McDonnell and National Disability Insurance Agency (NDIS)
[2025] ARTA 387
•16 April 2025
McDonnell and National Disability Insurance Agency (NDIS) [2025] ARTA 387 (16 April 2025)
Applicant/s: Cheryl McDonnell
Respondent: National Disability Insurance Agency
Tribunal Number: 2022/4784
Tribunal:Deputy President O'Donovan
Place:Brisbane
Date:16 April 2025
Decision:The Tribunal sets aside the decision under review and in substitution decides that the applicant meets the access requirements.
Damien O’Donovan
........................................................................Deputy President O'Donovan
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – whether the applicant meets the access requirements to become a participant in the scheme – whether the applicant meets the disability requirement – whether the impairment or impairments she has are, or are likely to be, permanent – the impairment or impairments result in substantially reduced functional capacity – whether the applicant meets the early intervention requirement – decision set aside and substituted
Legislation
National Disability Insurance Scheme (Becoming a Participant) Rules 2016, rule 5.8
National Disability Insurance Scheme Act 2013, ss 24, 25, 27Cases
Costello and Secretary, Department of Transport (1979) 2 ALD 934
Davis and National Disability Insurance Agency [2023] AATA 1437
Ditchfield and National Disability Insurance Agency [2019] AATA 2121
Madelaine and National Disability Insurance Agency [2020] AATA 4025
Mulligan and NDIA [2015] AATA 974
Mulligan v National Disability Insurance Agency [2015] FCA 544
National Disability Insurance Agency v Foster [2023] FCAFC 11.
Saitta Pty Ltd v Commonwealth [2000] FCA 1546
Tomago-Aluminium co Pty Ltd and Collector of Customs (1988) 17 ALD 583Statement of Reasons
The applicant is seeking to become a participant in the National Disability Insurance Scheme (‘NDIS’). On 14 April 2022, a decision was made that the applicant did not meet the criteria for access to the scheme.[1] That decision was reviewed on 6 June 2022.[2] On 7 June 2022, the applicant applied to the Administrative Appeals Tribunal (‘AAT’) for review.[3]
[1] T-Documents, T9, 68-72.
[2] Ibid, T2, 17-26.
[3] Ibid, T1, 1-6.
On 14 October 2024, the Administrative Review Tribunal Act 2024 came into force and all of the reviews extant in the AAT were transferred to this Tribunal for determination. The application was heard over three days, on 2 and 3 September 2024 and 2 December 2024.
The questions in dispute are whether the applicant meets the ‘disability’ and ‘early intervention’ requirements in sections 24 and 25 of the National Disability Insurance Scheme Act 2013 (‘NDIS Act’) when read in conjunction with the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (‘Rules’). The relevant provisions of the NDIS Act are annexed to these reasons.
The applicant seeks admission to the NDIS in relation to a number of impairments. Some can be broadly classed as psychological others are more appropriately classed as physical. The applicant contends that she has the following conditions:
(a)complex post-traumatic stress disorder (‘cPTSD’);
(b)persistent depressive disorder;
(c)chronic pain;
(d)osteoarthritis;
(e)multi-sensory sensitivity;
(f)fibromyalgia syndrome; and
(g)autism spectrum disorder level 2 (‘ASD-2’).[4]
[4] Applicant’s Statement of Facts, Issues and Contentions dated 8 July 2024 (‘Applicant’s SOFIC’), [6].
Critical to the question of access, is whether I am satisfied that the applicant has a disability (including a psychosocial disability) attributable to an impairment of the systems specified in subsection 24(1), or, in the case of psychosocial disability, an impairment to which a psychosocial disability is attributable.
I must also be satisfied:
(a)That the impairments are or are likely to be permanent;
(b)That the impairments result in substantially reduced functional capacity to undertake specified activities;
(c)That the impairment affects the person’s capacity for social or economic participation; and
(d)the applicant is likely to require NDIS supports under the NDIS for their lifetime.
As should be clear from the summary above, the focus is not on any diagnosed condition but on impairment of bodily systems. However, the need to specify what is impaired and what the consequences of that impairment are, has the result that decision-makers end up gravitating towards medical diagnoses as providing a means of identifying what is impaired and what are the consequences when such a condition is present.
In the present case, because diagnosis is hotly contested in relation to at least one condition – ASD-2 – it is easier to analyse the applicant’s conditions in the following way. First, examine the applicant’s functional capacity that is said to have been affected by the conditions listed above and consider whether the identified reduction meets the statutory threshold of ‘substantially reduced functional capacity’. If it does not, then consider whether the reduction in functional capacity falls within the deeming provisions in the Rules.
If the ‘substantially reduced functional capacity’ threshold is met, then it is necessary to consider what system is impaired and whether that impairment is permanent, having regard to the NDIS Act or the Rules.
Evidence
The evidence on which the analysis will be based is tabulated as follows:
Exhibit Number
Description
Tender-Bundle Pages
R1
Progress note report by Dr Claire Sui dated 28 July 2021
430-434
R2
Report of Carla Morgan dated 25 February 2022
435-436
R3
Mental health progress note by Fabian Nieves dated 10 January 2022
834-836
R4
Mental health note by Malvin Kamara dated 27 January 2022
852
R5
Mental health progress note by Kelly Maree Fuller dated 27 January 2022
857
R6
Mental health progress note by Kelly Maree Fuller dated 1 February 2022
896
R7
Mental health progress note by Carla Morgan dated 24 February 2022
437-441
R8
Webpage entitled ‘Orange Hospital Chronic Pain Management Service’
358-360
R9
Report of Trudie Warner dated 20 August 2023
293-338
R10
Report of Dr Ashwani Garg dated 15 December 2023
343-357
R11
Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-V)
R12
Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, Text Revision (DSM-V-TR)
A1
Applicant’s statement of lived experience dated 2 April 2022
188-199
A2
Applicant’s statement of lived experience dated 22 August 2024
275-278
A3
Trevor McDonnell’s statement of lived experience dated 22 August 2024
279-281
A4
Report of Dr Geoffrey David Champion dated 12 May 2024
253-274
A5
Report of Dr Geoffrey David Champion dated 24 July 2023 and amended 21 February 2024
220-243
A6
Collection of imaging reports of applicant’s lumbar spine, cervical spine, right knee, both ankles, whole body scan and leg alignment (five pages, filed 17 August 2022)
A7
Report of Leesa Morris dated 18 September 2023
204-209
A8
Report of Leesa Morris, forensic psychologist, dated 11 June 2024
267-269
A9
Report of Kelly Katavic dated 3 March 2024
249-265
A10
Report of Dr Laura Fitzgerald dated 14 November 2024
The applicant gave evidence and was cross-examined. As were the following health professionals:
(a)Dr Geoffrey David Champion;
(b)Ms Leesa Morris;
(c)Dr Ashwani Garg;
(d)Ms Trudie Warner;
(e)Ms Kelly Katavic; and
(f)Dr Laura Fitzgerald.
Background Facts
I am satisfied of the following facts.
The applicant has had an incredibly hard life. She was born in 1965 in Brisbane. She grew up with five siblings and she was the second youngest. Her parents’ relationship was very unstable and they separated and re-united on multiple occasions. As a result of this instability, the applicant went to four different primary schools. She enjoyed school but had difficulty making friends and understanding social rules. She got on well with her teachers.
Her parents divorced when she was 11 years old.
She has reported to doctors that after year six she did not attend school. She taught herself algebra, chemistry and grammar. She read Shakespeare and the Bible from cover to cover. She enjoyed riding her bike by herself when she was young.
Her mother physically punished her severely when she was young. She was kicked out of home when she was 13 years old. When she wanted to come back, her mother sent her away to do a drug rehabilitation course, even though she had never used drugs. She was treated very poorly at the drug rehabilitation centre. At the centre, there was no running water, and she was required to work very hard. She escaped from the program and went to live interstate with her father.
Finding her father turned out to be a disaster. Her father raped her, forced her to work in his fencing business and kept her isolated from others. When she escaped from him, she moved into state care and was put into a half-way house. Just when she was settling into the new arrangement and had made a friend in the house, she was removed from the half-way house after disobeying curfew.
After a further very serious sexual assault when she was 18 or 19, the applicant returned home to her mother. However, her mother would not let her stay with her, and the applicant was forced to move on. She worked various jobs around Australia, including being a cook.
She had her first child around 1982.
She has been married three times. She was first married in 1985.
In 1988, when the applicant had two children and was pregnant with her third, she was struck by a car when crossing the road with her children. Her eldest son died, and her daughter was seriously injured, as was the applicant.
She recovered from the accident to some degree, but her health continued to deteriorate. Around 1996, she qualified for the Disability Support Pension. She has not worked since.
She met her current husband in 2004 and married him around 2014. She lives with him. He has significant health issues.
She has had six children (including the son who died in the car accident). She is estranged from two. Two daughters are NDIS participants, including her daughter involved in the accident in 1988.
The applicant’s functional capacity has continued to decline over the last 30 years, but not in all areas. For example, she owns a motorbike and continued to ride it up until early 2021.
She currently weighs 140 kg, which is classified as morbidly obese.[5] In April 2021, she was admitted to Bathurst Base Hospital for inpatient psychiatric care due to chronic suicidal thoughts. She was discharged to the care of her husband in May after a two-week stay.[6]
[5] Exhibit A5, 9-10.
[6] Exhibit R9, 7.
On 20 January 2022, the applicant was again admitted to Bathurst Base Hospital following an exacerbation of her anxiety. By 25 January 2022, she was reported as being ‘engaged, polite and pleasant on approach and warm in conversation’. She was noted as staying with her daughter one week out of every month. She indicated she was doing gardening, light exercise and writing a book. She was observed to be engaging well with staff and others in the common areas.[7]
[7] Exhibit R3.
In her evidence, the applicant denied that this reflected her true functioning. Her evidence was that she agreed to certain things that staff wanted her to say in order to be discharged.
Similar reports were made on 27 January 2022, which noted that her activities prior to admission included setting up a Forbes birdwatching online group, walking the dog and working in the garden.[8]
[8] Exhibit R5.
She was discharged from Bathurst Base Hospital on 3 February 2022. It was noted on discharge that she does ‘have a good relationship with her neighbor’.[9]
[9] T-Documents, T6, 69.
In March 2022, she applied to access the NDIS.[10]
[10] Ibid, T4, 37-64.
In April 2022, her husband had a medical set-back. The applicant was able to drive him to appointments in Orange in a manual car.[11]
[11] Exhibit A1, [89].
At present, she leads a reasonably restricted life. It is contested precisely how restricted it is, but I am satisfied that the following broad descriptions are accurate. She lives with her husband in a three-bedroom house. Both have serious medical conditions. She ventures out rarely but does drive to the shops to buy cigarettes and attend medical appointments.[12] She was in a writing group, but this group has stopped meeting. The applicant’s dog has died so she no longer takes the dog for walks. In the past, her dog walking consisted of her driving a car to bushland, opening the car door and letting the dog roam free. She was also involved in bird watching previously but due to changes in the parking arrangements she has not been able to continue with that particular hobby, as she cannot walk the required distances to the wetlands.[13]
[12] Exhibit R9, 19.
[13] Exhibit A1, [58].
She writes poetry and short stories but also spends a lot of time on the computer playing games. She also interacts with TikTok and YouTube and has prepared videos to assist carers based on what she has learned from arranging care for her daughter.[14]
[14] Exhibit R9, 13.
She is able to drive herself to visit her daughters in Penrith. It is a five-hour drive to get to Penrith and she undertakes it alone. She then can spend one or two weeks with her daughter.
This summary reflects evidence that the applicant gave to the Tribunal, as well as the picture which emerged from the applicant’s history taken by medical professionals and in the documents tendered at hearing.
In considering whether the applicant meets the disability or early access requirements, it is necessary to consider her current functioning. The following is a summary of the various sources of evidence about her functional capacity as reported since 2022.
Report of Carla Morgan, clinical psychologist
The applicant saw a clinical psychologist, Carla Morgan in the chronic pain clinic at Orange in February 2022. She prepared a report dated 25 February 2022.[15] Ms Morgan noted that the applicant’s speech was congruent to her irritability, with frequent use of profanities. Her thought form was rapid but sequential, with her thought content marked by persistent thoughts of unfairness and injustice regarding her pain treatment. No perceptual abnormalities were reported or observed, no frank cognitive disturbance was evident. Ms Morgan noted that the applicant did not report experiencing any thoughts of suicide or intent but did note she had signed a DNR order due to her current reduced level of functioning. She was noted as displaying a catastrophic cognitive style specifically stating that ‘it pisses me off that everyone is inferring it’s all in my head’.[16] Ms Morgan concluded that ‘treatment efficacy would be reduced due to [the applicant’s] focus being on addressing her pain with only medical techniques’.[17] She also noted, given her disinhibited behaviour she would not be a good candidate for group sessions.
[15] Exhibit R2.
[16] Ibid, 2.
[17] Ibid.
Report of Trudie Warner, occupational therapist.
The applicant underwent a functional capacity assessment on 11 August 2023 with occupational therapist, Trudie Warner. The assessment took place over a 2.5-hour period at Ms McDonnell’s home and comprised an interview and observation as she carried out routine daily activities. Ms Warner produced a report on 28 August 2023.[18]
[18] Exhibit R9.
Ms McDonnell described herself has having 8 good days, 8 average days and 12 bad days a month.
On a good day:
(a)her pain level is 5/10 on average;
(b)her mood is less irritable;
(c)she is able to leave the house and go to the shops or attend her writers’ group;
(d)she has a shower and gets dressed;
(e)she makes a TikTok video where she provides instructions for support workers in the disability sector (based on her experience with her daughter); and
(f)she does some writing (she writes poetry and has written a book on birds in her local area).
On an average day:
(a)she wakes with pain;
(b)her pain sits at 6/10 to 7/10;
(c)she has a shower and gets dressed;
(d)she might perform some simple meal preparation or light household tasks;
(e)she can walk to the car without having to sit and rest on the front steps; and
(f)she has two meals per day.
On a bad day:
(a)Her pain levels are severe, from 8/10 to 10/10;
(b)her emotional distress is worse;
(c)her anger and frustration are high;
(d)she sits on the lounge chair and doesn’t move unless it is to go to the toilet;
(e)her inability to do anything around the house and her reliance on Trevor to do things around the house sends her ‘into a shame spiral’; and
(f)she spends long periods of the day in tears.[19]
[19] Ibid, 13-14.
In relation to the home environment, it was noted that Ms McDonnell was observed to be able to access all internal areas of her home on the day of assessment. She was able to negotiate the front steps with support from the handrail and walked to the driveway, where her vehicle was parked and out onto the street.
The assistive technology she uses consists of:
(a)a four-wheel walker with seat;
(b)a shower stool;
(c)a ramp at front access of home;
(d)a raised seat on toilet; and
(e)a stool in kitchen and laundry.[20]
[20] Ibid, 15.
Ms McDonnell reported her height as 171 cm and weight as 140 kg. This gives her a body mass index of 47.9, which is obese.
She reported pain in a variety of locations including:
(a)in her neck, shoulders, and arms. Ms McDonnell reported that symptoms had commenced approximately a month ago and had persisted without substantial improvement. She stated that she feels like ‘something is out of place in her neck’. The pain is aggravated by awkward or sustained positions of the head and neck and by elevating the arms above shoulder level;
(b)in both her hands;
(c)in her lower back. There is constant lower back pain that radiates to the right lower limb and varies from 5/10 to 9/10;
(d)in her hips. The pain is longstanding and constant. She reports a pain level of 1/10 to 2/10, but increasing to 5/10 after 30 minutes of sitting;
(e)in her knees. Both knees have ‘bone on bone’, and her knees click and when she is walking. She reports that it feels like the knees ‘are going to separate’; and
(f)in her ankles. She reported at the time that the left ankle was worse than the right. There is a constant dull ache in the ankles that she rates as a 2/10 to a 3/10. However, at times her feet swell, and she experiences a severe sharp pain in the ankles which she rates as a 7/10 to an 8/10.[21]
[21] Ibid, 15-16.
In relation to mobility, Ms Warner observed the applicant mobilise within the home on carpeted surfaces for 5-10 minutes with no aids. Ms Warner also observed the following of the applicant:
(a)she has a swaying gait with a wide base of support;
(b)she has balance deficits;
(c)she could negotiate three steps with support from the handrail;
(d)she walked from the steps 10 meters to her vehicle along a concrete driveway without aids. She was then able to remove her four-wheel walker from the rear of her vehicle; and
(e)she walked on the road and refused to walk on an uneven grass surface. She walked approximately 150 meters with support from the four-wheel walker before needing a seated break. After sitting for 2-3 minutes, she was able to resume walking and completed the return trip.
In relation to transfers, the applicant could perform sit-to-stand transfers from the lounge chair and the four-wheel walker seat with force through the upper limbs for stability. She reported aggravation of shoulder pain from doing so.
The applicant was observed standing independently, without support, for periods of 5 to 10 minutes of the assessment.
The applicant sat in an armchair for 45 minutes during the history taking.
The applicant could squat but not kneel due to pain. She could not bend down to get items below knee level without needing support from a solid surface.
She could manage forward reaching without significant difficulty. She could lift and carry light items, but she reported avoiding lifting items above 3 to 5 kg, as she feels somewhat unstable. Outside the home, because she uses the walker, the applicant’s ability to lift, fetch and carry items was reported, and accepted, as being reduced.
Ms McDonnell’s current vehicle is a utility with automatic transmission. She reported that on a good day, she can drive to Parkes for an appointment. That takes 30 minutes. On a bad day she struggles to drive to her local shops. [22]
[22] Ibid, 16-19.
Ms Warner advised that a mobility aid like an electric mobility scooter would increase the applicant’s ability to access the community. Provision of a recliner with a lift function was also recommended due to the applicant’s reduced balance and pain symptoms during transfers. She assessed her mobility as being impacted by an element of physical deconditioning, in addition to pain, reduced balance and fatigue. The applicant was assessed as having a medium risk of falls.
In addition to a four-wheel walker, a powered mobility aid and a recliner with a lift function, Ms Warner also recommended an Ezy-Reacher to enable the applicant to retrieve light items from below waist height without bending.
Ms Warner was satisfied that there was no evidence of self-limiting behaviour. She considered that the applicant’s mobility may be able to be improved by a structured exercise program.[23]
[23] Ibid, 25-26.
She confirmed that the applicant uses assistive technology to address her reduced balance and standing and walking tolerance.
Social interactions
Ms Warner noted that during the assessment, Ms McDonnell adhered to accepted social conventions such as greetings, turn taking in conversations and observing personal space. Her rate and volume of speech was also in accordance with socially accepted norms.
The applicant reported that her social network was extremely limited, and she experienced a high degree of social isolation. She reported she was very distrustful with others, which impacts on her ability to develop connections. She becomes anxious in social situations, particularly around people she is not familiar with. Her ability to engage in social activities is impacted by her pain, reduced mobility, high levels of fatigue, diminished drive and motivation and anxiety.[24]
[24] Ibid, 26
As at August 2023, the applicant reported that she interacts face to face and via telephone with her immediate family. She also has commenced using TikTok to create educational videos for disability support workers. In addition, she attends a writer’s group once per month to pursue her interest in writing poetry and short stories. Group size varies each time. The other members were just acquaintances and that she has no interaction with them outside the group. She generally only leaves the house to attend medical and treatment appointments and her primary social interaction is with her husband.
Her ability to interact socially is impacted by:
(a)pain;
(b)reduced mobility;
(c)fatigue;
(d)diminished drive and motivation; and
(e)anxiety.
The applicant reported that she experiences high levels of social anxiety and requires intermittent assistance in the form of prompting and guidance to encourage her and provide support to her to engage in social interaction. Ms Warner considered that the applicant’s reduction in functional capacity for social interaction was attributable to:
(a)depression;
(b)anxiety;
(c)PTSD;
(d)borderline personality disorder; and
(e)chronic pain.
The applicant had been provided with social support by Wellways, a community mental health support service which encouraged social interactions. The applicant ceased her involvement due to negative feedback about her eating habits, smoking and need for weight loss.
Ms Warner indicated that the applicant was independent with showering and bathing, grooming, personal hygiene, eating and drinking, financial management and health management. The applicant was noted as needing minimal assistance with dressing and doing the laundry. The applicant is noted as needing intermittent assistance with meal preparation and shopping, moderate assistance with cleaning.
Assistive technology was recommended, including:
(a)a shower stool;
(b)a raised toilet seat;
(c)a long handled shoe horn and sock aid;
(d)front opening bras;
(e)incontinence products;
(f)a kitchen stool;
(g)a robotic vacuum and mop; and
(h)a freestanding clothes airer.[25]
[25] Ibid, 35.
The applicant’s communication was assessed and described as ‘clear and coherent, and volume was normal’. A normal range of facial expressions were demonstrated. She responded appropriately to requests and was able to follow verbal instructions and directions. No significant deficits in receptive or expressive communication were observed. She could communicate in writing, including by text and email.[26]
[26] Ibid, 37.
Certain words and music were noted to trigger flashbacks.
The applicant reported that her ability to retain information and learn new skills was impacted by her pain, anxiety and fatigue levels. When in pain, anxious or fatigued, she said she experiences reduced memory and concentration which impacts her ability to learn and understand new information. She has mitigation strategies, including setting reminders on her phone.
Ms Warner noted that the applicant has navigated the NDIS access application and appeals process and has been able to make decisions independently. Based on the results of assessment, Ms McDonnell is considered to be able to make decisions appropriately.
She recommended that the applicant have ongoing psychological support.
On the Lawton’s Scale of Activities of Daily Living the applicant was assessed as having a high level of independence in activities of daily living.[27]
[27] Ibid, 42-43
On the World Health Organization Disability Assessment Schedule (‘WHODAS’), the applicant was identified as performing at a 69% level of disability, indicating the severity of her impairment and her level of support needed.[28]
[28] Ibid, 43-46.
Report of Dr Garg, psychiatrist
In December 2023 Dr Garg reported on the functional impact of the applicant’s psychological impairments. He accepted that the applicant suffered from a number of identifiable psychiatric conditions but was not satisfied that the applicant suffered from ASD.
In the course of the interview with Dr Garg, the applicant reported that she experiences nightmares related to the sexual assaults she experienced and has nightmares about her father threatening her.[29] She wakes up shaking with anxiety. At that time, she was experiencing one such dream a week. She has anxiety attacks whenever something reminds her of her past traumas, and these occur about two or three times a week.
[29] Exhibit R10.
Dr Garg also recorded:
Ms McDonnell said that she has developed severe pain in her body due to arthritis. She also suffers from diabetes and a heart condition. She cannot walk for very long without having to rest. She has tried medications given to her by her GP, but they do not relieve her pain. She was doing some water exercises in a heated pool, which relieved her pain, however she is finding it too difficult to get funding.[30]
[30] Ibid, 5.
The applicant’s mood was reported as fluctuating. Dr Garg noted that she feels very depressed when her pain is bad and on those days, she just rests in bed.
She also reported that she was stressed due to the NDIA not approving funding for her treatment and sometimes feels there is no point in ‘living like this’. She has thought about hanging herself or overdosing on her pills in the past, but Ms McDonnell said that she has not entertained thoughts of suicide because of her children and husband.
She smokes 40 cigarettes a day.
Current functioning
Dr Garg reported that the applicant’s mobility is restricted due to physical pain. She can walk short distances, but then she has to sit and rest. She is unable to walk due to her physical pain. She does her grocery shopping online. Sometimes she goes to the shop to get bread and milk.[31]
[31] Ibid, 6.
She has a manual car, and her pain gets aggravated whenever she has to drive it. She sometimes visits her children.
In relation to communication, Dr Garg reported:
Ms McDonnell said that she does not have any problem in communicating verbally. She can speak fluently and can express herself through language and gestures. She does not have any problems in comprehending information given to her by others or having conversations with them. She does not have any problems in understanding others’ emotions while interacting with them.[32]
[32] Ibid.
As at December 2023, the applicant had two current close friends. She had many passing friendships over the course of her life. Her first friend was Najeeba, who she met at church when she was 22 years old. Najeeba had migrated to Australia from Iran. Another good friend she mentioned was Ann, who lived next door to her. That friendship ended due to complications with Ann’s brother.[33]
[33] Ibid.
Ms McDonnell said to Dr Garg that she does not have any difficulty in making and keeping friends. She does not have any problems in interacting with others.[34]
[34] Ibid.
Ms McDonnell said that her concentration is not very good, and it affects her capacity to learn new things. However, she did not have any problems in learning when she was in primary school.
She reported to Dr Garg that she maintains good personal hygiene. She can shower herself, dress herself and feed herself with some difficulties due to her physical pain. She reported that she showers regularly. She does not have any teeth, so she does not need to brush them.
She does not have difficulty planning her day, shopping online and managing her money. She struggles to cook and clean her house due to her physical pain.
She reported that she had been receiving psychiatric treatment from her local public mental health service for the last three years. She has had two admissions to psychiatric units in the past and had been on antidepressants for the last two to three years and as at December 2023, was on Duloxetine.
Dr Garg diagnosed PTSD and recurrent depressive disorder. He considered that she did not have ASD-2.
In terms of assistance Dr Garg concluded that:
…she has two other major psychiatric conditions, for which she would require some guidance and prompting from a mental health worker. She would require assistance to arrange access to community support from various organisations. She would also require prompting to attend her appointments with her treatment team. She would require this support once a week.[35]
[35] Ibid, 11.
Report of Dr Champion, rheumatologist and pain medicine specialist
Dr Champion is a pain specialist who prepared a report in relation to the applicant on 24 July 2023, and made a minor amendment to that report on 21 February 2024.[36]
[36] Exhibit A5.
He took the applicant’s history based on her application to the AAT. He noted the discharge material from Bathurst Base Hospital in April 2021 and material relating to her admission through Forbes Emergency Department in relation to exacerbation of her suicidal thoughts.
He noted the report of Lisa Simpson, mental health clinician dated 22 December 2021. That report found that the applicant’s complex PTSD and borderline personality disorder impacted significantly on the applicant’s psychosocial functioning to undertake the following activities:
(a)communication. The applicant had difficulty conversing at times particularly expressing wants and needs;
(b)social interaction;
(c)coping with her emotions. At times, she experiences a loss of sense of purpose, distrust of others and a tendency to isolation;
(d)self-care. She had difficulty taking responsibility for her health and welfare, at times she has required prompting to attend to personal hygiene; and
(e)mobility and transport. She has difficulty leaving the house at times and requires prompting and support with this, for example, to attend appointments.[37]
[37] Ibid, 4-5
Dr Champion noted that the applicant was discharged from Bathurst District Hospital on 3 February 2022. The admission covered an exacerbation of the applicant’s anxiety due to health concerns, feeling overwhelmed and frustrated, and interpersonal conflict with her husband. The applicant was admitted for chronic pain and mental health problems.
He also noted the view of Hannah Westcott, senior recovery and rehabilitation worker of Parkes, Forbes and Condobolin, who noted significant impacts on the applicant’s mental health and on her ability to dynamically function within society on a day-to-day basis.[38]
[38] Ibid, 5.
The applicant expressed to Dr Champion her disappointment with the decision not to accept her into the NDIS. She understood that she was not accepted for NDIS inclusion because if she had surgery for her osteoarthritic knees, she could be much better. However, realistically she said, the surgeons will not operate while she is so obese, and she cannot exercise to complement dietary measures to reduce weight and so the idea of surgery is not attainable. In any event, even if her knees improve, she is still left with multiple major symptoms and disabilities.
Dr Champion also reviewed correspondence from Carla Morgan from the chronic pain clinic at Orange, who wrote to Dr Richard Draper at Forbes on 25 February 2022. Carla Morgan noted that the applicant presented as mostly agitated and aggressive. Her mood appeared irritable and there was reference to repeated treatment failures and poor quality of life. Management of her chronic pain was largely passive. Anxiety and depression were not helping. There was also a chronic pain psychology consultation which noted that the applicant tended to trip and had had multiple falls.[39]
[39] Ibid.
Dr Champion took a history of the applicant’s childhood and early adulthood that was broadly similar to the history the applicant has given on other occasions. He focussed on the consequences of the motor vehicle accident in 1988, noting multiple fractures, abrasions and bruises. He noted that the sites of injury became the sites of chronic pain. Dr Champion accepted that her knee pain may have had the additional causal influence of bilateral osteoarthritis. He noted spinal pain that resolved initially but returned and neuropathic pain in her right arm. He noted with surprise that no-one had diagnosed fibromyalgia.[40]
[40] Ibid, 6-7.
A varied work history was noted, including following the motor vehicle accident, but he noted that ‘she has not been capable of work in the last 12 years or so’.[41]
[41] Ibid, 6.
The impact of the motor vehicle accident on her mental health was noted, including the aggravating of her PTSD.
The applicant described a typical day as including making tea for her husband in the morning. She would organise the washing, using a wheeled stool to assist the process. She makes a light lunch. She would oversee her daughters NDIS plan on the computer. There is no evening meal.
She has two friends currently, one in Melbourne and the other in Cairns. She speaks to her friend in Melbourne every day and her friend in Cairns every week. She has a wide range of interests, including playing games on the internet. She does not exercise because in her assessment ‘[she] can’t’. She used to visit a physiotherapist but by the time she was finished she was ‘destroyed’ and took about 3 days to recover.[42] She can drive, and drove from Forbes to the consultation, which was in Mosman. Once a month, she goes to a writers’ group, but does not socialise effectively and would benefit from guidance.
[42] Ibid, 7.
The experience she had in the pain management clinic was very unsatisfactory.
She is a member of a couple of bird societies and had previously planted native foliage in her garden to attract a range of birds. Her average pain in the past week was 6/10. Pain interference with activities was 8/10, and the pain related distress was 8/10. Pain Catastrophising Scale was a moderate 35/52. On the Depression, Anxiety and Stress Scale, her score was in the severe range for all. On the Örebro Musculoskeletal Pain Screening Questionnaire (Short), her responses summed to 74/80. Dr Champion commented that ‘virtually no-one is capable of working with such a score’. In her Social Functioning Questionnaire, she summed to a very high 21/24. She ‘endorsed maximally’ being unable to complete her tasks at home, the stress involved in attempting to complete such tasks, difficulties in getting and keeping close relationships, problems in her sex life, severe problems with family and other relatives, loneliness and isolation.[43]
[43] Ibid, 7-8.
Her demeanour was consistent with reported depression. She was morbidly obese and used a walker to attend the consultation. She reported pain in her shoulders, lower back and knees.
Dr Champion concluded that the applicant has a muti-site pain condition with widespread low pressure pain threshold and facilitated temporal summation of pain intensity implying central sensitisation. She fulfils criteria for fibromyalgia syndrome. She has probable osteoarthritis at multiple sites including right hip and knees, however no diagnosis was made in the absence of imaging. He also thought that the applicant had multisensory sensitivity which was probably causally influenced by iron deficiency.[44]
[44] Ibid, 10.
Dr Champion noted that her morbid obesity interferes greatly with her functional capacity. Her chronic pain is moderately severe and accompanied by cognitive and emotional features characteristic of fibromyalgia syndrome. He concluded that it is the combination of all of her symptoms and disabilities which make life so difficult and in combination make for a very miserable, dysfunctional lifestyle and quality of life.[45]
[45] Ibid, 10-11.
Dr Champion recommended that the applicant be referred to a rheumatologist for assessment of probable multi-joint osteoarthritis was well as fibromyalgia syndrome and that the rheumatologist engage with a chronic pain service with a view to helping improve her pain control generally. She should also be assessed in a rehabilitation service in view of the multiplicity of her musculoskeletal and other pain disorders and her obesity and functional incapacity. He noted that ‘it will be difficult to achieve much but it is important to try and put emphasis on coordination between the treatment services which are thus best in the one institution if possible’.[46]
[46] Ibid, 11.
Dr Champion assessed the post-traumatic and osteoarthritic multiple pain sites as likely to be permanent. He noted that there had been mention of a knee replacement, but he was not persuaded on present evidence that it would be appropriate. He noted that all of her medical conditions are difficult to treat, and the mental health problems are worsened by her chronic pain, impaired sleep, obesity and disability.
Dr Champion noted that appropriate treatment initiatives are available to some extent in the publicly funded mental health and healthcare systems, but the problem is her management needs to be comprehensively organised and integrated. He noted that that has not happened and was doubtful that it could happen in the public sector.
He assessed her functional capacity in the key areas as follows:
(a)in relation to communication, her capacity to communicate has been impacted by multiple symptoms and disabilities, but she is inherently intelligent and if her overall wellbeing were to improve, so would her communication;
(b)in relation to social interaction, Dr Champion noted that ‘this is a problem’. Her social engagements should be encouraged and facilitated. She has an interest in birds and in writing. He suggested that she engage with the Galah magazine and contribute an article on birds in the Forbes district. That would be helped by and lead to more engagement with her writing group;
(c)in relation to learning, she does have an intelligent interest in exploring information on the internet and feels that functioning better would enable improved learning, especially regarding writing;
(d)in relation to mobility, it is grossly limited and she needs a walker. Her mobility could be improved by better pain control and more specific evaluation and management of her individual arthritic pain sites as well as an approach to her associated fibromyalgia syndrome. The extent to which the applicant would improve with treatment and assistive technology is a matter for speculation;
(e)in relation to self-care, that can be managed with assistance from her husband; and
(f)in relation to self-management, with the help and support of her husband she manages most of her requirements. Dr Champion recommended her to be assessed for domestic assistance.[47]
[47] Ibid, 11-12.
In relation to early intervention supports, Dr Champion recommended a walker for use inside the house and a support co-ordinator. He recommended weight reduction, pain control to get better sleep and physical therapy. He agreed with the importance of strengthening the sustainability of her supports through building her capacity and that needs a rehabilitation or support person to facilitate and guide.[48]
[48] Ibid, 12.
Report of Leesa Morris, forensic psychologist
Ms Morris prepared a report dated 18 September 2023.[49]
[49] Exhibit A7.
She assessed the applicant as meeting criteria for three permanent psychological conditions:
(a)complex post traumatic stress disorder;
(b)persistent depressive disorder; and
(c)autism spectrum disorder level 2.
The diagnosis of ASD-2 followed a structured clinical interview for DSM-V-TR disorders.[50]
[50] DSM-V is the Diagnostic and Statistical Manual which sets out the criteria for mental disorders, 5 denotes that it is the fifth edition. The edition used by Ms Morris was in fact DSM-V–TR. TR stands for text revision.
In concluding that the applicant suffered from ASD-2 Ms Morris noted:
Ms McDonnell is noted to demonstrate and describe ongoing difficulty comprehending and interpreting social cues and behaviours. She also notes repetitive behaviours and a need for order and routine to reduce her anxiety. Unfortunately, Ms McDonnell’s physical impairments interrupt her ability to establish such structure, increasing agitation and aggravating Ms McDonnell’s neurodiversity and trauma conditions. Ms McDonnell meets criteria for F84.0 Autism Spectrum Disorder, Level Two, requiring substantial support.[51]
[51] Exhibit A7, 7.
Ms Morris also administered a screening instrument for autistic behaviours for use prior to full diagnostic assessment. It contains 42 self-report subscales which explore typical variations evident in autistic individuals. She returned high scores on all subscales. The result of the testing was assessed by Ms Morris to align with the applicant’s presentation at interview and confirmed her diagnosis of autism spectrum disorder.
Ms Morris concluded:
…without the physical supports to assist with her pain and immobility, Ms McDonnell’s needs for order and routine associated with neurodivergence cannot be met. This in turn increases Ms McDonnell’s emotion dysregulation and triggers her trauma symptoms. In order to assist Ms McDonnell to engage more fully in meaningful activities in her community she requires the presence of a support worker twice per day to assist with personal and domestic care, including healthy meals. Ms McDonnell would also benefit from assistance with transport to appointments that would improve her mobility. With these supports and physical improvement in place, Ms McDonnell’s functioning would likely increase to permit some reduction in supports over time.
Additionally, Ms McDonnell would likely benefit from some psychological intervention to assist with understanding her neurodiversity and how it impacts her functioning. This intervention could also address Ms McDonnell’s tolerance of life stressors which is also affected by her trauma condition. While Ms McDonnell has been resistant to psychological pain management intervention, if presented as an additional tool to use when the medications don’t work (enough), she may find some benefit from the techniques.[52]
[52] Ibid, 8.
Report of Kelly Katavic, occupational therapist
The applicant was also assessed by Kelly Katavic, an occupational therapist in February 2024. Ms Katavic prepared a report dated 3 March 2024.[53] The assessment was done online, while the applicant was at her daughter’s house.
[53] Exhibit A9.
The applicant reported that she takes prescribed medication to manage her pain, anxiety, sleep and heart conditions. She stated that she had recently commenced physiotherapy intervention at the hospital and has had a physiotherapy home program in the past. She has previously tried hydrotherapy, which she found helpful, and she had had a cortisone injection in her right shoulder.
She noted that she was seeing a psychologist and started with a new GP as she did not get along with her old GP.
She gave a social history consistent with the history given to other medical professionals.
She is recorded as saying that her home is government-owned which is not consistent with earlier accounts.[54]
[54] Ibid, 2.
She advised Ms Katavic of her various diagnoses.
She reported that in the last 30 days she was totally unable to carry out her usual activities for the full 30 days.
Ms Katavic noted that the WHODAS assessment indicated a severe difficulty with communication. This includes concentrating for 10 minutes, remembering important things, finding solutions to problems, learning a new task and starting and maintaining a conversation. However, during the assessment, Ms Katavic observed Ms McDonnell to speak independently and appropriately, and she was well understood. Ms Katavic noted that she did not observe a substantial reduction in function.[55]
[55] Ibid, 4.
Ms Katavic noted that the WHODAS assessment indicated severe difficulty with social interaction. She noted that her relationship with her husband and her close friend had broken down recently. The applicant commented that the autism diagnosis explained her difficulty making and keeping friends. It was Ms Katavic’s opinion that the applicant does have a substantial reduction in capacity in this area.
In relation to learning, Ms Katavic recommended a cognitive and dementia screening, via the applicant’s GP.
In relation to self-care, Ms Katavic noted that there was ‘mild difficulty’ indicated by the WHODAS assessment. She expressed concern that the applicant was only dressing and changing clothes twice per week as this could cause other medical concerns.
In relation to self-management, Ms Katavic noted that the WHODAS indicated severe difficulty in this area.
Her assessment was that the applicant would need access to the NDIS for life based on her multiple permanent health conditions.[56]
[56] Ibid, 6.
In relation to early intervention, Ms Katavic recommended occupational therapy, physiotherapy and exercise physiology. She also recommended the applicant seeks the opinion of a psychologist.[57]
[57] Ibid.
In terms of mobility, Ms Katavic observed that the applicant:
(a)mobilised independently indoors;
(b)had an abnormal gait pattern, which was reportedly due to hip stiffness, osteoarthritis and weight;
(c)was independent for sit-stand chair transfers and bed transfers.
In terms of mobility, the applicant had reported to Ms Katavic that:
(a)a four-wheeled walker is required for outdoor mobilisation and mobilisation in the community, with need to sit down every 1 to 2 minutes;
(b)she had a falls history, which suggested impaired balance;
(c)she avoids mobilising on uneven surfaces;
(d)she avoids stairs or gradients with or without rails;
(e)she is only able to stand independently for 1 to 2 minutes;
(f)she avoids public transport;
(g)she had number of falls inside the house in the last 12 months and a single fall outside the home;
(h)she uses a grab rail and raised toilet seat for toilet transfers;
(i)she is able to transfer to a vehicle with difficulty;
(j)she is unable to rise from the floor to a standing position;
(k)she uses a shower chair and handheld shower hose;
(l)she is independent in grooming, except assistance needed with toenails;
(m)She has urinary incontinence;
(n)she was dressing herself independently every few days;
(o)she is independent with eating and drinking;
(p)she is independent dropping clothes into the washing machine and unloading the dryer;
(q)she is using a stool to prepare simple microwave and air-fryer meals;
(r)she has her groceries delivered;
(s)she is independent with driving;
(t)she is communicating independently but reported having difficulty with word meanings due to her ASD-2. [58]
[58] Ibid, 7-11.
Ms Katavic recommended assistance be provided to the applicant to help her organise herself, make decisions and solve problems, including navigating her health care. Ms Katavic recommended that Ms McDonnell follow up her short-term memory issues with her GP, as she was observed to talk off topic and lose her train of thought during the assessment, indicating possible cognitive impairment.[59]
[59] Ibid, 15.
Ms Katavic assessed the applicant as being able to be left alone for part of the day and overnight, but as needing support for up to 11 hours per day.
The WHODAS indicated that the applicant has experienced a severe difficulty in functioning over the past 30 days. The most difficult areas are participation in society, getting around and getting along with people.[60]
[60] Ibid, 17.
Supplementary report of Dr Champion, rheumatologist and pain medicine specialist
Dr Champion prepared a second report on 12 May 2024.[61]
[61] Exhibit A4.
He confirmed that the applicant’s multi-site osteoarthritis is permanent. Some sites may be improved but the total burden of pain-related disability is permanent. Fibromyalgia syndrome cannot be cured and responds modestly to the best available treatment. He noted that the benefit of treatment will only be helpful at some sites. Apart from at sites where joints can be replaced, treatment achieves partial relief at best. Fibromyalgia symptoms can only be modified to a minor extent at best. With full treatment, modest overall improvement is probable with slight improvement in functional capacity. Pain intensity should be slightly lessened with treatment.
Dr Champion noted that obesity impairs function. Fibromyalgia worsens pain, impairs sleep, increases risk of cardiovascular disease, causes deterioration in well-being, mood, self-esteem and life survival. He recommended consultation with a nutritionist and gastroenterologist with an interest in weight control. He also suggested the use of Ozempic and/or gastric banding.
He noted that significant weight reduction would be expected to improve pain-related disability but not overcome it, improve self-esteem and confidence, improve mood, improve cardiovascular risk factors and longevity. The applicant’s pain-related disability is substantially aggravated by her obesity, and there is strong evidence for this in general in published medical articles. It follows that weight reduction will lead to some improvement.
Supplementary report of Leesa Morris, forensic psychologist
Ms Morris produced a second report dated 11 June 2024.[62] The report was a response to Dr Garg’s report disagreeing with Ms Morris’s diagnosis of ASD-2.[63]
[62] Exhibit A8.
[63] Exhibit R10, 9-10.
She observed that the interview between Dr Garg and the applicant may have lacked depth noting that Dr Garg makes no mention of the applicant’s motor vehicle accident. The applicant also reported to Ms Morris that she advised that Dr Garg directed her responses. She notes that Dr Garg used the DSM-V inappropriately for a female adult. She assessed the applicant as engaging in masking or camouflage behaviours to enable her to form friendships and concluded that she is only able to engage with one relationship at a time. This is common to autistic people.
The DSM-V-TR specifically requires ‘longer assessments, observation in naturalistic settings, and inquiring about any tolls of social interaction may be needed’ for adult women. Ms Morris noted that the extent of Ms McDonnell’s difficulties in social interaction were identified in the screening test undertaken.
The applicant was noted as overly detailed in her recall of traumatic events in her life, with no deterioration as would be anticipated in a neurotypical individual. This is consistent with autism.
Ms Morris noted that as a child, Ms McDonnell identified a repetitive behaviour in riding her bicycle and reading. She has since developed a more socially acceptable fixated behaviour in the form of research. Ms Morris noted that this is not uncommon in autistic women due to gendered social expectations.
She maintained her diagnosis of ASD-2.
Applicant’s statement of lived experience
In August 2024, the applicant provided an updated statement of lived experience.[64]
[64] Exhibit A2.
She confirmed that she continued to live in Forbes with her husband and that she receives support from a ‘peer worker’ who visits for about an hour once a fortnight to provide emotional support.
She noted that she was losing the capacity to grip things. She had not been able to mop or clean for 4 years. She struggles to shower because it can trigger her PTSD. She noted that she does not go to the writers’ group anymore. She noted that she has suffered anxiety to the point where she has not been able to speak in conversations.
She leaves the house a lot less than she did two years ago, mainly due to pain. She says that she cannot take care of herself nor participate in the community.
Applicant’s husband’s statement of lived experience
In August 2024, the applicant’s husband provided a statement of lived experience.[65]
[65] Exhibit A3.
The applicant’s husband confirms the applicant’s difficulties with mobility. The picture he gives of her personal hygiene is one of deterioration. He states that she regularly goes more than a week without showering and is unable to do any heavier cleaning tasks including mopping, sweeping or vacuuming and struggles to bend over. She does not garden any more. He confirms that he has very limited function as a result of his chronic obstructive pulmonary disease. He has a level 2 Aged Care support package that provides an hour and a half of cleaning help but no assistance with cooking or shopping.
He cannot provide assistance to his wife.
CONSIDERATION
I am satisfied that the applicant satisfies the disability requirements set out in section 24 for admission into the scheme. The applicant’s chronic pain, fibromyalgia and osteoarthritis meet the statutory requirements when read with the relevant provisions of the Rules.
Fibromyalgia/Chronic Pain and Osteoarthritis
Disability attributable to an impairment (s 24(1)(a))
The respondent accepts that in relation to the applicant’s pain conditions she has a disability attributable to an impairment.[66]
The impairments are likely to be permanent (s 24(1)(b)
[66] See s 24(1)(a) of the NDIS Act.
Whether the pain is likely to be permanent is disputed. An impairment is permanent or is likely to be permanent only if there are no known, available evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.
The respondent contends that the applicant has not seen a rheumatologist or a chronic pain service as recommended by Dr Champion. In the absence of a proper assessment by a rheumatologist it cannot be concluded that there are no treatments available to improve the applicant’s position. The respondent posits the view that if the applicant loses weight with the assistance of Ozempic that this will also open up possible treatments for her obesity like bariatric surgery, which could be followed by a knee replacement which would deal with her knee pain. These interventions will also contribute to an overall reduction in pain and an improvement in mood that will reduce impairment. Until these have been tried or seriously considered, I could not be satisfied that the applicant’s impairment is likely to be permanent.
In my assessment, this is an unduly optimistic assessment. Dr Champion was clear in his evidence that even with multi-disciplinary pain management only modest gains could be achieved.[67] The applicant has physical drivers of pain in the form of osteoarthritis, as well as less well-defined causes of pain from her fibromyalgia. Her mental health conditions including depression, aggravate both of those sources of pain. The applicant’s psychological structure is such that she avoids behaviour that might aggravate her pain (including exercise) and she catastrophises her pain which makes it difficult for her to engage with methods of addressing her pain other than taking medication. She is a poor candidate for surgery at her current weight.[68] Even if she loses weight, there are physical and psychological reasons why she would remain a poor candidate for surgery.
[67] Exhibit A4, 1-2.
[68] Exhibit A5, 7.
In these circumstances, I am satisfied that the applicant’s osteoarthritis, chronic pain and fibromyalgia are permanent. Treatment is available to reduce the impact, but it is very unlikely that any of the treatments available will fully remedy the impairments from which the applicant is suffering.
Substantially reduced functional capacity (s24(1)(c))
The respondent contends that the applicant’s osteoarthritis, chronic pain and fibromyalgia do not result in substantially reduced functional capacity as required by paragraph 24(1)(c) of the NDIS Act. I am satisfied that the impairments result in substantially reduced functional capacity to undertake mobility activities.
The evidence before the Tribunal is that the applicant always uses a walker when accessing the community. She is able to walk roughly 100 meters outside with the assistance of the walker but needs to rest when doing so. She can mobilise in the house without the walker and can walk to the car from the house without using the walker.
In my assessment, this level of mobility impairment would not be sufficient to amount to substantially reduced functional capacity in the area of mobility if the terms of section 24 are applied. However, the applicant nevertheless qualifies when the deeming provisions in the Rules are applied.
The relevant rule is rule 5.8 which provides as follows:
When does an impairment result in substantially reduced functional capacity to undertake relevant activities?
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; ...
This rule is made under section 27 of the NDIS Act which provides:
The National Disability Insurance Scheme rules may prescribe circumstances in which, or criteria to be applied in assessing whether:
(a) ...
(b) One or more impairments result in substantially reduced functional capacity of a person to undertake, or psychosocial functioning of a person in undertaking, one or more activities for the purposes of paragraph 24(1)(c):...
As I have noted in previous decisions, on its face, rule 5.8 prescribes a circumstance in which one or more impairments results in substantially reduced functional capacity. The analysis which follows is drawn largely from my earlier decision in Davis and National Disability Insurance Agency.[69]
[69] [2023] AATA 1437.
The interaction between the threshold set in section 24(c) and rule 5.8 has been the subject of consideration by the Tribunal and the Federal Court on a number of occasions. Despite this, significant uncertainty persists as to how the threshold in the NDIS Act interacts with the self-evidently lower threshold in the Rules.
Justice Mortimer in Mulligan v National Disability Insurance Agency [2015] FCA 544 (‘Mulligan’) confirmed what is obvious from the text of rule 5.8 - that it 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 NDIS Act.[70] Her Honour further confirmed that Rule 5.8 is a deeming provision which has the effect of mandatorily including some people in the category of person with substantially reduced functional capacity if the criteria in the rule are met.[71] Her Honour also noted that the concept of 'substantially reduced functional capacity' is not exhaustively defined by rule 5.8 and so, while a decision maker must turn their mind to whether an applicant falls within the deeming effect of rule 5.8, that is not necessarily the end of the exercise.[72]
[70] Mulligan, [66].
[71] Ibid, [77].
[72] Ibid.
Her Honour's remarks make clear that there are two paths to satisfying the disability requirements set down in paragraph 1(c) of section 24 - either by meeting the terms of the paragraph itself or by meeting the terms of the deeming provision provided for in the Rule.
It is worth re-iterating at this point that the threshold which must be met in rule 5.8 is a much lower threshold than the threshold specified in the NDIS Act. The lowest specified threshold in the rule 5.8 is the following:
An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities...if its result is that:
(a) the person is unable to participate ...completely in the activity, or to perform tasks or actions required to...participate...completely in the activity, without...equipment (other than commonly used items such as glasses)...
Not being able to completely participate in an activity without equipment is a significantly easier threshold to meet than establishing a substantially reduced functional capacity to undertake an activity.
Since the Mulligan decision, the large variance between the threshold specified in the Rule and paragraph 24(1)(c) of the NDIS Act has, over the course of a number of decisions, been ignored, applied or resulted in the Rule being specifically disregarded by the Tribunal in the course of its decision making. No consistent approach seems to have emerged.
Following remittal by the Federal Court, the Mulligan decision was re-considered by the Tribunal. In its re-consideration, the Tribunal did not address the tension between the two thresholds, notwithstanding that one of the experts specifically relied upon the low threshold in rule 5.8 in reaching his opinion that the disability requirements were satisfied.[73] In reaching the conclusion that Mr Mulligan did not meet the disability requirement, the Tribunal seemed not to specifically address the threshold in rule 5.8 and applied only section 24 of the NDIS Act.
[73] Mulligan and NDIA [2015] AATA 974, [109]-[116], [120]-[125].
The Tribunal considered a similar issue in the matter of Ditchfield and National Disability Insurance Agency [2019] AATA 2121 (‘Ditchfield’), and because it applied the lower threshold in rule 5.8, it found that the statutory threshold was met. The Tribunal found that the applicant was capable of walking at least 100 metres outside of his home but would experience pain and instability walking such distances, even with a walking stick (which the Tribunal characterised as a commonly used item). The evidence was that the applicant's fear of falling would make him reluctant to walk lengthy distances outside the home. The Tribunal found that the applicant was mobile enough to access the community but once outside his car, there were some significant limitations on his mobility in accessing places and making use of facilities in the community both safely and free of pain. The Tribunal concluded:
…This being the case, the Tribunal considers that Mr Ditchfield falls short of being able to “leave the home" and “move about the community" "effectively or completely". This qualifier, i.e. "effectively or completely" appearing in rule 5.8(a) is critical to the Tribunal reaching its conclusion about whether this deeming provision applies to Mr Ditchfield. The Tribunal does not accept the interpretation of this provision as contended by the NDIA…Instead, the Tribunal considers that it must give those words, "effectively or completely" their ordinary and natural meaning.
The Macquarie Dictionary Online defines "effective" as meaning "serving to effect the purpose; producing the intended or expected result" and "complete" as "having all its parts or elements: whole; entire; full". The Tribunal considers that this could not be said of Mr Ditchfield's capacity to mobilise if he is able to drive places or facilities within the community but is unable to leave the car park to go inside of those facilities, or walk around those places, without experiencing pain or risking falling over. The Tribunal is satisfied that Mr Ditchfield's mobility to this extent is both incomplete and ineffective...Accordingly, the Tribunal concludes that without wearing his raised shoes and orthotics and despite being permitted to use a walking stick, Mr Ditchfield is unable to participate effectively or completely in the activity of “mobility”, including to “leave the home” and to “move about in the community”.[74]
[74] Ditchfield, [138]-[140].
The upshot of this analysis is that if there is an identified deficiency in a person's ability to leave their home and move about in the community then they will not be able to participate fully in the activity of mobility and the criteria in s 24(1)(c) will be met. However, this approach has not received significant support in subsequent decisions.
The significance of the low threshold in rule 5.8 as compared with the terms of the NDIS Act was identified as an issue by Deputy President Humphries in the decision Madelaine and National Disability Insurance Agency [2020] AATA 4025 (‘Madelaine’). It is worth setting out the factual conclusions reached by the Deputy President and the differing consequences if those facts are applied against the threshold in rule 5.8 and the threshold applied in section 24(1):
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.[75]
[75] Madelaine, [126]-[130], citing Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
The key insight from this passage is that it is possible for the application of Rule 5.8 to produce different and more liberal outcomes than an application of the statutory test in section 24. I agree with that conclusion. However, unlike the learned Deputy President, I do not consider it to be a course open to me to simply disregard rule 5.8 on the basis that it enlarges the scope of section 24 beyond what was legislatively intended.
There are a number of barriers to me doing so.
First, while there is scope for the Tribunal to consider, for the purposes of making a decision, whether any delegated legislation with which it is dealing is valid (see for example Re Costello and Secretary, Department of Transport [1979] AATA 184; (1979) 2 ALD 934 cited with approval in Saitta Pty Ltd v Commonwealth [2000] FCA 1546; (2000) 106 FCR 554 at [103]), it is not always appropriate to do so (see Re Tomago-Aluminium co Pty Ltd and Collector of Customs (1988) 17 ALD 583. In the present matter, it has not been put to me that rule 5.8 is invalid and should be disregarded on that basis, consequently it would not be appropriate to proceed on the basis that it is.
Second, I do not regard the Participation Rules to be in the same category as ministerial policy. They are delegated legislation made by the Minister with the approval of the Commonwealth and the states and territories and are not of a kind which I can simply disregard (like guidelines). Unless the Rules are invalid, they must be applied.
Third, it is far from clear that rule 5.8 is invalid. It undoubtedly sets down a different test to that provided for in section 24, but section 27 of the NDIS Act authorises the prescription of criteria to be applied in assessing whether one or more impairments results in substantially reduced functional capacity. The rule making power is restricted by the requirement in section 209(9)(e) that it cannot directly contradict the text of the legislation, but it is not clear whether a rule which merely waters down the effect of the text of the NDIS Act falls foul of that provision.
In those circumstances, I am not prepared to proceed on the basis that rule 5.8 in its current form should be treated as invalid. As a consequence, it is necessary to consider whether the applicant meets the test in rule 5.8.
A Full Court of the Federal Court has considered the significance of the phrase 'effectively and completely' in the context of rule 5.8 in the matter of National Disability Insurance Agency v Foster.[76] It considered the question in the context of an applicant who needed an appliance to urinate but who was in all other senses independent in self-care. The Full Court emphasised that the task in rule 5.8, just as it is under section 24(1), is to assess the degree to which the person can participate in the activity.
[76] [2023] FCAFC 11 (‘Foster’).
The Full Court noted that if the adverb 'completely' is given its ordinary meaning, what is being asked by the Rule is an assessment of whether a person's impairment results in substantially reduced functional capacity to participate 'wholly’ or ‘perfectly’ in the designated activities, including mobility and self-care. The Full Court identified this as 'an impossible bar for almost everyone', which I take to mean that if the phrase is applied literally, almost everyone with an impairment will be able to establish a deemed 'substantially reduced functional capacity' because they cannot participate completely in a designated activity.
In order to avoid the consequence that rule 5.8 has the effect of lowering the disability requirement to a de minimus level, the Court widened its focus away from the specific acts which the applicant could not perform without assistive technology, to a more general assessment of the persons capacity to undertake the activity of self-care and with the benefit of assistive technology. Whether, in the specific case, the second part of that approach is permissible in light of the text of rule 5.8 is not for me to judge, but the approach taken by the Full Court highlights two things.
First, the text of rule 5.8 if applied literally, creates an exceptionally low threshold for deeming when an impairment results in 'substantially reduced functional capacity'. It is surprising that the Commonwealth agreed to the making of such a rule which so radically altered the threshold prescribed in the text of the NDIS Act.
Second, to overcome the broad access outcomes which the words used in rule 5.8 produce if applied literally, it is permissible to take a wider perspective on what the 'activity' of 'mobility' is, rather than focus narrowly on 'tasks or actions...required to ...participate...completely...in the activity'.[77] This is permissible notwithstanding the text of rule 5.8.
[77] Foster, [89].
Even reading rule 5.8 in that way in relation to the applicant I am satisfied that she is not able to participate in mobility effectively or completely without equipment. She cannot get beyond the end of her driveway without the use of a walker. She cannot walk across rough ground even with the assistance of a walker. She cannot enter the community without taking her walker. She is extremely limited as to the distances she can walk even with a walker. A walk of only a little over 100 meters requires a rest before it is completed. I am satisfied that she is unable to participate in mobility effectively without a walker.
I do not accept the proposition that a walker meets the description of ‘commonly used equipment like glasses’. Walkers are used by a small minority of Australians. Glasses on the other hand are required by a substantial majority of people over fifty years of age as well as a significant proportion of people under fifty. Walkers are not commonly used items in the same category as glasses.
In those circumstances, the applicant meets the deeming provision in the rules and satisfies paragraph 24(1)(c).
Impairment affects the person’s capacity for social and economic participation (s 24(1)(d)
The respondent accepts that the applicant’s osteoarthritis, chronic pain and fibromyalgia affect her economic and social participation.
The applicant is likely to require NDIS support for her lifetime (s 24(1)(e)
The respondent contends that the applicant is not likely to require support from the NDIS for a lifetime. For the same reason that I am of the view that the applicant’s impairments are permanent, I am of the view that the applicant will require support from the NDIS for her lifetime. The applicant’s mobility is unlikely to improve. At this point in time even if there is some success in the treatment of her weight it will not provide a complete solution to the pain conditions from which she suffers. Support in the form of assistive technology is likely to be required to assist her to mobilise within the community, with transfers between sitting and standing in the home and picking up items. Assistance with domestic tasks is also likely to be required for life.
These findings are sufficient to find that the applicant meets the disability requirement for admission to the scheme.
Early intervention requirement
I am not satisfied that in relation to her physical impairments that the applicant meets the early intervention requirements. In particular, I am not satisfied that the provision of early intervention supports for the applicant is likely to benefit the applicant by reducing her future needs for supports in relation to disability.
Other conditions
Prior to the recent amendments to the Scheme, the analysis could be finished there. However, in October 2024 the following paragraph was introduced to section 34 which deals with a Scheme participant’s entitlement to supports. It introduced the need to establish that for any support sought, that:
the support is necessary to address needs of the participant arising from an impairment in relation to which the participant meets the disability requirements (see section 24) or the early intervention requirements (see section 25)
In relation to the applicant, I have only satisfied myself that she meets the disability requirements in relation to her pain conditions. If she wished to seek supports in relation to her psychological conditions, she would need to establish that they too meet the requirements of either sections 24 or 25. As the applicant has sought admission to the scheme on the basis of psychological impairments in addition to her pain conditions and the matter was fully argued before me, it is appropriate to make findings that will assist in the preparation of the applicant’s plan and in particular her statement of participant supports.
Multi-sensory sensitivity disorder
The applicant has a diagnosis of multi-sensory sensitivity disorder. The impairments said to be attributable to this condition include a heightened sensitivity to bright lights, noises, strong perfumes or clothing tags. It is not clear how this condition impacts on the applicant. Dr Champion expressed the view that the applicant had multisensory sensitivity disorder which is probably causally influenced by iron deficiency. There is not much in the way of evidence about the functional effects of this condition, so I am not satisfied that it results in substantially reduced functional capacity either under section 24(1)(c) or rule 5.8. Further, the condition may be treatable, so I am not satisfied that it is likely to be permanent. It does not satisfy the requirements of either section 24 or section 25.
cPTSD and major depressive disorder
There is no doubt that the applicant suffers from both of these conditions, and that those conditions are permanent. They can be managed but not cured.
The functional impact of the conditions is difficult to gauge. The applicant identifies flashbacks as an issue for her, and some avoidance of showering. I am not satisfied that it amounts to substantially reduced functional capacity in self-care or any of the other identified areas in paragraph s24(1)(c).
However, the exceptionally low threshold in Rule 5.8 produces a different result.
The rule relevantly provides:
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) …; 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
There is evidence that the applicant requires prompting before she will shower and dress in fresh clothes, which are significant components of self-care. This meets the requirements of rule 5.8. Accordingly, I am satisfied in relation to her cPTSD and major depressive disorder, the applicant meets the requirement for substantially reduced functional capacity.
The applicant’s cPTSD and major depressive disorder affect her social and economic participation. Both contribute to the fact that she has not been able to work for more than a decade.
The conditions are permanent, and so she is likely to require the NDIS for a lifetime.
The applicant meets the disability requirements in relation to her cPTSD and major depressive disorder.
ASD-2
There is no agreement on whether the applicant has ASD-2. If the applicant has ASD-2 it would be properly characterised as an impairment to which a psychosocial disability is attributable.
I am not satisfied that she has such an impairment.
Forensic psychologist Ms Morris is firmly of the view that the applicant has the condition. She administered appropriate tests and performed a structured interview and used the appropriate version of the DSM-V when making her assessment. All of these are reasons for preferring her view over the view of Dr Garg.
Dr Garg, on the other hand did not use the most up to date version of the DSM-V and used a less structured interview which failed to reveal some key aspects of the applicant’s past.
However, notwithstanding these limitations, Dr Garg’s report and oral evidence was more persuasive and more consistent with the presentation of the applicant in the hearing and as recorded in other settings in the summonsed material.
For Autism Spectrum Disorder to be diagnosed the applicant must demonstrate persistent deficits in social communication and social interaction across multiple contexts, as manifested by all of the following:
·deficits in social-emotional reciprocity;
·deficits in nonverbal communicative behaviours used for social interaction; and
·deficits in developing, maintaining and understanding relationships.
The applicant must also demonstrate restricted repetitive patterns of behaviour, interests, or activities. The following diagnostic criteria also apply:
·symptoms must be present in the early developmental period;
·symptoms cause clinically significant impairment in social, occupational, or other important areas of current functioning; and
·these disturbances are not better explained by intellectual developmental disorder or global developmental delay.[78]
[78] Exhibit R12, 56-58.
This is a very abridged version of the relevant criteria, but they give the reader of sense of what a health professional is looking for.
In the case of Ms Morris, she appeared to readily ascribe diagnostic significance to aspects of the applicant’s history, which appeared unwarranted. For example, she identified the fact that the applicant liked to ride her bike to particular places as a child and had read Shakespeare and the Bible as evidencing autistic behaviour. Dr Garg interpreted this behaviour very differently. It was his view that the repetitive behaviours by sufferers of ASD were non-functional and non-desirable. When the applicant described her activities, they were directed to particular purposes such as learning to speak like her peers. It was a desirable behaviour and she was interested in it. The desire to read the Bible and Shakespeare passed once she had obtained benefit from it. This was not ritualistic behaviour.
Just as importantly, Dr Garg was not satisfied that the first criterion was satisfied. The applicant did not demonstrate persistent deficits in social communication.
That was consistent with how the applicant presented at the hearing. She was clearly very intelligent, articulate and maintained that clarity despite a lengthy period in the witness box. Medical notes from clinical settings are consistent with her having well developed communication skills.
When asked about the fact that the applicant was estranged from a number of her children, Dr Garg emphasised that ASD is a developmental disorder involving a lack of ability to make social relationships. In his view, if she had the condition, she would not be having problems with her children - she would not be interacting with her children.
Consequently, I am not satisfied that the diagnosis of ASD is well supported by the evidence. There are reasons to doubt Ms Morris’s conclusions and despite many interactions with health professionals over decades this diagnosis was not advanced until September 2023. While I must accept that ASD is under diagnosed in girls and women, and adult women are better at masking and camouflaging symptoms, Dr Garg’s conclusions were well justified and more consistent with the documented presentation of the applicant over a number of years as well as during the hearing.
On that basis, I am not satisfied that the applicant has the developmental impairment ASD which manifests as a psycho-social disability. She certainly has difficulty making friends and keeping them long term, but given her long history of trauma, depression and cPTSD there are many other available explanations as to why that may be the case.
Early Access criteria
I am not satisfied that the applicant meets the early intervention criteria in relation to any of her psychological conditions.
The applicant’s conditions are entrenched and of long standing. It is possible that the provision of supports will reduce her future needs for support, but I am not satisfied on the evidence that that is the case.
DECISION
I set aside the decision under review and substitute a decision that the applicant meets the access requirements.
Dates of Hearing: 2 and 3 September 2024 and 2 December 2024.
Counsel for the applicant: Ms Bride Harders
Solicitor for the applicant: Legal Aid ACT
Counsel for the respondent: Mr John Bird
Solicitor for the respondent: Sparke Helmore
Annexure A: Extracts from the National Disability Insurance Scheme Act 2013
24 Disability requirements
(1) A person meets the disability requirements if:
(a) the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable; and
(b) the impairment or impairments are, or are likely to be, permanent; and
(c) the impairment or impairments result in substantially reduced functional capacity to undertake one or more of the following activities:
(i) communication;
(ii) social interaction;
(iii) learning;
(iv) mobility;
(v) self - care;
(vi) self - management; and
(d) the impairment or impairments affect the person's capacity for social or economic participation; and
(e) the person is likely to require NDIS supports 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 NDIS supports under the National Disability Insurance Scheme for the person's lifetime, despite the variation.
(3) For the purposes of subsection (1), an impairment or impairments that are episodic or fluctuating may be taken to be permanent, and the person may be taken to be likely to require NDIS supports under the National Disability Insurance Scheme for the person's lifetime, despite the episodic or fluctuating nature of the impairments.
(4) Subsection (3) does not limit subsection (2).
Note 1: The time at which a requirement in this section needs to be met is the time the matter falls to be determined. For an access request, that time is the time of considering the request (see paragraph 21(1)(c)).
Note 2: National Disability Insurance Scheme rules may be made in relation to this section under subsection 27(1).
25 Early intervention requirements
(1) A person meets the early intervention requirements if:
(a) the person:
(i) has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent; or
(ii) has one or more identified impairments to which a psychosocial disability is attributable and that are, or are likely to be, permanent; or
(iii) is a child who has developmental delay; and
(b) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person's future needs for supports in relation to disability; and
(c) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by:
(i) mitigating or alleviating the impact of the person's impairment upon the functional capacity of the person to undertake communication, social interaction, learning, mobility, self - care or self - management; or
(ii) preventing the deterioration of such functional capacity; or
(iii) improving such functional capacity; or
(iv) strengthening the sustainability of informal supports available to the person, including through building the capacity of the person's carer; and
(d) the CEO is satisfied any early intervention supports that would be likely to benefit the person as mentioned in paragraphs (b) and (c) would be NDIS supports for the person.
Note: In certain circumstances, a person with a degenerative condition could meet the early intervention requirements and therefore become a participant.
(1A) For the purposes of subparagraph (1)(a)(i) or (ii), an impairment or impairments that are episodic or fluctuating may be taken to be permanent despite the episodic or fluctuating nature of the impairments.
(2) The CEO is taken to be satisfied as mentioned in paragraphs (1)(b) and (c) if one or more of the person's impairments are prescribed by the National Disability Insurance Scheme rules for the purposes of this subsection.
Note 1: The time at which a requirement in this section needs to be met is the time the matter falls to be determined. For an access request, that time is the time of considering the request (see paragraph 21(1)(c)).
Note 2: National Disability Insurance Scheme rules may be made in relation to this section under subsection 27(1).
27 National Disability Insurance Scheme rules relating to disability requirements and early intervention requirements
(1) The National Disability Insurance Scheme rules may make provision for determining any matter for the purposes of section 24 (disability requirements) or 25 (early intervention requirements).
(2) Without limiting subsection (1), National Disability Insurance Scheme rules made for the purposes of that subsection may prescribe:
(a) methods or criteria to be applied, or matters that may, must or must not be taken into account, for the purposes of either of those sections; or
(b) circumstances in which a matter relevant to the application of either of those sections is taken to exist or to not exist in relation to a person.
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