Iannella and National Disability Insurance Agency
[2023] AATA 3676
•13 November 2023
Iannella and National Disability Insurance Agency [2023] AATA 3676 (13 November 2023)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number: 2021/9133
Re:Antonio Iannella
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Senior Member C.J. Furnell
Date:13 November 2023
Place:Melbourne
The Tribunal affirms the decision the subject of review.
............................[sgd]............................................
Senior Member C.J. Furnell
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – access request – whether access criteria under s 21 of the National Disability Insurance Scheme Act 2013 (Cth) are met – s 24 “disability requirements” – Applicant has a disability arising from various impairments – cerebrovascular accident – hearing loss – diplopia and nystagmus of the right eye – chronic fatigue – whether impairments have resulted in substantially reduced functional capacity in any one of the six prescribed categories – decision under review affirmed
Legislation
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)
Social Security Act 1991 (Cth)
Cases
Al Salim and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 65
BOY19 v Minister for Immigration and Border Protection [2019] FCA 574
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
DTFW and National Disability Insurance Agency [2023] AATA 2837
Elias v Commissioner of Taxation (2002) 123 FCR 499
Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250
Ghezzaoui and National Disability Insurance Agency [2023] AATA 2835
JVGD v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1253
Madelaine and National Disability Insurance Agency [2020] AATA 4025
McLeod and National Disability Insurance Agency [2023] AATA 3380
MDXJ v Secretary, Department of Social Services [2020] FCA 1767
Minister for Immigration and Border Protection v Makasa [2021] HCA 1
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ZRTY [2022] FCA 1529
Mulligan v National Disability Insurance Agency [2015] FCA 544
National Disability Insurance Agency v Davis [2022] FCA 1002
National Disability Insurance Agency v Foster [2023] FCAFC 11
Nika v National Disability Insurance Agency [2021] AATA 2127
Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Secondary Materials
National Disability Insurance Agency, NDIS Operational Guidelines: Applying to the NDIS (Guidelines, 1 July 2022)
< FOR DECISIONSenior Member C.J. Furnell
13 November 2023
A person becomes a participant in the National Disability Insurance Scheme (NDIS) when the respondent’s chief executive officer (CEO) decides that the person meets “the access criteria”.[1]
[1] National Disability Insurance Scheme Act 2013 (Cth) (the Act), s 28.
In October 2018 the applicant made a request to the respondent to become such a participant.[2]
[2] TB227-233.
In May 2021 the CEO decided that the applicant did not meet the access criteria. In September 2021 that decision was confirmed on internal review by the respondent.[3]
[3] T2, pp. 21-31.
The applicant applied to the Tribunal for review of that September 2021 confirmation decision.
In undertaking that review, the Tribunal stands in the respondent’s shoes, to “do over again” that which was done by the respondent.[4] In doing so, it performs the same function, exercises the same power,[5] is subject to the same constraints and addresses the same question or questions[6] as the respondent.
[4] Minister for Immigration and Border Protection v Makasa [2021] HCA 1 at [50], quoting with evident approval two earlier decisions, Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at 271 [51] and Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at 315 [40]-[100].
[5] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ZRTY [2022] FCA 1529 per Katzmann J at [34] citing Esber v Commonwealth of Australia (1992) 174 CLR 430 at 440. Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at [14]-[15]. Minister for Immigration and Border Protection v Makasa [2021] HCA 1 at [50], where it is said that the “…merits review function of the AAT is “to stand in the shoes of the decision-maker whose decision is under review so as to determine for itself on the material before it the decision which can, and which it considers should, be made in the exercise of the power or powers conferred on the primary decision-maker for the purpose of making the decision under review”. The function of the AAT, in other words, is “to do over again” that which was done by the primary decision-maker.”
[6] Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at [51], where it is said that the “…AAT exercises the same power or powers as the primary decision-maker, subject to the same constraints. The primary decision, and the statutory question it answers, marks the boundaries of the AAT’s review. The AAT must address the same question the primary decision-maker was required to address, and the question raised by statute for decision by the primary decision-maker determines the considerations that must or must not be taken into account by the AAT in reviewing that decision”.
As it was for the respondent, the question to be addressed by the Tribunal is whether the applicant meets the access criteria.
For the reasons which follow, I have decided that he does not. As such, the decision the subject of review is affirmed.
Material before the Tribunal
In undertaking its review of the respondent’s September 2021 decision, the Tribunal is obliged to make “the correct or preferable decision” on the material before it.[7]
[7] See Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 68 (Bowen CJ and Deane J); Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [96]–[98] (Hayne and Heydon JJ).
The material before the Tribunal included evidence adduced at the hearing and certain documentary material lodged with the Tribunal prior to the hearing.
As for evidence adduced at the hearing, the Tribunal heard from the applicant and two expert witnesses called by the applicant, an exercise physiologist (Ms Lauren Farrugia) and a doctor (Dr Shepherd Chifura). The Tribunal also heard from an expert witness called by the respondent, an occupational therapist (Mr Glen Dwyer).
As for documentary material lodged with the Tribunal, it comprised:
(a)A bundle of copy documents of 144 pages lodged with the Tribunal by the respondent under s 37(1) of the Administrative Appeals Tribunal Act 1975 (designated in these reasons with a “T” and marked as Exhibit R1).
(b)A further bundle of documents of 1,365 pages lodged with the Tribunal jointly by the parties (designated in these reasons with a “TB” and marked as Exhibit R2).
(c)Two undated videos lodged by the applicant, one involving him walking up steps (the steps video) and the other involving him cutting a pumpkin (the kitchen video).
The parties lodged submissions about that documentary material prior to the hearing.[8]
[8] See the respondent’s statement of facts, issues and contentions of 16 October 2023 (“R SFIC”) and the applicant’s undated statement of facts, issues and contentions (“A SFIC”).
Question in issue
As already mentioned, the applicant will become a NDIS participant if, and when, it is decided that he meets the access criteria.
He will meet the access criteria if the Tribunal (in the shoes of the CEO) is satisfied that he meets certain age requirements, certain residence requirements and either certain disability requirements or certain early intervention requirements.[9] A determination of whether these requirements are met involves, essentially, a fact-finding exercise.[10]
[9] Act, s 21.
[10] National Disability Insurance Agency v Davis [2022] FCA 1002 at [42].
That the applicant meets the relevant age and residence requirements is not in issue. He is 53 years of age, resides in Australia and is an Australian citizen.
As for the relevant early intervention requirements, while they are addressed briefly later, neither party submitted that the Tribunal ought to be satisfied that the applicant meets them.
What was in issue between the parties, however, was whether the Tribunal ought to be satisfied that the applicant meets the relevant disability requirements.
For the Tribunal to be satisfied of this it would need to be satisfied that each of five requirements are met.[11]
[11] Act, s 24(1).
Before seeking to address each of those requirements, however, mention should first be made of the broader regulatory context.
Under s 209 of the Act rules may be made by legislative instrument prescribing, amongst other things, matters permitted by the Act to be so prescribed. The Act (in particular, s 27) permits rules to be prescribed which, amongst other things, identify circumstances in which, or criteria to be applied in assessing whether certain disability requirements are met. Rules have been so prescribed, being the ‘National Disability Insurance Scheme (Becoming a Participant) Rules 2016’ (the Rules).
The respondent has published guidance to those exercising powers under the Act. Of particular relevance in these proceedings are the National Disability Insurance Scheme Operational Guidelines (the Operational Guidelines). While not bound to do so,[12] I have sought to apply those guidelines where relevant and in the absence of cogent reasons to the contrary.[13] Applying government policy is particularly appropriate when, as here, the Tribunal is required to arrive at an opinion[14] based on an evaluative judgment.[15]
[12] Elias v Commissioner of Taxation (2002) 123 FCR 499 at 506–7 per Hely J. See also Leong and Minister for Home Affairs (Citizenship) [2019] AATA 3641 at [34]-[42].
[13] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 645 per Brennan J; Al Salim and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 65 at [25]. In MDXJ v Secretary, Department of Social Services [2020] FCA 1767, it was said (at [17]) that the “…part which a governmental policy should ordinarily play in the determinations of the Tribunal is a matter for the Tribunal to determine, in the context of the particular case, informed by considerations of the desirability of consistency of administrative decisions, but balanced against the ideal of justice in the individual case … Further, it is well-established that the Tribunal … is at liberty to adopt whatever policy it chooses, or no policy at all, in fulfilling its statutory function.”
[14] BOY19 v Minister for Immigration and Border Protection [2019] FCA 574 at [54]: “…the matter of which the Minister must be satisfied, the applicant’s good character, is not a fact to be proved but an opinion requiring an evaluative judgment.”
[15] Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50 at [54], where it is said: “Policy guidelines like the priorities policy promote values of consistency and rationality in decision-making, and the principle that administrative decision-makers should treat like cases alike. In particular, policies or guidelines may help to promote consistency in ‘high volume decision-making’, such as the determination of applications for Subclass 202 visas. Thus in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) , Brennan J, as President of the Administrative Appeals Tribunal, said that ‘[n]ot only is it lawful for the Minister to form a guiding policy; its promulgation is desirable’ because the adoption of a guiding policy serves, among other things, to assure the integrity of administrative decision-making by ‘diminishing the importance of individual predilection’ and ‘the inconsistencies which might otherwise appear in a series of decisions’. The subjectivity of the evaluation by a decision-maker in a case such as the present highlights the importance of guidelines.”
The Tribunal has endeavoured to perform its review function in these proceedings:
(a)In accordance with certain principles set out in s 4 of the Act. They include a principle that people “…with disability should be supported to participate in and contribute to social and economic life.”
(b)Having regard to certain other principles, as set out in s 17A of the Act. They include a principle that the NDIS is to “support people with disability to participate in, and contribute to, social and economic life.”
(c)Having regard to the “need to ensure the financial sustainability of the” NDIS.[16]
[16] Act, s 4(17).
Perhaps reflective of the concern for financial sustainability, I note that not all those with disabilities are intended to be able to have access to the NDIS. Instead, “…access to the NDIS, and the supports, funding and autonomy it is intended to deliver, is reserved for a subcategory of persons with disabilities.”[17]
[17] Mulligan v National Disability Insurance Agency [2015] FCA 544 at [50].
As to the nature of that subcategory of persons, “…[g]enerally speaking, a person will meet the disability requirements if they have a disability that is attributable to an impairment that is permanent or likely to be permanent and that results in substantially reduced functional capacity.”[18] Whether those requirements are met in any particular case entails “… a functional, practical assessment of what a person can and cannot do.”[19]
[18] Rules, r 2.5(a).
[19] Mulligan v National Disability Insurance Agency [2015] FCA 544 at [56].
I turn now to address each of the five requirements of which the Tribunal must be satisfied in order for the applicant to be considered to satisfy the disability requirements.
Requirement 1 - Disability attributable to impairments?
The first of the five disability requirements is that the applicant have 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.”
To address this and the other requirements it is first necessary to understand the concepts employed.
A disability is “… a descriptive concept for the overall effect of a person’s impairments on that person’s abilities to participate in all aspects of personal and community life.”[20]
[20] Mulligan v National Disability Insurance Agency [2015] FCA 544 at [51].
An impairment is generally understood as involving the loss of or damage to a physical, sensory or mental function.[21]
[21] Ibid.
That the applicant meets this first requirement is not in issue. He has disabilities attributable to impairments suffered as a result of cerebrovascular accident (CVA); unilateral hearing loss and tinnitus of the right ear; unilateral vision loss, diplopia and nystagmus of the right eye; neuropathic pain and chronic fatigue. [22]
[22] A SFIC [3]; R SFIC [19].
Evidence before the Tribunal suggests, and I find, that the impairments suffered by the applicant as a result of those conditions comprise left-sided weakness, significantly impaired left upper limb function, including spasticity and diminished fine motor control of the left hand, unsteady gait and associated risk of falls, high daily fatigue, neuropathic pain primarily impacting the left arm and left leg, visual impairment involving the right eye (with nystagmus and diplopia), hearing impairment involving the right ear (with a loss of hearing and tinnitus), difficulties with concentration and memory, and slight slurring of speech (more pronounced when experiencing high fatigue).[23]
[23] TB85: February 2023 report of Glen Dwyer, occupational therapist (the “OT report”).
Requirement 2 - Impairments permanent
The second of the five requirements is that the relevant impairment or impairments be, or be likely to be, permanent. In this regard, an impairment may be permanent despite fluctuating or varying in intensity.
An impairment will be permanent if it is enduring.[24] “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.”[25]
[24] National Disability Insurance Agency v Davis [2022] FCA 1002 at [85].
[25] National Disability Insurance Agency v Davis [2022] FCA 1002 at [130].
Unlike the position it adopted in the decision that is the subject of review, the respondent accepted that the applicant’s impairments are or are likely to be permanent.[26] At the beginning of the hearing, however, I queried whether it was right to do so. As I saw it, the question of whether the applicant’s impairments were permanent was open on the material before the Tribunal. In this regard, the Tribunal’s consideration of a matter raised in the material before it but not in issue between the parties is consistent with its inquisitorial role. “[I]n the end the Tribunal's function was inquisitorial, and it was required to consider substantial issues raised by the materials before it, even if that issue was not raised by the submissions of the parties.”[27]
[26] R SFIC [28].
[27] JVGD v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1253 at [44] citing Hong v Minister for Immigration and Border Protection [2019] FCAFC 55; (2019) 269 FCR 47 at [65].
Under the Rules, an impairment is, or is likely to be, permanent only if:
(a)“…there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment;”[28] and
(b)“…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).”[29]
[28] Rule 5.4.
[29] Rule 5.6.
As the validity of the relevant Rules is not in issue it is appropriate to proceed on the basis that those Rules “…prescribe circumstances where, if the repository of the power is satisfied on the evidence of the applicability of either of those rules, a person’s impairment will be excluded from meeting the permanency criterion…”.[30]
[30] National Disability Insurance Agency v Davis [2022] FCA 1002 at [75].
Under the Operational Guidelines, it is suggested that an impairment “may” not be permanent if there are remaining treatment options for it.[31]
[31] Operational Guidelines at >
It is clear that the applicant has not undertaken or engaged with all treatment options for his conditions, being options which, if taken up, might have ameliorated the impairments from which he suffers. This is so despite his statement that he has “…explored every option available to treat my condition.”[32]
[32] TB64: March 2023 statement of lived experience.
At the time of the assessment of the applicant, Mr Dwyer found that the applicant’s “… current treatment regime is significantly below the level that has been medically recommended for him.”[33] While in a February 2023 letter the applicant’s general practitioner, Dr Chifura, stated that no treatments other than those already exhausted by the applicant “are going to cure” the applicant’s impairments,[34] in his oral evidence Dr Chifura made clear that he had a long discussion with the applicant in around May 2022 about several treatment options but that the applicant had declined to take them up. Those options included attending a neurologist, chronic fatigue specialist and neuropsychologist.[35] Dr Chifura also noted that the applicant was not, as far as he was aware, currently being treated by a physiotherapist.
[33] TB86: OT Report.
[34] TB54.
[35] In his oral evidence the applicant stated that he had investigated various treatment options and that he had obtained the treatment he would have received had he taken those options up.
In terms of the Rules, those options not taken up included treatment which was known and available to the applicant. While seeking to engage with some of that treatment may have involved being placed on a lengthy public hospital waiting list, it was nevertheless treatment which the applicant could, “in reality, access”.[36]
[36] National Disability Insurance Agency v Davis [2022] FCA 1002 at [139].
While known and available, however, I do not find that the untried treatment options are or were “appropriate”. The “… word ‘appropriate’ connotes a treatment which has a capacity to ‘remedy’ the impairment and is suitable for the particular individual concerned to undergo.”[37] The material before me is not suggestive of the treatment options untried by the applicant as being ones likely to have remedied his impairments, had the applicant engaged with them. In this context, I note that the word “remedy” is one “…understood to mean something approaching a removal or cure of the impairment[s]”.[38]
[37] Ibid at [137].
[38] Ibid at [136].
According to Mr Dwyer, the applicant “…is anticipated to experience ongoing functional incapacity associated with his medical conditions indefinitely, albeit it is acknowledged that the nature of his functional incapacities may vary in accordance with his response to recommended treatment.”[39]
[39] TB86: OT Report.
According to the applicant’s general practitioner, the applicant’s “…conditions being chronic, will not improve in any way” and that his treatments “are not curative”.[40]
[40] TB53-54: February 2023 letter of Dr Chifura.
In these circumstances, I am satisfied that the applicant’s impairments are, or are likely to be, permanent.
Requirement 3 - Substantially reduced functional capacity
The third of the five requirements is that the relevant impairment or impairments result in substantially reduced functional capacity of the applicant to undertake one or more of the following activities:
(a)communication;
(b)social interaction;
(c)learning;
(d)mobility;
(e)self‑care;
(f)self‑management.
In describing the applicant’s functional incapacities, Mr Dwyer in the OT Report stated that the applicant “…experiences ongoing functional limitations that impact, to varying degrees, his ability to carry out various activities of daily living.”[41] In particular, he said that the applicant “…experiences difficulties undertaking tasks that involve:
[41] TB85: OT Report.
oUnrestricted use of the left upper limb
oDexterity, control and fine motor coordination of the left hand[42]
[42] TB93: Mr Dwyer commented that the applicant’s left-hand dexterity, control and fine motor coordination remains significantly impaired.
oModerate, heavy or forceful manual handling (lifting, carrying, pushing and pulling)
oProlonged periods of standing and walking
oFrequently traversing rough, uneven ground
oIntact balance
oProlonged periods of strenuous activity participation requiring exertion
oClimbing or working at heights
oHigh visual acuity
oIntact hearing, particularly in busy or noisy environments
oSustaining prolonged periods of concentration and attention when experiencing high daily fatigue
oWorking at low levels (due to difficulties with squatting and bending).”[43]
[43] TB86: OT Report.
Under the Rules,[44] an impairment will result in a substantially reduced functional capacity of the applicant to undertake a relevant activity if its result is that the applicant:
(a)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. In these reasons, I refer to this aspect of the Rules as “needs environmental changes to participate”.
(b)usually requires assistance from other people to participate in the activity or to perform tasks or actions required to undertake or participate in the activity. In these reasons, I refer to this aspect of the Rules as “needs human assistance to participate”.
(c)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 these reasons, I refer to this aspect of the Rules as “unable to participate even with assistance”.
[44] Rule 5.8.
Under the Operational Guidelines, it is suggested that an impairment will be considered to substantially reduce a person’s functional capacity if, to participate in or complete any of the relevant activities, the person usually needs disability-specific supports such as a high level of support from other people (for example, physical assistance, guidance, supervision or prompting) or assistive technology, equipment or home modifications that are prescribed by a doctor, allied health professional or other medical professional.[45]
[45] Operational Guidelines at
While the effect of the Rules is to include people in the category of persons with substantially reduced functional capacity,[46] nevertheless, the “statutory task remains to consider whether a person’s functional capacity is substantially reduced in any of the six specified areas.”[47] In undertaking that task, three matters ought to be borne in mind.
[46] National Disability Insurance Agency v Foster [2023] FCAFC 11 at [59].
[47] Mulligan v National Disability Insurance Agency [2015] FCA 544 at [77].
First, “’perfection’ cannot be the standard contemplated by ‘completely’…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.”[48]
[48] National Disability Insurance Agency v Foster [2023] FCAFC 11 at [86], [88].
Second, the fact that an activity is undertaken “…differently to others will not necessarily mean a person cannot participate effectively or completely in an activity”.[49] Hence, carrying out an activity relatively slowly or in a modified way is not determinative of there being a substantial reduction in functional capacity with respect to the activity. In this regard, in a statement he made in August 2023, the applicant said that “[s]low and modified is how I do everything in life.”[50]
[49] National Disability Insurance Agency v Foster [2023] FCAFC 11 at [67].
[50] TB19.
Third, what is to be assessed is the level of impairment rather than the potential for improvement should assistance be given.[51] Accordingly, largely irrelevant to the required assessment is material concerning the potential benefits to be derived by the applicant should he be given access to various supports (albeit that potential benefits may be an issue of relevance to an assessment of early intervention requirements).
[51] McLeod and National Disability Insurance Agency [2023] AATA 3380 at [52].
The Operational Guidelines provide a definition of each of the six relevant activities. Care needs to be taken in applying those definitions, however. 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.”[52] While useful in considering what is encompassed by a specified activity, the individual components of the activity as so defined do not of themselves constitute the activity by reference to which the applicant’s capacity is to be assessed.[53] Instead, substantial incapacity is to be assessed by reference to the bundle of tasks that go to make up the activity.
[52] National Disability Insurance Agency v Foster [2023] FCAFC 11 at [62].
[53] National Disability Insurance Agency v Foster [2023] FCAFC 11 at [65]-[66].
In considering the effect of the applicant’s impairments on his functional capacity, it is of note that the extent to which or level at which impairments are suffered by the applicant fluctuates, him having “good and bad days.”[54] The applicant told the author of the OT Report, Mr Dwyer, that on average he experiences two bad days a week.[55] This is not to suggest, however, that two days of the week are bad and five days are good. At the hearing, the applicant gave evidence to the effect that there was no neat, prompt, transition between good and bad days.[56]
[54] TB85: OT Assessment.
[55] TB46: Note, however, that in an April 2022 statement of lived experience the applicant suggested that he experienced 20 to 25 bad days a month.
[56] See also the applicant’s March 2023 Statement of lived experience, especially at TB59 where it is said that “With my complex brain injury, as referred to above, there is a residual, a lasting ‘bad day’ effect. It’s not simply defined with ‘good and day.’ Days three, four and five and sometimes weeks or even months following, are also incredibly difficult. I DO NOT have a ‘bad day’ then bounce back straight into a good day, I’m not a light switch, I can’t turn it on or off…”.
According to the applicant, Mr Dwyer’s OT Report completely overlooked his fluctuating condition.[57] I do not accept that this is so. While Mr Dwyer acknowledged the potential weakness of point in time assessments in dealing with fluctuating impairments, he gave evidence to the effect that he had tried to take the fluctuating nature of the applicant’s impairments into account. For example, Mr Dwyer said the effect of fatigue formed part of the functional assessment he had undertaken. Nevertheless, Mr Dwyer accepted that his capacity to address fluctuating impairments effectively was very much dependent on the information he was provided.
[57] TB58.
In this regard, the day on which that Mr Dwyer’s assessment of the applicant was conducted would seem to have been neither a good nor a bad day. Instead, the applicant had at the time of the assessment characterised it as a “regular” day, albeit that later, after reading the OT Report, he said it was a “good” day.[58]
[58] TB66.
I turn now to consider how the applicant’s impairments affect his functional capacity in relation to the six categories of activity previously mentioned. While in accordance with the Operational Guidelines those impairments are considered together, nevertheless, particular regard is paid to the applicant’s pain and fatigue impairments, given that his evidence at the hearing of this proceeding was devoted almost exclusively to those two impairments. This reflects the description given in two supporting evidence forms provided in connection with the applicant’s request to become a NDIS participant, one completed by Dr Ammar Shah in October 2018 and the other completed by Dr Monirul Islam in August 2019. The applicant’s primary impairment was said in the first form to be stroke with left sided weakness and ongoing fatigue[59] while in the second form it was said to be chronic fatigue.[60]
[59] TB1103.
[60] TB1111.
Communication
The Operational Guidelines define the activity of “communication” as one which addresses 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.”[61]
[61] Operational Guidelines at
As acknowledged by the respondent, the applicant “…can sometimes experience slurred speech (especially when fatigued), has some difficulty using a pen and prefers typing, has trouble following conversations in groups or high stimulus environments and may require additional rest breaks or more time to communicate.”[62]
[62] R SFIC [38], referring to a February 2023 report of an exercise physiologist, Ms Farrugia (TB3) in which it is stated that the applicant “…has difficulty with his communication mainly when his fatigue level are elevate and his concentration level are being impacted” (sic) albeit that in an October 2023 report Ms Farrugia, when asked to comment of the applicant’s communication, stated that “it is not my area of specialty” (TB1364). See also the December 2020 report of occupational therapist, Ms Westley at T32, with references to a “T” document being a reference to a copy document provided by the respondent under s 37 of the Administrative Appeal Tribunal Act 1975.
According to the applicant, his expression and comprehension can be limited at times, especially when tired.[63] “With my fatigue and pain communication, especially in stimulus environments is when communication is greatly impacted.”[64] That the applicant’s communication is so affected is echoed in a July 2021 letter from the applicant’s then general practitioner, Dr Bhajanpreet Singh Rawal.[65]
[63] T6, p41: April 2021 report of Dr Rawal. In his August 2023 statement the applicant stated (TB11) that “…an over-stimulus environment causes chronic fatigue and neuropathic pain to become amplified, which affects my cognitive function, understanding, learning, speech, and hearing.”
[64] TB24.
[65] T7.
Nevertheless, I am not satisfied that the applicant’s impairments result in him having a substantially reduced functional capacity to undertake communication, that he needs environmental changes to participate in that activity, that he needs human assistance to participate in that activity or that he is unable to participate even with assistance in that activity.
In the no doubt stressful environment of the Tribunal hearing, the applicant was able to communicate clearly, and comprehend questions put to him, over a prolonged period. Up until recently the applicant has been a speaker giving community health education talks on behalf of the Stroke Foundation,[66] his “main role” being to “conduct public speaking presentations”.[67] His written submissions to the Tribunal (such as his August 2023 statement which the applicant said he authored and typed) are not reflective of a significantly impaired capacity to communicate in writing. The applicant gave evidence to the effect that he likes to read, can always express himself and enjoys communication. I note that in the supporting evidence forms provided in connection with the applicant’s request to become a participant in the NDIS it was said that the applicant did not require assistance to communicate.[68] That view is echoed in the OT Report where the applicant was said to be “independent in this domain”, having “communicated effectively for the duration” of the three- hour assessment.[69] Indeed, in oral evidence, Mr Dwyer stated that the applicant had been knowledgeable, understanding and very articulate.
[66] TB29: letter of 22 August 2023 from the Stroke Foundation.
[67] TB16: see also TB50 where the applicant described his role as one “raising stroke awareness in the community via public speaking engagements”.
[68] TB1060, TB1113.
[69] TB94-95.
I note that on behalf of the applicant it is simply suggested that certain material before the Tribunal “may suggest” that he has a substantially reduced functional capacity in the domain of communication.[70]
[70] A SFIC [33].
Social interaction
The Operational Guidelines define the activity of “social interaction” as one which addresses “how you make and keep friends, or interact with the community, or how a young child plays with other children. We also look at your behaviour, and how you cope with feelings and emotions in social situations.”
The description so given to the social interaction activity reflects an appropriate “…focus on interpersonal skills, far more than the location or frequency of opportunities to practice such interpersonal skills.”[71] Hence, this “… domain is principally about personal skills needed for social interaction, and only marginally about opportunities to exercise those skills, such as location or frequency.”[72]
[71] Nika v National Disability Insurance Agency [2021] AATA 2127 at [241].
[72] Ghezzaoui and National Disability Insurance Agency [2023] AATA 2835 at [79].
The respondent acknowledges that “some of the evidence suggests that the Applicant's impairments in relation to his fatigue and mobility issues may affect his ability to engage in Social Interaction.”[73] Indeed, I accept that the applicant struggles in group settings, as his cognitive and hearing difficulties require a level of concentration that leaves him fatigued.[74] In this regard, I note that in July 2021 his general practitioner at the time opined that the applicant needed the assistance of a support worker to facilitate his involvement in social settings.[75]
[73] R SFIC [44].
[74] T33, T37.
[75] T7.
An exercise physiologist called by the applicant, Ms Farrugia, went so far as to state that the applicant’s “…neuropathic pain and fatigue have both stopped him from going out with friends and family.”[76] Insofar as this suggests that the applicant has stopped engaging with third parties, however, I find that this exaggerates the effect of the applicant’s impairments on his capacity to engage in social interaction (and note Ms Farrugia’s oral evidence to the effect that she has no qualifications in relation to either neuropathic pain or chronic fatigue).
[76] TB1364.
Indeed, overall, I am not satisfied that the applicant’s impairments result in him having a substantially reduced functional capacity to undertake social interaction, that he needs environmental changes to participate in that activity, that he needs human assistance to participate in that activity or that he is unable to participate even with assistance in that activity.
That there has been no material adverse effect on the applicant’s social interaction skills is evident from the material before me.
Consistently with his evidence before the Tribunal, the applicant has, as stated by Mr Dwyer in the OT Report, “…a close group of friends and family, with whom he remains in regular contact... He stated more recently he has made friends with someone in his local area and he sees this friend regularly. He stated he occasionally avoids social events due to the effects of fatigue... he tends to avoid evening social events as this is when his fatigue levels are usually at their worst. He prefers daytime social events.”[77]
[77] TB95: OT Report.
The applicant speaks on the telephone to friends or family “sometimes weekly, monthly or daily if requiring support or a social connection” and interacts with friends or family on social media several times a week.[78]
[78] TB50.
This suggests, as Mr Dwyer opines, that the applicant does not require assistance to undertake social interaction[79] but has simply modified the way in which he socially interacts to cater for the effects of his impairments, especially fatigue. [80] The applicant’s statement that, due to fatigue and pain, he rarely goes out in the evening is reflective of this.[81]
[79] TB84.
[80] TB95: OT Report.
[81] TB24.
Learning
The Operational Guidelines define the activity of “learning” as one which addresses “how you learn, understand and remember new things, and practise and use new skills.”
The respondent acknowledges that the “…Applicant's impairments cause him to have difficulty with focusing, reading text, writing, computer work, learning new tasks, obtaining information, problem solving and following instructions.”[82]
[82] R SFIC [50].
The applicant states that “[c]hronic fatigue and neuro pain result in learning difficulties. They are the key factors that make all the categories difficult or impossible.”[83] Some support for this statement can be found in the material before me. In July 2021, the applicant’s general practitioner at the time, Dr Rawal, opined that, in undertaking the learning activity, the applicant required assistive technology (in the form of visual aids, software and a one-handed keyboard) and the services of a support worker.[84]
[83] TB23.
[84] T7.
Dr Rawal’s opinion in this regard was echoed by Ms Farrugia in March 2021[85] when the exercise physiologist stated that the applicant’s fatigue affected his ability to learn and problem solve. She later opined that, in the context of learning, the applicant “would benefit from” appropriate allied health.[86] Later still, however, when asked about the impact of the applicant’s pain and fatigue on his ability to learn, Ms Farrugia stated that this “…is not my area of specialty and I cannot comment on all aspects of learning.”[87]
[85] T38.
[86] TB4.
[87] TB1364.
While I accept that the applicant’s impairments negatively affect his capacity to learn I am nevertheless not satisfied that they result in him having a substantially reduced functional capacity to undertake learning, that he needs environmental changes to participate in that activity, that he needs human assistance to participate in that activity or that he is unable to participate even with assistance in that activity.
Before the Tribunal the applicant did not present as a person suffering from a substantial reduction in capacity to understand and learn. He was an active, responsive participant in the proceedings. I note that in his albeit recently relinquished role with the Stroke Foundation[88] the applicant was, in the context of his presentations, required to learn, understand and remember new information.[89] The role required “… continuous training and learning new information.”[90]
[88] An organisation with which the applicant remains connected although he has relinquished his role as a StrokeSafe ambassador.
[89] TB24.
[90] TB50.
In his oral evidence the applicant stated that he is able to learn in small doses in a controlled environment. He can do it at his own pace when interested and suggested, as an example of this, his studies into nutrition.
In the first supporting evidence form provided in connection with the applicant’s request to become a participant in the NDIS it was said that the applicant did not require assistance to learn.[91] In the second such form provided roughly 10 months later, however, it was said that the applicant needed assistive technology to learn,[92] although the relevant technology was not identified. The material before me is not, however, suggestive of the applicant having a need for anything that might be characterised as assistive technology to participate in or complete any tasks involved in learning, even accepting that his capacity to learn might be facilitated by things such as a one-handed keyboard. In any event, as noted earlier, 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.
[91] TB1106.
[92] TB1114.
Mr Dwyer’s experience with the applicant was consistent with that of the Tribunal at the hearing of this proceeding. According to Mr Dwyer, while “… the effects of chronic pain and high fatigue can impact on …[the applicant’s] concentration levels, he does not experience any specific cognitive deficits and he demonstrated clear understanding throughout this assessment. He sustained concentration and maintained attention sufficiently for the duration of the assessment (3 hours), with no requirement for specific assistance.”[93]
[93] TB95.
Mobility
The Operational Guidelines define the activity of mobility as one which addresses “…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.”
According to his current general practitioner, Dr Chifura, the applicant’s mobility is significantly reduced.[94] As to this, the respondent acknowledges that the applicant has difficulty in managing stairs unaided[95] and using public transport.[96] His gait and fatigue affects his balance, enhancing the risk of him suffering falls.[97] These issues are exacerbated when he finds himself in high stimulus environments.[98] He has difficulty in walking for lengthy periods and difficulty in negotiating uneven surfaces (a difficulty compounded by his damaged vision).[99] He also experiences difficulty in transferring from low seating.[100]
[94] TB53.
[95] R SFIC [59]; T6; TB388: where a physiotherapist stated that the applicant had reported being extremely fatigued as a result of climbing a set of stairs without railings. The applicant’s difficulty in traversing steps is also reflected in the steps video.
[96] T6: where in July 2021 Dr Rawal reported that the applicant had significant difficulty in using public transport.
[97] TB1365: October 2023 report of Ms Farrugia. Ms Farrugia also gave evidence that the applicant’s gait deteriorates with fatigue. See also December 2020 report of occupational therapist, Ms Westley at T3.
[98] T6.
[99] T6.
[100] T32: December 2020 report of occupational therapist, Ms Westley.
I am nevertheless not satisfied that the difficulties the applicant experiences result in him having a substantially reduced functional capacity in relation to mobility, that he needs environmental changes to participate in that activity, that he needs human assistance to participate in that activity or that he is unable to participate even with assistance in that activity.
I arrive at that state of non-satisfaction in a context where a person’s functional capacity in relation to mobility will ordinarily not be considered to be substantially reduced as long as the functional capacity retained by the person in that regard is at least modest.[101] Indeed, in Madelaine it was said that a “…person has functional capacity if they can move about their home, get in and out of a bed or a chair, and mobilise in the community.”[102] The applicant can do all these things.
[101] DTFW and National Disability Insurance Agency [2023] AATA 2837 at [97].
[102] Madelaine and National Disability Insurance Agency [2020] AATA 4025 at [104].
As for moving around the community, I note that the applicant says he leaves “…home most weekdays to take my thirteen-year-old to school[103] or other child related activities, parenting requirements and responsibilities. I also attend to grocery shopping weekly, and… I may visit a friend or family… I also leave the home a few times a week and sometimes on a weekend day for recreational/exercise purposes and to attend to general needs.”[104]
[103] More recently the applicant’s daughter has changed schools and she now travels to and from school using public transport.
[104] TB48.
In addition, according to the applicant, between “…my inner-city medical appointments and my duty as a StrokeSafe ambassador, I’m often required to travel/drive to these engagements, that total to about twenty times a year.”[105]
[105] TB19.
At the hearing the applicant gave evidence to the effect that he walked his dog for about 20 minutes four to five times a week, although the duration of a walk would likely reduce “in a high stimulus public setting.”[106]
[106] TB21: in an April 2022 statement the applicant suggested he can walk 10 to 15 minutes at a time, see: TB46. Ms Farrugia also gave evidence to the effect that the applicant walks for about 20 minutes.
Despite the suggestion by his general practitioner that the applicant use walking frames and wheelchairs,[107] his exercise physiologist opines that the applicant does not require a “gait aid.”[108] The applicant is reported to have said to Mr Dwyer that he does not regularly use any walking aids although he occasionally uses a hiking stick.[109] Before the Tribunal the applicant stated that he carries a walker in his car which he might use should he be required to walk over uneven surfaces.
[107] TB54: a suggestion which Dr Chifura qualified in oral evidence by stating that the applicant did not currently require a wheelchair, just that it was likely to be required in the long term.
[108] TB4; TB47.
[109] TB97.
Although the applicant stated in March 2023 that his use of public transport was “presently” not an option,[110] I note that he was able to utilise that option in order to attend the hearing of this proceeding. Indeed, while the applicant’s use of public transport may be difficult, he is still able to use it, and does use it to attend appointments in the city,[111] appointments which his general practitioner characterised in July 2021 as frequent.[112]
[110] TB60: March 2023 statement of lived experience.
[111] T32-33.
[112] T6.
The applicant also uses a motor vehicle, using a “spinner knob” on the steering wheel to permit one-handed driving.[113] Up until recently he drove his daughter to school every day and he drives to the supermarket. He indicated to Mr Dwyer that he has a driving tolerance of around 45 minutes at a time.[114]
[113] TB89.
[114] TB97.
While noting that the applicant experienced difficulties, the applicant was nevertheless said by his treating physiotherapist in April 2021 to be independent in relation to both mobility and transfers.[115]
[115] T39.
In the OT Report it is suggested that the applicant “would benefit from a range of assistive equipment and minor home modifications.”[116]
[116] TB84.
First, in terms of mobility, the suggestions were modest. They seemed to focus on the addition of a grab rail to facilitate shower transfers.[117] Second, in considering disability requirements, the issue before the Tribunal is not whether the applicant could benefit from certain services, equipment or technology. What is relevant, however, is Mr Dwyer’s opinion that the applicant was able to complete tasks associated with mobility without assistance or assistive technology, albeit on occasion using modified techniques to do so.[118]
[117] TB96.
[118] TB95-97.
Self-care
The Operational Guidelines define the activity of self-care as one which addresses “…personal care, hygiene, grooming, eating and drinking, and health. We consider how you get dressed, shower or bathe, eat or go to the toilet.”
The respondent acknowledges that the applicant requires physical assistance with nail care and some two-handed tasks involved with dressing.[119] As for the applicant, he says that he requires “…assistance with all two-handed tasks, some components of dressing, grooming, self-care. One of my daughters normally provides assistance when required… I’m prompted by my daughter when some grooming care is needed, such as nail care, hair growth, tidiness of dressing.”[120]The applicant’s current general practitioner, Dr Chifura, gave oral evidence to the effect that fatigue had a significant impact on the applicant’s capacity for self-care.
[119] R SFIC [71].
[120] TB50: The requirement for assistance with all two-handed tasks and some aspects of dressing and grooming, assistance which his daughter normally provides, is repeated elsewhere – see: TB5, TB22, TB42.
While I accept this evidence I am nevertheless not satisfied that the difficulties the applicant experiences result in him having a substantially reduced functional capacity in relation to self-care, that he needs environmental changes to participate in that activity, that he needs human assistance to participate in that activity or that he is unable to participate even with assistance in that activity.
Having a substantially reduced functional capacity to care for oneself has been said to import “…the idea that there are significant gaps in one’s capacity to maintain personal health, safety and well-being.”[121] The material before me does not suggest that the applicant suffers from such gaps in capacity.
[121] Madelaine and National Disability Insurance Agency [2020] AATA 4025 at [121].
Along similar lines, it has also been said that “…a person may not be deemed to have a substantially reduced functional capacity if they can shower, dress, toilet, groom and feed themselves independently, even if they sometimes need assistance or use adaptive techniques.”[122] On the material before me I am satisfied that the applicant is able to do those things even if, in relation to certain of them, he requires assistance or adopts modified techniques.
[122] McLeod and National Disability Insurance Agency [2023] AATA 3380 at [99] citing with evident approval FBJV and National Disability Insurance Agency [2021] AATA 913 at [154].
In the OT Report Mr Dwyer opines that the applicant would benefit from equipment or third-party assistance in the context of certain, limited, self-care tasks.[123] In particular, Mr Dwyer suggests:
(a)In relation to showering, installation of a shower grab rail and a wall mounted shower seat to improve safety;[124]
(b)In relation to grooming, assistance is required to cut the fingernails of the applicant’s right hand;[125]
(c)In relation to dressing, it would be facilitated by use of a dressing stick, sock aid, elastic laces and a shoe horn.[126]
[123] TB103.
[124] TB98: in addition Mr Dwyer recommends the use of a slip resistant shower mat and long handle sponges and toe washer, see TB104.
[125] TB98: at the hearing, however, the applicant said that he could deal with his fingernails but not his toe nails.
[126] TB99.
By and large, however, the self-care tasks identified by Mr Dwyer are said by him to be ones which the applicant completes independently, without assistance or assistive technology, occasionally using modified techniques to do so.[127]
[127] TB97-101.
Mr Dwyer’s opinion in this regard is reflective of the applicant’s statement that he lives independently and has minimal professional support and some informal support from family and friends.[128]
[128] TB45.
Self-management
The Operational Guidelines define the activity of self-management as one which addresses “…how you organise your life. We consider how you plan, make decisions, and look after yourself. This might include day-to-day tasks at home, how you solve problems, or manage your money. We consider your mental or cognitive ability to manage your life, not your physical ability to do these tasks.”
The respondent acknowledges that the applicant “…sometimes has trouble with bills and sometimes problem solving and decision making when stressed/ fatigued”,[129] as well as difficulty in managing appointments and organisation.[130] In addition, the respondent refers to the applicant having difficulty in cooking and preparing meals and undertaking heavy household tasks.[131] In this regard, Mr Dwyer noted that the applicant “…does not have the strength, dexterity or control to solely lift and carry items with his left hand, with his left hand primarily used in a supporting role to the right hand. He avoids storing items on the lowest shelving, as his difficulties with bending and squatting make reaching the lowest shelf difficult.”[132]
[129] R SFIC [77].
[130] R SFIC [74].
[131] R SFIC [59].
[132] TB95-96.
The applicant states that he has “…great difficulties with most aspects of daily living, from handling household items; pot of boiling water, food preparation, carrying a basket of wet laundry, hanging the clothes overhead on a line, tying shoelaces, buttoning a shirt, making a bed, cleaning, gardening, grocery shopping, walking, homecare tasks etc.”[133] Specific reference is made by the applicant to difficulties he experiences in laundering clothes (“the whole process from hanging, folding, ironing, are fatiguing”[134]), chopping vegetables[135] (addressed to an extent by using a spiked chopping board[136]) and cleaning the shower recess.[137]
[133] TB45.
[134] TB22.
[135] TB22; see the kitchen video as to chopping a pumpkin.
[136] TB47.
[137] TB8.
Some assistance is provided to the applicant through his local council. In particular, he is provided with domestic cleaning services for 1.25 hours fortnightly (which the applicant says only covers general cleaning[138]) and some homecare garden maintenance services.[139] As well, he is supported to an extent informally such as by his daughter (who assists with household chores[140]) and brother (who occasionally cooks food[141]).
[138] TB9, TB49.
[139] TB10: according to Mr Dwyer, the “service provided by the local council presently meets his needs in this domain.” See also TB101.
[140] TB42.
[141] TB40.
Despite the foregoing difficulties and associated provision of some assistance, I am nevertheless not satisfied that the applicant has a substantially reduced functional capacity in relation to self-management, that he needs environmental changes to participate in that activity, that he needs human assistance to participate in that activity or that he is unable to participate even with assistance in that activity.
As mentioned earlier, while he has “minimal professional support and some informal support from family and friends,” the applicant lives independently. Plus, he has all the “…responsibilities involved in full time parenting. School runs, homework, after school activities, functions and events… Daily – meal preparation, cooking, washing dishes etc.”[142]
[142] TB48.
Subject to the limited assistance previously mentioned, the applicant does the family shopping, cooking and cleaning.[143] He manages his own bank account and makes the decisions in relation to finances, budgeting and managing bills.[144]
[143] TB48-49.
[144] TB49-50.
As said by Mr Dwyer, in the self-management domain, the applicant is independent.[145]
[145] TB84: see also TB1107 where in the first supporting evidence form lodged on behalf of the applicant, Dr Shah opined that the applicant did not require assistance in relation to self-management.
Requirement 4 - Affect capacity to participate
The fourth of the five requirements of which the Tribunal must be satisfied in order for the applicant to be considered to satisfy the disability requirements is that the relevant impairment or impairments affect the applicant’s capacity for social or economic participation.
Given my conclusion in relation to the third requirement it is not necessary that I come to any conclusion in relation to any other requirement. Nevertheless, I am satisfied that the applicant meets this fourth requirement.
The applicant is the recipient of a disability support pension. A criterion which the applicant would need to have satisfied in order to qualify for that pension is that he have a continuing inability to work.[146] I infer from this that the applicant’s impairments have at least affected his capacity for economic participation (as does the respondent[147]).
[146] Social Security Act 1991 (Cth), s 94 noting there is nothing in the material before me suggestive of the applicant being a participant in the program known as the supported wage system.
[147] R SFIC [79].
Requirement 5 - NDIS support needed for lifetime
The fifth and last requirement is that the applicant be likely to require support under the NDIS for his lifetime. In this regard, he may be considered to be likely to require such support despite the fact that his impairments are fluctuating and vary in intensity.
The question raised by this fifth requirement is “…whether the support is required in respect of substantially reduced functional capacity to participate in an ‘activity.’”[148] As I am not satisfied that the applicant has such a substantially reduced functional capacity, the answer to that question must be “no”.
[148] National Disability Insurance Agency v Foster [2023] FCAFC 11 at [93].
Moreover, as I am not satisfied that the applicant meets the disability requirements then, subject to the discussion later concerning the early intervention requirements, he does not meet the access criteria. As he does not meet those criteria, he is not entitled to become a participant in the NDIS. As he is not entitled to become a participant in the NDIS, he is not likely to require support under the NDIS for his lifetime.
Hence, I am not satisfied that the applicant meets this fifth requirement.
Early Intervention Requirements
Despite not satisfying the disability requirements, the applicant might nevertheless be considered to meet the access criteria if I were to be satisfied that he meets the “early intervention requirements”.
As outlined before, I have found the applicant to be a person who has impairments that are, or are likely to be, permanent. As such, he will meet the early intervention requirements if the Tribunal is satisfied that the provision for him of “early intervention supports” is likely to benefit him by first, reducing his future need for supports in relation to disability and second, by doing any of four things, being:
(a)mitigating or alleviating the impact of his impairments upon his functional capacity to undertake any of the five activities previously discussed (communication, social interaction, learning, mobility, self-care or self-management);
(b)preventing the deterioration of such functional capacity;
(c)improving such functional capacity; or
(d)strengthening the sustainability of informal supports available to him (including through building the capacity of a carer, should he have one).[149]
[149] Act, s 25(1).
I am not satisfied that the provision for the applicant of early intervention supports is likely to benefit him in those two ways.
While the concept of an “early intervention support” is not defined, it is clear from the Act that it must (as contended by the applicant[150]) be one that leads to certain outcomes.
[150] A SFIC [15].
In this regard, “…the early intervention requirements consider the likely trajectory and impact of a person's impairment over time and the potential benefits of early intervention on the impact of the impairment on the person's functional capacity.”[151]
[151] Rules, 2.5.
There must be material before the Tribunal with respect to that trajectory and those benefits sufficient to enable the Tribunal to be satisfied that the requirements are met.[152]
[152] See Rules 6.9 as to the nature of the evidence required in relation to any assessment of early intervention requirements.
The material now before the Tribunal is, as the respondent submits,[153] not sufficient in this regard. While the two supporting evidence forms lodged by the applicant included a statement to the effect that the provision of early supports would be of benefit, Dr Shah in the October 2018 form considered the beneficial early supports would be in the nature of “physio/occupational therapies”[154] while Dr Islam in August 2019 considered the beneficial early supports would be in the nature of “graded exercise and mental support with professionals in neurological disorder”.[155] The oral evidence of the two expert witnesses called by the applicant did not assist. Ms Farrugia said she was uncertain whether the provision now of supports would reduce the applicant’s need for supports in the future, while Dr Chifura said that this “might” be the case. The applicant’s own opinion on the matter was that he did not think the provision of supports now would reduce his need for future supports.
[153] R SFIC [82].
[154] TB1104.
[155] TB1112.
Accordingly, I am not satisfied that the applicant meets the early intervention requirements. I note that neither party submitted that he did.
CONCLUSION
The applicant does not meet the access criteria.
Accordingly, the decision the subject of review is affirmed.
I certify that the preceding 127 (one hundred and twenty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member C. J. Furnell
..................[sgd]............................................
Associate
Dated: 13 November 2023
Dates of hearing:
18 & 19 October 2023
Advocates for the Applicant:
Karly Noonan & Aasma Chougle
Advocates for the Respondent:
Kate Forster & Sarah Thompson
Solicitors for the Respondent
HWL Ebsworth Lawyers
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