MORGAN and NATIONAL DISABILITY INSURANCE AGENCY

[2023] AATA 3311

MORGAN and NATIONAL DISABILITY INSURANCE AGENCY [2023] AATA 3311 (29 September 2023)

Division:                  NATIONAL DISABILITY INSURANCE AGENCY DIVISION

File Number:           2021/6444

Re:  JEFFERY MORGAN

APPLICANT

And  NATIONAL DISABILITY INSURANCE AGENCY

RESPONDENT

DECISION

Tribunal:                  Senior Member Katter

Date:  29 September 2023

Place:  Brisbane

The decision under review is set aside and it is decided in substitution that the Applicant meets the access criteria in section 21(1)(c)(i) of the National Disability Insurance Scheme Act 2013 (Cth).

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

Senior Member Katter

CATCHWORDS

NATIONAL DISABILITY INSURANCE AGENCY – access criteria – impairment – permanent impairment – whether impairment results in substantially reduced functional capacity – decision under review set aside

LEGISLATION

Administrative Appeals Tribunals Act 1975 (Cth)

National Disability Insurance Scheme Act 2013 (Cth)

National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)

REASONS FOR DECISION

APPLICATION

1.This is an application for review[1] of a decision as to “access” to the National Disability Insurance Scheme.[2]

[1]  T1, page 1.

[2]  T6, page 60.

BACKGROUND

2.There is an access request form signed on 17 January 2021 by the Applicant.[3] At Part F of that form the “primary disability” is stated to be “severe osteoarthritis”.[4] There are other disabilities referred to in that form: “haemophilia A” and “coronary artery disease”.[5]

[3]  T5, page 59.

[4]  T5, page 55.

[5]  Ibid.

3.By correspondence dated 10 May 2021 the Respondent stated that the Applicant did not meet the disability and early intervention requirements described in the National Disability Scheme Insurance Act 2013 (Cth) (“the Act”).[6] The “access” decision refers to information that was considered: NDIS Supporting Evidence Form from Dr McAllister, general practitioner, dated 11 January 2021; letter from Dr Mason, haematology specialist, Mr Russell, physiotherapist, and Ms Riley, social worker, dated 25 August 2020; and Report from Mr Virtue, occupational therapist, dated 20 May 2021.[7] That correspondence stated:[8]

[6]  T6, page 60.

[7]  T6, page 61.

[8]  T6, page 60.

“Reason for the decision Disability Requirements

Based on the information provided, you do not meet the disability requirements as set out in Section 24 of the NDIS Act, specifically:

Permanency, Section 24(1)(b)

The NDIS Act considers whether a disability is permanent, or likely to be permanent.

The information provided confirms that you have Arthropathy as a result of Haemophyllia.

However, this information does not indicate that all available and appropriate treatment options that are likely to improve the impacts of your disability have been explored. These treatment options must be explored before this requirement can be met.

It is important to note that a person may have a disability without meeting all, or even any, of the NDIS disability requirements. For example, a person could have temporary disability, or a permanent disability that does not have a substantial impact on their everyday functioning.

Next, I considered the early intervention requirements.

Early Intervention Requirements

Based on the information provided, you do not meet the early intervention requirements as set out in Section 25 of the NDIS Act, specifically:

Permanency or Development Delay, Section 25(1)(a)

The NDIS Act considers whether a person has a permanent disability, or is a child under 6 years of age with a development delay.

As previously explained, this information does not indicate that all available and appropriate treatment options that are likely to improve the impacts of your disability have been explored. These treatment options must be explored before this requirement can be met.”

4.A request for internal review was made on 25 May 2021.[9] By correspondence dated 24 August 2021, the decision of 10 May 2021[10] was confirmed, meaning that the Applicant “will not be able to access the NDIS”.[11] There was ‘satisfaction’ as to section 22 (age)[12] and section 23 (residence).[13] As to section 24, there was not ‘satisfaction’ that all of the five criteria in subsection (1) had been ‘met’.[14] There was ‘satisfaction’ that the criteria in subparagraphs (a),[15] (b)[16] and (d)[17] had been ‘met’. There was not ‘satisfaction’ as to subparagraph (c) (functional impact)[18] and subparagraph (e) (lifetime NDIS support).[19] There was also not ‘satisfaction’ as to “early intervention” in section 25.[20] Further, there was not ‘satisfaction’ that, according to section 25(3), the NDIS is the most appropriate support system.[21]

[9]  T8, page 68.

[10] T6, page 60.

[11] T2, page 29.

[12] T2, page 32.

[13] T2, page 33.

[14] Ibid.

[15] T2, page 33.

[16] Ibid.

[17] T2, page 35.

[18] T2, page 33.

[19] T2, page 35.

[20] T2, page 36.

[21] T2, page 37.

5.By an application to this Tribunal dated 6 September 2021,[22] the Applicant stated as to why the decision is wrong: “ … the Applicant believes they satisfy all the five criteria … to be eligible to access the NDIS”.[23]

[22] T1, page 1.

[23] T1, page 5.

6.The hearing commenced on 7 June 2023[24] and concluded on 8 June 2023.[25] The Applicant filed submissions on 24 July 2023. The Respondent filed submissions on 4 August 2023, with reply submissions of the Applicant being filed on 18 August 2023.

[24] Transcript, 7 June 2023, P-2.

[25] Transcript, 8 June 2023, P-108.

SECTIONS 18 to 24

7.There was an access request made by the Applicant on 17 January 2021,[26] according to section 18 of the Act.[27]

[26] T5, page 59.

[27] Submissions of the Applicant, filed 24 July 2023, paragraph 3.

8.The access request was in an approved form.[28] There were other documents considered with the form[29] as to the making of the decision on 10 May 2021.[30] The form[31] does certify at Part H that it includes all the information and is accompanied by all the documents that the Applicant ‘has or can get’.[32]

[28] Section 19(1)(a) National Disability Insurance Scheme Act 2013 (Cth). T5, page 51.

[29] Ibid.

[30] Section 19(1)(b) National Disability Insurance Scheme Act 2013 (Cth). T6, page 61.

[31] Section 19(1)(a) National Disability Insurance Scheme Act 2013 (Cth). T5, page 51.

[32] Section 19(1)(c) National Disability Insurance Scheme Act 2013 (Cth). T5, page 59.

9.Section 21(1)(c)(i) of the Act states that a person meets the access criteria if there is satisfaction that, at the time of considering the request, the person meets the disability requirements (section 24). The Applicant does not submit that there is an issue as to whether the Applicant meets the early intervention requirements as referred to in section 21(1)(c)(ii).[33]

[33] Submissions of the Applicant filed 24 July 2023, paragraphs 6-11.

10.The parties submit that there is no issue as to age[34] and residence.[35]

[34] Paragraph 6 of the Submissions of the Applicant filed 24 July 2023. Section 22. Submissions of the Respondent filed 4    August 2023, paragraphs 4 and 17(a).

Paragraph 6 of the Submissions of the Applicant filed 24 July 2023. Section 23. Submissions of the Respondent filed 4 August 2023, paragraph 17(b).

11.The parties submitted that the Applicant has ‘satisfied’ subsection 24(1)(a):[36] the Applicant has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory, or physical impairments, or to one or more impairments attributable to a psychiatric condition. The Applicant submitted that haemophilia “leads to bleeding in the joints and this evidence is in Dr Mason’s report”, leading to what the Doctor describes as arthropathy or what is more commonly known as osteoarthritis, which is severe in nature; that the Applicant does not press haemophilia as a separate impairment to severe osteoarthritis.[37] The Respondent submitted that the Applicant had a disability that is attributable to “severe osteoarthritis” “under s 24(1)(a) of the Act”.[38]

Submissions of the Applicant filed 24 July 2023, paragraph 7. Submissions of the Respondent filed 4 August 2023, paragraphs 2, 6 and 17(c).

[37] Transcript, 7 June 2023, P-9 lines 4-32.

[38] Submissions of the Respondent filed 4 August 2023, paragraph 17(c).

12.There was no contention by the Respondent that the impairment of “severe osteoarthritis” is not, or is not likely to be, permanent.[39]

[39] Submissions of the Applicant filed 24 July 2023, paragraph 7. Submissions of the Respondent filed 24 August 2023, paragraph 17(d).

13.The Respondent submitted that the impairment of “severe osteoarthritis” affects the Applicant’s capacity for social or economic participation.[40]

Section 24(1)(d) National Disability Insurance Scheme Act 2013 (Cth). Submissions of the Applicant filed 24 July 2023, paragraph 7. Submissions of the Respondent filed 4 August 2023, paragraph 17(e).

14.The Applicant submits that the impairment of “severe osteoarthritis” results in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or both of the following activities: (iv) mobility; and (v) self-care.[41] The Respondent submitted that that was the only issue to be decided, whether the impairment results in substantially reduced functional capacity in undertaking mobility and/or self-care.[42]

Section 24(1)(c)(iv) and (v) National Disability Insurance Scheme Act 2013 (Cth). Submissions of the Applicant filed 24 July 2023, paragraph 11.

[42] Submissions of the Respondent filed 4 August 2023, paragraph 19.

15.The Applicant submitted that the Applicant ‘satisfies’ one or more of the limbs of rule 5.8 in relation to the activities of both mobility and self-care.[43] The Respondent submitted that the Applicant has not satisfied rule 5.8(a), rule 5.8(b) or rule 5.8(c).[44]

[43] Submissions of the Applicant filed 18 August 2023, paragraph 136.

[44] Submissions of the Respondent filed 4 August 2023, paragraph 70.

16.Section 24 of the Act states:

“(1)     A person meets the disability requirements if:

(a)the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable; and

(b)the impairment or impairments are, or are likely to be, permanent; and

(c)the impairment or impairments result in substantially reduced functional capacity to undertake one or more of the following activities:

(i)communication;

(ii)social interaction;

(iii)learning;

(iv)mobility;

(v)self-care;

(vi)self-management; and

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

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

(2)For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the National Disability Insurance Scheme for the person's lifetime, despite the variation.

(3)For the purposes of subsection (1), an impairment or impairments that are episodic or fluctuating may be taken to be permanent, and the person may be taken to be likely to require support under the National Disability Insurance Scheme for the person's lifetime, despite the episodic or fluctuating nature of the impairments.

(4)Subsection (3) does not limit subsection (2).”

17.Section 209(1) of the Act states that the Minister may, by legislative instrument, make rules called the National Disability Insurance Scheme rules prescribing matters required or permitted by the Act to be prescribed by the National Disability Insurance Scheme rules as necessary or convenient to be prescribed in order to carry out or give effect to the Act.[45]

[45] Submissions of the Respondent filed 4 August 2023, paragraph 7.

Rule 5.8 of the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (the “Rules”)[46] states:

“When does an impairment result in substantially reduced functional capacity to undertake relevant activities?

5.8     An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities—communication, social interaction, learning, mobility, self-care, self-management (see paragraph 5.1(c))—if its result is that:

(a)the person is unable to participate effectively or completely in the activity, or to perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications; or

(b)the person usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in the activity or to perform tasks or actions required to undertake or participate in the activity; or

(c)the person is unable to participate in the activity or to perform tasks or actions required to undertake or participate in the activity, even with assistive technology, equipment, home modifications or assistance from another person.”

[46] National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) made under sections 22, 23, 25, 27 and 209 of the National Disability Insurance Scheme Act 2013 (Cth), Compilation No. 4, Compilation date: 27 February 2018, Includes amendments up to: National Disability Insurance Scheme (Becoming a Participant) Amendment Rules 2018.

18.The Respondent submitted that the Rules are “somewhat supported by the guidelines. Those guidelines … themselves don’t dictate the answer to the question, they just provide guidance. It’s really going to be focused on the evidence and what the evidence demonstrates as to whether or not those deeming provisions under rule 5.8 have been met”.[47] The operational guidelines provide at page 9 that mobility includes activities in: ‘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’.[48]

[47] Transcript 7 June 2023, P-12, lines 16-22.

[48] Submissions of the Applicant filed 24 July 2023, page 4, paragraph 18.

19.Mr Virtue, an occupational therapist, provided a report dated 20 May 2021 as to the Applicant.[49] Mr Virtue stated:[50]

“Jeffrey has been diagnosed with severe osteoarthritis secondary to damage in his joints caused by haemorrhages and haemophilia. This life-long and non-reversable condition has impacted Jeffrey’s mobility as he experiences severe stiffness and pain in all joints, especially in his legs, arms and hands. Jeffrey walks with a shuffling gait and uses two crutches to help with weight bearing and balance. His walking takes an excessive amount of time and he will often not be able to mobilise independently by the end of the day when his symptoms worsen. If this occurs, his wife will assist by positioning him on an office chair and pushing him into his bedroom. Jeffrey’s gait, lack of agility and inability to bend his knees also impact his sit-to-stand transfers as he requires support from crutches, armrests or grabrails when transferring from his bed, toilet or chair. He requires an elevated seated position to transfer safely, therefore he cannot use typical armchairs or couches due to their low height. Jeffery’s diagnosis, lack of suitable equipment and past history of falls means that he is at increased risk of falls and associated injuries in the future. Therefore, Jeffery would benefit from Occupational Therapy assessment and recommendations for equipment, mobility aids, and minor/major home modifications.”

[49] T-7, pages 65-67.

[50] Ibid.

20.Mr Virtue at the hearing described the document of 20 May 2021 as a “functional observation”[51] and “summarised report”,[52] rather than a “functional assessment”.[53] Mr Virtue agreed that there had not been, in the report, any recommendations as to what mobility aids the Applicant might require, in that ‘it is very hard to determine that without doing a full functional test as to what assistant technology a client would benefit from’.[54]

[51] Transcript 7 June 2023, P-63, line 46.

[52] Transcript 7 June 2023, P-63, line 47.

[53] Transcript 7 June 2023, P-63, lines 40 and 41.

[54] Transcript 7 June 2023, P-64, lines 14-20.

21.The Respondent ‘acknowledged that due to the Applicant’s impairment and the effect the severe osteoarthritis has had on his joints, he has impaired mobility.’[55] The Respondent submits that the independent functional assessment by Mr Fielke, the occupational therapist, ‘demonstrates that the Applicant is able to achieve outcomes across tasks even if this is more slowly and with greater effort’.

[55] Submissions of the Respondent, filed 4 August 2023, page 6, paragraph 28.

22.Mr Fielke, an occupational therapist, provided a report dated 6 April 2022, on instructions by the Respondent, as to the Applicant.[56] Mr Fielke stated that he was ‘satisfied that he had been able to assess the Applicant to an adequate standard to which his clinical opinion can be relied upon, where he stated that his opinion was not limited as a result of conducting the assessment of the Applicant by video’.[57] Mr Fielke described his report as a “functional capacity assessment” to “review [the Applicant’s] current capacities, abilities, and needs … .”[58] Mr Fielke was asked to assess the Applicant’s functional capacity to undertake, or psychosocial functioning in undertaking, the activities in subsection 24(1)(c)(i)-(vi) and stated that these issues were presented in the body of his report under the heading “impacts of diagnoses on functional capacity”:[59]

[56] Exhibit 5, pages 235-256.

[57] Exhibit 5, page 237.

[58] Exhibit 5, page 239.

[59] Exhibit 5, page 255.

“Impacts of Diagnoses on Functional Capacity:

Range of Movement

Mr Morgan has a number of joints with significantly reduced range of motion which he reported as following: …

Elbows: Mr Morgan has significantly reduced range of movement in his left and right elbows. He demonstrated a limited range of motion between approximately 45° to 95° of flexion in the right elbow and 20° to 90° of flexion in the left elbow. He is unable to straighten or fully bend either elbow. He is only able to reach his mouth with his left hand.

Wrists: Mr Morgan is only able to supinate his right wrist to 45°. He is able to supinate his left wrist to approximately 90°. He has reduced range of movement.  He has reduced range of movement for flexion/extension in both wrists by approximately 50%. His left wrist range of motion is slightly more restricted than his right. …

Knees: Mr Morgan has significantly reduced range of movement in left and right knees. He demonstrated only 20° of movement in the right knee (45° to 65° of flexion) and approximately 30° of movement in the left knee (45° to 75° flexion) and approximately 30° of movement in the left knee (45° to 75° flexion). He is unable to straighten either knee. This impedes his ability to stand upright.

Ankles: Mr Morgan demonstrated significant limitations on left and right ankle movement. He is unable to achieve sufficient ankle dorsiflexion on the right side to enable him to place his heel and foot flat on the ground. He subsequently requires modified shoes to assist place his heel in a weight bearing position. …

Level of Assistance		Typical Supports
Very High		Unable to perform task at all. Requires assistance for entire task
High		Unable to do majority of task. Requires assistance for most of the task
Moderate		Able to do some of task. Requires assistance for some of the task
Minimal		Able to do most of task. Requires assistance for up to a small part of the task
Intermittent		Sometimes not able to do task e.g. during an episode (please detail frequency)
Mobility Area	Status		Comments
Indoor mobility	Reduced capacity requiring very high assistance (Assistive technology) to complete		Mr Morgan is unable to mobilise without the assistance of two single sticks. He is unable to straighten his left and right knees sufficiently to mobilise without assistive technology. He has limited range of movement in his ankles and requires specialised shoe orthoses to enable him to place his heels and feet flat on the ground. Mr Morgan was observed to mobilise 4-5m in a slow and unsteady manner during the assessment. Approximately three days a month his symptoms are sufficient to prevent him mobilising at all.
Outdoor mobility	Reduced capacity requiring very high assistance (Assistive technology) to complete.		Mr Morgan experience similar barriers and restrictions as outlined for indoor mobility. Outdoor mobility was not observed during assessment. It would be reasonable to conclude that Mr Morgan requires the use of appropriate assistive technology to manage outdoor mobility. It would be reasonable to conclude that his tolerance for outdoor mobility will be significantly reduced. Approximately three days a month he cannot mobilise in any capacity outside due to poor symptomology.
Balance	Reduced capacity requiring very high assistance (Assistive technology) to complete		Mr Morgan is unable to stand independently without the use of either his walking sticks or use of grab rails. He can stand if he is leaning against the bench or wall or a solid structure side by is unable to mobilise/balance without thus support.  Approximately three days a month he cannot stand in any capacity due to poor symptomology.
Stairs	Reduced capacity requiring very high assistance (Assistive technology) to complete		Mr Morgan is unable to use stairs without the use of high walking sticks and or grab rails. He will be able to use mobilise over one step although it would be reasonable to conclude that this activity will be slow and completed with an increased risk of falls.  Approximately three days a month he cannot use stairs in any capacity outside due to poor symptomology. For a further 13-14 days a month he is too unsafe to use stairs because of reduced capacity.

Sit to stand transfer	Reduced capacity requiring very high (Assistive technology) to complete	Mr Morgan demonstrated moving between sitting and standing during the assessment in a slow and guarded manner. He required the use of armrests to assist him move from a seated position to standing. He required the use of his walking sticks to maintain standing posture. He reported he uses a homemade over-toilet frame to allow him to get off his toilet It would be reasonable to conclude his knee and ankle restrictions would significantly impede his ability to move between sitting and standing safely without the use of appropriate assistive technology.
Bed transfer	Reduced capacity	Mr Morgan reported that on most days he is
requiring very high	able to transfer in/out of bed using his walking
assistance	sticks. On days when his symptoms are
(Assistive	worse, he is unable to leave his bed and relies
technology) to	on the use of a bottle for urinating and support
complete	from his wife to bring him items as needed. He
reported he can experience at least three days
on average each month when he is unable to
exit his bed.
Toilet transfer	Reduced capacity	Mr Morgan is unable to transfer off his toilet
requiring very high	without the use of AT use to his limited knee and
assistance	ankle range of motion and subsequent lower
(Assistive	limb weakness. He uses a homemade over-
technology) to	toilet frame (aluminium chair with armrests and
complete	hole cut in seat) to assist him stand after
seated on toilet. He reported he can
experience at least three days on average
each month when he is unable to complete this
task at all.
Shower	Reduced capacity	Mr Morgan supports himself on the shower
transfer/access	requiring very high	frame when stepping in and out of the shower
assistance	cubicle. He leans on the wall for stability when
(Assistive	showering. He requires supervision from his
technology) to	wife when accessing the shower due to his
complete. Requires	increased risk of falls. He reported he can experience at least three days on average each
supervision of wife to complete.	month when is unable to complete this task at all.
Squatting and kneeling	Reduced capacity requiring very high assistance (Assistive Technology) to complete.	Mr Morgan is able to achieve a partial squat when moving between sitting and standing but requires armrests, grab rails and or walking sticks to support him during the process. He is unable to kneel. He cannot maintain a squatting posture without physical supports. He reported he can experience at least three days on average each month when he is   unable to complete this task at all.

Upper Limb Function:

Mr Morgan has significantly reduced upper limb function. He has significant restrictions of movement at his left and right elbows and wrists which restrict his ability to reach his face and mouth. He reported his grip strength was sufficient to move heavier items including farm produce about the back of his ute although he has some restricted movement in his fingers and hands.

Lower Limb Function:

Mr Morgan has significantly restricted movement and functional ability of bilateral lower limbs. His poor range of movement at the knees prevents him from standing upright. His reduced ankle range of movement prevent him from placing his feet flat on the floor. He requires specialised heel raisers in his shoes to facilitate weight bearing. Mr Morgan is unable to mobilise without two walking sticks. He can only mobilise short distances with his walking sticks.

Mr Morgan is unable to move from lower seated heights.  He uses homemade over-toilet frame and armrests to move from sitting to standing at the toilet.

Endurance and Strength:

Mr Morgan has reduced lower limb strength and reduced general endurance. He has difficulty moving between sitting and standing due to his reduced lower limb strength. He is only able to mobilise short distances due to his physical restrictions but also his generally reduced cardiovascular levels.

Falls Prevention:

Mr Morgan is at a significantly increased risk of falling due to his poor lower limb function, decreased mobility and strength. …

Personal Activities of Daily Living:

Activity	Functional Status	Clinical Relevance
Toileting	Very High Assistance required – AT assistance to transfer and intermittent very high physical assistance by wife to provide urinary bottles.	Mr Morgan reported when his symptoms are worse (approximately three days each month) he is unable to leave his bed and requires his wife to bring him a bottle to urinate in. In general, Mr Morgan requires the use of either an over-toilet frame or grab rails to assist him to toilet due to his inability to move between sitting and standing from normal toilet seat height.

23.On 7 June 2023, Mr Morgan stated that ‘he now uses a wheelchair to get about whereas before he was using the sticks. The wheelchair doesn’t go to all the rooms because of the way the doorways are and he often transfers to a wheeled office chair and uses that to get about. He will move two inches at a time before stopping, but he can’t get close to a bench front because his legs are sticking out in front of him.’[60]

[60] Transcript 7 June 2023, P-39, lines 13-25.

24.Dr McAllister stated that the Applicant’s mobility had deteriorated since the time of the request for access.[61] That when the Applicant was weight-bearing, using bi-lateral sticks, the Applicant would experience considerable joint pain.[62] That the Applicant cannot mobilise to any significant distance[63] and is at risk of injury due to falls.[64]

[61] Transcript 7 June 2023, P-72, lines 13-14.

[62] Transcript 7 June 2023, P-73, lines 15-30.

[63] Transcript 7 June 2023, P-73, lines 34-35.

[64] Transcript 7 June 2023, P-74, lines 1-6 and 40-46.

25.The Applicant stated that in 1991 a ramp was installed at the home[65] and submitted that that amounted to a home modification as that phrase is used in rule 5.8(a).

[65] Transcript 7 June 2023, P-28, lines 18-30.

26.Mr Fielke, the occupational therapist, referred to above, describes, which is not contradicted by Mr Virtue and/or Dr McAllister, that the functional capacity of the Applicant is significantly reduced as to multiple joints and ranges of motion. Further, as to indoor mobility, outdoor mobility, balance, stairs and sitting to standing transfer, that the Applicant requires very high assistance, being a requirement for assistance for the entire task. Having regard to the evidence of Mr Fielke, which is not contradicted, the severe osteoarthritis results in substantially reduced functional capacity to undertake one of the following activities, mobility.

27.Further, as to mobility, as referred to above, Mr Fielke refers to “assistive technology” expressly as to indoor mobility, outdoor mobility, balance, stairs, bed transfer, toilet transfer, shower transfer and squatting and kneeling, defining that as requiring assistance of equipment to perform the task. As to rule 5.8(a), on Mr Fielke’s assessment, the severe osteoarthritis results in substantially reduced functional capacity of the Applicant as its result is that the Applicant is unable to participate effectively in mobility, or to perform tasks or actions required to undertake or participate effectively in mobility, without assistant technology, equipment (other than commonly used items such as glasses) or home modifications.

28.The Respondent ‘conceded’ that if the Applicant is able to ‘satisfy’ subsection 24(1)(c), then the Applicant will also satisfy the requirement for lifelong support as required by subsection 24(1)(e).[66] The Applicant does have an impairment that results in substantially reduced functional capacity to undertake mobility. The Applicant meets the disability requirements in section 24(1). There is ‘satisfaction’ that, at the time of considering the request, the Applicant meets the disability requirements. The Applicant therefore meets the access criteria in section 21(1).

[66] Submissions of the Applicant filed 24 July 2023, page 3, paragraph 8. Submissions of the Respondent filed 4 August 2023, page 4, paragraph 18.

DECISION

29.The decision of the Respondent of 24 August 2021[67] is set aside and it is decided in substitution that the Applicant meets the access criteria in section 21(1)(c)(i) of the National Disability Insurance Scheme Act 2013 (Cth).[68]

[67] T2, page 29.

[68] Administrative Appeals Tribunal Act 1975 (Cth), section 43(1)(c)(i).

I certify that the preceding 29 (twenty-nine) paragraphs are a true copy of the reasons for the decision

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

Associate

Dated: 29 September 2023

Dates of Hearing:     7 and 8 June 2023

Applicant:                 Ms P. Willoughby, counsel, instructed by Legal Aid

Respondent:             Ms B. Stringer, counsel, instructed by HWL Ebsworth