Minett and National Disability Insurance Agency (NDIS)
[2024] ARTA 293
•12 November 2024
Minett and National Disability Insurance Agency (NDIS) [2024] ARTA 293 (12 November 2024)
Applicant/s: Ms Danielle Minett
Respondent: National Disability Insurance Agency
Tribunal Number: 2023/7361
Tribunal:General Member Bubutievski
Place:Sydney
Date:12 November 2024
Decision:The Tribunal affirms the decision under review.
................[Sgnd]............................................
General Member Bubutievski
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – access – chronic pain – fibromyalgia – depression and anxiety – whether substantially reduced functional capacity – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Becoming a Participant) Rules 2016National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) Act 2024 (Cth)
Cases
Beezley v Repatriation Commission [2015] FCAFC 165
National Disability Insurance Agency v Foster [2023] FCAFC11
Holmes and National Disability Insurance Agency [2017] AATA 2750
HPSC and National Disability Insurance Agency [2021] AATA 727
Jourifan & National Disability Insurance Agency [2020) AATA 1883
Kilgallin and National Disability Insurance Agency [2017] AATA186
Madelaine and National Disability Insurance Agency [2020] AATA727
MHZQ & National Disability Insurance Agency [2019] AATA 810
Madelaine and National Disability Insurance Agency [2020] AATA727
Mulligan v National Disability Insurance Agency [2015] 233 FCR 201Nika and National Disability Insurance Agency [2021] AATA 2127
Secondary Materials
Our Guidelines: Applying to the NDIS, accessed on 18 & 23 October 2024.
REASONS FOR DECISION
General Member T. Bubutievski
XXXX November 2024
This application is about whether Ms Danielle Minett (Ms Minett) should be granted access to the National Disability Insurance Scheme (the NDIS). At the time of her application to become a participant, she was 39 years of age. In the supporting documents for access to the NDIS, Ms Minett’s treating doctor, Dr Maeve McParland, described her primary disability as chronic neck pain/fibromyalgia, with a secondary disability of depression.[1]
[1] Exhibit 1, T1M, Access Request – Supporting Evidence Form, 8 June 2023, 33.
Following her application to become a participant, the National Disability Insurance Agency (NDIA or the Agency) decided, on 22 May 2023, that Ms Minett was ineligible to access the NDIS. She sought internal review of this decision by the Agency and on 22 September 2023, an Agency decision maker affirmed the decision. It is this reviewable decision of the Agency which is the subject of Ms Minett’s application to this Tribunal on 5 October 2023 for external merits review under s 103 of the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act or the Act).
Ms Minett contends that she meets the access criteria under s 21 of the NDIS Act.
To gain access to the NDIS, under s 21 of the NDIS Act, Ms Minett is required to meet:
(a)the ‘age’ access criteria;
(b)the ‘residence’ access criteria; and
(c)either the ‘disability’ access criteria or the ‘early intervention’ access criteria.
The Agency accepts that Ms Minett meets both the ‘age’ and ‘residence’ access criteria but contends that she does not meet the ‘disability’ or ‘early intervention’ access criteria.
LEGISLATIVE FRAMEWORK
The NDIS Act was amended on 3 October 2024 pursuant to the National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) Act 2024 (Cth) (Back on Track Act). The Tribunal had not completed its review of Ms Minett’s application by the time the amendments commenced. The original decision which the Agency made regarding Ms Minett’s access request, the Agency’s internal review decision, and Ms Minett’s application to this Tribunal for independent merits review were made prior to those amendments. The Tribunal’s decision is made subsequent to those amendments.
The transitional provisions provided that the changes to ss 21, 24 and 25 apply to access requests made after 3 October 2024. The changes affecting access were minimal. As Ms Minett’s access request was made before 3 October 2024, it is to be determined by the Tribunal under s 21 as it applied prior to the amendments. The Respondent agrees this to be the case.
Section 24 of the NDIS Act as unamended provides as follows:
(1)A person meets the disability requirements if:
(a) the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable; and
(b) the impairment or impairments are, or are likely to be, permanent; and
(c) the impairment or impairments result in substantially reduced functional capacity to undertake one or more of the following activities:
(i)communication;
(ii)social interaction;
(iii)learning;
(iv)mobility;
(v)self-care;
(vi)self-management; and
(d) the impairment or impairments affect the person’s capacity for social or economic participation; and
(e) the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime.
(2) For the purposes of ss (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the variation.
The early intervention requirements are set out in s 25 of the Act:
(1)A person meets the early intervention requirementsif:
(a)the person:
(i)has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent; 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 developmentaldelay; and
(b)the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person's future needs for supports in relation to disability; and
(c)the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by:
(i)mitigating or alleviating the impact of the person's impairment upon the functional capacity of the person to undertake communication, social interaction, learning, mobility, self-care or self-management; or
(ii)preventing the deterioration of such functional capacity; or
(iii)improving such functional capacity; or
(iv)strengthening the sustainability of informal supports available to the person, including through building the capacity of the person's carer.
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 ss.
(3)Despite subsections (1) and (2), the person does not meet the early intervention requirements if the CEO is satisfied that early intervention support for the person is not most appropriately funded or provided through the National Disability Insurance Scheme, and is more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or through systems of service delivery or support services offered:
(a)as part of a universal service obligation; or
(b)in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
Section 27(b) of the NDIS Act also provides that the NDIS Access Rules may prescribe circumstances in which, or criteria to be applied in assessing whether one or more impairments result in ‘substantially reduced functional capacity’ of a person to undertake one or more activities for the purpose of s 24(1)(c) of the NDIS Act. The transitional provisions specify that any rules made under s 27 remain in force after 3 October 2024. The Tribunal is therefore bound to apply the legislation as enacted, including the NDIS Access Rules (NDIS Access Rules).
Section 27(a) of the NDIS Act provides that the NDIS rules may prescribe circumstances in which, or criteria to be applied in assessing whether one or more impairments are, or are likely to be, permanent for the purpose of s 24(1)(b) or s 25(1)(a)(i) or (ii) of the NDIS Act. Such rules have been prescribed, namely, the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (NDIS Access Rules). The Tribunal is bound to apply the legislation as enacted, including the NDIS Access Rules.
Specifically, rules 5.4 to 5.7 of the NDIS Access Rules explain when a condition can be assessed to be ‘permanent’:
When is an impairment permanent or likely to be permanent for the disability requirements?
5.4An 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.
5.5An 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.
5.6An 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).
5.7If 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.
Also, rule 5.8 of the NDIS Access Rules elaborates upon when an impairment is taken to have resulted in a ‘substantially reduced functional capacity’ to undertake any one or more of the relevant activities in relation to s 24(1)(c) of the NDIS Act and provides as follows:
5.8An 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.
[Paragraph 5.8 is made for the purposes of paragraph 27(b) of the Act.]
The objects of the NDIS Act are set out in s 3. These include giving effect to international treaty obligations; supporting the independence and social and economic participation of people with a disability; and providing reasonable and necessary supports for participants. Section 4 sets out general principles guiding actions under the NDIS Act. These include that people with disability have the same rights as other members of society to realise their potential and should be supported to participate in and contribute to social and economic life to the extent of their ability. They should also have certainty that they will receive the care and support that they need over their lifetime. The Tribunal has considered the objects and general principles of the NDIS Act in making its decision.
The NDIA has issued Operational Guidelines including in relation to the access criteria under the Act (Operational Guidelines). The Operational Guidelines are published on the NDIA’s website.[2] The way they are written has changed significantly over time to make them more user friendly for potential applicants and participants in the NDIS, but the important parts of the content have not been greatly altered. The Tribunal also had regard to the Operational Guidelines in coming to its decision.
[2] Operational Guidelines | NDIS https//: accessed on 18 October 2024.
EVIDENCE
The Tribunal had before it a joint tender bundle (JTB) which contained almost all the documents lodged by both parties. This was taken into evidence (Exhibit 1). The Tribunal also took into evidence the Respondent’s Statement of Facts, Issues and Contentions (SFIC) dated filed on 1 July 2024 (Exhibit 2).
Ms Minett gave evidence and called her mother, Ms Merril Minett, to give evidence on her behalf. The Respondent called Ms Melissa Sale, independent occupational therapist, to give evidence.
The matter was heard by the Tribunal by Microsoft Teams video conference on 21 October 2024. Ms Minett was self-represented, and the Respondent was represented by Mr Marco Nesbeth of Council.
ISSUES BEFORE THE TRIBUNAL
In making the access decision in Ms Minett’s case, the Agency decided that Ms Minett did not meet the criteria in s 24(1)(c) of the NDIS Act, as having a substantially reduced functional capacity.[3] The Agency accepted that Ms Minett has chronic pain secondary to nerve damage, major depressive disorder, anxiety and post-traumatic stress disorder (PTSD). The decision-maker did not consider that the evidence established that all available and appropriate treatment options which would be likely to relieve or cure Ms Minett’s conditions had been explored. The decision-maker was also satisfied that Ms Minett did not meet the early intervention requirements.[4]
[3] Exhibit 2, T8, p 71.
[4] Exhibit 1, T13, pp 41-51.
On internal review, the reviewer decided that Ms Minett meets the criteria in s 24(1)(a) of the NDIS Act in respect of her physical disabilities of neck pain and fibromyalgia; and her psychosocial disabilities of depression and anxiety. The reviewer was not satisfied that Ms Minett’s disabilities could be considered to be permanent. While there was evidence of longstanding symptoms, the reviewer was of the opinion that the evidence presented did not establish that Ms Minett’s conditions had been optimally treated and indicated that further treatment may be required. The reviewer stated that there was also no specialist evidence to confirm that all available treatment options had been explored. [5]
[5] Exhibit 1, T1O, pp 19-21.
The reviewer noted that they had not sought further medical evidence because they were not satisfied that Ms Minett required a high level of disability specific support to participate in or complete activities in one or more of the six key domains.[6] This means that the reviewer considered that Ms Minett does not have a substantially reduced functional capacity in any domain.
[6] Ibid, 47.
It was common ground between the parties that Ms Minett met the age requirements in s 22 and the residence requirements in s 23 at the time that she applied for access to the NDIS. In its SFIC, the NDIA contended that:
(a)Ms Minett is accepted to have impairments from the disabilities of chronic pain, fibromyalgia, depression and anxiety. The Respondent conceded that these impairments are, or are likely to be, permanent impairments for the purpose s 24(1)(b) (this is different from both the original decision and the internal review decision);
(b)The evidence does not establish that Ms Minett has a substantially reduced functional capacity in any of the relevant domains because of these impairments – s 24(1)(c). The Respondent acknowledges that Ms Minett’s impairments have some impact in the domain of mobility, but contends that the level of this impairment does not reach the high bar required to be considered ‘substantial’;
(c)Ms Minett’s impairments affect her capacity for social or economic participation – s 24(1)(d);
(d)Ms Minett is not likely to require the support of the NDIS for her lifetime as she does not meet the threshold requirement of a substantially reduced function capacity to be granted access to supports through the NDIS – s 24(1)(e);
(e)There is no evidence that there is any form of early intervention treatment which would benefit Ms Minett and reduce future needs for support – ss 25(1)(b); and
(f)Support for Ms Minett’s conditions are not most appropriately provided through the NDIS – s 25(3).[7]
[7] Exhibit 2, Respondent’s SFIC, 1 July 2024.
Ms Minett contended that her impairments cause her to have a substantially reduced functional capacity due to pain. She has difficulty lifting her arms above chest height due to pain. She has brain fog and finds it hard to concentrate. Her depression and pain make it difficult for her to get out of bed in the morning, as she knows that moving will trigger pain. She has difficulty sleeping and describes her movement as ‘slow and shuffling’.[8] She can sit for around 15 minutes before she needs to move around, can walk slowly on a treadmill for 15 minutes on a good day and can drive for 15-20 minutes. It is painful to wash and brush her hair and dress. Her daughter assists her with grocery shopping and household tasks. Ms Minett says that she avoids socialising because of her anxiety, and she has no joy in life.[9]
[8] Exhibit 1, A9, Updated Statement of Lived Experience, 21 July 2024, 254.
[9] Ibid, pp 254-257.
For the reasons set out below, the Tribunal finds that the evidence does not establish that Ms Minett’s impairments cause a substantially reduced functional capacity in any of the relevant functional domains. This means that the requirements of s 24 of the NDIS Act for access to the NDIS are not met.
The Tribunal also cannot find that Ms Minett meets the requirements for entry to the NDIS under the early intervention pathway. She does not meet any of the criteria for access to the NDIS.
FACTS
The medical evidence
Diagnoses
The medical evidence put before the Tribunal about the treatment and history of Ms Minett’s medical conditions establishes that Ms Minett has chronic pain primarily affecting her neck, back and right arm and hand. This is as a consequence of nerve damage sustained in a motor vehicle accident in 2016. She has diagnoses of depression and anxiety consistent with major depressive disorder, generalised anxiety disorder and post-traumatic stress disorder.[10] She also has a presumptive diagnosis of fibromyalgia.[11]
[10] Exhibit 1, T1B, report of Dr Deepika Panicker, 4 February 2022, 7; T1C, report of Ms Catherine Cleary, psychologist, 25 February 2022, 10; T1I, report of Dr Marc Couglan, neurosurgeon, 13 March 2023, 20; T1L, report of Dr Grigota Monesterio, clinical psychologist, 15 March 2023, pp 26-30.
[11] Exhibit 1, T1N. report of Associate Professor Frederick Joshua, rheumatologist, 8 August 2023, pp 39-40.
Ms Minett’s chronic pain has been treated with medication, a pain management program, physiotherapy, chiropractic treatment,[12] cortisone injection[13] and psychology[14]. The evidence before the Tribunal indicates that Ms Minett’s physical impairments have been treated and although the symptoms vary in severity daily there is no significant improvement expected in her overall level of functioning. Her treating general practitioner has stated that the available treatment options have been exhausted.[15] She has been reviewed by a rheumatologist, who gave a presumptive diagnosis of fibromyalgia, but did not add any further treatments to her regime.[16]
[12] Exhibit 1, T1J, report of Dr Maeve McParland, general practitioner, 14 March 2023, 21.
[13] Ms Minett’s oral evidence at the hearing.
[14] Exhibit 1, T1L, report of Dr Grigota Monesterio, clinical psychologist, 15 March 2023, pp 26-30.
[15] Exhibit 1, T1J, report of Dr Maeve McParland, 14 March 2023, 21.
[16] Ms Minett’s oral evidence at the hearing.
Ms Minett’s psychosocial impairments have been treated with medication, psychology and counselling. This treatment has not been particularly effective. Her regular counsellor, who has been seeing her since February 2022, states that it has: ‘not been possible to manage her depression and anxiety as ongoing physical pain and lack of support are exacerbating her symptoms.’[17] Her clinical psychologist states that their sessions have been unsuccessful and have been discontinued. Her disorders have been unresponsive to treatment. The clinical psychologist records that Ms Minett reports: ‘extremely severe, persistent and unabating psychiatric and physical distress.’[18] Ms Minett’s treating general practitioner states that Ms Minett has not seen a psychiatrist due to lack of appointment availability,[19] which Ms Minett confirmed in her oral evidence at hearing.
[17] Exhibit 1, T1K, report of Rebecca Garnett, counsellor, 15 March 2023, 23.
[18] Exhibit 1,T1L, report of Dr Grigota Monesterio, clinical psychologist, 15 March 2023, 29.
[19] Exhibit 1, T7, report of Dr Maeve McParland, 17 November 2022, 124.
CONSIDERATION
The evidence before the Tribunal is that Ms Minett has both physical and psychosocial disabilities. Before Ms Minett could be granted access to the NDIS, the Tribunal would need to be satisfied that the impairments caused by these disabilities are permanent.
While there is no formal onus of proof upon Ms Minett, as the Full Court explained in Beezley v Repatriation Commission,[20] Ms Minett must put forward evidence and information sufficient to satisfy the Tribunal that the relevant statutory requirements in s 24 or s 25 are met. If the Tribunal is not so satisfied, Ms Minett cannot succeed.[21]
Are any of Ms Minett’s impairments ‘permanent’ or likely to be ‘permanent’ for the purpose of s 24 of the Act?
Physical disabilities/chronic pain/fibromyalgia
Ms Minett has a functional impairment due to injuries sustained in a motor vehicle accident, primarily affecting her neck, back, right shoulder, non-dominant right arm and hand. One of the symptoms of this functional impairment is chronic pain, and this symptom, above all others, is the one that impacts most greatly on Ms Minett’s function and quality of life.
[20] (2015) 150 ALD 11, [68].
[21] HPSC and National Disability Insurance Agency [2021] AATA 727, [85].
Ms Minett’s treating general practitioner indicates that her functional impairments from this disability are permanent and this is supported by the specialist evidence, such as the report of Dr Marc Coughlan, dated 13 March 2023:
‘I am the treating neurosurgeon…her MRI does show signs of nerve compression and cord compression…. There is certainly some degree of facet joint arthrosis with severe instability. There is no role for surgery as there will be no favourable outcome. Her condition is chronic and permanent. She has limited movement, extensive pain and is in a constant state of suffering….’[22]
[22] Exhibit 1, T1I, report of Dr Marc Coughlan, 13 March 2023, 20.
The rheumatologist who reviewed her stated:
‘Ms Minett has a history that is consistent with an injury with what seems like neurogenic pain from her right neck and lower back given the description. I think [it] is likely that she also has a more generalised process of fibromyalgia… I think we need to determine how best we can support her condition as physiotherapy, pain medications and also the utilisation of psychological techniques has not been enough to improve her. In the longer term she is significantly compromised…’[23]
[23] Exhibit 1, T1N, report of Associate Professor Frederick Joshua, rheumatologist, 8 August 2023, 40.
Ms Minett attended a pain clinic at Royal North Shore Hospital in 2017 and 2018. Progress notes from her attendance at physiotherapy during that time indicated that physiotherapy was helpful to her, as was a home exercise program and a walking program.[24] She was referred for neurosurgery consultations and it was determined that conservative treatment was appropriate.[25] Ms Minett was referred for an injection in her right side C7/T1 facet joint.[26] Ms Minett’s oral evidence at the hearing was that this injection had no effect. She confirmed that she was also provided with education about pacing and mindfulness. Ms Minett’s evidence at hearing was that she continues to pace herself and do activities slowly and that she also has some apps on her phone for mindfulness activities. She walks on a treadmill at home when she is able. She continues to manage her pain in that manner. She noted that she does find physiotherapy helpful with her management but that she has used all the sessions available to her under Medicare and that physiotherapy is only benefit when she can attend regularly.
[24] Exhibit 1, T1Q progress notes, Royal North Shore Hospital, pp-53-103.
[25] Exhibit 1, T1Q11, report of Dr Ragavan Manoharan, neurosurgery registrar, 28 February 2018; Exhibit 1, T1Q14, report of Dr Anuj Pahwa neurosurgery registrar, 23 May 2018.,
[26] Ibid.
Rule 5.4 outlines that an impairment is only permanent, or likely to be permanent if there are ‘no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.’
The word ‘remedy’ is understood to mean something approaching a removal or cure of the impairment.[27] In this case, the Tribunal is satisfied that the evidence before it indicates that Ms Minett’s functional impairment caused by her neck injury is unable to be ameliorated by any known, available evidence-based treatment. Ms Minett has been compliant with recommended treatment and has tried all medical management avenues made available to her. The evidence before the Tribunal indicates that the functional impairments from Ms Minett’s injuries (and the symptoms caused by them, including chronic pain/fibromyalgia) are likely permanent. This is the conclusion drawn by the weight of the medical evidence. The Tribunal finds that Ms Minett has a permanent impairment for the purpose of s 24(1)(b) of the NDIS Act.
Psychosocial disabilities
[27] National Disability Insurance Agency v Davis [2022] FCA 1002 ('Davis'), [136].
Ms Minett’s evidence at hearing was that she continues speak to her counsellor, Ms Garrett, regularly. Ms Garrett is a counsellor, not a psychologist. Ms Minett advised that she is also able to see the psychologist as she needs. She has not seen a psychiatrist. Her treating doctor and clinical psychologist note that she continues to take antidepressant medication.[28] The Tribunal queried the Respondent’s position that Ms Minett’s psychosocial disabilities are permanent in the absence of psychiatric treatment. The Respondent acknowledged that psychiatric treatment has not been undertaken but was of the view that the available evidence indicates that Ms Minett’s psychosocial disabilities are likely permanent even with that absence.
[28] Exhibit 1, T1J, report of Dr Maeve McParland, 14 March 2023, 21; Exhibit 1, T1L, Report of Dr Grigota Monesterio, clinical psychologist, 15 March 2023.
Dr Monesterio gives a comprehensive history of Ms Minett’s psychological treatment. She has had counselling since at least 2017. This has involved cognitive behavioural therapy (including cognitive behavioural therapy for pain); dialectical behaviour therapy and acceptance and commitment therapy. She has also tried several psychiatric medications with only minimal benefit and has been taking escitalopram since 2022. Dr Monesterio states that their impression is that: ‘… Her psychiatric/psychological difficulties are in a stable and persistent pattern and, sadly the prognosis is for this to continue in this pattern for the foreseeable future…..The small gains she managed to achieve between 2016-2019 have not been sustainable. Since then, she states that if anything she has gone backwards…’ Dr Monesterio reports that Ms Minett registered extremely severe levels of depression, anxiety and stress on the DASS 21; severe depression on the Beck Depression Inventory II; the highest possible score of 90 on the Penn State Worry Questionnaire; a very high level of symptomology on the Post-traumatic Check List (PCL-5) and a high score on the Agoraphobic Cognitions Questionnaire although she does not meet the diagnostic criteria for agoraphobia. Dr Monesterio notes that psychology sessions have been discontinued due to their ineffectiveness.[29] There is no suggestion in the report that Ms Minett is exaggerating either her symptoms or her level of distress.
[29] Exhibit 1, T1L, Report of Dr Grigota Monesterio, clinical psychologist, 15 March 2023.
The Tribunal accepts the evidence of Dr Monesterio that Ms Minett’s psychosocial disabilities are stable and persistent. The history given is that they have been unable to be alleviated by medication or multiple psychological therapies. Active psychological treatment has been discontinued as it has been found to be ineffective. The Tribunal is satisfied that Ms Minett’s psychosocial disabilities do not require further medical treatment or review before they can be determined to be permanent. The Tribunal finds that Ms Minett also has permanent psychosocial impairments for the purpose of s 24(1)(b) of the NDIS Act.
As the Tribunal has found that Ms Minett has permanent impairments for the purpose of ss24(1)(b) of the NDIS Act, Ms Minett could potentially be granted access to the NDIS if she meets the other criteria set out in s 24(1) of the NDIS Act.
Does Ms Minett have a substantially reduced functional capacity under s 24(1)(c) of the NDIS Act?
The next question the Tribunal must answer is whether Ms Minett’s impairments result in a substantially reduced functional capacity to undertake one or more of the activities listed in s 24(1)(c) of the Act. The case law has established several important principles about how to undertake that assessment. In Mulligan v National Disability Insurance Agency (Mulligan),[30] it was found that what is being assessed is what Ms Minett can and cannot do, not what she actually does. It is sufficient for an Applicant to have substantially reduced functional capacity in relation to just one activity.[31] The relevant test is not how much better Ms Minett’s life would be if she had access to NDIS supports, although such access would be likely to improve her quality of life.[32] Her functional capacity should not be characterised only by what she is able to do on a bad day, but by what she can do overall, taking account of both the bad days and the days that are better.[33]
[30] Mulligan v National Disability Insurance Agency (2015) 233 FCR 201, [56].
[31] Ibid.
[32] Madelaine v National Disability Insurance Agency [2020] AATA 4025, [72]-[73] (Madelaine).
[33] Ibid, [76].
Each of the activities specified in s 24(1)(c) of the NDIS Act and their impact on functional capacity will be examined in relation to Ms Minett’s permanent impairments. The legislation requires:
… a relatively high degree of precision by decision-makers (see, for example, the six activities in s 24(1)(c)) in assessing what a person can or cannot do. The assessment to be undertaken is avowedly functional and multi-faceted.[34]
[34] Mulligan v National Disability Insurance Agency [2015] 233 FCR 201 (‘Mulligan’), at [55].
In Nika & National Disability Insurance Agency,[35] the Tribunal (Deputy President Meagher) referred to s 24(1)(c), noting that:
… the test is not whether the Applicant could do more with respect to a particular activity. The test is whether the Applicant has substantially reduced functional capacity to undertake the activity.[36]
[35] (2021) AATA 2127.
[36] Ibid [230].
Under rule 5.8 of the NDIS Access Rules, the decision-maker must assess the effect of a person’s impairment on the performance of each of the activities that are set out in s 24(1)(c). If the result is any of the outcomes which are specified in rule 5.8(a), (b) or (c), then the deeming effect of rule 5.8 will apply, namely that the impairment results in substantially reduced functional capacity to undertake one or more of the relevant activities. These NDIS Access Rules require consideration of a person’s capacity to participate in the activity without assistive technology, equipment other than commonly used items or home modifications; whether the person usually requires assistance from someone else to undertake the activity; or whether the person is unable to participate in the activity even with assistive technology, equipment, home modifications or assistance from another person.
The Tribunal had regard to the Operational Guideline – Does your impairment substantially reduce your functional capacity?[37]:
[37] https//:ourguidelines.ndis.gov.au/home/becoming-participant/applying-ndis/do-you-meet-disability-requirements accessed on 21 October 2024.
Your permanent impairment needs to substantially reduce your functional capacity or ability to undertake activities in one of the following areas:
· Communicating – how you speak, write, or use sign language and gestures, to express yourself compared to other people your age. We also look at how well you understand people, and how others understand you.
· Socialising – how you make and keep friends, or interact with the community, or how a young child plays with other children. We also look at your behaviour, and how you cope with feelings and emotions in social situations.
· Learning – how you learn, understand and remember new things, and practise and use new skills.
· Mobility, or moving around – how easily you move around your home and community, and how you get in and out of bed or a chair. We consider how you get out and about and use your arms or legs.
· Self-care – personal care, hygiene, grooming, eating and drinking, and health. We consider how you get dressed, shower or bathe, eat or go to the toilet.
· Self-management (if older than 6) – how you organise your life. We consider how you plan, make decisions, and look after yourself. This might include day-to-day tasks at home, how you solve problems, or manage your money. We consider your mental or cognitive ability to manage your life, not your physical ability to do these tasks.
Your impairment substantially reduces your functional capacity if you usually need disability-specific supports to participate in or complete the above tasks.
These disability-specific supports include:· a high level of support from other people, such as physical assistance, guidance, supervision or prompting.
· assistive technology, equipment or home modifications that are prescribed by your doctor, allied health professional or other medical professional.
To help us decide if you’re eligible, we need to know your capacity and where you need more help. We get this information from you when you apply to the NDIS.
If you have more than one permanent impairment, we will consider them together, to see if they substantially reduce your functional capacity.
We consider how you’re involved in different areas of life like home, school, work and the community, and how you carry out tasks and actions. We also consider any other factors that may impact your day-to-day life.
Your needs might go up and down each day or each month. Progressive Multiple Sclerosis (MS) can be a good example of this. We consider your ability over time, taking into account your ups and downs.Functional Capacity Evidence
The available evidence indicates that Ms Minett’s functional capacity varies from day-to-day depending upon how much pain she is in. This, in turn, varies depending upon her level of activity on that day and the days preceding it.
Ms Minette’s evidence
Ms Minett’s oral evidence at the hearing was that she has bad days every week, and the number of bad days in a week varies. On a bad day she does very little. Ms Minett had prepared two Statements of Lived Experience during the course of the proceedings. The first was dated 8 February 2024,[38] and the second was dated 21 July 2024.[39]
[38] Exhibit 1, A7, Statement of Lived Experience, Danielle Minett, 8 February 2024, pp 251-252.
[39] Exhibit 1, A9, Statement of Lived Experience, Danielle Minett, 21 July 2024, pp 254-257.
Ms Minett confirmed that there had been no significant changes in her condition since the most recent statement. In this statement she details that she has extensive pain across her body, which causes her difficulty sleeping. She also experiences migraines and headaches and pins and needles in her right arm and hand and occasionally in her leg. She states that it is difficult to get out of bed in the morning and she lies there for around an hour preparing to get out of bed. Showering is difficult and she does not shower every day. Washing and brushing her hair and getting dressed aggravates her pain. She stays in her pyjamas as much as possible. She states that she can read for 15-20 minutes before she needs to change position and rest. She also experiences brain fog. She can sit for around 15 minutes and tries to walk on the treadmill at home for around 15 minutes twice a week. Her balance is unstable. She states that she is able to drive for 15-20 minutes at a time, and she needs her daughter to come with her to do the grocery shopping. Her daughter helps with cleaning, washing the clothes, cooking, driving, and reminding Ms Minett to perform self-care tasks and take medication. Ms Minett explains that she has modified where she keeps things in the kitchen so that the items she uses are within easy reach on the benchtop or lower cupboards as it is painful to reach above her chest. She has modified her cooking routine so that she only makes simple meals such as toast or pasta. She keeps in contact with friends by telephone and finds that engaging socially and in the community provokes anxiety.[40]
[40] Exhibit 1, A9, Statement of Lived Experience, Danielle Minett, 21 July 2024, pp 254-257.
Ms Minett resides in rental accommodation on the NSW Central Coast with her 17-year-old daughter. Her daughter is studying and plans to move overseas in 2025. In oral evidence Ms Minett stated that she has to deal with each day as it comes. If she is unwell or stressed her pain is worse. She stated that she is not currently having much therapy as she has used all her Medicare funded sessions, but she does still speak with her counsellor. She walks on her treadmill on the days that she feels able. She was swimming in the past but finds it difficult and costly to access now. She does not walk outside the home often, as if her pain becomes too intense while she is out, she still needs to walk back home. Ms Minett confirmed that she had not purchased any of the inexpensive items recommended by Ms Sale.
Ms Minett confirmed the evidence given in Ms Sale’s report to the effect that she last worked in 2022, conducting art therapy classes. Ms Minett said that these had just been a couple of sessions online and she had discontinued it because her pain had been too distracting, and she experienced brain fog. She said that her photography business is still operating, but is mainly doing Christmas shoots, and she engages contractors to do the photography. She said that she still does paperwork for the business but described this as ‘minimal’.
Ms Minett stated that, on a normal day, her daughter will check on her before she leaves for the day. Ms Minett stated that she does not feel rested in the mornings and is stiff and sore. She usually goes back to sleep after her daughter leaves. She does some stretching in bed after she wakes and takes things ‘slow and easy’. A hot shower can ‘take the edge off’, but washing her hair and dressing aggravate her pain so she must weigh up whether to shower. She stated that she tries not to put pressure on herself and schedules any necessary activities later in the day as she usually feels a bit better.
Ms Minett explained that she has several alarms set on her phone to remind her to eat and take medication. She makes herself coffee and sometimes toast in the mornings. She explained that her daughter does a lot around the house including washing, cooking, washing up and vacuuming. Ms Minett can vacuum using a stick vacuum if she paces herself by doing one room or half a room at a time. She uses the clothes dryer rather than hanging washing on the line. The floors are rarely mopped as her daughter does not like to do it. Ms Minett confirmed that she can do dishes, wipe benches and tables, and put items away in low cupboards. She will climb onto a chair rather than reach above her head for items. Ms Minett stated that she will supervise her daughter doing work outside in the yard and may pick up a couple of things so that her daughter does not feel like she is doing it all, but that the description of her doing gardening and placing items in the green bin in Ms Sale’s report was inaccurate.
Ms Minett stated that she does not regularly go anywhere. If she visits her mother in the Blue Mountains (a three-hour drive) her daughter will drive, and they will stop at least three times for Ms Minett to stretch and move about. She last did this trip in July 2024. Ms Minett confirmed that she can walk to the local doctor and pharmacy if needed (200 metres each way). She is able to maintain her relationships with friends and family by phone but does not visit her friends because of the travel.
Ms Minett stated that ‘every day is hard and awful and sad’ and that ‘even when I talk about my good days they are still shit’. She said that there is never a day when she is pain free, ‘happy, and feeling good about things’.[41]
[41] Ms Minett’s oral evidence at hearing.
On cross examination, Ms Minett confirmed that two weeks before the hearing she had attended a friend’s book launch in Paddington in Sydney and had taken photos. This involved her independently driving from her home to the train station at Tuggerah; catching a train from Tuggerah to Sydney Central station; catching a taxi to the venue in Paddington; attending the function for three hours between 6 PM and 9 PM during which time she took photographs; and then catching a Uber back to Central station, a train back to the Central Coast and driving home from the train station after the function had concluded. The photographs that she took were posted to social media.
She also undertook a similar journey in March 2024 to attend a medical appointment in Randwick, independently travelling to and from Sydney in the same day.
Ms Minett confirmed that in July 2024 she had attended a writing retreat in Sydney. She travelled independently to Sydney and stayed in Coogee over a weekend and attended workshops for a couple of hours each day with eight or nine other participants. She did this activity with her friend whose book launch she attended.
Ms Minett confirmed that she is the sole director of her company. She does not have employees but does the administration associated with hiring contractors to conduct photography shoots. The business mainly does photography work around Christmas. Ms Minett stated that she no longer does portraits. Her phone number is listed on her website as the contact for enquiries and email enquiries come through to her. Ms Minett explained that she rarely answers her phone, but a voicemail message informs prospective clients that she will be in touch. She will then deal with the enquiry when she feels able. Contractors invoice her for the work that they have done and she pays them. Clients are invoiced for the service via an automatic system. Ms Minett stated that she pays someone else to do the social media for the business. Ms Minett stated that the business pays its expenses, but she does not draw an income from it.
Ms Minett confirmed that the website listed her as working on the following weekend doing Christmas photo shoots at Catherine Hill Bay. She explained that in the days before the hearing this plan had been changed as she did not feel well enough. She acknowledged that she was still showing as available on the website because she had not yet updated it.
Ms Minett agreed that she does occasionally do photo shoots at Catherine Hill Bay leading up to Christmas. This involves her driving from her home to Catherine Hill Bay with her photography equipment (this takes approximately 25 minutes). Each photo shoot lasts for 30 minutes. Ms Minett explained that she paces herself carefully and that in the course of a day she may do three 30-minute photo shoots with a one-hour rest in the car between each shoot. She then drives herself home. She confirmed that she will do this on 17 November 2024 as her usual contractor is unavailable. She also agreed that she is listed on the website as being available to do photo shoots all day on 16 November 2024 but stated that she intended to close off the bookings or have a contractor work on that particular day. She explained that she had previously had a business partner and clients are used to seeing a number of different faces associated with the business.
Ms Minett agreed that she attended an art exhibition in Toukley a month before the hearing. She had exhibited a sculpture and two watercolours at the exhibition. She explained that she had only attended the exhibition for a very short time as she was not feeling well. She explained that she had been asked to contribute to the exhibition by the organiser and this sculpture had been done during her university studies. She does continue to do watercolour painting and post videos online of her doing this. She also has an online Etsy store where she makes scented candles to order. She does not do large orders. She also has watercolour paintings advertised online for sale but has not sold any.
Ms Minett confirmed that she is writing a novel about characters who meet in a motel. She has done writing for quite a long time and stated that it is important to her to write. This is an activity she can manage to do at home, in her own time as she is able. She is also enrolled on a self-paced watercolour course online and is using Duolingo to learn Italian, as her daughter is planning to work in Italy next year.
Ms Minett agreed that the details about her walking on the treadmill in Ms Sale’s report, being that she was able to walk a distance of 640 metres in 13.64 minutes was fairly typical of her walking on the treadmill. She has been told that she has poor balance and did some tests with her physiotherapist which confirmed this. She stated that she has been told that this was to do with her fibromyalgia. She holds the armrests when walking on the treadmill and holds onto things when moving around. She does not use any form of walking aid. She has no restrictions on her driving ability and does not have a disability parking permit.
Ms Minett stated that she engages in the activities she does to try and give some meaning and purpose to her life. To be able to attend the events mentioned she needs to plan and prepare and then have time for rest and recovery afterwards.
Mrs Minett’s evidence
Mrs Minett lives in the Blue Mountains. This is a three-hour drive from Ms Minett. She said that she speaks to Ms Minett by phone at least once a week, but she has not been to her home since her husband passed away three years ago. Mrs Minett stated that she can hear in Ms Minett’s voice how she is coping and that she considers that Ms Minett is only coping at a basic level. She stated that she struggles with housework, being unable to manage gardening, heavy tasks and tasks which involve stretching and bending. If the pain is too great, Ms Minett will abandon a task. She may come back to it, or it may not get done. Mrs Minett confirmed that she understood that her granddaughter provides a lot of assistance. She said that when she speaks to Ms Minett she can often hear that she is very tired, and it is her opinion that Ms Minett’s pain has gotten worse over time.
Mrs Minett stated that Ms Minett no longer drives down to see her as often as she used to. She last came down in July 2024 and before that it would have been for Mrs Minett’s birthday in February 2024. She usually stays overnight. Mrs Minett said that she has observed that Ms Minett has difficulty climbing the stairs to the bedroom. She has also noticed that Ms Minett’s daughter does most of the driving, but she did think that she and Ms Minett shared the driving. Mrs Minett stated that when Ms Minett visits, Mrs Minett prepares meals for her and Ms Minett sits and talk to her. She always brings a camera and takes photos of the family.
Mrs Minett said that Ms Minett used to photograph a couple of weddings each weekend. She is aware that Ms Minett still has her photography business but was of the understanding that Ms Minett has other people doing the photography now and she’s just doing the administration. Mrs Minett stated that she will occasionally provide Ms Minett with some financial assistance and has paid for a deep clean of the house on two occasions. She stated that she was vaguely aware of Ms Minett selling candles online and doing writing but that she was not aware of all the bits and pieces that Ms Minett is involved in. She agreed that she only knows what Ms Minett has told her and that Ms Minett does not tell her everything because she does not want to worry her.
Ms Sale’s evidence
Ms Sale confirmed that she had no amendments to make to her report of 19 April 2024.[42] This report details a comprehensive functional assessment of Ms Minett undertaken by Ms Sale on 26 March 2024. Ms Sale states that the medical evidence confirms that Ms Minett’s impairments are stabilised and are permanent, and that Ms Minett experiences pain in her head, neck, upper back and right (non-dominant) arm.[43] Ms Sale is of the opinion that Ms Minett has the following tolerances:
·she can walk for 10 to 15 minutes;
·she can drive for 20 minutes or be a passenger in a car for one hour;
·she cannot engage in prolonged standing or moderate to heavy lifting, sustained crouching, kneeling or squatting.[44]
[42] Exhibit 1, R2, independent functional assessment, Ms Melissa Sale, occupational therapist, pp 276-332.
[43] Ibid, 279.
[44] Ibid, 280.
Ms Sale’s report assesses Ms Minett as having no impairments in communication, social interaction, learning, and self-management. In terms of mobility, Ms Sale states that Ms Minett would benefit from an OT driving assessor for support and education; possibly some modifications to her vehicle; transport to and from her medical appointments; some low-cost items and minor home modifications. In terms of self-care, Ms Sale was of the view that Ms Minett would benefit from gardening and lawn mowing services, services to assist with heavy cleaning, support work to assist with weekly shopping, and occupational therapy support for skills, aids and equipment.[45]
[45] Exhibit 1, R2, independent functional assessment, Ms Melissa Sale, occupational therapist, 280.
Ms Sale recommends that Ms Minett access items such as a long-handled reacher, shower stool, long-handled sponge and hair washer, hair dryer stand, grab rail in the shower, a handrail on the stairs, a robotic vacuum cleaner, a perching stool, a combined washer/dryer, washing machine stand, a laundry trolley and clothes airer.[46]
[46] Ibid, pp 309-311.
In her oral evidence, Ms Sale confirmed that her understanding was that Ms Minett had not worked since 2022. She was aware that Ms Minett had done some photography in the past but understood that she had not done it for many years, perhaps not since her injury. She was not aware that Ms Minett was still engaged in this work from time to time.
Ms Sale confirmed that she conducted her assessment of Ms Minett by administering standardised assessments and observing Ms Minett completing or replicating tasks. In relation to the activities that she observed, Ms Sale gave the following evidence:
· Mobility - Ms Sale stated that Ms Minett was guarded in her movements and was stiff. She was cautious in moving her neck and upper body and appeared apprehensive and fearful of exacerbating her pain. Although her movements were rigid and slow, she did not use any walking aids. Ms Sale’s opinion was that Ms Minett does not need a mobility aid and such an aid would not benefit her or enable her to walk further. She did not consider that Ms Minett was sufficiently unsteady on her feet that an aid would be required. She noted that Ms Minett has modified her mobility by holding onto the armrests when she is using the treadmill and holding onto walls and furniture. She noted that she had confirmed the distance that Ms Minett walks from her home to the doctor and pharmacist is 200 metres by using Google maps. She also noted that following the assessment, at her request, Ms Minett had texted her the details of how far and for how long she had walked on the treadmill on her next occasion to do so following the assessment as Ms Sale had been unable to retrieve that information from the treadmill at the time.
· Transfers - Ms Sale stated that Ms Minett is independent in transfers although she may use external supports to push herself up. She was able to navigate the three steps down to the shower, step over the hob and demonstrate showering. Ms Sale explained that Ms Minett leans on the shower wall to bring her head down to wash her hair.
· Self-care – Ms Sale noted that Ms Minett is able to complete all self-care tasks with a modified technique. She sits on the ground to do up her shoes rather than bending. She can do up and undo her buttons and had made adaptations to maintain her independence. Ms Sale stated that Ms Minett had also modified her cooking routine so that she only makes simple meals. Ms Sale observed her making coffee, getting food out of the refrigerator and transferring it to the bench, and chopping it up. She observed her knife use and ability to look down at the benchtop. Ms Sale stated that Ms Minett is independent in simple basic cooking tasks but does need assistance lifting heavy pots and pans and struggles being in the kitchen for more than five minutes.
Ms Sale stated that Ms Minett reported that on her bad days she is basically bedbound and that the level of her pain determines those days. Activities such as dressing are not attended to due to pain on those days, although Ms Minett is able to get out of bed to go to the toilet or get water. Her meals are reduced on these days. Ms Minett reported to her that she would have one or two bad days per week on average. The remainder of the days in a week would be average. Ms Sale stated that in her professional experience is common for chronic pain patients to have bad days and that she did not think Ms Minett exaggerated the frequency of her bad days. She noted that Ms Minett is quite a sensible and measured person who paces herself to achieve things.
Ms Sale was with Ms Minett for 2 ½ to 3 hours on the day of the assessment and, in her opinion, Ms Minett was definitely uncomfortable. The Tribunal described Ms Minett’s evidence about conducting photography sessions to Ms Sale. Ms Sale was of the view that conducting three half-hour photo shoots with an hour of rest between each of them was consistent with the limitations she observed, depending upon the weight of Ms Minett’s equipment.
Ms Sale explained that the items she recommended to assist Ms Minett could roughly be divided into two categories - items to increase her independence and items to reduce her pain. Some items, such as the robotic vacuum cleaner, perching stool and laundry items would allow Ms Minett to be more independent others, such as the long-handled hair washer, would likely decrease her pain.
In her report, Ms Sale had noted a number of alternative programs which may provide support to Ms Minett including the Safe and Supported at Home Program (SASH) offered by the NSW government; NSW Mental Health community living programs; taxi subsidies; Home Care; Enable NSW; and Central Coast Community Transport. Ms Sale confirmed that she had not specifically considered Ms Minett’s eligibility for any of those programs. She stated that the SASH program would be most suitable, but that program is time-limited, so she was not sure that Ms Minett would be eligible.
Does Ms Minett have a substantially reduced functional capacity in any of the relevant domains?
Communication
The Operational Guidelines set out what communication is for the purpose of the Act:[47]
• Communicating – how you speak, write, or use sign language and gestures, to express yourself compared to other people your age. We also look at how well you understand people, and how others understand you.
[47] National Disability Insurance Agency, Our Guidelines: Applying to the NDIS, (Web Page) <>
If a person is able to do all these things, it is unlikely that they have a substantial functional impairment in communication.[48] None of the medical and functional capacity evidence before the Tribunal indicates that Ms Minett has an impairment in the activity of communication. She can do the activities associated with running her business, including communicating with her contractors and clients. She can talk with friends on the phone and is writing a novel. The Tribunal cannot conclude that Ms Minett has a substantial functional impairment in the domain of communication. The requirements of ss 24(1)(c)(i) of the Act are not satisfied.
[48] HPSC and National Disability Insurance Agency [2021] AATA 727, [50].
Social interaction
Ms Minett does not frequently interact with people socially due to her difficulties mobilising and her anxiety, but when she does so, she appears to be able to do so appropriately. There is no evidence to indicate that her behaviour in social situations is so impaired that she cannot function. She can independently attend doctor’s appointments, recently attended a book launch and writing workshop; and is able to engage appropriately with her daughter and other family members. The Operational Guidelines focus on whether a person has the skills to engage in social interaction and how they behave when they do so, rather than any opportunity for social interaction which may be present in their lives, or any barriers which may make accessing social interaction more difficult for the person.[49]
[49] National Disability Insurance Agency, Our Guidelines: Applying to the NDIS, (Web Page) <>
In Kilgallin and National Disability Insurance Agency,[50] the Tribunal was faced with the circumstances of an Applicant who had significantly reduced their social interactions as a result of their disability. In that case, the Tribunal found that the Applicant may well have reduced psychosocial functioning in undertaking such activities, but the skills required for social interaction were not significantly affected. This accords with Ms Minett’s situation. The Tribunal cannot find Ms Minett has a substantially reduced functional capacity to undertake the activity of social interaction outlined in ss 24(1)(c)(ii).
[50] [2017] AATA 186.
Learning
Ms Minett’s learning has not been formally assessed. She completed a Masters in 2021 and is currently enrolled in a self-paced online course in watercolours and is learning Italian. While she subjectively reports experiencing brain fog, trouble concentrating, fatigue and difficulty with decision-making and likely no longer has the same high level cognitive skills as she did before her injury, the evidence does not support a specific problem in this area. She no doubt has reduced psychosocial functioning, and therefore her ability to learn is not what it used to be, but the Tribunal cannot find evidence that her ability to learn, understand and remember new things, and practice and learn new skills, has been substantially affected. The Tribunal cannot find Ms Minett has a substantially reduced functional capacity to undertake the activity of learning outlined in s 24(1)(c)(iii).
Mobility
The Operational Guideline provides a definition of mobility:
Mobility, or moving around – how easily you move around your home and community, and how you get in and out of bed or a chair. We consider how you get out and about and use your arms or legs.[51]
The concept of mobility in the NDIS Act refers to how a person moves around their home and uses their arms and legs to undertake the ordinary activities of daily living. It also refers to what a person physically can do, as opposed to what they actually do. Doing activities slower than a normal person, or in a modified way, does not mean that a person has a significantly reduced functional capacity.
[51] Does your impairment substantially reduce your functional capacity? | NDIS, 29 October 2024.
In Madelaine[52] the Tribunal considered the threshold for functional capacity in mobility, and decided that a person has functional capacity in mobility if they can “move about their home, get in and out of the bed or chair, and mobilise in the community.”[53] It acknowledged that the threshold is a modest one, which only involves short distances around a person’s home and around community facilities once they are transported there. Further, it came to the view that “significantly, the concept does not include being able to move around in the community for the purpose of accessing services, such as shops, the bus stop or the local park.”[54]
[52] [2020] AATA 4025.
[53] Ibid [104] (DP Humphries).
[54] Ibid [105] (DP Humphries).
In Jourifan & National Disability Insurance Agency,[55] the Tribunal found that the applicant did not have a substantially reduced functional capacity with mobility, having regard to evidence that he was able to walk 700 metres to 800 metres daily without using a walking stick, driving for 10 minutes, travel alone by bus, assist his wife with grocery shopping and carry up to 3 kilograms. In MHZQ & National Disability Insurance Agency,[56] the Tribunal accepted that the Applicant’s bilateral knee condition caused significant difficulties in her capacity to mobilise. However, the Tribunal was not satisfied that the Applicant’s bilateral knee condition resulted in a substantial reduction in functional capacity to mobilise, as she did not use mobility aids and she had the capacity to walk without aids for 50 metres if she were to lose further weight. The Tribunal noted the decision in Holmes & National Disability Insurance Agency,[57] which found that the capacity to walk 50 metres, then needing to rest, then continuing to walk after a break, does “not amount to a substantially reduced capacity in… mobility.”
[55] [2020] AATA 1883.
[56] [2019] AATA 810.
[57] [2017] AATA 2750 [76] (M McCallum).
The Operational Guideline does not specify an ability to walk a particular distance as a definition of the level of mobility. However, as Deputy President Humphries pointed out in Madelaine:[58]
… It seems reasonable to suggest that a person who can travel 50 metres by herself has the capacity to do the things referred to in the Guideline. That view would be consistent with the decisions of the Tribunal in Holmes and MHZQ…
[58] [Madelaine v National Disability Insurance Agency [2020] AATA 4025, [106] (DP Humphries).
The evidence before the Tribunal is that Ms Minett can mobilise independently around her house and in the community by walking, driving and catching public transport. Ms Sale’s opinion was that Ms Minett would not be assisted by a walking aid. Ms Sale reported Ms Minett’s tolerance for walking to be walking for 10 to 15 minutes.[59] She can walk for 400 metres from her home to the chemist or doctor and back again. She can walk sufficiently to negotiate driving to the train station and catching the train to Sydney. Ms Minett walks on a treadmill a few times per week for around 15 minutes, during which time she achieves a distance of about 600 metres.
[59] Exhibit 1, R2, report of Melissa Sale, occupational therapist, 19 April 2024, 280.
Ms Sale reports that Ms Minett needs to pace herself and cannot engage in prolonged standing; moderate to heavy lifting; and sustained crouching, kneeling and squatting. Ms Sale notes that Ms Minett can dress, shower and undertake other light household activities by pacing herself and modifying the activity if necessary. She does not currently use assistive technology and her home is unmodified. There is no doubt that she can no longer engage in all the activities she used to do, but the threshold for a substantial functional impairment in the domain of mobility is very high. It is simply whether the person retains sufficient functional mobility to do the most basic tasks in life. Ms Minett still retains functional mobility at a level which is sufficient that she does not meet the test of having a substantially reduced functional capacity in the domain of mobility.
The Tribunal considered if Ms Minett meets the deeming provision in Rule 5.8 in the area of mobility and decided that she does not. While she engages in the activities of mobility in a modified way, she does not require assistive technology, the help of another person or home modification to do so. The provision of low cost assistive technology and home modifications would certainly improve her quality of life, but she can complete the required tasks without them. The Tribunal cannot find that Ms Minett has a substantially reduced functional capacity to undertake the activity of mobility outlined in s 24(1)(c)(iv).
Self-care
The evidence indicates that Ms Minett has difficulties with self-care due to her pain. Dressing, showering, and washing her hair aggravate her pain. Ms Sale states that Ms Minett has modified some of these tasks to make them easier for herself. For example, she leans on the wall of the shower while washing her hair and sits on the floor to do up her shoes.
Her daughter checks in on her in the mornings and reminds her to eat and shower. Ms Minett uses alarms on her phone for this too. Ms Minett can make herself a meal by using a modified routine of preparing simple foods, and Ms Sale assessed her ability to transfer food from the fridge to the bench and cut it up.
The Tribunal was satisfied that Ms Minett also does not meet the deeming provision in rule 5.8 in relation to the domain of self-care. She is able to self-care, although in a modified way and at a slower pace than people who do not have her disabilities. She is currently doing so with no assistive technology, equipment or home modifications. The Tribunal could not find that the difficulties that Ms Minette has with self-care are so severe that they would amount to a substantially reduced functional capacity. The Tribunal cannot find that Ms Minett currently has a substantially reduced functional capacity to undertake the activity of self-care outlined in s 24(1)(c)(v).
Self-management
Ms Minett manages her own photography business and an online store on Etsy. While she is now in receipt of disability support pension and her income is therefore limited, there is no indication that she is unable to manage her finances.
The available evidence indicates that Ms Minett has some difficulty with self-management, in the form of remembering to take her medication and to have regular meals, but that she utilises common strategies such as reminders on her phone and from her daughter to take medication and eat.
Ms Minett is not able to undertake heavier household tasks and gardening. She uses the clothes dryer rather than the washing line, has a stick vacuum cleaner and paces herself by only vacuuming half or one room at a time. She has reorganised her kitchen so that the item she uses most frequently are below shoulder height. If she needs to access something from a high shelf, she will stand on a chair rather than lift her arms. Ms Minett does need her daughter to accompany her to do grocery shopping if she does not order groceries online. Ms Sale indicated that there were also a number of low-cost, commonly used, items which could be purchased by Ms Minett to make these tasks easier. The Tribunal notes that Ms Minett is unable to do these things due to her physical ability to do these tasks not her cognitive ability to plan and manage her life.
While Ms Minett does require physical assistance to complete heavier household tasks, the completion of such tasks are only one aspect of the entire domain of self-care and a substantial impairment in relation to one or two tasks does not satisfy the requirement of a substantial impairment across the domain as a whole.[60] The Tribunal accepts that Ms Minett has some impairment in the area of self-management, but could not find that the evidence before it is sufficient to establish that she has a substantial functional impairment as required under s 24(1)(c)(vi) of the NDIS Act.
[60] National Disability Insurance Agency v Foster [2023] FCAFC11
The test set out in Mulligan establishes that the Tribunal must be positively satisfied that the requirements of the NDIS Act are met in relation to an impairment before access to the scheme can be granted. The Tribunal has not been able to meet the requisite level of positive satisfaction in relation to Ms Minett’s impairments. As such, it cannot be satisfied that Ms Minett meets the requirements for access to the scheme under s 24(1)(c) of the NDIS Act.
Section 25 – Early Intervention Requirements
Section 25 of the Act sets out the requirements for access to the NDIS under the early intervention criteria. Ms Minett may be granted access to the NDIS if the Tribunal is satisfied that the provision of early intervention supports may reduce Ms Minett’s need for future supports.
Rule 2.5(b) of the NDIS Rules includes the following passage about the rationale for the early intervention requirements as an alternative to accessing the scheme through the disability requirements:
‘A person can access the NDIS through the early intervention requirements without having substantially reduced functional capacity. Instead, the early intervention requirements consider the likely trajectory and impact of a person’s impairment over time and the potential benefits of early intervention on the impact of the impairment on the person’s functional capacity.’
There is no evidence of this nature before the Tribunal. The evidence before the Tribunal is that Ms Minett’s condition is likely to deteriorate, and she will likely require more support over the course of her lifetime. Ms Minett’s impairments do not qualify her for access to the NDIS through the early intervention pathway.
The Tribunal is sympathetic to Ms Minett’s situation. There is no doubt that access to additional supports would improve her quality of life, but that is not the question before the Tribunal. The question before the Tribunal is whether Ms Minett is among those individuals in society for whom the NDIS was designed, by reference to the access criteria contained in the NDIS Act. The Tribunal can see that Ms Minett has impairments and that she is no longer able to do many things that she used to do. She now engages in the creative pursuits that she can manage as she tries to give her life meaning, but she does not have the capacity to engage in many of the tasks of what would be considered to be a normal life. Her life is not what she expected it would be. It has changed a great deal and is less fulfilling to her than it used to be. Nonetheless, the question of whether Ms Minett is qualified to access the NDIS must be answered in the negative.
CONCLUSION
The Tribunal is satisfied that Ms Minett does not meet any of the requirements to access the NDIS. The Agency’s decision on internal review dated 22 September 2023 was correct.
DECISION
The decision under review is affirmed.
I certify that the preceding 100 (one hundred) paragraphs are a true copy of the reasons for the decision herein of General Member T. Bubutievski
...................................[SGD].....................................
Associate
Dated: 12 November 2024
Date(s) of hearing: 21 October 2024 Date final submissions received: 21 October 2024 Solicitors for the Applicant: Self-Represented Solicitors for the Respondent: Ms Erin Hourigan, Maddocks Lawyers
Mr Marco Nesbeth, Counsel
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