NRNK and National Disability Insurance Agency - [2024] AATA 110

NRNK and National Disability Insurance Agency [2024] AATA 110 (15 January 2024)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2022/3918
Re:NRNK
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Senior Member D Connolly
Date:15 January 2024
Place:Sydney

The Tribunal affirms the decision under review pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).
........................[SGD]........................
Senior Member D Connolly
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – access criteria – rheumatoid arthritis – whether there is substantially reduced functional capacity – whether modified activity due to pain is substantially reduced functional capacity – whether the Applicant is likely to require support under the NDIS for her lifetime if she has a My Aged Care package – whether early intervention requirements are met - decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)
CASES
FBJV and National Disability Insurance Agency [2021] AATA 913
Madelaine and National Disability Insurance Agency [2020] AATA 4025
Military Rehabilitation and Compensation Commission v Katterns [2017] FCA 641
Mulligan v National Disability Insurance Agency [2015] FCA 544
National Disability Insurance Agency v Foster [2023] FCAFC 11
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634
SECONDARY MATERIALS
National Disability Insurance Agency, Our Guidelines – Becoming a participant – Applying to the NDIS, (Web Page) < FOR DECISION
Senior Member D Connolly
15 January 2024
BACKGROUND TO REVIEW

The Applicant was born on 27 February 1957. At the time of making her Access request, she was aged 64 years. She seeks review of a decision made by the National Disability Insurance Agency (‘the Respondent’), which affirmed an earlier decision to refuse her request for access to the National Disability Insurance Scheme (‘the NDIS’) under provisions of the National Disability Insurance Scheme Act 2013 (Cth) (‘the Act’).
The Applicant lives alone in an apartment on the Central Coast in regional New South Wales.[1] She has been diagnosed with severe deformative polyarticular rheumatoid arthritis. In about January 2022, she made a request to become a participant in the NDIS, seeking access on the basis of impairments arising from rheumatoid arthritis, chronic pain and joint deformity causing difficulty in coping with activities of daily living. She has had rheumatoid arthritis for over 35 years which is managed with various medications. Dr Jun Zhao, her general practitioner, recorded in the Supporting Evidence form that she also suffers from psoriatic arthritis and Reynaud’s disease. Dr Zhao claimed the Applicant’s disability impacts her functional capacity in the domain of self-care.[2]
[1] Evidence Bundle 11 (‘EB’), Applicant’s Statement of Lived Experience, p 238.
[2] T-Documents 3 (‘T’), Applicant’s Access Request – Supporting Evidence Form pp 25-32.
On 31 January 2022, a delegate of the Chief Executive Officer (‘the CEO’) of the Respondent determined the Applicant did not meet the access criteria set out in the Act because the delegate was not satisfied her impairments resulted in substantially reduced functional capacity. An internal reviewer confirmed the decision on 21 April 2022.
On 17 May 2022, the Applicant applied to the Administrative Appeals Tribunal (‘the Tribunal’) for review of the internal review decision.
LEGISLATION
The access criteria
To become a participant in the NDIS, the Applicant must satisfy the access criteria set out in subsection 21(1) of the Act, which provides as follows:
(1)A person meets the access criteria if:
(a)    the CEO is satisfied that the person meets the age requirements (see section 22); and
(b)    the CEO is satisfied that, at the time of considering the request, the person meets the residence requirements (see section 23); and
(c)    the CEO is satisfied that, at the time of considering the request:
(i)the person meets the disability requirements (see section 24); or
(ii)the person meets the early intervention requirements (see section 25).
There is no dispute the Applicant satisfies the age requirements and the residence requirements. I must decide whether the Applicant satisfies the access criteria in section 24 (‘the disability requirements’) or section 25 (‘the early intervention requirements’) of the Act.
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.
If the Applicant does not meet the disability requirements, I will consider whether she meets the early intervention requirements set out in section 25 of the Act, which state as follows:
1A 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 that are attributable to a psychiatric condition and 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.
2The CEO is taken to be satisfied as mentioned in paragraphs (1)(b) and (c) if one or more of the person's impairments are prescribed by the National Disability Insurance Scheme rules for the purposes of this subsection.
3Despite 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.
The Minister may, under subsection 209(1) of the Act, make rules prescribing matters. The rules relevant to this matter are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (‘the Access Rules’), which form part of the legislation.
The NDIS Operational Guidelines also assist in making decisions in accordance with the Act. Operational Guidelines represent government policy and should be applied by the Tribunal unless there is good reason not to do so.[3] The relevant Operational Guideline is Our Guidelines – Becoming a participant – Applying to the NDIS (‘the Operational Guideline’).[4]
[3] Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[1979] AATA 179; (1979) 2 ALD 634; (1979) 2 ALD 60.
[4] National Disability Insurance Agency, Our Guidelines – Becoming a participant – Applying to the NDIS, (1 August 2022) (Web Page) <>
I note in Mulligan[5] Mortimer J held that the legislation requires “a relatively high degree of precision by decision-makers… in assessing what a person can or cannot do. The assessment to be undertaken is avowedly functional and multifaceted.”[6] The Full Federal Court in Foster[7] explained that the legislation requires that it is based on a functional, practical assessment of what a person can and cannot do.[8]
[5] Mulligan v National Disability Insurance Agency [2015] FCA 544 (‘Mulligan’).
[6] Ibid, [55].
[7] National Disability Insurance Agency v Foster [2023] FCAFC 11 (‘Foster’)
[8] Ibid, [36].
The concept of “impairment” is generally understood as involving the loss of, or damage to, a physical, sensory or mental function.[9] Pain is not an “impairment” in itself,[10] but pain might be such that it limits particular bodily functions and therefore constitutes an “impairment”.[11]
[9] Mulligan, [51].
[10] Military Rehabilitation and Compensation Commission v Katterns [2017] FCA 641 at [47].
[11] Ibid, [48].
ISSUES
There is no dispute that the Applicant has a disability that is attributable to a physical impairment, arising from rheumatoid arthritis. Having regard to evidence, discussed in more detail below, I agree with this view. Therefore paragraph 24(1)(a) of the Act is met.
The Applicant has had rheumatoid arthritis for over 35 years and her current impairment, according to Dr Mark Liew, her rheumatologist, for at least five years.[12] Dr Liew also advised the Applicant’s condition is managed with medication, but it is permanent and lifelong. The Respondent accepts the Applicant’s impairment is permanent. Based on all the evidence before me, I agree with this conclusion. Therefore paragraph 24(1)(b) of the Act is met.
[12] T5, Report, Dr Mark Liew (Rheumatologist), p 41.
The parties also agree that the Applicant meets paragraph 24(1)(d) of the Act, that her impairment or impairments affect her capacity for social or economic participation. Having regard to the evidence discussed in more detail below, I also accept that the Applicant meets this provision.
The first issue on which the parties disagree is whether the Applicant’s impairment(s) result in substantially reduced functional capacity to undertake any of the following activities: communication, social interaction, learning, mobility, self-care or self-management. The Respondent contends the Applicant has not demonstrated a substantially reduced functional capacity in any of the specified domains in subparagraphs 24(1)(c)(i)-(vi) and therefore does not meet paragraph 24(1)(c) of the Act.[13] Dr Liew has submitted that she has substantially reduced functional capacity in mobility, socialising, self-care and self-management. I must consider whether I am satisfied the Applicant has a substantially reduced functional capacity in any of the six activities.
[13] Respondent’s Statement of Facts, Issues and Contentions (‘the RSFIC’), [12 – 45].
I will also consider whether she meets the requirement set out in paragraph 24(1)(e) of the Act, that she is likely to require support under the NDIS for her lifetime. For reasons discussed in more detail below, the Respondent has submitted that the Applicant does not meet this requirement because she has been approved for a home care package with My Aged Care and the supports being sought by the Applicant may be included in that home care package.[14]
[14] Respondent’s Closing Submissions, [46 – 48].
If I am not satisfied the Applicant meets the disability requirements, I will consider whether she meets the early intervention requirements set out in section 25 of the Act. The Respondent contends that the evidence does not demonstrate the provision of early intervention supports would benefit the Applicant by reducing her future needs for supports in relation to disability. The Respondent also submitted that the provision of early intervention supports is not applicable given the Applicant’s long-standing conditions.[15] The Respondent also submitted that early intervention supports are not appropriate in the Applicant’s case because any supports she requires are more appropriately funded through other systems of service delivery such as My Aged Care.[16]
[15] Ibid, [52].
[16] Ibid, [57].
CONSIDERATION OF CLAIMS AND EVIDENCE
Does the Applicant’s impairment result in substantially reduced functional capacity to undertake one or more of the specified activities?
Rule 5.8 of the Access Rules sets out the matters the Tribunal must consider when determining whether the Applicant’s impairment results in substantially reduced functional capacity and states as follows:
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.
The Operational Guideline states:
Your impairment substantially reduces your functional capacity if you usually need disability-specific supports to participate in or complete the (specified) 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.
In making my findings as to whether I am satisfied the Applicant meets this provision I have taken into account all of the evidence before me, including oral evidence provided at the hearing on 7 and 8 November 2023, by the Applicant and Mr Christian Byrnes, occupational therapist, who assessed the Applicant on 2 December 2022 at the Respondent’s request.
At the time of making her application, Dr Zhao claimed the Applicant’s impairment results in substantially reduced functional capacity to undertake self-care tasks and that she needs assistance with dressing, cleaning the house, vacuuming, lifting, reaching, bending and standing.[17] Dr Zhao did not indicate the Applicant needs assistance in any of the other relevant activities listed in paragraph 24(1)(c) of the Act.
[17] T3, Applicant’s Access Request – Supporting Evidence Form, pp 25-32.
Dr Liew reported the following in February 2022. The Applicant requires assistance with activities of daily living and she cannot perform most housework such as vacuuming, mopping, general cleaning of floors and bathroom, and cooking a full meal. She cannot drive or do grocery shopping, stand or walk for more than a few minutes at a time. She cannot squat or negotiate steps, grip or hold objects.[18]
[18] T5, Report, Dr Mark Liew (Rheumatologist), p 45.
The Applicant provided an NDIS Application Form completed by Dr Liew in May 2022, after the internal review decision was made, in which he reported the following. The Applicant’s impairment impacts the mobility, socialising, self-care and self-management domains as she has difficulty sustaining prolonged standing and walking without compacting her symptoms to her lower limbs. She requires assistance with heavy house duties such as general cleaning, scrubbing and mopping.[19]
[19] EB3, NDIS Treating Practitioners Application Form, pp 208-220.
In a letter dated 20 May 2022 Dr Liew reported the following.[20] The Applicant has four children and three grandchildren with whom she shares a strong bond. She has been married twice and, although no longer married, maintains a stable relationship with her first husband who she often sees when with her children. She had a successful career until January 2017, when her career ended due to the deterioration of her condition.
[20] EB4, Letter of support from Dr Mark Liew, pp 221-222.
Dr Liew reported that the Applicant has various other medical conditions including psoriasis and diverticular disease. She had her first onset of rheumatoid arthritis when she was aged 27 years. When she was aged 39 years, she had her first significant rheumatoid arthritis flare and she was unable to walk or lift a cup for six weeks. She has severe damage to her joints and has suffered numerous stress fractures in her feet. She is unable to mobilise her hands, arms, legs and feet without excruciating pain.
Dr Liew reported that the Applicant does not have the capacity to cook as she cannot chop ingredients, pick up utensils, open the fridge/freezer, lift plates, pots or pans, stir or flip ingredients or cut up her food. He reported she cannot complete all aspects of personal care independently. She cannot dress herself, has difficulty showering, bathing, and brushing her teeth, and cannot wash her back. She is no longer able to perform all duties relevant to maintaining her home, such as vacuuming, mopping, sweeping, dusting, cleaning bathrooms, washing linen and clothes, changing linen, hanging clothes on the line, folding washing and yard maintenance.
Dr Liew reported that the Applicant cannot participate in social or recreational activities, such as sport, exercise, shopping, and visiting family and friends. He also claimed she does not have functional capacity to learn new skills.
Dr Liew also reported that the Applicant is no longer able to drive as she is unable to mobilise her arms and legs in the appropriate manner to maintain control of a vehicle. In his view, while she would benefit from a wheelchair, she would be unable to negotiate it independently as she does not have the strength.
Dr Liew reported that the Applicant lives alone in a single level home but due to the severity of her condition she is no longer able to care for herself and she will be relocating to her eldest daughter's double storey home. Due to her condition, this would be unsuitable long term housing as she cannot manoeuvre herself up and down the stairs, so she will be situated on the lower level of the home. She cannot access all the facilities in the home. As her daughter and son-in-law are in full-time employment, they do not have the capacity to care for her during working hours. He stated that if the Applicant lives with them for the long term, significant home modifications will be required, including the installation of kitchen and bathroom facilities on the lower level of the home. Dr Liew was of the view the Applicant needs 1:1 support across all environments as she is also incapable of engaging in self-care, self-management or community access independently.

Dr Liew was of the view that the Applicant requires physiotherapy, exercise physiology, occupational therapy, psychology to “remain living with her daughter long term, improve her mobility, reduce her level of pain, be supported to improve her independent skills, access the community and live a fulfilling life.”
For reasons discussed with the Applicant at the hearing, I have some concerns about Dr Liew’s report. For example, as raised with her, Dr Liew has stated that the Applicant cannot drive. In fact, on her own evidence, she does. He also reported, contrary to her own evidence, that the Applicant cannot visit family. He reported that she cannot dress herself when, on her own evidence, she does. These inconsistencies raised some doubt about the reliability of Dr Liew’s reporting. It is apparent that his letter was written for the purpose of supporting home modifications to the Applicant’s daughter’s home, to accommodate the Applicant’s impairments in the event she moves to her daughter’s home. I note the Applicant has not moved to her daughter’s home and continues to live in her own unit.
The Respondent made the following submissions regarding Dr Liew’s evidence. The Tribunal should give no or little weight to Dr Liew’s reports because his last report of 20 May 2022 was written approximately a year after he last reviewed the Applicant in person, and his evidence is inconsistent with the Applicant’s evidence regarding capacity to drive, cook, cut up her food, shop and visit family and friends. The Respondent also noted, contrary to Dr Liew’s report, the Applicant’s oral evidence confirms she is able to wash, dry and fold her clothing, utilise a robotic vacuum, clean the kitchen bench twice daily and clean the floor using a mop with a disposable head. Dr Liew also claimed the Applicant 'no longer has the ability to complete all aspects of personal care independently’ whereas the Applicant gave evidence that she is able to complete all aspects of personal care utilising modified techniques. The Respondent noted Dr Liew reported the Applicant is unable to care for herself and live independently, however her evidence is that she has lived independently in her current apartment for 17 months.
In her closing submissions the Applicant stated that Dr Liew wrote his report in May 2022 when she could barely walk any distance, due to significant damage to her spine from rheumatoid arthritis. She has since had spinal surgery, in October 2022, which gave her some relief and she is able to drive short distances but only drives an automatic car. She does not drive a manual car because she cannot engage the clutch. She cannot cook except for heating frozen food and boiling an egg. She does not go to the shopping centre to buy groceries, rather she goes to buy clothes and shoes. Dr Liew is aware that the Applicant has siblings and a daughter in Sydney. She cannot drive to visit those relatives. She cannot complete all duties pertaining to home cleaning. She cannot open cleaning products or childproof caps. She cannot wash her back. She washes her hair over the sink. She lives alone because she does not have any choice.
I have taken into account all the evidence and submissions in relation to Dr Liew’s reports. The weight I have given various aspects of his reports, in relation to the Applicant’s impairments and functional capacity, is discussed in more detail below.
The Applicant provided letters of support from her daughters.[21] Essentially those letters are consistent and list the things the Applicant cannot do.
[21] EB6, EB7, EB8, EB10, Statements.
In July 2022, her first daughter claimed that she provides the Applicant with dinners a few times a week. She also claimed that, while the Applicant can still drive, recently she had to park nearly a block from her doctor’s surgery and while walking to the surgery she collapsed and had to slump against a wall before she could continue. She also claimed that her mother does not leave the house because of her rheumatoid arthritis, she cannot meet people and she has lost all her friends. She claimed her mother can dress herself with buttons down the front, and she can shower herself by supporting herself against the wall. She claimed the Applicant refuses a lot of help because she does not want to be a burden.[22]
[22] EB6, Statement.
Her first daughter wrote again in August 2022 claiming the Applicant cannot get out of bed safely, she takes a long time to do it, she struggles to dress and reach around her back, she lacks the strength to open cans, carry shopping or lift everyday household items. She struggles to lift pots and pans. The Applicant will call her to open medication lids. She cannot complete housework such as vacuuming, mopping, dusting and cleaning the bathroom. She finds it difficult to make her bed. She cannot wash large items like sheets, towels and jackets. She cannot do the shopping for herself due to the awkwardness of pushing a trolley and walking around the shop. She finds it difficult to shop for clothes because of the distance she has to walk between shops. She cannot take out the rubbish. She lacks the strength to walk down the stairs or cross the road. She only drives short distances and has difficulty participating in social events because she cannot drive long distances. She hardly ever leaves the house.[23]
[23] EB7, Statement.
Her second daughter wrote in August 2022, listing the housework tasks the Applicant cannot do, many essentially the same as those listed by her first daughter. She provided the following further information. She helps the Applicant because she cannot lift above her head and cannot lift the lid to the rubbish bin. She provides dinner for the Applicant two to three times a week. She claimed the Applicant can only walk 10 to 20 metres and she can only drive short distances. She claimed the Applicant has been so bad lately that she stays in her pyjamas and does not shower. She claimed the Applicant sometimes struggles to cut up her dinner.[24]
[24] EB8, Statement.
Her third daughter provided a letter in August 2022 in which she stated she used to assist her mother with general household tasks and walking up and down the stairs when she had flare ups. Even though her third daughter lives in Sydney, over an hour away, the Applicant often requires her to drive to her to assist her with tasks around the house. She cannot lift a full kettle. She is unable to open basic household items or do the shopping. She has observed that the Applicant cannot walk more than 20 metres. In 2019 she went shopping with the Applicant and observed that she had to stop every five minutes to sit down.[25]
[25] EB10, Statement.
The Applicant provided a letter dated September 2022 from her sister, a registered nurse, co-signed by her niece, a provisional psychologist.[26] Her sister claimed the Applicant cannot lift her arms above her chest, reach, bend, prepare food, or lift pots or pans. She has toast most nights unless her daughter provides a meal. Her sister is concerned about the Applicant’s weight and nutritional status. She claimed the Applicant cannot do housework, can only walk short distances, and has difficulty independently socialising, so is isolated. Her sister used to visit her weekly to give her injections for her rheumatoid arthritis.
[26] EB13, Statement.
The Applicant provided a letter in August 2022 in which she made the following claims.[27] A typical day for her is getting out of bed at 7am. She then takes her heat packs to her microwave oven to warm them. She sits on the lounge using the heat packs. She makes toast at about 9am. She has a shower around midday. After dinner she watches TV. She takes her medications as required. She goes to bed around midnight. The only variation is if one of her children visits or if she goes to the doctor or for scans.
[27] EB9, Letter from the Applicant in support of NDIS Application.
The Applicant also claimed that she often does not sleep in her bed because she cannot make the bed. She cannot change the sheets or towels, wash, or hang them out. She cannot do housework tasks, lift pots or pans, chop vegetables, or open jars, milk cartons or child proof lids. She cannot walk to the shop or do the grocery shopping. She cannot go anywhere unless she can park close by. She feels socially ostracised, has lost all her friends and cannot meet new people. Most weeks she does not speak to another person, unless one of her children comes to deliver meals or to take her rubbish out. She cannot concentrate for long because of the pain and the worry about her home being dirty.
The Applicant also claimed she gets up numerous times during the night to take pain killers and reheat her heat packs. She falls asleep around 4am and gets up at 7am. She can only walk 15 metres. She cannot carry the rubbish to the bins, at the front of her units, and cannot lift the rubbish bin lid so she leaves it for her children to do.
The Applicant provided a description of how her rheumatoid arthritis affects her functional capacity.[28] She repeated claims already set out above and provided the following further information. She cannot stand on public transport if no seats are available. When she has a flare, she cannot walk or use her hands or arms. The flares occur randomly and attack any joint, sometimes one joint, other times multiple joints. When she is flare-free she can walk around the house by using walls and furniture for support, moving from the bed to the lounge where she sits all day, except to go to the bathroom or to have a Vita-Weat biscuit for lunch. Her children sometimes take her to appointments to minimise the walking distance but they work and have their own families so she cannot rely on them all the time. She cannot lift anything above shoulder height.
[28] EB11, Applicant’s Statement of Lived Experience.
The Applicant stated she does not have any issue with communication except when a flare prevents her concentrating. She does not interact socially except with her children, two of whom she sees weekly. Her third daughter visits her when she is in trouble. Her son lives about 45 minutes away and has four children so she does not see him often. She otherwise only leaves the house to attend medical appointments but she must park within 20-30 metres. She is able to organise her own life, apart from completing daily tasks. She pays her own bills.
I note that the Applicant’s statements, and those of her daughters and sister, were all written before she had the spinal surgery in October 2022. Her closing submissions suggest that her impairments improved after that surgery, given her explanation for why Dr Liew’s report reflected less functional capacity compared to her own more recent evidence. While I have taken these statements into account, I am of the view her functional capacity has improved since those statements were written, and the more recent evidence, from the Applicant and Mr Byrnes, is more reliable in assessing the Applicant’s current functional capacity.
Mr Byrnes, occupational therapist, undertook an independent assessment on 2 December 2022. Mr Byrnes reported that the Applicant lives in an apartment building. She parks her car on the ground floor and walks up two steps to enter the building, then 14 steps to her first floor unit. He noted she reported experiencing pain and ongoing weakness, pins and needles in her hands and lower limbs on a daily basis, swelling in her feet (right worse than left) and hands on a daily basis, depression, anxiety and stress, poor sleep and low energy, and reflux. With respect to pain, the Applicant reported constant pain in her shoulders, neck, wrists, fingers, lower back, hips, ankles and feet. She has regular pain in her elbows and knees. She reported taking several medications on a daily basis to manage her conditions. His observations and conclusions with respect to the Applicant’s capacity in each of the six domains are discussed in more detail below.[29]
[29] EB15, Report by Christian Byrnes. pp 254-291.
With respect to her flares, the Applicant told me at the hearing that she had a flare the night before the hearing, which affected her neck and resulted in her not being able to lift or turn her head. Prior to that she had a flare affecting a knuckle in her left hand. Three weeks earlier she had a flare affecting her left foot and she could not put on her shoe. She indicated that the flares cause hots spots, inflammation, and pain. When she has a flare, she takes Panadol because she cannot take ibuprofen. She also uses heat and ice. If she has too many flares her rheumatologist changes her dose of methotrexate. She was taking another medication, Orencia, but she cannot self-inject and there is no one else who can do this for her. Her sister in Sydney, the registered nurse, used to do this for her. Her general practitioner gives it to her, but not very often. There is another drug which is better at controlling the condition, Xeljanz, but it may cause cancer, so she does not use it as much as she used to. Dr Liew suggested she half her dose. She took it the night before her hearing. In her closing submissions the Applicant stated that Dr Liew changed her prescription to oral medication instead of injections to save her having to go to the doctor every week.
Mr Byrnes was asked at the hearing if he could recall the Applicant mentioning flares. He indicated he could not recall this but thought she talked about her symptoms fluctuating. I accept that in doing so she was referring to flares.
In relation to the Applicant’s flares the Respondent, in its closing submissions, noted that the Applicant initially stated that her flares occur roughly once a month. She later stated that flares in both her hands occurred every fortnight. On further questioning, the Applicant indicated the flares occurred every 2-3 weeks. The Respondent noted the only other evidence relating to fluctuations in the Applicant's symptoms and flares is in Mr Byrnes' report where the Applicant had reported her pain intensity in various areas is on a constant basis and also when her "pain is bad". She reported to Mr Byrnes that intensity of pain does not significantly differ on days when the pain is bad compared to days when it is not bad, as her pain ratings are always between 6 and 10. The Applicant reported that the frequency of days when the pain was bad ranged from 1 to 4 times per week.
The Respondent submitted that while flares seem to occur sporadically and affect the Applicant's limbs unpredictably, the evidence suggests that: the impact of flares can be managed with medications, injections and heat from a wheat pack; the Applicant has developed modified techniques to deal with the impact of flares; when considering the evidence in Mr Byrnes' report about fluctuations in pain and how often these occur, it does not seem that there is a significant difference between the Applicant's day to day functional capacity; and, that the fluctuations can be taken into account as part of the Applicant's average functioning.
In her closing submissions the Applicant stated that the flares happen randomly, sometimes she gets them every week, sometimes every other week, and the duration of the flare is random. She stated medications do not control or manage flares. She can use heat and cold to help manage a flare but while in the throes of a flare she cannot use that limb or joint. She has a large number of flares that last indeterminate periods of time.
Communication
The Operational Guideline with respect to communication currently states as follows:
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.
When providing supporting evidence for the Applicant’s Access request, Dr Zhao did not report that the Applicant needs assistance with communication.[30] Nor did Dr Liew. The Applicant stated she does not have any issue with communication except when a flare prevents her concentrating.[31]
[30] T3, Applicant’s Access Request – Supporting Evidence Form, pp 25-32.
[31] EB11, Applicant’s Statement of Lived Experience, pp 237-239.
Mr Byrnes noted the Applicant was able to communicate effectively, with her speech, writing and following directions. She demonstrated adequate hearing during the assessment. He concluded the Applicant does not have any reduction in her functional capacity for communication. [32]
[32] EB15, Report by Christian Byrnes, pp 254-291.
I note the Applicant was able to participate effectively during the two day hearing. In giving her oral evidence she appeared to hear and understand the questions asked and she provided coherent, comprehensive answers. She indicated in her oral evidence that her communication is not affected by her impairment except when she has a flare and it affects her concentration. She did not indicate this happens often.
On the basis of the information before me, I am satisfied the Applicant is able to participate effectively and completely in communicating. Accordingly, I am not satisfied the Applicant has a substantially reduced functional capacity to undertake communication activities.
Social interaction
The Operational Guideline with respect to social interaction currently states as follows:
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.
Dr Zhao did not report that the Applicant needs assistance with social interaction.[33]
[33] T3, Applicant’s Access Request – Supporting Evidence Form, pp 25-32.
The Applicant and her daughters have stated in their written submissions that the Applicant does not have any friends and cannot meet new people.
Mr Byrnes reported that he was of the view the Applicant has a reduced capacity to engage in social interaction as a result of her psychologist symptoms, fear of leaving her residence and fear of Covid-19 infection.[34] However he opined with respect to her rheumatoid arthritis, the Applicant still has the capacity for social interaction and she does not need any assistance or support to interact. In his oral evidence he confirmed the Applicant reported to him that she sees her daughters. In his view the Applicant’s behaviour would be appropriate with new people in a social context.
[34] EB15, Report by Christian Byrnes, p 32.
This opinion was discussed at the hearing. The Applicant told me that she might have mentioned Covid but she asserted that she rarely leaves the house because of her physical impairment and her concern about parking close to her destination. Mr Byrnes agreed that someone with a physical impairment would be concerned about parking a distance from their destination, and I accept the Applicant’s explanation on this issue.
Dr Liew reported that the Applicant cannot participate in social or recreational activities, such as sport, exercise, shopping, and visiting family and friends.[35] I note however, from the Applicant’s oral evidence, that she does visit family and she does sometimes go shopping. In her oral evidence, the Applicant told me that she drives to see her first and second daughters and grandchildren about once a week. She sees her third daughter who lives in Sydney only every few months because she cannot drive that far. She sees her son less often because he lives about an hour away. She indicated that she does not have contact with friends; only family. Her sister and her niece visit occasionally and she has contact with her brother who lives in Queensland, about once every two months. She can have conversations on the phone. At the hearing she confirmed she has a Facebook account and she accesses social media and shares photographs. She also is in an iMessenger group, communicating about a subject of interest to her. When asked if she had any issues with social skills she indicated that her daughter is getting married next year, she is going to attend the wedding and she will be able to talk to guests.
[35] EB4, Report by Dr Mark Liew (Rheumatologist), p 222.

When asked about social events she has participated in, the Applicant indicated she attends family gatherings, celebrations for birthdays, Mother’s Day and Christmas. She normally goes to her daughter’s house for these events. While she attends these events she feels that she is “not good enough” because she cannot walk around and talk to people. She attended her nephew’s wedding, for about five to six hours, and she could not get up and down to move around to talk to people. She indicated that she does not go out because of fear of not being able to park close to her destination. However, she confirmed that her daughters pick her up to drive her to social events.
I note at the hearing, when giving her oral evidence, the Applicant responded appropriately to the questions asked. She did not display any inappropriate behaviour or emotions or give any inappropriate responses during the hearing.
While I note that the Applicant’s daughters may drive her to events from time to time, I am satisfied, contrary to Dr Liew’s report, that she is also able to drive herself for the purpose of having contact with family if the distance is not too far. I note Dr Liew’s evidence that she maintains a good relationship with her former husband. I find the Applicant is able to have conversations, maintain good family relationships and cope with feelings and emotions in social situations, even when she is feeling awkward because she cannot move around at events such as weddings. I am satisfied the Applicant is able to interact socially, in person and on social media, about subjects that interest her.
Having regard to rule 5.8(c) I am not satisfied the Applicant is unable to participate in social interaction, even with assistive technology, equipment, home modifications or assistance from another person.
Nor am I satisfied that the Applicant usually requires assistance from other people to participate in social interaction or perform the tasks or actions required to undertake it. Therefore rule 5.8(b) is not met.
I accept that Applicant may need to be driven to events from time to time, and that she relies on her phone and social media to participate in social interaction. However, I am not satisfied this demonstrates she is unable to participate effectively or completely in social interaction, or to perform tasks or actions required to undertake or participate effectively or completely in social interaction, without assistive technology, equipment (other than commonly used items) or home modifications as I am of the view her phone is a commonly used item. Therefore rule 5.8(a) is not met.
Considered overall, while I accept the Applicant’s social life has been affected by her physical impairment, I am not satisfied the Applicant has a substantially reduced functional capacity to undertake social interaction.
Learning
The Operational Guideline with respect to learning currently states as follows:
Learning – how you learn, understand and remember new things, and practise and use new skills.
Dr Zhao, in the Applicant’s Access Request Form, did not indicate the Applicant requires any assistance to learn.
Dr Liew reported that the Applicant maintained a successful career as a sales and marketing manager until January 2017 when her career ended because of the deterioration of her condition. He claimed the Applicant does not have functional capacity to learn new skills.[36] I note however Dr Liew is a rheumatologist and there is no evidence before me to indicate the Applicant has undertaken any cognitive testing to ascertain whether she has any cognitive impairment that would impact on her capacity to learn, understand and remember new things, and practise and use new skills.
[36] Ibid.
Mr Byrnes reported that the Applicant was teary at times during the assessment but demonstrated cognitive capacity to answer questions, complete paperwork, answer the telephone and make appointments. He concluded she demonstrated capacity to learn new skills, remember and utilise information. In his view the Applicant does not have any reduction in her functional capacity to learn.
In her oral evidence the Applicant confirmed that she uses social media to interact and share photographs with a group who shares the same interests. Since Covid she consults Dr Liew by telehealth and has not seen him in person in two years. I am satisfied these activities demonstrate the Applicant has been able to learn to use technology to complete certain activities. With respect to learning she told me that she understands things better when she can see them but, while she can be distracted by pain, she is capable of learning. It helps her to write things down. She recently got a new microwave and had to write down a small summary of how to change the clock and how to cook but once she has repeated these things a few times she is fine.
I have considered Dr Liew’s report that the Applicant does not have functional capacity to learn new skills, but I disagree with his view. I accept the Applicant’s oral evidence that she can learn new things by utilising some memory tools, such as writing down notes. I am of the view this demonstrates her capacity to make small adjustments to learn new things, remember, practise and use new skills.
I am not satisfied the Applicant meets any of the circumstances set out in rule 5.8 with respect to the activity of learning.
Considered overall I am not satisfied the evidence supports the assertion that the Applicant’s impairment impacts, in any significant way, her functional capacity to learn. Overall, I am not satisfied the Applicant has a substantially reduced functional capacity to undertake learning activities.
Mobility
The Operational Guideline with respect to mobility currently states as follows:
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.
The Respondent contends that the evidence demonstrates the Applicant does not reach the threshold required to establish a substantially reduced functional capacity in the mobility activity. It was submitted in the RSFIC that:
In Madelaine[37], the Tribunal held that the threshold requirement to achieve functional capacity in relation to mobility is ‘relatively modest’. Further, the Tribunal also held that the 'use of the phrase ‘move around … to undertake ordinary activities of daily living’ in the Guideline is significant. It implies some expectation of how far a person needs to be able to move to undertake ordinary daily activities … getting to the bathroom to wash or toilet, getting to the kitchen to prepare food, perhaps getting to the front letterbox to collect mail. Implicit in this concept is that the distance involved will be relatively short.'
[37] Madelaine and National Disability Insurance Agency [2020] AATA 4025 (‘Madelaine’).
I note the Guideline has since changed as it no longer refers to “ordinary activities of daily living”. I agree however that the current Guideline reflects mobility within relatively short distances.
I note Dr Liew has indicated that the Applicant is unable to mobilise her arms and legs in the appropriate manner to maintain control of a vehicle, however this is not the case. The Applicant is able to, and does, drive, albeit for short distances. He stated she cannot manoeuvre herself up and down the stairs. This is not the case. The Applicant walks up and down the stairs in her apartment building, using a modified technique, to access her unit from the car park.
Mr Byrnes reported that the Applicant does not use any mobility aids. He observed the Applicant independently transfer in and out of a chair, on and off her bed, in and out of the shower and on and off the toilet. He reported that she was observed sitting for 60 minutes at a time during the assessment, and that she stood for 10 minutes at a time with a tendency to lean on the kitchen bench. She also traversed seven steps, up and down, by placing both feet on each step. She was unable to squat or kneel and was limited in her capacity to bend. She was able to reach to eye level. She lifted and carried a small weight but could not lift it off the floor. She could move around light items. He observed her demonstrate a reasonable range of movement and function in both hands and noted she was able to complete paperwork. The Applicant reported to him that she could walk for five minutes. He formed the view she demonstrated a low falls risk whilst mobilising, although she reported ‘passing out’ in August 2022 but she denied receiving a clear diagnosis or cause. I note however that the ‘passing out’ was prior to her back surgery in October 2022, and there is no medical evidence of a pattern of the Applicant passing out or collapsing since, while mobilising.
Mr Byrnes reported that the Applicant demonstrated adequate balance during standing, transfers, traversing stairs and mobilising, by using walls, furniture and handrails. He noted that she scored highly on the fatigue severity scale, indicating a significant level of fatigue negatively impacting on her capacity to perform activities of daily living. In his view she also demonstrated a fear of movement and loading of her joints.
Mr Byrnes concluded that the Applicant independently moves around her unit, and travels to the ground floor car park and nearby mailbox. She is able to do this by traversing stairs using a handrail. While she has the capacity to walk without assistance/assistive aids, he was of the view she needs a wheelchair for prolonged periods of walking as she needed to rest after walking 48 metres. He observed significant levels of physical deconditioning while walking. However, he noted she has a walking tolerance of over three minutes indoors and outdoors, without the need for a walking stick. She reported to him a driving tolerance of up to 20 minutes.
In her oral evidence the Applicant told me she used to use a walking stick that she inherited from her grandfather but she lost it when she moved. She now relies on furniture to get around the house. She described her morning routine which she finds challenging. She gets out of bed, uses furniture to get to the bathroom, heats her heat packs, sits on the lounge for 30-45 minutes until her joints loosen up and she can move more freely. She makes a cup of tea and sits for 30 minutes. She then makes toast. She likes to wear makeup (mascara, foundation and blusher) everyday but some days she does not put it on until the afternoon. She leaves her jewellery on all the time. The Applicant told me that most days she stays in her unit or sits on her balcony. She drives to her daughter’s once a week, walking to the unit car park, down the stairs, and parking in her daughter’s driveway. When asked where else she goes, she said she also drives to her doctor, dentist and for x-rays.
I noted from photographs in Mr Byrnes’ report that the Applicant’s hair appeared to be coloured and cut. I asked her if she goes to the hairdresser. She denied going to the hairdresser and claimed that she last went over 10 years ago. I asked if her hair is coloured. She acknowledged that it is coloured and said she does this herself when she washes her hair which she does at least once a week. When asked why her hair appears to be cut, she claimed it just breaks off or, if she gets motivated, she cuts it herself. The Applicant provided a description of how she colours her hair, over the laundry sink, leaving the colour in for 30 minutes then rinsing it out. In her closing submissions she added that to do this she wedges her arms into my sides as she cannot lift them freely to wash her hair.[38]
[38] Applicant’s closing submissions filed 2 January 2024.
The evidence regarding the Applicant’s limited capacity for overhead reaching, as photographed and recorded by Mr Byrnes, indicates that she cannot lift her arms above her jawline.[39] Mr Byrnes told me that he did not ask the Applicant about haircare because he understood that her daughter assisted with this activity. He indicated that the photograph of the Applicant’s overhead reaching limitation was not consistent with someone having the capacity to wash their own hair. While the Applicant then said she uses her opposite arm to improve her range of movement for hair washing, I indicated it was somewhat difficult to reconcile the Applicant’s evidence on this activity, considering this photographic evidence of her limited range of movement. It was not clear to me how the Applicant could wash and colour her own hair if the photographic evidence of her capacity for overhead reaching is reliable. I raised this concern with the Applicant at the hearing and she addressed it in her closing submissions, discussed in detail below.
[39] Byrnes report page 23, photograph of the Applicant’s range of movement for overhead reaching.
The Applicant was asked at the hearing whether she goes shopping. She indicated she goes to a shopping centre, about 15-20 minutes’ drive away, and parks in the disabled car space but spends minimal time at the shops. She sits down for 5-10 minutes to rest while she shops. She buys some groceries at a supermarket nearer to her home. She cannot buy many groceries because she cannot carry them up the stairs. She buys some goods online. Usually if she goes shopping for gifts her first daughter goes with her.
The Applicant stated that her general practitioner is about 12-15 minutes’ drive away. Sometimes she has to park up to three blocks away. She goes to a dentist near her general practitioner and has to drive a bit further for x-rays. Her medications are delivered by the pharmacist.
When asked about transfers, the Applicant indicated she struggles to get out of bed. She uses the basin to transfer off the toilet. She finds walking around the unit, between the bathroom and kitchen an issue, but she can do it. She reaches overhead by holding one arm up with the other but cannot lift above her shoulder. She uses two hands to lift light weights. She cannot change the sheets on her bed. She cannot drag a vacuum cleaner around but has a robotic cleaner, although she expressed concerns at the hearing about it not working well under the bed. She uses a floor duster by pushing it around with a long handle and uses a mop with a disposable cloth. I note however in her closing submissions that the Applicant stated she cannot sweep or mop floors, and that she cannot use the robotic vacuum cleaner because it has to be connected to the internet and it does not work under the bed. She can wipe down benches if they are at waist height but struggles dusting above shoulder height or if she needs to bend down. She can use the washing machine to wash light clothes, but towels and sheets are an issue. She hangs clothes on an airer. When asked who washes heavier items, she said they are washed by whoever is around.
The Applicant said she only walks up and down the stairs in her apartment block about once a week when she drives her car. However, she also uses the stairs to collect parcels. She indicated she cannot take the rubbish out because it goes into a big industrial bin and she cannot lift the lid while holding the rubbish. She leaves it for her grandchildren or daughter who visits once a week.
When asked why Dr Liew stated that she could not drive, in her oral evidence, she indicated she had no idea why he would have said that. She stated that he fills in her form for her disabled parking permit. She indicated she has some difficulty with reverse parking but otherwise she can drive. She said that he has never talked to her about a wheelchair but has a vague memory of her general practitioner raising it, and possibly whether the Applicant should use a walking frame, however the Applicant’s car is too small to transport one.
I asked the Applicant about her car maintenance. She said that she drives the car to the mechanic and either waits or gets a taxi home. She also puts petrol in her car, but not very often.
I noted that Mr Byrnes has recorded that the Applicant reported with respect to grip strength that she was only able to grab small items. He also reported observed grip strength of “0 kg” in both hands. I asked Mr Byrnes about the Applicant’s reported grip strength. He indicated that measure would suggest she may not be able to open a jar because of weakness and fear of aggravating the pain. He thought she would benefit from aids for jar opening. I raised with him that the Applicant is able to drive (so hold a steering wheel), use a long-handled mop, wash light items and put petrol in her car. Mr Byrnes opined that she would not be able to do those things with zero grip strength. He suggested her symptoms might have been aggravated on the day he assessed her. He advised that her recorded zero grip strength is not consistent with what the Applicant has self-reported she can do. He accepted however that she would not be able to lift a mattress or a doona to change bed linen.
In his oral evidence Mr Byrnes stated that he observed the Applicant’s capacity to walk for brief periods and traverse steps. He explained that his recommendation regarding a wheelchair was concerning activities or social events where the Applicant would be required to do prolonged walking, with no rest stops. He noted the Applicant navigates the stairs at her unit in a slower, cautious manner.
At the hearing the Applicant indicated that her daughter orders online groceries for her, including cleaning products, frozen food, tea, bread and fruit. The groceries are then delivered. She told them (the supermarket) that they have to deliver to her door because she cannot carry them up the stairs. She then pushes them along the floor and unpacks them. I note however, that in her closing submissions the Applicant stated “online shopping doesn’t work as drivers will not carry them upstairs”. In her oral evidence she said she buys clothes online. If they do not fit, she sends them back by taking them to the post office which is about 2-3 km away.
In closing submissions the Respondent noted the Applicant has been living independently in her unit for 17 months, which involves traversing a flight of 16 steps to use her car, that she does not currently use any aids to walk, she drives up to 15-20 minutes, she can walk at the shopping centre with breaks, she completes transfers from her bed, toilet and chair in a modified manner and she raises her arms in a modified manner. It was noted that, while a walker frame has been suggested by her GP the Applicant does not consider she needs one and she has not replaced her lost walking stick. Mr Byrnes’ suggestion for a wheelchair related to prolonged walking when she is unable to rest. It was noted that the Applicant’s barrier to driving was her difficulty in finding close parking spots. The Respondent submitted the Applicant's oral evidence demonstrates she has the capacity to independently move about her home, get in and out of a bed and chair and mobilise in the community.
In her closing submissions the Applicant made the following claims:
·     she struggles to walk any distance free of pain, she rarely goes to the shops because she cannot walk any distance, and even sitting down every 20-30 metres does not relieve the pain, it just gives her respite;
·     she cannot do grocery shopping because she cannot push a loaded trolley or lift groceries into her car or carry groceries up the stairs. Online shopping does not work because the drivers will not carry her groceries up the stairs;
·     she can put petrol in her car but she always uses two hands and cannot do it if she is having a flare;
·     she does not go out anywhere due to not being able to walk any distance;
·     in 12 months she has only gone to the shopping centre twice, to a close by bakery twice, and to the doctor or dentist a few times, and she has collapsed a few times when she could not find a close car space;
·     her microwave is at shoulder height and she uses one arm to lift the other arm to heat her heat packs. She cannot lift anything heavy into the microwave;
·     she denied using a mop with a disposable head to mop her unit; she can only use a wet wipe to mop a small spill;
·     she has not been to a hairdresser for at least 10 years, rather she uses a wash-in colour and her hair breaks off because of Methotrexate which causes it to fall out and snap.

I am not persuaded by the Applicant’s claim in her closing submissions that she has collapsed a few times in the past 12 months. There is no medical evidence to support this claim. I am concerned that she has embellished her account in her closing submissions, to strengthen her claims in order to achieve a favourable outcome.
In assessing what the Applicant can and cannot do, I accept she suffers chronic pain and limited range of movement, that she undertakes tasks more slowly and that she can experience pain while mobilising. However, I am of the view pain itself is not an impairment. I must consider the extent to which the Applicant’s pain limits her capacity to undertake the tasks of the domain. Having considered all the evidence and submissions regarding what the Applicant can and cannot do in relation to mobility, I make the following findings.
I am satisfied the Applicant is able to transfer independently to and from her bed, a chair and the toilet, in a modified, slower manner. Her oral evidence confirms that she is able to walk and move around her unit, although at times she needs to lean on furniture. I am satisfied she is able to walk for up to 5 minutes at a slow pace, at which time she needs to stop to rest. I am satisfied Mr Byrnes’ suggestion regarding a wheelchair related to prolonged walking where there would be no rest stops, not mobilising around her home or while traversing short distances in the community.
I am also satisfied the Applicant is able to traverse the 16 steps in her apartment block, to access her car and her unit. She is able to drive her automatic car for up to 20 minutes. She is able to put petrol in her car, in a modified manner. I am satisfied the Applicant has sufficient mobility to undertake some light household duties and light laundry, prepare simple meals, such as toast, boiled eggs and heating frozen meals. She is able to raise her arms in a modified way to use her microwave, to warm her heat packs and frozen meals. She is able to use a long handled mop to wipe up small spills with a wet wipe. While I accept she does not do it very often, she is able to mobilise to go to the shopping centre to purchase clothing and to a closer supermarket to purchase small grocery items.
While I accept the Applicant will have limited range of movement and reduced grip strength as a result of her condition, as recorded in Mr Byrnes’ report, and this will impact on her capacity to mobilise, it appears that on the day of her assessment her overhead reach and grip strength were not reflective of the things she can do, such as wash her hair and fill the petrol tank.
In considering what the Applicant is unable to do, I note from her own closing submission that her capacity has changed since Dr Liew wrote his reports and her daughters and sister provided their statements, because she had back surgery in October 2022 which gave her some relief, suggesting her functional capacity has improved since the surgery. Because of this, I am of the view the more recent report prepared by Mr Byrnes and the Applicant’s oral evidence are more reliable.
I accept the Applicant cannot undertake heavy housework such as mopping, changing the sheets on her bed, washing and drying bed linen. I accept she cannot go to the supermarket for a full grocery shop, push a loaded trolley, transfer groceries from the trolley to the car and, from the car, carry bags of groceries to her unit. Her evidence regarding the delivery of groceries is somewhat inconsistent but I am satisfied she is able to have groceries delivered to her, a commonly used means for purchasing groceries. I also accept that the Applicant cannot cut vegetables or lift heavy pots or pans and this limits her capacity to prepare meals. I also accept she cannot undo for the first time jars, cans and childproof lids but there is no evidence she has tried to address this issue with some simple commonly used aids as suggested by Mr Byrne.
In assessing the Applicant’s functional capacity with respect to rule 5.8, I accept the Applicant mobilises with pain. However, having considered what she can and cannot do, and the assistance she requires, I am satisfied the Applicant is able to mobilise and perform tasks or actions required to mobilise. Therefore rule 5.8(c) is not met. With respect to rule 5.8(b) I am of the view the Applicant is usually independent, given her most recent evidence that her daughters visit only occasionally to assist her, and she does not usually require assistance from other people to mobilise.
In considering whether the Applicant is unable to mobilise effectively or completely, or to perform tasks or actions required to mobilise effectively or completely in the activity, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications, I must apply the test set out in Foster, in which the Full Federal Court determined that the Tribunal is to reach a conclusion as to whether the Applicant has a substantially reduced capacity to undertake the activity “by assessing his [or her] functional capacity with respect to the bundle of tasks and actions forming the concept of (the activity).”[40] As such, the activity to be assessed is mobility as a whole, not a specific task or action within mobility, such as heavy housework.
[40] Foster, [65].
Taking into account the Court’s guidance in Foster, considered overall, while I accept there are some limitations on the Applicant’s capacity to mobilise, I am not satisfied her impairment results in the Applicant being unable to participate effectively or completely in mobilising, or performing tasks or actions required to undertake or participate effectively or completely in mobilising, without assistive technology, equipment (other than commonly used items) or home modifications. Therefore rule 5.8 is not met.
I have considered whether the Applicant has a substantially reduced functional capacity in relation to mobilising activities listed in the Operational Guideline. I am satisfied she is able to move around her home and community, transfer independently and use her arms and legs. I am not satisfied she needs a high level of support from other people with respect to mobility as a result of her impairment. I note she is not using any assistive technology, equipment or home modifications prescribed by her doctor, allied health professional or other medical professional.
Considered overall, I am not satisfied the Applicant’s impairments result in a substantially reduced functional capacity in relation to mobility.
Self-care
The Operational Guideline with respect to self-care currently states as follows:
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.
The Respondent has referred to FBJV[41] at [154], where the Tribunal (differently constituted) held that a person may not be deemed to have substantially reduced functional capacity in self-care if they can shower, dress, toilet, groom and feed themselves independently, even if they sometimes need assistance or use adaptive techniques.[42] While I am not bound by this view, I agree with it.
[41] FBJV and National Disability Insurance Agency [2021] AATA 913 (‘FBJV’).
[42] RSFIC, [44].
I note Dr Liew claimed that the Applicant cannot dress herself, has difficulty showering, cannot wash her back and has difficulty brushing her teeth. He also claimed the Applicant cannot perform all duties associated with maintaining a home, including, but not limited to, vacuuming, mopping, sweeping, dusting, cleaning bathrooms, washing linen and clothes. However, for reasons given above, I am of the view Mr Byrnes’ report and the Applicant’s oral evidence are more reliable.
Mr Byrnes reported that, despite her reduced capacity, the Applicant is able to shower, groom, dress and toilet, albeit more slowly than these tasks take on average. While he found that she could not wash her own hair, I accept the Applicant’s evidence that she does in fact wash and colour her own hair, by adopting a modified technique that allows her to reach her head to shampoo. I also accept her oral evidence that at times she cuts her own hair and that she uses a blow dryer to dry her hair by supporting the arm holding the dryer with the other arm. I am of the view this demonstrates the Applicant is independent in hair care.
On the basis of her oral evidence, I am satisfied the Applicant is able to put on her makeup and brush her teeth with an electric toothbrush. I accept her evidence that she is able to dress herself but struggles with putting clothes over her head, so she tends to wear clothing with buttons down the front.
In her oral evidence the Applicant claimed that if the flares occur in her legs, feet or arms, she is “out of action”. She indicated a flare can last for three weeks. In her written statement on how her condition affects her functional capacity the Applicant stated, “when I experience a flare I cannot walk, use my hands or arms at all.”[43] When asked at the hearing how often she experiences such a flare she first indicated they occur roughly once a month. She later stated that flares in both her hands occur every fortnight. On further questioning, the Applicant indicated the flares occur every 2-3 weeks. I note the Applicant reported to Mr Byrnes that her pain levels are somewhat constant. When asked how she toilets when she has a flare affecting her upper limbs, she said “I ball my eyes out…I do my best”. She described a method she uses to wipe herself, by wrapping toilet paper around a brush. I accept that there are times when the Applicant has to toilet using a modified technique but note she does not require assistance from another person, even when experiencing a flare. I accept she transfers to and from the toilet by leaning on the wash basin.
[43] EB11, Applicant's Statement of Lived Experience, pp 237-239.
Given her evidence about what she is able to do, I am not satisfied the Applicant cannot attend to self-care during flares, for periods of up to three weeks. I take “out of action” to mean things might be more challenging or painful for her but she is still able to complete personal care tasks.
I am satisfied the Applicant is able to prepare simple meals such as tea, toast, sandwiches, boiled eggs and warming frozen meals. I note there is evidence that her daughters used to provide some meals that the Applicant was able to eat independently. Her oral evidence is that they no longer regularly do this. While Dr Liew indicated she cannot pick up utensils, open the fridge/freezer, lift plates, pots or pans, stir or flip ingredients or cut up her food, her own evidence is that, in the main, she is able to do these things, although she cannot lift heavy pots or pans and sometimes struggles to cut up her dinner. I accept she has difficulty opening jars when they are new, but she stated that she can open them once the seal is broken. I accept her daughter assists her by opening new jars and childproof lids.
I accept the Applicant is not able to do heavy housework, but I am satisfied she is able to undertake lighter household duties. She can launder her light clothing and described her method for washing her towels. I note she puts her groceries away in the fridge or cupboard. In her oral evidence she indicated she uses a robotic vacuum cleaner but in her closing submissions she indicated that does not use it because it requires the internet and it does not work under the bed. As indicated above, I have some concerns that her closing submissions sought to diminish what she can and does do. I am not persuaded she does not use a robotic vacuum cleaner, which appears in photographs in Mr Byrnes’ report.
Overall, I accept there are some self-care tasks that the Applicant is not able to complete, such as heavy housework and cooking involving chopping vegetables and lifting heavy pots. However, I must apply the approach set out in Foster by assessing the Applicant’s functional capacity with respect to the bundle of tasks and actions forming the concept of self-care. As such, the activity to be assessed is self-care as a whole, and not a specific task or action within self-care, such as heavy housework or chopping vegetables.
In considering rule 5.8 I am satisfied the Applicant is able to independently perform and complete tasks and actions required to self-care. I am also of the view the Applicant is usually independent and does not usually require assistance from other people to perform self-care tasks. Therefore rules 5.8(b) and 5.8(c) are not met.
In considering whether the Applicant meets rule 5.8(a), and applying the test set out in Foster, I am satisfied that, in the main, the Applicant is able to care for herself effectively or completely, and to perform tasks or actions required to care for herself effectively or completely, without assistive technology, equipment (other than commonly used items) or home modifications, by undertaking the tasks more slowly using some techniques she has adopted which she can use independently.
I also note the Applicant usually arranges and drives to her own medical appointments although she needs to park close to the facility. I note she has arranged for her medications to be delivered. She is able to participate in consultations with Dr Liew by telehealth. I am satisfied she is able to independently performs the tasks associating with maintaining her health.
I am satisfied the Applicant is able to independently perform the tasks of personal care, hygiene, grooming, eating and drinking. She is able to dress, shower, eat and go to the toilet without assistance from others. Taking into account the Court’s guidance in Foster, considered overall, while I accept there are some limitations in the Applicant’s capacity due to pain and restricted range of movement, and there are some discrete tasks she cannot do with respect to heavy housework and cooking, I am not satisfied her impairments result in a substantially reduced functional capacity in relation to the self-care activities; personal care, hygiene, grooming, eating and drinking, and health. Considered overall, I am not satisfied the Applicant’s impairments result in a substantially reduced functional capacity to undertake self-care.
Self-management
The Operational Guideline with respect to self-management relevantly states as follows:
Self-management – 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.
I note in the Applicant’s Access Request Form, Dr Zhao did not indicate the Applicant requires any assistance with self-management.
Dr Liew reported that the Applicant requires assistance with self-management, in that she requires assistance with activities of daily living as, he claims, she cannot perform most housework such as vacuuming, mopping, general cleaning of floors and bathroom, and cooking a full meal, she cannot drive or do grocery shopping, stand or walk for more than a few minutes at a time, she cannot squat or negotiate steps, grip or hold objects. I am of the view these are not tasks of self-management; they are more appropriately considered under the activities of mobility and self-care and I have completed those assessments.
In her oral evidence at the hearing, the Applicant told me that she organises and plans her life and day-to-day tasks. She makes decisions by herself and manages her own money and bills. She sometimes gets muddled when making her medical appointments, but she did not claim to rely on anyone else to arrange those for her on a regular basis.
I note the Applicant stated in her letter that she is able to organise her own life, apart from completing daily tasks described by Dr Liew, and pay her own bills.[44]
[44] EB9, Letter from the Applicant in support of NDIS Application, pp 232-234.
Mr Byrnes formed the view that the Applicant is able to make personal decisions and appointments independently, and she demonstrated insight into her ability to make appropriate decisions.
I take into account that the Applicant lives alone and there is no evidence to suggest she relies on other people to manage her banking, pay her rent or utilities, organise her medical appointments or manage her money.
I am not satisfied the Applicant meets any of the circumstances set out in rule 5.8 with respect to the activity of self-management.
Having considered the Operational Guideline with respect to self-management, I am satisfied the Applicant is able to organise her life, plan, make decisions, and look after herself, manage her money and manage day-to-day tasks at home. There is no evidence to suggest she does not have the mental or cognitive ability to manage her life.
Considered overall, I am not satisfied the evidence supports any assertion that the Applicant’s impairment impacts her ability to self-manage. Overall, I am not satisfied the Applicant has a substantially reduced functional capacity to undertake self-management activities.
Does the Applicant satisfy the disability requirements?
For the reasons given above, I find the Applicant’s impairments do not result in substantially reduced functional capacity to undertake any of the specified activities (mobility, self-care, communication, social interaction, learning, and/or self-management) as required by paragraph 24(1)(c) of the Act. Accordingly, she does not meet the disability requirements.
Is the Applicant likely to require support under the NDIS for her lifetime?
As the Applicant has not met paragraph 24(1)(c) of the Act, a mandatory provision of the disability requirements is not met and it is not necessary for me to consider whether the Applicant meets paragraph 24(1)(e) of the Act, that is, whether she is likely to require support under the NDIS for her lifetime. However, I have decided to consider this provision, as the Applicant provided information relevant to My Aged Care supports she is now approved to receive.
At the hearing the Applicant told me that she has been approved for a level 3 home care package with My Aged Care. I explained to the Applicant that I may find paragraph 24(1)(e) of the Act is not met because she has approval for a My Aged Care package. I asked the Respondent to assist the Tribunal by providing information about the supports provided in such a package. The Respondent provided the material to the Tribunal and the Applicant, and the Applicant had an opportunity to consider and comment on it in her closing submissions, which she did. She stated that her My Aged Care package will not cover the cost of daily meal preparation and cooking, cleaning the home and car, changing and laundering the sheets, making the bed every day, driving her to and from appointments, and buying groceries, bringing them home and packing them away, and allied therapies such as physiotherapy and remedial massages etc.
As I have found above, I am satisfied, for the purposes of assessing whether the Applicant has substantially reduced functional capacity in any of the six domains set out in paragraph 24(1)(c) of the Act, that the Applicant has the capacity to perform some of the self-care and mobility activities she describes above. It is not for me to assess whether she is entitled to receive services or supports in an My Aged Care package. However, I note that the information provided by the Respondent, to me and the Applicant, sets out the services which could be provided, based on the person’s needs, in a level 3 home care package. These include the following services:
·     transport to appointments and activities
·     domestic help (e.g. house cleaning, washing clothes)
·     personal care (e.g. help with showering or dressing)
·     home maintenance (e.g. changing light bulbs, gardening)
·     home modifications (e.g. getting a grab rail installed)
·     aids and equipment (e.g. bath seat, raised toilet seat, mobility aids)
·     meals, help with food preparation and cooking skills, nutrition advice
·     nursing (e.g. wound care)
·     allied health (e.g. podiatry, physiotherapy, occupational therapy)
·     social support (e.g. accompanied activities, group excursions)
·     respite (care for a while a carer takes a break).[45]
[45] Your Guide to Commonwealth Home Support Programme services, p 5.

The Applicant has indicated she believes she needs supports for cooking and meal preparation, cleaning and laundering, bed making, transport to and from appointments and activities such as shopping. Dr Liew indicated she needs physiotherapy, exercise physiology, occupational therapy and psychology. For the reasons given above I am not satisfied his report is current or necessarily reliable. In any case, as the Respondent has pointed out, the supports the Applicant seeks and the services recommended by Dr Liew are available through My Aged Care.
While I am not satisfied paragraph 24(1)(c) of the Act is met, it appears to be the case that the Applicant meets the My Aged Care requirements for the provision of the supports she seeks, in her My Aged Care package.
Accordingly, I am of the view that, even if I am wrong about whether the Applicant has a substantially reduced functional capacity to undertake one or more of the activities specified in paragraph 24(1)(c), the supports she seeks are now able to be met by My Aged Care. It is for the Applicant and My Aged Care to assess how best to spend her budget of $39,310 on those supports.
As pointed out by the Respondent in its closing submissions, in Foster the Court stated that in considering whether a person is likely to require support under the NDIS for their lifetime:
·the focus is on whether a person is likely to require support under the NDIS for their lifetime or whether those support needs are most appropriately met by other systems;[46]
·it would be wrong to ask whether supports under other systems would be comparable to what would be available under the NDIS;[47]
·a person cannot be funded for a support under two schemes. There is no scope for a support to be partially funded under the NDIS.[48]
[46] Foster [93].
[47] Ibid [95].
[48] Foster, [98].
I am of the view, given the Applicant now qualifies for My Aged Care, and can receive the supports she seeks under her My Aged Care package, the supports she seeks are most appropriately met by that system, and not the NDIS.
I am not reviewing a statement of participant supports; I am only considering whether the Applicant meets the Access requirements. As directed by the Court it is not for me to consider whether supports under the My Aged Care package would be comparable to what would be available under the NDIS.
While the Applicant has raised that her My Aged Care package will not cover all the costs of the supports she seeks, the Court has made it clear a person cannot be funded for a support under two schemes as there is no scope for a support to be partially funded under the NDIS.
Therefore, considered overall, I am not satisfied the Applicant meets the requirements of paragraph 24(1)(e) of the Act.
Does the Applicant satisfy the early intervention requirements?
As the Applicant has not met the disability requirements, I must consider whether she meets the early intervention requirements.
The Operational Guideline with respect to early intervention currently states as follows:
We need to decide that getting early intervention supports means you’ll likely need less disability supports in the future.
We need to know that early intervention supports will help you with at least one of the following:
·addressing the impact of your impairment on your ability to move around, communicate, socialise, learn, look after yourself and organise your life
·preventing your functional capacity from getting worse
·improving your functional capacity
·supporting your informal supports, which includes building their skills to help you.
To help us decide if the early intervention will help you in these ways, we look at:
·how your impairment might change over time
·how long you’ve had your impairment
·if there’s been a significant change to your impairment
·if your needs are likely to change soon, such as if you’re finishing school.
The Applicant has had the rheumatoid arthritis and associated impairments for many years. She suffered her first significant flare at age 39. She has been managed by Dr Liew, her current rheumatologist, for several years. She has had numerous treatments and therapies as listed by Mr Byrne in his report. As the Applicant has stated herself, she has frequent flares of indeterminate duration, severe damage to her joints and at times struggles to mobilise because of pain.
In the Evidence of Disability completed by Dr Liew,[49] he indicated his view that early intervention supports would likely reduce the Applicant’s future supports needs because they would alleviate the impact on functional capacity and prevent deterioration of functional capacity. In response to the question asking for details of his recommendations for early intervention support, he recommended the Applicant reduce her work schedule. In her oral evidence, the Applicant stated she ceased working in 2015. Dr Liew also advised no lifting of objects greater than 5 kgs or repetitive work for extended periods. There is no evidence before me to indicate the Applicant does those things routinely.
[49] EB3, NDIS Treating Practitioners Application Form, p208-220.
In his letter dated 20 May 2022, Dr Liew advised the Applicant’s condition is managed with medication but it is permanent and lifelong. He expressed the view that the Applicant requires physiotherapy, exercise physiology, occupational therapy, psychology to “remain living with her daughter long term, improve her mobility, reduce her level of pain, be supported to improve her independent skills, access the community and live a fulfilling life.”[50] I note however that the Applicant does not live with her daughter; she lives independently. While I accept these therapies might assist the Applicant, I am not satisfied the provision of early intervention supports is likely to benefit the Applicant by reducing her future needs for supports in relation to disability. Given the Applicant’s long history of impairment and the impact of unpredictable flares, I am not satisfied early intervention supports are likely to mitigate or alleviate the impact of her impairment on her functional capacity to undertake any of the six activities set out in subparagraph 25(1)(c)(i) of the Act.
[50] EB4, Letter of support from Dr Mark Liew, pp 221-222.
I am not persuaded the provision of early intervention supports, such as allied health therapies, would prevent further deterioration of the Applicant’s functional capacity, improve her functional capacity, or strengthen the sustainability of any informal supports available to the Applicant. I note however that supports, such as allied health therapies, are available under the Applicant’s My Aged Care package.
Having considered the evidence before me I accept the Applicant has a physical impairment that is permanent. However, I am not satisfied the other requirements set out in paragraphs 25(1)(b) and (c) are met.
Accordingly, I am not satisfied the Applicant meets the early intervention requirements to enable her to become a participant of the NDIS under section 25 of the Act.
CONCLUSION
I find the Applicant does not meet the disability requirements in section 24 of the Act, nor the early intervention requirements in section 25 of the Act, to access the NDIS. Therefore, the Respondent’s internal review decision is correct.
DECISION
The Tribunal affirms the decision under review pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).

I certify that the preceding one hundred and fifty-seven (157) paragraphs are a true copy of the reasons for the decision herein of Senior Member D Connolly

........................................................................
Associate
Dated: 15 January 2024

Date(s) of hearing: 7 and 8 November 2023

Date final submissions received: 2 January 2024

Applicant: Self represented

Solicitors for the Respondent: Ms S Quang, HWL Ebsworth

Date(s) of hearing:	7 and 8 November 2023
Date final submissions received:	2 January 2024
Applicant:	Self represented
Solicitors for the Respondent:	Ms S Quang, HWL Ebsworth