Marshall and National Disability Insurance Agency

[2021] AATA 1508

Marshall and National Disability Insurance Agency [2021] AATA 1508 (28 May 2021)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2018/5762

Re:Karen Marshall

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Deputy President J W Constance

Date:28 May 2021

Place:Sydney

The reviewable decision, being the decision made 13 September 2018 to refuse Mrs Marshall’s application for access to the National Disability Insurance Scheme, is affirmed.

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

Deputy President J W Constance

CATCHWORDS

NATIONAL DISABILITY INSURANCE SCHEME – access – cognitive impairment – back pain – right leg pain – access criteria – Rule 5.8 of the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 – where Tribunal not satisfied the Applicant’s impairments resulted in substantially reduced functional capacity – decision affirmed

LEGISLATION

National Disability Insurance Scheme Act 2013 (Cth), ss 3, 4, 24

CASES

Mulligan v National Disability Insurance Agency [2015] FCA 544

SECONDARY MATERIALS

National Disability Insurance Agency Access to the National Disability Insurance Scheme Operational Guidelines

National Disability Insurance Scheme (Becoming a Participant) Rules 2016

REASONS FOR DECISION

Deputy President J W Constance

INTRODUCTION

1. In 1996 Mrs Marshall was severely injured as a pedestrian when she was hit by a bus. She spent months in hospital before she was able to return to her home. Undoubtedly, Mrs Marshall continues to suffer the effects of her injuries and it is highly unlikely she will ever fully recover.

2. In April 2018 Mrs Marshall applied to become a participant in the National Disability Insurance Scheme (the Scheme) established by the National Disability Insurance Scheme Act 2013 (Cth) (the Act). Her request was refused by the Chief Executive Officer of the Respondent Agency on 30 July 2018 on the basis that she did not meet the requirements for access set out in the Act. Mrs Marshall requested a review of this decision and, on 13 September 2018, the decision was affirmed (the reviewable decision).

3. As observed by Mortimer J in the Federal Court of Australia, participation in the Scheme “is reserved for a subcategory of persons with disabilities”[1]. The benefits of the Scheme are not available to everyone living with a disability.

   [1] Mulligan v National Disability Insurance Agency [2015] FCA 544 at [50].

4. Mrs Marshall has applied to the Tribunal to review the reviewable decision. For the reasons which follow, the reviewable decision will be affirmed.

   LEGISLATION

5. As the provisions of the Act (and the Rules made under the Act) determine the eligibility for access to the Scheme, I first set out the relevant provisions.

   Objects of the Act

6. The objects of the Act are set out in section 3:

   (a)in conjunction with other laws, give effect to Australia's obligations under the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006 ([2008] ATS 12); and

   (b)provide for the National Disability Insurance Scheme in Australia; and

   (c)support the independence and social and economic participation of people with disability; and

   (d)provide reasonable and necessary supports, including early intervention supports, for participants in the National Disability Insurance Scheme launch; and

   (e)enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports; and

   (f)facilitate the development of a nationally consistent approach to the access to, and the planning and funding of, supports for people with disability; and

   (g)promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the community; and

   (ga) protect and prevent people with disability from experiencing harm arising from poor quality or unsafe supports or services provided under the National Disability Insurance Scheme; and

   (h)raise community awareness of the issues that affect the social and economic participation of people with disability, and facilitate greater community inclusion of people with disability; and

   (i)in conjunction with other laws, give effect to certain obligations that Australia has as a party to:

   (i)     the International Covenant on Civil and Political Rights done at New York on 16 December 1966 ([1980] ATS 23); and

   (ii)    the International Covenant on Economic, Social and Cultural Rights done at New York on 16 December 1966 ([1976] ATS 5); and

   (iii)   the Convention on the Rights of the Child done at New York on 20 November 1989 ([1991] ATS 4); and

   (iv)   the Convention on the Elimination of All Forms of Discrimination Against Women done at New York on 18 December 1979 ([1983] ATS 9); and

   (v)    the International Convention on the Elimination of All Forms of Racial Discrimination done at New York on 21 December 1965 ([1975] ATS 40).

   General principles guiding action

   7.Section 4 provides the general principles guiding action under the Act, including:

   1People with disability have the same right as other members of Australian society to realise their potential for physical, social, emotional and intellectual development.

   2People with disability should be supported to participate in and contribute to social and economic life to the extent of their ability

   3People with disability and their families and carers should have certainty that people with disability will receive the care and support they need over their lifetime.

   4People with disability should be supported to exercise choice, including in relation to taking reasonable risks, in the pursuit of their goals and the planning and delivery of their supports.

   5People with disability should be supported to receive reasonable and necessary supports.

   6 People with disability have the same right as other members of Australian society to respect for their worth and dignity and to live free from abuse, neglect and exploitation.

   ………..

   8People with disability have the same right as other members of Australian society to be able to determine their own best interests , including the right to exercise choice and control, and to engage as equal partners in decisions that will affect their lives, to the full extent of their capacity.

   ……………

   10People with disability should have their privacy and dignity respected.

   11Reasonable and necessary supports for people with disability should:

   (a)support people with disability to pursue their goals and maximise their independence; and

   (b)support people with disability to live independently and be included in the community as fully participating citizens; and

   (c)develop and support the capacity of people with disability to undertake activities that enable them to participate in the mainstream community and in employment.

   12The role of families, carers and other significant persons in the lives of people with disability is to be acknowledged and respected.

   ……………….

   14People with disability should be supported to receive supports outside the National Disability Insurance Scheme, and be assisted to coordinate these supports with the supports provided under the National Disability Insurance Scheme .

   15Innovation, quality, continuous improvement, contemporary best practice and effectiveness in the provision of supports to people with disability are to be promoted.

   16Positive personal and social development of people with disability, including children and young people, is to be promoted.

   Becoming a participant in the Scheme

7. A person may request to become a participant in the Scheme (section 18).

8. There are certain age requirements (section 22) and residence requirements (section 23) for access which are not in dispute in this matter.

   Disability requirements

9. Subsection 24(1) provides the disability requirements which an applicant must meet in order to gain access to the Scheme:

   (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.

   National Disability Insurance Scheme (Becoming a Participant) Rules 2016

10. These Rules have been made in accordance with section 27 of the Act.

    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.

11. Rule 5.8 provides:

    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.

    National Disability Insurance Agency Access to the National Disability Insurance Scheme Operational Guidelines

12. The Guidelines provide, in part:

    For the purpose of becoming a participant in the NDIS the focus of ‘disability’ is on the reduction or loss of an ability to perform an activity which results from an impairment. The term ‘impairment’ commonly refers to a loss of, or damage to, a physical, sensory or mental function.[2]

    [2] Guideline 8.1.

13. The Guidelines are a policy of the Agency. It was not argued that I should decline to apply the policy. I will proceed on the basis of the definitions I have set out above.

    ISSUES FOR DETERMINATION

14. The following issues arise for determination.

    (1)   What are the relevant impairments suffered by Mrs Marshall?

    (2) Does Mrs Marshall have a disability or disabilities that are attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or to one or more impairments attributable to a psychiatric condition in accordance with paragraph 24(1)(a) of the Act?

    (3) If so, are the impairments permanent or likely to be permanent in accordance with paragraph 24(1)(b) of the Act?

    (4)   If so, do any of the impairments result in substantially reduced functional capacity to undertake relevant activities in accordance with Rule 5.8 of the National Disability Insurance Scheme (Becoming a Participant) Rules 2016?

    (5) Do any one or more of the impairments result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the activities referred to in paragraph 24(1)(c) of the Act?

    EVIDENCE

    Evidence of Mrs Marshall

15. Mrs Marshall gave evidence at the hearing.

16. There is in evidence a statement of Mrs Marshall made 6 April 2020.[3] This statement was filed in a matter before the Tribunal in which her husband, Mr Marshall, is the applicant. By agreement of the parties, the Tribunal released the parties from their implied undertakings as to the use of the document.

    [3] Exhibit R2 at 233.

17. Mrs Marshall was severely injured in July 1996 when she was struck by a bus as she was walking home from work. She was hospitalised from July to November of that year. The disabilities in respect of which she seeks to be accepted as a participant arose from this accident.

18. Mrs Marshall has difficulty communicating with others, particularly those she does not know. She is slow in learning new skills, such as the use of new computer software. Her memory has been adversely affected; she relies on her husband to remind her what she needs to do.

19. In her statement Mrs Marshall said, in part:

    15. John always had a big group of friends and lots of his friends were girls. His best friend, however, is still a man called [R] and [R’s] wife, [S]. We’d go out every few weeks with [R] and [S] for dinner. Before we had Robyn, we “lived” at Newtown, the city, the Erskineville pub, and the Excelsior in Surry Hills. Before John’s accidents there wasn’t a weekend that we didn’t have people over.

    16. After my accident the doctors said it would be pretty unlikely that I would ever get pregnant. Then in 2000 I found out I was pregnant and we had Robyn. [R] and [S] had a baby about the same time and after our babies were born, we kept going out for regular Chinese meals with them. We also saw other friends regularly. We’d drive up to Newcastle for the weekend to see other friends, like our friends [U] and [L], and stay for the weekend, or they would come down here… But we still saw them and other friends regularly – as in, at least once a month.

    17. Since John’s second accident in 2012, we’ve only seen [U] and [L] about two or three times. We can’t just drive up there – it’s too painful for John. We also only see [R] and [S] about four times a year. They live right in the city and John can’t drive very far without being in a lot of pain. He also can’t sit in a restaurant for any longer than he can at home. The entrée will come and he will have to go for a walk. I used to say “if the entrée comes I’ll ring you” or he would try to come back in 5 minutes. Now I don’t bother. We basically don’t go out for dinner – with them or by ourselves or with anyone. We get takeaway and frozen or pre-prepared meals.

    18. The fact that we see [R] and [S] at all is because John tries so hard not to give up seeing his friends because of his pain. He also doesn’t want to give up holidaying – one of his few pleasures left in life. We flew to Perth for John’s 60^th birthday to see friends. It was a nightmare. John was in so much pain on the flight over and during the trip – we had to stop and rest when we were out and about as well as in the hotel. I know it meant a lot to John just to try to go and not give up, but for me it wasn’t worth it.

    19. Even just driving places in Sydney we have to stop a lot – we have to stop every 15 minutes or half an hour. For example, if we go to visit [R] and [S] in Sydney city, we have to stop multiple times. Often John drives along the Great Western Highway rather than the motorway so that its easier to stop more often. If he does take the motorway, John will keep driving until he can’t stand it. When we stop, its not like a short two minute stop. John needs to get out the car, walk around a bit, stretch as much as he can, and then we’ll get back in the car.

    Our days

    20. Since John’s accident, our days are really the same weekday to weekend. One day is the same as every other day. I work two and a half days per week and my mum lives in Penrith so I see her to take her out shopping but John’s day doesn’t change very much at all.

20. In relation to domestic tasks, Mrs Marshall cannot use a vacuum cleaner or properly clean the floor. She cannot cook food. Usually she and her husband eat take-away food and TV dinners. She does dusting, washing and ironing. She negotiates stairs one at a time. She becomes breathless after about 20 stairs.

21. In her statement Mrs Marshall said, in part:

    10. After my accident John kept cooking. I would cook things occasionally but I would leave things on the stove and they would burn or forget them all together and leave a saucepan on the stove with nothing in it and the stove on I would or leave ingredients out. Also, as a result of my accident and brain injury I don’t have any sense of smell so if I left the gas on it could be dangerous for me. After I came home from the hospital and after a couple of accidents John just said don’t cook anymore. And I wasn’t doing it very much anyway. John bough appliances that were more obvious so I would know when things were on (e.g. a glass kettle with bright blue lights etc) and he made all the meals.

    11. Since then all I really do is heat up leftovers in the microwave about once a month – not very often. He always made lunch a lot – I only work 2.5 days per week so I am home Thursday – Sunday. John would remind me to eat – he would always say “would you like some lunch” and make sandwiches or rolls.

22. Mrs Marshall has difficulty with her personal care as she finds it difficult to use the shower and to transfer from the toilet. This is caused by pain from arthritis caused by the accident. She takes medication for pain relief.

23. In her statement Mrs Marshall described her return to work after the accident:

    13. After March 1997, the doctors thought I could go back to work to the same job I had at the time of the accident. I just couldn’t. I took for granted that I was used to having an IQ of 130 or 140 but now my IQ now is in the normal range. I also have short-term memory loss and I can’t control my train of thought too much. If you suddenly become the stupid kid in class that’s not normal for you. Before my brain injury I got every job I ever applied for. Now I struggle with basic clerical duties. I could never go back to my old jobs. I’ve never been the same as I used to be.

24. In November 2020, Mrs Marshall was working five days per week under a temporary arrangement with her employer and had been doing so for the previous five weeks. She normally works two and a half days per week and has been doing so since about 1998.

25. Mrs Marshall described her role in shopping for groceries in her statement:

    33. If John is feeling OK and good enough to drive and get out of the house, he will take his walking stick and we’ll go to the supermarket. He chooses all the food but he gets me to reach and bend for him. I basically go to push the trolley but that’s about the limit of my input. When he is too sore to walk (he walks with a walking stick 100% of the time) he makes a list and I go shopping for him, even though I’m not the cook. This is not an infallible system as I will often forget things that are on the list, but I try. We go shopping once a week and about a third of the time I do the shopping for him.

    Evidence of Mr Marshall, the Applicant’s husband

1. Mr Marshall gave evidence at the hearing.

2. Mr Marshall provided two statements in his application to the Tribunal. With his agreement these statements were provided for the purposes of Mrs Marshall’s application and are in evidence. The statements were made on 26 November 2019[4] and 9 October 2020.[5]

   [4] Exhibit R2 at 224.

   [5] Exhibit R2 at 290.

3. Mr Marshall suffered injuries to his back in 2010 and 2012 and has suffered other health conditions since. His disabilities arising from the injury and conditions have steadily worsened, limiting his ability to assist with domestic tasks.

4. When speaking to others, Mrs Marshall tends to be repetitive and “to say things in unusual ways”[6] which has caused her to lose friends.

   [6] Transcript, 23 November 2020 at 46.

5. In his statement made in November 2019, Mr Marshall described the social life of himself and Mrs Marshall as follows:

   25. Before my injuries, I had a very full life. I am a bit of a “film buff” and also love music, going out for dinner and socialising with friends. Despite Karen’s terrible accident, before 2010 and 2014 we went out for dinner, to go to pubs, or to see friends at their houses (for example, a barbecue etc) most weekends. Since the accidents nearly all our friends have dropped off. We used to see a wide circle of friends weekly – now we see only two friends irregularly.

   …

   27. When my daughter was younger, we lived in Canterbury in the Inner South-West of Sydney. We had memberships of the Zoo and the Maritime Museum and we used to go to one of those places most weekends. Since the accident, we hardly go out as a family. I cannot remember the last time I visited a park or a beach – I avoid outdoor activities as people have bumped into me several times resulting in a fall.

   28. Before the accident, we also used to go away on holidays – we went fishing and travelling overseas. Since the accidents I find it very hard to go fishing and we rarely travel. I cannot drive or sit in a car for long periods and I cannot cast off as I find it very painful to do the throwing action. I also find the repetitive reeling in action difficult.

6. In response to a question as to Mrs Marshall’s learning capabilities and retaining new information, Mr Marshall gave an example of Mrs Marshall having difficulty in learning how to use a new TV remote.

7. Mrs Marshall does little in the way of food preparation. They usually eat take-away food or pre-prepared meals which can be heated in the microwave oven.

8. Mrs Marshall is very slow getting out of the shower and using stairs and often stumbles when walking around the house. Outside she is unsteady on her feet and when shopping she uses a shopping trolley for stability. If she sits in a chair for lengthy periods she appears to suffer stiffness in her joints when she stands.

9. Mrs Marshall frequently tries to move too quickly, causing Mr Marshall to tell her to slow down.

10. There has been a decline in Mrs Marshall’s capacity to the extent that “she can barely answer the phone and type”.[7] He has heard Mrs Marshall answering public enquiries as part of her employment and is concerned about the information she has provided.

    [7] Transcript, 23 November 2020 at 55.

11. Mr Marshall denied that Mrs Marshall cooks meals “at least some of the time”.[8] He says that she prepares sandwiches and heats up left-overs. She assists Mr Marshall by chopping vegetables. He needs to constantly remind her of the task at hand.

    [8] Transcript, 23 November 2020 at 58.

12. Mrs Marshall is able to shop for groceries but when she does she spends more money than Mr Marshall considers appropriate.

    Brain Injury Rehabilitation Unit (Liverpool Health Service) Medical Discharge Summary, 11 October 1996[9]

    [9] Exhibit R2 at 24.

13. Mrs Marshall was discharged from the Unit on 11 October 1996 (admitted 15 August 1996).

14. When Mrs Marshall was discharged it was reported that she had “persistent cognitive defects which require a graduated return to work (memory problems, concentration and easy distractibility.)”[10] She was self-caring with activities of daily living with no assistance.

    [10] Exhibit R2 at 25.

15. In relation to neuropsychology it was reported:

    Emerged from PTA [Post Traumatic Amnesia] after 31 days. She was assessed at 6/52 and was found to have significant deficits in memory, visuospatial abilities and slowing of psychometer processing she also has reduced ability to assume abstract attitude and reduced generativity she has preserved attention and verbal abolition and preserved insight.

    These were described as “moderate cognitive deficits”.[11]

    Speech Pathology Discharge Summary, 11 October 1996[12]

    [11] Exhibit R2 at 26.

    [12] Exhibit A2.

16. When Mrs Marshall was discharged from the Brain Injury Rehabilitation Unit, Ms Turner, Speech Pathologist reported, in part:

    In conversation she is more aware of herself being verbose at times and will often apologise for this. Karen has improved her self-monitoring skills in structured situations. Self monitoring skills currently need to be extended to more information situations such as conversation.

    Summary and Recommendations:

    Karen has been discharged from the Brain Injury Rehabilitation Unit to her house in [redacted] where she will be living with her husband. She has made significant gains with regard to her communication abilities particularly in structured situations with some residual pragmatic deficits. Karen would benefit from some further Speech Therapy sessions to address her self monitoring, evaluation and her responses in conversation.

    Occupational Therapy Public Transport Assessment, 22 November 1996[13]

    [13] Exhibit A3.

17. This assessment was undertaken on 20 November 1996 in conjunction with the Speech Pathologist from the Brain Injury Rehabilitation Unit.

18. Ms Dickson, Occupational Therapist, reported, in part:

    A public transport assessment was conducted with Ms. Marshall in order to assess her cognitive, psychological and social ability to catch public transport to mobilise within her community. This assessment indicated that Ms. Marshall did not experience any cognitive, psychological, nor social difficulties in catching public transport, and would therefore be able to independently catch public transport within the future. It should be noted, however, that this assessment was conducted within an extended time period with little pressure upon Ms. Marshall. A slight concern remains regarding Ms. Marshall’s ability to perform the same assessment within a more demanding time frame, under greater pressure, such as to arrive at work on time, and during a busier period of the day, such as during peak hours where the external stimuli would be even greater. However, at this point in time, Ms. Marshall has proven her ability to be independent in this aspect of her daily living.

    BIRM clinical note, 2 April 1997[14]

    [14] Exhibit A5.

19. The note of Mrs Marshall’s attendance reads, in part:

    Finishing trial period and work this week. At present 9-5 working hours. Did most of the work she did before. Not noticed any problems. Other than she thought her memory was vague at time. Has to write it down before she forgets. Minor physical problem – feels occl catch over (L) (illegible) area.

    No pain after (illegible).

    Sleep – [tick]

    Appetite – [tick]

    Mood – [tick]

    Report of K Ferry, Clinical Neuropsychologist 11 February 1998[15]

    [15] Exhibit R2 at 20.

20. Mrs Marshall was assessed on several occasions by Ms Ferry at the Brain Injury Rehabilitation Unit. The last assessment took place on 11 February 1998.

21. Following this assessment Ms Ferry reported, in part:

    On formal testing Karen’s general intellectual ability was within the high average to superior range. This seems consistent with her estimated premorbid level of ability and has remained constant since previous testing. Verbal processing skills were found to be excellent and continue to present as a significant strength. Karen’s visuo-spatial problem solving skills and constructional abilities remain at an age appropriate level and were not as strong as her verbal skills. Psychomotor processing speed has not shown any improvement and is slowed in comparison to her other skills.

    Memory and new learning for organised, or meaningful, verbal and visual information was excellent, falling at a superior level for both immediate and delayed recall. On this occasion Karen’s retention of information was found to be much more effective with limited loss of information evident in her recall following time delay. It was noted that on an unstructured verbal learning task Karen did not consistently apply organisational strategies to assist her with acquisition of information. Thus her retrieval of information was disorganised and not quite as efficient as her performance had been on other memory tasks. An interference effect was again observed where her previous learning disrupted her ability to then acquire new information, as she did not succinctly shift from one learning task to another.

    Higher level abilities have continued to show improvement with time. Karen’s generativity of ideas, as measured by a task of verbal fluency, has improved to be within the superior range and commensurate with other verbal skills. Planning and organisational abilities have also shown improvement since previous testing and are now within normal limits. However, considering Karen’s general level of ability, this is still thought to be below expectation. Initially her approach to tasks did seem well planned but she was unable to maintain a consistent approach and was somewhat disorganised when adding finer details of information. Karen demonstrated an age appropriate level of cognitive flexibility showing that she was able to develop conceptual sets and then maintain an appropriate problem solving strategy when confronted with changing task demands. Although, once again considering her high level of ability in other areas of cognitive functioning, an ‘average’ performance appears to be below her usual level of achievement and may be indicative of a significant weakness.

    Attention and concentration functions were intact. Karen’s immediate auditory attention span and working memory, her ability to hold and mentally manipulate information, were at a superior level. Her immediate visual attention span was much poorer and at an average level. Qualitatively there was further suggestion of visual attention difficulties as poor attention to detail was noted on several visuo-perceptual tasks.[16]

    Access Request – Supporting Evidence Form completed by Dr Tioukavkin, General Practitioner, 24 April 2018[17]

    [16] Exhibit R2 at 21-22.

    [17] Exhibit R1 at 16.

22. In a brief report dated 24 April 2018, Dr Tioukavkin expressed the opinion that Mrs Marshall:

    ·needed home modifications to mobilise;

    ·needed assistance from other persons to communicate;

    ·did not need assistance with social interaction;

    ·needed assistance with learning;

    ·did not need assistance with self-care;

    ·did not need assistance with self-management.[18]

    Report of Associate Professor Sundaraj, Specialist Pain Medicine Physician, 17 October 2019[19]

    [18] Exhibit R1 at 16-18.

    [19] Exhibit R2 at 66.

23. Mrs Marshall was referred to Associate Professor Sundaraj by her General Practitioner in October 2019. He provided a report dated 17 October 2019; he did not give evidence at the hearing.

24. In his report Associate Professor Sundaraj stated:

    Several major joints are arthritic and causing her a great deal of pain and discomfort.

    ……….

    I am supportive of Mrs Karen Marshall receiving NDIS support for the following reasons;

    -    In view of physical and psychological problems and in particular brain injury. There is evidence of anxiety, post-traumatic stress disorder and possibly clinical depression. Unable to perform physical tasks in and around the home.

    -    She needs the following from NDIS;

    o   Home help care to do the heavier tasks such as vacuuming, cleaning of bathrooms, etc.

    o   Assistance to attend physiotherapy, hydrotherapy and psychological services. It is important that she is followed through with the Neuro-Psychologist and perhaps even a Psychiatrist for her current “mental health issues”.[20]

    [20] Exhibit R2 at 67.

    Evidence of Ms Coffey, Senior Occupational Therapist

25. Ms Coffey was requested by Mr Marshall to assess Mrs Marshall to gather evidence in support of Mrs Marshall’s application to become a participant in the Scheme. Ms Coffey assessed Mrs Marshall in January 2019 and on 10 December 2019 and provided reports dated 10 January 2019[21] and 12 December 2019[22]. She gave evidence at the hearing.

    [21] Exhibit R2 at 36

    [22] Exhibit R2 at 68.

26. In her report of 10 January 2019, Ms Coffey made the following recommendations:

    1.    Mrs Marshall would benefit from provision of a shower chair to promote safety and independence with personal care tasks, along with assessment and recommendation for installation of grab rails within the bathroom to promote reasonable and necessary environmental support to maintain Mrs Marshall's independence with personal care tasks.

    2.    Mrs Marshall will require support and assistance with domestic maintenance as outlined above. It is recommended Mrs Marshall be provided with at least 6 hours of Core Support funding to provide appropriate and adequate, reasonable and necessary support, should an NDIS plan be approved. This would reduce impact of Carer stress and burden, assist in improving relationships and provide opportunity for Mrs Marshall to maintain her current level of function and independence within her environment.

    3.    Mrs Marshall requires scope to complete minor modifications for the front access to their property. As identified, there are safety and accessibility concerns with the front access, posing potential falls risk and trip hazards to Mrs Marshall when accessing her property and the community. Recommendations have been made in the proposed schedule of support for occupational therapy services to be provided with an approved NDIS Plan.

    4.    Mrs Marshall requires access to assistive technology to support and maintain independence with personal hygiene tasks, in order to provide adequate safety measures for transfers. Mrs Marshall would benefit from having access to Low Risk, Low Cost funding for assistive technology items within an approved NDIS Plan.

    5.    Mrs Marshall would benefit from a multidisciplinary approach to promote maintenance of functional mobility and management of pain symptoms associated with her disability. It is recommended that scope be provided within an NDIS approved plan for physiotherapy and/or exercise physiology services to most appropriately address these needs. It is recommended that a professional in this field is consulted with what the most appropriate intervention pathway would be for Mrs Marshall.

    6.    Mr Marshall would benefit from additional support and assistance in developing appropriate strategies to assist in managing her cognitive decline. These supports would involve assessment and evaluation of strategies by an Occupational Therapist, and education to Mrs Marshall and her family, regarding appropriate strategies to implement. Furthermore, monitoring of strategies would be required to ensure these met Mrs Marshall's needs ongoing, were altered or changed if unsuccessful, and were successfully implemented.

    The provision of the above recommendations in achieving reasonable and necessary support is most appropriately funded through the National Disability Insurance Scheme with reference to the ‘reasonable and necessary’ criteria.[23]

    In her report of 12 December 2019, Ms Coffey addressed the questions asked of Ms Hammond relating to the activities specified in paragraph 24(1)(c) of the Act. I will refer to this evidence later in these reasons. Evidence of Ms Hammond, Occupational Therapist

    [23] Exhibit R2 at 40-41.

27. Ms Hammond provided a report dated 22 August 2019[24] and gave evidence at the hearing. She assessed Mrs Marshall on 5 August 2019 over a period of two hours.

    [24] Exhibit R2 at 124.

28. Ms Hammond responded to questions concerning Mrs Marshall’s ability to take part in the specified activities. I will refer to her evidence in this regard later in these reasons.

29. Under the heading Summary and recommendations, Ms Hammond reported:

    Mrs Marshall has managed to maintain employment over an extended period. She independently drives and uses public transport, including taking her mother shopping. She is fully independent in personal care and was dressed appropriately and neatly groomed at assessment. She is independent in most domestic tasks. Her husband limits her participation in shopping and meal preparation, which she appears to accept.

    Based on her presentation and functional capacity at assessment, it is my opinion she has the physical and cognitive capacity to undertake all domestic activities, including shopping using lists and meal preparation using written instructions/prompts as needed for memory aids.

    As stated above, it is my opinion Mrs Marshall’s functional performance is negatively impacted and limited by her reduced self-confidence and sense of self-efficacy. Short-term counselling, under a Mental Health Plan, may assist with improving her self-esteem, social/avocational engagement, and assuming a more functional role within the domestic arena.[25]

    Report of Mr Moody-Basedow, Psychologist, 24 January 2019[26]

    [25] Exhibit R2 at 158.

    [26] Exhibit R2 at 43.

30. Mrs Marshall was referred to Mr Moody-Basedow in October 2018 by her General Practitioner. The referral was for treatment for anxiety and depression. Mr Moody-Basedow had treated Mrs Marshall for the same conditions several years previously. He provided a report dated 24 January 2019. He did not give evidence at the hearing.

31. Mr Moody-Basedow reported, in part:

    [Mrs] Marshall sustained major brain damage and impaired bodily function after she was hit by a bus as a pedestrian and remained in a coma for 9 months. This life threatening event has had and will continue to have a major impact upon all aspects of her life including mentally, physically, emotionally and financially. I am of the strong opinion that [Mrs] Marshall will need both ongoing psychological treatment and physiotherapy (mid-long term) due to the chronic nature of her condition.

    Report of Ms Slater, Registered Psychologist and Ms Shin, Provisional Psychologist, 2 May 2019[27]

    [27] Exhibit R2 at 47.

32. Ms Shin assessed Mrs Marshall in April 2019. Ms Slater reviewed the assessment results and they provided a report dated 2 May 2019; Ms Slater gave evidence at the hearing.

33. Ms Shin conducted several tests of Mrs Marshall’s abilities, including the Wechsler Adult Intelligence Scale – Fourth Edition (WAIS-IV). This test “contains 10 subtests covering verbal comprehension, perceptual reasoning, working memory and processing speed.” [28]

    [28] Exhibit R2 at 49.

34. Ms Slater and Ms Shin reported, in part:

    The WAIS-IV Full Scale IQ (FSIQ)n composite score is derived from 10 subtest scores and is considered the most representative estimate of global intellectual functioning. The Composite Score is the IQ, where the average score is 100. Anything from 90 to 109 is considered Sound Average.

    ………………..

    Karen's overall intellectual functioning is described by her FSIQ score of 102. The overall level of performance ranked her at the 55th percentile, indicating that she scored higher than 55% of adults of the same age in the standardised sample. The score indicates that Karen's overall intellectual functioning is sound average. However, Karen's perceptual reasoning abilities and processing speed were significantly lower than her verbal comprehension and working memory.

    ………………..

    C. Diagnosis

    Based on the findings from the interview and WAIS assessment, Karen does not meet the DSM- 5 criteria for Intellectual Disability. However, results of the Vineland as reported by her husband indicate that Karen's adaptive functioning in day to day activities is severely impaired. The results are consistent with the reported head injury which she sustained in the bus accident. The Vineland indicates that this head injury has affected her adaptive behaviour: that is, the independent and functional application of skills to daily routines and contexts. Karen's self-report indicates a significant level of frustration and at times changes in affect as a result of these difficulties with independent functioning. This again is consistent with her report of the significant downgrade in her work capacity following the injury.

    
    
    

    Whilst the WAIS indicated Karen's abilities in a testing situation, her overall weakness in daily life cannot be overlooked as it is evident that she struggles significantly with everyday activities physically and emotionally as a result of the accident and brain injury. Accordingly, it is recommended that Karen be able to access funding through the NDIS to assist with her daily living which she requires assistance for. If further evidence is required it is recommended that she take a neuropsychological assessment related to the brain injury.

    Evidence of Dr Gates, Clinical Neuropsychologist

1. Dr Gates assessed Mrs Marshall on 13 June 2019 and provided a report dated 18 June 2019.[29] She was asked to address the criteria set out in subsection 24(1) of the Act. Dr Gates gave evidence at the hearing.

   [29] Exhibit R2 at 59.

2. Dr Gates reported, in part:

   Mrs Marshall’s impairments result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, more than one of the following activities described below.

   Applying the Clinical Dementia Rating Scale (CDR) Mrs Marshall has a disability arising from the traumatic brain injury as she has moderate memory loss; mild impairment in community access; mild impairment of home and hobbies; difficulty with orientation; requirements for prompting for self-care; and moderate to severe judgement and problem solving.

   (i) communication; Mrs Marshall has largely intact expressive and receptive language skills however, her frontal executive syndrome impacts her communication as she interrupts, becomes tangential and forgets what she is saying requiring repetition which considerably reduces her ability to communicate logically or in a socially appropriate manner.

   (ii) social interaction; Mrs Marshall demonstrated frontal dysexecutive syndrome during he session being tangential, disorganised, concrete and rigid in her thinking and as a result is considered to have a significant social handicap as a result of her cognitive disability.

   (iii) learning; Mrs has deficits with learning and memory which limit her employment role and require her to have support. Her disability further handicaps her ability to function and complete daily living activities as she forgets and loses track, including forgetting to turn off appliances, and also impacts her relationships as she forgets conversations and other details.

   (iv) mobility; Her physical ambulation / mobility was observed to be limited and she encountered difficulties with steps and reported two falls. She holds a restricted driving license and can access public transport, but her walking disability limits the stations she can access.

   (v) self-care; Mrs Marshall reported anosmia, loss of smell and loss of taste which reduces appetite and pleasure from food, but which also impacts safety as she could not detect fire.

   (vi) self-management; Mrs Marshall is unable to manage her finances, take medication without prompting, complete heavy domestic chores such as vacuuming, or cook food for risk of burning and fire given her anosmia and poor attention, planning and organisation.

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

   Mrs Marshall was observed to have reduced ambulation and frontal dysexecutive deficits impact her capacity for social participation. Mrs Marshall reports that as a result of her issues she forgets she has an estranged relationship with her 18-year-old daughter as she is unable to maintain appropriate interaction or remember conversations and details of her daughter’s daily life. Furthermore, although Mrs Marshall has been able to remain in employment she is supported in the workplace and there is no security that she will maintain her position given her inability to keep up with changes and developments.

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

   Mrs Marshall will continue to have permanent disability which cannot be treated, and her needs will only increase over her life span as she ages, and secondary issues become more prominent. My prognosis is very guarded due to the increased risk of Alzheimer’s Disease in those with a history of traumatic brain injury. There is no available treatment.[30]

   [30] Exhibit R2 at 64-65.

   CONSIDERATION

   The judgement of the Federal Court of Australia in Mulligan v National Disability Insurance Agency[31]

   [31] [2015] FCA 544.

3. In her judgement Mortimer J set out principles which are relevant to the determination of Mrs Marshall’s application.

   (1)In determining a request for access to the Scheme, the decision-maker’s focus is not upon a particular support need. “The determination of what kind of assistance a person should receive under the NDIS is the subject of an entirely separate aspect of the legislative scheme, and one which is relevant only after a person has been found to be a participant. In my opinion, that part of the Tribunal’s reasoning (and for that matter, of the submissions made on behalf of Mr Mulligan to the Tribunal) which focussed on his request for assistance with lawn mowing was a distraction from the task under Ch 3 of the Act.”[32]

   [32] At [40].

   (2)The access criteria in Ch 3 are designed to impose thresholds on access to the Scheme, the benefits of which are “reserved for a subcategory of persons with disabilities.”[33]

   [33] At [50].

   (3)“Impairment” involves “the loss of or damage to a physical, sensory or mental function.”[34]

   [34] At [51].

   (4)“The term “disability” is used in the Act, and in s 24, as a descriptive concept of the overall effect of a person’s abilities to participate in all aspects of personal and community life.”[35]

   [35] At [51].

   (5)Section 24, being a threshold provision, operates on the concept of impairment, not on the concept disability.[36]

   [36] At [51].

   (6)As the Scheme “is based on a functional, practical assessment of what a person can and cannot do”,[37] a detailed, functional assessment is very important.

   [37] At [56].

   (7)The assessment is “avowedly functional, and multi-faceted” and requires a relatively high degree of precision by decision-makers.[38]

   (8)Provided the other thresholds are met, it is sufficient for an applicant to have substantially reduced functional capacity in relation to one of the specified activities.[39]

   (9)The Tribunal must examine “individually, and by reference to the specific evidence and material before it, whether [an applicant’s] circumstances satisfied any of the …. categories in s 24(1)(c) …. relied upon”.[40]

   (10) The role of Rule 5.8

   ·Rule 5.8 of the Rules defines the circumstances in which a person must be taken to have “substantially reduced functional capacity” for the purposes of s 24(1)(c) of the Act.[41] [Original emphasis].

   ·Rule 5.8 operates expressly by reference to each of the activities in s 24(1)(c)(i) to (vi). It requires the decision-maker to look, as a matter of factual assessment, at the outcome or effect of a person’s impairment on the performance of each, and any, of those six activities. If the outcome or effect is any of the outcomes or effects specified in r 5.8(a), (b) or (c), the deeming effect of r 5.8 operates.[42]

   ·As a deeming provision, Rule 5.8 mandatorily includes some applicants within the requirements of paragraph 24(1)(c) if the criteria in Rule 5.8 (a), (b) or (c) are met. If these criteria are not met the decision-maker must turn to consider subsection 24(1)(c).[43]

   ·The concept of “substantially functional capacity” in subsection 24(1)(c) is not defined by Rule 5.8

   [38] At [55].

   [39] At [56].

   [40] At [60].

   [41] At [66].

   [42] At [67].

   [43] At [77].

   General observations concerning the evidence as to functional capacity

4. In considering the weight to be given to the evidence, it is important to bear in mind that I have to be satisfied that Mrs Marshall’s impairments result in a substantially reduced functional capacity, which requires a detailed functional assessment of what Mrs Marshall can and cannot do.

5. There is no doubt that Mrs Marshall suffered extremely severe brain and other physical injuries in 1996. The records of her discharge from the Brain Injury Rehabilitation Unit establish this. Based on the evidence of Mrs Marshall, Ms Slater, Dr Gates and Dr Tioukavkin, I am satisfied that she has not recovered completely and that she will never do so.  However, based on the Brain Injury Rehabilitation Unit records, I am satisfied that by the time of her discharge in October 1996 Mrs Marshall’s condition had significantly improved.

6. The Advocate for Mrs Marshall argued that “severe injury, be they [sic] to the brain or orthopaedic in nature, arising from being run over by a bus, it’s uncommon for them not to result in substantially reduced functional capacity, especially in later life, with arthritis and ageing cognitive faculties.”[44] There is no evidence to support this proposition, but in any event it does not assist me to reach a conclusion as to the extent of the reduction in capacity suffered by Mrs Marshall.

   [44] Transcript, 24 November 2020 at 131.

7. The Advocate argued further that Mrs Marshall’s demeanour when she gave evidence was “highly emotional, labile, very forgetful and entirely consistent with the neurological evidence that has come from the neuropsychologist.”[45] I did not observe sufficient variations in Mrs Marshall’s demeanour to enable me to accept this argument. In any event I would be very reluctant to do so based on my own observations.

   [45] Transcript, 24 November 2020 at 133.

8. Before I turn to consider Mrs Marshall’s functional capacity in respect of each of the specified activities, I make the following observations in relation to the evidence in these proceedings.

9. Significant portions of the evidence related to the supports which Mrs Marshall may require should she become a participant in the Scheme, rather than addressing the requirements for her to become such a participant.

10. Dr Tioukavkin concentrated on Mrs Marshall’s needs for support, as did Associate Professor Sundaraj and Mr Moody-Basedow. Similarly, in her first report Ms Coffey principally addressed Mrs Marshall’s need for support. As the Federal Court made clear in Mulligan, these are not matters for consideration in an application for access.

11. Mrs Marshall was assessed by Ms Coffey in January 2019 and December 2019 and by Ms Hammond in August 2019. Ms Coffey provided her second report after considering the report of Ms Hammond. Having read their reports and listened to both experts, I prefer the evidence of Ms Hammond to that of Ms Coffey whenever their opinions differ. My reasons for this are set out in the following eight paragraphs.

12. When Ms Coffey prepared her first report she did not to understand the criteria she needed to address and concentrated on the supports she considered Mrs Marshall would require if she became a participant in the Scheme.[46] It was only after she was made aware of Ms Hammond’s report that she addressed the relevant criteria.

    [46] Transcript, 24 November 2020 at 104.

13. Further, Ms Coffey agreed that her role was to gather evidence to assist Mrs Marshall in her application to become a participant and in that sense her assessment was not independent.[47]

    [47] Transcript, 24 November 2020 at 104.

14. At the time Ms Coffey gave evidence before me she was unaware of the nature of Mrs Marshall’s employment.  In relation to Mrs Marshall’s performance of household tasks, she agreed that, because of conflicting evidence, it was unclear whether Mrs Marshall experienced performance difficulties.[48]

    [48] Transcript, 24 November 2020 at 106.

15. Ms Coffey was confused as to Mrs Marshall’s functioning in self-care and gave different opinions as to her functionality in her two reports.[49]  On the question of communication skills, Ms Coffey agreed that having learned of the nature of Mrs Marshall’s employment this strengthened her opinion that Mrs Marshall can communicate effectively.[50]In her report Ms Hammond considered the reports and other records provided to her and provided details of her observations and reasoning behind her opinions. She included detailed observations of the activities she observed Mrs Marshall perform. When giving evidence she said that the Vineland assessment was a paper-based assessment completed by Mr Marshall without any input from an Occupational Therapist. It provides a background to observations and assessment.

    [49] Transcript, 24 November 2020 at 107.

    [50] Transcript, 24 November 2020 at 108.

16. Ms Hammond gave her evidence clearly and maintained her views of Mrs Marshall’s functionality based on her observations of Mrs Marshall in her home environment. She was aware of the seriousness of Mrs Marshall’s injuries but her focus was on how Mrs Marshall was functioning at the time of the assessment.

17. Ms Hammond agreed that a person who has suffered multiple physical trauma is likely to develop osteoarthritis and accepted that Mrs Marshall may have discomfort when she walks.

18. Ms Hammond’s observations and opinions are consistent with the statement of Mrs Marshall made in April 2020 and that made by Mr Marshall in November 2019.

19. For the following reasons I prefer the evidence of Ms Hammond to that of Dr Gates on the issue of the effect of Mrs Marshall’s impairments on her functional capacity.

20. At the time she gave evidence Dr Gates was not experienced in assessments under the NDIS Act. Prior to assessing Mrs Marshall, she was not familiar with the criteria for participation in the Scheme.[51]

    [51] Transcript, 23 November 2020 at 70.

21. Dr Gates had not been provided with the reports of Ms Hammond or the second report of Ms Coffey and had not considered them prior to giving evidence. When she gave evidence Dr Gates said that, in general, she relied on some occupational therapy reports to formulate her opinion and some occupational therapy reports she did not bother to read.[52] I do not have the benefit of being informed of what, if any, weight Dr Gates would place upon the second report of Ms Coffey and the report of Ms Hammond and whether the information they contained would have influenced her conclusions.

    [52] Transcript, 23 November 2020 at 78.

22. When asked to further explain the assessments she made in respect of each of the activities listed in paragraph 24(1)(c), Dr Gates declined to do so on the basis that she did not have all the information she needed and she did not feel equipped to say what she thought on the information available to her in July 2019.[53] My references to Dr Gates’ evidence later in these reasons should be read with this qualification.

    [53] Transcript, 23 November 2020 at 77.

23. Ms Slater reports that Mrs Marshall’s overall intellectual functioning is “sound average”, although her day-to-day adaptive functioning is “severely impaired”. The latter assessment was based on the Vineland assessment completed by Mr Marshall. Ms Slater said that the purpose of a Vineland assessment is “purely to be looking at somebody else’s perception of the person.”[54]

    [54] Transcript, 23 November 2020 at 89.

24. Ms Slater’s conclusion that Mrs Marshall “struggles significantly” with everyday activities does not assist me in determining the extent of any reduction in Mrs Marshall’s functional capacity in relation to those activities. She did not explain further the basis for her recommendation that Mrs Marshall have access to the NDIS Scheme.

    Issue 1: What are the relevant impairments suffered by Mrs Marshall?

25. In her application for access to the Scheme, Mrs Marshall specified brain injury/ short term memory loss and pain in her back and a right leg issue as the impairments in respect of which she made the application.[55] This was confirmed in the Applicant’s Statement of Facts, Issues and Contentions dated 6 February 2020.[56]

    [55] Exhibit R1 at 12.

    [56] Exhibit R2 at 88.

26. The Agency concedes that Mrs Marshall suffers a cognitive impairment and that this is an impairment within the meaning of the Act.[57] I am satisfied that this is an appropriate concession.

    [57] Transcript, 24 November 2020 at 137; Respondent’s Statement of Facts, Issues and Contentions dated 11 March 2020 at [49].

27. Based on the evidence of Associate Professor Sundaraj, I am satisfied that Mrs Marshall suffers from an arthritic condition causing pain in her back and right leg. Although the nature of the right leg issue was not made clear in Mrs Marshall’s application for access, on the evidence of Mrs Marshall I am satisfied this is what was intended. I take into account that the claim in relation to the right leg was referred to by the Delegate of the Chief Executive Officer in the reviewable decision.[58] There is no evidence to suggest that Mrs Marshall was asked to provide further information regarding this aspect of her application for access.

    [58] Exhibit R1 at 9.

28. I am satisfied that the disease of arthritis causing pain is damage to a physical function of a joint and therefore is an impairment.

29. I am satisfied that the relevant impairments for the purpose of the application of subsection 24(1) of the Act are cognitive impairment and arthritis in the back and right leg causing pain.

    Issue 2: Does Mrs Marshall have a disability or disabilities that are attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or to one or more impairments attributable to a psychiatric condition in accordance with section 24(1)(a) of the Act?

30. The Agency concedes that Mrs Marshall has a disability that is attributable to her cognitive impairment. I am satisfied that this is a proper concession.

31. On the basis of the evidence of Associate Professor Sundaraj and Mrs Marshall, I am satisfied that arthritis causes Mrs Marshall some difficulty with mobility and that she has a disability attributable to this impairment.

    Issue 3: Are the impairments permanent or likely to be permanent in accordance with subsection 24(1)(b) of the Act?

32. The Agency concedes that Mrs Marshall’s cognitive impairment is permanent. I am satisfied that this is a proper concession.

33. On the basis of the evidence of Associate Professor Sundaraj I am satisfied that the arthritis suffered by Mrs Marshall is likely to be permanent.

    Issue 4: Do any of the impairments result in substantially reduced functional capacity to undertake relevant activities in accordance with Rule 5.8 of the National Disability Insurance Scheme (Becoming a Participant) Rules 2016?

34. For the reasons I set out in relation to the application of section 24 later in these reasons, I am not satisfied that Mrs Marshall is either effectively or completely unable to participate in any of the stated activities. The only aids used by Mrs Marshall are commonly used items such as a whiteboard, a Notebook and a grab-rail.

35. On the basis of the evidence of Ms Hammond, I am not satisfied that Mrs Marshall usually requires assistance from other people to engage in any of the stated activities or to perform tasks or actions required to undertake or participate in any of the activities.  I am not satisfied that Mrs Marshall requires assistance to perform her tasks when she is at work.  She travels to and from her employment unassisted.

36. Although there is evidence that on occasions Mr Marshall provides direction to Mrs Marshall, on the basis of the evidence of Ms Hammond I am not satisfied that Mrs Marshall usually requires such assistance.

37. On the basis of the findings referred to in the preceding three paragraphs, I am not satisfied that Mrs Marshall meets the requirements of Rule 5.8(c).  I accept the proposition put by the Agency that no task or activity referred to in the sub-rule has been identified.

    Issue 5: Does any one of the impairments result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, the activity of communication?

38. Based on the evidence of Mrs Marshall and Mr Marshall I am satisfied that Mrs Marshall experiences some difficulty in communicating, particularly with people she does not know well. It is not in dispute that this difficulty in communicating is a result of the brain injury suffered by Mrs Marshall.

39. Ms Hammond reported:

    Based on Mrs Marshall’s presentation and observed functional capacities at assessment, it is my opinion she has the capacity to interact appropriately with other people and to clearly express her everyday needs and wants.

40. In her second report Ms Coffey expressed the opinion that:

    Mrs Marshall has the capacity to appropriately communicate and express her everyday wants and needs with people well known to her. At times, Mrs Marshall may become emotional and verbose during conversation, and at these times may require additional support. Generally this does not impact on her ability to communicate effectively.

    Mrs Marshall may experience difficulty communicating with unfamiliar/external parties.

1. In July 2019 Dr Gates was of the opinion that:

   Mrs Marshall has largely intact expressive and receptive language skills however, her frontal executive syndrome impacts her communication as she interrupts, becomes tangential and forgets what she is saying requiring repetition which considerably reduces her ability to communicate logically or in a socially appropriate manner.

2. Although Dr Gates corroborates that Mrs Marshall has some difficulties in communicating, she does not provide the basis of her assessment that Mrs Marshall's capacity to communicate is “considerably” reduced. I am unable to determine whether the extent of the reduction, described by Dr Gates as “considerably”, is in fact the same or worse than “substantially”.

3. On the basis of the evidence of Ms Hammond and Ms Coffey, I am not satisfied that Mrs Marshall’s impairments result in substantially reduced functional capacity or psychosocial function in the activity of communication.

   Issue 7: Does any one of the impairments result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, the activity of social interaction?

4. Ms Hammond reported:

   At assessment, Mrs Marshall was observed to interact face-to-face in a socially appropriate manner with the occupational therapists.

   Telephone interaction was not observed.

   Based on Mrs Marshall’s presentation and observed cognitive capacities at assessment, it is my view she has the capacity to interact appropriately and independently with other people in social and community contexts.

   It is noted however, Mrs Marshall reports minimal social participation and presents with a lack of self-confidence in her cognitive capacity overall. She perceives her brain injury has negatively impacted her capacity to make and maintain friends.

   ……….

   Mrs Marshall currently works 2.5 days per week as a Resource Officer, a clerical role with the Public Trustee & Guardian. She reported watching television, reading the news on the internet (she subscribes to the Herald online) and having an interest in “forensics”. Mrs Marshall stated she doesn’t get bored. She sometimes thinks about what she might do if she retires. She spoke about wanting to “help people” and “showing people how to do things”, eg “giving advice to young mothers” regarding parenting.[59]

   [59] Exhibit R2 at 150-151.

5. In her second report Ms Coffey expressed the opinion that:

   Mrs Marshall was observed to interact face-to-face with this OT in a socially appropriate manner during the completion of both home visits. It is also important to note that Mrs Marshall was observed to become emotional at times, though contextually appropriate. Based upon the observations at the time of assessment, and additional documentation provided by Dr Nicola Gates, as well as Mrs Marshall’s self-report, Mrs Marshall experiences difficulty with social interactions. This is further reported by Dr Nicola Gates where: “Mrs Marshall demonstrated frontal dysexecutive syndrome during the session, being tangential, disorganized, concrete and rigid in her thinking and as a result is considered to have a significant social handicap as a result of her cognitive disability.”

   Based on the WHODAS assessment, the domain of “Getting along with people” scores as 65% which reflects a moderate concern regarding social interactions. Mrs Marshall expressed she experiences significant difficulty in maintaining and forming new relationships and friendships due to her disability and subsequent impact on her cognition and emotional lability. Additionally, due to Mrs Marshall’s emotional lability and frontal dysexecutive syndrome her communication abilities are severely impacted.

6. Dr Gates was of the opinion that:

   Mrs Marshall demonstrated frontal dysexecutive syndrome during the session being tangential, disorganised, concrete and rigid in her thinking and as a result is considered to have a significant social handicap as a result of her cognitive disability.

   Dr Gates did not further explain the extent of the handicap she referred to nor how it affected Mrs Marshall in her social interactions.

7. For the reasons already stated, I prefer the evidence of Ms Hammond. I take into account also that Mrs Marshall has been employed part-time by the Public Trustee for the past 22 years in a role which includes providing information to members of the public by telephone. At the time of the hearing Mrs Marshall had been working full-time at the request of her employer.

8. I have taken into account also the evidence of Mrs Marshall that prior to her husband being injured (which was several years after her accident) she had an active social life.

9. On the basis of the evidence of Ms Hammond and Mrs Marshall I am not satisfied that Mrs Marshall’s impairments result in substantially reduced functional capacity or psychosocial function in the activity of social participation.

   Issue 7: Does any one of the impairments result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, the activity of learning?

10. Ms Hammond reported:

    Based on the neuropsychological reports reviewed and on her presentation at interview, it is my opinion she has the capacity to learn new information, utilising compensatory memory aids such as note-taking, revision, and staged learning as necessary. When explaining her interest in forensics, Mrs Marshall stated she feels she is able to learn if she uses the strategy of learning “2 or 3 things at a time, then moving on to the next couple of steps”.

    She expressed low self-confidence regarding her capacity to learn new material. She stated she attended work courses and understood the content, but then could not retain it to use later. However, she acknowledged that the software at work had changed over time. Given her ongoing employment, she has presumably adapted to this.

    It is noted her self-report of ability to learn new things is inconsistent. It appears she is more able to learn things which are of greater interest rather than work functions.[60]

    [60] Exhibit R2 at 151-152.

11. In her second report Ms Coffey expressed the opinion that:

    Mrs Marshall is able to learn new things with significant support and supervision. Based upon the neuropsychological reports reviewed and on Mrs Marshall’s presentation at assessment, it is my opinion that she has the capacity to learn new information with the provision of significant support and supervision, and staged learning as needed.

    Mrs Marshall experiences difficulty with learning and retaining new information and requires significant support in order to learn, retain and utilise new skills or material learnt. As a result of changes in systems used at work, Mrs Marshall’s role has been adapted to cater for her reduced capacity in learning to use new software and systems.

12. Dr Gates expressed the opinion that:

    Mrs Marshall has deficits with learning and memory which limit her employment role and require her to have support. Her disability further handicaps her ability to function and complete daily living activities as she forgets and loses track, including forgetting to turn off appliances, and also impacts her relationships as she forgets conversations and other details.

13. Taking into account the evidence to which I have referred and the reasons already stated, I prefer the evidence of Ms Hammond. I am not satisfied that Mrs Marshall’s impairments result in substantially reduced functional capacity or psychosocial function in the activity of learning.

    Issue 8: Does any one of the impairments result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, the activity of mobility?

14. Ms Hammond reported that Mrs Marshall was able to mobilise on her own.

15. Ms Hammond provided further details of her assessment:

    [Mrs Marshall] was observed to walk without aids within the home environment, both indoors and outdoors. This included tiles, paving, grass and carpet. She was observed to be short of breath with ascending and descending stairs. This appears to be related to her lack of cardiac fitness. Prolonged outdoor mobility was not assessed.

    ……….

    Mrs Marshall’s observed mobility is acceptable for a person of her age. She reported she walks from Parramatta Station to her workplace … 700 metres in approximately 10 minutes. This is an appropriate pace for her age, health status (cardiac) and level of fitness.[61]

    [61] Exhibit R2 at 152-153.

16. Ms Coffey agreed, with qualifications, that Mrs Marshall can mobilise on her own:

    Mrs Marshall is able to mobilise on he own, though experiences difficulty with stair and outdoor mobility due to reduced balance and confidence/fear of falling.

    ………..

    Mrs Marshall was observed to walk without aids within the home environment, both indoors, outdoors and over varying terrains. Mrs Marshall was observed to mobilise on the stairs, taking one step at a time, with increased difficulty and shortness of breath.

    She was able to mobilise over flat, level surfaces both indoors and outdoors with nil difficulty. Over uneven outdoor pavement Mrs Marshall’s mobility was observed to be slow and cautious, and Mrs Marshall reported having sustained wrist fractures from falling when mobilising outdoors, which attributes to her cautiousness with outdoor mobility.

17. Dr Gates reported:

    Her physical ambulation / mobility was observed to be limited and she encountered difficulties with steps and reported two falls. She holds a restricted driving license and can access public transport, but her walking disability limits the stations she can access.

    Again, Dr Gates provided little assistance with the assessment of Mrs Marshall’s functional capacity.

18. Counsel for Mrs Marshall referred me to the records of Associate Professor Sundaraj that Mrs Marshall suffered arthritis in her joints which would cause her difficulty with mobility. However the Associate Professor’s records do not assist in determining the extent of any reduction in functional capacity suffered by Mrs Marshall as a result.

19. Based on the evidence of Ms Hammond and Ms Coffey I am not satisfied that Mrs Marshall’s impairments result in substantially reduced functional capacity or psychosocial function in the activity of mobility.

    Issue 9: Does any one of the impairments result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, the activity of self-care?

20. Both Ms Hammond and Ms Coffey expressed the opinion that Mrs Marshall is independent and safe in self-care tasks. Based on their evidence I am not satisfied that Mrs Marshall’s impairments result in substantially reduced functional capacity or psychosocial function in the activity of self care.

21. Dr Gates reported:

    Mrs Marshall reported anosmia, loss of smell and loss of taste which reduces appetite and pleasure from food, but which also impacts safety as she could not detect fire.

    Dr Gates’ evidence did not assist in assessing Mrs Marshall’s functional capacity in this regard.

    Issue 11: Does any one of the impairments result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, the activity of self-management?

22. Ms Hammond reported:

    [Mrs Marshall] can make day to day decisions independently. She may need support for complex decision making however, this is difficult to determine due to her expressed lack of self-confidence in her cognitive capacity. Her lack of self-confidence appears to be reinforced by interactions with her husband.

    ……….

    Mrs Marshall may require support to understand and communicate with

    external parties regarding complex financial or legal matters, or under stressful

    or time-pressured conditions. [Original emphasis].

    ……….

    Short-term counselling, under a Mental Health Plan, may assist with improving

    her self-esteem, social/avocational engagement, and assuming a more active

    and functional role within the domestic arena.

    ……….

    She can make and attend appointments independently. Given her reported short-term memory difficulties, she may benefit from preparing a list of questions or discussion points beforehand and from taking notes during the appointment.[62]

    [62] Exhibit R2 155-156.

23. In her second report Ms Coffey stated:

    Mrs Marshall is able to make day to day decisions independently. Mrs Marshall requires support for complex decision making due to her cognitive capacity, as documented by Dr Nicola Gates.

24. Ms Coffey agreed with Ms Hammond that Mrs Marshall may require support in dealing with external parties concerning complex financial or legal matters or when she is under pressure. She also agreed with Ms Hammond that Mrs Marshall may benefit from short-term counselling under a Mental Health Plan.

25. Dr Gates reported:

    Mrs Marshall is unable to manage her finances, take medication without prompting, complete heavy domestic chores such as vacuuming, or cook food for risk of burning and fire given her anosmia and poor attention, planning and organisation.

26. Based on the evidence of Mrs Marshall, Ms Coffey and Ms Hammond, I am satisfied that Mrs Marshall’s functional capacity in the activities of self-management are affected. However, based on the evidence of Ms Hammond, I am not satisfied that Mrs Marshall’s impairments result in substantially reduced functional capacity or psychosocial function in the activity of self-management.

    CONCLUSION

27. For the reasons stated I am not satisfied that any of impairments suffered by Mrs Marshall has resulted in substantial reduction of her functional capacity or psychosocial functioning in respect of any of the activities set out in subsection 24(1)(c) of the Act. For the same reasons I am not satisfied that Mrs Marshall meets the requirements of Rule 5.8 of the National Disability Insurance Scheme (Becoming a Participant) Rules 2016.

28. For the reasons stated the reviewable decision, being the decision made 13 September 2018 to refuse Mrs Marshall’s application for access to the National Disability Insurance Scheme, will be affirmed.

I certify that the preceding 128 (one hundred and twenty -eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance

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

Associate

Dated: 28 May 2021

Date(s) of hearing:	23 and 24 November 2020
Advocate for the Applicant:	M Charlton, Synapse
Counsel for the Respondent:	R Graycar
Solicitors for the Respondent:	S Leembruggen, Sparke Helmore