Jeftic and National Disability Insurance Agency

[2024] AATA 892

Jeftic and National Disability Insurance Agency [2024] AATA 892 (29 April 2024)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2022/2041

Re:Judith Jeftic

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Senior Member K Buxton

Date:29 April 2024

Place:Brisbane

The Tribunal affirms the decision under review pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).

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

Senior Member K Buxton

Catchwords

NATIONAL DISABILITY INSURANCE SCHEME – Application for Review of Decision – Access to Scheme – Applicant not having met the disability and early intervention requirements of the Act – Decision Under Review Affirmed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance SchemeAct 2013 (Cth)

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

Cases

HPSC and National Disability Insurance Agency [2021] AATA 727
Madelaine and National Disability Insurance Agency [2020] AATA 4025
Mulligan and National Disability Insurance Agency [2015] AATA 974
National Disability Insurance Agency v Davis [2022] FCA 1002
National Disability Insurance Agency v Foster [2023] FCAFC 11
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

REASONS FOR DECISION

Senior Member K Buxton

29 April 2024

1. This review relates to a request made in November 2021 by the Applicant, a 67-year-old woman who resides in Queensland, to become a participant in the National Disability Insurance Scheme (‘NDIS’).

2. The Applicant’s request for access to the NDIS was refused by a delegate of the Chief Executive Officer (‘CEO’) of the Respondent on 21 November 2021. The Respondent was not satisfied that the Applicant met the disability requirements under section 24 or the early intervention requirements under section 25 of the National Disability Insurance SchemeAct 2013 (Cth) (‘the NDIS Act’). Following a review under subsection 100(6) of the NDIS Act, a delegate of the CEO affirmed the earlier decision on 11 February 2022. On 9 March 2022 the Applicant applied to the Tribunal for review pursuant to section 100 of the NDIS Act. The Applicant contends that she meets the access criteria prescribed in the NDIS Act.

3. The Applicant lives with the following conditions that were identified when she requested access to the NDIS:

   (a)       Psoriatic Arthritis,

   (b)       Cervical Spondylosis,

   (c)       Knee/Shoulder Bursitis,

   (d)       Bulging Discs, and

   (e)       Nerve Root Compression.

4. A hearing of the review application was conducted by the Tribunal on 19 March 2024 using the electronic platform Microsoft Teams. During the hearing, Ms Jeftic indicated that she is also seeking access in relation to:

   (a)psychosocial impairments arising from the conditions of depression and anxiety, and

   (b)physical impairments arising from a right elbow condition.

5. Following the hearing the parties produced written submissions.[1]  In arriving at its decision, the Tribunal has considered these together with the tendered documents and the oral evidence given at the hearing.

   [1]  Respondent’s closing submissions dated 26 March 2024 and the Applicant’s closing submissions dated 3 April 2024.

6. It is not in dispute, and the Tribunal accepts, that:

   a)the Applicants meets the age and residency requirements in sections 22 and 23 of the NDIS Act;[2] and

   (b)with respect to Psoriatic Arthritis, Cervical Spondylosis, Knee/Shoulder Bursitis, Bulging Discs, Nerve Root Compression, Depression, Anxiety and a Right Elbow Condition the Applicant satisfies subsection 24(1)(a) of the NDIS Act;[3] and

   (c)the Applicant meets the criteria for section 24(1)(b) and (d) of the Act in relation to her impairments arising from Psoriatic Arthritis, Cervical Spondylosis, Knee/Shoulder Bursitis, Bulging Discs, and Nerve Root Compression.[4]

   [2]  The Applicant was younger than 65 years of age when she made the access request.

   [3] Respondent’s Closing submissions [22].

   [4] Respondent’s Closing submissions [23].

7. The Respondent contended that there was insufficient evidence to establish that the Applicant’s psychosocial conditions, and physical condition relating to her Right Elbow, gave rise to any permanent impairment under section 24(1)(b) of the NDIS Act, or that the other aspects of the disability criteria were met in relation to the Applicant’s accepted impairments and any other impairments that may be established.[5]

   [5] Respondent’s Closing submissions [24].

8. The Applicant did not make any detailed submissions that she met the early intervention requirements in section 25 of the NDIS Act. The Respondent submitted that the relevant statutory criteria for access on this basis were not met.

9. For the reasons that follow, the Tribunal has not reached the requisite level of satisfaction, in this case, that the Applicant has met the access criteria in either section 24 or section 25 of the NDIS Act.

   THE ACCESS CRITERIA

10. The Tribunal has considered this review application based on the provisions of the NDIS Act as amended from 1 July 2022.[6] The references to the NDIS Act are to the provisions as amended, where relevant. However, for the reasons set out below, the outcome of the review would be the same whether or not those amended provisions apply in this case.

    [6]  National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Act 2022 (Cth), Schedule 2, Item 54(1)(b).

11. To become a participant in the NDIS, a prospective participant must satisfy the access criteria, which are set out in subsection 21(1) of the NDIS Act:

    21 When a person meets the access criteria

    1A person meets the access criteria if:

    (a)The CEO is satisfied that the person meets the age requirements (see section 22); and

    (b)The CEO is satisfied that, at the time of considering the request, the person meets the residence requirements (see section 23); and

    (c)The CEO is satisfied that, at the time of considering the request:

    (i)     the person meets the disability requirements (see section 24); or

    (ii)    the person meets the early intervention requirements (see section 25).

    The Disability Requirements

12. There are five mandatory requirements that the Applicant must satisfy in order for her to meet the “disability requirements” as set out in subsection 24(1)(a) to (e) of the NDIS Act (reproduced below).

13. At the time of the Applicant’s request for access, Section 24 of the Act provided:

    24 Disability requirements

    1A person meets the disability requirements if:

    (a)the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or to one or more impairments attributable to a psychiatric condition; and

    (b)the impairment or impairments are, or are likely to be, permanent; and

    (c)the impairment or impairments result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the following activities:

    (i)     communication;

    (ii)    social interaction;

    (iii)    learning;

    (iv)   mobility;

    (v)    self-care;

    (vi)   self-management; and

    (d)the impairment or impairments affect the person’s capacity for social or economic participation; and

    (e)the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime.

    2For 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.

    Disability Rules

14. The Minister may make rules prescribing matters pursuant to subsection 209(1) of the NDIS Act. Relevant to this matter, the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (‘the Access Rules’) form part of the legislative scheme.

15. Section 27 of the NDIS Act provides that National Disability Insurance Scheme Rules may prescribe the circumstances in which, or criteria to be applied, in assessing whether one or more impairments are, relevantly, likely to be permanent for the purpose of paragraph 24(1)(b) and whether they result in substantially reduced functional capacity for the purposes of paragraph 24(1)(c).

16. In relation to section 24(1)(c), rule 5.8 states:

    When does an impairment result in substantially reduced functional capacity to undertake relevant activities?

    5.8 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. 12. Rule 5.8 has been held to be “deeming” provisions, in that the Rules have the effect of mandatorily including some people in the category of persons with substantially reduced functional capacity.

    Operational Guidelines

17. Operational Guidelines written by the Chief Executive Officer of the Respondent also assist staff to make decisions in accordance with the NDIS Act. Operational Guidelines represent government policy and should be considered by the Tribunal unless there is good reason not to do so.[7] The relevant Operational Guideline is the Our Guidelines – becoming a participant (‘the Access Operational Guidelines’)[8] published in June 2023.

    [7]  Re Drake and Minister for Immigration and Ethnic Affairs (No 2)(1979) 2 ALD 634.

    [8]  National Disability Insurance Agency, Our Guidelines – Applying to the NDIS, (Web Page) < > (‘The Access Operational Guidelines’).

18. As to the application of section 24(1)(c), the Access Operational Guidelines provides:

    Does your impairment substantially reduce your functional capacity?

    Your permanent impairments needs to substantially reduce your functional capacity or ability to undertake activities in one of the following areas:

    • Communicating – how you speak, write, or use sign language and gestures, to express yourself compared to other people your age. We also look at how well you understand people, and how others understand you.

    • Socialising – how you make and keep friends, or interact with the community, or how a young child plays with other children. We also look at your behaviour, and how you cope with feelings and emotions in social situations.

    • Learning – how you learn, understand and remember new things, and practise and use new skills.• Mobility, or moving around – how easily you move around your home and community, and how you get in and out of bed or a chair. We consider how you get out and about, and use your arms or legs.

    • Self-care – personal care, hygiene, grooming, eating and drinking, and health. We consider how you get dressed, shower or bathe, eat or go to the toilet.

    • Self-management (if older than 6) – how you organise your life. We consider how you plan, make decisions, and look after yourself. This might include day-to-day tasks at home, how you solve problems, or manage your money. We consider your mental or cognitive ability to manage your life, not your physical ability to do these tasks.

    Your impairment substantially reduces your functional capacity if you usually need disability-specific supports to participate in or complete the above tasks.

    These disability-specific supports include:

    • a high level of support from other people, such as physical assistance, guidance, supervision or prompting

    • assistive technology, equipment or home modifications that are prescribed by your doctor, allied health professional or other medical professional.

    To help us decide if you’re eligible, we need to know your capacity and where you need more help. We get this information from your NDIS 6 Drake and Minister for Immigration and Ethnic Affairs (No2) 1979 2 ALD 634 at 639-640.

    If you have more than one permanent impairment we will consider them together, to see if they substantially reduce your functional capacity.

    We consider how you’re involved in different areas of life like home, school, work and the community, and how you carry out tasks and actions. We also consider any other factors that may impact your day to day life.

    Your needs might go up and down each day or each month. Progressive Multiple Sclerosis (MS) can be a good example of this. We consider your ability over time, taking into account your ups and downs.

19. As to the application of section 24(1)(e):

    Will you likely need support under the NDIS for your whole life?

    You must be likely to need support under the NDIS for your whole life.

    NDIS supports are investments that help you build or maintain your functional capacity and independence, and help you work, study or take part in social life.

    Even if your needs go up and down over time, we may still consider it’s likely you’ll need lifetime support under the NDIS.

    We consider your overall situation to answer this question.

    When we decide if you’ll likely need support under the NDIS for your whole life, we consider:

    • your life circumstances

    • the nature of your long-term support needs

    • whether your needs could be best met by the NDIS, or by other government and community services.

    For example, you may have an impairment which is caused by a chronic health condition. Many chronic conditions are most effectively managed or remedied through medical management through the health system. If this is the case, we may decide that you don’t have a lifetime need for support under the NDIS.

    Early Intervention Requirements

20. A person may become a participant under the NDIS by meeting the early intervention requirements under section 25, which states:

    25 Early Intervention Requirements

    (1)       A person meets the early intervention requirements if:

    (a) the person:

    (i) has one or more identified intellectual, cognitive, neurological, sensory, or physical impairments that are, or are likely to be, permanent; or

    (ii) has one or more identified impairments that are attributable to a psychiatric condition and are, or are likely to be, permanent; or

    (iii) is a child who has developmental delay; and

    (b) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person’s future needs for supports in relation to disability; and

    (c) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by:

    (i) mitigating or alleviating the impact of the person’s impairment upon the functional capacity of the person to undertake communication, social interaction, learning, mobility, self-care or self-management; or

    (ii) preventing the deterioration of such functional capacity; or

    (iii) improving such functional capacity; or

    (iv) strengthening the sustainability of informal supports available to the person, including through building the capacity of the person’s carer.

    Note: In certain circumstances, a person with a degenerative condition could meet the early intervention requirements and therefore become a participant.

    (2) The CEO is taken to be satisfied as mentioned in paragraphs (1)(b) and (c) if one or more  the person’s impairments are prescribed by the National Disability Insurance Scheme rules for the purposes of this subsection.

    (3) Despite subsections (1) and (2), the person does not meet the early intervention requirements if the CEO is satisfied that early intervention support for the person is not most appropriately funded or provided through the National Disability Insurance Scheme, and is more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or through systems of service delivery or support services offered:

    (a) as part of a universal service obligation; or

    (b) in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.

21. The Access Operational Guideline relevantly provides:

    Do you need early intervention?

    If you don’t meet the disability requirements, you may be eligible for the NDIS under the early intervention requirements. Early intervention is usually early access to support, to help reduce the functional impacts of your impairment.

    Early intervention can be for both children and adults. You won’t need these supports for your lifetime, so your treating professional or your early childhood partner will tell us how early intervention support could benefit you or your child.

    You will meet the early intervention requirements if you meet all of the following:

    • You have an impairment that’s likely to be permanent.

    • Early intervention supports will help you, for example if it means you’ll need less disability support in the future and your functional capacity will improve.

    • The early intervention you need is most appropriately funded by us.

    There are different requirements for children younger than 6 with developmental delay to meet the early intervention requirements.

    If we have evidence a child younger than 7 has been diagnosed with a condition on List D, we’ll decide they meet the early intervention requirements. You may also meet the early intervention requirements if you’re aged between 0 and 25 with a hearing impairment.

    If you meet the early intervention requirements when you join the NDIS, we’ll regularly check your eligibility. We’ll check this at plan reviews, and at other times too. Learn more about leaving the NDIS.

    Do you have an impairment that’s likely to be permanent?

    To meet the early intervention requirements, there must be enough evidence that you have at least one of the impairments below and your impairment is likely to be permanent.

    An impairment is a loss or significant change in at least one of:

    • your body’s functions

    • your body structure

    • how you think and learn.

    An impairment could be:

    • intellectual – such as how you speak and listen, read and write, solve problems, and process and remember information

    • cognitive – such as how you think, learn new things, use judgment to make decisions, and pay attention

    • neurological – such as how your body functions

    • sensory – such as how you see or hear

    • physical – such as the ability to move parts of your body.

    We also need evidence at least one of your impairments will be permanent, or likely to be permanent. In other words, you’ll likely have your impairment for your whole life.

    When we decide if your impairment is likely to be permanent, we consider the same things as in the disability requirements.

    You may also be eligible for the NDIS if you have a psychosocial disability. This means you have reduced capacity to do daily life activities and tasks due to your mental health Your psychosocial disability might vary at different times in how much it impacts your daily life. Even if it fluctuates and you have some periods where there is a smaller impact on your daily life, you might have this impairment for your whole life.

    If you give us evidence you have been diagnosed with a condition on List B, we’ll decide you have an impairment that’s likely to be permanent.

    How will early intervention help you?

    We need to decide that getting early intervention supports means you’ll likely need less disability supports in the future.

    We need to know that early intervention supports will help you with at least one of the following:

    • addressing the impact of your impairment on your ability to move around, communicate, socialise, learn, look after yourself and organise your life.

    • preventing your functional capacity from getting worse.

    • improving your functional capacity.

    • supporting your informal supports, which includes building their skills to help you.

    To help us decide if the early intervention will help you in these ways, we look at:

    • how your impairment might change over time

    • how long you’ve had your impairment

    • if there’s been a significant change to your impairment

    • if your needs are likely to change soon, such as if you’re finishing school.

    Is your early intervention most appropriately funded by the NDIS?

    The support you need must be most appropriately funded or provided by us.

    You won’t be eligible if we decide the support you need is more appropriately funded or provided:

    • by other general systems of service delivery or support services, such as a workers compensation scheme

    • under a universal service obligation that other government services must provide to all Australians, such as schools and public hospitals

    • as a reasonable adjustment under discrimination law, such as making places or venues accessible for you.

    For example, you usually won’t be eligible if you only need the following supports. These are more appropriately provided by other government and community services:

    • medical services, and treatments for health conditions, including ongoing or chronic health conditions

    • clinical early intervention mental health supports, such as services to help children, teenagers and young people grow and develop

    • clinical acute and crisis mental health supports – such as care in a hospital or similar setting

    • inclusion supports to help young children join early childhood learning and care settings

    • Disability Employment Services, and reasonable adjustments in the workplace to make your job suit your needs.

    ISSUES

1. The following issues are to be determined by the Tribunal:

   (a)Whether the Applicant’s permanent impairments result in a substantially reduced functional capacity pursuant to section 24(1)(c);

   (b)Whether the Applicant is likely to require support under the NDIS for her lifetime pursuant to section 24(1)(e); and

   (c)Whether the Applicant meets the early intervention criteria pursuant to section 25.

   EVIDENCE

2. The hearing bundle contains almost 900 pages of documentary evidence. The Tribunal has had particular regard to those parts of the bundle to which the parties have drawn the Tribunal’s attention, and to other documents the Tribunal has consulted in order to understand background and context. The parties had ample opportunity during the hearing to indicate further documents on which they specifically wished to rely. I have summarised below the evidence of the witnesses which each party stated were key to the issues before the Tribunal and placed less weight on the remaining documents as no submissions were made in relation to them.

3. The original Access request form dated 11 July 2021,[9] filled in partly by the Applicant’s General Practitioner, Dr Nabil Ikram, identified only the domains of mobility and self-care in which he stated that the Applicant “needs help”. Help at home, including with cleaning and in the shower, were identified as potential supports. His supporting letter, dated 5 November 2021, did not note any mental health issues. In his letter dated 15 March 2023,[10] Dr Ikram noted that the Applicant had, amongst her physical conditions, depression. This was included in a list of conditions that Dr Ikram described as permanent and lifelong. The Tribunal notes that the Applicant told Ms Hayes, during an assessment described below, that she did not have depression.[11] There is reference in the Applicant’s medical history to depression being active from 2012, and being associated with her workplace bullying claim, and some of her medications have uses which include depression, but also include the treatment of neuropathic pain. Earlier GP notes mention a history of depression but do not provide insight into any diagnosis, treatment, or ongoing impairment. Dr Ikram did not give oral evidence at the hearing.

   [9] HB p. 81-91.

   [10] HB p. 278-280.

   [11] HB p. 336.

   The Applicant

4. The Applicant provided two written statements of her lived experience[12], and gave oral evidence during the hearing. She has also provided relevant information indirectly, through her reporting to medical and allied health professionals, as reflected in various records, letters and reports in the Hearing Bundle. The Applicant’s oral evidence traversed her personal circumstances, provided details of the onset and degeneration of her physical symptoms, and addressed some aspects of her mental health. She also gave evidence about how her impairments impacted upon her daily life, and about the various medications she takes to assist with her conditions. She stated that some medications were taken daily and other as needed, depending on both her pain levels and her levels of stress. She also uses a TENS machine to alleviate pain.

   [12] Dated 22 June 2022, T26 and 1 November 2023, T40.

5. The Applicant stated that she has recently been receiving treatment for pain in her elbow. Her General Practitioner, Dr Ikram, has treated this area with acupuncture and intends to provide platelet rich injection treatment and she was unsure as yet whether cortisol injections may also be used. She is also receiving physiotherapy and chiropractic care. The purpose of such treatments was to provide relief from elbow pain.

6. The Applicant stated that she had recently been referred by her General Practitioner to a psychologist on a mental health plan due to the pressures of the upcoming review hearing and as a result of being triggered by negative treatment received at Centrelink when she attended recently to take some forms in for a friend. She was planning to see a psychologist four weeks after the hearing. The Applicant explained that she had seen a counsellor in the past following her workplace bullying claim in 2019 and had felt better after these sessions concluded in 2020 and had not had any mental health care since then. She was discharged from counselling with Ms Rachel Aves, Psychologist, on 8 October 2020, (who noted that the Applicant did not require further psychology services at that time)[13].

   [13] HB p. 613.

7. She stated that she continues to see Dr Ikram regularly for acupuncture and her other general health needs..

8. The Applicant gave further oral evidence by answering specific questions about her functional capacity in the various domains identified in section 24(2)(c) of the NDIS Act. The Applicant asserted with some vigour that, when her functional capacity was assessed by Ms Hayes, Occupational Therapist, on 25 November 2022 she was having a really good day. She stated that she has actually reported her pain on that day as at the level of five out of ten, and not eight out of ten as suggested on page 5/40 of Ms Hayes report.[14] The Applicant also confirmed that she denied to Ms Hayes having any mental health diagnosis or issues. She stated that, after having been bullied in her workplace at Centrelink for six years a Psychiatrist wrote a report containing a negative statement and “it broke me”. She did not want that stigma attached again and therefore sought to minimise her mental health concerns during the assessment.

   [14] Report dated 19 December 2022, commencing HB p. 331.

9. Communication

   (a)The Applicant accepted that she is able to read, write and openly communicate and is able to understand others. Modes of communication other than direct speech include use of an iPad and phone, and Facebook account (although she does not use this often).

   (b)The Applicant agreed that she had no difficulty with communication as a result of her physical disabilities.

10. Social interaction

    (a)The Applicant is a volunteer at a neighbourhood centre three hours per week, and her roles include helping people to apply for Disability Support Pensions and filling in government forms.

    (b)The Applicant lives in the same house as her daughter and grandchildren and spends time with them at home. She noted that her daughter took her to Maryborough recently for daughters-in-law’s birthday celebration.

    (c)The Applicant attends yoga.

    (d)The Applicant is able to access her social interactions by driving to activities. However, if she is not able to drive on a particular day she will not attend.

11. Learning

    (a)The Applicant noted that she has experienced some difficulty in keeping up with new information (e.g. changes in Centrelink legislation). However, she continued to volunteer and assist people with Centrelink processes. The Applicant stated that she keeps up to date with changes in Centrelink and reads through the social security guide.

12. Self-care

    (a)The Applicant lives in the same home as her daughter (who lives downstairs) and her children (one of whom lives upstairs with the Applicant).

    (b)When needed, other members of the household will pick up items from the shops for the Applicant. She is also able to order groceries and shopping by placing on-line orders.

    (c)The Applicant confirmed that she is independent in showering, toileting and eating. She is able to dress herself but, if her pain levels are too high, she will not get dressed for the day. When showering, the Applicant stated that she cannot get down to do her feet but she does attend a podiatrist who manages her footcare. The Applicant drives herself to the podiatrist, attends the appointments by herself and arranges the next appointment at the conclusion of at the last one.

13. Mobility

    (a)The Applicant can mobilise independently without a walking aid. The reason for any slowness or difficulty in waling is due to her back pain.

    (b)The Applicant stated that she can walk for half an hour on a treadmill. She uses correct shoes with Velcro and knee support but noted that, at the time of the hearing, the current heatwave had curtailed her use of the treadmill and she would  need to build up again. She noted the same with her exercise bike, stating that the equipment is there and that regular use will increase coming into winter and can also be dependent upon her pain levels.

    (c)The Applicant stated that she can usually walk around the house. She does not walk to the shops as there are not a lot of footpaths near home but can drive so tends not to walk but rather to drive to the shops.

    (d)The Applicant confirmed her report to Ms Hayes of walking between 3000 and 4000 steps per day. She gets up every ten minutes and walks to stop from becoming too stiff. She accepted that she had a standing tolerance of two minutes and sitting tolerance of about 60 minutes.

    (e)The Applicant stated during the hearing that it takes about two hours in the morning for her to become mobile. During this time she will watch TV and check emails but sets a phone alarm to stand and walk and utilises heat packs to feel less stiff.

    (f)The Applicant accepted that she had a lifting capacity of 7 kg but noted that pain may sometimes prevent lifting. She stated that she used to be able to lift groceries with both hands but now uses strategies to split loads, and that her grandson helps her to put the groceries away.

    (g)The Applicant explained that she had been having difficulties on the internal stirs in her home for some time since the handrail was removed during renovations. She noted that she had considered accessing the Qld Government “Home assist” program in order to obtain up to $500 worth of labour to address this issue and that she wished she had sorted out the handrail issue “ten years ago”.

14. Self-management :

    (a)The Applicant manages her own medication and utilises a TENS machine to obtain pain relief. She makes her own appointments for her health-related needs.

    (b)The Applicant manages her own household needs and accepted that she is independent in decision-making.

15. Ms Lix, occupational therapist, undertook a functional assessment of the Applicant in December 2021 at Ms Lix’s office. The Applicant stated that she was in a “fair amount” of pain at that time, about a seven or an eight out of ten, and it took her two days to recover from the assessment. For the more recent assessment by Ms Hayes the Applicant’s stated pain level was about a five out of ten and she stated that she was in a lot of pain the next day.

    Ms Hayes, Occupational Therapist

16. Ms Tiffany Hayes, Occupational Therapist, provided a report dated 19 December 2022 following an assessment of the Applicant in November at the request of the Respondent.[15]

    [15] HB p. 331.

17. During the assessment in November 2022 Ms Hayes administered various tests, including the pain disability index measurements and noted that the Applicant reported levels of pain specifically associated with sleeping and recreation.

18. As to mobility, Ms Hayes noted that the Applicant could move around and outside her home, including traversing internal stairs without a handrail. She was able to sit, stand, and transfer independently and completed various tasks during the assessment including those involving reaching, bending, twisting and lifting. She could drive up to 30 minutes at a time on a very good day and 15 minutes on a normal day. She exercised on a treadmill regularly, as her pain allowed. Ms Hayes stated that the Applicant is likely to benefit from a walking stick, orthotics and, potentially, a four-wheeled walker to allow for seated rest breaks and to assist with carrying objects. She would also benefit from bilateral stair rails at home. The Applicant was assessed as having a low risk of falling but was noted by Ms Hayes to be afraid of falling, having had a couple of tripping falls in the community and on the bottom stair at home. Ms Hayes described this as self-limiting behaviour.

19. During the hearing, Ms Hayes noted her tolerances for sitting, standing and walking did not reach the level of substantial reduction in functional capacity. Sitting allowed her to travel as a passenger in a car or sit for an hour long meeting during her volunteer work. Her standing would allow her to shower, prepare food etc. Her daily steps of 3000 to 4000 per day were impressive, although Ms Hayes acknowledged that this is pain dependant and may not therefore occur every day. She presented as an active woman who participates in the home and in the community. She can access the upstairs area of her home where she lives and is able to operate a vehicle. Her outdoor and indoor mobility were similar with outdoor activity being dependant on the gradient and stability of service. Her internal stairs were a concern because the bilateral handrails had been removed and had not yet been replaced. She held the wall while descending the 16 internal stairs and she was understandably cautious, not using a reciprocal gait but instead joining her feet at each step. The staircase would benefit from task lighting and contrast strips to the stair as well as bilateral handrails. The Applicant reported previously falling on the lower stair and these modifications would help to maximise her safety. Loose mats should also be removed.

20. The Applicant was observed by Ms Hayes to modify the length of tasking and to pace herself where physical activities required her to mobilise.

21. As to communication, Ms Hayes noted the Applicant to have effective communication in person, over the telephone and via electronic means. During the hearing, Ms Hayes confirmed that there were no substantial impairments in communication, noting that the Applicant has effectively communicated with her and her household during the three-hour assessment, and that they had also communicated in writing.

22. As to social interaction, Ms Hayes noted that the Applicant participated in regular social engagements and community groups, as well as her voluntary work in the community. The Applicant reported pain and fatigue as barriers to her participating in social activities. During the hearing Ms Hayes accepted that the Applicant engages in the community including regular volunteer work about which she was passionate and effective. Ms Hayes stated that the Applicant came across as a sociable lady with a friendly nature. The Applicant shared her leisure interests and a variety of social groups with whom she had been connecting.

23. As to learning, Ms Hayes noted that the Applicant was alert and orientated during the assessment and could follow instructions. The Applicant reported that her fatigue had caused her to be forgetful and have difficulty concentrating. During the hearing Ms Hayes noted that she had screened the Applicant’s cognition and assessed it to be in the normal range and this was consistent with her presentation during the assessment. She was able to manage her own risk and plan for her safety. Ms Hayes acknowledged that this management would be impacted by fatigue but without reaching the level of substantial impairment.

24. As to self-care, Ms Hayes noted that the Applicant was independent in showering, toileting and eating and required assistance to cut her toenails and, on occasion, to dress when she was in pain. Ms Hayes noted some modifications to the Applicant’s routine, clothing choices, kitchen utensils etc that have assisted her to maintain this independence. The Applicant stated that she requires assistance with some aspects of home maintenance and laundry and receives this from family members who live with her. During the hearing, Ms Hayes notes that the Applicant simulated various tasks and confirmed that she performed these independently whilst taking a reasonable amount of time. The Applicant had modified her routine to account for her functional limitations, such as with frequency of hair washing, washing the lower half of her body out of the shower on a chair and choosing clothing items to account for her limitation in movements. Lifting tolerances were observed to be 7kg, but carrying is a different functional task and this was restricted to only a few kilograms to avoid aggravation of pain. The Applicant could carry a grocery bag from the car to the kitchen and received support from her family members for heavy lifting. She was transferring and toileting independently at the time of the assessment.

25. As to self-management, Ms Hayes noted that the Applicant was independent is all aspects of her financial management, attending appointments and managing medication and in her simple and complex decision-making generally and she confirmed these observations during the hearing. Ms Hayes acknowledged that pain and fatigue can cause limitations but she did not observe a substantial reduction in the Applicant’s capacity in this domain.

26. During the hearing, Ms Hayes provided the following further evidence:

    (a)In relation to the assessment which took place in November 2022, the Applicant presented as having a typical day. She was able to traverse 16 steps up and down and mobilise without expressing being in pain. She was able to operate a vehicle, had showered, dressed and performed her activities of daily life.

    (b)The Applicant was presented, by Ms Hayes, with visual material and asked to describe per pain on that day. She responded that it was neither a good nor bad day but, rather, typical.

27. Ms Hayes stated that she undertook the usual screening for mental health conditions and that she understood from the supporting material that the Applicant had never had a clinical diagnosis, either historical or present, of mental health conditions and had only physical impairments. She stated that there was nothing in briefing material and nothing disclosed during the assessment that provided any basis to explore that. She noted that if there was a medical history in 2012 of depression/anxiety and in 2019 some counselling with a psychologist that she would have read that and, in performing the assessment, decided not to explore the Applicant’s mental health further because the Applicant denied any mental health issues. Ms Hayes stated that the Applicant did not present as a person in any distress or with obvious mental health concerns. She noted that there are many ways of detecting this and that she had no such concerns at the time of the assessment.

28. Ms Hayes acknowledged the possibility that a person may hold back from disclosing mental health issues because they felt that there was a stigma attached. However, she stated that most people are forthcoming in assessments about mental health conditions because she explains to them the importance of disclosing and that those seeking access to the NDIS may be affected by not disclosing such issues.

29. Ms Hayes noted that the Applicant had accessed a range of allied therapies including chiropractic care, acupuncture, physiotherapy and hydrotherapy that were effective in reducing her pain and therefore effective in her being able to mobilise.

30. Ms Hayes did not recall the Applicant stating during her assessment that she was delayed in her mobilisation at the start of the day. However, she did note that the Applicant may not schedule appointments in the afternoon in order to avoid exhaustion.

31. Ms Hayes accepted that when the Applicant volunteered at the neighbourhood centre she would get up and move to the photocopier or kettle, and that this was a way of punctuating periods of sitting. Ms Hayes stated that, with those breaks, the Applicant was able to volunteer for an hour-long session.

    Ms Lix, Occupational Therapist

32. Ms Kristen Lix, Occupational Therapist, provided a report dated 2 February 2022[16] following an assessment of the Applicant in December 2021 at the Applicant’s request, and a letter dated 16 March 2023[17] in which she provided some commentary as to the conclusions arrived at by Ms Hayes. Ms Lix did not give oral evidence during the hearing. Essentially, Ms Lix opined that Ms Hayes assessment of the Applicant took place on a “good” day but that the Applicant has about 20 “bad” days each month where the limitation upon her functional capacity is “severe” in the domains of participation in society, life activities and mobility. She noted that the Applicant exhibited both significant pain and limitation in range of movement, particularly in her shoulders and neck.

    [16] T1L.

    [17] T32.

1. Ms Lix administered a questionnaire about the Applicant’s depression. Ms Lix noted that the Applicant reported a deterioration in her mental health in terms of increased anxiety and being “scattered”.

2. Ms Lix opined that the Applicant would benefit from support workers to assist with cleaning, grocery shopping and meal preparation and also with fortnightly physiotherapy sessions (25 hours). She would also benefit from an Occupational Therapy assessment, including home modification recommendations, and recommended 25 hours of Occupational Therapy support to trial equipment, educate and assess the Applicant and for report writing. Ms Lix also recommended assistance with home maintenance including gardening, podiatry care and remedial massage therapy. The Applicant was noted as being largely independent in learning, communication and self-management.

3. As to mobility, Ms Lix noted that the Applicant walked for half an hour on the treadmill each morning and completed ten minutes on the exercise bike. She was able to sit, stand and transfer, with rests, and could drive her car. Ms Lix recommended additional mirrors in the car as the Applicant struggled to turn her neck to some angles.

4. As to social interaction, Ms Lix noted that the Applicant participated in regular social engagements and community groups, as well as her voluntary work in the community. However, given the Applicant’s reported pain and fatigue as barriers to her participating in social activities.

5. As to self-care, Ms Lix notes that the Applicant was independent in some aspects of self-care but would benefit from assistive items such as grab rails and a perching stool. The Applicant did not undertake garden or home maintenance and pays a handyman to paint decks and attend to other maintenance issues and laundry and receives this from family members who live with her.

6. As to self-management, Ms Lix considered that the Applicant was cognitively intact and noted her capacity to make her own decisions.

   Ms Black, Physiotherapist

7. Ms Doreen Black, Physiotherapist, prepared a written statement dated 1 March 2023[18] and gave oral evidence during the hearing.

   [18] HB p. 276.

8. Her statement notes that Ms Black had been the Applicant’s treating physiotherapist since March 2022 and had treated her fortnightly for about the last year (unless she is away). Ms Black stated that the Applicated reported a high degree of pain constantly, impacting her ability to perform some of her activities of daily living and her social engagements. She required family to assist with some activities. Ms Black recommended ongoing physiotherapy and some house modifications.

9. During the hearing, Ms Black provided the following further evidence:

   (a)She noted that the Applicant has always had baseline tightness and discomfort resulting in pain. It would often be exacerbated by ADLs, chores, house cleaning etc and this would lead to increased pain levels. The degree of the Applicant’s reported pain levels between 0-10 would be, on average, a baseline of about 6 and up to 8-9 when exacerbated.

   (b)The Applicant has also undertaken Hydrotherapy with Ms Black’s co-worker and sometimes sees a Chiropractor if Ms Black is not available, although the Applicant has a regular set time to see Ms Black.

   (c)Ms Black worked with the Applicant on range of motion exercises and yoga. She stated that the Applicant’s pain levels are high and that they worked within her exercise tolerance. She explained that, even though it may hurt to move and that is “not great”, she has tried to build tolerance in the Applicant and keep going to get used to activities, including the range of motion exercises. The main goal of the physiotherapy treatment is to reduce muscle spasm and increase mobility and because the Applicant has nerve sensitisation we work slowly. Sometimes strapping is used for stability. The middle section of the Applicant’s back is worked on frequently. The Applicant’s thoracic and cervical spine is working hard and is tight because her lumbar spine is so tight and painful.

   (d)Ms Black has also worked twice on the Applicant’s elbow, treating her for lateral epicondylar (tennis elbow) and calcification. This began about a month prior to hearing, being a recent development stemming from older overuse of that elbow. The therapy has been aimed at reducing tightness in the muscle that is pulling on joint and causing pain and working on strengthening to support it. Ms Black has seen an ultrasound and notes that the conclusion does not say that the Applicant has tennis elbow but calcification is consistent with that presentation. Ms Black stated that the inflammation and calcification will reduce the Applicant’s ability to perform normal activities.

   (e)Ms Black explained that, during the two-year period of physiotherapy treatment of the Applicant she had not seen significant gains. Because the Applicant’s condition is long-standing, she requires ongoing treatment, not rehabilitation. Her years of problems with lumbar, thoracic and cervical spine have resulted in nerve sensitisation leading to a heightened pain response. She works on reducing the Applicant’s sensitivity on an ongoing basis and stated that she has more pain if she has not treated her regularly in order to maintain her quality of life. The purpose of treatment is not to negate pain but to try not to lose gains that have been made over the period of treatment. Ms Black noted that with Applicant is in a chronic pain bracket and her treatment is likely to remain the same over time.

   (f)Ms Black noted that she did not have the expertise to recommend home modifications and would defer to the expertise of an occupational therapist in that regard.

   Ms Bausbacher DC

10. Ms Mary Bausbacher, Chiropractor, did not provide oral evidence during the hearing but prepared a letter dated 22 March 2023[19] in which she stated:

    (a)The Applicant’s physical conditions are all permanent.

    (b)She had been treating the Applicant since 15 November 2019.

    (c)The Applicant had “a large array of physical afflictions. Degenerative arthritis as well as Psoriatic arthritis impose disability over time. Funding will allow Judy to become less reliant on family help to perform her ADL's. The funding should allow for home modifications as they arrive. It will allow her to continue to fund her chiropractic sessions, which improve her quality of life.”

    [19] HB p. 287.

    CONSIDERATION

11. The Tribunal accepts the uncontroverted evidence that the Applicant meets the criteria for section 24(1)(a), (b) and (d) of the Act in relation to Psoriatic Arthritis, Cervical Spondylosis, Knee/Shoulder Bursitis, Bulging Discs, and Nerve Root Compression. The evidence demonstrates that the impairments arising from these physical conditions are permanent.

12. The Applicant has mentioned in her own evidence and in statements to those who have treated or examined her that she has anxiety and is depressed. She gave evidence that she has minimised her symptoms of anxiety and depression in the past, including during the independent assessment of her functional capacity undertaken by Ms Hayes, occupational therapist, for the purpose of this review.

13. In the substantial bundle of hearing materials, which runs to almost 900 pages, there are a handful of scattered references to depression, including notes from her General Practitioner in 2011, 2012 and 2019. The Applicant has attended some counselling, including with Ms Rachel Aves in 2020, which Ms Aves notes as having been, “beneficial in helping her find closure around her work situation and building confidence in her ability to cope.” Ms Aves also noted that the Applicant’s therapy goals had been achieved and that the Applicant did not require further sessions.[20] She was discharged from counselling with Ms Rachel Aves, Psychologist, on 8 October 2020. The Applicant confirmed during the hearing that she had not attended a psychologist since the sessions with Ms Aves in 2020, but just prior to the hearing she had been referred by her General Practitioner, Dr Nabil Ikhram, to Fraser Coast Psychology, for CBT counselling for depression and anxiety, with a goal to "feel better".

    [20] Patient Records of Ikram Family Practice, HB p. 610-611.

14. There is sufficient information before the Tribunal to demonstrate that the Applicant suffers from time to time with depression triggered by significant stressors in her life. These have included the traumatic death of her husband and trauma related to her former workplace environment. However, with treatment, the limited information available to the Tribunal demonstrates that she has been able to manage her symptoms in a way that would suggest that any impairments arising from psychosocial conditions are not ongoing or permanent.

15. There is little information about the Applicant’s current mental health. Ms Lix noted at the time of her examination that the Applicant had reported to her that she had a deterioration in her mental health in terms of increased anxiety and being “scattered”. This was not reported at all by the Applicant to Ms Hayes. No mention of depression was made in the functional assessment of either occupational therapist. The medical information is limited to the references noted above and to the fact that the Applicant has recently again been referred for some psychological therapy for her current heightened symptoms.

16. There is no evidence that the Applicant has consulted a psychiatrist. When the Applicant has sought treatment in the past from a psychologist the evidence suggests that this treatment has been remedial of the Applicant’s symptoms. As to the Applicant's current symptoms, which she stated had been exacerbated by the stress of the upcoming review hearing, her general practitioner has recently completed a mental health plan nominating further treatment with a psychologist as appropriate. As with previous treatments, when this is undertaken it may remedy any psychological impairment she may have.

17. For these reasons, the Tribunal is not satisfied that there are no known, available and appropriate medical treatments that would be likely to remedy any impairments as a result of the Applicant’s depression and anxiety. Therefore, the Tribunal is not satisfied that the Applicant has a psychosocial impairment that meets the test of permanence in section 24(1)(b) of the NDIS Act.

18. There were references to the Applicant’s right elbow pain in the hearing bundle, including a reference to pain and swelling of the elbow in 2015 and a diagnosis of tennis elbow by Dr Marcus Navin, Consultant Occupational Physician, on 1 June 2016.[21] Dr Navin indicated that the Applicant was provided with exercises and received massage therapy. Dr Navin recommended that the Applicant undertake a formal directed exercise program directed to stretching and extension of the biceps and the long muscles of the arms. The oral evidence of the Applicant in relation to treatment of her right elbow condition was that she has received acupuncture, physiotherapy treatment and chiropractic treatment. Her general practitioner has recommended that she receive a platelet rich plasma injection. When asked what her general practitioner advised would be the outcome of this treatment, the Applicant stated that it would help with the pain. It is unclear whether the Applicant has engaged in the course of exercise recommended by Dr Navin but the Tribunal notes that the Applicant has also received treatment from Ms Black, physiotherapist, in relation to her right elbow pain.

    [21] Patient Records of Bay Chiropractor Centre, HB p. 824.

19. While the evidence indicates that the Applicant uses treatment in order to manage the pain symptoms of her right elbow, she does have a diagnosis of tennis elbow and ongoing pain. Whilst the treatments and exercise programs recommended to the Applicant may treat the condition, the underlying diagnosis is likely to remain and the treatments, whilst addressing symptoms, are unlikely to remedy this condition in the sense that they would amount to something approaching curative.[22] The Tribunal is satisfied that the persistent right elbow condition is a permanent impairment.

    [22] National Disability Insurance Agency v Davis [2022] FCA 1002, at [136].

20. As to section 24(1)(d), the Tribunal notes that the Applicant was previously employed many years ago as a nurse but was injured at work and re-trained in social work. The Applicant was then employed for many years by Services Australia but left and recovered through Comcare compensation for work-related issues which led to her departure. The Applicant now volunteers. She is also in receipt of a carer pension and carer payment as the carer of her adult grandchild who lives with her and has Attention Deficit Disorder. The Applicant has stated that she provides emotional regulation and cognitive prompting, rather than physical support, for this grandchild. Her daughter and other grandchild live in the downstairs part of her home, which the Applicant sold to her daughter in order to have additional funds available to meet her own needs. Notwithstanding that this demonstrates a genuine capacity in the Applicant to care for herself and others, the bar to meet section 24(1)(d) is not particularly high and the Applicant did previously work almost full-time. Therefore, on balance, the Tribunal is prepared to accept that her impairments have affected her capacity for social or economic participation and that section 24(1)(d) is satisfied in relation to her permanent impairments.

    Section 24(1)(c): Substantially reduced functional capacity

21. The Respondent submitted that the Tribunal would not be satisfied, pursuant to section 24(1)(c), that the Applicant’s permanent impairments result in a substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the following activities:

    (a)       communication;

    (b)       social interaction;

    (c)       learning;

    (d)       mobility;

    (e)       self-care; or

    (f)        self-management.

22. The Tribunal must consider not only whether the Applicant has demonstrated reduction in her capacity to perform one or more of those activities, but whether any such reduction satisfies the qualifying description that the reduction be substantial. The Respondent submitted that the word “substantially” has a very important purpose in the Act and carries a high threshold. The Tribunal accepts this submission. In Mulligan and National Disability Insurance Agency[23] the Tribunal noted the meaning of this term should be considered in the context that the NDIS was not intended to provided support to every person with a disability but, rather, that access to NDIS was intended to minimise the impact of those who are suffering “the consequences of disability” such as “isolation, poverty, loss of dignity, stress, hopelessness and fear of the future”.

    [23] [2015] AATA 974, [39] – [41].

23. The Applicant’s capacity to perform activities in the relevant domains has to be viewed in the context not only of what she cannot do but what she can do, even with limitations.[24] The Tribunal is required, by reference to all the matters that comprise the particular activity or domain (e.g. self-care), to make a functional, practical assessment of what a person can and cannot do.[25] That is, the Tribunal is to reach a conclusion as to whether the Applicant has a substantially reduced capacity to undertake the activity or domain (e.g. self-care) “by assessing his [or her] functional capacity with respect to the bundle of tasks and actions forming the concept of self-care”, [26] as opposed to a specific task or action within that broader domain.

    [24] Ibid, at [121].

    [25] National Disability Insurance Agency v Foster [2023] FCAFC 11, [64].

    [26] Ibid, at [65].

24. The Applicant submitted that, in considering her level of functional impairment, the Tribunal should prefer the evidence of her treating allied health specialists, and particularly Ms Black, to that of Ms Hayes. She submitted that Ms Black sees her frequently, rather than having seen her on the single day of an assessment, and as such her evidence should be given greater weight. She also denied informing Ms Hayes that she was having a “typical day” on the day of the functional assessment.

25. The Tribunal has carefully considered the written and oral evidence of the allied health specialists in this case. The Applicant is recorded as stating to Ms Hayes on the day of her assessment that she was having a typical day but told the Tribunal that she was, in fact, having a good day. The Applicant is recorded as stating to Ms Hayes on the day of her assessment that her pain levels were eight out of ten but told the Tribunal that they were, in fact, five out of ten. The Applicant is recorded as telling Ms Hayes that she did not have ongoing mental health impairments but told the Tribunal that she does have ongoing depression and anxiety which she invited the Tribunal to conclude was permanent. The Applicant was aware that the assessment by Ms Hayes would be used in the review of the Respondent’s refusal of her request to access the NDIS. The Applicant stated that she covered up her mental health issues due to a concern about stigma and therefore accepts that Ms Hayes correctly recorded her comments in relation to her mental health. However, the Applicant invited the Tribunal to conclude that it was Ms Hayes, and not the Applicant, who has mistakenly recalled (and recorded in her notes and report) that the Applicant was having a typical day upon examination, with pain levels of eight out of ten.

26. The Applicant has not provided compelling reasons for masking her mental health conditions on the day of the examination, and the Tribunal notes that this masking, together with inaccurate recoding by Ms Hayes of the Applicant’s level of pain would have the effect of exaggerating to Ms Hayes the Applicant’s level of functional capacity. There are a number of possible explanations for the discrepancies between Ms Hayes evidence and that of the Applicant. These include error on the part of Ms Hayes, or that the Applicant’s reporting to Ms Hayes was accurate but that the Applicant does not agree with, or is seeking to minimise the impact of, the conclusions arrived at by Ms Hayes or that the Applicant has simply failed to accurately recall what she reported about her condition and pain levels on the day of Ms Hayes’ assessment. It is not necessary to determine which explanation is most likely. The Tribunal accepts, contrary to the Applicant’s submission, that Ms Hayes accurately recorded what the Applicant said to her and the Tribunal. The Tribunal notes that, in many respects, the information and observations recorded in the report of Ms Hayes are entirely consistent with the Applicant’s oral evidence and her reporting to other allied health specialists. Ms Hayes took notes of the assessment and used them to compile her report. Ms Hayes correctly recorded that the Applicant denied any mental health concerns. It is only now that the Applicant asserts that this information was inaccurate. The Tribunal accepts the reliability of Ms Hayes’ record keeping.

27. The Tribunal prefers, and will give appropriate weight, to the evidence of Ms Hayes where it is inconsistent with evidence given by the Applicant. The Tribunal also accepts the evidence of Ms Black but notes that her evidence is of assistance to the Tribunal as a specialist physiotherapist who treats the Applicant’s pain, rather than an occupational therapist whose speciality is in functional capacity, having regard to that pain. The Tribunal will consider the available evidence as to functional capacity having regard to the domains identified in section 24(1)(c) of the NDIS Act.

    Communication

28. The term “communication” is defined in the Guidelines as meaning how the person speaks, writes or uses sign language and gestures, to express themselves compared to other people their age. Consideration is given to how well the person understands people, and how others understand them. The Applicant was able to give evidence clearly and concisely during the hearing and effectively communicates in a range of settings, including in her volunteer work. As the Applicant is able to understand others and make herself understood, she has not demonstrated reduced functional capacity in relation to the activity of communication.[27]

    [27] HPSC and National Disability Insurance Agency [2021] AATA 727, [50].

1. In her closing submissions, lodged after the hearing, the Applicant stated that she is forgetful and sometimes cannot concentrate, and often feels useless or inadequate as a result. The Tribunal notes that there is no evidence connecting forgetfulness or loss of concentration to any permanent impairment in the Applicant. Further, notwithstanding these lapses, the Applicant is able to effectively communicate with others and therefore broadly capable of attending to the bundle of tasks contemplated within the domain of communication.

2. The Tribunal therefore determines that the evidence does not establish that the Applicant has a substantially reduced functional capacity in the domain of communication.

   Social Interaction

3. The term “social interaction” is described in the Guidelines as including the making and keeping of friends, interacting with the community, behaviour and coping with feelings and emotions in a social context.

4. The respondent contended that the evidence of the Applicant suggests that she does not have a substantially reduced functional capacity in relation to “social interaction”. Specifically:

   (a) The Applicant completes volunteer work at the Neighbourhood Centre.[28] The Applicant tries to volunteer once or twice a week. [29]

   (b)The Applicant speaks with friends on the phone once a week to once a fortnight and uses social media to communicate with friends and family once a week. The Applicant also attends some family gatherings.[30]

   [28] Report, Ms Kristen Lix, Occupational Therapist dated 2 February 2022 (T1L).

   [29] Applicant's Statement of Lived Experience dated 22 June 2022.

   [30] Functional Capacity Assessment Report of Ms Tiffany Hayes dated 19 December 2022.

5. The assessment undertaken by Ms Tiffany Hayes on 25 November 2022 indicated that the Applicant has only a minor reduction in her functional capacity for social interaction. Specifically:

   (a) The Applicant has attended many community groups, including senior citizens, seated Pilates, and laughing yoga.

   (b) The Applicant requires intermittent physical support in the form of transportation assistance (such as from a family member or taxi/Uber), to enable her opportunities for face-to-face social interactions. Such assistance is only required approximately once per week, when unable to drive due to pain.

6. The Tribunal notes the finding of the report of Ms Kristen Lix, occupational therapist, dated 16 March 2023 are inconsistent with the findings of Ms Tiffany Hayes.[31]  The Tribunal’s observations of the Applicant during the hearing are more consistent with those of Ms Hayes and of the evidence as to the Applicant’s extensive level of social engagement.

   [31] Report, Ms Kristen Lix, Occupational Therapist dated 16 March 2023.

7. In her closing submissions the Applicant stated that her pain will prevent her from participating socially or will make her poor company. She described the frequency of this as “often”. However, the Applicant’s evidence was that her volunteer work and other social interactions occur frequently. The whole of the evidence establishes that the Applicant will limit her socialising from time to time due to pain. However, the Tribunal is not satisfied that these limitations give rise to a substantial reduction in her capacity for social interaction. The Applicant has been able to maintain her social connections and regular volunteer work as well as her participation in a range of community groups which she is frequently able to independently access by driving.

8. The Tribunal therefore determines that the evidence does not establish that the Applicant has a substantially reduced functional capacity in the domain of social interaction.

   Learning

9. The term “learning” is described in the Guidelines as including understanding and remembering information, learning new things, practicing and using new skills.

10. The evidence of both Ms Hayes and Ms Lix (Occupational Therapists) indicates that the Applicant does not have any reduction in function in relation to learning. Specifically, Ms Hayes indicates that the Applicant has normal cognition, and that whilst fatigue and pain impact upon her cognition at times, she is still considered to be capable of understanding and remembering information, learning new things, practicing and using new skills and Ms Lix noted that the Applicant demonstrates good problem-solving capacity.

11. In her closing statement the Applicant stated that she now constantly checks the information is correct or that tasks have been correctly completed and that this may affect her concentration on other activities. The Tribunal notes that this evidence is not consistent with the evidence given by the Applicant during the hearing. Further, there is no evidence connecting such self-doubt or loss of concentration to any permanent impairment in the Applicant. Further, notwithstanding these lapses, the Applicant is able to effectively understand and remember information and problem-solve.

12. For these reasons, the Tribunal finds that the Applicant is broadly capable of attending to the bundle of tasks contemplated within the domain of learning. The Tribunal therefore determines that the evidence does not establish that the Applicant has a substantially reduced functional capacity in the domain of learning.

    Mobility

13. The term “mobility” is defined in the Guidelines as meaning how easily the person moves around their home and community, and how the person gets in and out of a bed or chair. Consideration is given to how the person gets out and about, with the use of arms and legs. Accordingly, it is simply not enough to look at a person’s mobility (or lack thereof) in isolation. It is necessary to look at the Applicant’s mobility in conjunction with how it affects her in ordinary activities of daily living.

14. The Tribunal accepts that consideration of movement in the guidelines implies some limitations on the reasonable expectation of how far a person needs to be able to move to undertake ordinary daily activities, say, getting to the bathroom to wash or toilet, getting to the kitchen to prepare food, perhaps getting to the front letterbox to collect mail. Implicit in this concept is that the distances involved will be relatively short. Significantly, the concept does not include being able to move around in the community for the purpose of accessing services, such as shops, the bus stop or the local park – the phrase moving about in the community is not qualified in the same way that move about the home is qualified by to undertake ordinary activities of daily living.

15. The Respondent contends that the evidence of the Applicant indicates that she does not have a substantially reduced functional capacity in relation to "mobility", specifically:[32]

    (a)The Applicant mobilises independently without a walking aid. At times when she has an exacerbation of her back pain she is not able to walk properly and requires a single point stick to mobilise;

    (b)The Applicant walks for half an hour on the treadmill and ten minutes on the exercise bike daily, although she has taken a break recently due to the hot weather; and

    (c)The Applicant is able to drive her car.

    [32] Report, Ms Kristen Lix, Occupational Therapist dated 2 February 2022 (T1L).

16. The Respondent submitted that the evidence of Ms Hayes indicates that the Applicant has a minor reduction in her functional capacity for mobility. Specifically:[33]

    [33] Functional Capacity Assessment Report of Ms Tiffany Hayes dated 19 December 2022.

    (a)Ms Hayes observed the Applicant to demonstrate the physical capacity to mobilise on her own within her home environment during the assessment;

    (b)Ms Hayes observed the Applicant to demonstrate the physical capacity to mobilise outdoors. She mobilised slowly and cautiously;

    (c) The Applicant reported that she averages 3000 to 4000 steps per day. This is inconsistent with her Statement of Lived Experience dated 22 June 2022, which indicates that "I can move a short distance on a good day... a maximum of around 50 meters.";

    (d) Ms Hayes observed the Applicant to stand for a period of two minutes whilst simulating showering. Ms Hayes reports that this differs from the Applicant's report that she is 'unable to stand in one place without rocking as my back aches';

    (e) Ms Hayes observed the Applicant to have good sitting tolerance on a sofa, tolerating 60 minutes of sitting still with very minimal weight shifting observed;

    (f) Ms Hayes observed the Applicant to independently and safely traverse the single internal steps within her home. She was also observed to independently and safely traverse the internal flight of stairs within her home. She performed stair climbing slowly and cautiously, without the presence of handrails but rather bilateral support of the walls. This differs from the evidence of Tash Reisbeck, the Applicant's daughter, dated 21 June 2022 which states "she is no longer able to use the steps within the home most days unaided";[34]

    (g)       Ms Hayes observed the Applicant to be independent in her chair and bed transfers;

    (h) My Hayes indicates that no functional balance difficulties were noted during the assessment;

    (i) Ms Hayes indicates that the Applicant has a lifting capacity to be 7kgs and the carrying capacity to be restricted to a few kilograms; and

    (j)        Ms Hayes observed the Applicant to have sufficient fine motor skills.

    [34] HB, p. 228.

17. The Tribunal accepts Ms Hayes observations as accurate and agrees that the Applicant’s mobility is impacted by her impairments. However, the Applicant is able to drive herself to appointments and engagements, walk and cycle on exercise machines at home (when the weather permits), and sit, stand and carry within acceptable tolerances. She still mobilises up and down her internal stairs frequently and has done so without a handrail for many years. The Applicant ensures that she moves regularly to avoid stiffness and minimise pain and has a variety of effective strategies to minimise the impact of her pain upon her capacity to move. The Tribunal is not satisfied that this amounts to a “substantial “ reduction in the Applicant’s capacity to perform mobility tasks.

18. The Tribunal therefore determines that the evidence does not establish that the Applicant has a substantially reduced functional capacity in the domain of mobility.

    Self-care

19. The term “self-care” is defined in the Guidelines as meaning personal care, hygiene, grooming, eating and drinking, and health. Consideration is given to how the person gets dressed, showers or bathes, eats or goes to the toilet.  The Tribunal stated, in Madelaine and National Disability Insurance Agency,[35] that having a substantially reduced functional capacity to care for oneself “imports the idea that there are significant gaps in one’s capacity to maintain personal health, safety and well-being”.[36]

    [35] Madelaine and National Disability Insurance Agency [2020] AATA 4025.

    [36] Ibid, at [121].

20. The Respondent contends that the Applicant fails to meet the criteria in relation to self-care and submitted that the evidence of Ms Hayes indicates that the Applicant does not have a reduction in functional capacity in relation to self-care. Specifically:[37]

    (a)Ms Hayes indicates that the Applicant is able to independently conduct the task of showering, toileting and eating.

    (b)Ms Hayes indicates that the Applicant is able to conduct the task of dressing. However, she wears loose fitting clothing and Velcro shoes to maintain her independence with dressing. Once a month, her pain is exacerbating to the point where she requires physical assistance from her granddaughter for fastening her bra and threading her t-shirt overhead.

    (c)Ms Hayes indicates that the Applicant is independent in performing all personal hygiene tasks.

    (d)The Applicant's functional capacity for meal preparation could be improved with the use of commonly used items and task modification, including the use of a perching stool, pacing, storing frequently used items at waist level, and or conserving energy by purchasing pre-prepared vegetables or meals.

    [37] Functional Capacity Assessment Report of Ms Tiffany Hayes dated 19 December 2022.

21. In the Applicant’s closing submissions, she acknowledged that she could perform self-care tasks, albeit with the assistance of some assistive tools that are in common use. The Applicant stated that if food was not pre-prepared or easy to access she would go without meals, but also confirmed that members of the household provide her evening meals and that she is able to prepare her own simple breakfasts and lunches.

22. The evidence does establish limitations in the Applicant’s self-care, and some reliance on commonly used aids, but does not establish a reduction in her level of functional capacity to perform the bundle of tasks contemplated within the domain of self-care that could properly be described as substantial. The Tribunal therefore determines that the evidence does not establish that the Applicant has a substantially reduced functional capacity in the domain of self-care.

    Self-Management

23. The term “self-management” is defined in the Guidelines as meaning how the person plans, makes decisions, and looks after themselves. Consideration might be given to day-to-day tasks at home, how they solve problems, or manage their money. Consideration is given to the person’s mental or cognitive ability to manage their life, not their physical ability to do these tasks.  The Respondent contends that the Applicant fails to meet the criteria in relation to self-management.

24. The evidence of the Applicant, and the observations of Ms Hayes, indicate that the Applicant independent in complex decision making relating to her health, lifestyle, accommodation and finances, arranges and attends most of her appointments and social engagements independently.

25. The Tribunal is satisfied that the Applicant is capable of attending to the bundle of tasks contemplated within the domain of self-management and therefore determines that the evidence does not establish that the Applicant has a substantially reduced functional capacity in the domain of self-management.

26. The Tribunal notes that, whilst the Applicant makes certain adjustments to allow for her pain, such as pacing herself, modifying some activities and benefitting from help from family members with whom she lives, there is no evidence available to the Tribunal that would demonstrate that the Applicant is unable to participate in the domains of communication, social interaction, learning, mobility, self-care or self-management without  equipment or technology, or that she ordinarily requires a high level of support from people in order to do so. The Applicant’s physical conditions hamper her day to day activities to some extent, but the Tribunal has found that they do not give rise to any substantially reduced functional capacity. The Applicant’s adjustments are reasonable for a person who manages her pain with the support of the health system. The Applicant does not, therefore, meet the “deeming” provisions in Rule 5.8 of the Access rules

    Section 24(1)(e): Requirement of support for the person’s lifetime

27. The Respondent submitted that the Applicant does not require support under the NDIS for her lifetime, because the Applicant’s impairments do not give rise to a substantially reduced functional capacity to undertake the activities of communication, social interaction, learning, mobility, self-care or self-management.

28. In Mulligan and National Disability Insurance Agency [2015] AATA 974 at [153] the Tribunal identified that the purpose of section 24(1)(e): “…must be to distinguish that subset of people with serious and permanent disabilities who are intended to be the beneficiaries of funded supports”.

29. The Tribunal finds that, having regard to the available evidence, the Tribunal cannot confidently arrive at the conclusion that the Applicant has a substantially reduced function capacity in a way that satisfies subsection 24(1)(c) of the Act and, therefore, the Tribunal is not satisfied that the Applicant requires support under the NDIS for her lifetime as is required in subsection 24(1)(e) of the NDIS Act.

    Section 25: Early Intervention

30. The Tribunal has considered the relevant evidence and determined that she does not meet the early intervention requirements because:

    (a)the available evidence does not demonstrate the provision of early intervention supports that would likely benefit the Applicant by reducing her future needs for support. The evidence does not address the early intervention supports that the Applicant requires and outcomes to be achieved in relation to her functional capacity, as required under subsection 25(1)(b) of the NDIS Act; and

    (b)the evidence provided does not indicate the early intervention supports are likely to benefit the Applicant by achieving one or more of the outcomes listed in s25(1)(c) of the NDIS Act.

31. Rule 2.5(b) of the Access Rules provides the following general outline of these requirements:

    “… a person can access the NDIS through the early intervention requirements without having substantially reduced functional capacity. Instead, the early intervention requirements consider the likely trajectory and impact of a person's impairment over time and the potential benefits of early intervention on the impact of the impairment on the person's functional capacity. The CEO may consider a range of evidence in deciding the potential benefit of early intervention on a person's impairment.”

    [emphasis added]

32. In addition, the Tribunal notes the requirement of paragraph 25(1)(b) of the NDIS Act that:

    “the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person's future needs for supports in relation to disability.”

33. The evidence demonstrates that the Applicant's permanent impairments are longstanding. The Applicant presented to Dr Ikram's rooms in 2009 with complaints of:

    (i) Chronic neck pain;

    (ii) Chronic low back pain;

    (iii) Frontal cephalgia;

    (iv) Right elbow pain; and

    (ii) Bilateral shoulder pain.

34. Having regard to the available evidence, it is not clear how supports rendered now could be considered “early” and it has not been demonstrated that providing supports now could reduce the Applicant’s need for supports in relation to her impairments in the future. Further, the Tribunal is not satisfied, based on the available evidence, that early intervention supports are likely to benefit the Applicant in a functional sense by achieving the stated outcomes in paragraph 25(1)(c)(i) to (iii) of the NDIS Act.

35. The relevant Rules relating to the interpretation of these needs provide that a consideration of the early intervention requirements requires a decision maker to consider:

    (a) The likely trajectory and impact of a person's impairment over time (r 2.5(b) and r 6.9(a) of the Rules); and

    (b) The potential benefits of early intervention on the impact of the impairment on the person's functional capacity and in reducing their future needs for supports (r 6.9(b) of the Rules).

36. The current evidence does not demonstrate the provision of early intervention supports that are likely to benefit the Applicant by reducing her future needs for support. The evidence does not address the early intervention supports that the Applicant requires and outcomes to be achieved in relation to her functional capacity, as required under s25(1)(b); and the evidence provided does not indicate the early intervention supports are likely to benefit the Applicant by achieving one or more of the outcomes listed in s25(1)(c). There is no indication in the evidence provided as to the outcomes that may or may not be experienced from receiving support.

37. In this case, any supports that could assist the trajectory of the Applicant’s impairments are more appropriately funded though other systems of service delivery. The Applicant may pursue access to a range of programs which may more appropriately fund the supports that the Applicant seeks, including:

    (a)       My Aged Care;

    (b)       Medicare, and the Medicare Aids Subsidy Scheme;

    (c)Taxi Subsidy Schemes; and

    (d)       Queensland Community Support Scheme.

    CONCLUSION

1. For the reasons set out above, the Tribunal finds that the Applicant does not meet the access criteria in sections 24 or 25 of the NDIS Act. It is therefore proper to affirm the decision under review.

   DECISION

2. The Tribunal affirms the decision under review pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).

   I certify that the preceding 120 paragraphs are a true copy of the reasons for decision of Senior Member K Buxton.

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

   Associate

   Dated: 29 April 2024

   Hearing:  19 March 2024, by Microsoft Teams

   Date of final submissions:      3 April 2024

   Applicant:  Ms Judith Jeftic

   Solicitor for the Respondent:  Mr Peter Crethary, HWL Ebsworth Lawyers