Kisela and National Disability Insurance Agency - [2023] AATA 4014

Kisela and National Disability Insurance Agency [2023] AATA 4014 (30 November 2023)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2022/2154
Re:Sarah Kisela
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Member P Smith
Date:30 November 2023
Place:Sydney

The Tribunal affirms the decision under review pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).
.........................[SGD]...............................................
Member P Smith
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – Application to review a decision made by the National Disability Insurance Agency under subsection 100(6)(a) of the National Disability Insurance Scheme Act 2013 (Cth) to confirm a decision made by a delegate of the Chief Executive Officer of the NDIA under subsection 20(1)(a) of the NDIS Act that a person does not meet the access criteria as set out in section 21 of the NDIS Act to become a participant in the National Disability Insurance Scheme (NDIS) - whether the Applicant is a person who meets the disability requirements as set out in section 24 of the NDIS Act or alternatively whether the Applicant is a person who meets the early intervention requirements as set out in section 25 of the NDIS Act – whether the Applicant’s physical impairments result in substantially reduced functional capacity to undertake one or more of the activities prescribed in subsection 24(1)(c) of the NDIS Act – commonly used items – whether rule 5.8(a) of the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 applies - whether the Applicant is likely to require the support under the NDIS for her lifetime for the purpose of subsection 24(1)(e) of the NDIS Act – whether the provision of early intervention supports for the Applicant is likely to benefit her by reducing the Applicant’s future needs for supports in relation to her disability for the purpose of subsections 25(1)(b) and (c) of the NDIS Act – whether early intervention supports for the Applicant is not most appropriately funded or provided through the NDIS for the purpose of subsection 25(3) of the NDIS Act - decision under review affirmed
LEGISLATION
National Disability Insurance Scheme Act 2013 (Cth), ss.9, 18, 19, 20, 21, 22, 23, 24, 25, 100(6)(a), 209(1).
Administrative Appeals Tribunal Act 1975 (Cth), ss.37, 43(1)(a).
CASES
Mulligan v National Disability Insurance Agency (2015) 233 FCR 201.
Madelaine v National Disability Insurance Agency [2020] AATA 4025.
Williams and National Disability Insurance Agency [2021] AATA 3383.
Rooney v National Disability Insurance Agency [2021] AATA 3523.
Ditchfield v National Disability Insurance Agency [2019] AATA 2121.
Nika and National Disability Insurance Agency [2021] AATA 2127.
Foster and National Disability Insurance Agency [2023] FCAFC 11.
SECONDARY MATERIALS
National Disability Insurance Scheme (Becoming a Participant) Rules 2016, Parts 2.2, 2.4, 5, 5.8, 6
National Disability Insurance Scheme – Operational Guidelines – Access, 8.3
REASONS FOR DECISION
Member P Smith
30 November 2023

This is an application to review[1] a decision made by a reviewer of the National Disability Insurance Agency (the Respondent) dated 1 March 2022,[2] to confirm a decision made by a delegate of the Chief Executive Officer (CEO) of the Respondent on 26 November 2021[3] under subsection 20(1)(a) of the National Disability Insurance Scheme Act 2013 (Cth), (the NDIS Act) that a person does not meet the access criteria as set out in section 21 of the NDIS Act to become a participant in the National Disability Insurance Scheme (the NDIS).
[1] For a copy of the application for review the Applicant made to the Tribunal, see T1 of the Tribunal documents (T-documents) the Respondent lodged with the Tribunal via email on 4 April 2022 in accordance with their obligations under section 37 of the Administrative Appeals Tribunal Act 1975 (Cth).
[2] See T1A and the further copy at T2 of the T-documents.
[3] See T10 of the T-documents.
On 25 October 2021, with the assistance of a Disability Advocate, namely, Sarah Manley (Ms Manley), the Applicant, Sarah Kisela, made an access request[4] to the Agency, in the form approved by the CEO,[5] to become a participant in the NDIS. On the access request form, the Applicant specified that she sought to become a participant in the NDIS on the basis of having a physical impairment resulting from intensive treatments she received as a young child to treat her Stage four Rhabdomyosarcoma diagnosis.[6]
[4] Section 9 of the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act) states that an access request has the meaning given by section 18 of the NDIS Act.
[5] See subsection 19(1)(a) of the National Disability Insurance Scheme Act 2013 (Cth).
[6] See page 10 of the access request that the Applicant made to the National Disability Insurance Agency on 25 October 2021 to become a participant in the National Disability Insurance Scheme. A copy of the Applicant’s access request was provided to the Tribunal by Emma Rogerson, solicitor, HWL Hebsworth Lawyers via email on 14 November 2023. On 13 November 2023, the Tribunal requested a copy of the access request form and any information that accompanied the request from the Respondent. This is because it was not included with the T-documents the Respondent lodged with the Tribunal on 4 April 2022.
The Applicant’s access request was considered and decided by a delegate of the CEO of the Respondent on 26 November 2021. For the purpose of subsection 21(1)(a) of the NDIS Act, the delegate was satisfied on the evidence that the Applicant is a person who meets the age requirements in section 22 of the NDIS Act.[7] For the purpose of subsection 21(1)(b) of the NDIS Act, the delegate was satisfied on the evidence that at the time of considering the request, the Applicant is a person who meets the residence requirements in section 23 of the NDIS Act.[8]
[7] See the decision made by a delegate of the Chief Executive Officer of the National Disability Insurance Agency under subsection 20(1)(a) of the National Disability Insurance Scheme Act 2013 (Cth) on 26 November 2021 at page 34 of T6 of the T-documents.
[8] Ibid.
For the purpose of subsection 21(1)(c)(i) of the NDIS Act, the delegate was not satisfied on the evidence that at the time of considering the request, the Applicant is a person who meets the disability requirements in section 24 of the NDIS Act.[9] For the purpose of subsection 21(1)(c)(ii) of the NDIS Act, the delegate was not satisfied on the evidence that at the time of considering the request, the Applicant is a person who meets the early intervention requirements in section 25 of the NDIS Act.[10] Accordingly, on 26 November 2021, the delegate, under subsection 20(1)(a) of the NDIS Act, decided that the Applicant is not a person who meets the access criteria as set out in section 21 of the NDIS Act to become a participant in the NDIS.
[9] Ibid.
[10] Ibid at page 35.
On 30 November 2021, after receiving written notice of the decision that the Respondent made on 26 November 2021, the Applicant, again with the assistance of Ms Marley, sent an application for a review of a reviewable decision to the Respondent requesting that they conduct an internal review[11] of the decision that the delegate made on 26 November 2021 under subsection 20(1)(a) of the NDIS Act.[12]
[11] See T8 of the T-documents for a copy of the application for a review of a reviewable decision that was made by the Applicant to the National Disability Insurance Scheme Agency on 30 November 2021.
[12] See the interaction note at T7 of the T-documents recording the date on which a written request was made to the National Disability Insurance Agency (the Respondent) to conduct an internal review of the decision made by a delegate of the Chief Executive Officer of the Respondent under subsection 20(1)(a) of the National Disability Insurance Scheme Act 2013 (Cth) on 26 November 2021.
The Applicant’s access request was reconsidered and redecided by a reviewer of the Respondent on internal review on 1 March 2022.[13] Following the completion of the internal review, the reviewer decided, under subsection 100(6)(a) of the NDIS Act, to confirm[14] the decision that a delegate of the CEO of the Respondent made under subsection 20(1)(a) of the NDIS Act on 26 November 2021.
[13] For a copy of the decision made by a reviewer of the National Disability Insurance Agency on 1 March 2022 under subsection 100(6)(a) of the National Disability Insurance Scheme Act 2013 (Cth), see T1A and the duplicate which appears at T2 of the T-documents.
[14] See the decision made by a reviewer of the National Disability Insurance Agency under subsection 100(6)(a) of the National Disability Insurance Scheme Act 2013 (Cth) on 26 November 2021 at page 6 of T1A and at page 16 of T2 of the T-documents.
On 16 March 2022, again with the assistance of Ms Marley, the Applicant made an application to the Tribunal[15] seeking an external review of the decision made by a reviewer of the Respondent on 1 March 2022 to confirm a decision made by a delegate of the CEO of the Respondent under subsection 20(1)(a) of the NDIS Act that the Applicant is not a person who meets the access criteria as set out in section 21 of the NDIS Act to become a participant in the NDIS.
[15] See T1 of the T-documents.
THE ISSUE ON THE REVIEW
The issue for determination on the review in this matter is whether the Applicant is a person who meets the access criteria as set out in section 21 of the NDIS Act to become a participant in the NDIS. To assist it to determine the issue on the review, a hearing of the application was held by the Tribunal via video on 16 May 2023.
The Applicant attended the hearing via video with her Disability Advocate, Caitlin Reid (Ms Reid). Matthew Pleming (Mr Pleming) attended the hearing via video as the solicitor for the Respondent. He was instructed at the hearing by Shannon Atkins, a staff member of the Agency. She also attended the hearing via video.
The Tribunal received oral evidence at the hearing from the Applicant. Oral evidence was also received at the hearing from Glen Dwyer (Mr Dwyer). Mr Dwyer is an Occupational Therapist.[16] He was retained by the Respondent in the course of the proceeding to conduct an assessment of the Applicant in her home on 15 September 2022 to determine whether or not the Applicant’s impairments result in a substantially reduced functional capacity to undertake relevant daily activities. He prepared his Functional Capacity Assessment Report on 20 October 2022[17] following his assessment. The observations, findings and recommendations regarding the Applicant’s functional capacity are set out later in this decision.
[16] See page 33 of the Functional Capacity Assessment Report of Glen Dwyer, Occupational Therapist, dated 20 October 2022 at R1 of the Tender Bundle.
[17] See R1 of the Tender Bundle.
THE STATUTORY SCHEME
As the Applicant is seeking to become a participant in the NDIS to access reasonable and necessary supports, she must meet the access criteria as set out in section 21 of the NDIS Act. Section 21 of the NDIS Act provides as follows:
(1)A person meets the access criteria if:
(a)the CEO is satisfied that the person meets the age requirements (see section 22); and
(b)the CEO is satisfied that, at the time of considering the request, the person meets the residence requirements (see section 23); and
(c)the CEO is satisfied that, at the time of considering the request:
(i) the person meets the disability requirements (see section 24); or
(ii) the person meets the early intervention requirements (see section 25).
The Respondent accepts that the Applicant is a person who meets the age requirements in section 22 of the NDIS Act and the residence requirements in section 23 of the NDIS Act. However, the Respondent does not accept that the Applicant is a person who meets the disability requirements in section 24 of the NDIS Act, or alternatively, the early intervention requirements, in section 25 of the NDIS Act to become a participant in the NDIS.
Section 24 of the NDIS Act provides 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.
If the Tribunal finds that the Applicant meets the disability requirements as set out in section 24 of the NDIS Act, the Applicant will meet the access criteria as set out in section 21 of the NDIS Act and will become a participant in the NDIS to access reasonable and necessary supports.
If the Tribunal finds that the Applicant does not meet the disability requirements as set out in section 24 of the NDIS Act, the Applicant will nevertheless meet the access criteria as set out in section 21 of the NDIS Act to become a participant in the NDIS if she meets the early intervention requirements as set out in section 25 of the NDIS Act.
Section 25 of the NDIS Act provides as follows:
(1)A person meets the early intervention requirements if:
(a)the person:
(i)     has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent; or
(ii)    has one or more identified impairments that are attributable to a psychiatric condition and are, or are likely to be, permanent; or
(iii)   is a child who has 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 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.
If the Tribunal finds that the Applicant meets the early intervention requirements as set out in section 25 of the NDIS Act, the Applicant will meet the access criteria as set out in section 21 of the NDIS Act and will be eligible to become a participant in the NDIS to access reasonable and necessary supports.
If the Tribunal finds that the Applicant does not meet the early intervention requirements as set out in section 25 of the NDIS Act, the Applicant will not meet the access criteria as set out in section 21 of the NDIS Act and will not be eligible to become a participant in the NDIS to access reasonable and necessary supports.
If the Tribunal finds that the Applicant does not meet the disability requirements as set out in section 24 of the NDIS Act or the early intervention requirements as set out in section 25 of the NDIS Act, the Tribunal must affirm the decision under review that the Applicant is not a person who meets the access criteria as set out in section 21 of the NDIS Act to become a participant in the NDIS.
The NDIS Act is supplemented by legislative instruments called the National Disability Insurance Scheme Rules (the NDIS Rules). The Minister may, by legislative instrument, make NDIS Rules[18] prescribing matters required or permitted by the NDIS Act to be prescribed by the NDIS Rules,[19] or necessary or convenient to be prescribed in order to carry out or give effect to the NDIS Act.[20]
[18] See subsection 209(1) of the National Disability Insurance Scheme Act 2013 (Cth).
[19] See subsection 209(1)(a) of the National Disability Insurance Scheme Act 2013 (Cth).
[20] See subsection 209(1)(b) of the National Disability Insurance Scheme Act 2013 (Cth).
Relevantly, the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (the Becoming a Participant Rules) were made under subsection 209(1) of the NDIS Act to assist the CEO to determine who becomes a participant in the NDIS.[21] The Becoming a Participant Rules contain a number of key provisions including when a person meets the access criteria as set out in section 21 of the NDIS Act to become a participant in the NDIS,[22] and when a person meets either the disability requirements as set out in section 24 of the NDIS Act,[23] or the early intervention requirements as set out in section 25 of the NDIS Act.[24]
[21] See Part 2.2 of the National Disability Insurance Scheme (Becoming a Participant) Rules 2016.
[22] See Part 2.4 of the National Disability Insurance Scheme (Becoming a Participant) Rules 2016.
[23] See Part 5 of the National Disability Insurance Scheme (Becoming a Participant) Rules 2016.
[24] See Part 6 of the National Disability Insurance Scheme (Becoming a Participant) Rules 2016.
The NDIS Act is also supplemented by National Disability Insurance Scheme Operational Guidelines (the Operational Guidelines). The Operational Guidelines have been established by the Agency to provide guidance to the CEO when making decisions under the NDIS Act.
Relevantly, the Agency has established the National Disability Insurance Scheme Operational Guidelines – Access (the Access Guidelines).[25] The Access Guidelines provide guidance to the CEO when deciding and considering whether or not a person who makes an access request to the Agency to become a participant in the NDIS meets the access criteria as set out in section 21 of the NDIS Act.
[25] See T12 of the T-documents.
THE APPLICANT’S EVIDENCE

In June 1989, then aged six, the Applicant was diagnosed with Stage four Rhabdomyosarcoma in the gluteal region.[26] Shortly after receiving this diagnosis, the Applicant began intensive treatments, namely surgery, chemotherapy and radiotherapy and a bone marrow transplant.[27] These treatments commenced in June 1989 and ceased in December 1989[28]. As a result of these treatments, a number of other medical conditions affecting the Applicant developed.[29] Furthermore, these treatments, together with the Applicant’s Stage Four Rhabdomyosarcoma, also resulted in the Applicant developing a permanent physical impairments, namely peripheral vascular supply, and vascular necrosis.[30]
[26] See page 26 of the report prepared by Dr Melissa Gabriel on 15 May 2018 at T3 of the T-documents.
[27] Ibid.
[28] Ibid.
[29] For a list of the Applicant’s conditions that developed as a result of the treatments she received as a young child to treat her Stage four Rhabdomyosarcoma, see in particular the report prepared by Dr Genevieve Brady, Specialist in Rehabilitation Medicine on 3 June 2022 at item 4 of A1 of the Tender Bundle and page 27 of the report prepared by Dr Melissa Gabriel on 15 May 2018 at T3 of the T-documents.
[30] See the letter prepared by Dr Genevieve Brady, Specialist in Rehabilitation Medicine, dated 3 June 2022 at item 4 of A1 of the Tender Bundle.
The Applicant (now aged 40) lives alone in a single storey unit that she owns in regional New South Wales. The Applicant moved to her home over two years ago following the breakdown of her marriage. Her father and mother (collectively, the Applicant’s parents) live about two hours away from the Applicant. She also has a brother and a sister, and her sister is a paraplegic who lives with the Applicant’s parents. They also provide informal support to their other daughter.[31] The Applicant’s brother also lives about two hours away from the Applicant. She has no other family members that live close by.
[31] See the Applicant’s Amended Statement of Facts, Issues and Contentions dated 12 April 2023 at A4 of the Tender Bundle.
The Applicant was asked by the Tribunal to describe her daily routine and what this involved. She said that she gets up every morning at 7.00am to ensure that she has enough time to get organised prior to starting work at 8.00am. Furthermore, she said that one of the first things that she does each morning is to take all of her medications. This includes taking pain medication to manage her pain that she experiences as a result of her impairments. The Applicant said that she does not make herself any breakfast at home before work. She said that she usually takes some fruit with her that she will eat at the office.
The Applicant was asked by the Tribunal whether or not she took a shower in the mornings before work. She said that she will shower in the evenings rather than in the mornings. She was also asked by the Tribunal as to whether she required any assistance to shower. The Applicant responded in her evidence that she has a large shower stool that she uses to sit on when she takes a shower.
The Applicant was asked by the Tribunal how she travels to work. The Applicant said in her evidence that she drives her car to work. The Applicant is able to park her car right out the front of her workplace.
The Applicant was asked by the Tribunal to give details regarding her current employment. Whilst the Applicant has trained and worked for an extended period of time in early childhood, due to her hip replacement and muscle repair surgeries she has not been able to continue this work. This is because this work required her to bend over to pick up and carry children. As a result of this she now works in an administration role in two early childhood centres. The Applicant said that she has been working in these roles for approximately five years.
The Applicant was asked by the Tribunal whether or not her employer had to make any modifications to her workplaces in order to meet the Applicant’s disability support needs. The Applicant said that no modifications had been made to her workplaces by her employer, however she said that she uses a chair at work which is appropriate for her height and knees. Furthermore, the Applicant said that her employer allowed her to reduce her hours of work from 35 back to 30 hours (six hours a day) per week.
The Applicant was asked by the Tribunal to describe the tasks she undertakes in her administration role. The Applicant said that in her job she undertakes administration work. This includes ad hoc administrative duties, for example, operating a computer, using the telephones, accounting, and banking etc. The Applicant also said that when she has to use the photocopier machine, she will either stand to use it or remain seated in her chair. This is because the Applicant cannot stand or sit for long periods.
The Applicant was asked by the Tribunal what she did for lunch while at work. The Applicant said that she does not go out for lunch when at work. She said that she eats her lunch in the office. She noted that she finishes work each day at 2.00pm and then she travels back to her house and rests because she feels some pain and needs to recover.
The Applicant was asked by the Tribunal about whether she had the capacity to undertake the task of preparing meals. Of particular note is that the Applicant usually has a frozen meal for dinner, which she microwaves.
Despite not being prompted via a question, the Applicant told the Tribunal that she requires a cushion for when driving her car. This, according to the Applicant, enables her leg to be at the correct angle whilst she is driving her car. The Applicant said that this cushion was recommended to her by an Occupational Therapist that she met in hospital following a surgical procedure that the Applicant underwent. The Applicant said that she continues to use this cushion when driving her car.
The Applicant was asked by the Tribunal about her functional capacity to undertake household chores. The Applicant said that she can potter around the house and has the capacity at bench height for cleaning purposes but is otherwise restricted, for example, with tasks including cleaning surfaces that are not at bench height. She noted that she is unable to use a full-size vacuum cleaner. The Applicant said that she has a support worker who provides her with assistance each week. She said that the support worker cleans for the Applicant, tidies her house, does her washing, and makes her bed. In short, the Applicant noted that the support worker’s role is to assist her with heavy household cleaning chores as well as the lighter tasks. The Applicant said that she has great difficulty doing laundry tasks, in particular carrying the basket of washing out to the backyard to hang items on the clothesline.
The Applicant was asked by the Tribunal about her functional capacity to undertake outside household chores. The Applicant said that she hires someone to undertake the gardening and to maintain the lawns.
The Applicant was asked by the Tribunal about her functional capacity to use public transport to access the community. The Applicant confirmed in her evidence that she does not use public transport to access the community. The Tribunal notes that the Applicant gives details about her capacity to use public transport to access the community in the document entitled ‘Annexure A – Sarah Kisela’.[32] The Applicant stated in this document that if she were required to travel on public transport, she would require personal assistance. She stated in this document that there are limited public transport options where she lives, however in any event, it is not feasible for her to catch a bus because of her inability to climb on the bus due to step issues, and moreover, the distance to the bus stop from the Applicant’s house is too long for the Applicant to walk to.
[32] See item 1 of A1 of the Tender Bundle.
The Applicant was asked by the Tribunal about her functional capacity to undertake activities involving social interactions. The Applicant said that she has a small circle of friends that live locally. She said that she sees them every couple of weekends where they meet either for a cup of coffee and/or dinner usually at a venue that includes accessibility features that are appropriate to the Applicant’s specific disability needs. The Applicant also said that the suitability of a venue is a primary consideration that both she and her friends give regard to when making plans to meet one another for social interactions in the community.
The Applicant told the Tribunal that she is having difficulty with living independently, for example, financial circumstances and also maintaining her current hours of work and supporting herself in other ways which she attributes to the physical impairments arising from her disability.
The Applicant stated that she is unable to shop for groceries by herself and instead needs to rely on delivery services. The Applicant said that when she orders her groceries online, she arranges for them to be delivered to her home on a day and time when the support worker is at her home in order that they can carry the groceries inside for the Applicant and also put them away for her.
The Applicant was asked by the Tribunal if she has the functional capacity to negotiate her way around her home, outside of her home, going to work, at work and socialising; to which she responded: ‘yes’. Additionally, the Applicant noted in her evidence that her doctor had said that she would be in a wheelchair if she failed to use the elbow walking crutch, i.e. her condition would worsen significantly.[33]
[33] See the letter prepared by Associate Professor Kieran Fielding, Orthopaedic Surgeon on 14 February 2023 at A3 of the Tender Bundle.
The Applicant was asked by Mr Pleming about the number of elbow walking crutches she uses to mobilise. Her response was that she uses one crutch but sometimes two crutches, which was determined by her pain levels. However, she stressed that she needed to use at least one crutch at all times. The Applicant said that she began using her elbow walking crutch after she had hip replacement surgery approximately six years earlier. The Applicant in her evidence said that she has difficulty in her right hip and leg and also cancer in her left knee. This leads to the Applicant using the crutch mostly for her right side, however, in some circumstances this is vice versa. It is noted by the Tribunal that the Applicant has had a lot of serious surgery in recent years which has affected her mobility and capacity to undertake everyday activities and at all times she needs at least one elbow walking crutch when mobilising. Furthermore, the Applicant is unable to put any significant weight on her right leg singularly.
Mr Pleming referred the Applicant to photograph 17 that Mr Dwyer includes at page 14 of his Occupational Therapy Functional Capacity Assessment Report dated 20 October 2022.[34] Mr Pleming asked the Applicant to explain what he considered to be an inconsistency. This was that the Applicant’s evidence summarised by the Tribunal above in paragraph [42] was inconsistent in relation to her being able to put weight on her right leg. The Applicant explained this inconsistency in her evidence by stating that she had the capacity to hold onto the railings of the stepladder and was not therefore putting all of her weight on the right foot. The Applicant concluded that this activity was conducted by Mr Dwyer in order to assess her mobility capacity.
[34] See R1 of the Tender Bundle.
The Applicant was asked by Mr Pleming to give further evidence about the supposed railings that she claimed to have been used during Mr Dwyer’s assessment when using the stepladder. The Applicant said that the railings are situated on top of the stepladder which appears to be invisible from photograph 17. There appears to be a discrepancy between the Applicant’s reporting about the use of the stepladder and whether or not she was resting her left or right knee, as it appears from the photograph that the Applicant was leaning on her right knee rather than her left knee.
The Applicant was asked by Mr Pleming whether she had placed some of her weight on her right leg and whether some of her weight was taken off her left leg to which the Applicant responded: ‘yes’ but qualified her answer by stating that she thought it was a bit of both. The Applicant said that she seldom uses the stepladder because she puts kitchen items on lower-level shelving as it is makes access to items in the kitchen easier for the Applicant.
The Applicant was asked by Mr Pleming whether she always has her elbow walking crutch with her to which she responded: ‘yes’. The Applicant said that she uses her elbow walking crutch to mobilise in and around her home. With the crutch the Applicant is able to independently access all areas of her home. This included the outside areas of the Applicant’s home, however in her evidence the Applicant qualified this by stating that she did not often go out to the backyard of her property because she had difficulty negotiating the step. It is noted though that there is also a step at the front of the Applicant’s house, seen from the photographs in Mr Dwyer’s report, which the Applicant says she does not use. The Applicant said that when accessing the inside of her house through the garage there was no step, however this was clarified by the Applicant to mean a ‘step up bit’ which the Tribunal understands is likely to be a step. Also, it was recommended that the Applicant install a railing in order for her to be able to negotiate access to the front door of her home.
The Applicant was asked by Mr Pleming whether she had the capacity to walk the length of her driveway which is approximately 20 to 25 metres in length with the use of her walking crutch to which the Applicant responded: ‘yes’ though slow and can result in the Applicant getting ‘puffed out’ due to her heart condition.
The Applicant was asked by Mr Pleming when using her walking crutch to handle and wheel her bins. The Applicant said that her support worker carried out this task for her. She also said that her support worker also takes out the rubbish from inside her house and places the rubbish in the wheelie bin and then takes it out to the front of her home. In short, the Applicant said that whilst her support worker carried out the majority of the tasks relating to rubbish, she does have the functional capacity to wheel the wheelie bins empty one at a time along her driveway.
The Applicant was asked by Mr Pleming about whether she had in the past used a walking stick to mobilise to which she responded essentially that she could not use a walking stick. This is because it has the potential to cause her to place more weight on her hip. However, the Applicant said that the use of the elbow walking crutch enabled her to put more weight on her arms. Therefore, the Applicant stated that she did not have the capacity to change over from the elbow walking crutch to a walking stick. Whilst the Applicant has a walking stick in her house, she stated that she did not make use of it as she thought it was unsafe and would cause her pain and to destabilise in balance. When asked about whether she could use this walking stick to move around inside her home, the Tribunal notes that the Applicant provided a non-committal response.
The Applicant was asked by Mr Pleming about how far she could walk with the use of the elbow walking crutch when accessing the community to which the Applicant gave a response of approximately 30 metres (10 minutes) but said that she then needs to stop and have a break where she needed to either stand or sit down. Furthermore, the Applicant said that she has the functional capacity to socialise in the community and go into town to do light shopping and to attend two childcare workplaces weekly.
The Applicant was asked by Mr Pleming how far she walked in order to get to her office from her car. The Applicant’s response was that the distance was no further than 10 metres. Furthermore, the Applicant qualified this statement by giving reference to how supportive her employer is by enabling her to park her car as close to her work as possible.
The Applicant was asked by Mr Pleming how she managed herself when accessing all areas of her workplaces. The Applicant responded that she was able to negotiate her way around her workplaces, for example, she could access the kitchen and bathroom facilities.
The Applicant was asked by Mr Pleming whether she has the functional capacity to go grocery shopping and carry a small number of grocery items while undertaking the task. The Applicant’s response was that she was able to carry out this task, however, she needed the aide of her elbow walking crutch and only had the capacity to carry the groceries with one of her hands. In other words, the Applicant stated that she was unable to manage carrying heavy items of groceries while shopping for groceries.
The Applicant was asked by Mr Pleming about how she was able to access shops to which she responded that she used her car. Moreover, the Applicant noted that this was only possible due to her having access to a disability parking permit which enabled her to park close to the shops.
The Applicant was asked by Mr Pleming about how she reacted when groceries she had ordered online were delivered to her home, and how she managed to get them inside. The Applicant said that she did find it overwhelming but that she ensures that she has assistance from her support worker on the day that the groceries are delivered to her home.
With particular reference to evidence the Applicant gave earlier at the hearing about her accessing the community in order to socialise with others, Mr Pleming asked the Applicant to expand further by telling the Tribunal where she and her friends go to socialise and how she mobilises around. The Applicant noted that it is most often for dinner where she can park her car out the back of a venue where there are no steps for her to negotiate. Mr Pleming then referred the Applicant to Mr Dwyer’s report where the Applicant reported to him during his assessment that she was attending a social event at a venue which he was unsure how the Applicant had the capacity to attend. In her response the Applicant said that her friends had planned this event around her disability support needs.
The Applicant was asked by Mr Pleming (also with reference to evidence the Applicant gave earlier at the hearing) about the cushion she uses whilst driving her car. Mr Pleming asked the Applicant where she obtained the cushion from. The Applicant said that she purchased the cushion from a place in Wagga Wagga for between $30 and $50 to suit her needs for when driving her car and also when sitting in other people’s cars. The cushion was made to the Applicant’s measurements and dimensions. The Applicant confirmed in response to a question asked by Mr Pleming that this cushion was recommended to the Applicant by an Occupational Therapist from the hospital who treated her following her hip replacement surgery roughly six years ago.
The Applicant was asked by Mr Pleming about the distance she was able to drive to visit her parents before she needed to stop to take a break. The Applicant said in her response that she takes a break approximately one hour into the drive. The Applicant also noted in her evidence that she also stops to break when travelling to see her parents to stretch out her hip.
The Applicant was asked by the Tribunal as to whether she receives any informal support from any members of her family. The Applicant said in response that she lives alone. She said that none of her family live nearby. Indeed, her parents and two siblings live two hours away. The Applicant said that she sees her family approximately fortnightly but that they usually maintain contact with one another via telephone approximately every second day. When visiting each other, they share the travel and when the Applicant travels to visit her family, she drives her car. The Applicant stated that her parents provide informal support to her, however, this support is limited for two reasons. The first reason is because her parents do not live close by. The second reason is that her parents also provide informal support to their other daughter who lives with them and has a disability.[35]
[35] See item 7 of A1 of the Tender Bundle for confirmation that the Applicant’s parents provide her with informal supports.
THE RESPONDENT’S EVIDENCE

As mentioned earlier in this decision, Mr Dwyer prepared a Functional Capacity Assessment Report on 20 October 2022 following his assessment of the Applicant on 15 September 2022. The Tribunal notes that in his report Mr Dwyer records the activities that he observed the Applicant to demonstrate, or where appropriate, simulate during the assessment. This included activities of communication, social interaction, learning, mobility, self-care, and self-management.[36] The Tribunal notes that the Applicant was, for the most part, assessed by Mr Dwyer with her elbow walking crutch when demonstrating or simulating mobility and self-care activities. The Tribunal notes that Mr Dwyer records in his report his findings on the Applicant’s level of functionality in relation to her capacity to undertake each of the six activities that are specified in subsection 24(1)(c) of the NDIS Act.[37] The Tribunal also notes that Mr Dwyer records, in his report, occupational therapy recommendations for the Applicant.[38]
[36] See page 13 of the Functional Capacity Assessment of Glen Dwyer dated 20 October 2022 at R1 of the Tender Bundle.
[37] Ibid at pages 13-19.
[38] Ibid at pages 31-33.
The Tribunal now proposes to summarise the observations and findings as recorded by Mr Dwyer in his report with regard to the Applicant’s functional capacity to undertake the six activities as prescribed under subsection 24(1)(c) of the NDIS Act, namely, communication, social interaction, learning, mobility, self-care, and self-management.
In his report, Mr Dwyer notes that in relation to communication the Applicant had no deficits. He further stated that the Applicant was articulate, and it was easy to understand and follow what she said in the interaction that they had based on the assessment.[39]
[39] See again page 13 of the Functional Capacity Assessment Report of Glen Dwyer dated 20 October 2022 at R1 of the Tender Bundle.
In his report, Mr Dwyer also notes that the Applicant has a wide network of friends in her local area. He further stated that the Applicant had no deficits in her social interactions as she found strategies to maintain socialisation with her group of friends. For example, the Applicant maintains contact with her friends through electronic communication in between meeting up with them.[40]
[40] Ibid.
In his report, Mr Dwyer notes that the Applicant has the capacity to drive which allows her to have access to the community. Moreover, the Applicant is able to plan social and community activities carefully and diligently, keeping in mind her limitations due to her disability. For example, the Applicant will need to research where she is going and make an assessment about whether she may attend due to the accessibility features of the venue.[41]
[41] Ibid.
In his report, Mr Dwyer notes that the Applicant is balanced in her social interactions with others and does not behave outside of what is considered appropriate social behaviours.[42]
[42] Ibid.
In his report, Mr Dwyer points to the Applicant’s anxiety due to her impairment. Furthermore, the Applicant is not seeing a therapist to treat this condition. However, this was qualified by Mr Dwyer in his notation that this anxiety did not impact upon the Applicant’s capacity to maintain an active social life and engagement with others in the community.[43]
[43] Ibid.
In his report, Mr Dwyer notes that in relation to learning, whilst the Applicant complains of chronic pain and fatigue, her cognitive state or capacity to learn has not been inhibited. Whilst the Applicant has not engaged in any study, she maintains the capacity to concentrate for approximately three hours without needing any assistance.[44]
[44] Ibid at page 14.
In his report, Mr Dwyer notes that mobilising is difficult for the Applicant in her home. Moreover, the Applicant’s lack of musculature around her (right hip buttock) region and her chronic (right hip/pelvic) pain, coupled with lower left knee pain, mean that she must use her single elbow walking crutch. Relatedly, the Applicant may use a single point walking stick but complained to Mr Dwyer during the assessment that this item does not provide her with sufficient support. Mr Dwyer notes that whilst the Applicant can mobilise around her home, grabrails would be helpful as when she is negotiating the front entrance of her home she tended to grab onto the door.[45]
[45] Ibid.
In his report, Mr Dwyer mentioned that the Applicant has the capacity to use a stepladder where she is unable to reach high level cupboards and shelving to enable easier access.[46]
[46] Ibid.
In his report, Mr Dwyer notes that the Applicant has the capacity to undertake the following tasks without assistance, namely:
(a)Chair transfers (however the Applicant is unable to retract the manual footrest);
(b)Bed transfers;
(c)Toilet transfers;
(d)Shower transfers; and
(e)Car transfers.[47]
[47] Ibid at page 15.
In his report, Mr Dwyer notes that the Applicant has the capacity to mobilise up the length of her driveway to the road (approx. 20 - 25 metres). Whilst the Applicant was slow (and needed her elbow walking crutch) in her walking up the driveway, she was able to negotiate this task. However, due to pain, her mobility was observed by Mr Dwyer as being limited.[48]
[48] Ibid.
In his report, Mr Dwyer notes that the Applicant has a limited capacity to walk distances of more than 15 to 20 minutes at a time when accessing the community and an even more limited capacity where there are steps, inclines, and other uneven ground structures to negotiate.[49]
[49] Ibid.
In his report, Mr Dwyer notes that the Applicant does have the capacity, despite her limitations, to access the community without the need to rely on external supports.[50]
[50] Ibid at page 16.
In his report, Mr Dwyer notes that the Applicant has the capacity to drive. He further notes that her disabled parking permit is enough for her to access the community without the need for any further supports. The Applicant also uses (a cushion) which was referred to earlier in the Applicant’s evidence. The cushion provides the Applicant with posture support whilst driving her car.[51]
[51] Ibid.
In his report, Mr Dwyer notes that the Applicant does not need to break when driving long distances in order to manage her pain levels. Mr Dwyer notes that the Applicant could drive her car for approximately 15 to 20 minutes before needing a break. The medical evidence that was made available to Mr Dwyer when he was retained by the Respondent to conduct a functional capacity assessment of the Applicant supports this because of the Applicant’s (right hip/pelvis) pain.
In his report, Mr Dwyer notes that the Applicant would have difficulty using public transport due to her impairments because accessing these services can sometimes mean needing to walk further than the Applicant is able to. As she has the capacity to drive, Mr Dwyer recommended that this be the Applicant’s method of accessing the community.[52]
[52] Ibid.
In his report, Mr Dwyer notes that the Applicant completed simulated toilet transfers during his assessment to which she was able to do independent of any help. Furthermore, the other tasks that were assessed by Mr Dwyer were done by the Applicant also independent of any help. In relation to the transfers in and out of the shower, it was observed that the Applicant also has the capacity to undertake this task independent of any help. It is noted, however, that the Applicant has a shower stool she uses to assist her when taking a shower[53].
[53] Ibid.
In his report, Mr Dwyer notes that the Applicant can take a shower without the assistance of another person. It is noted, however, that due to the limitations regarding the Applicant’s right hip range of movements, the Applicant does experience some problems cleaning the lower parts of her legs and feet. Therefore, it was recommended by Mr Dwyer that it would be helpful for the Applicant to have a range of long handled equipment so as to develop her capacity for safety and independence. In relation to taking a bath to assist with pain, it is considered a high-risk activity when compared to the Applicant taking a shower. The Applicant will only use the bath, however, when there is someone present. This is to ensure that the Applicant’s safety is maintained.[54]
[54] Ibid at page 17.
In his report, Mr Dwyer notes that the Applicant is able to complete all body dressing tasks independent without help, and with no difficulty. It is noted that the Applicant will mostly sit down whilst completing this task in order to stabilise. However, in relation to lower limb dressing, the Applicant does show some impaired capacity. Whilst she sits to dress, the Applicant still has difficulty cleaning the lower part of her legs and feet. Whilst she uses a stockade, however, Mr Dwyer recommends an additional long handed dressing aide as this will allow the Applicant independence without needing further help. In conclusion, Mr Dwyer states that with the use of modified techniques with dressing and assistive equipment, the Applicant is assessed as being able to continue dressing herself independent of any help in the future.[55]
[55] Ibid.
In his report, Mr Dwyer notes that the Applicant is able to manage grooming tasks independent without any help. It is noted that the Applicant staggers her dressing to manage the task to avoid needing assistance.[56]
[56] Ibid.
In his report, Mr Dwyer notes that the Applicant is able to carry out light small shops independent of any help. Mr Dwyer qualified this by noting that the Applicant is unable to negotiate the functional demands of going to the supermarket for a weekly shop. Thus, the Applicant completes her shopping online and has a delivery service in order for her to maintain ongoing independence in this area. Mr Dwyer notes that the Applicant receives in home assistance three hours each week.[57] This service includes house cleaning and also bringing in the groceries that are delivered to the Applicant’s home, which the Applicant times to ensure that the support worker is present to carry the groceries inside for her.[58]
[57] Ibid.
[58] Ibid at page 18.
In his report, Mr Dwyer notes that the Applicant is able to prepare light meals which do not require the Applicant to stand for long periods of time. In order to help manage the task of cooking meals, the Applicant includes using pre-prepared vegetables and other quick shortcuts to reduce the amount of time required to otherwise prepare meals. In his report, Mr Dwyer states that the Applicant would be helped via using a perching stool which would facilitate an increased capacity for the Applicant to prepare meals. Furthermore, the Applicant could cook bigger meals that could be frozen so that when her symptoms are bad, she has a supply of prepared meals in the freezer on days where she does not feel well enough to cook. In short, the use of a perching stool and modified techniques used to reduce the functional demands of cooking means that the Applicant will not, in the future, require further supports for meal preparation tasks.
In his report, Mr Dwyer notes that the Applicant has a very limited capacity to undertake domestic cleaning tasks. She can, for example, undertake light wiping of accessible waist height surfaces and also undertake spot vacuuming of debris using a stick vacuum. However, Mr Dwyer states further that the Applicant does not have the functional capacity to undertake more difficult and substantive house cleaning chores. Moreover, the Applicant is unable to vacuum the whole of her house, and neither can she mop or undertake bathroom scrubbing which is mostly due to low capacity for standing and needing the use of a walking aide and due to chronic pain to the Applicant’s right hip/pelvic region. Mr Dwyer notes that the Applicant currently receives SASH services for three hours each week which includes:
(a)House cleaning (vacuuming, mopping and bathroom scrubbing);
(b)Change (and wash) the bed linen;
(c)Take out household rubbish as needed.
Mr Dwyer is of the opinion that the Applicant’s current situation of having SASH support is sufficient but notes that he does not know how long these services will continue for.[59] This was essentially reiterated by Mr Dwyer at the hearing in his evidence given in response to questions that were asked of him by Ms Reid.
[59] Ibid.
In his report, Mr Dwyer notes that the Applicant is able to do a light load of laundry but finds this task difficult. This is mostly due to how the Applicant’s laundry and clothesline are configured. For example, Mr Dwyer notes, by way of recommendation, that the Applicant would find benefit from raising her washing machine in order to make it more accessible. Furthermore, it would be helpful for the Applicant to relocate her dryer to her garage whilst also lowering her clothesline. Mr Dwyer also proposes to the Applicant that a laundry trolley be used so that the Applicant does not have to carry heavy items of laundry.[60]
[60] Ibid at page 19.
In his report, Mr Dwyer notes that the Applicant has the capacity for accessing her dishwasher where she also has the capacity to load and unload dishes when needed, and can manage light washing up tasks at the kitchen sink. Thus, Mr Dwyer reported no assistance is required for the Applicant in this regard.[61]
[61] Ibid.
In his report, Mr Dwyer notes that the Applicant does not have the functional capacity to undertake heavy yard maintenance tasks. For example, the Applicant cannot squat or kneel for gardening and thus must pay another person for carrying out these tasks. Furthermore, Mr Dwyer notes that this assistance will be an ongoing need for the Applicant.[62]
[62] Ibid.
Finally, in his report, Mr Dwyer notes that the Applicant is cognitively savvy and does not require any outside help with her problem solving, planning and decision-making skills. Mr Dwyer notes that whilst the Applicant requires assistance with domestic tasks that she is otherwise independent. Furthermore, the Applicant is able to manage all aspects of her finances independently.[63]
[63] Ibid.
I now propose to consider whether the Applicant is a person who meets the disability requirements as set out in section 24 of the NDIS Act to become a participant in the NDIS.
CONSIDERATION OF THE DISABILITY REQUIREMENTS
Whether the Applicant has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory, or physical impairments
The Tribunal must be satisfied under subsection 24(1)(a) of the NDIS Act that the Applicant has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory, or physical impairments.
The Respondent accepts on the expert evidence that for the purpose of subsection 24(1)(a) of the NDIS Act, the Applicant has a disability that is attributable to a physical impairment, namely peripheral vascular supply, and vascular necrosis.
Thus the Tribunal finds that the Applicant meets the requirements of subsection 24(1)(a) of the NDIS Act in respect of having a disability that is attributable to a physical impairment as specified in subsection 24(1)(a) of the NDIS Act.
Whether the Applicant’s physical impairments are, or are likely to be, permanent
The Tribunal must be satisfied under subsection 24(1)(b) of the NDIS Act that the Applicant’s physical impairments, namely peripheral vascular supply, and vascular necrosis are, or are likely to be, permanent.
The Respondent accepts on the expert evidence that the Applicant’s physical impairments are permanent for the purpose of subsection 24(1)(b) of the NDIS Act.
Thus the Tribunal finds that the Applicant meets the requirements of subsection 24(1)(b) of the NDIS Act in respect of permanence.
Whether the Applicant’s physical impairment result in substantially reduced functional capacity to undertake one or more of the activities that involve communication, social interaction, learning, mobility, self-care, and self-management
96.The Tribunal must be satisfied under subsection 24(1)(c) of the NDIS Act that the Applicant’s physical impairment results in substantially reduced functional capacity to undertake one or more of the activities that involve communication, social interaction, learning, mobility, self-care, and self-management.
97.There is disagreement between the parties regarding the question of whether or not the Applicant’s impairments result in a substantially reduced functional capacity to undertake, in particular, activities of mobility and self-care. Although, there is general agreement between the parties that the Applicant’s impairments do not result in a substantially reduced functional capacity to undertake the other four activities, namely communication, social interaction, learning and self-management, as specified in subsection 24(1)(c) of the NDIS Act. I will consider each of the six activities specified in subsection 24(1)(c) of the NDIS Act further below, however, firstly I propose to set out the legal principles that have been established on the question of whether and when a person’s impairments result in a substantially reduced functional capacity.
98.In order for the Applicant to meet the requirements of subsection 24(1)(c) of the NDIS Act, her impairments must result in a substantially reduced functional capacity to undertake one or more activities that involve communication, social interaction, learning, mobility, self-care, and self-management. The legislative scheme contemplates a relatively high degree of precision by decision-makers in assessing what a person can or cannot do. The assessment to be undertaken is avowedly functional, and multi-faceted.[64]
[64] See Mulligan and National Disability Insurance Agency (2015) 233 FCR 201 at [55].
99.Determination of whether or not a person meets the requirements specified in subsection 24(1)(c) of the NDIS Act, does not need decision-makers to be satisfied that their impairment is “serious”, or more serious than another person’s. No qualitative judgments in that sense are called for. Rather, the legislative scheme is based on a functional, practical assessment of what a person can and cannot do. Critically, the scheme makes detailed provision for that assessment, and it is sufficient for a person to have substantially reduced functional capacity in relation to one activity.[65] This, Mortimer CJ said, in the case of Mulligan and National Disability Insurance Agency[66] (Mulligan), recognises the spectrum of impairments which can be experienced by persons with disabilities, and accommodates different abilities within one person in terms of her or his daily activities[67].
[65] Ibid at [56].
[66] (2015) 233 FCR 201 at [56].
[67] Ibid.
100.Furthermore, the statutory concept of “substantially reduced functional capacity” requires no assessment by the decision-maker of how common the reduction in functional capacity might be, or whether the way in which the reduced functional capacity manifests itself is something that can be seen in a certain number of people.[68]
[68] Ibid at [75].
101.Rule 5.8 of the Becoming a Participant Rules sets out the circumstances when an impairment does result in substantially reduced functional capacity to undertake relevant activities. Importantly, rule 5.8 of the Becoming a Participant Rules provides that a person’s 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.
102.This Rule is a deeming provision in that it defines when a person must be taken to have a substantially reduced functional capacity within the meaning of section 24(1)(c) of the Act. If the criteria enumerated in the Rule are met with respect to the performance of each of the activities or outcomes therein, the disability requirements in section 24(1)(c) of the Act are deemed to be satisfied.[69]
[69] See Rooney v National Disability Insurance Agency [2021] AATA 3523 at [17].
103.The rule in 5.8 of the Becoming a Participant Rules does not, however, negate the statutory task that the Tribunal must engage with under subsection 24(1)(c) of the NDIS Act when determining whether or not a person’s impairment(s) result in substantially reduced functional capacity to undertake one or more of the activities that involve communication, social interaction, learning, mobility, self-care, and self-management. This is the position Mortimer CJ took in the case of Mulligan. At [77] of her judgment, her Honour observed as follows:
I note that the Tribunal appears to have approached the concept of “substantially reduced functional capacity” in s 24(1)(c) as if it is exhaustively defined by r 5.8. That is not necessarily the case. As a deeming provision, r 5.8 has the effect of mandatorily including some people in the category of persons with substantially reduced functional capacity if the criteria in r 5.8(a), (b) or (c) are met. In that sense, a decision-maker must turn his or her mind to whether an applicant falls within the deeming effect of r 5.8. That is not necessarily the end of the exercise in terms of s 24(1)(c). The statutory task remains to consider whether a person’s functional capacity is substantially reduced in any of the six specified areas. Whether or not this constitutes a separate error by the Tribunal need not be determined, for it is clear that even within the terms of r 5.8, the Tribunal only examined para (a) and not para (b), although they were both relevant and relied upon by Mr Mulligan.

The Tribunal in the present case takes the view that the measurement of the Applicant’s functional capacity to undertake one or more of the activities that involve communication, social interaction, learning, mobility, self-care, and self-management should not be limited to the Applicant’s more difficult days. This is because there is a need for the Tribunal to take a balanced approach which includes having regard to periods of more positive health. This is the position taken by Deputy President Humphries (DP Humphries) in the case of Madelaine & National Disability Insurance Agency[70] (Madelaine).
[70] [2020] AATA 4025 at [76].
Reference to the Access Guidelines[71] is consistent with what the Tribunal must consider, i.e., whether any permanent impairment, or permanent impairments, when considered together, result in substantially reduced functional capacity to undertake one or more of the activities as outlined in subsection 24(1)(c) of the NDIS Act.
[71] See page 93 of the Access Guidelines at T10 of the T-documents.
I now propose to consider whether the Applicant’s impairments result in substantially reduced functional capacity to undertake one or more of the six activities that are specified in subsection 24(1)(c)(i)-(vi) of the NDIS Act.
Communication
In the Access Guidelines, it is stated that communication includes being understood in spoken, written or sign language, understanding others and expressing needs and wants by gesture, speech, or context appropriate to age. In the case of Madelaine, DP Humphries observed[72] that the activity of an individual’s communication functional capacity referred to in the Access Guideline is not considered to be exceptional or high level.
[72] [2020] AATA 4025 at [79].
The Tribunal has considered the evidence of Mr Dwyer as set out in his report, namely that the Applicant has an acceptable level of capacity to communicate effectively. I note that the Applicant was articulate at the hearing insofar as she was able to distil complex ideas into a discourse that was understandable to all and to show how she did understand what was discussed over the course of the hearing.
Having regard to the evidence of Mr Dwyer, and supported by my own observations at the hearing, it is clear that the Applicant’s impairments do not result in a substantially reduced functional capacity to undertake activities of communication for the purpose of subsection 24(1)(c)(i) of the NDIS Act.
Social interaction
In the Access Guidelines, it is stated that social interaction includes making and keeping friends (or playing with children), interacting with the community, behaving within limits accepted by others, coping with feelings and emotions in a social context.
Similarly to communication, Mr Dwyer notes that the Applicant does not have a functional impairment in this domain. For example, the Applicant has a strong network of friends in her locality which sees in person and also communicates electronically with. Indeed, Mr Dwyer noted that the Applicant had a meeting with her friends directly following the assessment. Moreover, in response to Annexure A questions, the Applicant reported that she spoke with her parents approximately every second day and her friends monthly. Thus, it is apparent to the Tribunal that the Applicant has the capacity to socialise at an adequate level and there is no substantial reduction to her functionality in this domain.
The Tribunal notes that Mr Dwyer clarified in his report that the Applicant needs to consider the accessibility of venues for social events and thus has to plan for these interactions. In responding to the Annexure A questions, the Tribunal notes that the Applicant stated that she preferred to stay at home because of her reduced mobility and limitations she experiences when attending social events. However, the Applicant’s functional capacity to engage socially is reaffirmed by the different modes of socialisation available to her to which she applies.
Having regard to the evidence of Mr Dwyer and the evidence of the Applicant, it is clear that the Applicant’s impairments do not result in a substantially reduced functional capacity to undertake activities of communication for the purpose of subsection 24(1)(c)(ii) of the NDIS Act.
Learning
114.In the Access Guidelines, it is stated that learning includes understanding and remembering information, learning new things, practicing, and using new skills. In the context of learning, the Access Guidelines foreshadow the cognitive capacity to absorb and apply new skills.[73]
[73] [2020] AATA 4025 at [93].
The Tribunal notes that in Mr Dwyer’s report it was recorded that there was no functional impairment in the Applicant’s capacity for learning. Whilst he notes that the Applicant does experience chronic pain and fatigue levels, he opined that this does not impact on the Applicant’s capacity to learn, insofar as her cognitive skills are at a high level.
Having regard to the evidence of Mr Dwyer, it is clear that the Applicant’s impairments do not result in a substantially reduced functional capacity to undertake activities of learning for the purpose of subsection 24(1)(c)(iii) of the NDIS Act and thus the deeming provisions in rule 5.8 of the Becoming a Participants Rules have not been met in this area.
Mobility
117.In the Access Guidelines, it is stated that mobility means the ability of a person to move around the home (crawling/walking) to undertake ordinary activities of daily living, getting in and out of bed or a chair, leaving the home, moving about in the community, and performing other tasks requiring the use of limbs. As was observed in the case of Madelaine, the threshold requirement regarding mobility includes that a person has functional capacity where they are able to move around their home, get in and out of bed or a chair and mobilise around the community.[74]
[74] ibid at [104] to [106].
118.The Tribunal accepts the Respondent’s position that whilst there are some functional deficits in the Applicant’s capacity to mobilise, that these are not substantial. This is because, as Mr Dwyer noted in his evidence, her mobility deficiencies are ‘entirely related to the sequelae of Stage IV Rhabdomyosarcoma diagnosed in childhood and subsequent treatment’. Furthermore, the Tribunal notes the opinion of Mr Dwyer that whilst the Applicant does have clear mobility issues, she is able to transfer, with no assistance, ‘from the chair, bed, toilet and car’. Moreover, he noted that the Applicant’s capacity to walk was at a level that she could access all necessary services, e.g. she drives a car for approximately 15 to 20 minutes with the assistance of a cushion which Mr Dwyer noted aligns with the medical evidence related to her symptoms. The Applicant can also lift items that can be carried in one hand.
119.The Tribunal notes that Mr Dwyer’s report states that the Applicant is able to ‘mobilise on her own" by "pacing the activity and using her walking aid’. Mr Dwyer said in his report that the Applicant is required to use a single elbow walking crutch – both inside and outdoors. Also, in his report, Mr Dwyer consistently noted that the Applicant uses a single point walking stick — which is a commonly used item[75]. As determined by the Full Federal Court in National Disability Insurance Agency and Foster[76] (Foster), a person is not necessarily within Rule 5.8(a) because one task is unable to be completed without assistive technology. The ‘task remains to assess the degree to which the person can participate in the activity’.[77]
[75] See rule 5.8 of the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 and Mulligan v National Disability Insurance Agency [2015] FCA 544.
[76] [2023] FCAFC 11.
[77] Ibid at [88].
120.As was found in the case of Rooney v National Disability Insurance Agency[78] (Rooney), the prospective participant said he was able to walk 400 – 500 metres and was, with the assistance of two elbow crutches, able to walk. However, he was observed to walk approximately 369 metres using one elbow crutch in 13 minutes. It was found by Senior Member Cameron (SM Cameron) that the elbow walking crutch is a commonly used item and, in particular, that Mr Rooney’s elbow crutch did not require prescription with customisation with special fittings. For the purpose of the present application, it is noteworthy that the Applicant has the capacity to walk approximately 20 minutes at a time with one elbow walking crutch. Whilst the available evidence does concur that a single crutch is required, it is not, as stated above, either a prescription crutch or customisation with special fittings. In a case where an elbow crutch has been prescribed it would still not be considered as a substantial reason to grant someone access to the NDIS. Indeed, the Applicant’s capacity to mobilise and undertake self-care tasks, albeit at a slower speed, would be expected of someone without a mobility problem. Importantly, as noted by SM Cameron in the case of Rooney, speed and difference are not, as noted in Madelaine, the appropriate yardstick.[79] Therefore, the Tribunal does not place any significant weight on the Applicant’s use of an elbow walking crutch(s).
[78] [2021] AATA 3523.
[79] Rooney at [75].
121.Furthermore in the case of Rooney, SM Cameron explicitly decided not to follow the earlier decision on this point in Ditchfield and National Disability Insurance Agency[80] (Ditchfield). In that case, now Senior Member Parker (SM Parker) gave regard to paragraph 8.3.1 of the former NDIS Operational Guidelines, which gave a definition of a ‘disability aid’ to distinguish that from a commonly used item. It was observed by SM Parker that the tribunal ought to enable access to the scheme where an individual requires a disability aide that is specifically designed to assist in increasing functional capacity and participation of people with a disability in society. She further noted that access should be granted if the crutch or aide is formally prescribed by a medical practitioner’. The Tribunal, however, does not follow the position of SM Parker in this case and instead relies on the decision by SM Cameron in the case of Rooney and supported by the Federal Court due to the fact that these items indeed did not require customisation or prescription, and thus being a commonly used item, should not be a reason for granting the Applicant access to the NDIS.
[80] [2019] AATA 2121.
122.The Tribunal notes there must be an overarching and clear criteria of meeting the appropriate functional capacity tests. Moreover, it accepts the Respondent’s argument that the Applicant does not meet any of the criteria as set out under subsection 24(1)(c) of the NDIS Act.
123.The Tribunal turns to the decision in the case of Madelaine which found that an in-home assessment of mobility was ubiquitous and individually determined, for example, crawling may be considered an appropriate method of mobility as opposed to mobility in the community which relates to how the prospective participant could engage once their destination was arrived at. In the case of Madelaine, it was found by DP Humphries that any difficulties in handling obscure terrain at a destination is not sufficient to guide the mobility test. This is because it would result in an influx of people accessing the NDIS.
124.The Tribunal notes that in his report, Mr Dwyer did not make any further recommendations for mobility aides to assist the Applicant in her mobility.
125.It is noted by the Tribunal that simply because a person cannot undertake all tasks or actions that might fall within the activity of “mobility” does not mean that the person has a substantially reduced functional capacity, “the test is whether a person has a substantially reduced functional capacity to undertake or participate in that activity, not simply whether or not a particular task or action commensurate with that activity is undertaken”.[81] This correlates with the approach taken by the Full Federal Court in Foster where their Honours observed that the Tribunal is required, by reference to all the matters that comprise that activity (in this case, mobility), to make a functional, practical assessment of what a person can and cannot do.[82]
[81] See Nika and National Disability Insurance Agency [2021] AATA 2127 at [248].
[82] See Foster at [64].
126.It is clear from the evidence given by Mr Dwyer that the Applicant does have a considered level of mobility in order to carry out everyday tasks with the elbow walking crutch. The Applicant is able to also use other mechanisms to assist her manage tasks in and around the community and therefore the Tribunal finds that, on the evidence, the Applicant is not unable to participate effectively or completely in the activity of mobility. Thus, it is clear to the Tribunal that the deeming provisions, as set out in rule 5.8, have not been met. In short, it is clear that the Applicant does not have a substantially reduced functional capacity in this domain. Thus, the Tribunal finds that, on the evidence, the Applicant’s impairments do not result in a substantially reduced functional capacity to undertake activities of mobility.
127.Thus, the Tribunal finds on the evidence the Applicant’s physical impairments do not result in a substantially reduced functional capacity to undertake activities that involve mobility for the purpose of subsection 24(1)(c)(iv) of the NDIS Act.
Self-care
128.In the Access Guidelines, it is stated that self-care means activities related to personal care, hygiene, grooming, and feeding oneself, including showering, bathing, dressing, eating, toileting, grooming, caring for own health care needs.
129.Undertaking self-care tasks slowly, or in stages, or using pacing techniques, or doing a task differently to others does not necessarily mean that a person cannot participate effectively or completely in self-care tasks.[83]
[83] See Williams and National Disability Insurance Agency [2021] AATA 3383 at [88].
130.The finding that one ‘task’ within self-care is affected by the Applicant’s impairment does not mean the person has a substantial reduction in functional capacity.[84] Further, in the case of Madelaine, the Tribunal determined that having a substantially reduced functional
[84] See National Disability Insurance Agency v Foster [2023] FCAFC 11.
capacity in self-care “imports the idea that there are significant gaps in one’s capacity to
maintain personal health, safety, and well-being”.[85]
[85] See Madelaine at [121].
131.The Tribunal notes that in his report, Mr Dwyer records that the Applicant is able to perform tasks such as “toileting, upper body dressing, aspects of showering and light domestic activity without any notable restriction”. Furthermore, Mr Dwyer notes in his report that the Applicant is able to perform grooming tasks without assistance, e.g. "manages light small shops independently is capable of preparing light meals that do not involve prolonged meal preparation time" and has "modified her meal preparation techniques to include pre-prepared vegetables and other 'short cuts' to reduce the preparation time". It is also noted by Mr Dwyer that whilst "lower limb dressing tasks are difficult" these are possible to achieve by the Applicant using a technique of her sitting down in order to dress herself.
132.The Tribunal notes that in his report, Mr Dwyer opines that the Applicant has limited capacity to undertake heavier house cleaning tasks of full vacuuming, moping or bathroom scrubbing, "heavier yard maintenance activities, heavy laundry tasks", and is required to complete these tasks through using modified techniques and pacing. The Tribunal notes that these observations are consistent with the Applicant's evidence that she currently has support worker assistance to help her with "cleaning, washing, making the bed and bringing in the groceries. Moreover, she and her parents pay for yard maintenance services".
133.The Tribunal notes that the Applicant also receives three hours per week of domestic assistance from SASH and receives some informal support from her parents who live approximately two hours' away from the Applicant. The Tribunal notes that in his report, Mr Dwyer recommended the Applicant utilise commonly used items such as long handle sponge, long handle toe washer, dressing stick, perching stool, laundry trolley and grab rails to assist her with self-care activities.
134.Although the Tribunal accepts that the Applicant's capacity to undertake activities of self-care and that there is some reduction due to her impairments, the Tribunal nevertheless concludes that the Applicant is by large independent with her self-care. Despite requiring some assistance, albeit minor, the Applicant has the capacity to carry out most tasks with the aide of some commonly used items and the ability to mobilise at a pace that does not impede her functionality.
135.Thus the Tribunal finds on the evidence that the Applicant’s physical impairments do not result in a substantially reduced functional capacity to undertake activities that involve self-care for the purpose of subsection 24(1)(c)(v) of the NDIS Act.
Self-management
136.In the Access Guidelines, it is stated that self-management means the cognitive capacity to organise one’s life, to plan and make decisions, and to take responsibility for oneself, including completing daily tasks, making decisions, problem solving and managing finances.
137.The Tribunal notes that Mr Dwyer reported that the Applicant is completely regarding her self-management. In particular, it is noted that the Applicant:
(a)is independent in all aspects of planning, problem solving and decision making;
(b)is able to manage all aspects of her finances, bill payment, bank accounts and money management independently;
(c)does not require assistance to make decisions; and
(d)is able to make and attend appointments independently.
Having regard to the above, it is clear to the Tribunal that the Applicant’s impairments do not result in a substantially reduced functional capacity to undertake activities of communication for the purpose of subsection 24(1)(c)(vi) of the NDIS Act.
Whether the impairments affect the Applicant’s capacity for social or economic participation
139.The Tribunal must be satisfied under subsection 24(1)(d) of the NDIS Act that the Applicant’s physical impairment affects her capacity for social or economic participation.
140.The Respondent accepts on the evidence that the Applicant’s physical impairment affects her capacity for social or economic participation for the purpose of subsection 24(1)(d) of the NDIS Act.
Thus the Tribunal finds that the Applicant meets the requirements of subsection 24(1)(d) of the NDIS Act in respect of her capacity for social or economic participation.
Whether the Applicant is likely to require the support under the National Disability Insurance Scheme for her lifetime
142.The Tribunal must be satisfied under subsection 24(1)(e) of the NDIS Act that the Applicant is likely to require the support under the NDIS for her lifetime.
143.As I have found that the Applicant’s physical impairment does not result in a substantially reduced functional capacity to undertake one or more of the activities specified in subsection 24(1)(c) of the NDIS Act, it follows that the Tribunal cannot be not satisfied that the Applicant is likely to require the support under the NDIS for her lifetime for the purpose of subsection 24(1)(e) of the NDIS Act.
144.Thus the Tribunal is not satisfied that the Applicant meets the requirements of subsection 24(1)(e) of the NDIS Act.
145.As I have found that the Applicant is not a person who meets the disability requirements as set out in section 24 of the NDIS Act, I must now consider whether the Applicant can become a participant in the NDIS through the alternative pathway, namely, the early intervention requirements as set out in section 25 of the NDIS Act.
CONSIDERATION OF THE EARLY INTERVENTION REQUIREMENTS
Whether the Applicant’s impairments are permanent or are likely to be permanent
146.The Tribunal must be satisfied that the Applicant has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent as set out in subsection 25(1)(a) of the NDIS Act.
147.The Respondent also accepts on the expert evidence that the Applicant has a physical impairment that is permanent for the purpose of subsection 25(1)(a) of the NDIS Act.
148.Thus the Tribunal finds that the Applicant meets the requirements of subsection 25(1)(a) of the NDIS Act in respect of permanence.
Whether the provision of early intervention supports for the Applicant is likely to benefit the Applicant by reducing her future needs for supports in relation to disability
149.The Tribunal must be satisfied that the provision of early intervention supports for the Applicant is likely to benefit her by reducing the Applicant’s future needs for supports in relation to disability as set out in subsections 25(1)(b) and (c) of the NDIS Act.
150.It is noted in A/P Fielding’s report[86] that whilst the ongoing support through the NDIS would be helpful in relation to minimising the Applicant’s need for disability support in the future, i.e. by preventing the degeneration of her impairment and capacity that she currently has. On the evidence that is before the Tribunal, there is insufficient evidence that any early intervention supports are available to the Applicant. This is because the provision of early intervention is not intended for conditions for which are already advanced as is apparent in the Applicant’s case.
[86] See Item 1 of A3 of the Tender Bundle.
151.Thus the Tribunal is not satisfied that the requirements of subsections 25(1)(b) and (c) of the NDIS Act are met.
Whether the early intervention support for the Applicant is not appropriately funded or provided through the National Disability Insurance Scheme
152.The Tribunal must be satisfied that early intervention support for the Applicant is not most appropriately funded or provided through the NDIS as set out in subsection 25(3) of the NDIS Act.
153.As mentioned earlier in this decision, the Applicant is currently receiving three hours each week from SASH to assist her with domestic chores and shopping. SASH is funded by the Ministry of Health.[87] According to Jenni Edwards,[88] eligibility for SASH services is dependent on a person actively pursuing NDIS access. Consequently, If a person does not meet access and is no longer appealing the decision, SASH services cease, and the person needs to look at other supports in the community or pay for services in a private arrangement.[89] However, for the purpose of subsection 25(3) of the NDIS Act, the Tribunal is not satisfied that this evidence demonstrates that the Applicant is prevented from accessing these supports through alternative support service providers.
[87] See the letter of Jeanine Aughey, Case Manager Out of Hospital Care, dated 31 May 2022, at item 2 of A1 of the Tender Bundle.
[88] See the email to Caitlin Reid from Jenni Edwards dated 16 May 2023 identified and marked on the record by the Tribunal at the hearing as Exhibit “A”.
[89] Ibid.
154.Thus the Tribunal is satisfied on the evidence that early intervention supports for the Applicant is not most appropriately funded or provided through the NDIS for the purpose of subsection 25(3) of the NDIS Act.
CONCLUSION
155.As the Tribunal is not satisfied that the disability requirements or the early intervention requirements are met, the Tribunal finds that the Applicant is not a person who meets the access criteria as set out in section 21 of the NDIS Act to become a participant in the NDIS to access reasonable and necessary supports.
156.As the Tribunal has found that the Applicant is not a person who meets the access criteria as set out in section 21 of the NDIS Act to become a participant in the NDIS, the Tribunal must affirm the decision under review pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).
DECISION

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

I certify that the preceding 157 (one hundred and fifty-seven) paragraphs are a true copy of the reasons for the decision herein of Member P Smith

...............................[SGD].........................................
Associate
Dated: 30 November 2023

Date(s) of hearing: 16 May 2023

Applicant: In person

Advocate for the Applicant: Ms C Reid

Solicitors for the Respondent: Mr M Pleming, HWL Ebsworth Lawyers

Date(s) of hearing:	16 May 2023
Applicant:	In person
Advocate for the Applicant:	Ms C Reid
Solicitors for the Respondent:	Mr M Pleming, HWL Ebsworth Lawyers