O'Keeffe and National Disability Insurance Agency

[2023] AATA 82

O'Keeffe and National Disability Insurance Agency [2023] AATA 82 (2 February 2023)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number:          2020/4934

Re:Justin O'Keeffe

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

Decision

Tribunal:Dr Stewart Fenwick, Senior Member

Date:2 February 2023

Place:Melbourne

The Tribunal sets aside the decision under review dated 15 July 2020 and in substitution decides the Applicant meets the disability requirements in section 24 of the National Disability Insurance Scheme Act 2013.

...................[sgd].....................................................

Dr Stewart Fenwick, Senior Member

Catchwords

NATIONAL DISABILITY INSURANCE SCHEME – access to scheme – various conditions including chronic pain and degenerative spinal disease – whether impairments result in substantially reduced functional capacity to undertake one or more specified activities – mobility and self-care – decision set aside and substituted

Legislation

National Disability Insurance Scheme Act 2013 (Cth)

Cases

Mulligan v National Disability Insurance Agency [2015] FCA 544
National Disability Insurance Agency v Davis [2002] FCA 1002

Rooney and National Disability Insurance Agency [2021] AATA 3523

Secondary Materials

National Disability Insurance Scheme (Becoming a Participant) Rules 2016

REASONS FOR DECISION

Dr Stewart Fenwick, Senior Member

2 February 2023

background

1. Mr O’Keeffe applied on 14 August 2020 for review of the decision of a delegate of the Respondent agency dated 15 July 2020 that he did not fulfil the access requirements for participation in the NDIS.

2. Mr O’Keeffe once led a physically active work life but experienced a dramatic spinal injury while swimming in 2015. He now has a number of medical conditions, but of particular relevance are the degenerative change in his spine and the chronic pain that affect his mobility and independence.

3. The hearing of this application commenced in March 2022. However, it immediately became apparent that Mr O’Keeffe had moved interstate to a town in rural Queensland a few months earlier. His own Occupational Therapist (OT) had prepared a report including observations about Mr O’Keeffe’s previous residence in rural Victoria. For this reason, and my own concerns to properly appreciate Mr O’Keeffe’s lived experience at home and in his community, the hearing was adjourned.

4. Mr O’Keeffe subsequently lodged an updated Statement of Lived Experience, and his legal representatives lodged an updated Statement of Facts, Issues and Contentions (SFIC), as well as the updated report of Ms Kym Fitzgerald, OT, dated 11 May 2022. The Applicant also lodged material from Bendigo Health comprising a joint report by Ms Fay Wallis, OT, and a physiotherapist colleague, dated 21 September 2020, a further letter from Ms Wallis of 20 September 2021, a further joint report dated 7 December 2020, and a letter from Ms Keely Trew, Senior Physiotherapist, dated 22 September 2021. A report from the Applicant’s new General Practitioner, Dr Nirupama Nimmala, dated 7 October 2022 was also lodged, and Mr O’Keeffe’s patient notes were received in evidence (Exhibit A1). The Applicant and the named medical experts all gave evidence at the hearing.

5. The Respondent lodged documents under s 37 of the Administrative Appeals Tribunal Act 1975 (T documents), an updated SFIC, and a Hearing Book on behalf of the parties, comprising the SFICs and evidence in this matter.

   legislation

6. A number of access criteria are set out in Chapter 3, Part 1 of the National Disability Insurance Scheme Act 2013 (the Act). In addition to other criteria not in issue here, a person may meet the ‘disability requirements’ (s 24) or the ‘early intervention requirements’ (s 25).

7. Under s 24 of the Act, a person must have a disability attributable to an impairment (s 24 (1)(a)), that is or is likely to be permanent (s 24(1)(b)), that results in substantially reduced functional capacity (s 24(1)(c)), that affects their capacity for social or economic participation (s 24(1)(d)), and the person is likely to need NDIS support for their lifetime (s 24(1)(e)).

8. More particularly, reduced functional capacity is to be assessed in respect of one or more of the following activities (s 24(1)(c)): communication; social interaction; learning; mobility; self-care; and self-management. An impairment that varies in intensity may be considered permanent (s 24(2)).

9. The National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (the Rules) have been prescribed. In summary, they provide that an impairment:

   (a)is to be considered permanent ‘only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment’ (r 5.4);

   (b)may be permanent notwithstanding it is of fluctuating intensity or there are prospects its severity may improve (r 5.5);

   (c)is, or is likely to be permanent, only if it does not require further medical treatment or review in order to demonstrate permanency (r 5.6);

   (d)if degenerative in nature, is, or is likely to be, permanent only if medical or other treatment would not be likely to improve the condition (r 5.7);

   (e)results in substantially reduced functional capacity (in the activities specified in s 24(1)(c) of the Act) if (r 5.8):

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

   (ii)the person usually requires assistance (whether physical, or by guidance, supervision or prompting) from other people to participate in the activity or perform the constituent tasks or activities; or

   (iii)the person is unable to participate in the activity, or perform the constituent tasks or actions even with assistive technology, equipment, home modifications, or assistance from a person.

10. Relevant court authority has elaborated on aspects of the access criteria. The matters identified in r 5.8 can be described as deeming criteria, and failure to satisfy one of them does not exhaust the decision-making function when determining functional capacity under s 24 (Mulligan v National Disability Insurance Agency [2015] FCA 544 at [77]) (Mulligan). Further, more recently, it has been held that ‘permanent’, in respect of an impairment, can be understood as ‘enduring’ (National Disability Insurance Agency v Davis [2022] FCA 1002 at [82]-[86]).

11. Reference is made in the RSFIC (dated November 2021) to the NDIS Operational Guidelines entitled ‘Access to the NDIS’ (the Guidelines), which would appear from the agency website to have been updated and simplified as recently as June 2022 (prior to the commencement of the hearing). The Guidelines previously stated that by itself, reliance upon commonly used items such as walking sticks or grab rails will not result in a substantially reduced functional capacity (2021 RSFIC [23]).

12. The relevant section now states that ‘… your impairment substantially reduces your functional capacity if you usually need disability-specific supports to participate in or complete’ the tasks arising in the identified activity areas.[1] Disability-specific supports are described as including:

    (a)a high level of support from other people, such as physical assistance, guidance, supervision or prompting; and

    (b)assistive technology, equipment or home modifications that are prescribed by your doctor, allied health professional or other medical professional.

    [1] NDIS website: Home>Becoming a participant>Applying to the NDIS>Do you meet the disability requirements?

    issues

13. With the acknowledgment that a decision-maker must be satisfied as to all relevant statutory criteria, I note that this matter was conducted specifically upon the basis that the parties disagree as to whether Mr O’Keeffe meets the disability requirement in s 24 with respect to the activities of mobility and self-care.

    evidence

    Mr O’Keeffe

14. In his initial Statement of Lived Experience (SLE), Mr O’Keeffe describes living with exhaustion and experiencing frequent falls. He struggles with dressing, housework, and cooking resulting in him choosing to eat food requiring little preparation. He states that he drives as little as possible due to pain, and his situation has caused him anxiety and embarrassment, limiting his outings.

15. In his updated SLE, Mr O’Keeffe confirms his move to Queensland in late 2021, noting that he lived in a caravan prior to securing his new residence. He states:

    (a)that he lives with chronic neck and back pain (which does not go away) and struggles with tasks that allow him to live independently, and is in receipt of the Disability Support Pension ([5], [11]);

    (b)due to fatigue and weakness in the back he collapses ‘often’, and leans on objects or ‘locks’ his knees to aid with balance ([8]);

    (c)he participated in OT and physiotherapy programs with Bendigo Health in 2020. An exercise program did not remove difficulty with balance and pain, and a walking stick provided ‘some improvement’ but did not stop falls because he struggled to coordinate himself. He found a walking frame very ‘restrictive’ ([12]-[15]);

    (d)he has ‘limited reach with [his] arms and poor flexibility so cannot reach the top of [his] head or lower parts of [his] body to wash’ even when seated. He considers he is assisted by grab rails and seating, but he has trouble with transfers. When staying at the caravan park, he made the sixty-metre trip to the amenities block every three to four days and fell ‘about five times’ in the three months he was resident there ([19]-[20]);

    (e)he purchased a four-wheel drive last year which requires less bending to enter, and he drives every three to four days and is able to drive up to four to five hours at a time ([28]);

    (f)the move to Queensland was driven by budget considerations and warmer climate. The new house only has one step to enter and a shower cubicle with a level entry, and should he not become an NDIS participant he will make changes to the kitchen and bathroom, modifying bench height and installing rails ([41]-[46]).

16. In his oral evidence, Mr O’Keeffe described losing feeling in his arms, and stated that he was suffering more pain through the arms than previously. With respect to his program with Bendigo Health, he stated that he found a lot of the exercises aggravating, but that he had learned about three points of contact, stretches, and received training about his stance.

17. When asked about the trial of a walking stick, Mr O’Keeffe stated that he has ‘permanent nerve pain’ down his arms. For this reason, he stated that a walking stick was to hold him up, but he asked rhetorically ‘what with?’. Mr O’Keeffe stated that his arms are better when straight down and he could not coordinate because they feel like they are sunburnt.

18. With respect to his new property, Mr O’Keeffe stated that there is only one step up into it; but it is a two-storey property, and there is a toilet and shower downstairs that he intends to use as an en-suite to the adjacent room which is presently a sunroom. Some work was at that time underway to modify the house, using money left over from the sale of his Victorian property.

19. Mr O’Keeffe described his partner as being in his life since January 2022 and that she helps him ‘all the time’ particularly in the shower. He stated that she is on a carer’s pension. This arrangement commenced in April 2022. When asked why she helps him, the Applicant stated that it was in order for him to keep his dignity, and that some months back she had found him after he fell in the shower. There are now mats in the shower to stop him slipping, but he explained that when he is sitting, he cannot lift his knees up to wash his feet.

20. Mr O’Keeffe stated he had bought a bed that was higher than his previous one in Victoria, and also stated that he dresses appropriately for the weather which has removed some of the previous challenges. His partner does the food preparation, even though he would prefer to do it and take on his fair share of the work. He stated that he still experiences accidents in the kitchen due to his knees, and he does not perform cleaning.  

21. Under cross-examination, Mr O’Keeffe confirmed he does not have grab rails in his new bathroom. When putting on socks, he needs to lie on his side if dressing without help. He agreed that he could sit down to perform kitchen tasks, and has not been able to source a trolley. Mr O’Keeffe stated he has not needed to attempt different approaches to laundry as his partner does this. He plans to use a chair in the shower and had used an old deck chair and stated he had been unable to source other aids such as a long-handled brush.

22. When asked about a walking stick, Mr O’Keeffe described the pain in his arms as like creatures crawling under his skin and that he was uncoordinated and a ‘cluster’, or ‘shemozzle’. He accepted that Bendigo Health had reported an initial reduction in falls and that his walking range had improved. When specific distances raised in reports were put to him, Mr O’Keeffe denied that he could manage the longer kilometre distances, stating only that he had been able to walk further than before. He also disagreed with the report of Ms Trew that he discharged himself from the program, stating it had only been for a certain number of sessions.

23. Mr O’Keeffe confirmed that he has not sought OT support in Queensland, is on a waiting list for pain management, and the results of an updated MRI are with his GP. He has not sought treatment for the consequences of any falls.

    Medical witnesses

24. Ms Trew confirmed in evidence that she had prepared her report (HB/A4) from Bendigo Health notes, and that she had not dealt with Mr O’Keeffe personally. The report explains that there had been a referral from Bendigo Health Pain Program to improve the Applicant’s mobility and safety in his own environment. It reports the provision of physiotherapy in his home, and the trial of a walking stick and forearm crutches. With the stick, a reduction in falls and increase in walking were reported. Physiotherapy comprised a home exercise program, education and progressive walking. Mobility and strength improvements were reported, and pain scores remained steady.

25. Ms Trew stated that the Applicant was admitted to their program in July 2020 and was discharged in May 2021 (the letter states that discharge arose as Mr O’Keeffe did not wish to receive further assistance). In her opinion, a four-week walking stick trial, as in this case, was generally enough; and she was unable to say why forearm crutches were determined to be inappropriate.

26. Ms Trew agreed that Mr O’Keeffe’s pain levels are described as remaining steady throughout the program. She considered that the material indicated that the Applicant had been willing to learning new skills. Ms Trew noted that there was a clear sign of an initial reduction in falls and an increase in walking distance.

27. Under cross-examination, Ms Trew stated these results would have been from self-reporting and observation. She was unwilling to speculate about whether withdrawal of a walking stick would lead to a reversal of progress. Furthermore, given the multiple interventions, she could not determine which of the walking aids, exercise, education or walking program had the most impact. Given that the Applicant’s mobility and strength are recorded as improving, she assumed that the exercise program (which was conducted at his home) was appropriate. Ms Trew noted that strength training does not always carry through to functional tasks, and she stated that no assessment had been conducted on Mr O’Keeffe’s upper limb function.

28. Ms Trew stated that education about falls prevention was general and multi-factorial, and likely based on a booklet. Reference to pain strategies meant breaking up daily tasks so that they were not so fatiguing. With respect to the cessation of support, Ms Trew noted that it is an ‘episodic care’ service and not ongoing; and it was ‘goal directed’, aimed at encouraging successful strategies. Based on what had been reported, she considered referral for ongoing support was warranted. She added that ‘generally speaking’ ability drops off after participants cease using their service.

29. In response to a question from myself about pain management, Ms Trew stated that Mr O’Keeffe had been referred to her service by the pain management centre as  he was regionally-based.

30. In re-examination Ms Trew stated that she considered self-reporting almost more important than objective measures which, she said, do not tell the full story about physical ability. She further stated that it was reasonable to accept that no further work should be done should a patient not be able to trial further options, noting again the fact they supported home-based therapy.

31. Ms Wallis was called as a witness by the Respondent. In her evidence, she acknowledged that she had conducted a home assessment in respect of the Applicant on three occasions. The first, joint, report (HB/A2) states in summary:

    (a)Mr O’Keeffe has impaired balance and reports multiple falls daily and completes all daily tasks without assistance, but experiences reduced standing and sitting tolerances, pain and fatigue, and takes up to two days to recover (p 69);

    (b)upon administration of a formal assessment, Mr O’Keeffe was rated as having ‘extreme impairment’ for the functions of ‘getting around’ and ‘life activities’, ‘severe impairment’ for ‘understanding and communication’, ‘self-care’, and ‘participation in society’ (p 71);

    (c)with respect to mobility, he was assessed as being limited to 10 minutes without aid, being severely impacted by fatigue and pain, having ataxic gait, poor knee and hip control indicating high falls risk, and ongoing use of mobility aids recommended (p 72);

    (d)self-care was assessed in the context of his then bathroom set up, but balance impairment was noted as well as difficulty with toilet transfers, and difficulty with putting on socks and control of sitting when on the couch (pp 72-73).

32. The further joint report (HB/R2) states in summary that:

    (a)it was conducted over three sessions on what the Applicant described as one of his ‘good days’ (p 305);

    (b)Mr O’Keeffe showed intermittent impairment of gait pattern, sometimes ataxic and sometimes unremarkable (p 308);

    (c)there were fluctuations in mobility observed and unsteadiness in the final examination (p 308);

    (d)some days Mr O’Keeffe reported walking twice around a suburban block or further into town (approximately a kilometre) but on other days is limited to approximately 10 metres in and around the home, and had the loan of a walking stick at this time (p 308);

    (e)he had engaged in physiotherapy, including an exercise program, and his knee ‘giving way’ was now not observed during gait (p 309);

    (f)he was observed to require a rest after completing 50 minutes of drying and dressing and was observed using different strategies to dress (pp 309-311);

    (g)Mr O’Keeffe was not able to sit on a toilet in a controlled manner and a trial of a toilet surround was undertaken (p 311);

    (h)assistive aids and guidance were recommended to support independence with self-care, improve quality of movement and reduce risk of injury and fatigue and the Applicant may still take longer to complete tasks with assistance in place (pp 311-312);

    (i)he was observed using a vacuum cleaner but was unsteady and fatigued after cleaning two square metres, experienced a range of difficulties with laundry tasks, and used compensating strategies in meal preparation (pp 313-314).

33. In her letter (HB/A3), Ms Wallis observes that recommendations were provided subsequently about grab rails and other home modifications.

1. Ms Wallis stated that parts of her assessment of tasks were broken up to reduce impact upon Mr O’Keeffe, but they would usually be completed in succession. She added that any comments about mobility in the joint report were provided by the physiotherapist and she could not comment on them further.

2. Ms Wallis agreed that a shower chair and long-handled brush would be useful or effective in assisting with showering, and she considered Mr O’Keeffe’s current set up removed a number of risk factors. She considered that a bed of appropriate height would usually be bought from a specialist store, and she described his previous couch as inappropriately low. Ms Wallis considered that behaviour change sat alongside equipment; and would probably enable Mr O’Keeffe to complete domestic tasks.

3. Under cross-examination, Ms Wallis discussed various funding and cost issues for equipment and home modifications. She recommended short term interventions for safety in the interim, noting that the cost of grab rails can be significant.

4. Ms Wallis considered it possible that the Applicant’s condition had deteriorated over the intervening two years since her assessments. She also stated that there was always a psychological component that comes with the challenge of physically coping with disability. When informed that Mr O’Keeffe now receives assistance from his partner in the bathroom, Ms Wallis stated that this means he is not as independent as when assessed.

5. Ms Wallis agreed in re-examination that an opinion as to the rate of degeneration would be required prior to being able to provide an observational assessment, and that Mr O’Keeffe’s bathroom capacity also required functional assessment.

6. Ms Fitzgerald conducted her initial functional capacity assessment in June 2021. She later updated the text with commentary as to how Mr O’Keeffe’s changed environment might affect her findings (HB/M3). In summary, she states in this report that:

   (a)on a scale in which 7/7 represents complete independence, the Applicant scored between 5 and 7/7 on all dimensions assessed, including self-care, transfers and locomotion (p 352);

   (b)in this assessment he required significant effort for upper body dressing and extreme effort with lower body, as well as significant effort and safety issues with all transfers (p 352);

   (c)Mr O’Keeffe ‘demonstrates significant impairment in motor skills for age’ and he did not pursue use of a walking stick as it did not reduce his frequency of falls (p 353);

   (d)he appears more likely to experience falls using steps or over distances of 25 metres, and that falling several times a week ‘would be considered significant impairment of mobility’, and education and guidance will not substantially reduce frequency (pp 353-354);

   (e)relocation is not likely to reduce prevalence of falls as the ‘core reasons for falling frequently are functional (related to balance and muscle control)’, although changed bathroom conditions may reduce the severity of the falls (p 354);

   (f)unsafe transfers were observed in the toilet (p 354);

   (g)bed and couch heights were problematic (p 354);

   (h)inside mobility was significantly impaired in endurance, with Mr O’Keeffe needing to lean on walls and furniture for support, and he had significant impairment using stairs (pp 356-357);

   (i)outside mobility included observation of walking 20-30 metres demonstrated dragging of feet, and shaking with effort, described overall as unsafe with a high risk of falls (p 357);

   (j)meal preparation was rated as a ‘significant difficulty’ with modified techniques employed; laundry was rated at a similar level, and components of the latter remained the same in the new environment including difficulty with overhead reach, poor balance, and fatigue (pp 362-363);

   (k)physical assistance was recommended for some cleaning tasks and Mr O’Keeffe reported shopping independently (p 364).

7. Ms Fitzgerald reported the following on physical examination: Mr O’Keeffe

   (a)was unable to balance on his left leg;

   (b)was able to forward reach past his shoulder but could not lift up wet clothes;

   (c)could not pick up an object from the floor due to range of motions problems in forward flex;

   (d)was observed to have very low upper limb weight range described as ‘extremely poor tolerance’ and ‘significant weakness’;

   (e)demonstrated normal hand sensation upon administration of a fingertip sensation test;

   (f)had a notable lack of neck movement to the right, by about 50% compared to the left;

   (g)had reduced lower back movement;

   (h)had shoulder movement assessed with shaking at the top of the range, abduction somewhat reduced on the right side;

   (i)had left hip flexion limited to 90-95 degrees (normal range being 125 degrees);

   (j)had reduced full knee extension bilaterally;

   (k)had standing tolerance limited to three minutes, with semi-squat tolerance to 10 seconds;

   (l)was able to reach into a cupboard just above shoulder height but unable to reach to floor.

8. In her oral evidence, Ms Fitzgerald stated that she conducted her assessment over 90 minutes using observation in most rooms of the residence. She confirmed that Mr O’Keeffe had limited lumbar range and had full shoulder range but with pain and shaking. Ms Fitzgerald stated that she observed cumulative fatigue during the course of her assessment.

9. Ms Fitzgerald stated that the Applicant’s range of mobility gave her the impression she needed to follow him in the house because of the risk of falls. She noted that in assessment on the steps at his previous residence he caught his foot on the ninth of twelve steps.

10. Ms Fitzgerald considered that the Applicant’s limited shoulder function meant that showering, washing and drying could be difficult. Muscle strength also appeared to cause problems with lowering himself to the toilet; and that rails and other adjustments would assist, but they would need to be properly installed. Ms Fitzgerald stated that Mr O’Keeffe was more likely to experience harm in a kitchen environment, but some design changes can reduce lifting and carrying tasks.

11. Noting that the use of aids in physical mobility is a matter for a physiotherapist, Ms Fitzgerald observed that from a functional perspective, the challenge for Mr O’Keeffe is that his four limbs are not performing to their best ability. She considered this made the use of aids more complicated because of the motor patterns involved. Ms Fitzgerald also stated that her observations of the Applicant suggested he had a history of falls. Education and guidance would be useful to help reduce unnecessary risk.

12. Under cross-examination, Ms Fitzgerald accepted that Mr O’Keeffe’s range of movement might fluctuate on a daily basis. She did not consider her inability to observe, for example, the use of the vacuum cleaner was problematic, as she had the benefit of access to other assessments conducted. After lengthy and detailed questioning about different aspects of her report and recommendations, Ms Fitzgerald accepted that it would be reasonable for an assessment of Mr O’Keeffe’s current residence to be conducted to determine whether further physical aids or the help of a person were required.

13. In response to a question from myself about the initial scores recorded in her report, Ms Fitzgerald stated that the scores themselves do not necessarily reflect the degree of difficulty associated with an activity.

14. Dr Nimmala stated in evidence that Mr O’Keeffe was a regular patient at her practice from 15 March 2022. The Applicant had consulted her mainly for pain management including neck pain, and pain shooting down both arms, diagnosed as cervical spine pain with radiculopathy.

15. Dr Nimmala described the symptoms as chronic pain starting in the neck and upper back, with pain and numbness bilaterally but mostly in the right arm, and the inability to lift the arms overhead. She confirmed that she had referred Mr O’Keeffe for an MRI as the last scan had been in 2018 and the Applicant kept reporting symptoms, and referral to a neurologist was appropriate. Dr Nimmala stated that a neurologist would be better placed to ascribe the neuropathy to Mr O’Keeffe’s degenerative condition, which the witness nonetheless affirmed, including mild narrowing at C3/4 and marked changes at C6/7.

16. When asked to describe steps taken in respect of pain management, Dr Nimmala outlined the successive trials of medication which were found to have no effect. She described the pain relief achieved as ‘not optimal’. Asked whether pain had been eliminated, she replied that the Applicant ‘is able to cope’. Dr Nimmala noted Mr O’Keeffe was at that time on a waiting list for pain management and she expected this to assist the Applicant to better manage his pain.

17. Dr Nimmala was reluctant to express a concerted opinion about Mr O’Keeffe’s functional capacity, but stated that the Applicant should aim to have a decent quality of life and cope with the pain. She stated further that given Mr O’Keeffe’s experiences since 2015 it was hard to envisage that pain would be eliminated.

18. Under cross-examination, Dr Nimmala was taken to medical records from St Vincent’s Hospital in the materials (T6). In particular, she was asked about the observation made (T6, 41) that in 2019, Mr O’Keeffe’s pain distribution was considered not explained by the neck and back changes identified in radiology. While Dr Nimmala stated she had noticed this comment, she pointed to changes identified in the cervical spine, and again preferred that a neurologist provide an opinion.

19. Dr Nimmala confirmed that Mr O’Keeffe had not complained to her about pain in the legs, his knees collapsing, or experiencing falls. She was not aware that the Applicant has reported being able to drive, but noted that Mr O’Keeffe attends consultations with his partner. Dr Nimmala confirmed that in her report she noted that Mr O’Keeffe needs assistance with driving, lifting objects and a variety of household tasks.

20. In response to a question from myself, Dr Nimmala confirmed that she had conducted a full neurological examination. On the last occasion, she found the Applicant had tenderness to slight touch in the shoulders and upper arms, but full power in the upper limbs. Dr Nimmala agreed with the findings in the St Vincent’s material that Mr O’Keeffe has normal power and reflexes in the upper limbs. She did not consider the Applicant has a full range of movement.

21. In re-examination, Dr Nimmala stated that she was not surprised Mr O’Keeffe reported issues with his lower body, given the finding of degenerative change in the lumbar region.

    Wider material

22. The patient material in Exhibit A1 includes the results of the MRI arranged by Dr Nimmala. This report notes, in summary, degenerative change throughout the cervical spine with prominent right-sided exit foraminal narrowing, and moderate spinal canal narrowing at this and lower levels. There is mild disc degeneration observed in the thoracic spine.

23. A summary of Mr O’Keeffe’s spinal conditions is found in the report of Ms Fitzgerald (HB/A1 or M3). She describes a swimming incident in 2015 as involving the ‘disassociation’ of the neck, following which the Applicant received a C3/4 laminectomy. She notes that an MRI of 27 August 2019 observes that Mr O’Keeffe only has four lumbar vertebrae with the last articulating with the sacrum.

24. Amongst the material from St Vincent’s Hospital (T6) is a letter dated 20 November 2018 (pp 48-49) which records that:

    (a)there was ‘immediate improvement’ in symptoms from the C3/4 intervention, but Mr O’Keeffe relapsed and has since experienced neck pain and bilateral shoulder/chest pain;

    (b)Mr O’Keeffe also experiences back and leg pain;

    (c)on examination Mr O’Keeffe exhibited normal power and reflexes in the upper and lower limbs;

    (d)radiology shows foraminal stenosis at the site of the surgery, disc degeneration at L4/5 with diffuse bulging, no neural compromise but possible component of ‘dynamic instability’; and

    (e)confirmation of C3/4 fusion is needed by a CT as his pain sounds like C4 in nature.

25. I note a radiology report of 5 September 2018 that confirms the absence of an L5 vertebral body (T6, p 99).

26. The correspondence referred to in evidence (dated 24 September 2019) notes that the neurosurgical team did not consider Mr O’Keeffe a good candidate for further surgery, as well as noting that symptoms did not match the Applicant’s neurology. This led to the referral to the Chronic Pain Service in Bendigo.

27. Records indicate that Mr O’Keeffe had also been in the hands of a Neurologist, Dr Graeme Gonzales. A letter dated 21 March 2017 (T6, p 76) notes, relevantly, that nerve conduction studies had been carried out and the results were normal. Dr Gonzales goes on to note radiology findings including foraminal cervical stenosis, and the result would appear to have been a referral to a neurosurgeon for further evaluation.

28. A further letter from Dr Gonzales of the same date (T6, p 77) indicates that the cause of Mr O’Keeffe’s relapse after his initial cervical spine surgery was a car accident. The Applicant apparently reported right arm symptoms, which were evaluated by Dr Gonzales. The letter notes some changes in sensation in the right arm, but this did not conform to a typical distribution. Dr Gonzales organised nerve conduction studies. He noted that strength was preserved throughout, and reflexes were present and symmetrical.

    consideration

    Applicant submissions

29. In closing submissions, it was submitted that there is substantial evidence as to Mr O’Keeffe’s impairments, and that his chronic neck and back pain arising from degenerative spinal disease is ‘centre stage’ in this application. As a result, it was submitted Mr O’Keeffe’s functional capacity is impaired to the requisite degree, and account should be taken of the risk he faces of experiencing pain or falls.

30. It was acknowledged that the oral evidence of Ms Wallis was constrained by her inability to speak directly to mobility issues. Ms Fitzgerald, however, presented evidence about a range of physical assessments she conducted. This, and other material from Bendigo Health, evidenced gait issues, unsteadiness and pain, and demonstrated that Mr O’Keeffe’s safety is compromised. The evidence was said further to demonstrate that while the Applicant can move around the home, his capacity to do so is substantially reduced, and he experiences falls and transfer issues.

31. With respect to the use of assistive devices, in the context of what is commonly available, it was contended that Mr O’Keeffe had trialled a walking stick for approximately four weeks but found that its positive impact was extremely limited. The evidence was to the effect that the Applicant had exhausted all reasonable steps in this regard.  He also contended that home modifications in the form of grab rails are, upon the evidence, a matter requiring specialist advice concerning installation.

32. It was further contended that some other forms of assistance may alleviate functional impairment, but not sufficiently to remove the substantial reduction in capacity. The evidence indicates for example that a bed and couch are required. With respect to self-care, it was submitted that Mr O’Keeffe’s abilities in the bathroom have deteriorated. While he expressed reluctance to receive personal help, this presents as a requirement, not a matter of preference.

33. It was submitted that the evidence of the OTs in the hearing demonstrates that installation of grab rails required assessment and proper installation, albeit the items themselves may be considered readily accessible. The expense of installation should also be understood in the context of individual circumstances.

34. The evidence also demonstrated, it was contended, that Mr O’Keeffe has sought to adapt his cooking style in response to his impairment, but that risks remain. There is also evidence his partner takes responsibility for cleaning and that alternative approaches do not alleviate risk or reduce fatigue.

35. Finally, on the issue of permanency, it was submitted that Dr Nimmala’s evidence was helpful. In short, a range of medication has been trialled, with a view only to pain management, not its elimination. It was contended that if there appears to be inconsistency between medical reports, Mr O’Keeffe’s symptomatology remains consistent.

36. In the ASFIC, it is contended that it is sufficient that there be a finding that lifetime support is likely, regardless of the nature of support sought, albeit contentions are raised with respect to several kinds of support.

    Respondent submissions

37. In closing submissions, it was contended in summary for the Respondent that Mr O’Keeffe did not have a substantially reduced functional capacity, and that he was not in fact likely to require NDIS assistance for his lifetime. The Respondent argued, however, that it is open to the Tribunal to be satisfied as to the permanence of the Applicant’s impairments.

38. It was submitted that Mr O’Keeffe experienced some reduced functional capacity, however in respect of mobility, it was contended that a walking stick was a commonly used item that would assist with endurance, strength and distance. While Mr O’Keeffe may require some education from a physiotherapist, the evidence was to the effect that he has benefitted in the past from a walking stick. It was also contended the Applicant would benefit from the advice of an OT as to different ways to safely undertake various daily tasks.

39. The Respondent contended that the substantive written evidence of the Applicant’s OT did not address Mr O’Keeffe’s current premises. While there is some evidence that he receives assistance from his partner, there has been no independent observation by an OT. It was submitted that both OTs gave evidence about issues with self-reporting of capacity limitations. It was submitted, in summary, that the Tribunal should prefer the evidence of Ms Wallis over Ms Fitzgerald on the basis that the former had reported on three occasions, and Ms Fitzgerald had identified restrictions affecting her assessment. This resulted in an overly pessimistic picture of the Applicant’s capacity.

40. In respect of mobility, reference was made to previously decided cases of the Tribunal dealing with mobility and mobility aids, noting that it had been submitted in the updated RSFIC that Mr O’Keeffe might benefit from alternatives such as a walking frame. It was contended that a walking stick is a commonly used item, and certain commonly used items would be of assistance to him in the bathroom. Indeed, it was submitted that the evidence overall was to the effect that the space required renovation, not disability-specific modification.

41. Finally, it was contended that Mr O’Keeffe does not appear to actively seek out medical help, and the submissions and evidence advanced regarding stability issues suggests the Applicant is able to make appropriate adjustments to limit risk.

42. In the RSFIC, it is submitted that Mr O’Keeffe, variously, is able to avail himself of commonly used items, may obtain certain services from other programs, and would only require lifetime assistance in the form of personal assistance, but does not require this form of support. Accordingly, it is contended that the lifetime support consideration is not made out.

    Tribunal findings

43. Both parties referred to the decision in Rooney and National Disability Insurance Agency [2021] AATA 3523 (Rooney) for its discussion of the term ‘commonly used’ (at [24]-[28]). The Applicant placed some emphasis on the Tribunal’s view in Rooney that a commonly used item might be understood as one that is relatively inexpensive (at [27](d)). The Respondent emphasised the Tribunal’s view there, that the term should be understood with reference to items commonly used by persons with the disability concerned (at [26]).

1. I noted at paragraph 10 above, however, the approach taken in Mulligan to the statutory test. That is, r 5.8 – which includes the reference to commonly used items – does not exhaustively define what is meant by ‘substantially reduced functional capacity’. More specifically, I note the discussion in Mulligan (at [75]) about the approach taken by the Tribunal in that decision to the issue of commonly used items. The Court there observes that the core statutory concept in s 24(1)(c) requires no assessment of how common the reduced functional capacity might be, or whether it be manifested in a certain number of people, and it cautions against placing a ‘gloss’ on the provision.

2. I will address this issue given that it occupied such a prominent place in the Respondent’s approach, but before doing so, I will formally consider the disability requirements.

3. I am satisfied on the evidence overall that Mr O’Keeffe has a disability attributable to a physical impairment (s 24(1)(a)). There is ample and uncontested evidence that the Applicant experiences pain and fatigue, arising generally it appears from his spinal conditions, and that this causes impairment in his daily life. I make this finding acknowledging that the evidence tends to demonstrate that the impairment may be episodic, unpredictable or ‘fluctuating’ (the word used in r 5.5).

4. While uncontested, I am also satisfied on the basis of a range of medical evidence, that the physical impairment is likely to be permanent (s 24(1)(b)). I accept the evidence, particularly of Dr Nimmala, that referral for further medical assessment and likely pain management advice is only with a view to ongoing management of the impairment, as opposed to its cessation or elimination.

5. Substantially reduced functional capacity need only be determined in respect of one of the six functions identified in the Act (s 24(1)(c)). In respect of mobility, a significant amount of time was dedicated to evidence of what Mr O’Keeffe may have attempted when in the hands of the team at Bendigo Health. I do not consider it necessary to come to a view as to whether a walking stick is a commonly used item. This is because I consider the Applicant’s submissions on this matter reflect the better view of the evidence. That is, I am satisfied that Mr O’Keeffe participated in a structured and supervised program with a view to enhancing his physical mobility, but that due to the specific nature of his impairments, he exhausted all reasonable steps.

6. In support of this finding, I note further that Mr O’Keeffe gave evidence, adequately supported by the opinion of Ms Fitzgerald, that he was unable to coordinate effectively with a walking aid. There remain questions about the exact cause of this, particularly given the rather equivocal (at best) observations in medical reports about the nature and extent of Mr O’Keeffe’s reported upper arm symptoms. Notwithstanding that, there is to my satisfaction sufficient material overall to indicate that he has in combination some upper body and some lower body dysfunction that explains this evidence.

7. I note that the only physiotherapist called to give evidence was Ms Trew, and that she had no personal engagement with Mr O’Keeffe. I accept that there were potentially important opportunities missed at the hearing to clarify aspects of reports due to the fact that only OTs were examined about this material. However, on balance, I accept Mr O’Keeffe’s evidence about the interpretation of the observations of his progress and general capability reported upon by Bendigo Health, particularly given the absence of a qualified expert to substantiate or contextualise this material.

8. This conclusion is, I consider, supported by the thrust of the direct observations of the witnesses. That is, that Mr O’Keeffe’s upper body function is impaired in the execution of routine daily tasks and his mobility is impaired. Again, I make this finding notwithstanding perhaps contrary findings in the course of physical examinations about power and range of movement. Once more, the evidence of those therapists who have seen Mr O’Keeffe in his home was not tested against expert medical opinion. Equally, it is important to avoid the challenges that arise from moving between the concepts of diagnosis, condition and impairment, when the latter is the focus of consideration (Davis at [101]).

9. Finally, I also rely here upon the impairment assessments in the written reports of Ms Wallis and Ms Fitzgerald. These include findings of extreme impairment (in the initial report of Ms Wallis) and significant impairment (Ms Fitzgerald). When questioned about the apparently high scores on quantitative assessments, Ms Fitzgerald qualified this by reference to her assessment of degree of difficulty with tasks. Both witnesses, in my understanding of the evidence, also made particular reference to Mr O’Keeffe’s transfer difficulties in a range of contexts. I consider this demonstrates the Applicant’s mobility issues in practical situations, beyond the question of horizontal motion, to be substantial.

10. In summary, therefore, I make the finding that I consider the evidence overall to demonstrate to my satisfaction that Mr O’Keeffe has substantially reduced functional capacity with mobility.

11. Determination of whether Mr O’Keeffe also satisfies this statutory threshold in respect of self-care is, I consider, clouded by the evidence about his interstate move and the contribution made to his daily life by his partner. I note that the OT reports, which I have given some weight to for the purposes of considering mobility, include a great deal of observational evidence concerning a variety of self-care tasks. There was thorough examination of the Applicant’s new residence at the hearing, including particularly the bathroom set up. There is also evidence before me, particularly from Ms Fitzgerald, about the physical limitations arising from Mr O’Keeffe’s shoulder movement.

12. While Mr O’Keeffe gave some evidence about the assistance he receives from his partner, I consider the Respondent’s submission about the significance of this evidence to have some force. In short, I do not consider that I have an adequately robust appreciation of the extent of Mr O’Keeffe’s impairment in respect of self-care to reach a finding to the standard required (being a state of comfortable satisfaction).

13. According to the parties’ written submissions, there is no dispute that the next statutory criteria is fulfilled, being that Mr O’Keeffe’s impairment affects his capacity for social or economic participation (s 24(1)(d)), and this was the position of the delegate. I find that I am satisfied on the basis of the evidence overall, that the Applicant’s impairment is, or is likely to, affect his social and economic participation. My understanding of Mr O’Keeffe’s circumstances is that he is on a disability pension, and that his spinal condition caused him to leave the workforce some time ago.

14. In respect of the need for lifetime support (s 24(1)(e)), I note the parties’ opposing submissions, and also that no evidence was advanced directly addressing this consideration. I consider that, following largely from the evidence considered with respect to permanence, there is no likelihood that Mr O’Keeffe’s physical impairments are amenable to substantive improvement. Further, I do not consider it material for this consideration to be determined in relation to any specific form of support.

15. Accordingly, I am also satisfied that the Applicant needs, or is likely to need, NDIS support for his lifetime.

    COnclusion

16. I have found that Mr O’Keeffe has a substantial impairment with respect to mobility. For this reason, together with the associated findings, it follows that he should become a participant in the NDIS. It is also not necessary for this reason to consider the early intervention requirements (s 25).

    decision

17. For the reasons given above, the Tribunal sets aside the decision under review dated 15 July 2020 and substitutes it with a decision that Mr O’Keeffe meets the disability requirements in section 24 of the National Disability Insurance Scheme Act 2013.

I certify that the preceding ninety-three (93) paragraphs are a true copy of the written reasons for the decision herein of Senior Member Fenwick

...................[sgd].....................................................

Associate

Dated:  2 February 2023

Date of hearing:

27 and 28 October 2022

Counsel for the Applicant:

Bryn Overend

Solicitors for the Applicant:

Counsel for the Respondent:

Victoria Legal Aid

Darren Bruno

Solicitors for the Respondent:

HWL Ebsworth