension. The Applicant seeks to rely on pain, stiffness, abnormal gait, and limited mobility in multiple joints to meet the access criteria.
The parties agree that the Applicant has a disability which is permanent and so paragraphs 24(1)(a) and 24(1)(b) of the Act are met. Having considered the material discussed below, I agree that those requirements are met.
The first issue on which the parties disagree is whether the Applicant’s impairment(s) result in substantially reduced functional capacity to undertake any of the following activities: communication, social interaction, learning, mobility, self-care or self-management. The Respondent contends the Applicant has not demonstrated a substantially reduced functional capacity in any of those activities and so does not meet paragraph 24(1)(c) of the Act. Dr Epstein has submitted that the Applicant has substantially reduced functional capacity in mobility, socialising, learning and self-care. I must consider whether the Applicant has a substantially reduced functional capacity in any of the six activities.
The parties agree that the Applicant meets paragraph 24(1)(d) of the Act, the Respondent being of the view the Applicant’s impairment resulting from rheumatoid arthritis affects her capacity for economic participation. Having regard to the evidence discussed in more detail below, I also accept that the Applicant meets this provision.
If I decide the Applicant meets paragraph 24(1)(c) of the Act, I will consider whether she meets the requirement set out in paragraph 24(1)(e) of the Act, that she is likely to require support under the NDIS for her lifetime. In its RSFIC the Respondent has submitted that the Applicant does not meet this requirement because her impairment does not result in substantially reduced functional capacity to undertake any of the six activities.
For the reasons given below I find the Applicant meets the disability requirements. Accordingly, it is not necessary for me to consider whether she meets the early intervention requirements set out in section 25 of the Act.

CONSIDERATION OF CLAIMS AND EVIDENCE

Does the Applicant have a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments, or one or more impairments to which a psychosocial disability is attributable?

I have considered whether the Applicant has a disability that is attributable to an impairment or impairments. The Respondent has accepted the Applicant has a disability that is attributable to a physical impairment, and that paragraph 24(1)(a) of the Act is met. As I have explained, the Applicant’s impairments need to be identified with some precision.
Dr Epstein advised in the access application form that the Applicant's rheumatoid arthritis affects multiple joints including her hands, knees, ankles and feet, and that the condition has affected the distance she can walk and limits her physical activity and self-care.
Dr Epstein also noted the Applicant has a disability as the result of impairment associated with osteoarthritis for which she had a left knee replacement.
The Applicant was assessed by Ms Teresa Barry, occupational therapist, on 18 July 2023 at the request of the Respondent. She produced a report which I have read, and she gave oral evidence at the hearing. Ms Barry reported the Applicant has rheumatoid arthritis and osteoarthritis and listed impairments with walking and movement, impacting social interaction, mobility and self-care.
On the basis of the evidence before me, I am satisfied that the Applicant has a disability attributable to a physical impairment resulting from rheumatoid arthritis and osteoarthritis and paragraph 24(1)(a) of the Act is met.
Dr Epstein referred to the Applicant having a disability associated with severe hypertension resulting in minor strokes and her kidneys being affected. No other evidence was provided in relation to this condition. I am not satisfied the Applicant has any impairment resulting from this condition.
Ms Barry reported that the Applicant has seizures for which she takes medication daily. She is monitored by a neurologist. She has not had a seizure in two years. While I accept this is a condition which requires management, I am not satisfied the Applicant currently has an impairment resulting from this condition. Nor am I satisfied her hyperparathyroidism and sleep apnoea, also reported by Ms Barry, result in any impairment.
Is the Applicant’s impairment permanent, or likely to be, permanent?
The Respondent has accepted the Applicant meets paragraph 24(1)(b) of the Act in relation to her physical impairment.
In 2022 Dr Epstein advised that the Applicant has had rheumatoid arthritis for 33 years. It is managed with medication. He gave no indication that there are any further treatments or interventions that are likely to substantially relieve the Applicant’s impairment. He also advised the cause of the Applicant’s major disability, rheumatoid arthritis, for which she has been prescribed prednisolone, methotrexate and rituximab, is permanent.
Having regard to Dr Epstein’s advice, I am satisfied the requirement in paragraph 24(1)(b) of the Act in relation to the Applicant’s physical impairment is met.

Does the Applicant’s physical impairment result in substantially reduced functional capacity to undertake one or more of the specified activities?

Rule 5.8 of the Access Rules sets out the matters the Tribunal must consider when determining whether the Applicant’s impairment results in substantially reduced functional capacity and states as follows:
An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities—communication, social interaction, learning, mobility, self-care, self-management (see paragraph 5.1(c))—if its result is that:
a.the person is unable to participate effectively or completely in the activity, or to perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications; or
b.the person usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in the activity or to perform tasks or actions required to undertake or participate in the activity; or
c.the person is unable to participate in the activity or to perform tasks or actions required to undertake or participate in the activity, even with assistive technology, equipment, home modifications or assistance from another person.
Your impairment substantially reduces your functional capacity if you usually need disability-specific supports to participate in or complete the (specified) tasks.
These disability-specific supports include:
·a high level of support from other people, such as physical assistance, guidance, supervision or prompting.
·assistive technology, equipment or home modifications that are prescribed by your doctor, allied health professional or other medical professional.

·Communication

The Operational Guideline with respect to communication currently states as follows:
Communicating – how you speak, write, or use sign language and gestures, to express yourself compared to other people your age. We also look at how well you understand people, and how others understand you.
Dr Epstein did not indicate the Applicant has substantially reduced functional capacity in communication.
I note the Applicant’s oral evidence given at the hearing that she has previously worked as a receptionist. She stopped work because she was made redundant during the COVID-19 lockdown. She continues to make job applications and she does her own job searches. Even when her sister attends appointments with her, she communicates with her doctors and asks her own questions. She writes and checks her own emails. She uses her mobile phone to speak to her family and friends. She also chats online and uses Facebook. She speaks with her neighbours. She does crosswords and reads books.
With respect to communication, Ms Barry reported that the Applicant has nil impairment with understanding and communicating. She reported there is no known hearing impairment. The Applicant wears reading glasses, which are regarded as commonly used items. Ms Barry concluded the Applicant does not present with any reduction of functional capacity for communication.
I observed at the hearing that the Applicant appeared to be able to understand and answer questions. Her responses were appropriate, indicating she comprehended the questions. She indicated she was able to read the material from the evidence bundle.
Overall, I am satisfied that the Applicant can participate in communication related activities independently. I am satisfied that she is able to perform tasks or actions required to undertake or participate effectively or completely in communication activities, without assistive technology or equipment. I am not satisfied that any of the circumstances in rule 5.8 are met in her case, with respect to communication.
Having considered the Operational Guideline, I am satisfied the Applicant is able to speak and write to express herself, and that she is able to understand people, and be understood.
On the basis of the information before me, I am satisfied the Applicant is able to participate effectively and completely in communicating. Accordingly, I am not satisfied the Applicant has a substantially reduced functional capacity to undertake communication activities.
Social interaction
The Operational Guideline with respect to social interaction currently states as follows:
Socialising - how you make and keep friends, or interact with the community, or how a young child plays with other children. We also look at your behaviour, and how you cope with feelings and emotions in social situations.
Dr Epstein reported that the Applicant needs assistance with socialising because of her lack of mobility and difficulties doing most physical activities. Ms Barry reported that the Applicant needs intermittent physical assistance for social interaction. I am not satisfied her need for physical assistance is relevant to my assessment of whether the Applicant has a substantially reduced functional capacity in social interaction. I agree with the Respondent, that with respect to this domain, consideration should be given to the person’s behaviour and how he or she copes with feelings and emotions in social situations.
With respect to her social situation, Ms Barry reported that the Applicant was married but she has no contact with her ex-husband. Her siblings do not provide her with regular support or care. Her mother resides nearby, with aged care support. She describes herself as a homebody who enjoys sedentary hobbies. She has a small network of friends, from school and workplaces and she catches up with them infrequently.
While Ms Barry indicated that the Applicant has a mild functional impairment in this domain, she qualified this by saying the Applicant’s “reliance on public transport limits her opportunity for social participation. For example, she would like to go to her local library and Aquahub / Pool but describes that these are too far for her to walk. OT can confirm that these community facilities are not accessible to Miss Harrison using existing public transport and walking.” Again, I am not satisfied these limitations are relevant to the social interaction domain. I am of the view they are relevant to the mobility domain, discussed in more detail below.
At the hearing the Applicant told me that she is very socially isolated because of her physical impairment. She confirmed that she stays in contact with friends using Facebook and occasionally meets them for coffee. She speaks to her siblings sometimes and meets with them on special occasions. She occasionally visits her mother who lives in a retirement village. She chats with her neighbours. While she told me she is socially isolated, there is no evidence before me to indicate this is because the Applicant has a reduced functional capacity in social interaction. I observed at the hearing that the Applicant was able to respond to the numerous questions put to her in a measured, appropriate way. She did not demonstrate any concerning behaviours over the two-day hearing.

I am satisfied the Applicant has the social skills to make and keep friends and maintain relationships with members of her family. I am satisfied she interacts in her community to the extent that she is able to have community engagement, given her mobility limitations.
Considered overall I am not satisfied the Applicant’s physical impairment prevents her from participating appropriating and effectively in social interaction, or performing tasks or actions required to undertake or participate in social activity, when she is able to meet with other people, without assistive technology or equipment. I am of the view the circumstances in rule 5.8 are not met with respect to this domain.
Considered overall, while I accept the Applicant’s social life has been affected by her physical impairment and its impact on her mobility, in that it limits her opportunities for engagement, I am not satisfied the Applicant has a substantially reduced functional capacity to undertake social interaction.

Learning

The Operational Guideline with respect to learning currently states as follows:
Learning – how you learn, understand and remember new things, and practise and use new skills.
Dr Epstein indicated that the Applicant requires assistance with learning as she has “difficulty comprehending more complicated reading material - often needs to read material multiple times”. I am not satisfied that the Applicant’s need to read complicated material multiple times confirms she has a reduced functional capacity in learning. This is not the test I must apply.
Ms Barry reported that the Applicant is independent in learning and requires no assistance.
In the Applicant’s oral evidence, she stated that she shops online, does crosswords, reads magazines and books, searches for jobs, and manages her finances and medical appointments.
On the evidence before me I am not satisfied the Applicant meets any of the circumstances set out in rule 5.8 with respect to the activity of learning.
Considered overall I am not satisfied the evidence supports Dr Epstein’s assertion that the Applicant’s physical impairment impacts her functional capacity to learn. I am not satisfied the Applicant has a substantially reduced functional capacity to undertake learning activities.

Mobility

The Operational Guideline with respect to mobility currently states as follows:
Mobility, or moving around – how easily you move around your home and community, and how you get in and out of bed or a chair. We consider how you get out and about and use your arms or legs.
Dr Epstein has submitted that the Applicant has severely limited mobility, an abnormal gait due to stiffness and pain in her joints and is only able to walk short distances of up to 50 metres without resting. He submitted that she has difficulty doing simple tasks with her hands such as dressing herself, opening jars, handling utensils and vacuuming. He reported she sits while dressing as she cannot stand for any length of time and has difficulty with other tasks such as showering.
Ms Barry summarised the Applicant’s physical impairment affecting mobility as follows:

·pain and stiffness in lumbosacral region of her back, resulting in stooped posture modified gait, reduced walking and standing tolerance;
·pain, stiffness and decreased range of motion bilaterally in hips, knees and ankles resulting in modified gait, increased risk of falls, reduced walking and standing tolerance;
·pain and inflammation in hands, back, knees and feet resulting in reduced walking and activity tolerance;
·unable to perform movements required (bending, kneeling, reaching, twisting) to complete domestic cleaning tasks – dusting, vacuuming, sweeping;
·unable to perform movements required (bending, kneeling, pushing) to complete gardening tasks;
·permanent joint deformity in hands, wrists and fingers which decreases her range of motion and ability to form conventional grasps.

Ms Barry also reported that the Applicant was observed to have the following difficulties:

·accessing her rear courtyard including the clothesline as there are steps with no banister rail;
·accessing the yard which was overgrown with weeds, beneath which appeared to be uneven paving;
·doing the laundry as she does not have a trolley or a vertical/tower clothes airer for inside use;
·turning the taps in the shower;
·no grab rails in the shower recess or bathroom;
·limited cleaning because the existing cleaning equipment (vacuum and mop) is heavy and difficult for her to use;
·her seating is inadequate and unsupportive;
·cooking because she does not have a kitchen perching stool.

With respect to walking, Ms Barry reported that the Applicant is currently independent and does not use a walking aid but has an altered gait and posture and significantly reduced pace. In her view the Applicant requires a banister to use stairs. She uses ramps and lifts in the community. She has a sitting tolerance of less than 30 minutes and cannot, after prolonged sitting, stand and walk straight away. She has a standing tolerance of less than 10 minutes. She leans on furniture when standing. She can lift from waist height and carry less than 5 kilograms but finds bending at the waist painful and avoids this movement. She finds knee flexion very painful. On a “good day” she can push a grocery trolley in the supermarket, carry two small bags of groceries a few steps to place them in her two-wheel trolley and walk 500 metres home, with rests every 50-100 metres. On an “average day” she has to catch a taxi home. She is unable to lift her two-wheel trolley up the six steps to her home and so she takes one bag at a time. This requires three trips up and down the stairs for one small grocery shop.
Ms Barry reported that the Applicant is able to transfer independently, sometimes with modified technique, from a car, chair, bed, toilet and the shower.
Having assessed the Applicant using the World Health Organisation Disability Assessment Schedule 2.0 (WHODAS 2.0), Ms Barry assessed the Applicant has severe functional impairment in getting around. She concluded the Applicant “ambulates independently – without a mobility aid and without support. Her walking posture is stooped due to flexion at the waist. Her gait speed and stride length is reduced due to reduced hip, knee and ankle flexion.” She concluded the Applicant would be able to walk greater distances with the use of a gait aid and gait retraining, once assessed by a physiotherapist. She observed the Applicant walk approximately 20 metres but could not go further because of heavy rain. Ms Barry accepted the Applicant’s assessment that she could walk 80 metres before resting. She observed the Applicant walk up and down six steps, requiring a banister rail.
Ms Barry concluded the Applicant would benefit from a mobility assessment by a physiotherapist as her gait is significantly altered, which decreases her balance and ability to walk safely at home and in the community. She formed the view such an assessment would identify appropriate capacity building interventions. She was also concerned that the Applicant was at risk of falls. She concluded the Applicant is unable to perform cleaning tasks including sweeping, vacuuming, dusting and aspects of bathroom and toilet cleaning because of mobility issues.
In her statement of lived experience the Applicant estimated that she can walk 30 metres before needing a break. While she can drive, she does not have a car. She cannot go up and down the stairs to hang out washing outside. At the time of filing the statement, which was around May 2023, the Applicant stated she was catching public transport, but she told me at the hearing that she has not caught a bus for some months because her pain and its impact on her function has worsened.
The Applicant in her oral evidence explained that she has gone “downhill” since she was assessed by Ms Barry and there is less that she can do, for example the distance she can walk has reduced. She is finding it harder to get around, even walking around her home, because of the arthritis.
The Applicant told me that she is finding it harder to do housework and that is the main support she needs. She has not been able to change her bed linen for five months. She last changed it when a friend visited and did it for her. She has a driver’s licence but has not had a car for seven years. She can sit in a car as a passenger for up to 60 minutes. She travels by bus or taxi. She is finding getting to and from the bus stop more difficult. She stopped catching the bus six months ago. She can walk to local shops if she is having a really good day but has to get a taxi home if she has a lot to carry. It is a 10 to 15 minute walk to the shops. She only goes to the shops about once a month, to get her medications from the pharmacy and some light groceries such as bread rolls. She does not shop for food because she is too sore. She has not been to the supermarket for three or four months. She now buys her groceries online. If the groceries are heavy the deliverer brings them into her home for her.
The Applicant confirmed she does not use a walking stick. She can transfer in and out of the bed and shower, and on and off the toilet. She holds on to the wall while showering. She has trouble with the taps. She only showers twice a week because of pain. She knows she should shower more. She can dry herself standing but sits to dress her lower body and put on shoes. The Applicant told me that she does not need to mow the lawn, as it is done by the body corporate, but someone needs to help her with weeding around her clothesline so she can access it. Each unit has its own clothesline, so she has to attend to hers.
In her oral evidence Ms Barry accepted that the Applicant would need a seat on public transport and is often unable to use public transport due to pain and reduced mobility. She explained that the Applicant uses a modified technique to get in and out of a car. She described in more detail the modified technique the Applicant adopts to shower and transfer.
Ms Barry was asked about the Applicant’s capacity to make her bed. She explained that while the Applicant is able to put a doona back in place, changing the linen on the bed requires a lot more bending and lifting, so the Applicant would need support to carry out this task. She explained these movements would increase pain for the Applicant.
Ms Barry confirmed the clotheshorse the Applicant uses to hang out her washing to be a commonly used item. Similarly a rubbish bin with wheels is a standard piece of equipment that everyone now uses. She noted the Applicant was using a small shopping trolley and relied on support to get home with her grocery shopping.
Ms Barry confirmed her recommendation that the Applicant, due to her impairment, needs support with domestic duties such as bedmaking, heavier housework and with grocery shopping.
Ms Barry confirmed the Applicant requires support to participate in social interaction and access the wider community because of her limited mobility. The Applicant would like to go to the library and the local pool but her limited mobility prevents her doing this.
Having considered all the evidence before me, in assessing what the Applicant can and cannot do, I am satisfied the Applicant is able to walk independently for up to 80 metres but she does this with an altered gait, and very slowly. She can walk further after resting. She can transfer in and out of bed and the shower, and on and off the toilet, using modified techniques. She can move around her unit independently but does so slowly. She can stand for less than 10 minutes and needs to lean on benches and furniture. She probably still has the capacity to drive a car, although she has not done this for several years. While she has the capacity to use public transport, she requires a seat so, in my view, it would be unreasonable to expect her to rely on public transport as a regular means of transport given seating may at times be unavailable.
Based on Ms Barry’s evidence I accept the Applicant’s capacity to bend, kneel, reach, lift and use her hands is limited due to the impact of arthritis. I also accept Ms Barry’s evidence that the Applicant’s balance is affected by her physical impairment and there is concern that the Applicant is at risk of falls. While I find the Applicant mobilises independently, I accept Ms Barry’s evidence that she does this slowly and with an altered gait, and that she could improve her capacity and be able to walk greater distances with the use of a gait aid and gait retraining. I accept the Applicant is unable to perform heavy cleaning tasks including sweeping, vacuuming, dusting and aspects of bathroom and toilet cleaning, all requiring more mobility than she has due to her physical impairment.
I note there are activities the Applicant cannot participate in because of her limited mobility, such as go to the library and attend the local pool. I am satisfied, in order to do these things, the Applicant would need the assistance of another person.
In assessing the Applicant’s functional capacity with respect to rule 5.8, I must apply the test set out in Foster, in which the Full Federal Court determined that the Tribunal is to reach a conclusion as to whether the Applicant has a substantially reduced capacity to undertake the activity “by assessing his [or her] functional capacity with respect to the bundle of tasks and actions forming the concept of (the activity).” As such, the activity to be assessed is mobility as a whole, not a specific task or action within mobility.
I am not satisfied the Applicant is unable to mobilise or to perform tasks or actions required to mobilise, even with assistive technology, equipment, home modifications or assistance from another person. Therefore rule 5.8(c) is not met.
With respect to rule 5.8(b), I am of the view the Applicant requires assistance from another person to mobilise or to perform tasks or actions required to mobilise in relation to travelling to venues beyond her walking capacity, and to undertake housework because of her limited capacity to bend, kneel, reach, lift and use her hands due to the impact of her physical impairment. She also needs assistance from a person to weed her garden around her clothesline. I note however that she does not require another person to assist with transfers, to walk short distances, to stand or to sit. While she has limitations in the use of her arms and legs, she does not require another person to move her limbs. Overall, I am not satisfied the Applicant meets rule 5.8(b).
Having regard to rule 5.8(a), in considering whether the Applicant is unable to mobilise effectively or completely, or to perform tasks or actions required to mobilise effectively or completely in the activity, without assistive technology, equipment (other than commonly used items) or home modifications, I am persuaded by Ms Barry’s evidence that while the Applicant is able to walk, her capacity to walk more effectively would be enhanced by the use of a gait aid, prescribed by a physiotherapist after assessment. I also conclude from her evidence that the Applicant’s capacity to move around her unit would be improved by aids and equipment such as a perching stool for sitting, a laundry trolley for moving washing, long handled aids for personal care and cleaning tasks, lever taps, banister rails and grab rails.I am not satisfied the Applicant currently mobilises effectively or completely without assistive technology, equipment (other than commonly used items) or home modifications. I am of the view rule 5.8(a) is met.
I have also considered whether the Applicant has a substantially reduced functional capacity in relation to the mobility activities listed in the Operational Guideline. I note the Guideline asks the decision maker to consider how easily a person mobilises. Having found the Applicant to be an honest, reliable witness, in considering the question the Guideline asks I have concerns that it is very difficult for her to mobilise and her physical impairment significantly limits what she does. I accept she is able to move around her home and, to a limited extent, in her community. I accept she can transfer independently in and out of bed, and on and off a chair. She is able to use her arms and legs. However she does these things with pain so she increasingly limits mobility activities involving the use of her limbs, as demonstrated by her reduced showering, use of public transport and shopping.
Even if I am wrong about the Applicant meeting rule 5.8(a), considered overall, while I am satisfied the Applicant can walk, traverse some steps, and undertake common transfers independently, for the following reasons I find her functional capacity in mobility is substantially reduced. The Applicant walks slowly, with an altered gait and in pain. While she does it independently, based on Ms Barry’s view, her capacity to do this would improve with a gait aid, prescribed by an assessment by a physiotherapist. I am not satisfied such an aid would be a commonly used item if it requires assessment and prescription. I am of the view her gait significantly restricts her capacity to complete a basic activity like going to the library or pool. Her restricted mobility in bending, kneeling, reaching, lifting and using her hands restrict her capacity to attend to basic domestic duties and personal care, to the extent that Ms Barry is concerned about her capacity to look after herself. It has resulted in her living in an unhygienic environment. I note she now limits the times she mobilises (such as limiting showering) and avoids certain activities (such as changing her bed linen and leaving her home), because of her reduced capacity to mobilise.
Considered overall, I am satisfied the Applicant’s impairments result in substantially reduced functional capacity in relation to mobility and subparagraph 24(1)(c)(iv) of the Act is met.

Self-care

The Operational Guideline with respect to self-care currently states as follows:
Self-care – personal care, hygiene, grooming, eating and drinking, and health. We consider how you get dressed, shower or bathe, eat or go to the toilet.
Dr Epstein has stated that the Applicant has difficulty with washing and showering herself due to reduced dexterity and joint mobility, which is worse when standing for any length of time, and that she has difficulty with cleaning, dressing and shopping at the supermarket. He also stated the Applicant has difficulty with dressing and showering, and reduced functioning of her hands leading to difficultly with cleaning tasks, clothes washing, drying, and putting her clothes away. She also finds food shopping at the supermarket difficult.
In her statement of lived experience the Applicant stated she was ordering her groceries online but found that to be expensive. She could still go to her local pharmacy for her medications. She stated she was able to feed, shower and toilet herself and did not require assistance with self-care needs.
In her oral evidence the Applicant stated she holds on to the wall while she is showering but she is able to wash her body and her hair. She holds on to the towel rail while stepping out of the shower, in effect using it as a grab rail. She dries her upper body standing and dries her lower body slowly. She sits on the bed to put on her socks, bra and top, and stands to put on her underwear. She brushes her teeth once a day.
The Applicant stated that she has not been cooking for a while. She buys ready-made frozen foods and meals for dinner. When asked if she can make soup, she said she buys Cup a Soup. She can make toast. She has ham and cheese on rolls for lunch. She can access the fridge and use the microwave, kettle and toaster. She can rinse her own crockery and cutlery which she stores under the kitchen bench so she does not have to reach up high. She can wipe down her sink and bench.
The Applicant said she does not get in-home support from her family. She has not been able to clean her bathroom or do any vacuuming for months. She has not tried a vacuum stick or a robot. She has not been able to change her bed linen for five months. She last changed it when a friend visited and did it for her. She sits to do any ironing but does not usually need to do it. She puts clothes in her top load washing machine which she can use. She does not hang the washing outside because she cannot get down the steps to the clothesline. She has a clotheshorse set up in the spare room and hangs her clothes there. She does not use pegs because of the arthritis in her hands.

The Applicant said on a bad day there is not much she can do. She still takes the rubbish out by carrying a bag out to the rubbish bin which has wheels. On rubbish day she can wheel out the bins for collection. She does not have much rubbish so she might only do this once a fortnight. While she makes herself get up and move every day, there are days when the pain is so bad, she can only go to her letterbox, take the rubbish out and read a book.
The Applicant’s sister-in-law, Ms Baker, who works in the aged care sector, gave oral evidence at the hearing. Ms Baker lives outside Melbourne, two and a half hours away from the Applicant. She indicated the family sometimes helps the Applicant with cleaning. They do it when it gets to the point where it needs to be done because of the “build up”. They have not done it for about two years. Ms Baker is concerned the Applicant does not have insight into her health and personal hygiene needs. She explained there was an occasion when the Applicant was admitted to hospital and her siblings attended her unit to clean it before the Applicant’s discharge. She indicated the Applicant’s sheets were so soiled that they threw them away. She explained that the Applicant buys frozen meals as she cannot chop food because of the rheumatoid arthritis in her hands. She stated the Applicant is not able to clean her house and cannot change her bedsheets. She is of the view that the Applicant needs more support with showering more often as she finds it difficult and painful to get in and out of the shower and so limits her showering. She also indicated the Applicant does not have insight into her need for therapy to maintain her mobility such as hydrotherapy and physiotherapy.
I asked the Applicant if she wished to comment on Ms Baker’s evidence and she indicated she agrees with everything Ms Baker said. When invited to comment on Ms Baker’s evidence, the Respondent did not raise any concerns about her evidence.
I asked the Applicant why she showers only twice a week, less often than she used to. She indicated it was because of the pain. She told me she can find it difficult to get in and out of the shower and dry herself off. She knows she should shower more often, especially when it is hot. I asked the Applicant how often she would change her sheets if she could do it. She said she would change her sheets at least once a week, especially in summer. She said the sheets that her family threw out had been on quite a while, several months, and she has not ever washed the underlay on her mattress. She knows she should do that, but she cannot manage it.
The Applicant confirmed she can manage her own medication. She can take medication out of blister packs and she has a device she uses to open pill bottles.
Ms Barry reported that the Applicant requires a moderate level of physical and assistive technology assistance in this domain, and requires support in the following areas: domestic, gardening, grocery shopping. She concluded the Applicant requires adaptive aids and minor home modifications which may include a perching stool for the kitchen, a laundry trolley, long handled aids for personal care and cleaning tasks, lever taps, banister rails and grab rails.
In her oral evidence Ms Barry confirmed that the Applicant was very cooperative during the assessment. Ms Barry described in more detail the modified technique the Applicant adopts to shower. She explained that the Applicant has difficulty turning on and off her taps. She has to steady herself to step over the shower lip. Ms Barry understood and accepted as credible that the Applicant now only showers twice a week because of the deterioration of her condition.
In relation to bedmaking, Ms Barry explained that while the Applicant is able to put a doona back in place, changing the linen on the bed requires a lot more bending and lifting, and support with this task would benefit the Applicant. These movements would increase pain for the Applicant. Ms Barry confirmed her recommendation that the Applicant needs support with domestic duties such as bedmaking.
Ms Barry confirmed the clotheshorse the Applicant requires to hang out her washing is considered a commonly used item. Similarly rubbish bins with wheels are standard equipment that everyone now uses. She noted the Applicant was using a small shopping trolley and relied on taxi support to get home with her grocery shopping. Ms Barry confirmed her recommendation that the Applicant needs support with grocery shopping.
I asked Ms Barry if she was surprised that the Applicant is now only showering twice a week. She stated it does not surprise her as it is quite common for a person with rheumatoid arthritis to decrease their personal care because of pain. I asked her if she had any concern about whether the technique the Applicant was using to shower was safe. Ms Barry said she was not concerned that the Applicant was at risk of falling in the shower. However in her view the Applicant would benefit from having grab rails to get in and out of the shower, long handled aids to assist with washing and reduce bending, and changing her taps to minimise pain.
I asked Ms Barry if she was surprised that the Applicant can go five months without changing her bed linen because she waits for someone to come and help her. Ms Barry said she was not surprised. In her view changing bed linen is a challenging task so she is not surprised the sheets had not been changed for five months. She considered that to be consistent with her observation that other tasks in the unit had obviously not been completed for a long time. Ms Barry observed that the unit presented in a state that confirmed a lot of tasks that require bending and reaching were not being done. While the kitchen bench presented as clean, Ms Barry observed that the floors had not been cleaned for a very long time, cobwebs had not been attended to, the toilet had not been cleaned, and the couch had not been cleaned.
I asked Ms Barry if the state of the Applicant’s unit raised any health or safety concerns for Ms Barry. She stated overall she would describe it as an unhygienic environment. She had concerns about the Applicant’s capacity to look after herself.
Ms Barry understood the Applicant does not have many visitors and when she does, she probably does not want to ask them to help her do housework.
When asked if there were any additional supports Ms Barry would recommend because the Applicant is now having more difficulty showering, Ms Barry indicated she would need more information as to why the frequency of showering has reduced. However she indicated grab rails, a handheld shower, modified taps and a seat in the shower may assist in increasing showering. She also formed the view the Applicant would also benefit from modified grasp eating cutlery with respect to feeding.
Having considered all the evidence before me, in relation to the Applicant’s capacity to perform self-care tasks, I am satisfied the Applicant is able to shower but she has reduced the number of times she showers per week because of pain and the difficulties she has due to her physical impairment. I have concerns about the reduced showering and I agree with Ms Barry that the Applicant needs equipment to assist in increasing showering.
I have concerns about Ms Barry’s observations that the Applicant’s unit had not been cleaned for some time and that the floors, toilet and couch were unclean. I am of the view the Applicant cannot complete basic housework such as changing her bed linen, cleaning the floor, bathroom and toilet, without the assistance of another person because of her physical impairment.
I accept the Applicant is able to dress herself but she uses a modified technique to do so.
While the Applicant is able to prepare frozen meals, toast, and ham and cheese bread rolls, I accept Ms Baker’s evidence that the Applicant does not cook because her rheumatoid arthritis affects her capacity to chop food. I also accept Ms Barry’s evidence that the Applicant would benefit from modified grasp eating cutlery with respect to feeding.
I have concerns about whether the Applicant is able to attend to her hygiene given Ms Barry’s evidence that, overall, she would describe the Applicant’s unit as an unhygienic environment. This raises concerns about the Applicant’s capacity to self-care.
I accept that the Applicant is able to go to the pharmacy to collect her medications and she is able to get the pills out of a blister pack or a bottle using a bottle opening device.
Having regard to rule 5.8 I am not satisfied the Applicant is unable to participate in self-care or to perform tasks or actions required for self-care, even with assistive technology, equipment, home modifications or assistance from another person. Therefore rule 5.8(c) is not met.
Given the Applicant is not able to perform basic housework so that her unit is clean and hygienic, I am of the view the Applicant requires assistance from other people to participate in this activity or to perform the tasks or actions required to undertake or participate in the activity. I also accept she is not able to weed around her clothesline. That said, having regard to the test in Foster, I am not persuaded this is sufficient for rule 5.8(b) to be met.
However, considered overall, based on Ms Barry’s advice and Ms Baker’s evidence, I am concerned that the Applicant is not able to participate effectively and completely in regular showering, undertaking basic housework such that her unit is clean and hygienic, chopping food so she can eat a range of foods other than frozen meals, toast and ham and cheese rolls, without assistive technology or equipment. Ms Barry has indicated the Applicant would benefit from adaptive aids, and education from an occupational therapist is recommended. I am not persuaded the lever taps, rail installation and long handled aids to decrease bending and reaching in the shower she has suggested are commonly used items. Ms Barry also recommended other assistive technology for the Applicant to use in her unit to assist with cleaning and laundry, appropriate seating to use in the kitchen and modified grasp eating cutlery. Overall I am not satisfied the Applicant is able to participate effectively or completely in aspects of self-care, or to perform tasks or actions required to undertake or participate effectively or completely in self-care, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications. I am satisfied rule 5.8(a) is met.
If I am wrong about this and the Applicant does not reach the threshold in rule 5.8(a), having considered the Operational Guideline, I have serious concerns about the Applicant’s capacity to attend to her personal care and hygiene. Her physical impairment prevents her from showering regularly, changing her bed linen with reasonable frequency, and attending to her housework such that her unit is hygienic. It prevents her from preparing a range of foods other than frozen dinners and basic meals such as toast and rolls. Given Ms Baker’s evidence, I am also concerned that the Applicant does not appreciate that there are aspects of her health that she is not attending to such as the need to attend hydrotherapy and physiotherapy, both recommended by Ms Barry, to maintain her mobility.
Overall, having considered the Operational Guideline, I am satisfied the Applicant has a substantially reduced functional capacity in self-care and subparagraph 24(1)(c)(v) of the Act is met.

Self-management

The Operational Guideline with respect to self-management relevantly states as follows:
Self-management – how you organise your life. We consider how you plan, make decisions, and look after yourself. This might include day-to-day tasks at home, how you solve problems, or manage your money. We consider your mental or cognitive ability to manage your life, not your physical ability to do these tasks.
Dr Epstein did not indicate the Applicant has reduced functional capacity in self-management.
The Applicant has stated that she is able to order her groceries online. She pays her bills by BPAY. She manages her own bank account without assistance.
Ms Barry reported that the Applicant requires nil assistance in this domain, in which she is independent.
Considered overall, I am not satisfied the Applicant meets any of the circumstances set out in rule 5.8 with respect to the activity of self-management.
Having considered the Operational Guideline with respect to self-management, I am satisfied the Applicant is able to, in the main, organise her life, plan, make decisions, and look after herself, manage her money and manage day-to-day tasks.
Considered overall, I am not satisfied the Applicant has a substantially reduced functional capacity to undertake self-management activities.
Does the Applicant meet paragraph 24(1)(c) of the Act?
For the reasons given above I am satisfied the Applicant has substantially reduced functional capacity in the mobility and self-care domains.
Accordingly I am satisfied the Applicant meets paragraph 24(1)(c) of the Act.

Does the Applicant’s impairment affect her capacity for social or economic participation?

The Respondent accepts that the Applicant meets paragraph 24(1)(d) of the Act.
The Applicant is on a disability support pension. While she has worked part-time in the past, she is not currently employed. Since she was made redundant as a receptionist, she has been searching for employment but she is limited in what she can do because of her physical impairment. The Applicant also gave evidence at the hearing that she would like to go to the library and pool but cannot do this because of her impairment. She now limits her visits to the shops and contact with her friends because of pain.
Having considered the evidence set out above, I am satisfied the Applicant’s impairment affects her capacity to work, socialise, shop, and engage with her community.
I am satisfied the Applicant’s impairments affect her capacity for social and economic participation and so this requirement is met.

Is the Applicant likely to require support under the National Disability Insurance Scheme for her lifetime?

I must consider whether the Applicant is likely to require support under the NDIS for life as required by paragraph 24(1)(e). This consideration involves an assessment of the likely duration of her requirement for support under the NDIS, should she be granted access as a participant.
The Respondent’s submission in the RSFIC on this requirement stemmed from its position that the Applicant had not established that she has a substantially reduced functional capacity in any of the domains set out in paragraph 24(1)(c) of the Act. For the reasons given above, I disagree with that view.
At the hearing the Respondent tendered new evidence: Victorian Home and Community Care Program for Younger People (HACC PYP) Interim Guidelines November 2023; and Victorian Aids and Equipment Program (VAEP) guidelines.
The Respondent made submissions during the hearing that the personal and in home supports the Applicant needs are available from HACC PYP and VAEP.
Regarding the HACC PYP services, Ms Barry said that she is aware of the domestic services, but the frequency and the extent of the services varies highly between councils.
As the Respondent did not file the HACC PYP and VAEP guidelines until the hearing, I needed to give the Applicant an opportunity to consider those documents and make submissions on them. In submissions filed after the hearing, the Applicant raised concerns about the ongoing costs for supports because the Applicant is on a disability support pension and the fact that HACC PYP does not cover all the supports she needs. She also raised concerns about the wait time for services and bathroom modifications. She argued that NDIS would give her a better outcome and, as her health is declining, she will need to wait 10 years before she can access My Aged Care and get the level of care she needs.
The Respondent in closing submissions contended that no weight should be put on the Applicant's submissions regarding the wait time, demand for and suitability of HACC PYP and the VAEP as they are unsupported by any expert or independent evidence.
The Respondent acknowledged the HACC PYP and VAEP guidelines make clear that it is for HACC PYP or the VAEP to determine a person's priority for services, that there is high demand on the VAEP and that there can be wait times to allocate a subsidy where a refurbished item is not available.
The Respondent referred to other decisions of the Tribunal (both differently constituted), ZJSG and National Disability Insurance Agency [2023] AATA 2784, where the Tribunal found it is not the role of the NDIS to fill gaps in other types of service provision and Young and National Disability Insurance Agency [2014] AATA 401, where the Tribunal found to the extent that services are more appropriately provided through another service system but are not in fact provided, it is not the role and purpose of the NDIS to step in and fill the gap. It was also submitted that the Applicant’s financial circumstances are not a relevant consideration in assessment paragraph 24(1)(e) of the Act. I am aware of those Tribunal decisions but note they are factually different to this Applicant’s case, and I am not bound by decisions of other Tribunal members.
With respect to the Applicant’s declining health, the Respondent submitted this is not a relevant consideration, citing Foster where the Full Court at [93] explained that paragraph 24(1)(e) concerns “…whether a prospective participant is likely to require support under the NDIS, or whether those support needs are most appropriately met by other systems”. It was submitted however that if the Applicant’s health declines further, she can lodge a new NDIS access request while she continues to meet the age requirement.
At the hearing, attention was drawn to the information contained in the HACC PYP and VAEP guidelines about eligibility and whether the Applicant would in fact be able to access the supports and aids she needs from those services. I note the HACC PYP Interim Guidelines state that access to HACC PYP services is defined by two components: eligibility and priority of access. It is also noted that HACC PYP providers may not be able to meet demand. It is not an entitlement program and eligibility does not guarantee access. Also priority is given to the following groups:

·Aboriginal people, including children and young people

·refugees and people seeking asylum

·people, including children and young people, who are homeless or at risk of homelessness

·children in care, child protection and Orange Door (replacing Child FIRST) clients.

Those guidelines also state “HACC PYP cannot deliver services that are the responsibility of other programs to provide, such as NDIS or mental health programs.”
On the evidence before me I am not satisfied the Applicant falls into any of those groups mentioned above. I am not satisfied the Applicant will receive the supports she needs from HACC PYP. Having regard to Foster, I am not persuaded the Applicant’s support needs are most appropriately met by other systems such as HACC PYP.
The VAEP guidelines state, with respect to eligibility, that its applicants must meet certain criteria including people “with a disability who do not meet National Disability Insurance Scheme (NDIS) eligibility due to age, residency status or functional impairment level can also apply to the VA&EP” (emphasis added).
In my view this indicates that if the Applicant meets paragraphs 24(1)(a), (b) and (c) she will not meet the eligibility requirements for VAEP. As I have found the Applicant meets those disability requirements, I am not satisfied she will meet the eligibility requirements for VAEP.
Considered overall I am not satisfied, as suggested by the Respondent, that the Applicant needs to put on expert or independent evidence about the wait time, demand for and suitability of HACC PYP and the VAEP programs in circumstances where it is evident, on the basis of the relevant guidelines provided by the Respondent, that the Applicant is unlikely to meet the eligibility requirements and be provided with supports by either of those programs.

I note the Applicant’s physical impairment is permanent and deteriorating. There is no evidence before me to indicate that there is any treatment that will remedy or cure the Applicant’s condition. I am satisfied the Applicant’s physical impairment will be lifelong and she will require support to address its impact on her functional capacity. Accordingly, I am satisfied the Applicant is likely to require support under the NDIS for her lifetime and paragraph 24(1)(e) of the Act is met.

CONCLUSION

There is no dispute that the Applicant’s meets the requirements of sections 22 and 23 of the Act.
For the reasons given above, I am satisfied that the Applicant meets the disability requirements set out in section 24 of the Act.
As the Applicant meets the disability requirements it is not necessary for me to consider whether she meets the early intervention requirements.
Accordingly, I find the Applicant meets the access criteria set out in section 21 of the Act.

DECISION

The decision under review is set aside and, in substitution, the Tribunal decides that the Applicant meets the access criteria under section 21 of the National Disability Insurance Act 2013 (Cth).

I certify that the preceding one-hundred-and-forty-seven (147) paragraphs are a true copy of the reasons for the decision herein of Senior Member D Connolly.

........................[SGD].................................

Associate

Dated: 5 April 2024

Date(s) of hearing:	7 and 8 February 2024
Date final submissions received:	22 February 2024
Advocate for the Applicant:	Ms B Baker, Support Person
Solicitors for the Respondent:	Ms J Vetter, HWL Ebsworth