Kavanagh and National Disability Insurance Agency (NDIS)
[2025] ARTA 1800
•13 May 2025
Kavanagh and National Disability Insurance Agency (NDIS) [2025] ARTA 1800 (13 May 2025)
Applicant/s: Ms Kerry Kavanagh
Respondent: National Disability Insurance Agency
Tribunal Number: 2023/2795
Tribunal:General Member Gooch
Place: Adelaide
Date:13 May 2025
Decision:
The Tribunal affirms the decision under review pursuant to subsection 105(a) of the Administrative Review Act 2024.
Statement made on 13 May 2025 at 3:21pm
General Member Gooch
Catchwords
National Disability Insurance Scheme – reviewable decision of Chief Executive Officer – becoming a participant – access request – whether applicant meets the access criteria – whether applicant meets the disability requirement – whether applicant has impairments which are, or likely to be permanent – whether impairment or impairments result in substantially reduced functional capacity – requirements not satisfied – reviewable decision affirmed
Legislation
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) Schedule 16, item 24.
National Disability Insurance Scheme Act 2013 (Cth), ss 3, 4, 18, 20, 21, 22, 23, 24, 25, 27, 209
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 Items 14, 126 and 138 of Schedule 1
National Disability Insurance Scheme (Becoming a Participant) Rules 2013 (Cth); rr 5.1, 5.4, 5.8, 6.8, 6.9
National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 Schedules 1 and 2
Cases
Drake and Minister for Immigration and Ethnic Affairs (No. 2) 1979 2 ALD 634
Foster and National Disability Insurance Agency [2025] ARTA
Garcia Albiol and National Disability Insurance Agency [2024] AATA 496
Madelaine and National Disability Insurance Agency [2020] AATA 4025
Mulligan and National Disability Insurance Agency [2015] FCA 544
National Disability Insurance Agency v Davis [2022] FCA 1002
National Disability Insurance Agency v Foster (2023) 295 FCR 521
Rooney and National Disability Insurance Agency [2021] AATA 3523
Secondary Materials
Disability Care and Support – Productivity Commission Inquiry Report Overview and Recommendations No. 54 31 July 2011
National Disability Insurance Agency Guidelines, Applying to the NDIS – Pre-Legislation Changes, 14 October 2024
National Disability Insurance Agency Assistive Technology (equipment, technology and devices) 20 December 2023
Reasons for Decision
1.Ms Kerry Kavanagh requested the Tribunal review a decision by the National Disability Insurance Agency (‘the Agency’) to reject her application to join the National Disability Insurance Scheme. (‘the Scheme’).
2.Ms Kavanagh is a 63-year-old woman, living in her own home in Werribee.
3.Ms Kavanagh sought access to the NDIS on the basis of impairments arising from depression, osteoarthritis, lumbar spine injury, cervical spine injury, bilateral Achilles tendinopathies and osteoporosis.[1]
[1] Statement of Facts, Issues and Contentions dated 7 March 2025 (SFIC) – Exhibit 2 at [1]
4.It appears that access applications had been made at an earlier stage, but the decision relevant to this application involved an original decision made on 11 December 2022 which refused Ms Kavanagh’s access request.
5.On 27 February 2023 Ms Kavanagh requested an internal review of this decision.
6.On 30 March 2023 the original refusal was affirmed on internal review.[2]
[2] T1E at page 27 of Exhibit 1
7.On 26 April 2023 Ms Kavanagh applied to the Administrative Appeals Tribunal (‘the AAT’)[3] for review of the Agency’s internal review decision dated 30 March 2023 (‘the decision under review’).
[3] T1 at page 1 of Exhibit 1
8.From 14 October 2024 the AAT became the Administrative Review Tribunal (‘the Tribunal’). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be applications for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
9.A hearing was held over two days on 27 and 28 March 2025 and was conducted by MS Teams video conference.
10.At the hearing Ms Kavanagh did not have legal representation. The Agency was represented by Ms Jenkins, of Counsel, instructed by Sparke Helmore Lawyers.
11.Documents were accepted into evidence as follows:
a. Respondent’s Joint Tender Bundle – Exhibit 1.
b. Respondent’s Statement of Facts, Issues and Contentions – Exhibit 2.
12.For the reasons set out below, the Tribunal affirms the decision under review.
NDIS SCHEME
13.The NDIS scheme was modelled on recommendations made following a 2011 inquiry by the Productivity Commission into disability care and support in Australia.[4]
[4] Disability Care and Support – Productivity Commission Inquiry Report Overview and Recommendations No. 54 31 July 2011
14.In July 2013 the National Disability Insurance Scheme Act 2013 (NDIS Act) came into effect and the Scheme was progressively rolled out across Australia.
15.The objects of the NDIS Act envisage a scheme which (among other things) gave effect to Australia’s obligations under a number of international Conventions, promoted choice and control for participants, supported the independence, social and economic participation of people with disability and provided ‘reasonable and necessary’ supports for participants to assist them with that participation.[5]
[5] Section 3 NDIS Act
16.Section 4 of the NDIS Act set out the ‘general principles’ to be applied in administration of the Act. These principles reflect (among others) the rights of people with a disability to self-direction, choice, participation in social and economic life and to the maintenance of their privacy and dignity.[6]
[6] Section 4 NDIS Act
17.As both an objective and a principle (at paragraph 3(3)(b) and subsection 4(17)), it is noted that regard is to be had to the need to ensure the financial sustainability of the scheme.
18.While avowedly participant focussed the Scheme included criteria that must be met before access would be granted or supports funded.
19.In October 2024 Parliament passed the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 (Amending Act). The Amending Act sought to clarify limits to the scheme, seeking to tighten the way NDIS funding might be utilised.
20.Transitional provisions for the Amending Act provide that amendments for access applications apply only to applications made after 3 October 2024. The NDIS Act and Access Rules in place prior to the Amending Act apply to applications, such as Ms Kavanagh’s, made before this date.[7]
[7] Section 126 of the Amending Act
THE LEGISLATION RELEVANT TO THE APPLICATION
21.The statutory provisions relevant to this review are:
a. the Administrative Review Tribunal Act 2024 (‘the ART Act’);
b. the National Disability Insurance Scheme Act 2013 (‘the NDIS Act’) (as in place prior to 3 October 2024); and
c. the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (the Access Rules) made under Section 209 of the NDIS Act for the purposes of section 24 and 25 of the NDIS Act.
22.The Agency also issues Operational Guidelines to assist staff in the administration of the NDIS Act. These are policy documents without legislative force. The guidelines relevant to this review are the NDIS- Applying to the NDIS Guidelines (‘the Access Guidelines’).
23.The Tribunal is not bound to follow the Access Guidelines and will not do so where they are inconsistent with the NDIS Act.
24.However, in Re Drake and Minister for Immigration and Ethnic Affairs (No. 2)[8] Brennan J held that a Tribunal should take into account relevant government policy where it is not inconsistent with the provisions or objects of the legislation and does not lead to an unjust decision in the circumstances of a particular case. Therefore, to the extent that they are relevant to this review and not inconsistent with the legislation, the Tribunal will have regard to the Access Guidelines.
[8] (1979) 2 ALD 634
ACCESS TO THE SCHEME
25.Part 1 of Chapter 3 of the NDIS Act addresses applications for access to the Scheme. It includes a number of threshold criteria a person must meet in order to become a scheme participant.
26.Once a person makes an access application to the Agency, the NDIS Act provides the CEO (or their delegate) must decide whether the applicant meets the access criteria.[9]
[9] Sections 18 and 20 NDIS Act.
27.Section 21 of the NDIS Act provides that a person meets the access criteria if:
·The person meets the age requirements set out in section 22 (ie that they were aged under 65 years of age at the time of application)[10];
·The person meets the residence requirements set out in section 23 (eg. at the time of consideration, the person resides in Australia and is an Australian citizen)[11]; and
·The person meets the ‘disability requirements’, the ‘early intervention requirements’ or both.[12]
[10] Section 22 NDIS Act
[11] Section 23 NDIS Act
[12] Sections 24 and 25 (respectively) NDIS Act
The Disability Requirements
28. Amendments to access criteria made on 3 October 2024 only apply to applications made after that date. Consequently, the relevant wording of Section 24 is as follows:
(1)A person meets the disability requirements if:
(a)the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable; and
(b)the impairment or impairments are, or are likely to be, permanent; and
(c)the impairment or impairments result in substantially reduced functional capacity to undertake one or more of the following activities:
(i)communication;
(ii)social interaction;
(iii)learning;
(iv)mobility;
(v)self‑care;
(vi)self‑management; and
(d)the impairment or impairments affect the person’s capacity for social or economic participation; and
(e)the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime.
(2)For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the variation.
(3)For the purposes of subsection (1), an impairment or impairments that are episodic or fluctuating may be taken to be permanent, and the person may be taken to be likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the episodic or fluctuating nature of the impairments.
(4) Subsection (3) does not limit subsection (2).
28.The requirements of section 24 of the NDIS Act are cumulative such that all criteria must be met before the person can be said to meet the disability requirements.
The Early Intervention Requirements
29.Section 25 deals with access to the scheme on the basis of the ‘early intervention requirements’ as follows:
(1)A person meets the early intervention requirements if:
(a)the person:
(i)has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent; or
(ii)has one or more identified impairments to which a psychosocial disability is attributable and that 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.
(1A)For the purposes of subparagraph (1)(a)(i) or (ii), an impairment or impairments that are episodic or fluctuating may be taken to be permanent despite the episodic or fluctuating nature of the impairments.
(2)The CEO is taken to be satisfied as mentioned in paragraphs (1)(b) and (c) if one or more of the person’s impairments are prescribed by the National Disability Insurance Scheme Access 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.
30.The Access Rules set out further matters to be considered in determining when an impairment might be permanent and in deciding the significance of any reduction in functional capacity. I will discuss those later.
THE DECISION UNDER REVIEW
31.The decision under review is a decision by the Agency to reject Ms Kavanagh’s application to become a scheme participant.
32.In their Statement of Facts, Issues and Contentions dated 7 March 2025 the Agency conceded that in their view Ms Kavanagh:
· Met the age and residence criteria in sections 21(1)(a) and (b);[13]
· Met the criterion in section 24(1)(a) as she had a disability attributable to physical impairment arising from osteoarthritis, lumbar spine injury, cervical spine injury and bilateral Achilles tendinopathies as required by section 24(1)(a)[14] and had a disability attributable to psychosocial impairment arising from depressive episodes;[15]
· Did not meet the criterion in section 24(1)(a) in relation to osteoporosis as it was not satisfied that condition resulted in an ‘impairment’[16] (described in the Access Guidelines as ‘loss or significant change in at least one part of her body’s functions, structures or how [the person] thinks and learns’).[17]
· Met the requirement for permanency of the relevant physical and psychosocial impairments in that there were no known, available and appropriate evidence-based treatments which would remedy them.[18]
[13] Exhibit 2 at [12]
[14] Exhibit 2 at [13]
[15] Exhibit 2 at [14]
[16] Exhibit 2 at [15]
[17] Access Guidelines
[18] Exhibit 2 at [16]
33.The Agency was not satisfied, however, that Ms Kavanagh’s impairments:
a. met the mandatory criterion in section 24(1)(c) of the NDIS Act as they did not result in a substantially reduced functional capacity in one or more of the nominated activities;[19] or
b. impaired her capacity for social and economic activity (as required by section 24(1)(d));[20] or
c. did not require support from the NDIS for her lifetime (as required by section 24(1)(e))[21] as there were other community supports which could meet her needs.
[19] Exhibit 2 at [18]
[20] Exhibit 2 at [37]
[21] Exhibit 2 at [38] to [40]
34.The Agency was also not satisfied that Ms Kavanagh met the ‘early intervention requirements’ in section 25 of the NDIS Act, largely due to the longstanding and chronic nature of her impairments making it unlikely that supports would:
a. reduce Ms Kavanagh’s need for future supports; or
b. mitigate, alleviate or improve their impact on her function. [22]
[22] Exhibit 2 at [41] to [51] (noting the removal of [50]
THE APPLICANT’S RESPONSE
35.In response Ms Kavanagh advised that in the time she had been waiting for her application to be resolved her impairments had become worse. She could not understand why the Agency maintained she did not meet the criteria. She stated she is in constant pain and that her pain can be severe at times. She has limited range of upper limb movement and cannot raise her arms about her shoulders.
36.It was Ms Kavanagh’s wish that she be given access to the Scheme so that her home cleaning, gardening, chiropractic and physiotherapy costs (including hydrotherapy) are covered and not required to be paid from her limited budget. Hydrotherapy had been recommended but she could not manage the cost. She noted she had a personal aversion to public pools to overcome. She also suggested an electric lift chair would be of assistance.
37.Ms Kavanagh advised that cleaning assistance she previously received from the Council had been stopped and outsourced to another company. The assistance she now received was described as very basic house cleaning for 90 minutes once a fortnight. This is provided by Mecwa services via funding from the HACC for young people scheme.
38.Ms Kavanagh had requested more assistance from the new service but was told she was only entitled to the same service she had been receiving from the Council. Although the new service dusts, it won’t do her laundry and she doesn’t receive a home maintenance or window cleaning service. Ms Kavanagh finds her depression is exacerbated when her house is not cleaned to her standards.
39.Ms Kavanagh currently pays for a gardening service privately. She commenced this service at a time when she was still working and has continued with it.
40.Ms Kavanagh receives weekly physiotherapy treatment, consisting of massage (which is largely funded by her) and chiropractic treatment through a GP health care plan.
THE ISSUES BEFORE THE TRIBUNAL
41.Section 53 of the ART Act provides that the Tribunal may determine the scope of the review in any proceeding by limiting the issues that it considers.
42.Given the Agency’s concessions in this matter I find it is appropriate to limit the scope of the Tribunal’s review in this situation to the issues which remain in dispute.
43.Those issues include:
a. Whether the evidence supports a finding Ms Kavanagh has an impairment attributable to osteoporosis which is permanent as required by subsections 24(1)(a) and (b);
b. Whether any of Ms Kavanagh’s impairments result in a substantial reduction in functional capacity in any of the nominated activities set out in section 24(1)(c);
c. Whether Ms Kavanagh’s impairments affect Ms Kavanagh’s social or economic participation as required by section 24(1)(d);
d. Whether Ms Kavanagh is likely to require support under the NDIS for her lifetime as required by section 24(1)(e); and
e. Whether the early intervention requirements are met as set out in section 25.
Osteoporosis – Does the evidence support a finding of permanent impairment arising from this condition?
44.There is very limited information about this medical condition before the Tribunal.
45.An undated health summary by Dr Fuertes, General Practitioner, records that osteoporosis is a diagnosis that was made on 20 September 2016.[23] No further details are provided by Dr Fuertes as to any impact of this condition on Ms Kavanagh.
[23] T17 of Exhibit 1
46.Ms Kavanagh notes that she receives 6 monthly injections by way of treatment but that the condition is not expected to be remedied. She did not identify any impairment arising from this condition.
47.No information is provided from any other source as to how this condition impacts on Ms Kavanagh’s function.
48.I find that there is insufficient evidence before the Tribunal for me to make any positive finding to clearly characterise the nature of any impairment (if at all) that arises from Ms Kavanagh’s diagnosed osteoporosis.
49.As I am unable to establish the nature of any relevant impairment (if any) I am also unable to comment on the permanency of such impairment.
Do Ms Kavanagh’s physical and psychosocial impairments result in a substantial reduction in functional capacity in any of the six nominated activities set out in section 24(1)(c)?
50.It is the Agency’s position that although Ms Kavanagh undoubtedly has functional difficulty as a result of her physical impairments, that difficulty does not reach the high threshold necessary to be ‘substantial’ for the purposes of the Act.[24]
[24] Exhibit 2 at [22] to [23]
51.Further, they argue there is no evidence Ms Kavanagh’s psychosocial impairments have the requisite impact on her function in any of the identified activities.[25]
[25] Exhibit 2 at [20]
52.The nominated activities are identified as communication, social interaction, learning, mobility, self-care and self-management. Substantially reduced functional capacity in only one of the nominated activities is all that is required to meet the criterion in this section.
53.Although identified in the NDIS Act, there is no definition, either in the Act or the Rules, which clarifies the scope of the identified activities.
54.However, some guidance is provided in the Access Guidelines as follows:
a. 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.
b. 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.
c. Learning – how you learn, understand and remember new things, and practise and use new skills.
d. 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.
e. 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.
f. 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.[26]
[26] NDIS Access Guidelines October 2024
Legal Principles
55.In order to meet the requirements of subsection 24(1)(c) of the NDIS Act, the decision maker (the CEO, a delegate or the Tribunal) must be satisfied the applicant’s relevant impairments result in substantially reduced functional capacity in the nominated activities.
56.The legislative scheme contemplates a relatively high degree of precision by decision-makers in assessing functional capacity. The necessary assessment is said to be ‘avowedly functional and multi-faceted’. but does not involve a comparative or qualitative assessment of the ‘seriousness’ of the relevant impairment. The focus is simply on a practical assessment of what the applicant can and cannot do. [27]
[27] Mulligan and National Disability Insurance Agency [2015] FCA 544 (Mulligan) at [55] to [56]
57.In NDIA and Foster the Court held that it was an error for the Tribunal to equate an impairment, such as an inability to complete the single task of toileting without assistive technology, with an inability to complete the whole activity of self-care. In that matter Mr Foster was unable to urinate without the use of a catheter. The Tribunal held that his inability to urinate without assistive technology meant Mr Foster could not participate in the activity of self-care. The Court disagreed, finding the Tribunal’s task was instead to assess the degree to which the person could participate in the activity as a whole. [28]
[28] [2023] FCAFC 11 (Foster) at [88]
58.In Albiol v NDIA (Albiol)[29] Senior Member Collins held that ‘substantially reduced function’ had a high threshold in the context of the Scheme given the NDIS was not intended to provide customised supports to everyone with a disability. The need to safeguard the financial viability of the scheme underlined the need to consider access carefully.[30]
[29] [2024] AATA 496 at [68] to [69]
[30] Albiol and Section 3(3) and section 4(17) of the NDIS Act
59.Rule 5.8 of the Access Rules sets out the circumstances in which an impairment is deemed to result in substantially reduced functional capacity to undertake relevant activities. These include 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.
60.The terms ‘assistive technology’, ‘equipment’ or ‘commonly used items’ are not defined in the Access Rules or the NDIS Act. The NDIS has lists of assistive technology it may fund[31] which provides some guidance and equipment must be considered in its ordinary meaning. But what of ‘commonly used items’?
[31] NSIA Assistive Technology Guidelines
61.In Rooney and National Disability Insurance Agency (Rooney)[32] Senior Member Cameron formed the view the term must relate to items which were commonly used by persons with the same impairment as the applicant under consideration.
[32] [[2021] AATA 3523
62.In this way, glasses are commonly used items used by persons with a vision impairment, crutches or a walking stick are commonly used items for those with a mobility issue and a back brace may be common to those with back pain.[33]
[33] Rooney [26]
63.Other indicia of ‘commonly used items’ were considered to be:
a. the item was generally accessible;
b. could be used without the need for complex or specialised customisation or installation;
c. was relatively simple to use; and
d. was relatively inexpensive.[34]
[34] Rooney [27]
64.The fact that professional input into the selection of an item was necessary was not a bar to an item being considered ‘commonly used’. For example glasses, specifically named in the Access Rules as a ‘commonly used item’, require professional input and prescription before use.[35]
[35] Rooney [28]
65.These rules are considered to be ‘deeming provisions’. If the criteria set out in these Rules are met with respect to the performance of each of the activities, the disability requirements in section 24(1)(c) of the Act are deemed to be satisfied.[36]
[36] See Mulligan v National Disability Insurance Agency[2015] FCA 544 (Mulligan) at [67]; Rooney v National Disability Insurance Agency [2021] AATA 3523 at [17].
66.The Tribunal’s task here is therefore two-fold:
a. Firstly the Tribunal must consider whether the applicant’s circumstances are captured by the deeming provisions in the Access Rules; and
b. Secondly, if the applicant’s circumstances are not captured by the deeming provisions the Tribunal must consider they any event have a substantially reduced functional capacity in respect of the section 24(1)(c) activities. [37]
[37] [2024] AATA 496 at [29]; Mulligan and NDIA (Mulligan) at [77]
Psychosocial impairment
67.Regarding her psychosocial impairment, Ms Kavanagh acknowledged that while she still struggles with the impact of her depression, she has developed strategies to manage this. These strategies have been so successful in managing fluctuations in her condition that Ms Kavanagh has managed to avoid hospitalisation since 2004. Although Ms Kavanagh says she has difficulty with decision making when she is feeling low, this is not a constant incapacity.
68.A letter from Dr Mohr, Consultant Psychiatrist, dated 4 December 2023, noted that Ms Kavanagh’s major depression had been relatively stable for the past 17 years and confirmed there had been no further hospitalisations since 2004. Dr Mohr acknowledged fluctuations in Ms Kavanagh’s condition continued, but noted that when exacerbated, further follow-up appointments with Dr Mohr were effective in addressing these.
69.Ms Kavanagh’s evidence was that the strategies she had developed with Dr Mohr to manage exacerbations in her condition were effective. Ms Kavanagh had also recently acquired a puppy and which she found had been helpful in stabilising her mood.
70.It was Ms Kavanagh’s evidence that her psychosocial conditions did not greatly impact on her function in any of the six activities.
71.She specifically stated that she did not consider she was impaired in her capacity to undertake the activities of communication, social interaction, learning or self-management. Instead, she viewed her primary difficulties lay in the areas of mobility and self-care and arose solely from her physical impairments.
72.On the basis of this evidence I am satisfied and find that Ms Kavanagh’s psychosocial impairments have not resulted in substantially reduced function in any of the nominated activities.
Physical Impairments
73.It was Ms Kavanagh’s evidence at hearing, that she was not impaired in her ability to communicate, socially interact, learn or self-manage.
74.At hearing the Tribunal observed that Ms Kavanagh was able to express herself clearly and appropriately, discussed longstanding friendships and family relationships which she was able to and continued to maintain, demonstrated an ability to understand new information (including about the hearing process) and described the manner in which she managed her own problem solving, arranging of services, finances and appointments independently.
75.I am satisfied that Ms Kavanagh’s impairments have not resulted in a substantially reduced functional capacity in the activities of communication, social interaction, learning or self-management.
76.Ms Kavanagh contends that as a result of her physical impairments she does have a substantially reduced functional capacity in the activities of mobility and self-care.
Mobility
77.The Agency primarily relied on the evidence of Mr Mate, Occupational Therapist in relation to this activity.
78.Mr Mate conducted a functional capacity assessment of Ms Kavanagh in her own home on 3 August 2023. He produced a report dated 31 August 2023 and attended at hearing to give evidence under affirmation.[38]
[38] R2 of Exhibit 1
79.Given the time that has passed since his assessment, further evidence from Ms Kavanagh and her treating physiotherapist has been relied on by the Tribunal.
80.Mr Mate’s assessment in relation to the activity of mobility notes the following:[39]
a. Ms Kavanagh was observed being able to independently access all areas of her home, including walking independently to her mail box;
b. she was observed to safely complete chair, bed, toilet, shower and car transfers without the assistance of another person. Her toilet transfers involved the use of an over-toilet frame, her chair transfers utilised the arm rests of said chair and her shower transfer involved the use of a shower chair;
c. Ms Kavanagh was observed to be independent with driving and car transfers. She has a disability parking permit and owns a Toyota Rav-4. Lower sedan cars create some difficulty in transferring;
d. Ms Kavanagh was reported as being able to walk up to 100m in the community before needing to rest. She utilised a forearm crutch as support in the community. Mr Mate observed Ms Kavanagh needing to sit down to rest after approximately 5 minutes of walking around her home. He stated she was able to resume after a short rest. In Mr Mate’s opinion Ms Kavanagh’s walking tolerance was sufficient to access essential community services;
e. in summary Mr Mate was confident Ms Kavanagh was independent in the activity of mobility and that aside from the use of easily accessible aids she needed no further assistance.
[39] Exhibit 1 at page 242 to 243.
81.In her oral evidence to the Tribunal Ms Kavanagh largely agreed with Mr Mate’s observations about her capacity, although she was of the view her mobility limit for uninterrupted walking was about 50m, not 100m.
82.Ms Kavanagh confirmed that she is able to walk without the use of an aid in her own home. She does have an elbow crutch for use when she is out in the community but usually only uses this if she is having a ‘bad day’.[40]
[40] Oral evidence.
83.Although Mr Mate reported Ms Kavanagh can walk up to 100m before rest,[41] both Ms Kavanagh and Ms Robertson (her physiotherapist)[42] say 50m is the maximum she is able to cover before needing to rest. It is not clear from his evidence that Mr Mate had observed Ms Kavanagh cover the asserted 100m distance. Ms Robertson, however, has a longstanding relationship with Ms Kavanagh as a treating allied health professional and has cause to regularly assess Ms Kavanagh’s capacity.[43] I prefer the evidence of Ms Robertson on this point.
[41] Exhibit 1 at 243
[42] Ms Kavanagh’s oral evidence and A3 of Exhibit 1 at p 215
[43] A3
84.Mr Mate observed Ms Kavanagh being able to complete transfers in her own home, including:
a. From a chair using the arms of the chair;
b. From her bed;
c. From the toilet with the use of an over-toilet chair;
d. From a shower chair using the arms on the chair; and
e. From her car using the steering wheel and door frame to assist.[44]
[44] Exhibit 1 at p242
85.This evidence was not contradicted by Ms Kavanagh.
86.Ms Kavanagh advised the Tribunal she was independent in driving, and that driving was her ‘happy place’. She gave evidence to the Tribunal that she was able to drive for a couple of hours at a time without difficulty. This information is consistent with that reported by Mr Mate.[45]
[45] Oral evidence; Exhibit 1 at p242.
Application of the deeming provisions
87.I have considered the assistive aids Ms Kavanagh uses in mobilising and transferring (elbow crutch, over-toilet seat and shower chair) and am satisfied that these would be considered ‘commonly used items’ for the purpose of Rule 5.8(a).
88.Ms Kavanagh does not require the assistance of other people, either physically or via prompting, supervision or guidance to complete mobility tasks.
89.I am satisfied that Ms Kavanagh’s circumstances do not fit within the deeming provisions of Rule 5.8
Is there substantially reduced functional capacity to undertake mobility outside the deeming provisions?
90.Ms Kavanagh advised the Tribunal and Mr Mate that she has ‘bad days’ about once every fortnight on average. Although these may be more frequent on occasion, on balance she felt once a fortnight was a reasonable reflection of her experience.
91.On a ‘bad day’ Ms Kavanagh will spend most of her day in her recliner chair and will avoid unnecessary activity. She requires pain medication once every four hours and pain is experienced as global in nature. She is still able to mobilise within her home. [46]
[46] Oral evidence and R2 of Exhibit 1 at p231
92.On a ‘good day’ Ms Kavanagh is able to be more active and is more likely to visit friends for coffee or to complete light chores[47].
[47] Oral evidence; R2 at 5.1 of Exhibit 1
93.On balance the Tribunal will consider an applicant’s capacity taking into account a balance of their function over the good and bad days. Where the bad days comprise a significant minority of an applicant’s days, the emphasis will be instead, on what the applicant can do on a ‘typical’ day. [48]
[48] Madelaine and National Disability Insurance Agency [2020] AATA 4025 (Madelaine) at [76]
94.This reflects the scheme of the NDIS Act and is reflected in the Access Guidelines at 8.3.1 which states:
When considering whether a fluctuating or episodic impairment results in substantially reduced functional capacity to undertake relevant activities, the NDIA will consider the impact on the person’s ability to function in the periods between acute episodes.
95.In Madelaine, Deputy President Humphries expressed the view that the threshold requirement to achieve functional capacity in relation to mobility was relatively modest. He observed a person ‘has functional capacity if they can move about their home, get in and out of a bed or chair, and mobilise in the community’. A distance of 50m was seen as sufficient in that circumstance.[49]
[49] Madelaine at [104] and [106]
96.I have had regard to Mr Mate’s observations at assessment, the report of Ms Robertson and the oral evidence given by Ms Kavanagh at hearing (as set out above). I am satisfied that notwithstanding some undeniable difficulties and limitations with her mobility, on balance Ms Kavanagh remains largely independent in mobility.
97.For these reasons (while not disputing Ms Kavanagh does have difficulty with mobility) I find that Ms Kavanagh’s impairments do not result in substantially reduced functional capacity to undertake the activity of mobility to the degree contemplated by the NDIS Act.
Self-Care
98.The Access Guidelines consider ‘self-care’ to encompass the core tasks of ‘personal care, hygiene, grooming, eating and drinking, and health. We consider how you get dressed, shower or bathe, eat or go to the toilet’.
99.In considering the activity of self-care Mr Mate also considered secondary tasks related to maintaining oneself such as cleaning and maintaining a home, doing laundry, shopping and meal preparation.
100.Having regard to the definitions in the Access Guidelines it is arguable these secondary tasks sit somewhat uncomfortably between the self-care and self-management activities.
101.The Access Guidelines consider the activity of self-management to encompass:
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.
102.Considering the ‘core’ self-care tasks, Mr Mate observed Ms Kavanagh had made reasonable adjustments to the manner in which she completed these so as to retain her independence in this activity. He observed Ms Kavanagh was able to:
a. use an over-toilet frame and a shower chair to complete toileting and showering independently;
b. dress herself independently albeit this activity took longer when needing to put on shoes and socks. (Mr Mate suggested the use of a long-handled shoehorn would assist with this task);
c. eat and drink independently.
103.At hearing Ms Kavanagh largely agreed with Mr Mate’s assessment of her capacity with these tasks.
104.Considering those other ‘secondary’ day-to-day tasks, Mr Mate identified Ms Kavanagh would benefit from assistance with heavier tasks such as cleaning floors, cleaning the bathroom, vacuuming, gardening and changing sheets. He noted she managed meal preparation independently by sitting on a wheeled chair while cooking and managed shopping by utilising a delivery to boot service and carrying light loads into her house.[50]
[50] R2 of Exhibit 1 page 244
105.Again, Ms Kavanagh largely agreed with this assessment. Her evidence to the Tribunal was that:
a. she had paid a gardener to attend to her garden maintenance for many years, commencing while she was still at work, and had continued this service once she no longer worked. She was not able to undertake these tasks herself;
b. she noted that while she was able to undertake the activity of vacuuming, the effort to do so would result in an exacerbation of her pain such that she would need to rest in her recliner the next day. She continues to be able to manage light cleaning activities independently;
c. she advised that while she had only been undertaking light laundry tasks at the time of Mr Mate’s assessment, she was now doing all her laundry due to a change in her cleaning provider. She managed this by utilising smaller loads and using her dryer;
d. she confirmed she had arranged a ‘delivery to boot’ service at her local supermarket in order to manage her shopping requirements independently. This is a service offered to the community at large, not a disability specific service;
e. she had also enquired into and organised the current cleaning service she received from Mecwa who undertake some of the heavier cleaning activities she finds difficult. This service is subsidised via HACC funding. Ms Kavanagh would like it to be more thorough, for example the service does not move furniture while vacuuming.
Application of the deeming provisions
106.I have considered the assistive devices Ms Kavanagh uses in completing her self-care and day-to-day tasks, including the over toilet frame, shower chair, a wheeled office chair and the recommended long handled shoehorn. I am satisfied that these are all commonly used items for the purposes of the NDIS Act. As such the deeming provision in Rule 5.8(a) does not apply.
107.In relation to Rule 5.8(b) I find that Ms Kavanagh does not require assistance in the form of guidance, supervision and prompting to undertake the tasks of self-care or day-to-day tasks. She does, however, benefit from physical assistance with heavier tasks which would be difficult for her to complete. To date she has been able to arrange such services herself in the community, with her major concern being the extent and cost of the service.
108.On balance, considering the totality of the activity of self-care, I find that the deeming provisions do not apply in this circumstance.
Is there substantially reduced functional capacity in self-care outside the deeming provisions?
109.I have taken into account Mr Mate’s assessment and Ms Kavanagh’s self-report and am satisfied that Ms Kavanagh is able to manage the tasks involved in the self-care activity independently, albeit with modification and some assistance. She has demonstrated a practical and solutions based approach to maintaining her independence and has investigated and utilised available community services.
110.On the evidence before me I find Ms Kavanagh does not have a substantially reduced functional capacity to undertake self-care in the manner contemplated by the NDIS Act.
What does this mean in relation to the disability requirements?
111.It is mandatory that all the disability requirements must be met before access to the scheme may be granted. The Tribunal’s finding that Ms Kavanagh does not meet the ‘substantially reduced functional capacity’ criterion set out in paragraph 24(1)(c) of the Act must therefore lead to a finding that she does not meet the disability requirements.
112.As such access cannot be granted on the basis of the disability requirements.
113.As I have reached this conclusion I do not need to consider the remaining disability requirements set out in paragraphs 24(1)(d) and (e) of the NDIS Act.
Considering the requirement in paragraph 24(1)(e) of the Act
114.For completeness, however, I will make the following comments about paragraph 24(1)(e) of the NDIS Act. This part requires consideration of whether an applicant is likely to require support under the National Disability Insurance Scheme for their lifetime.
115.Derrington J in Foster considered the focus of this provision is on whether a prospective participant required support under the NDIS, or whether their support needs could most appropriately be met by other systems.
116.Derrington J held that it was a ‘legislative requirement’ for the Tribunal to consider whether, in a particular case, the support required must be provided by the NDIS or was available elsewhere.[51] It is not the intention of the NDIS that it take the place of other community or mainstream services.
[51] NDIA v Foster [2023] FCAFC 11 at [93]
117.It was Mr Mate’s assessment that Ms Kavanagh would benefit from the following services:
a. Commercial assistance for heavy house cleaning tasks, currently privately funded with a council subsidy;
b. Commercial assistance with lawn mowing/gardening tasks, currently privately funded by Ms Kavanagh;
c. The use of assistive technology to support the donning and doffing of shoes.
118.These are services that Ms Kavanagh is currently able to access either independently or through community funded services.
119.At hearing Ms Kavanagh advised the Tribunal that the services she hoped to access from the NDIS included:
a. Assistance with maintenance tasks at home, including window washing and gutter cleaning. Currently she pays a gardener on a monthly basis to help with garden maintenance and her brother used to help with some maintenance tasks. He is unable to now as he is unwell. Previously the council would provide a yearly window washing service, but the new service does not. Ms Kavanagh has asked for more services but has so far been declined. She believes there is a waiting list for some services;
b. More extensive and more frequent cleaning services as she is not satisfied with the quality of the services;
c. Funding to cover physiotherapy and chiropractic services and perhaps hydrotherapy services. Currently she accesses these through maintstream health services, although she states hydrotherapy is too expensive and she struggles with an aversion to public pools. I note that Ms Robertson, Ms Kavanagh’s treating physiotherapist, does not make a recommendation for hydrotherapy treatment in her report dated 4 October 2024.[52]
d. A new electric lifting recliner chair to help her in rising from her chair on bad days. It may be that this would not fit within the definition of an NDIS support under the recent amendments to the Act.[53]
[52] A3 of Exhibit 1
[53] Item 1 of Schedule 2 to the National Disability Insurance Scheme (Getting the NDIS Back of Track No. 1) (NDIS Supports) Transitional Rules 2024
120.Having regard to the recommendations from Mr Mate I am satisfied that appropriate support services in this circumstance are already being accessed through appropriate community and mainstream services, being the HACC scheme and health services generally.
121.I am therefore of the view that the requirement of paragraph 24(1)(e) would not have been met in this circumstance either.
Section 25 - Are the early intervention requirements met?
122.Section 25 provides that the early intervention requirements will be met if provision of NDIS services will:
a. reduce the need for future services; and
b. mitigate or alleviate the impact of the impairment on function; or
c. prevent further deterioration of an impairment; or
d. improve functional capacity; or
e. strengthen the sustainability of informal supports.
123.Ms Kavanagh’s conditions are long-standing, permanent and are likely to continue to deteriorate over time. While this circumstance, on its own, will not put her outside the early intervention requirements, the evidence before the Tribunal does not suggest any further treatment or therapy options which would be likely to mitigate or alleviate the impact of her physical impairments on her functional capacity.
124.There is no evidence before the Tribunal to support a finding that NDIS supports would be likely to prevent further deterioration or reduce her future need for supports in relation to her disability.
125.On this basis I find the evidence does not support a finding the early intervention requirements are met.
CONCLUSION
126.The Tribunal acknowledges Ms Kavanagh suffers from conditions which impair her function and impact her enjoyment of life. Despite this Ms Kavanagh has taken a practical and solution-based approach to her impairments so that she may maintain her independence for as long as possible.
127.The Tribunal acknowledges these efforts but in applying the provisions of the NDIS Act finds the evidence does not support a finding that either the disability or early intervention requirements are met to allow access to the NDIS.
128.As I have reached the same conclusion as the decision under review I will affirm that decision.
DECISION
The Tribunal affirms the decision under review pursuant to subsection 105(a) of the Administrative Review Act 2024.
Applicant representative: Self
Respondent Counsel: Ms Jenkins
Respondent Solicitor: Sparke Helmore
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