Pajo and National Disability Insurance Agency

[2024] AATA 1340

Pajo and National Disability Insurance Agency [2024] AATA 1340 (31 May 2024)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2022/5758

Re:Tatiana PAJO

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Senior Member O'Donovan

Date:31 May 2024

Place:Canberra

The decision under review is set aside and the application for access is remitted to the respondent for consideration on the basis that the disability requirements are met.

…….………[sgd]……………….

Senior Member O’Donovan

Catchwords

National Disability Insurance Scheme – Access – Inflammatory Condition – Substantially reduced functional capacity to undertake mobility – Assistive Technology – Fatigue – Applicant meets disability requirements

Legislation

National Disability Insurance Scheme Act 2013
National Disability Insurance Scheme (Becoming a Participant) Rules 2016

Cases

Rooney and National Disability Insurance Agency [2021] AATA 3523

REASONS FOR DECISION

Senior Member O'Donovan

31 May 2024

1. The decision under review is a decision made on 5 July 2022 to refuse the applicant access to the National Disability Insurance Scheme (NDIS). In order to access the NDIS, an applicant must meet a number of requirements specified in section 21 of the National Disability Insurance Scheme Act 2013 (NDIS Act).

2. There is no dispute that the applicant meets the age and the residence requirements specified in the NDIS Act for access to the scheme. There is however a dispute about whether the applicant meets the disability requirements and/or the early intervention requirements.

3. Dealing first with the disability requirements. There are two ways in which this requirement can be met. The first is by establishing that each of the criterion in subsection 24(1) are met. One criterion which must be met is that the impairment from which the person suffers results in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the following activities:

   (i)Communication;

   (ii)Social interaction;

   (iii)Learning;

   (iv)Mobility;

   (v)Self-care;

   (vi)Self-management.

4. I will refer to this as the reduced functional capacity threshold.

5. Alternatively, the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 includes a rule which effectively operates as a deeming provision – Rule 5.8. If the requirements in the rule are met, then the person meets the reduced functional capacity threshold in section 24(1).

6. To meet the disability requirements the applicant seeks to establish the following:

   (a)That she has a disability that is attributable to a physical impairment which she suffers from;

   (b)The impairment is, or is likely to be permanent;

   (c)The impairment results in substantially reduced functional capacity to undertake the activities of mobility and/or self-care;

   (d)The impairment affects the applicant’s capacity for social or economic participation;

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

7. The applicant contends in the alternative that if I were to find that the applicant does not meet the reduced functional capacity threshold in relation to various activities, she nonetheless comes within the deeming provisions in Rule 5.8.

8. Rule 5.8 relevantly provides:

   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.

9. There is no suggestion that paragraph (c) applies.

10. The applicant contends that she meets the disability requirements for access to the scheme as a consequence of disabilities which arise from a physical impairment and a psychiatric condition. For the sake of brevity I will deal with the applicant’s physical impairment first as it is decisive.

11. There is no dispute that the applicant has a physical impairment which causes disability and that the condition is permanent. In relation to the applicant’s physical impairment the most difficult question is whether:

    (a)The impairment results in substantially reduced functional capacity to undertake either mobility and/or self-care; or

    (b)The applicant meets the thresholds specified in 5.8(a) or (b) of the National Disability Insurance Scheme (Becoming a Participant) Rules 2016.

12. To address those questions I will outline briefly the established facts. There were very few factual matters which remained in dispute by the end of the hearing.

    Facts

13. The applicant was born in July 1965. She lives with her husband and her daughter at Kalaru NSW. The property she lives on is about 20 minutes drive from the town of Bega.

14. The applicant and her husband moved to Kalaru in 2016 after the applicant completed training as an exercise physiologist and took up a franchise opportunity to practice in the area. However, the applicant suffered a major setback in 2020 when she began to develop symptoms of muscle weakness and fatigue.

15. The cause of the weakness and fatigue has been narrowed down to an inflammatory condition of her muscles. A precise diagnosis remains to a degree uncertain but there is a strong consensus that the inflammatory condition is permanent. As a result of the condition the applicant experiences weakness in her neck, chest, abdomen, hip and back muscles, and pain, muscle stiffness and fatigue. She ceased working around August 2021.

16. Her inflammatory condition was initially treated using chronic corticosteroid therapy, immune suppressants and methotrexate. Later, the applicant’s medication was changed and she began receiving Intravenous Immunoglobulin Therapy, known as IVIg therapy, once every two weeks. IVIg therapy involves an infusion which contains antibodies taken from healthy blood plasma. She is currently being treated every three weeks with IVIg therapy. On days where the applicant receives the therapy she is very fatigued, but in the week following the therapy her condition shows symptomatic improvement. By the third week after therapy her symptoms are generally much worse than in the period immediately post-treatment.

17. The muscle weakness and fatigue has an impact on the applicant’s functional capacity in a number of domains. The applicant has been reviewed by three occupational therapists. She and her husband gave evidence to the Tribunal about the disability caused by her impairments.

    Mobility

18. The applicant’s condition affects her mobility. According to her and her husband’s evidence, which I accept, the main impact on her mobility comes from fatigue. The applicant can walk the length of her driveway unassisted which is 250m and undulating, but she will be very fatigued and will need to rest at the end of it to recover her strength. The length of the rest required following such a walk is 1-2 hours.

19. She can drive herself to medical appointments and hairdressing appointments in Bega. The drive takes about 20 minutes. When she arrives, as a result of stiffness and weakness, she needs to use a four pointed stick to get herself out of the car. She needs the stick to negotiate stairs and to get moving after sitting in a fixed position for a long period of time. However, absent those features, the applicant is able to walk unassisted on flat ground for at least 10 minutes.

20. At home she can take out the compost bin (which weighs approximately 1 kg) which involves ascending stairs. She can do that unassisted. She walks in her garden although the sloped areas are difficult and create a risk of falling which has occurred on several occasions in the last 2 years. Consequently she uses her four pointed stick when walking in the garden. She has never fallen in the house. She is able to get herself up off the ground either unassisted or by crawling to nearby objects to lift herself up off the ground.

21. In the mornings she struggles to get moving. Her husband removes the bedclothes which allows her to move more freely without getting tangled in the bedding. When she is in the early part of the treatment cycle she is generally able to get herself up unassisted. Later in the treatment cycle she requires some assistance from her husband.

22. The applicant fatigues very quickly. At present she does 3 minutes of exercise on her stationary bike at very low intensity. When she does that, she needs to rest afterwards and will have minimal energy for other activities until later in the day.

23. The applicant has access to a pool at home. If she does exercises in the pool she cannot leave the pool unassisted as a result of fatigue.

24. On one recent occasion the applicant fell into the pool but was able to get out of the pool unassisted. However, she had to call her husband to come home and assist her to get out of her wet clothes. She was unable to remove them due to weakness.

25. Overall, the picture painted by the applicant and her husband is consistent with the observed function which Occupational Therapist Kate Moore recorded in her report of 28 October 2022. For Ms Moore the applicant demonstrated independent mobility with no aids and had good balance, demonstrating forward flexion and one-legged standing.  Ms Moore observed the applicant ascending stairs without the need for a rail.

26. Ms Moore’s assessment was that the applicant needed assistive technology (in the form of a four point stick) and supervision outdoors. The need however was intermittent with a stick and supervision only required on bad days. My assessment is that the applicant needs a stick to mobilise following any period of prolonged sitting regardless of whether it was a good or bad day.

27. The applicant reports that her leg strength has improved. She was observed to transfer from a chair to standing without difficulty by Ms Moore. She was also observed to do that by Ms Katavic who saw her just prior to a scheduled IVIg therapy. At that point the applicant was on a two week therapy schedule.  

28. I am satisfied that the limitations which the applicant describes amount to a substantially reduced functional capacity to undertake mobility. As has been noted by the Tribunal previously, ‘substantially’, is a significant threshold for an applicant to satisfy’.[1]

    [1] Rooney and National Disability Insurance Agency [2021] AATA 3523 at [22].

29. In the applicant’s case if she walks for twenty minutes she is effectively rendered immobile for the following 1-2 hours. That was the evidence she gave to the Tribunal and that was what she reported to Carmel Gerrand when seen in August 2022.[2] Further, her fatigue and weakness combine to diminish her ability to move about safely when not in her own house.

    [2] Tender Bundle, p 271.

30. The occupational therapist Kate Moore in her report dated 5 December 2022 identified the applicant’s need for a four pointed walking stick out of doors for safety reasons. There is no dispute that the applicant is a falls risk outside in the garden without it. She also uses the four pointed walking stick to assist with transfers when she has been sitting for periods longer than 10 minutes which is inevitably the case whenever the applicant travels anywhere in a car.  

31. When the applicant’s debilitating fatigue is combined with the other limitations on her mobility, I am satisfied that she meets the statutory threshold of having substantially reduced functional capacity to undertake mobility.

32. As should be clear from the factual findings noted above the applicant’s impairments have affected her capacity for social and economic participation. She was forced to close her business as a result of her condition and has been unable to undertake paid work since.

33. Given that her physical impairments are likely to be permanent, I am satisfied that the applicant is likely to require support under the National Disability Insurance Scheme for her lifetime.

34. In these circumstances I am satisfied that the applicant meets the disability requirements.

35. The decision under review is set aside and the application for access is remitted to the respondent for consideration on the basis that the disability requirements are met.

36.     I certify that the preceding 35 (thirty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member O’Donovan.

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

Associate

Dated: 31 May 2024

Hearing date(s)	14 & 19 March 2024
For the Applicant:	Ms B Harders, Legal Aid ACT
For the Respondent:	M J Thomson, Moray & Agnew Lawyers