Madelaine & National Disability Insurance Agency - [2020] AATA 4025

Madelaine and National Disability Insurance Agency [2020] AATA 4025 (13 October 2020)
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL  )
  )     No: 2019/2399
NATIONAL DISABILITY INSURANCE SCHEME DIVISION         )
Re: Teena Madelaine
Applicant

And: National Disability Insurance Agency
Respondent
DIRECTION
TRIBUNAL:  Deputy President Gary Humphries AO
DATE OF CORRIGENDUM:            21 October 2020
PLACE:           Canberra

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:
1.The name of the solicitors for the Respondent on page 41 be changed from ‘NDIA’ to ‘Christopher Bilboe’.

...................................................................
Deputy President Gary Humphries AO
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2019/2399
Re:Teena Madelaine
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Deputy President Gary Humphries AO
Date:13 October 2020
Place:Canberra

The Tribunal affirms the reviewable decision of the National Disability Insurance Agency dated 13 March 2019.
........................................................................
Deputy President Gary Humphries AO
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – access to the scheme – disability requirements – rheumatoid arthritis – chronic regional pain syndrome – left eye visual impairments – whether the applicant’s impairments result in substantially reduced functional capacity to undertake one or more of the activities listed in s 24(1)(c) of the National Disability Insurance Scheme Act (the NDIS Act) – where inconsistency between the NDIS Act and the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 – decision under review affirmed
Legislation
National Disability Insurance Agency Act 2013
Cases
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Holmes and National Disability Insurance Agency [2017] AATA 2750
MHZQ and National Disability Insurance Agency [2019] AATA 810
Mulligan and National Disability Insurance Agency [2015] FCA 544
Secondary Materials
Concise Oxford Dictionary
National Disability Insurance Scheme (Becoming a Participant) Rules 2016
NDIS Operational Guideline
REASONS FOR DECISION
Deputy President Gary Humphries AO
13 October 2020
INTRODUCTION

Ms Teena Madelaine was born in 1967 and now lives on the far south coast of New South Wales. She was once a fit and active person, but in recent years has been afflicted by a range of conditions, including rheumatoid arthritis and chronic regional pain syndrome. As a result, she suffers impairments which have significantly reduced her quality of life.
In 2017 she applied to become a participant in the National Disability Insurance Scheme (NDIS or the Scheme), but on 13 March 2019 her application was refused on the basis that, according to the National Disability Insurance Agency (NDIA or the Agency), she did not satisfy the access criteria in the National Disability Insurance Scheme Act 2013 (the Act). Ms Madelaine applied to this Tribunal for merits review of the Agency’s reviewable decision, made under s 100 of the Act.
A hearing of this application was heard on 23-24 July 2020. Pursuant to protocols enacted following the coronavirus pandemic, the hearing was conducted by videoconference. Ms Madelaine and an occupational therapist, Ms Deirdre Richards, gave evidence.
LEGISLATION
Section 3(1) of the Act sets out the objects of the legislation. These include:
(c) support the independence and social and economic participation of people with disability…
(f) facilitate the development of a nationally consistent approach to the access to, and the planning and funding of, supports for people with disability…
Section 3(3) provides that, in giving effect to the objects in a subsection (1), regard is to be had, inter alia, to:
(b) the need to ensure the financial sustainability of the National Disability Insurance Scheme; and ...
(d) the provision of services by other agencies, Departments or organisations and the need for interaction between the provision of mainstream services and the provision of supports under the National Disability Insurance Scheme.
A person may make an access request to become a participant of the Scheme (s 18). The Scheme’s CEO must determine if that person meets the access criteria (s 20). The provisions describing how a person meets the access criteria are set out in s 21:
(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 disability requirements in section 24 are 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 to one or more impairments attributable to a psychiatric condition; and
(b) the impairment or impairments are, or are likely to be, permanent; and
(c) the impairment or impairments result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the following activities:
(i) communication;
(ii) social interaction;
(iii) learning;
(iv) mobility;
(v) self-care;
(vi) self-management; and
(d) the impairment or impairments affect the person’s capacity for social or economic participation; and
(e) the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime.
(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.
Section 25 sets out the early intervention requirements, describing the circumstances where the provision of early intervention supports may benefit a person with impairments or developmental delay.
Two other documents guide a decision-maker with respect to determining access to the Scheme. Those are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (the Rules) and the Access to the NDIS Operational Guideline (the Guideline). These documents represent government policy and, to the extent they are consistent with the primary legislation, should be applied by a decision-maker, such as the Tribunal, unless there is a good reason not to do so: Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
ISSUES BEFORE THE TRIBUNAL
The reviewable decision of 13 March 2019, refusing Ms Madelaine access to the NDIS, found that she met the age requirements in s 22 and the residence requirements in s 23, but did not meet the following access criteria in respect of her impairments:
(a)permanence (pursuant to s 24(1)(b));
(b)reduced functional capacity (s 24(1)(c));
(c)requirement of NDIS support for her lifetime (s 24(1)(e)); and
(d)various criteria related to the early intervention requirements in s 25.
Initially, these same issues were before the Tribunal at the hearing. However, as the hearing progressed, the issues in contention between the parties narrowed. At the outset of the hearing it was put to the Tribunal that Ms Madelaine suffered from the following impairments:
(a)Rheumatoid arthritis;
(b)Chronic regional pain syndrome (CRPS);
(c)Acute angle glaucoma resulting in visual impairment (visual impairment);
(d)Reflex sympathetic dystrophy (RSD).
In the reviewable decision, the Agency had accepted that Ms Madelaine’s rheumatoid arthritis and visual impairment were permanent (pursuant to s 24(1)(b)), but the chronic regional pain syndrome was not. However, this contention regarding the latter condition was not pressed by the Agency at the hearing. In addition, Ms Madelaine contended that CRPS and RSD are in essence the same condition, and the Tribunal did not understand the Agency to contest this assertion. The effect of these concessions by the parties was that there was no longer a dispute at the hearing that the impairments suffered by Ms Madelaine were permanent.
(The Tribunal was diverted for a time on the question of whether Ms Madelaine’s visual impairment encompassed both her eyes. The Agency accepted that she was blind in her left eye, and that this was permanent. Ms Madelaine gave some evidence about failing vision in her right eye and ulcer growth which had to be removed from that eye from time to time. However, as there was no medical evidence before me related to the condition in her right eye, and it had not been considered by the Agency in assessing her eligibility for access to the Scheme, I did not regard any impairment said to have arisen from the right eye condition to be before the Tribunal. Excluding such an impairment is consistent with the approach taken by the Tribunal in Mulligan and NDIA [2015] AATA 974 at [72].)
In addition, the Agency conceded that if – contrary to its contentions – the Tribunal were to find that Ms Madelaine experienced substantially reduced functional capacity in respect of one or more of the activities referred to in s 24(1)(c), then she would be likely to require support from the Scheme for her lifetime, satisfying the criterion in s 24(1)(e). Finally, although she initially contended that she qualified for access to the scheme on the basis of the early intervention requirements in s 25, Ms Madelaine conceded on the second day of the hearing that she did not meet those requirements, and withdrew this contention.
The effect of all these concessions was that only one issue was ultimately before the Tribunal: did Ms Madelaine’s impairments (rheumatoid arthritis, CRPS and left eye visual impairment) result in substantially reduced functional capacity to undertake one or more of the activities listed in s 24(1)(c)? If they did, she would be entitled to access to the NDIS, but she should be refused access if they did not.
MS MADELAINE’S EVIDENCE
Ms Madelaine told the Tribunal that she had had a very active life before her disabling conditions had set in. Now, she said, there’s not a moment when I’m not in pain.[1] She experiences tremors in her arms or legs on a random basis. As a result, her life is now built around her home – her safe place – and she spends most of her time there. She said I can’t look in the mirror without seeing my disfigurements. She said that there were many things which the Scheme could provide that would make my life so much easier, for example, a railing in her shower recess.
[1] In this decision, italicised text generally indicates a direct quotation.
She is still able to drive her car, though only within a 10-15 minute range of her home. This included Pambula, the nearest town. However, she was often unable to commit to activities outside the home – doctors’ appointments, social engagements – because her conditions made her unreliable. She often does not answer her telephone because I just can’t cope. She is unable to shoot a gun, which she might have needed to do when wild dogs were attacking her sheep. When her property had been threatened by bushfires, she had needed assistance to flee. Her disabilities impaired her ease of movement, and put her at greater risk, she said. She cannot walk on a sandy beach.
She spoke about the difficulties of taking a shower. She said she felt unsafe doing so. On a good day, if someone is here, I will have a quick shower. On other days she might take a sponge bath, a bath in a bag. On occasions she has scalded her legs with hot water in the shower. Bad days, when she might not be able to get out of bed, might occur once or twice a month for two to three days in a row.
Her rheumatoid arthritis affects every bone in my body. A penetration injury of her left eye when she was young has left her blind in that eye; she relies on her right eye, but it is affected by continuing ulcer growth.
Ms Madelaine said:
I can still function. I can still get out of bed. I may not swing out of bed and pop up, glad to see the sun every morning, but after 15, 20 minutes I can get the legs over and I can actually do it. It’s not without risk and it’s never without pain.
Ms Madelaine said that, on a bad day, she is unable to participate in any activity outside the home, and activities inside the home are also severely affected. She has a lightweight wheelchair, but cannot propel herself in it without assistance. In this context, she said that such days arise two to three times a month, for several days’ duration.
Ms Madelaine was cross-examined. She said there were no restrictions on her driver’s licence, but she did not drive on her bad days. There is disability parking very close to both the chemist and the supermarket at Pambula, limiting the distance that she needs to walk to use those services when she drives there. She generally drives her children from her house to the bus stop on school days, a distance of about 1.7 km. The trip to the bus stop takes 2–3 minutes. However, it takes her 10–12 minutes to get from the house to her car. To get her car she has to walk along her porch, down four timber steps with a railing, along a concrete path and down eight stone steps to her garage.
She feels her vision is deteriorating. She feels the day is not that far away when she will have to give up her driver’s licence. She agreed, however, that there was no medical evidence regarding the vision in her right eye.
She lives with her ex-husband and two children. Her ex-husband does not help with managing the home, but does care for the children if she has to go to hospital. He never cooks, for example. She is, in effect, a single mum.
Ms Madelaine uses a four-wheeled walker around her house. She no longer uses the two-wheeled walker she used when she was wearing a moonboot after breaking her foot. She was given the four-wheeled walker when she left hospital in Canberra, although she has since replaced it with a lighter version which she purchased herself. The hospital also provided her with the wheelchair. She can get her four-wheeled walker into her car by herself. If she knows her journey on foot will take a bit longer, she will tend to use her walker over her walking stick. For journeys over 10 minutes she sometimes uses her wheelchair, though this is with someone else’s assistance.
She does not use a long-handled reacher to pick things up. She is able to water her pot plants using a small watering jug that she perches on her walker to travel from plant to plant.
She uses a walking stick in her right hand. She can walk for 10 minutes in the community using her walking stick, though this is less pleasant to do on a bad day. On a bad day, it doesn’t change what you can physically do, but it does affect the pain levels, she said. She gets around her house by holding onto things; she surfs the furniture. She is able to walk down steps by bringing both feet to the same step before moving one foot to the next step.
Ms Madelaine was further asked about showering. She said I’m avoiding the shower, partly because she feels she will fall in it. When she does shower, it’s a very quick splash, using a shower stool, and by holding onto the shower screen. Mostly she uses the bath in a bag. She told the Tribunal on the second day of the hearing that she would not be showering that day, because she was quite sore in my trunk after sitting in a particular position for an extended period during the first day of the hearing. She said that the second day was neither a bad day nor a good day. She said that she can’t shower at all on a bad day. However, she later said that she can’t shower on most days. She clarified this to say that she sometimes can’t shower on a good day either.
She was asked again about in the activities she could do on bad days. She agreed she doesn’t shower or dress, she mostly stays in bed except to drive her children to and from the bus stop and to go to the toilet. This is because I can’t physically do things and because of pain. When she does dress it can take up to an hour. She later clarified that she sometimes could not drive her children to the bus stop, and relies on the lady up the road to do this for her. This happens maybe a few times a month.
Ms Madelaine was a few weeks away from surgery for the removal of a parathyroid tumour when she was assessed at home by Ms Richards in October 2019. She was preparing for the surgery at that time. Counsel for the NDIA put it to her that she had told Ms Richards that her pain levels had increased, and her functionality reduced, because she had reduced her steroid dosage in preparation for the surgery. She agreed she had been reducing her dosage for the preceding two weeks before the assessment. She said, however, that she would have felt the same irrespective of what her steroid dosage was that day, because that was not a good day. The dosage reduction made no difference to her functionality that day. A reduction of 2.5 mg would not have made a difference to her pain levels. She described Ms Richards as hostile, though she agreed that she told Ms Richards that her pain levels had increased and her functionality had reduced that day.
Ms Madelaine agreed she had transferred on and off her bed on the day Ms Richards was present, but had not demonstrated getting into the shower. She also walked from her house to her garage using her walking stick, though it was a very slow walk.
She agreed that she could still go to the shop to buy one bag of groceries once or twice a week, though carrying the bag would sometimes leave a bruise on her arm. She tried to do online shopping at one time, but would end up with, like, 50 packets of bacon. She no longer shops online because she had several thousand dollars skimmed from her credit card. She said she didn’t pick it up looking at her online bank statement because of her impaired vision. In her evidence the following day, Ms Madelaine clarified that nervousness about online fraud was not the reason that she avoided purchasing things on the Internet. The reason is that it’s very hard to go through and just work the whole thing out. This is made worse by hand tremors while using her mobile phone. She agreed however that she could do the online shopping on her computer. She doesn’t, however, because I choose not to do that. The task is tiring and she finds it hard to concentrate. She referred to this later as brain fog.
Ms Madelaine no longer goes to clubs and social groups in Pambula, because she can’t be certain that her condition on any given day will allow her to get there. She would like to attend the sewing club, but she can’t thread a needle; however, I can sit there and be social. She said she has a few good girlfriends. She tries to meet her friend Trudy at a local event centre once a month, but often one or other of them has to pull out. Ms Madelaine said that she sometimes speaks to two of these friends on the phone, and texts one of them, and this friend sometimes meets her at Ms Madelaine’s home.
She told Ms Richards that she had been on a social outing with a friend the weekend before Ms Richards came. Ms Madelaine agreed that she would have been able to do this even with the reduced functioning which the lower steroid dose caused. In fact, she now had no recollection of the outing at all, but she was sure it would have been a short trip. She said I’ve felt like shit many a time but have still been able to go out.

Ms Madelaine uses a knife and fork, but not at the same time. She can prepare meals, but needs help with things that are hard to cut like pumpkin. She can make reminder notes: I can still pick up a pen and write a note. She can send short texts on her phone. She said if she does few-sentence texts her right hand will sometimes tremor. She can’t hold the phone and text with both thumbs. She can do the laundry, but generally needs to stagger the process. She can fold clothes, but only slowly, and she needs lots of breaks. She can brush her teeth. She has an over-the-toilet frame to allow her to get on and off the toilet.
Ms Madelaine agreed that her condition in November 2017, when she was seen by occupational therapist Megan Collins, was overall worse than it was when she was seen by Ms Richards in October 2019. At the time she was recovering after hospitalisation in Canberra and Pambula. She agreed that at that time she couldn’t get in or out of her bed at times, and that she required a carer to mobilise her in a wheelchair.
She said that she was still wearing a moonboot following the break in her foot when she saw occupational therapist Nicky Nilsson in June 2019. She agreed that the moonboot had restricted her movement. She agreed that she would have experienced more restrictions at that time than when Ms Richard saw her some four months later. At that time she was unable to drop her children to the bus stop because she could not drive wearing the moonboot.
She receives three hours of council-funded community care in her home per week, though she commented that the care provider was not always reliable. She can sit in a comfortable chair for up to 30 minutes. She said I’m okay with my finances, though she described finding it difficult to concentrate sometimes.
Ms Madelaine was taken to Ms Richards’ report of 26 May 2020, where she addressed what purported to be criticisms by Ms Madelaine of her earlier report of 25 October 2019. Those criticisms were in a document which was undated, but which was filed in the Tribunal on 13 May 2020. As each of these “criticisms” were put to Ms Madelaine, however, she seemed to either not understand the point that she had originally been trying to make, or simply withdrew them. One exception was Ms Richards’ observation that Ms Madelaine was able to make legible handwritten notes. Ms Madelaine disputed this, saying her notes were generally unreadable. The Tribunal took her to a number of the notes which had been hand-written by her in the tendered material; Ms Madelaine agreed, on closer assessment, that her description of them being unreadable was an exaggeration.
Ms Madelaine was taken to a document entitled ‘Statement of Lived Experience’ dated 3 October 2019. In it she described her daily activities, which included Getting in and out of the shower and Making the bed. She agreed that this description was not consistent with what Ms Richards observed when she visited. In the statement she said I am unable to walk down more than four steps, due to no depth perception and leg tremors. She agreed when questioned by counsel for the NDIA that this was one of a number of inconsistencies between what she wrote and what Ms Richards observed. She also wrote I am on most days housebound, unable to access the community on my own; under cross-examination, she agreed that this was not accurate, and that she meant that she could not do things generally in the community like other people.
Ms Madelaine agreed that in many respects the ‘Statement of Lived Experience’ described her experience on her bad days, rather than a typical day. At that time I had a lot going on. She was also constrained by having to wear the moonboot then, she said.
MS RICHARDS’ EVIDENCE
Three reports of Ms Richards were tendered. The first, dated 25 October 2019, was an assessment following her visit to Ms Madelaine at home. The second, dated 8 May 2020, clarified some matters in that earlier report, and the third, dated 26 May 2020, responded to a range of criticisms made by Ms Madelaine of her original report.
In the October 2019 report, Ms Richards recorded that Ms Madelaine told her on the day of her visit that she had reduced her daily steroid dosage ahead of anticipated surgery at Bega Hospital. As a result, she reported that her pain had increased and her level of function had reduced. Ms Richards made a number of observations regarding Ms Madelaine’s functional capacity for various tasks:
(a)she was able to hold a pen with tripod grip for normal handwriting speed and quality;
(b)she reported having upper limb tremors, although these were not observed during the examination;
(c)she had difficulty with fine motor activities and sustained power grip;
(d)she primarily relied on her right arm and hand to perform functional activities;
(e)she reported problems with her memory and the need to write notes and reminders and was observed to do so during the examination. She was observed to intermittently lose her train of thought;
(f)she ambulated independently within the home, with reduced gait speed, antalgic gait pattern and using furniture for steadying support;
(g)she walked through all areas of the home including to the rear and side access without use of a gait aid;
(h)she ambulated approximately 25 m from her front porch to the garage using a single point stick with reduced gait speed, slowly negotiating the four front porch steps using a step-by-step approach and holding the porch structure, then traversing the grass and negotiating the 12 uneven steps leading to the front yard gate and driveway using her single point stick, and then returning to the house completing 50 m of external walking;
(i)she was independent with bed mobility;
(j)she independently transferred with self-reported pain from her bed, toilet, shower and car;
(k)she held onto the shower screen and frame for support with shower transfers and held onto the bathroom vanity for support with toilet transfers;
(l)she had restricted carrying, lifting and reaching abilities due to use of gait aids as required, but described that on average twice a week she was able to park outside the supermarket, use a single point stick to ambulate inside and carry the equivalent of one bag of groceries;
(m)she reported having about four good days per fortnight during which she was able to walk for up to 10 minutes in the community using either her stick or a lightweight four-wheeled walker, but for greater distances or on bad days she required a manual wheelchair and assistance in propelling it and lifting it into the car;
(n)she had an unrestricted driver’s licence and own vehicle and was able to load a four-wheeled walker in and out of the car independently. She did not drive at night and restricted her driving to the Pambula area;
(o)she presented with normal mood and affect and described a significant amount of positive emotional support by a close friend who called daily and had regular face-to-face contact at the weekends;
(p)specifically with respect to personal care:
(i)she requires intermittent physical assistance at times of heightened pain; otherwise can shower herself briefly;
(ii)she is independent but slow with dressing and uses clothes without fastenings;
(iii)she is independent with hair and teeth, needs physical assistance to cut toenails;
(iv)she is independent with toileting, but has difficulty reaching to wipe;
(v)she is independent with cutlery and mug with right hand, but has difficulty cutting hard foods;
(vi)she needs intermittent physical assistance to see and retrieve dropped medications and has difficulty self-administering eye drops, but independently administers injections;
(vii)she is independent with a standard pen;
(viii)she is independent using an iPhone to call, text and email with a two-hand approach and was observed to text with normal speed and response;
(q)specifically, with respect to domestic activities:
(i)she is independent in preparing a simple breakfast and lunch and stovetop meals cooked in small pans; receives minimal physical assistance from her daughter for cutting and other two-handed tasks and does not use the oven due to difficulty handling trays;
(ii)she is independent at pulling up sheets and quilt, but requires maximal assistance to change linen;
(iii)she is independent at performing washing, but has difficulty with heavier items such as sheets;
(iv)she is independent in wiping and tidying benchtops, but needs maximal assistance for floor surfaces, bathrooms, dusting and all other cleaning tasks;
(v)she is independent to shop for one bag of groceries twice per week, but performs the majority of shopping online;
(vi)she uses online banking with intermittent prompting from family to compensate for visual impairment;
(vii)she is able to water elevated pot plants using a hand-held jug, but otherwise is not independent for other tasks;
(viii)she is not independent for property maintenance tasks.
Ms Richards conducted a test of Ms Madelaine (the Montreal Cognitive Assessment) which indicated mild cognitive impairment.
Her report then considers the six activities referred to in paragraph 24(1)(c) of the Act and expresses the following opinions about Ms Madelaine’s functional capacity with respect to each of them:
(a)Communication: Ms Madelaine is independent with verbal communication, being able to express her thoughts and needs. She did not demonstrate any impairment of receptive language. She concluded that Ms Madelaine did not require any assistance with verbal communication.
(b)Social interaction: Ms Richards reported daily contact with her children and ex-husband. She also noted recent social contacts with her friends Michelle and Trudy. Those contacts included phone calls and text messages. She concluded that Ms Madelaine has the social skills and capacity to interact socially with others, keep friends, behave within socially acceptable limits and cope with feelings and emotions in a social context. Ms Richards also noted that Ms Madelaine’s opportunities for community based social interactions are limited by her restricted walking, activity and driving tolerance, pain, impaired mobility, fluctuating symptoms and fatigue. Her visual impairment means Ms Madelaine has intermittent difficulty in recognising faces.
(c)Learning: Ms Madelaine is able to learn new information and skills. These included enhanced driving features on her relatively new car. She is able to use her mobile phone, desktop computer and home appliances. She had also learned how to self-administer injections. Ms Richards said that she was able to utilise online banking and online shopping from a cognitive perspective, but had difficulty with the visual demands these entailed. Where there are deficiencies, including with her memory, she is able to compensate by writing notes and reminders.
(d)Mobility: Ms Richards noted that Ms Madeleine was able to drive her car, ambulate to the supermarket and chemist and carry out a small amount of shopping. She also noted that she was able to transfer and mobilise within her house independently or using (at that time) a two-wheeled walker. She can mobilise in the community for short distances of approximately 10 minutes, using either her walking stick or a four-wheeled walker.
Ms Richards considered that Ms Madelaine required assessment for a range of other aids including handrails for steps, modifications to her rear ramp for compliance and safety, bathroom rails, raised toilet seat with armrests, electric lift recliner chair and portable mobility scooter (subject to suitability in light of vision impairment and in-car hoist operation). She also noted that she receives some mobility assistance from her friends on weekends, but does not mobilise generally on bad days.
(e)Self-care: Ms Richards considered that Ms Madelaine requires intermittent-minimal physical assistance to complete showering and dressing, dependent upon fluctuating pain and fatigue. She is dependent for toenail cutting. She concluded:
Ms Madelaine requires assessment for a range of other [aids] for increased safety, independence and participation in self-care tasks. These include … shower stool, handrails, handwasher, lever taps, long-handed personal care aids, toilet throne rails, bidet, stool for seated grooming tasks, magnifying mirror, easy drop eye-drop guide, Webster pak Pil-bob device, gripping aids, kitchen trolley, tipping kettle, long-handed reacher, adaptive cutlery and cups.
Ms Richards reported that Ms Madelaine’s daughter gives her physical assistance with personal care, and the council-funded carer cuts her toenails. She considered that she has the capacity to be independent with self-care tasks with aids, modifications and training, though this may still not be possible on bad days. She thought that Ms Madelaine may benefit from an inpatient intensive multi-disciplinary pain management program, but the opinion of a pain management expert should be sought regarding this.
(f)Self-management: She considered that Ms Madelaine is able to make decisions independently, plan and problem-solve. She manages her children, medical care, fire safety strategies and her own finances. She drives to her chemist each week to collect her medication and to her GP every two weeks. She has investigated eligibility for Angel Flight Australia assistance to attend eye specialist services in Canberra. She thought she could use some aids to assist with computer activities and kitchen tasks to compensate for impaired vision and lack of upper limb function.
Ms Richards gave evidence by telephone. She said that she inferred from Ms Madelaine’s comments about a lower steroid dosage on the day of her visit that her level of functioning at the time of her assessment was not necessarily consistent with her average level of functioning. She confirmed that Ms Madelaine had told her that, on a bad day, she was still able to travel from her house to her car in order to drive her children to the bus stop. Other activities were limited to lying in bed and going to the toilet.
She said that she inferred Ms Madelaine was having a bad day on the day of the assessment because she had been housebound for the previous week and because she had weakness down her left side, something she feared was the precursor to a stroke. She observed Ms Madelaine transferring in and out of the shower, to demonstrate how she did so. She simulated cleaning her teeth, and she saw her sending a text message. She simulated cutting and preparing a sandwich. She saw her writing. She did not observe Ms Madelaine mixing up words or being unable to complete a sentence.
Ms Richards was asked about the aids she recommended be assessed for possible use in improving Ms Madelaine’s mobility (referred to in paragraph 45(d) above). She denied that these were aids she needed to mobilise, or to mobilise effectively, but were aids which make mobilising easier or safer. Similarly, the aids which she recommended to assist with self-care (referred to in paragraph 45(e) above) were aids which would make self-care easier, less painful or safer, but were not essential to achieve effective self-care.
With respect to the aids Ms Richards recommended to assist with computer activities relating to self-management (paragraph 45(f) above), she considered that some of these aids might allow Ms Madelaine to do for herself what she now depended on others to do for her. This applies particularly to activities she could not achieve on the computer because of poor vision. However, she also noted that Ms Madelaine was able on the day to read and provide written answers to the Montreal Cognitive Assessment document Ms Richards handed her.
Ms Richards said that some of the aids in all three of these categories could be purchased without recommendation or prescription, but others would require some professional intervention.
Ms Madelaine did not cross-examine Ms Richards.
OTHER ASSESSMENTS OF MS MADELAINE
The Tribunal had before it two other reports by occupational therapists. The first, dated 10 November 2017, was by Ms Collins of the South East Regional Hospital. At this time Ms Madelaine was recovering after hospitalisation, and had limited mobility, including on occasions being unable to get into or out of bed. Ms Collins reported that she was unable to mobilise independently and requires the assistance of a carer to be pushed in a manual wheelchair. She considered that Ms Madelaine did not require assistance with respect to the activities of communication or learning.
The other report, undated but apparently written in about June 2019, was by Ms Nilsson, from Bega Community Health. She said that Ms Madelaine was then still wearing a moonboot following a fracture in her foot. Her report is not couched in terms of the activities referred to in s 24(1)(c). She made limited reference to issues such as learning, communication and self-management.
FUNCTIONAL IMPACT CRITERION – SECTION 24(1)(C)
Section 27 allows the making of rules which, inter alia, prescribe circumstances in which impairments will result in substantially reduced functional capacity to undertake the activities in paragraph 24(1)(c). Pursuant to that power, the Rules offer guidance to a decision-maker on when an impairment results in substantially reduced functional capacity to undertake the activities in s 24(1)(c). The Rules provide:
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.
In addition, the Guideline contains the following guidance for assessing functional impact:
8.3 Substantially reduced functional capacity to undertake relevant activities
The NDIA must be satisfied that an impairment results in substantially reduced functional capacity of a prospective participant to undertake one or more relevant activities (section 24(1)(c)).
The NDIA is required to consider whether any permanent impairment, or permanent impairments when considered together, result in substantially reduced functional capacity to undertake one or more of the following activities:
·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;
·Social interaction: includes making and keeping friends (or playing with other children), interacting with the community, behaving within limits accepted by others, coping with feelings and emotions in a social context;
·Learning: includes understanding and remembering information, learning new things, practicing and using new skills;
·Mobility: this 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;
·Self-care: means activities related to personal case, hygiene, grooming and feeding oneself, including showering, bathing, dressing, eating, toileting, grooming, caring for own health care needs; or
·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.
The NDIA does not need to be satisfied that a person's impairment is 'serious', or more serious than another person's. Rather, access to the NDIS is based on a functional, practical assessment of what a person can and cannot do (see Mulligan and NDIA [2015] FCA 44 at [56]) …
It is sufficient for a prospective participant to have substantially reduced functional capacity in relation to one activity (see Mulligan and NDIA [2015] FCA 44 at 67 )…
The following information provides further guidance in relation to determining when an impairment results in substantially reduced functional capacity:
By itself, reliance on commonly used items will not result in a substantially reduced functional capacity to participate effectively or completely in an activity. Commonly used items include glasses, walking sticks, non-slip bath mats, bathroom grab rails, stair rails, age appropriate child safety locks, simple adapted kitchen utensils and dressing aids.
In considering the role played by assistive technology, home modifications and equipment, the NDIA will consider specific needs arising from the prospective participant's impairment, and whether those needs are met (or need to be met) through the use of specialist disability aids and/or equipment.
Such items would generally be specifically designed to assist in increasing the functional capacity and participation of people with disability and be formally prescribed by a medical practitioner, specialist clinician or allied health professional such as an occupational therapist, physiotherapist or speech therapist.
When considering whether a person requires assistance from others to participate or perform tasks associated with an activity, the NDIA will have regard to whether a person's need for assistance is consistent with normal expectations of a person of a similar age. For example, children under the age of 2 will not necessarily have a substantially reduced functional capacity because they need assistance to provide for self-care needs.
A person will be considered to be unable to participate effectively or completely in an activity if they cannot safely complete one or more of the tasks required to participate in an acceptable period of time. Undertaking a task more slowly or differently to others will not necessarily mean a person cannot participate effectively or completely in an activity.
When considering whether a fluctuating or episodic impairment results in substantially reduced functional capacity to undertake relevant activities, the NDIA will consider the impact on the person's ability to function in the periods between acute episodes.

As Mortimer J explained in Mulligan and NDIA [2015] FCA 544 at [66]-[67], Rule 5.8 is a deeming provision; if a person’s circumstances are caught by its terms, they must be taken to have a substantially reduced functional capacity for the purposes of s 24(1)(c). Accordingly, the Tribunal’s first deliberative task is to decide whether Ms Madelaine circumstances are captured by the deeming provision. If they are not, it must then decide generally whether the impairments otherwise result in substantially reduced functional capacity.
CONTENTIONS
Ms Madelaine
Ms Madelaine told the Tribunal that her objective in bringing her application was that I just want to have some sort of a life. She understood this would not be like the life she had before. To do that, however, she needed support which could best be provided by the NDIS. She would like to do things that were enjoyable, rather than merely undertaking tasks for day-to-day survival.
She said that the Scheme was there to ensure that, when people like herself had reached the maximal medical improvement of a lifelong condition, they would be provided with support to live the best possible lives they could live. She said it was the saddest thing to see herself as housebound, watching TV all day, because she was unable to get out into the community. She spent some time describing to the Tribunal what additional capacity she would receive if she had someone to assist her undertake day-to-day activities, or if she had services such as home-delivered meals. She said that many of these forms of assistance would not actually improve her functional capacity, but would limit my risk of further injury entailed in doing those activities.
The Agency
The NDIA submitted that, based on the observations and opinions in Ms Richards’ reports, the evidence does not support the conclusion that Ms Madelaine has substantially reduced functional capacity for any of the six activities prescribed in section 24(1)(c). While it may be said that she experiences some reduced functional capacity in some activities, she is still able to participate effectively across all six areas. The fact that she uses some aids to do so does not detract from this conclusion given that, as the Guideline indicates (at 8.3):
(a)by itself, reliance on commonly used items will not result in a substantially reduced functional capacity to participate effectively or completely in an activity;
(b)undertaking a task more slowly or differently to others will not necessarily mean a person cannot participate effectively or completely in an activity; and
(c)when considering whether a fluctuating or episodic impairment results in substantially reduced functional capacity to undertake relevant activities, the NDIA will consider the impact on the person's ability to function in the periods between acute episodes.
Accordingly, Ms Madelaine does not meet the functional impact criterion in section 24(1)(c) and therefore does not meet the disability requirements, the Agency contended.
CONSIDERATION
A number of difficulties confronted Ms Madelaine in presenting her case to the Tribunal. A disability advocate who had assisted her in the preliminary stages of these proceedings did not appear at the hearing itself, and this development apparently took Ms Madelaine by surprise. She was evidently disadvantaged by the unanticipated withdrawal of her support person.
Additionally, Ms Madelaine did not lodge prior to the hearing (despite being ordered by the Tribunal to do so) a response to the NDIA’s Statement of Facts, Issues and Contentions. In consequence, the Tribunal had some difficulty determining the precise basis for her claim that the reviewable decision should be set aside. Indeed, at the end of the first day of hearing the Tribunal required that she prepare overnight a short document setting out those activities (as described in s 24(1)(c)) that she could not do effectively or completely on account of her impairments. This document was duly lodged and provided some assistance in clarifying her contentions.
A large number of documents were tendered by her, although very little use was made by her of them in the course of the hearing and their relevance was not generally made clear.
In her report of 25 October 2019 Ms Richards described Ms Madelaine as verbose and tangential at times, with intermittent loss of her train of thought during her examination. The same observation was made by the Tribunal during the hearing, making it sometimes very difficult to determine with precision exactly what evidence she was giving with respect to issues such as her functional capacity. Notwithstanding these difficulties, the Tribunal is confident that Ms Madelaine succeeded in conveying a comprehensive picture of her lived experience, and that her contentions were reasonably clear.
The Tribunal saw Ms Madelaine as, essentially, a truthful witness, but it also notes that her expression tended towards the idiosyncratic and circumlocutory, and to be salted with occasional exaggeration. An example of the former is when it was put to her that her statement that she was unable to access the community on my own was inconsistent with the evidence that she could drive her own car within that community and mobilise for short distances with a walking stick or wheeled walker. She responded by saying that she had meant by this that she was unable to access the community as freely and as often as she desired. An example of exaggeration is when she claimed her handwritten notes were unreadable; on being taken to those notes specifically she agreed that none of them met that description.
A further basis for approaching her evidence with caution is that she told the Tribunal her memory was not good and that she often could not remember things that happened even very recently. For example, Ms Richards reported that Ms Madelaine demonstrated how she got into and out of the shower; Ms Madelaine denied that she would have done this, but admitted she had no recollection of much of what had transpired on the day Ms Richards had done her assessment. Ms Richards’ account is corroborated by Ms Madelaine’s own Statement of Lived Experience, written just a few days before, where Ms Madelaine reports [g]etting in and out of the shower as a daily activity. The upshot of these concerns is that the Tribunal is inclined to treat with caution the evidence by Ms Madelaine of her functional capacity where it is in conflict with other evidence, such as the report of what Ms Richards saw Ms Madelaine do or was told by Ms Madelaine she could do or not do. Again, it should be noted that this does not reflect wilful falsity on Ms Madelaine’s part, so much as an idiosyncratic approach to interpreting events in her life and a poor memory.
A further complication was that Ms Madelaine told the Tribunal she had bad days and good days – and, by implication at least, days that were neither good nor bad – in terms of her functionality. It was difficult to tell on occasions whether a particular self-report of daily capacity described a bad day, a good day, or was of universal application. The Tribunal came away with the impression that much of her testimony regarding capacity described (a lack of) functionality on bad days in particular.
The Tribunal attaches some weight to the evidence of Ms Richards. Her testimony came across as careful, measured and dispassionate. Although Ms Madelaine directed a substantial volume of criticisms at her assessment report in documents lodged before the hearing, as each of these criticisms were subjected to closer scrutiny in the hearing it was either reduced to a semantic disagreement or it was withdrawn. Regarding the very small number of instances where there was a live disagreement between the testimony of the two witnesses, the Tribunal feels compelled to favour the evidence of Ms Richards on the basis that none of these instances was put to her in cross-examination. Her evidence should be regarded as reliable as far as it goes.
She reported that Ms Madelaine told her that her pain was increased and her level of function reduced on the day of the assessment because of a lower steroid dosage. Ms Madelaine did not deny saying this to Ms Richards. Ms Madelaine also seemed to imply that this day was not one of her bad days. On this basis, the Tribunal accepts that what Ms Richards observed on that day was representative of a baseline of Ms Madelaine’s functionality at that time; put another way, any functionality she demonstrated on that day should not be regarded as exceptional or atypical. Indeed, if Ms Madelaine’s functionality was indeed reduced on that day, as she told Ms Richards it was, then she might ordinarily be able to do more, or better, than she showed Ms Richards that she could that day.
By contrast, the reports of Ms Collins and Ms Nilsson are of limited value in the Tribunal’s inquiry. Ms Collins report of November 2017 relates to the period after Ms Madelaine left hospital and had severely constrained mobility, being unable to mobilise without the assistance of a carer. To the extent that she refers to other activities which were constrained – social interaction and self-management, for example – it is clear that she is referring to constraints which flow explicitly from her lack of mobility, for example being unable to meet with social groups because she could not drive herself at that time.
Ms Nilsson’s report focuses largely around Ms Madelaine’s lack of mobility in June 2019 due to her continuing reliance on a moonboot. To what extent her recommendations for assistance would still apply must be guessed at. In any case, neither therapist was called to give evidence.
Much of Ms Madelaine’s evidence was given through the lens of how much better her day-to-day life would be if she was in receipt of NDIS supports. If this was the relevant test, she would undoubtedly succeed in her application for access to the Scheme. It is not, however, the appropriate test, as the Agency correctly observed. The elements of the appropriate test were discussed by Mortimer J in Mulligan at [55]-[56]:
Using the concept of impairment enables assessment of the severity and permanency of a person’s condition, and of the effects of that condition through not only the evidence of an applicant, but also medical and clinical evidence. 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.
That being the case, no arbitrary limits are placed on access to the NDIS. 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. 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. That, in my opinion, 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. That is why a detailed functional assessment is so important.
As her Honour’s précis makes clear, the essential inquiry before the Tribunal entails an assessment of what Ms Madelaine can and cannot do in the face of her impairments, not how much better she could do if she received certain assistance.
Two generic observations need to be made about Ms Madelaine’s submissions with application to each of the activities listed in s 24(1)(c). The first is that she frequently emphasised that she would sometimes take a very long time to complete an activity or would achieve it in a work-around fashion. The inference from this was that these inhibitions went to the question of reduced functional capacity. So, for example, in order to drive her children to the bus stop she would need to set off well before them to get to her car, because it was a very slow walk. However, the Tribunal is mindful of this provision in the Guideline at 8.3.1:
A person will be considered to be unable to participate effectively or completely in an activity if they cannot safely complete one or more of the tasks required to participate in an acceptable period of time. Undertaking a task more slowly or differently to others will not necessarily mean a person cannot participate effectively or completely in an activity.
An acceptable period of time is not defined in the document, but the phrase carries the implication that if a task takes so long to complete that its accomplishment is unreasonably arduous or frustrates its utility, then the task cannot be said to be completed within an acceptable period of time. The Tribunal notes in this case that there appeared to be no activities Ms Madelaine cannot or does not do because they take too long to complete, nor do the work-around arrangements she undertakes appear to defeat the purpose of the activity. In these circumstances, the claim that there is substantially reduced functional capacity because she performs particular activities in a slow or convoluted manner is not substantiated.
The second observation relates to Ms Madelaine’s good and bad days. Although classification was sometimes difficult to achieve, it appears that many of the difficulties she described in undertaking activities were difficulties that occurred only or most frequently on bad days. Her evidence should be understood as asserting that these days were a minority of days in any given month. The NDIA submitted – correctly, in the Tribunal’s view – that functional capacity should not be characterised by what she was able to do on a bad day, given this provision at 8.3.1 in the Guideline:
When considering whether a fluctuating or episodic impairment results in substantially reduced functional capacity to undertake relevant activities, the NDIA will consider the impact on the person’s ability to function in the periods between acute episodes.
The Tribunal will now consider what the evidence demonstrates with respect to the thresholds for reduced functional capacity listed in s 24(1)(c), with particular reference to whether Ms Madelaine’s impairments attract the deeming provisions of Rule 5.8. It will consider the issue of self-care last, because a somewhat different approach must be taken to this activity compared to the others.
Communication – s 24(1)(c)(i)
Ms Madelaine suggested that a number of factors showed she had reduced functional capacity to communicate. These include:
I can’t remember times, dates and events…
I can’t carry out a conversation for any great length of time without losing my train of thought…
I can’t recognise faces, as they appear as a blur…
I can’t answer my phone due to the anxiety that arises…
I can’t remember the simplest words for everyday things…
I can’t just enjoy a conversation as I am constantly aware of my pain…
I can’t use a computer or mobile phone for any length of time required to complete a task due to both physical and visual issues.
These yardsticks may be compared with that set out in the Guideline:
…being understood in spoken, written or sign language, understanding others and expressing needs and wants by gesture, speech or context appropriate to age…
The communication functionality being referred to here is of a fairly basic kind: telling a family member about something that has happened, explaining to a doctor in what part of the body pain is experienced, asking for help to reach something, and so on.
Ms Madelaine easily reaches this level of functionality. The evidence suggests no difficulty speaking clearly in English or being understood. Her expression and comprehension are of a reasonably high order. With respect, her submissions on this activity confuse higher-order issues associated with communication with the basic task of conveying meaning to, and being able to understand, the people around her. As she amply demonstrated over two days of hearing, she is an articulate woman quite capable of formulating and conveying her arguments to the Tribunal. Although she evidently found this tiring, and was prone to digression, it did not seem to prevent her understanding what was being said or responding in a clear and comprehensible manner to issues that emerged, for several hours at a stretch.
Not being able to recognise people as they approach is a different question to being able to communicate with them once they are in fact recognised. Similarly, losing one’s train of thought does not detract from the essential reality that one is capable of undertaking a conversation. And difficulty associated with managing technical aspects of modern communications such as computers and mobile telephones is not the kind of communication which the Guideline contemplates. Ms Madelaine is able to speak, be understood, write messages by hand and send and receive electronic communications, albeit, in the latter category, slowly and with difficulty. As such, she possesses and indeed exceeds the communication skills threshold envisaged in the Guideline.
Separately from the provisions of the Guideline, the Tribunal does not consider that there is any evidence showing reduced functional capacity with respect to this activity.
Social interaction – s 24(1)(c)(ii)
Ms Madelaine gave these examples, inter alia, of a substantially reduced functional capacity for social interaction:
I am unable to attend book club.
I am unable to attend sewing group.
I can’t transport myself outside of a 10 klm radius.
I can’t maintain or make new friendships.
I can’t walk my dogs.
I can’t go fishing.
She emphasised in particular that her fluctuating condition made it difficult to plan social outings, because she would often be too unwell to meet such commitments.
The Guideline at 8.3 describes functional capacity for social interaction in these terms:
…making and keeping friends…interacting with the community, behaving within limits accepted by others, coping with feelings and emotions in a social context…
The Agency drew from the evidence the following examples of Ms Madelaine’s social interaction:
·she interacts with her children daily;
·she meets with friends, including travelling outside her home occasionally to meet with them in social settings; and
·she talks with her friends on the telephone or exchanges text messages with them.
The Tribunal is not persuaded that Ms Madelaine’s impairments offer anything other than a slight impingement on her capacity for social interaction. The criteria referred to in the Guideline are directed principally at personal skills needed for social interaction, and only marginally about opportunities to exercise those skills. In this context, Ms Madelaine strikes the Tribunal as a gregarious conversationalist with a keen sense of humour. On such a foundation social interaction should prove to be no problem for her. Even allowing for the interference caused by pain, the Tribunal can see no reason why she should not be able to observe social boundaries on behaviour and cope with her feelings and emotions when engaging with others. There was nothing to suggest her friends do not continue to enjoy interacting with her or eschew opportunities to do so. Difficulties associated with being able to stick to planned social outings do not take away from the fact that they do nonetheless sometimes occur. When they are cancelled, this is not because of any inadequacy in her social interaction skills but rather to do with issues such as mobility.
Her reasons for not engaging in social interaction with members of the local sewing group and book club are unconvincing. For example, Ms Madelaine was asked why she couldn’t attend the sewing group on days when she felt well enough to drive. She said this is because she would feel very uncomfortable…there are lots of things I can’t do in that setting, despite being able to sit there and be social. The specific example she offered of this was that tremors in her hand would mean the teacup would clatter as she picked it up, disturbing other attendees. She added that, if she had a support person there, they could take the cup from her hand to avoid this problem. Given her evidence that she had actually founded this group, one might have expected a greater level of tolerance and understanding by its members of such small social indiscretions.

In any case, if – which I do not accept – self-consciousness or social awkwardness prevents Ms Madelaine from attending these organisations, then it is difficult to see how this supposed reduced functional capacity has resulted from her impairments. The same lacuna in logic is exhibited in the suggestion that being unable to go fishing or to walk her dogs demonstrates that she has a reduced functional capacity for social interaction.
Ms Madelaine does not meet the threshold in paragraph 24(1)(c)(ii).
Learning – s 24(1)(c)(iii)
Ms Madelaine gave some examples of a reduced functional capacity to learn:
I can’t learn a new skill that requires use of both hands or legs, mental focus and retention of information.
I can’t use a computer for any great period of time.
I can’t continue with writing my book.
I can’t retain information and am easily confused.
I can’t take hand written notes.
I can’t transport myself to a college or learning facility.
I can’t use my new embroidery machine…
Conversely, the Guideline describes a functional capacity to learn as including:
…understanding and remembering information, learning new things, practicing and using new skills…
What the Guideline foreshadows is having the cognitive capacity to absorb and apply new skills. The phrase practising and using new skills should not be interpreted as meaning that any inability to utilise a skill connotes an inability to learn. So, for example, a person might be able to learn the rules of tennis, notwithstanding that they are not physically capable of playing a game of tennis. Thus the question in relation to Ms Madelaine’s capacity to learn, say, how to bank or shop online is not whether hand tremors or small print size inhibit her undertaking this activity, but whether she has the cognitive capacity to do so if those other issues were not present.
it is clear from the report of Ms Richards that Ms Madelaine is capable of absorbing new information and learning new skills. She referred to her being able to use enhanced driving features on her new car, and using her mobile phone, desktop computer and home appliances. She had also learned how to self-administer injections. Ms Richards said that Ms Madelaine was able to utilise online banking and online shopping from a cognitive perspective, but had difficulty with the visual demands these entailed. Where there are deficiencies, including with her memory, she is able to compensate by writing notes and reminders.
Again, with respect, Ms Madelaine confuses higher-order issues associated with this activity with the basic functionality referred to in the Guideline. The issue is not whether there is a TAFE college within driving distance of her home but whether, if she got there, she would be able to understand what a lecturer was saying and absorb the information. Similarly, there was no evidence that she was incapable of understanding how to use her new embroidery machine, but rather encountered physical limitations in actually doing so. Not being able to write a book does not demonstrate she is incapable of learning new things.
Ms Madelaine said that her cognitive impairment made it hard for her to retain information and diminished her capacity for mental focus for extended periods. The Tribunal was unable to find any medical or psychological evidence regarding her cognitive impairment in her own tendered records. Ms Richards conducted a Montreal Cognitive Assessment of her in October 2019 which indicated mild cognitive impairment. Based on her observations and what she was told, Ms Richards did not consider that this impairment prevented her from learning. The Tribunal would come to the same conclusion, based on the evidence it has heard. The sustained basis on which she engaged actively in the Tribunal hearing over two days did not suggest that she was substantially impaired in cognitive terms. It does not appear that this condition makes anything more than a marginal difference to Ms Madelaine’s capacity to undertake activities, including learning.
The Tribunal finds that there is no evidence that Ms Madelaine has a substantially reduced functional capacity to learn.
Mobility – s 24(1)(c)(iv)
Ms Madelaine gave some examples of her compromised functional mobility:
I can’t mobilise for more than 10-20 minutes without difficulty and pain.
I can’t just go for a walk for pleasure.
I can’t use a wheelchair unassisted…
I can’t use my left hand to mobilise on cane that I used daily in a safe manner.
I can’t walk on the beach/sand.
I can’t walk on sloping ground…
I can’t go grocery shopping or manage more than one bag safely.
I can’t go to the snowfields with my children.
I can’t attend the Sydney Easter show…
I can’t use a wheelchair unassisted.
Her evidence was that she uses a walking stick in her right hand. She can walk for at least 10 minutes in this fashion. On a bad day, it doesn’t change what you can physically do, but it does affect the pain levels, she said. She gets around her house by holding onto things; she surfs the furniture. She is able to walk down steps by bringing both feet to the same step before moving one foot to the next step. She did not disagree with Ms Richards’ observation that she was able to ambulate from her front porch to her garage and back again, including at least a dozen steps each way, though she said that this led to the onset of intense…pain. Ms Richards estimated this distance to be a total of 50 m. Although the evidence was not entirely clear, it appears that some of these activities could not be accomplished on bad days.
Ms Madelaine also said that she was only able to drive her car in a 10 km radius from her home.
The Agency submitted that this evidence demonstrates that, except perhaps on bad days, Ms Madelaine does not have substantially reduced functional capacity to mobilise. The evidence demonstrated that, other than on bad days, Ms Madelaine could:
·travel from her house to her garage and back again, using steps and travelling over uneven ground, a distance of 50 m, utilising a walking stick (and in fact she could do this even on some bad days);
·drive her car to Pambula to visit the supermarket and the chemist, using either her walking stick or four-wheeled walker on arrival;
·get up and down from a seated position; and
·ambulate for 10 minutes in the community, at least on some days.
This, said the Agency, demonstrated some reduction in functional capacity, but not substantially reduced functional capacity. It referred to the decision in Holmes and NDIA [2017] AATA 2750, where the Tribunal found that, because the applicant could walk 50 m at a time, he did not have substantially reduced capacity in respect of his mobility. Similarly, in MHZQ and NDIA [2019] AATA 810, the Tribunal found that an applicant who had the potential capacity to walk without aids for 50 m if she lost weight, did not have a substantially reduced functional capacity to mobilise.
The NDIA submitted that the Tribunal should disregard Ms Madelaine’s level of functional capacity on bad days, because these days constituted acute episodes pursuant to the Guideline at 8.3.1, and so should be put to one side.
For the purposes of the deeming provision, the Guideline describes functional capacity to mobilise in these terms:
… 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;
Once again, the threshold requirements to achieve functional capacity in relation to this activity are relatively modest. 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 movable, 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. That view would be consistent with the decisions of the Tribunal in Holmes and MHZQ.
Ms Madelaine appears to be able to reach the thresholds implied by both the Guideline and the dictionary. She is able to get into and out of her bed and into and out of a chair, albeit that some chairs are easier to use than others. She is able to move about her home, using her furniture for support. She can move about independently around her property and in the community using a walking stick. Significantly, her ability to self-mobilise around the Pambula shops is achieved by being able to drive herself there. In this sense, it can be concluded that Ms Madelaine is able to participate effectively and completely in the activity of mobilising herself, as that concept is defined in the Rules and the Guideline.
She emphasised in her evidence that her mobility came at a price: moving about was not without risk and it’s never without pain. The Tribunal accepts that the level of risk of injury associated with certain activities may be so great that the person may be, in effect, prevented from participating effectively or completely in that activity. In Ms Madelaine’s case, there is no medical evidence to justify this contention. Similarly, it is possible that an activity may be so painful that a person is unable to undertake it effectively or completely, but again no evidence has been offered to show that Ms Madelaine’s pain is at this level. The evidence demonstrates, on the contrary, that she perseveres with many activities which she says are painful because she chooses to do them over the alternative. For example, she prefers to drive her children to the bus stop – a distance of 1.7 km – because she is concerned for their safety if they were to walk there.
It is unfortunate that activities she was previously able to accomplish – travelling to Sydney or the snowfields, walking on the beach, walking for pleasure – are now beyond her. But such activities are not the appropriate yardstick. A huge (and, for the purposes of s 3(3), unsustainable) number of Australians would be eligible to participate in the NDIS if they were.
On balance, the Tribunal considers that the evidence establishes that Ms Madelaine can mobilise effectively without assistive technology or equipment (other than commonly used items), pursuant to paragraph 5.8 of the Rules. She can do this on most days, even on some bad days. The commonly used item with which she can mobilise is a walking stick. The issue arose during closing submissions as to whether the four-wheeled walker constitutes a commonly used item, and whether, if it is not, her use of it means that she does rely on specialised equipment to mobilise. The import of 5.8 is that if she requires specialised equipment to mobilise then she is deemed to have a substantially reduced functional capacity.
In the Tribunal’s view, how to characterise the four-wheeled walker is not germane to this inquiry. This is because the evidence establishes that she can travel for 50 m (including over uneven ground and negotiating stairs) using her walking stick. She prefers to use her wheeled walker for journeys of greater than 10 minutes. The fact that she sometimes uses another device, which might constitute specialised equipment, does not detract from the fact that she can travel for 50 m, or for 10 minutes, using a walking stick.
Putting to one side the deeming provision, it seems axiomatic that a person who, in addition to the level of capacity referred to in the previous paragraph, is able to drive herself on most days in a motor vehicle does not experience substantially reduced functional capacity to mobilise. It is, in the Tribunal’s view, irrelevant that the distance she can drive is not great, nor that she may not be able to do this indefinitely. The fact is that she can presently achieve many tasks associated with daily living through the use of her car, including shopping, consulting her doctor, taking her children to the bus stop and attending social outings. On this basis, the Tribunal finds that Ms Madelaine does not have a substantially reduced functional capacity to mobilise.
Self-management – s 24(1)(c)(vi)
In Mulligan and NDIA [2015] AATA 974 at [138] the Tribunal defined self-management in this way:
In our view, activities such as shopping for oneself and cooking are more appropriately viewed as relating to self-care. Self-management connotes a cognitive capacity to organise one’s life, to plan and make decisions, and to take responsibility for oneself.
The Guideline suggests that functional capacity in this area is demonstrated by:
…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.
Ms Madelaine argued that she lacked this functional capacity because of mild cognitive impairment and memory impairment and because her functioning and thinking was affected by chronic pain. On the other hand, Ms Richards considered that she was able to plan, make decisions independently and solve problems. Evidence of this was that she was directing her own medical care, was managing parenting tasks for her children, was arranging fire safety strategies for her property and was managing her own finances (I’m okay with my finances was her evidence).
The picture painted by Ms Richards is not conducive to Ms Madelaine’s portrayal of herself as someone unable to manage her affairs. Throughout the hearing Ms Madelaine described decisions she had made about her life and ways in which she was negotiating the limitations of her condition. There was no indication in this narrative that she was ever incapable of making required decisions about her welfare, although this was often a separate question as to whether she is physically capable of executing some of those decisions. It was also clear that she exercised a large degree of responsibility over the welfare of her children, apparently to a greater extent than their father (conveyed by her self-description as a single mum). This, again, suggests a person quite capable of self-management.
The Tribunal has already indicated that the evidence of cognitive impairment suggests only a relatively mild impact on her activities of daily living. The same should be said of weaknesses in her memory. In summary, the Tribunal can find no evidence of a reduced functional capacity to self -manage, much less a substantially reduced capacity.
Self-care – s 24(1)(c)(v)
The Tribunal finds that Ms Madelaine’s impairments do not result in substantially reduced functional capacity to self-care, but its route to this conclusion is somewhat different to that in respect of the other activities referred to above. It comes to this conclusion by explicitly not applying the deeming provisions of Rule 5.8.
Ms Madelaine gave these examples of a reduced functional capacity to care for herself:
I can’t shower daily.
I can’t always wipe my bottom properly.
I can’t paint my toenails.
I can’t dress neatly.
I can’t style my hair.
I can’t always remember medications or injections.
I can’t look in the mirror without seeing my disfigurements.
I can’t always look after open wounds resulting in infection…
I can’t make my bed by myself…
In her evidence, she also said that sometimes (on bad days) she loses control before reaching the toilet. She can brush her teeth but the exercise was, she said, occasionally comical in execution.
The Guideline at 8.3 describes what concepts self-care encompasses for the purposes of the deeming provision:
…activities related to personal care, hygiene, grooming and feeding oneself, including showering, bathing, dressing, eating, toileting, grooming, caring for own health care needs…
Extrapolating from this provision, it may be said that having a substantially reduced functional capacity to care for oneself imports the idea that there are significant gaps in one’s capacity to maintain personal health, safety and well-being.
Counsel for the NDIA drew attention to these features of the evidence (largely based on the evidence of Ms Richards) which, counsel said, indicated that Ms Madelaine has a substantial capacity for self-care:
·she can shower briefly (a quick splash), albeit that she avoids doing so because she perceives she may be injured;
·as an alternative, she can have a bath in a bag;
·she can dress herself;
·she can do her hair;
·she can brush her teeth;
·she can toilet herself;
·she can cook and eat a meal;
·she can self-medicate, including injections;
·she can make her bed by pulling up the doona;
·she can purchase small amounts of shopping, and order groceries online;
·she can write herself reminder notes;
·she can water indoor and outdoor pot plants;
·she can do the laundry and fold the washing (with lots of breaks); and
·she can use a landline, a mobile phone and a computer.
To perform some of these tasks she needs aids such as a shower stall, handrails and a medication dispenser.
The Agency conceded that she cannot clean her house by herself, cut her toenails, change her bed linen or cut hard foods such as pumpkin. Significantly, these activities are not performed daily, but at most weekly or less frequently. Taking this picture as a whole, it suggested that Ms Madelaine had some reduced functional capacity with respect to self-care, but this fell short of substantially reduced functional capacity.
Ms Richards reported that Ms Madelaine had difficulty reaching to wipe after toileting and could not independently retrieve dropped tablets. She could also often not administer eyedrops efficiently.
Taking this evidence in toto, the Tribunal finds, applying the criteria in the Guideline, that Ms Madelaine is able to undertake many essential tasks relating to personal hygiene, grooming, dressing, cooking, feeding herself and administering medication. Despite the conflicting evidence, it considers that she can shower (however reluctantly) and in any case has an alternative form of bathing herself. She cannot clean her house but the Tribunal notes that this is not recorded as a criterion for self-care. She also cannot cut hard foods, but other, more pliable foods are available for the purposes of nutrition. On the other hand, the Tribunal finds that she cannot always wipe effectively after toileting, she cannot cut her toenails and her capacity to self-administer medication is sometimes compromised by forgetfulness or hand tremors. It should be noted that the evidence does not show that she is only unable to do these things on bad days.

Applying these findings, firstly, to the provisions of s 24(1)(c), it can reasonably be concluded that Ms Madelaine does not have substantially reduced functional capacity to undertake self-care. The things she cannot do, in relation to toileting, grooming and meeting her health needs, indicate some slight reduction in functional capacity, but not so as to amount to a substantial reduction. It could be said that such gaps as there are in her capacity to undertake self-care do not significantly compromise the maintenance of her health, safety and well-being.
However, a different outcome arises from the application of the deeming provision in Rule 5.8. By reason of the deficiencies in her capacity for toileting, grooming and health care, it should reasonably be concluded that she is unable to participate… completely in the activity of self-care (emphasis added). If, for example, she cannot complete the necessary tasks associated with toileting, she cannot be said to perform the tasks required to undertake that activity completely. Toileting is obviously a key component of self-care. Similarly, if medications are dropped and irretrievable, she cannot care for her own healthcare needs completely. On this basis, the Rule requires that she be deemed to have a substantially reduced functional capacity for self-care pursuant to s 24(1)(c).
As can be seen, Rule 5.8 applies a different regime for entry to the Scheme than that outlined in s 24(1)(c). The latter denies her entry but the former facilitates it. In Drake, Brennan J postulated these rules with respect to the application of ministerial policy by the Tribunal:
These considerations warrant the Tribunal’s adoption of a practice of applying lawful ministerial policy, unless there are cogent reasons to the contrary…
When the Tribunal is reviewing the exercise of discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful…
(Emphasis added.)
In this case, it appears that the ministerial policy – Rule 5.8 – imposes a different (and lower) threshold for access to the Scheme than that outlined in s 24(1)(c). In these circumstances, it must be doubted that the rule reflects the intention of the Parliament in enacting s 24. Delegated legislation cannot take away what is clearly conferred by a substantive law, nor, conversely, can it enlarge the ambit or scope of that law beyond what was legislatively intended.
On this basis, employing the discretion in the Tribunal described by Brennan J in Drake, I will apply the entry criteria as outlined in s 24(1)(c) and disregard those in Rule 5.8, to the extent of the latter’s inconsistency with the former.
The Tribunal finds that Ms Madelaine does have a reduced functional capacity for self-care, but this falls short of being a substantially reduced capacity. Accordingly, she does not satisfy the criterion in s 24(1)(c)(v).
CONCLUSION
As Mortimer J made clear in Mulligan, the essential inquiry before the Tribunal entails an assessment of what Ms Madelaine can and cannot do in the face of her impairments. Applying this benchmark, the gist of Ms Madelaine’s evidence on what she could and could not do was captured in testimony such as this:
I can still function. I can still get out of bed. I may not swing out of bed and pop up, glad to see the sun every morning, but after 15, 20 minutes I can get the legs over and I can actually do it. It’s not without risk and it’s never without pain.
Ms Madelaine described many difficulties associated with the activities of daily living – how long they took to accomplish, how she had to devise compromises and workarounds, how doing this sometimes embarrassed or upset her – but there was, ultimately, very little in this range of activities that she could not actually do, particularly if assisted with commonly available aids such as a walking stick, handrails or enlarged print on her mobile phone or computer. On this basis, it is difficult to see how she reaches any of the thresholds for substantially reduced functional capacity listed in s 24(1)(c), quite apart from the deeming provisions in the Rules.
The NDIA acknowledged that Ms Madelaine requires some support as a result of her impairments. But, as the Guideline indicates, the mere need for support does not qualify her for support through the NDIS, much less lifetime NDIS support. Support may be provided through another service system (e.g. health or mainstream services); indeed, she currently receives support of that kind from local government. It should also be noted that her capacity to engage in some of the relevant activities appears to be on a downward trajectory, and on that basis she may qualify for access to the Scheme in the future.
But for the moment, she clearly does not. On this basis, the Tribunal affirms the reviewable decision of 13 March 2019 under s 20 refusing Ms Madelaine access to the Scheme.

I certify that the preceding 134 (one-hundred and thirty four) paragraphs are a true copy of the reasons for the decision herein of Deputy President Gary Humphries, AO

.......................................................................
Associate
Dated: 13 October 2020

Date(s) of hearing:

23 – 24 July 2020

Date final submissions received:

23 July 2020

Applicant:

In person

Counsel for Respondent:

P Bindon

Solicitors for Respondent:

NDIA

Date(s) of hearing:	23 – 24 July 2020
Date final submissions received:	23 July 2020
Applicant:	In person
Counsel for Respondent:	P Bindon
Solicitors for Respondent:	NDIA