LJQD and National Disability Insurance Agency
[2024] AATA 564
•2 April 2024
LJQD and National Disability Insurance Agency [2024] AATA 564 (2 April 2024)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number: 2020/8629
Re:LJQD
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Senior Member J Collins
Date:2 April 2024
Place:Brisbane
The Tribunal affirms the decision under review pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).
...........................[SGD].........................
Senior Member J Collins
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – access criteria – s24(1)(c) – s24(1)(e) – s25 – whether applicant meets disability requirements – whether impairments permanent- whether impairments substantially reduce functional capacity – whether applicant meets early intervention requirements – whether likely to require support under National Disability Insurance Scheme for applicant’s lifetime – whether supports more appropriately funded through another service system.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) section 43
National Disability Insurance Scheme Act 2013 (Cth) sections 3, 4, 21, 22, 23, 24, 25, 27, 100, 103, 209National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) rules 2.5, 5.4, 5.5, 5.6, 5.7, 5.8, 6.1
Cases
Coventry and National Disability Insurance Agency [2024] AATA 259
G v Minister for Home Affairs [2019] FCAFC 79
G v Minister for Immigration and Border Protection [2018] FCA 1229
Galea and National Disability Insurance Agency [2022] AATA 2263
Garcia Albiol and National Disability Insurance Agency [2024] AATA 496
National Disability Insurance Agency v Foster [2023] FCAFC 11
Mulligan v NDIA [2015] FCA 544; (2015) 233 FCR 201
Power and National Disability Insurance Agency [2023] AATA 3357
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] 24ALR 577
Re Schwass and National Disability Insurance Agency [2019] AATA 28
Rooney and National Disability Insurance AgencySecondary Materials
NDIS - Applying to the NDIS guidelines, as of 1 February 2024.
NDIS - Assistive technology operational guidelines, as of 16 February 2023.
REASONS FOR DECISION
Senior Member J Collins
2 April 2024
BACKGROUND
LJQD is a 68-year-old woman. On 11 September 2020 and shortly prior to her 65th birthday, LJQD applied to the National Disability Insurance Agency (‘the Agency’) for access to the National Disability Insurance Scheme (‘the scheme’). The basis of her application was stated to relate to osteoarthritis in her hands, back, left foot and also anxiety issues.[1]
[1] BD8: T Documents, T8.
On 12 October 2020 LJQD’s application was refused by the Agency. This refusal was on the basis the Agency considered that LJQD did not meet the ‘disability requirements’ in section 24(1) of the National disability Insurance Scheme Act 2013 (‘the NDIS Act’) or the ‘early intervention requirements’ under section 25(1) of the NDIS Act.[2] LJQD sought an internal review of this decision.[3]
[2] BD8: T Documents, T1B.
[3] BD8: T Documents, T1A.
On 25 November 2020 the Agency affirmed its original decision to refuse LJQD access to the scheme (‘the decision under review’). Whilst a number of concessions were made by the Agency at that time regarding her impairments the Agency maintained that LJQD did not meet all of the mandatory ‘disability requirements’ in section 24(1) of the NDIS ACT or the ‘early intervention requirements’ in section 25(1) of the NDIS Act.[4] The Agency relied on the following as not being satisfied: [5]
·Section 24(1)(b) – that LJQD’s disability was permanent or likely to be permanent;
·Section 24(1)(c) - that LJQD’s disability resulted in a substantial reduction in her functional capacity;
·Section 24(1)(e) - that LJQD was likely to require lifetime support from the scheme;
·Section 25(1)(a) - that LJQD’s impairments were permanent or likely to be permanent; and
·Section 25(3) - that early intervention supports are not more appropriately funded through other systems or service delivery or support services.
[4] BD8: T Documents, T2.
[5] BD8: T Documents, T1A; T1B; T1C; T2.
On 24 December 2020 LJQD applied to the Administrative Appeals Tribunal (‘the Tribunal’) for review of the Agency decision under review’.[6]
[6]BD8: T Documents, T1; Section 103, NDIS Act.
ISSUES BEFORE THE TRIBUNAL
The issues before the Tribunal are whether LJQD meets:
·the disability requirements under section 24(1) of the NDIS Act, or
·the early intervention requirements under section 25(1) of the NDIS Act.
Determination of these issues is made pursuant to the NDIS Act, and several other statutory instruments made under it.[7]
[7] National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth).
At the hearing LJQD was self-represented. The Agency was represented by Ms Pieri, solicitor Minter Ellison.
THE NATIONAL DISABILITY INSURANCE SCHEME ACT 2013 (CTH)
The disability requirements are contained in section 24 of the NDIS Act provide 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).
The requirements of section 24 of the NDIS Act are cumulative and all criteria must be met.
The early intervention requirements contained in section 25 of the NDIS Act provide as follows:
1.A person meets the early intervention requirementsif:
(a)the person:
(i)has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent;
(ii)has one or more identified impairments to which a psychosocial disability is attributable and that are, or are likely to be, permanent; social interaction;
(iii)is a child who has developmentaldelay; 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.
Likewise, the requirements of section 25 of the NDIS Act are cumulative and all criteria must be met.
Section 27 of the NDIS Act provides for the making of rules in relation to the disability requirements and the early intervention requirements. The relevant rules in respect of this review are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (‘the NDIS Rules’).
The Agency also issues Operational Guidelines in relation to dealing with the assessment of whether a person meets the disability requirements or the early intervention requirements. The relevant guidelines in this review are the NDIS - Applying to the NDIS guidelines (‘the Access Guidelines).[8] There is no power conferred by the NDIS Act to make these Operational Guidelines, and they are issued in an exercise of executive power.[9] The Tribunal is therefore not bound by any policy set out in the Agency’s Operational Guidelines; however, in Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[10] the Federal Court held that a Tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation. Further guidance for the proposition that the Tribunal is not bound by policy is found in G v Minister for Immigration and Border Protection[11] where Mortimer J held:[12]
‘Justice or injustice is not found within a policy. It is found by looking at the overall circumstances of an individual’s case with the principal focus being on the purpose and context of the statutory power, not the executive policy framed to guide it …’
[8] National Disability Insurance Agency, Our Guidelines – Applying to the NDIS: see G v Minister for Home Affairs [2019] FCAFC 79 at [18].
[10] [1979] 24 ALR 577 at [590].
[11] [2018] FCA 1229.
[12] Ibid, at [171].
Therefore, unless the Access Guidelines are inconsistent with the provisions or objects of the legislation, they should be considered in any determination of whether LJQD meets the disability requirements or the early intervention requirements.
Whether LJQD meets the disability requirements or the early intervention requirements is a question of fact to be determined on the balance of available evidence. The Tribunal is required to undertake a ‘fact-finding task’[13] with a relatively high degree of precision and be positively satisfied[14] that LJQD meets either the disability requirements or the early intervention requirements.
[13] National Disability Insurance Agency v Davis [2022] FCA 1002 at [42].
[14] Mulligan v National Disability Insurance Agency (2015) 233 FCR 201 at 213 [55] cited in Re Schwass and National Disability Insurance Agency [2019] AATA 28 at [55]; National Disability Insurance Agency v Davis [2022] FCA 1002 at [61].
Concessions and contentions
LJQD indicated at the commencement of the hearing that she did not rely on any condition of ‘anxiety’ for the purposes of her application and this review.[15] Furthermore, no evidence in relation to any diagnosis of anxiety was placed before the Tribunal for the purpose of this review. LJQD also confirmed that she was not relying on the early intervention requirements.[16]
[15] BD14 at [4]; BD15 at [36]-[37]; BD20a at [8]; Transcript, page 3 lines 1-14.
[16] Transcript, page 124 lines 6-14.
The Agency accepted that LJQD has a disability that is attributable to physical impairments arising from her spinal stenosis and osteoarthritis for the purpose of section 24(1)(a) of the Act.[17]
[17] BD20a at [39].
The Agency contended that LJQD’s physical impairments resulting from her spinal stenosis and osteoarthritis:
·are not permanent or likely to be permanent for the purposes of section 24(1)(b) of the NDIS Act;[18] and
·do not result in a substantially reduced functional capacity for LJQD to undertake self-care, self-management, mobility, communication, learning or social interaction for the purposes of section 24(1)(c) of the NDIS Act.
[18] BD20a at [42] and [54].
The Agency also contended that LQJD is not likely to require support under the scheme for her lifetime for the purposes of section 24(1)(e) of the NDIS Act.
On the basis of a finding by the Tribunal that LJQD’s impairments are permanent, or likely to be permanent the Agency indicated however that it would concede that LJQD’s impairments would affect her capacity for social and economic participation for the purposes of section 24(1)(d) of the NDIS Act.[19]
[19] BD20a at [68].
Evidence about LJQD
LJQD stated that her symptoms have worsened since her application for access to the scheme in 2020. In her August 2023 submission she stated: [20]
‘My days are more terrible than they have ever been in my lifetime. It can take me over 2 hours to get out of the house cause I physical [sic] can't motivate myself like I use to. The stiffness and heavy weight of the right leg impedes my walking ability, I have a lot of trouble hobbling on 1 leg even to make a cup of coffee or Milo I got to be so slow and careful with the jug of boiling water.’
[20] BD17 at [62].
LJQD’s increased level of pain has affected her ability to walk significantly, and she has in fact been using a wheelchair to access the community since April 2023. When inside her home LJQD mobilises using two walking sticks and by holding onto ‘things’.[21] This is because she is unable to get her wheelchair inside her home because of ‘steps’ and a narrow doorway.[22]
[21] BD17 at [61]; Transcript, page 15 line 4.
[22] Transcript, page 77 line 35.
LQJD explained that her home has a shower located over a bathtub. She is unable to use her shower because she cannot lift her right leg over the bathtub.[23] LJQD described her difficulties with her right leg as also affecting her balance.[24]
[23] Transcript, page 79 line 9, page 79 line 47.
[24] Transcript, page 14 line 41; page 80 line 9-11.
At the first day of the hearing LJQD advised that she had attended an appointment on the previous day with an orthopaedic surgeon in respect of her right hip.[25] As a result of this consultation LJQD advised the Tribunal that she was now booked in for a right hip replacement on 23 February 2024.[26] LJQD stated that the orthopaedic surgeon had indicated to her that there was a 95% percent chance that her hip replacement would ‘go well’.[27]
[25] Transcript, page 4 line 38-39.
[26] Transcript, page 8 line 23-28.
[27] Transcript, page 9 line 42.
The Tribunal questioned LJQD on the advice provided to her by the orthopaedic surgeon in respect of the likely outcome of a right hip replacement, particularly in terms of her pain and current symptoms. The exchange between LJQD and the Tribunal was as follows: [28]
[28] Transcript, page 10 line 22 to page 11 line 23.
Senior Member: I’m interested in what the doctor said. What did the doctor say? Providing the operation goes well, will it improve the pain and the symptoms you experience? Will having a new hip improve the pain and the symptoms you experience in your hip?
……
LJQD: Well - He never said it. He never went into that. He only told me about 95 per cent and what could happen in the operation, 5 per cent that it could go wrong, you know.
Senior Member: Did he give you any positive - did he talk to you about what the positive benefits of a - are of a successful hip operation?
LJQD: No, never said anything, but I’m gathering that it’s necessary to have this operation, yes…
He just said it’s 95 per cent surety that things can go right in the - so if it goes right, it means I’ll have better quality of life afterwards, you know.
……
Senior Member: And you’re happy to proceed with the surgery on that basis?
LJQD: I don’t like hospitals, but I’m going because I don’t want to live like this, you know, in a wheelchair or if it’s keeping me or the back’s keeping me or, you know, combination. I want a better quality of life than I’ve got now.
Senior Member: So is it fair to say that he said that, ‘If you have the operation - and there’s a 95 per cent chance that all will go well - you will have a better quality of life?’ Is that a fair - ?
LJQD Yes, I - yes, that’s what I feel myself and what I feel. They wouldn’t operate unless it’s supposed to be my - for my advantage, back to normal.
LJQD also advised the Tribunal that ‘I’m seeing someone about my back but that’s not until 9 February’.[29] LJQD was however unable to identify the practitioner, medical or otherwise, that she was booked to see on 9 February 2024.[30] Subsequently, on the second day of hearing LJQD advised that the appointment on 9 February 2024 in respect of her back was with Mr Sean Walsh, Physiotherapist.[31]
[29] Transcript, page 8 line 32-33.
[30] Transcript, page 8 line 39 - page 9 line 14.
[31] Transcript, page 104 line 34-36.
LJQD explained that for many years she had been receiving cortisone injections in her back. Initially these injections had provided some relief, however the last cortisone injection, approximately six months prior, ‘didn’t’ work’ and made her leg go numb for ‘a period of time’.[32]
[32] Transcript, page 14 line 12.
LJQD’s evidence in respect of previous treatments with physiotherapists and exercise therapists was vague, confusing and of little assistance to the Tribunal.[33] She stated that currently she was unable to do any physiotherapy or other exercise because ‘I can’t do much, because I can’t bend.’[34]
[33] Transcript, page 41 line 29 - page 42 line 18, page 44 lines 28-46.
[34] Transcript, page 14 line 34.
LJQD’s evidence about previous podiatry treatment, including recommendations for orthotics and stretching exercises was also somewhat evasive and of little assistance.[35]
[35] Transcript, page 51 line 13 – page 54 line 45.
LJQD was questioned in relation to a referral to the Royal Perth Pain Management clinic by her doctor in respect of pain treatments. When asked if she had attended the clinic and whether any recommendations were subsequently provided, LJQD stated ‘I might have gone once…I don’t know. I can’t remember. But I just started getting more - more tablets for the osteoarthritis.’[36]
[36] Transcript, page 58 lines 5-7; page 60 lines 9-11.
LJQD’s evidence in relation to pain relief medication was also vague. She confirmed that she took medication for ‘osteoarthritis’ but was unable to provide the name of the medication. When referred to medication listed in her medical records the exchange was as follows:[37]
Senior Member: Have you tried any other medications? I can see there’s lots of medications listed in the medical records?
LJQD: No, they only - they only keep you onto that one - the same one because it’s supposed to work. I don’t like - I mean, like, I live with pain because a lot of them don’t work, I don’t reckon, because - there’s probably other ones with - but I wouldn’t get involved with those ones anyway.
[37] Transcript, page 15 lines 40-45.
Evidence of Dr Machart
Dr Machart is an orthopaedic surgeon. On 29 March 2023 he conducted an in-person assessment of LJQD at the request of the Agency and prepared a report dated 16 May 2023.[38] Dr Machart also gave oral evidence at the hearing. Forming part of his assessment was a review of LJQD’s extensive medical records.[39]
[38] BD7: Report of Dr Frank Machart dated 16 May 2023.
[39] BD7, pages 3-4.
Dr Machart’s evidence was helpful and persuasive. He confirmed his expertise to provide an opinion on both surgical and non-surgical interventions for LJQD in respect of her osteoarthritis and her spinal stenosis.[40]
[40] Transcript, page 98 line 37.
Dr Machart diagnosed LJQD as having severe osteoarthritis in her right hip, severe lumbar spinal canal stenosis and osteoarthritis in the small joints of her fingers in both hands.[41]
[41] BD7, page 5.
Dr Machart’s opinion was that a right hip replacement was a reasonable treatment option for LJQD’s right hip osteoarthritis.
In respect of LJQD’s spinal stenosis Dr Machart stated that spinal canal decompression surgery could be considered, however that this surgery ‘rarely results in satisfactory benefit. This is a degenerative condition. Operation may improve the discogenic claudication, it is unlikely to improve lifestyle sufficiently’.[42]
[42] BD7, page 5.
In relation to LJQD’s bilateral osteoarthritis in her fingers Dr Machart stated, ‘This pathology cannot be medically or surgically reversed.’[43]
[43] BD7, page 5.
Dr Machart explained that the cause of LJQD’s pathology was ‘age-related and constitutional’ and resulted in a ‘substantial impairment of functional capacity’ to the extent that he described LJQD as a ‘very disabled lady, stooped posture, painful joints and substantially diminished ambulation’.[44] Dr Machart noted in his assessment that LJQD utilised a walking stick to assist with her mobility. Dr Machart stated that LJQD could walk short distances which he estimated at less than 50 metres.
[44] BD7, page 6.
Dr Machart described LJQD as managing her self-care with great difficulty as a consequence of her physical symptoms. In this regard he referred to difficulties with cleaning, washing herself and shopping. Dr Machart suggested that ‘housework assistance would be useful’ as well as railings and hand supports which he stated would be best assessed by an occupational therapist.
Evidence of Rebecca Thompson.
Ms Thompson is an occupational therapist. She assessed LJQD by teleconference in November 2022 and provided a subsequent report.[45] Ms Thompson also provided oral evidence at the hearing. Likewise, part of her assessment was the review of LJQD’s extensive medical records.
[45] BD6: Report of Rebecca Thompson dated 7 November 2022.
Ms Thompson confirmed that there was no cure for osteoarthritis and that non-surgical treatment generally included a combination of an exercise program, aids and equipment to support mobility and participation in daily tasks, and pain management including pharmacological treatment and learning strategies in respect of reaction to pain.[46]
[46] BD6 at [3].
Ms Thompson explained that physiotherapy and a tailored exercise plan would assist with decreasing pain, fatigue and muscle tension. It would also assist with the prevention of further deterioration by strengthening the muscles that surround and support the joints affected by osteoarthritis.[47]
[47] Transcript, page 84 lines 6-14.
In relation to the six domains of activity referred to in section 24(1)(c) of the NDIS Act, Ms Thompson provided the following evidence in respect of LJQD’s functional capacity:
·LJQD was able to communicate effectively with others;
·LJQD was able to interact with others in social situations. Any limitations with accessing the community for social activities related to her mobility;
·LQJD was able to able to learn new things and expressed to Ms Thompson a desire in the future to study a surveillance course; and
·LQJD was able to mobilise on her own with the use of a walking stick. In this regard at the time of her assessment LJQD used a walking stick for outdoor mobility. For indoor mobility, LJQD was able to mobilise unaided however used a walking stick indoors on days when her pain was severe.
Ms Thompson estimated LJQD’s walking tolerance to be approximately one kilometre. This estimation was based on the distance LJQD walked from a bus stop to her mother’s nursing home. Ms Thompson was informed by LJQD that this distance of mobility took her nearly 30 minutes.
Ms Thompson explained that there were days when LJQD was unable to access the community due to her level of pain. Also, that at times when accessing the community LJQD was required to sit and rest for an extended period before being able to resume activity.
Ms Thompson explained that osteoarthritis is a degenerative condition and will therefore be likely to become more severe over time as LJQD’s joints continue to degenerate.
Ms Thompson’s opinion was that LJQD was independent of daily self-care tasks and did not require any physical support in this activity. Notwithstanding she stated that LJQD would benefit from some ‘small aids’, stating: ‘Ongoing provision of small aids will assist LJQD to remain independent with self-care tasks until such time as her osteoarthritis has degenerated to the point where she may require physical assistance with showering and dressing tasks.’[48]
[48] BD6 at 5(d).
Ms Thompson also emphasised that the provision of physiotherapy would help maximise LJQD’s strength and condition to maintain maximum joint mobility which would prolong her ability to manage self-care tasks independently.
Ms Thompson’s opinion was that LJQD was able to make decisions independently and manage her affairs independently, including her finances and budgeting. Further to that any issues in relation to attending appointments related to deficits in her mobility and not her ability for self-management.[49]
[49] BD6 at 6(e).
Ms Thompson recommended the following support services for LJQD:
·heavy domestic cleaning and gardening support - two hours per week;
·podiatry - one hour per month to assist with foot care including nail trimming;
·physiotherapy - two hours per week for 12 weeks (and thereafter one hour per week) to improve mobility, strength and joint range of movement;
·assistance with transport one hour per week; and
·a mobility scooter.
Ms Thompson recommended the following small aids for LJQD:
·a sock aid;
·a long-handled shoehorn;
·a folding long-handled ‘reacher’; and
·a long-handled sponge;
Section 24: The Disability Requirements.
Section 24(1)(a)
The evidence overwhelmingly supports, and the Agency accepts that LJQD has a disability that is attributable to a physical impairment arising from her spinal stenosis[50] and osteoarthritis in her right hip and both hands for the purposes of section 24(1)(a) of the Act.[51]
[50] BD20a at [29].
[51] T8, T Documents; BD20a at [33] and [39]; BD1; BD3; BD6; BD7; Transcript, page 7 line 4.
Section 24(1)(a) of the NDIS Act is satisfied.
Section 24(1)(b): Is LJQD’s impairment or impairments, permanent or likely to be permanent?
In National Disability Insurance Agency v Davis [2022] FCA 1002, Justice Mortimer considered the phrase ‘permanent impairment’ and stated at [130]:
‘The phrase “permanent impairment” in s 24(1)(b) means an impairment which is of an enduring nature. In other words, the question for the decision-maker is whether the impairment(s) experienced by an individual (rather than the cause of the impairments or the specific diagnoses made about a medical condition) has or have an enduring quality so as to require supports funded and/or provided under the NDIS Act on an ongoing basis.’
Dr Machart considered that LJQD’s symptoms were consistent with substantial degenerative osteoarthritis affecting her hands, right hip and the lumbar spine.[52] He diagnosed LJQD with severe osteoarthritis of the right hip, confirming that osteoarthritis is a degenerative condition.
[52] BD7 at 1(b).
Dr Machart also diagnosed LJQD with severe lumbar spinal canal stenosis and confirmed that spinal stenosis is also a degenerative condition.[53]
[53] BD7, page 5.
The Agency accepts that LJQD has a disability which is attributable to impairments arising as a consequence of her osteoarthritis and spinal stenosis. Notwithstanding the Agency does not accept that LJQD’s impairments are permanent, or likely to be permanent for the purposes of section 24(1)(b) of the NDIS Act.[54]
[54] BD20a; Transcript, page 6 line 14.
Whether LJQD’s impairments are permanent or likely to be permanent is considered with regard to the NDIS Rules. The relevant NDIS Rules provide as follows:
When is an impairment permanent or likely to be permanent for the disability requirements?
5.4 An impairment is, or is likely to be, permanent (see paragraph 5.1(b)) only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.
5.5 An impairment may be permanent notwithstanding that the severity of its impact on the functional capacity of the person may fluctuate or there are prospects that the severity of the impact of the impairment on the person's functional capacity, including their psychosocial functioning, may improve.
5.6 An impairment may require medical treatment and review before a determination can be made about whether the impairment is permanent or likely to be permanent. The impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated (even though the impairment may continue to be treated and reviewed after this has been demonstrated).
5.7 If an impairment is of a degenerative nature, the impairment is, or is likely to be, permanent if medical or other treatment would not, or would be unlikely to, improve the condition.
The Agency’s position is that the Tribunal should find that there is insufficient evidence to find that medical or other treatment would not and would be unlikely to improve LJQD’s stenosis and osteoarthritis.[55]
[55] BD20a at [42].
The Agency refers to the requirements under Rules 5.4 and 5.6 with the following contentions: [56]
·LJQD’s engagement with recommended treatment options appear limited;
·Dr Machart’s recommendation of hip surgery is an option for LJQD; and
·That surgery is a treatment option for LJQD which needs to be explored before LJQD’s spinal stenosis and osteoarthritis can be considered permanent.
[56] BD20a at [50].
In recognising and accepting that spinal stenosis and osteoarthritis are degenerative conditions for which there is no cure, and that the impairments which follow are also of a degenerative nature, the Agency also refers to the requirements under Rule 5.7. In the application of Rule 5.7 the Agency contends that there is insufficient evidence to satisfy the Tribunal that the LJQD has effectively trialed the various treatments available to her to improve her degenerative conditions.[57]
[57] BD20a at [43].
In my view Rule 5.7 of the Access Rules is the relevant provision for the purposes of determining whether LJQD’s impairments are permanent or likely to be permanent. Having regard to the requirements of Rule 5.7 of the Access Rules I am satisfied that:
·LJQD’s physical impairment relates to her mobility and movement function. It includes difficulty walking distances, getting in and out of a chair, moving and bending her right leg and hip, stiffness and difficulty bending her back;
·LJQD’s physical impairment is due to the effects of osteoarthritis in LJQD’s right hip and also her spinal stenosis. This is because she experiences pain symptoms in her lumbar spine, her legs and her right hip;[58] and
·Osteoarthritis and spinal stenosis are both degenerative conditions that will continue to increase LJQD’s level of physical impairment over time.
[58] BD7, page 2.
On this basis I am satisfied that LJQD has a physical impairment which is of a degenerative nature. The degenerative nature of LJQD’s physical impairment was helpfully explained by Dr Machart in his oral evidence. When asked at the hearing whether he was surprised that LJQD was now using a wheelchair as compared to a walking stick at the time of his assessment in March 2023, Dr Machart stated:[59]
‘No, because it’s a progressive – degenerative disease is progressive and she was substantially disabled in terms of her walking capacity when I saw her.
And time has eclipsed since then so I have no reason to believe that she will be better 12 months later. The prognosis is that she would gradually get worse, and I guess she did.’
Possible medical treatment or other treatment that will improve or are likely to improve LJQD’s right hip osteoarthritis
[59] Transcript, page 110 lines 18-34.
LJQD gave evidence that she had recently consulted with an orthopaedic surgeon in relation to surgical treatment for her right hip.
LJQD’s evidence was that she now proposes to have a right hip replacement on 23 February 2024.
Dr Machart considers that LJQD’s decision to have a right hip replacement is a reasonable course for her stating that the ‘results of hip replacements are excellent’.[60]
[60] Transcript, page 108 lines 33-36.
The benefits of a right hip replacement for LJQD are pain relief in her right hip, with the prospect of no longer needing to use a wheelchair.[61]
[61] Transcript, page 11 lines 6-8.
I am therefore satisfied that surgical treatment by way of a right hip replacement is likely to improve LJQD’s condition of osteoarthritis in her right hip. On this basis I am not satisfied that LJQD’s physical impairment, as a consequence of degenerative osteoarthritis in her right hip, is permanent or likely to be permanent for the purposes of Rule 5.7 of the Access Rules or otherwise.
Section 24(1)(b) of the NDIS Act is not satisfied in respect of LJQD’s right hip osteoarthritis.
Possible medical treatment or other treatment that will improve or is likely to improve LJQD’s spinal stenosis
Spinal stenosis is a major issue for LJQD in the context of her impairment.[62]
[62] Transcript, page 102 lines 43-44.
In regard to treatment options for LJQD, Dr Machart stated in his report that: [63]
‘Spinal canal decompression surgery could be considered. This has not been discussed. Spinal canal decompression surgery rarely results in satisfactory benefit. This is a degenerative condition. The operation may improve the discogenic claudication. It is unlikely to improve lifestyle sufficiently.’
[63] BD7, page 5.
Dr Machart’s evidence was that whilst a hip replacement would help resolve LJQD’s hip pain she would still ‘be weighed down by the other pathology.’[64]
[64] Transcript, page 103 line 2.
In relation to whether a hip replacement would improve LJQD’s mobility Dr Machart also stated: [65]
‘It would not improve…not a great deal. She would walk with less pain, but the thing that’s causing limitation in walking is the condition, spinal canal stenosis, and what they claudication; claudicant pain. What it basically means is that, if the – if the spine is tight because of a degenerative process, it causes pain in both legs, and it’s the pain increases with walking. And generally, you walk a certain distance then you have to stop. Now the hip arthritis does limit her walking to some degree but not to the same degree, and my assessment is the spinal canal stenosis is the more limiting factor in her walking. Yes, she would have less pain, but it doesn’t appear to be that she would increase her walking capacity.’
[65] Transcript, page 103 lines 6-16.
Dr Machart confirmed that a right hip replacement for LJQD would reduce her hip pain, including when she walks although that she would still be left with the residual pain that she experiences as a result of the spinal stenosis and the effects of the claudication.[66] He considered that a hip replacement would achieve ‘almost no benefit in mobility, but less pain.’[67]
[66] Transcript, page 103 lines 28-29.
[67] Transcript, page 106 lines 5-6.
Dr Machart described LJQD’s spinal stenosis as quite severe. Relevantly he emphasised that a spinal decompression and fusion operation (‘spinal canal surgery’) was not ‘a cure’ for LJQD’s spinal stenosis.[68]
[68] Transcript, page 103 line 43.
Dr Machart explained that spinal canal surgery may improve LJQD’s ability to walk[69] however he identified a ’50-50 potential outcomes’ for spinal canal surgery and that this was ‘less acceptable for many patients’.[70]
[69] Transcript, page 104 line 1.
[70] Transcript, page 110 lines 1-21.
Dr Machart’s evidence was that unlike hip surgery, spinal canal surgery is ‘more difficult and has less practicable outcomes’. Dr Machart stated:[71]
‘The spinal operation, she’d have to consider it very carefully because there are – there are a number of bad outcomes, as people are aware, and certainly should be considered’.
[71] Transcript, page 109, lines 35-38.
Dr Machart identified these ‘bad outcomes’ as insufficient relief of pain, the possibility of more pain and a potential ‘hardware’ failure due to osteoporotic bones.[72]
[72] Transcript, page 109 lines 39-44.
In his report Dr Machart stated that spinal canal surgery was not essential for LJQD in the context of her multiple diseased joints and co-morbidities.[73] Further, that ‘Spinal canal compression surgery rarely results in satisfactory benefit. This is a degenerative condition.’[74]
[73] BD7, page 12.
[74] BD7, page 5.
Dr Machart also gave his opinion in respect of non-surgical options for LJQD. He stated that analgesics would result in less pain for LJQD, however that ‘it would not be my recommendation because that would be confining her to taking analgesics for the rest of her life, which would pose substantial problems’.[75] These problems were clarified to be impacts on LQJD’s health and wellbeing including kidney and liver function.[76]
[75] Transcript, page 100, lines 12-16.
[76] Transcript, page 100 line 42.
Dr Machart referred to steroid injections as a treatment option but not a permanent solution.[77] When put to Dr Machart that LJQD considered her last steroid injection had not worked, but rather resulted in temporary numbness in her leg Dr Machart stated ‘if I was her doctor, I would say, ‘Well, look, it hasn’t really helped you sufficiently so there’s no point repeating it.’[78]
[77] Transcript, page 101 lines 20- 31.
[78] Transcript, page 102 lines 32-34.
Having considered the evidence of Dr Machart I am satisfied that:
·There is no cure for LJQD’s spinal stenosis and that any treatment, medical, surgical or otherwise would not improve, or be likely to improve this condition.
·Spinal canal surgery will not improve LJQD’s spinal stenosis. It offers LJQD the prospect of some ‘relief’ from her symptoms[79] which is balanced evenly with a number of substantial risks which include a prospect that LJQD will be worse off.
·The non-surgical suggestions made by Ms Thompson and Dr Machart may assist with pain relief, mobility, muscle strength, posture and fatigue but they will not improve or be likely to improve LJQD’s spinal stenosis condition and the inevitable degenerative sequalae.
[79] Transcript, page 106 line 8.
I am satisfied that there is no medical or other treatment that would, or would be likely to, improve the physical impairment that arises as a consequence of degenerative osteoarthritis in LJQD’s right hip. This impairment is permanent or likely to be permanent.
Section 24(1)(b) of the NDIS Act is satisfied in respect of LJQD’s spinal stenosis.
Section 24(1)(c): Does LJQD’s’ impairment or impairments result in a substantially reduced functional capacity for her communication, social interaction, learning, mobility, self-care or self-management?
In completing LJQD’s application form to the Agency Dr Anthony Cluett, General Practitioner stated that LJQD did not require any assistance in the activities of mobility, communication, social interaction learning, self-care or self-management.[80]
[80] BD8: T Documents, T8.
The interpretation of section 24(1)(c) was considered in National Disability Insurance Agency v Mulligan by Mortimer J who stated: [81]
‘The legislative scheme contemplates a relatively high degree of precision by decision-makers (see, for example, the six activities in s 24(1)(c)) in assessing what a person can or cannot do. The assessment to be undertaken is avowedly functional, and multi-faceted.’
[81] [2015] FCA 544 at [55].
Further that: [82]
‘...No decision-maker need be satisfied a person’s 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.’
[82] Ibid at [56].
Whether LJQD’s impairments substantially reduce her functional capacity for communication, social interaction, learning, mobility, self-care or self-management is to be considered having regard to Rule 5.8 of the NDIS Rules. The relevant NDIS Rule provides as follows:
When does an impairment result in substantially reduced functional capacity to undertake relevant activities?
5.8 An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities—communication, social interaction, learning, mobility, self-care, self-management (see paragraph 5.1(c))—if its result is that:
(a) the person is unable to participate effectively or completely in the activity, or to perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications; or
(b) the person usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in the activity or to perform tasks or actions required to undertake or participate in the activity; or
(c) the person is unable to participate in the activity or to perform tasks or actions required to undertake or participate in the activity, even with assistive technology, equipment, home modifications or assistance from another person
(Tribunal emphasis)
The question of what is meant by ‘effectively and completely’ as appearing in Rule 5.8(a) of the Access Rules was addressed in Foster.[83] Derrington J provided the following observation: [84]
‘In the overall legislative scheme, the adverb “completely” appears to be redundant, and in any event, unachievable. If “completely” is to be given its ordinary meaning, what is being asked of the rule is an assessment of whether a person’s impairment results in substantially reduced functional capacity to participate “wholly” or “perfectly” in the activities of communication, social interaction, learning, mobility, self-care and self-management – an impossible bar for almost everyone.’[85]
‘Within this statutory context, and having regard to the purpose of s 24 as described in the revised Explanatory Memorandum, a person will not necessarily be deemed to have substantially reduced functional capacity simply because one task is unable to be completed without assistive technology. The task remains to assess the degree to which the person can participate in the activity.’
[83] [2023] FCAFC 11.
[84] Ibid, at [88].
[85] [2023] FCAFC 11, at [83].
The issue of LJQD’s functional capacity is relevant only in respect of the impairments which arise as a consequence of her spinal stenosis. This is on the basis that LJQD has not satisfied the requirement that her physical impairment, as a consequence of degenerative osteoarthritis in her right hip, is permanent or likely to be permanent under s24(1)(b) of the NDIS Act.
The Agency submits that section 24(1)(c) is not satisfied.
LJQD however refers to the impact her physical impairments have in relation to her mobility, self-care and self-management to the extent that she now uses a wheelchair.[86]
[86] BD14 at [8].
Communication
Ms Thompson’s evidence is that LJQD does not have any issues with her communication and is able to communicate effectively with others.[87]
[87] BD6, page 10.
Dr Machart acknowledged that it was outside of his area of expertise to provide an opinion on LJQD’s functional capacity in respect of communication however did state ‘…I did not notice communication issues’.[88]
[88] BD7, page 7.
LJQD does not contend that she has a substantially reduced functional capacity in relation to the activity of communication.
Relevantly LJQD gave oral evidence that she likes to attend ‘drop-in centres’ stating ‘I talk to people’.[89]
[89] Transcript, page 74 line 7.
At the hearing I was satisfied that LJQD was able to explain her symptoms and the difficulties that she encounters as a consequence of her symptoms. Prior to the hearing she prepared and provided substantial submissions in support of her application, this included response to the Agency’s contentions.
I am not satisfied that LJQD has a substantially reduced function capacity in relation to the activity of communication.
Social interaction
LJQD does not contend that she has a substantially reduced function capacity in relation to the activity of social interaction.
LJQD’s evidence was that in addition to attending drop-in centres she also visits her mother generally on a weekly basis. LJQD described her mother as her ‘best friend’.[90]
[90] Transcript, page 75 line 19.
LJQD also stated that she does leave her home to visit friends and that she did not like being on her own.[91] She explained also that generally she leaves her home for two or three hours[92] stating: ‘I have to get out of the house. I like seeing people and doing things…I don’t like being home in four walls, what you’d say, looking at four walls.’[93]
[91] Transcript, page 50 line 47.
[92] Transcript, page 75 lines 45-46.
[93] Transcript, page 75 lines 39-43.
In her report, Ms Thompson stated that LJQD likes to attend local eateries and community gatherings and that her ‘issues with social interaction relate primarily to her challenges with mobility.’[94] LJQD also visits friends, attends church and visits her mother who is in a nursing home regularly.
[94] BD6, page 7.
In his report Dr Machart acknowledged that it was outside of his area of expertise to provide an opinion on LJQD’s functional capacity in respect of social interaction however did state, ‘the physical disability causes immobility and likely difficulties travelling.’[95]
[95] BD7, page 7.
I am not satisfied that LJQD has a substantially reduced functional capacity in relation to the activity of social interaction.
Learning
LJQD does not contend that she has a substantially reduced function capacity in relation to the activity of learning.
LJQD gave oral evidence that currently she is not employed, however she stated that she would like to do a surveillance course.[96]
[96] Transcript, page 74 lines 8-9.
I am not satisfied that LJQD has a substantially reduced functional capacity in relation to the activity of learning.
Mobility
LJQD’s evidence is that she uses a wheelchair and a walking stick to assist her with mobilising. Rule 5.8(a) of the Access Rules requires the Tribunal to consider whether LFQD can participate ‘effectively or completely’ in the activity of mobility on the basis that she is unaided by assistive technology, equipment or home modifications other than ‘commonly used items.’
(Tribunal emphasis)
The interpretation of ‘commonly used items’ was considered by the Tribunal in Rooney and National Disability Insurance Agency (‘Rooney’). In Rooney the Tribunal identified the indicia in respect what are to be considered ‘commonly used items’ for the purpose of Rule 5.8(a) of the Access Rules. This indicium included items which are:
·generally accessible;
·can be used without the need for complex or specialised customisation or installation;
·are relatively simple to use; and
·are relatively inexpensive.
The first issue is therefore whether on the basis that LJQD uses a wheelchair and walking stick to mobilise she can rely on the deeming effect of Section 5.8(a) of the NDIS rules to establish that she has a substantially reduced functional capacity in relation to the activity of mobility.
I am satisfied that a wheelchair and a walking stick are both ‘commonly used items’. LJQD is therefore unable to rely on the deeming operation of Rules 5.8(a) of the NDIS rules to establish that she has a substantially reduced functional capacity with respect to her mobility. I make this finding with regard to the indicia in Rooney as follows:[97]
· Both items are easily accessible without referral from a medical practitioner, physiotherapist or other allied health professional;[98]
· Neither items require any ‘particular customisation or prescription’;[99]
· Both items are relatively simple to use; and
· Both items are relatively inexpensive and able to be obtained commercially. [100]LJQD in fact purchased her wheelchair second hand from a wheelchair supplier[101]
[97] Rooney at [27].
[98] Coventry and National Disability Insurance Agency [2024] AATA 259 at [107].
[99] Galea and National Disability Insurance Agency [2022] AATA 2263 at [91].
[100] Power and National Disability Insurance Agency [2023] AATA 3357 at [47] and [71].
[101] Transcript page 77 line 8
I am also satisfied that LJQD remains unassisted by the deeming operation of either Rule 5.8(b) or 5.8(c) of the NDIS Rules. This is on the basis that no evidence was provided to support a contention that LJQD usually requires assistance guidance, supervision or prompting from others to mobilise.
On the basis that the deeming operation of Rule 5.8 is not enlivened I am thereafter required to consider whether LJQD has a substantially reduced functional capacity in relation her ability to mobilise.[102]
[102] Mulligan at [19].
This consideration relates specifically to LJQD’s ability to mobilise in relation to ‘daily life activities’. Relevantly the current Access Guidelines state as follows:
You may be eligible under the disability requirements if you have one or more impairments that are likely to be permanent and this substantially impacts your ability to do daily life activities.
…………….
To meet the disability requirements, we must have evidence of all of the following:
• You have a disability caused by an impairment.
• Your impairment is likely to be permanent.
• Your impairment means you have a substantially reduced functional capacity to do one or more daily life activities. These activities include moving around, communicating, socialising, learning, undertaking self-care, or self-management tasks.
(Tribunal emphasis)
Whether LJQD’s functional capacity is substantially reduced for the purposes of subsection 24(1)(c) of the NDIS Act in respect of her mobility with daily life activities carries a high threshold.[103]
[103] Garcia Albiol and National Disability Insurance Agency [2024] AATA 496 at [68]-[69].
The Access guidelines describe mobility as follows:
Mobility, or moving around – how easily you move around your home and community, and how you get in and out of bed or a chair. We consider how you get out and about and use your arms or legs.
In Madelaine, the Tribunal held (in respect of an earlier but not dissimilar version of the Access guidelines), that the threshold requirements to achieve functional capacity with respect to mobility are ‘relatively modest’ stating that: [104]
‘A person has functional capacity if they can move about their home, get in and out of a bed or a chair, and mobilise in the community. Movement in the home does not need to be achieved by walking, a person might even crawl from room to room. The Concise Oxford Dictionary defines mobile as moveable, not fixed, free to move.
The use of the phrase move around...to undertake ordinary activities of daily living in the Guideline is significant. It implies some expectation of how far a person needs to be able to move to undertake ordinary daily activities, say, getting to the bathroom to wash or toilet, getting to the kitchen to prepare food, perhaps getting to the front letterbox to collect mail. Implicit in this concept is that the distances involved will be relatively short. Significantly, the concept does not include being able to move around in the community for the purpose of accessing services, such as shops, the bus stop or the local park – the phrase moving about in the community is not qualified in the same way that move about the home is qualified by to undertake ordinary activities of daily living. To define mobility by the ability to reach local services would be to make it a function of where one lived. A better application of the concept is to ask whether a person can move about in shops or a park once they have reached them, say by car or public transport.
No particular distance is specified in the Guideline as defining this level of mobility, but it seems reasonable to suggest that a person who can travel 50 m by herself has the capacity to do the things referred to in the Guideline.’
[104] Madelaine at [104]-[105].
LJQD’s evidence was that she goes out during the day ‘a lot’,[105] stating ‘I can please myself when I go out’.[106] She explained that she was able to catch a bus and a train to access the drop-in centres four or five days a week.[107] LJQD also access public transport to visit her mother regularly, friends, local eateries and church events.[108]
[105] Transcript, page 20 lines 34-37; page 75 line 27.
[106] Transcript, page 75 line 35.
[107] Transcript, page 21 lines 25-47.
[108] BD6, pages 11 and 12.
LQJD is also able to attend at her Bank to withdraw money from her account.[109] She is also able to attend at a supermarket and for small grocery shop using a trolley as support.[110]
[109] Transcript, page 24 line 5- 6
[110] Transcript, page 24 lines 14-15; BD6, page 17.
LJQD is able to use her arms to shower herself, shampoo her hair and brush her teeth.[111] She is also able mobilise to use a toilet and put on her shoes, although no longer wears shoes with laces.[112]
[111] Transcript, page 25 lines 27-28
[112] Transcript, page 25 lines 30-31
LJQD described herself as being ‘slow to get out of the chair’ stating ‘I need to hold the chair. Wherever I am, I’ve got to hold the chair. I can’t just stand up straight, you know’.[113]
[113] Transcript, page 75 lines 28 30
LJQD confirmed that she was able to catch a bus to Dr Machart’s surgery in March 2023 and walk a short distance from the bus stop to the surgery with the use of her walking stick.[114]
[114] Transcript, page 74 lines 6-30.
LJQD is able to mobilise within her home using a walking stick. She also uses her arms to hold ‘onto things’. She explained that she does not use her wheelchair inside her house as it is unable to fit through her door.[115]
[115] Transcript page 77 lines 31-36.
Ms Thomson estimated LQJD walking tolerance at one kilometre.
Having regard to the evidence I am satisfied that LJQD is able to participate in a variety of tasks in relation to the activity of mobility to the extent and degree that she does not satisfy what is a relatively ‘high’ threshold requirement. LJQD’s functional capacity to participate in the tasks comprised of the activity of mobilisation is therefore not substantially reduced.
Self-care
The Access Guidelines describe self-care as follows:
Self-care – personal care, hygiene, grooming, eating and drinking, and health. We consider how you get dressed, shower or bathe, eat or go to the toilet.
LJQD will only be considered to have a substantially reduced function capacity in the activity of self-care where there are ‘significant gaps’ in her capacity to maintain her personal health, safety and well-being.[116]
[116] Madelaine at [121].
LJQD is able to wash her body and shampoo her hair, however stated that ‘it takes a long time’.[117] LJQD attends a community disability centre to shower. This Centre has a shower that she is able to physically access and is unlike the shower/bath facility in her home which she currently finds difficult due to mobility issues with her right leg and hip.
[117] Transcript, page 116 line 15.
LJQD is able to brush her teeth and hair whilst seated in her wheelchair. She is also able to toilet herself with the only issue being maneuvering her wheelchair into a toilet.
Dr Machart’s evidence was that LJQD managed her self-care with difficulty as a consequence of her physical symptoms.
Ms Thompson’s opinion was that LJQD was independent with daily self-care tasks. She considered that LJQD did not require any physical support with self-care however that she would benefit from small aids such as a shoehorn, sock aid and long-handled reacher.
I am not persuaded that there are significant gaps in LJQD’s functional capacity to participate in the activity of self-care.
I am satisfied based on the evidence that LJQD’s functional capacity to participate in the tasks comprised of the activity of self-care is not substantially reduced.
Self- management
The Access Guidelines describe self-management as follows:
Self-management – how you organise your life. We consider how you plan, make decisions, and look after yourself. This might include day-today 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
LJQD’s evidence was that she is able to shop for groceries at the supermarket and make decision in respect of her purchases. Likewise she can attend a pharmacy in respect of pharmaceutical needs.
LJQD manages her finances and can attend at a bank to withdraw money.
LJQD has an active social life each week and is able to plan regular activities as referred to at [101]. This includes the necessary planning of accessing public transportation to attend these activities.
Ms Thompson’s assessment indicated that LJQD was capable of managing her finances, making appointments, problem solving and procuring services.
Ms Thompson referred to difficulties with daily tasks such as home maintenance including activities like gardening, climbing ladders and heavier tasks. LJQD is 68 years of age and these are activities that many in this age group find challenging. I am satisfied that LJQD’s ability to self-manage is commensurate with her age group.
I am satisfied based on the evidence that LJQD’s functional capacity to participate in the tasks comprised of the activity of self-management is not substantially reduced.
Conclusion
LJQD does not have a substantially reduced functional capacity in respect of any of the activities in section 24(1)(c) of the NDIS Act.
Having failed to establish that LJQD has a substantially reduced functional capacity pursuant to section 24(1)(c) of the NDIS Act I am not required to considered whether LJQD is likely to require support under the scheme for her lifetime.
Section 25 NDIS Act: The Early Intervention Requirements
At the commencement of the hearing LJQD indicated to the Tribunal that she did not wish to contend that she met the early intervention requirements.[118] Notwithstanding this concession, I am mindful that LQJD is self-represented and that in her submissions made prior to the hearing she contended that she did satisfy the early interventions requirements as a basis for access to the scheme. On this basis it is appropriate that I address this contention by LJQD.
[118] Transcript, page 124 lines 6-14.
At the hearing LJQD provided no evidence as why the provision of early interventions supports would be likely to benefit her by reducing her future needs for supports.[119]
[119] Section 25(1)(b), NDIS Act.
I note that LJQD is now 68 years of age and in the absence of any evidence to support this contention I accept the Agency’s submission that LJQD does not meet the early intervention requirements on the basis of a failure to satisfy section 25(1)(b) of the NDIS ACT.[120]
[120] BD20a at [79].
CONCLUSION
Having failed to meet the mandatory criteria in relation to both the disability requirements and the early intervention requirements LJQD will not be granted access to the scheme.
I do note however that as LJQD is over 68 years of age she has the opportunity to apply for the Commonwealth My Aged Care Program Home Package and an ACAT assessment in order to assess her needs with a view to obtaining the supports she may need.
The Tribunal affirms the decision under review pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).
I certify that the preceding 148 (one hundred and forty-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member J Collins
…………………[SGD].……………..
Associate
2 April 2024
Applicant: LJQD
(Self-represented)
Respondent Solicitor: Ms Kerrie Pieri
(Minter Ellison)
Hearing Dates: 24 and 25 January, 2 February 2024
0
9
0