Pallier and National Disability Insurance Agency

Pallier and National Disability Insurance Agency [2024] AATA 157 (7 February 2024)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number: 2021/9564
Re:Sandra Pallier
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Deputy President Mischin
Date:7 February 2024
Place:Perth

The decision under review is set aside and the matter is remitted for reconsideration in accordance with a direction that the Applicant meets the disability requirements in section 24, and hence the access criteria in section 21(1), of the National Disability Insurance Scheme Act 2013 (Cth)
........................ [Sgd]................................................
The Hon. Michael Mischin, Deputy President
CATCHWORDS
NATIONAL DISABILITY INSURANCE AGENCY – access to scheme – peripheral neuropathy secondary to chemotherapy affecting sensation, motor skills and balance, and causing weakness and chronic pain – abdominal mesh inserted surgically with recurring complicated mesh infections – whether the Applicant meets the disability requirements in section 24 or the early intervention requirements in section 25 of the National Disability Insurance Scheme Act 2013 (the NDIS Act) – whether the Applicant’s impairments result in substantially reduced functional capacity to undertake one or more of the activities listed in section 24(1)(c) of the NDIS Act – whether there are other service systems that would be more appropriate to provide the assistance the Applicant seeks.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Becoming a Participant) Rules 2013 (Cth)
CASES
Beezley and Repatriation Commission (2015) 150 ALD 11; [2015] FCAFC 165 (20 Nov 2015)
Mulligan v National Disability Insurance Agency (2015) 149 ALD 408; [2015] AATA 974 (17 Dec 2015)
Holmes and National Disability Insurance Agency [2017] AATA 2750 (21 Dec 2017)
Arnel and National Disability Insurance Agency [2019] AATA 4778 (18 Nov 2019)
James and National Disability Insurance Agency [2019] AATA 4248 (18 Oct 2019)
Schwass and National Disability Insurance Agency [2019] AATA 28 (17 Jan 2019)
MHZQ and National Disability Insurance Agency [2019] AATA 810 (8 May 2019)
Madelaine and National Disability Insurance Agency [2020] AATA 4025 (13 Oct 2020)
FBJV and National Disability Insurance Agency [2021] AATA 913 (19 Apr 2021)
HSPC and National Disability Insurance Agency [2021] AATA 727 (31 Mar 2021)
MRLK and National Disability Insurance Agency [2021] AATA 3896 (25 Oct 2021)
Rooney and National Disability Insurance Agency [2021] AATA 3523 (1 Oct 2021)
National Disability Insurance Agency v Davis [2022] FCA 1002 (29 Aug 2022)
National Disability Insurance Agency v Foster [2023] FCAFC 11 (17 Feb 2023)
SECONDARY MATERIALS
National Disability Insurance Scheme – Operational Guideline – Access
National Disability Insurance Scheme – Operational Guideline – Applying to the NDIS
National Disability Insurance Scheme – Operational Guideline – Assistive Technology (equipment, technology and devices)
National Disability Insurance Scheme – Operational Guideline – Home modification
REASONS FOR DECISION
Deputy President the Hon. Michael Mischin
7 February 2024
BACKGROUND

The Applicant is a 60-year-old woman who seeks access to the National Disability Insurance Scheme (NDIS or the Scheme). The Applicant suffers from Chemotherapy Induced Peripheral Neuropathy which, inter alia, causes chronic pain and episodes of acute pain. The Applicant also suffers from reoccurring infections caused by abdominal mesh inserted following surgery.
On 20 July 2021, a delegate of the National Disability Insurance Agency (NDIA or Agency) decided under section 20 of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) to refuse the Applicant access to the NDIS (Reviewable Decision).
On 7 September 2021 the Applicant requested, under section 99 of the NDIS Act, an internal review of the Reviewable Decision.
On 11 November 2021 a delegate of the Agency made the internal review decision under section 100(6) of the NDIS Act, deciding that the Applicant did not meet all the statutory criteria for access to the Scheme. The delegate found that the Applicant satisfied the age requirements (section 22 of the NDIS Act) and the residence requirements (section 23), but not the disability requirements (section 24), nor the early intervention requirements (section 25).
On 9 December 2021 the Applicant lodged an application with the Tribunal seeking a review of the internal review decision denying her access to the Scheme.
LEGISLATIVE AND LEGAL FRAMEWORK
The objects of the NDIS Act, set out in section 3, materially include to:
(a) in conjunction with other laws, give effect to Australia’s obligations under the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006 ([2008] ATS 12); and
(b) provide for the National Disability Insurance Scheme in Australia; and
(c) support the independence and social and economic participation of people with disability; and
(d) provide reasonable and necessary supports, including early intervention supports, for participants in the National Disability Insurance Scheme launch; and
(e) enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports; and
(f) facilitate the development of a nationally consistent approach to the access to, and the planning and funding of, supports for people with disability;
(g) promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the community; …
The criteria by which access is granted to the Scheme are set out in sections 21 to 25 of the NDIS Act.
Section 21(1) of the NDIS Act provides that 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).
Section 24 of the NDIS Act provides that:
(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 to one or more impairments attributable to a psychiatric condition; 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, 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; 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.
As an alternative to access by way of meeting the disability requirements under section 24, section 25 of the NDIS Act sets out early intervention criteria for access to the Scheme. Section 25 provides that:
(1) A person meets the early intervention requirements if:
(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 developmental delay; 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.
(2)The CEO is taken to be satisfied as mentioned in paragraphs (1)(b) and (c) if one or more of the person’s impairments are prescribed by the National Disability Insurance Scheme rules for the purposes of this subsection.
(3)Despite subsections (1) and (2), the person does not meet the early intervention requirements if the CEO is satisfied that early intervention support for the person is not most appropriately funded or provided through the National Disability Insurance Scheme, and is more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or through systems of service delivery or support services offered:
(a) as part of a universal service obligation; or
(b) in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
Rules have been made under the Act to assist in its interpretation and application. Sections 27 and 209 of the NDIS Act allow the making of rules to assist those exercising the relevant powers under the Act to determine who becomes a participant.[1] Relevant to this case are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (the Becoming a Participant Rules). The Rules, inter alia, prescribe circumstances in which impairments will result in substantially reduced functional capacity to undertake the activities in section 24(1)(c), and whether early intervention supports are likely to benefit a person.[2]
[1] Becoming a Participant Rules r 2.2.
[2] Exhibit R1 T14 63-94.
The NDIA has also published numerous operational guidelines to assist decision-makers with the application of the NDIS Act and its Rules. The operational guidelines represent government policy and, to the extent that they are consistent with the relevant legislation, should be applied by the Tribunal unless there is a sound reason not to do so.[3]
[3] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634; Madelaine and National Disability Insurance Agency [2019] AATA 4025 (‘Madelaine’) at [9].
Guidelines applicable at the time of the decision under review included the ‘National Disability Insurance Scheme – Operational Guidelines – Access’ (Access Guidelines).[4] By the time of the hearing, that had been replaced by the guideline ‘Applying to the NDIS’ dated 1 July 2022. That has since been replaced by the ‘Applying to the NDIS guideline’ of 26 June 2023, and the ‘Applying to the NDIS guideline’ of 22 December 2023 (Applying Guideline). As the last would now inform the approach the Respondent would take to the question of whether access would be granted to the Scheme, I have taken that latest guideline into consideration in my assessment of this application for review.
[4] Exhibit R1 T15 95-159.
The NDIA has also published:
(a)an ‘Assistive Technology (equipment, technology and devices)’ operational guideline (AT Guideline): that current at the date of this decision is dated 20 December 2023; and
(b)a ‘Home modification’ operational guideline (Home Modification Guideline): that current at the date of the hearing and this decision is dated 11 October 2022.[5]
[5] The NDIS Operational Guidelines are publicly available on the NDIS website.
I shall consider the Rules, and the Applying, AT, and Home Modification Guidelines in due course.
ISSUES BEFORE THE TRIBUNAL
The Tribunal must decide whether the Applicant, to become a participant in the Scheme, meets the ‘access criteria’ set out in section 21 of the NDIS Act. As mentioned, the Respondent accepts that the Applicant meets the age requirements and the residence requirements specified in sections 22 and 23 of the NDIS Act, which comprise the access criteria under sections 21(1)(a) and (b) of the NDIS Act.
The Respondent further accepts that, on the evidence before the Tribunal, the Applicant meets those elements of the disability requirements in section 24(1)(a), (b) and (d) of the NDIS Act; in short, that she has a disability that is attributable to physical and cognitive impairments, that those impairments are permanent, and that those impairments affect her capacity for social and economic participation.[6]
[6] Transcript 19.
However, to satisfy the access criteria in section 21(1)(c) of the NDIS Act the Applicant must also satisfy:
(c)the disability requirements criteria in section 24(1)(c) and (e), or
(d)the early intervention requirements criteria in section 25(1)(b) and section 25(3).
So far as section 24(1)(c) is concerned, the key question is whether the Applicant’s permanent impairments have resulted in a ‘substantially reduced functional capacity’ in one or more of the six specified activities of communication, social interaction, learning, mobility, self-care, and self-management.[7] The Respondent submits that the threshold of ‘substantially reduced’ is a high one. The Applicant must also establish that she needs lifetime support from the Scheme as required by section 24(1)(e).
[7] Ibid 20.
The Respondent submits that the Tribunal should not be satisfied that the Applicant meets the ‘early intervention’ requirements of section 25. The Respondent points to the longstanding and stable nature of the Applicant’s condition, along with a lack of evidence that identifies any appropriate early intervention support that would reduce her future need for support, as required by section 25(1)(b), and have one of the benefits contemplated by section 25(1)(c).[8]
[8] Ibid 20.
HEARING & EVIDENCE
The application was heard by the Tribunal on 21 July 2023. The Applicant was unrepresented. She had previously been receiving representation from an officer of MSWA[9] but had been informed on the morning of the hearing that it could not further assist her.[10]
[9] Formerly Multiple Sclerosis WA.
[10] Transcript 5.
The Applicant gave evidence in person.[11] No other person gave oral evidence.
[11] Ibid 21-43, 45-71.
The Tribunal was provided with a tender bundle incorporating the T-documents.[12] The Tribunal also received a further evidence bundle from the Respondent which had been filed on 29 March 2023, and several documents from the Applicant, which also were received into evidence. These included:
[12] Exhibit R1, Transcript 16.
(a)A report of Occupational Physician Dr Sandra Gongora dated 25 February 2023;[13]
(b)A report of Occupational Therapist Peta Flynn dated 25 April 2023;[14]
(c)A Chronic Disease Management Plan from the Applicant’s General Practitioner Dr Bronwen Wilson dated 7 June 2022;[15]
(d)A list of questions posed by the Respondent, and the Applicant’s answers, filed on 26 July 2022;[16]
(e)An email from the Applicant to the Respondent dated 26 July 2022, supplying supplementary information in respect of questions 12 and 13 posed by the Respondent;[17]
(f)A report of Occupational Therapist Yanyan Li dated 3 November 2022;[18]
(g)A letter, medical report and certificate from General Practitioner Dr Bronwen Wilson dated 3 May 2023;[19]
(h)A letter from Pain Medicine Consultant Dr Chin-wern Chan, in support of an early release of the Applicant’s superannuation, dated 10 May 2023; and[20]
(i)A letter, medical report and certificate from General Practitioner Dr Bronwen Wilson dated 30 May 2023, and attachments (including a report of General/Infectious Diseases Specialist Dr Matthew Skinner dated 4 May 2023).[21]
[13] Exhibit A1, Transcript 16.
[14] Exhibit R2 Document 1, Transcript 16.
[15] Exhibit R2 Document 6, Transcript 16.
[16] Exhibit A2a, Transcript 17 (also appearing as Exhibit R2, Document 11).
[17] Exhibit A2b, Transcript 17.
[18] Exhibit R2 Document 13, report of Occupational Therapist Yanyan Li dated 3 November 2022 42-52.
[19] Exhibit A3, Transcript 17.
[20] Exhibit A4, Transcript 18.
[21] Exhibit A5, Transcript 18.
I have considered the relevant factual and expert evidence and refer to parts of the evidence in these reasons.
THE APPLICANT’S CASE
The Applicant told the Tribunal that she was a biosecurity officer with the Commonwealth Department of Agriculture, Fisheries and Forestry at Perth International Airport.[22] She has worked for 44 years, the last 20 with the Department. She commenced in administrative positions, but in her 40s undertook three years of night-school studies to qualify to work with the Department’s canine unit. She served in that unit for several years.[23]
[22] Transcript 22.
[23] Ibid 65.
The Applicant was diagnosed with breast and lymph node cancer in 2011, which was treated by surgery and chemo- and radiation therapy. The surgery included a mastectomy and the insertion of an abdominal mesh.[24]
[24] Ibid 22.
The Applicant’s immune system remains compromised; she has suffered bouts of septicaemia and golden staph. She visits an infectious diseases specialist every two months. She attributes to chemotherapy her bladder incontinence.[25]
[25] Ibid 23.
The Applicant’s treatment for cancer resulted in peripheral neuropathy, with which she has lived for the past 12 years.[26]
[26] Ibid 22.
The Applicant experiences pain in her upper and lower limbs, and stiffness – and what she describes as ‘numbness’ – in her hands,[27] and numbness in her feet.[28] She has reduced balance and coordination, and reduced mobility and strength in her left arm.[29] Her left arm and hand are weak. She was left-handed, but since her surgery had to change to using her right arm and hand.[30] She suffers fatigue as well as neuropathic pain and numbness.[31]
[27] Ibid 41.
[28] Ibid 23.
[29] Ibid 23.
[30] Ibid 41.
[31] Ibid 23.
The Applicant’s experience has been reported as [sic passim]:[32]
Loss of sensation to both of her hands and feet which results in numbness, tingling and has resulted in her having multiple falls. She [is] unable to determine where her hands are in space and coordinate her movements particularly when her eyes are closed (proprioception difficulties) …
Significant and constant nerve and musculoskeletal pain symptomology which she rated on Visual Analogue Scale (VAS) 10+/10 with ten being extreme pain and one being minimal pain. She reported her pain as feeling like a burning sensation in her hands which radiates up to her wrist, and in her feet which radiates up to her knees.
Fine motor – Impaired hand functionality due to coordination of movements, sensation loss and pain she is unable to grasp and grip/hold on to objects to use her hands for tasks such as turning doorknobs, holding her mobile phone to communicate, operate a keyboard/pen and use a knife and fork to eat.
[32] Exhibit R2 Document 1, report of Occupational Therapist Peta Flynn dated 26 April 2022 2.
The Applicant describes her condition, in the context of mobility, as ‘drop foot’, where ‘the brain doesn’t send messages to my body and basically to my feet to tell me to lift my feet’,[33] resulting in her falls at home, at work, and in public. On one occasion she fell at work and broke an elbow and shoulder.[34]
[33] Transcript 24.
[34] Ibid 24.

The Applicant’s physical limitations are centred around her neuropathy and pain restricting if not preventing her from grasping and gripping, pulling and pushing, bending down and rising, standing for more than short periods, sitting for too long, reaching above her shoulders, balancing and remaining stable.[35]
[35] Exhibit R2 Document 1, report of Occupational Therapist Peta Flynn dated 26 April 2022 passim.
The Applicant endures chronic pain,[36] with sudden episodes of acute and extreme pain.[37] Some days the pain is worse than on others, and on ‘bad’ days, she cannot move.[38] Sometimes her pain is such that she is unable to leave her chair when guests visit and cannot walk to the front door of her home to let them out.[39]
[36] Transcript 22.
[37] Ibid 23, 24.
[38] Ibid 56, 57.
[39] Ibid 56.
At times the pain is such that the Applicant cannot sleep at night and awakens feeling sleep-deprived, in pain, and fatigued to the point she cannot function.[40]. She sleeps in a recliner rocker chair in her living room, sitting up with her arms down by her sides, as she cannot lie in bed in a comfortable position without pain.[41]
[40] Ibid 55.
[41] Ibid 24-26; the Applicant advised that she received relief from adjustable posture beds in hospital, but she does not have one as they are ‘pretty expensive’. ‘I basically live in the chair, because … I’m able to raise my legs and I can sleep in the chair better’: Transcript 54.
Pain resulting from overexertion can last for days.[42] The overexertion can arise from doing chores for more than short periods or walking short distances.[43] The Applicant does not go out often due to the limitations on her mobility, the risk of falling, and pain from movement.[44] She is always cautious walking, to avoid misjudging her footing and falling.[45] If she goes out for a few hours, she expects to experience pain the next day, and so plans her life accordingly.[46] The last time she had gone out for an evening was with a friend to a concert at the Perth Arena in June 2023 before she contracted COVID. Due to her peripheral neuropathy, and having sat too long, she collapsed while descending stairs and needed to be assisted by first-aid officers. She had to stay home the next day.[47]
[42] Ibid 28.
[43] Ibid 29.
[44] Ibid 30, 31.
[45] Ibid 56, 57.
[46] Ibid 29.
[47] Ibid 30.
The Applicant attends hospital every Monday to be administered Ketamine for pain management. She needs to stay overnight, which results in her missing two days of work.[48] It appears that this pain management treatment only provides partial relief.[49]
[48] Ibid 41, 43.
[49] Exhibit A5, report Dr Matthew Skinner dated 4 May 2023.
The Applicant lives alone and is a sole income earner.[50] She continues to work as much as she can. She cannot afford to retire for financial reasons and cannot earn sufficient by working part-time to support herself, something she tried for several years.[51] She has exhausted her paid personal leave and her long-service leave, and now takes unpaid leave to attend her medical appointments and the time necessary for her to stay in hospital.[52]
[50] Transcript 22.
[51] Ibid 22.
[52] Ibid 23, 48.
The Applicant says her employer has been ‘extremely good’ to her and accommodating of her difficulties and limitations while also providing her with productive work. For example, she struggles to use a keyboard at work, which her employer has accommodated by providing her with technology aids such as a special chair, a special ‘roller’ computer mouse, and dictation software so that she can speak into the computer rather than type.[53] Because of her weak left arm she has an armrest at work,[54] uses a special pen-grip, and uses a headset at work so that she doesn’t have to hold a telephone handset.[55] At home she needs to use the loudspeaker on her mobile phone, as she is unable to hold the phone without her dropping it due to her not being able to feel it. Her employer has duplicated her work environment in her home, so that she can work from home.[56]
[53] Ibid 23, 32.
[54] Ibid 32.
[55] Ibid 33.
[56] Ibid 33.
The Applicant’s cognition, memory, and ability to concentrate have been impaired.[57] She says that she struggles through work and learning new duties,[58] and often must ask how to do things she has already been taught or has done in the past.[59] Her having to be retrained on several occasions by colleagues frustrates them, embarrasses her, and affects her self-esteem.[60] Because of her memory problems she writes reminder notes in a book at work and a desk calendar.[61]
[57] Ibid 23, 66, 67.
[58] Ibid 23.
[59] Ibid 52, 53.
[60] Exhibit R2 Document 5, Statement of Lived Experience – Sandra Pallier dated 22 July 2022, 14.
[61] Transcript 53.
The Applicant’s duties involve computer work, but not writing correspondence and not sending many emails. It essentially consists of explaining to importers what is required of them, and checking the information they provide ‘and things like that’, about commodities they’ve imported.[62]
[62] Ibid 66.
The Applicant drives her car to work, which is about a 10-minute drive from home, and parks in the disabled persons parking bay directly outside the front door. Her workspace is at the front of the office layout. Depending on her pain, she will walk from her car into the office unaided, albeit with a limp, or using a walking stick. Her employer has provided her with a wheeled bag to convey personal effects she may require during the day.[63] When at work she would generally sit at her desk because she ‘can’t stand on [her] legs that much’, but then her legs become too numb so she stands and leans against a wall near her workstation. The Applicant must use the lift at work, rather than the stairs. At the time of the hearing, she was working from her office, going to work every day, as she did not like working from home.[64]
[63] Ibid 49-50, 51.
[64] Ibid 50.
As the Applicant frequently needs a walking stick, she keeps one nearby at home, one in her car, and one at work.[65] She also has at home a Zimmer frame but doesn’t like using it and resorts to it only when necessary, such as when in pain and fatigued from sleep-deprivation.[66] She expects that at some point she may need a wheelchair.[67]
[65] Transcript 55; Exhibit A2b.
[66] Transcript 55.
[67] Ibid 24.
The Applicant was questioned about the distance that she could walk. Experience suggests that generally people are not reliable estimators of distance, size, or weight. Nevertheless, it seems that the Applicant can walk a distance she estimates to be 10-15 metres into her workplace from the disabled persons bay in which she parks her car, sometimes unaided although with a limp, and otherwise with a walking stick. In written answers to questions posed by the Respondent and filed on 26 July 2022, the Applicant advised that (at that time) she could walk 100 metres without needing to have a break.[68] Under cross-examination she explained that she could not do that on a ‘bad’ day, when she would be immobilised. On the day she gave evidence, she estimated that she could walk from her chair inside her house to the mailbox and return, ‘maybe’ 40 metres in total.[69] (In her report of 3 November 2022, Occupational Therapist Ms Yanyan Li reports the Applicant’s advice that ‘she can walk 10 metres on an even surface at the most before she needs to take a rest.’)[70]
[68] Exhibit R2 Document 11, answers to Respondent’s questions 27.
[69] Transcript 56-57.
[70] Exhibit R2 Document 13, report of Occupational Therapist Yanyan Li dated 3 November 2022 47.
The Applicant bends down as little as possible, to avoid experiencing sharp pains in her pelvis from the abdominal mesh.[71] She cannot bend down on her knees, and struggles getting up by reason of a left knee replacement.[72]
[71] Transcript 27.
[72] Ibid 27.
The Applicant’s mother, who was 82 years old at the time of the hearing, lives five kilometres away.[73] The Applicant has no other family in Perth.
[73] Ibid 30.
The Applicant’s mother visits every weekend to perform domestic chores such as ironing, vacuuming and cleaning the bathroom, things the Applicant cannot do.[74] Her mother, having been the Applicant’s ‘sole carer’ since her cancer, may spend two half-days or a one full day assisting the Applicant, and ‘insists’ on helping despite her frailty and being in the early stages of dementia: at one point her mother fell over while at the Applicant’s home and broke her pelvis.[75] Her mother will either catch the bus or the Applicant may drive and pick her up.[76]
[74] Ibid 24, 26, 37.
[75] Ibid 24, 26; Exhibit R2 Document 2, Statement of Lived Experience – Dorothy Pallier dated 20 May 2022 9.
[76] Transcript 23, 32.
Without having her mother’s assistance the Applicant does what she can to keep her house as clean as possible, but does not do so adequately.[77] She cleans the floors and dusts ‘if she can’.[78] The Applicant breaks up the chore of taking her bins out to the street for collection: the night before, she takes them to her gate; the next morning she takes them to the verge.[79]
[77] Ibid 61.
[78] Ibid 36-37.
[79] Ibid 57.
The Applicant also receives help from visiting friends to make her bed and put on clean sheets, as she struggles to do so on her own.[80]
[80] Ibid 24, 26.
The Applicant washes her laundry in a front-loader machine which is low to the floor. She dries her sheets in a dryer because she cannot hang them up.[81] Other washing she hangs on a trestle clothes airer as she cannot reach up to use a clothesline anymore.[82] Apart from not being able to reach up, squeezing the pegs is difficult due to the numbness and resultant shooting pains in her hands.[83]
[81] Ibid 26.
[82] Ibid 24, 26, 28.
[83] Ibid 28.
The Applicant tries to pull weeds in the garden ‘when I can’, but only for up to 15 minutes due to pain in her hands and legs.[84] Otherwise she relies on a gardener and lawnmowing contractor to attend to garden maintenance. She cannot do any pruning.[85]
[84] Ibid 24, 29, 36.
[85] Ibid 36.
The Applicant’s neuropathy impairs her ability to dress and groom herself. She has problems tying her shoelaces, but does it eventually, although more slowly than other people.[86] Likewise, she has difficulty with clasps on her bras and other clothing, the former now being ‘sewn up’ so that she can pull them over her head.[87] She has difficulty with buttons and zippers, and has permission to wear a polo shirt to work, so that she need not try to use buttons. She can manage fastening a belt and zippering her trousers, but with difficulty.[88] While she wears a clip-on watch, her hands do not permit her to wear jewellery without experiencing great difficulty and taking up considerable time.[89] She limits the make-up she applies, partly through preference and partly through her physical limitations.[90] She uses a dressing stick.[91]
[86] Ibid 38.
[87] Ibid 38-39.
[88] Ibid 39.
[89] Ibid 40.
[90] Ibid 40.
[91] Exhibit A2b.
The Applicant uses a shower chair by reason of her instability, and must sit to wash her lower limbs, uses a long-handled shower hose to wash her feet, and needs to sit to dry herself.[92] She can wash her hair but it makes her hands hurt, and due to her neuropathy she sometimes misjudges her actions and has poked herself in the eye[93] or scratched her face.[94] Her mother used to help her complete her showering.[95] Although naturally left-handed, she uses her right, rather than left, hand and arm when toileting.[96]
[92] Ibid; Exhibit R2 Document 1, report of Occupational Therapist Peta Flynn dated 26 April 2022 4.
[93] Transcript 37.
[94] Exhibit R2 Document 1, report of Occupational Therapist Peta Flynn dated 26 April 2022 4.
[95] Ibid 4.
[96] Transcript 41.
The Applicant has used an early release of superannuation funds for home modifications related to her impairments. She installed what she describes as a ‘disabled bathroom’, with widened doors to access the bathroom and toilet,[97] to allow access with her walking frame and in case she must eventually resort to a wheelchair.[98] The Applicant changed the handles on her doors,[99] had new ‘easy access’ taps installed in her house to make it easier to turn the water on and off, and acquired a handheld shower rose to assist her showering.[100] She has also installed a wooden ramp to the front of her house to replace the steps,[101] however there is still a small step at the back door of her home which has resulted in her falling due to the numbness in her feet and toes and ‘foot drop’.[102] Other renovations included having her brother install an electric driveway gate so that she does not have to leave her car, and a remote-controlled garage door. Her brother also made a doorway from the garage into her house, so that she could go directly from there into her home.[103] She testified to having also drawn on her superannuation to purchase a newer – albeit not new – car so that she could get to medical appointments.[104]
[97] Exhibit A2b.
[98] Transcript 24.
[99] Ibid 42.
[100] Ibid 38.
[101] Ibid 29; Exhibit A2b; Exhibit R2 Document 1, report of Occupational Therapist Peta Flynn dated 26 April 2022 3.
[102] Exhibit R2 Document 1, report of Occupational Therapist Peta Flynn dated 26 April 2022 3.
[103] Transcript 58.
[104] Ibid 42.
The Applicant has ‘given up’ cooking and has had her meals delivered for the previous 18 months.[105] Turning the knobs on the oven became too difficult. She had frequently burned her fingers, and dropped meals and trays, due to pain in her hands and the ‘numbness’.[106] It had become worse over time and led to her giving up.[107] She can use a microwave oven.[108]
[105] Ibid 33.
[106] Transcript 33; Exhibit R2 Document 1, report of Occupational Therapist Peta Flynn dated 26 April 2022 5.
[107] Transcript 34.
[108] Ibid 27, 33.
The Applicant has thought from time to time that she has gripped something to pick it up, only to drop it – for example, coffee cups at work.[109] This can result from numbness or sudden pains causing her to lose her grip.[110] She says she has been stopped from using the oven at work in case she drops things.[111]
[109] Ibid 40.
[110] Ibid 32.
[111] Ibid 27.
To eat, the Applicant has special cutlery. As she cannot use her hands well, the Applicant uses ‘disability knives’ in the kitchen[112] with a special hand-grip to enable her to cut and to chop fruit, and to avoid cutting herself.[113] She has also purchased a device to enable her to open jars and cans without having to grip them.[114] She has a kettle mounted on a swivel stand that can be tipped to pour, rather than have to be lifted.[115]
[112] Ibid 24.
[113] Transcript 34; Exhibit A2b.
[114] Transcript 34.
[115] Ibid 35.
To shop, the Applicant drives to the nearby shopping centre about four blocks away but will only stay and shop if she can park in a disabled persons bay or close to the centre. She picks a small trolley, as the large ones are too heavy, and leans on it to get about. She purchases small quantities, to be able to convey them home.[116]
[116] Ibid 59, 60.
The Applicant is only able to shop for a few items at a time. She shops only fortnightly but may make several trips rather than ‘doing one shop’, due to her limited mobility[117] and because shopping is painful and exhausts her. The concrete and tiling on the shopping centre floors hurts her leg. She asks that her shopping bags not be filled to be too heavy for her, and often asks assistants to carry heavy shopping to her car.[118]
[117] Ibid 24, 35.
[118] Ibid 35.
When refuelling her car, the Applicant experiences pain in her hands and has difficulty applying enough pressure on the handle mechanism to keep the flow of petrol going so that it doesn’t ‘click off’.[119] Her car has an automatic transmission[120] and has a ball on the steering wheel so that she does not have to grip it too much.[121] She drives cautiously though back streets to visit her mother,[122] and her workplace is only a 10-minute drive away.[123]
[119] Ibid 60.
[120] Exhibit R2 Document 1, report of Occupational Therapist Peta Flynn dated 26 April 2022 5.
[121] Transcript 32.
[122] Ibid 32.
[123] Ibid 49.
In March 2023, the Applicant suffered a mini-stroke.[124] Before that she was experiencing difficulty with memory retention, concentration and learning, which she attributes to a combination of medications, peripheral neuropathy, and the distraction of chronic pain.[125] Since the stroke she believes her difficulties have increased, but is unsure to what degree; she considers that her fatigue has increased, and she is limited to doing ‘one thing at a time’.[126] The Applicant declined the opportunity to obtain further medical evidence regarding the effects upon her of her stroke.[127]
[124] Transcript 23; Exhibit A3, report of Dr Bronwen Wilson dated 3 May 2023.
[125] Transcript 45.
[126] Ibid 47-48.
[127] Ibid 72.
The Applicant has gone from formerly being very social, to staying at home and feeling isolated, at time ‘for days’ and on occasions for up to 10 days. This is due to her chronic pain and needing to rest to allow the pain to subside.[128]
[128] Ibid 28-29.
Some three years ago the Applicant had to abandon her long-standing hobby of conformation dog-showing.[129] One day she couldn’t hold the dog lead and a judge had to assist her and help her out of the show room: she was so humiliated and embarrassed that she just ‘gave it away’.[130] She has three pet Bichon Frisé dogs.[131] She has not been able to take them for walks for some eight years. A friend grooms them.[132]
[129] Ibid 22, 24, 35.
[130] Ibid 61.
[131] Ibid 35, 36.
[132] Ibid 36.
MEDICAL & OCCUPATIONAL THERAPY EVIDENCE
The medical reports in evidence confirm that the Applicant has, consequential upon her cancer surgery and treatment, suffered repeated abdominal mesh infections requiring hospitalisation; severe chronic pain and discomfort, fluctuating in intensity on a daily basis, which cannot be eased by any one specific agent; permanent painful neuropathy of the limbs, with flare-ups that prevent her from working for prolonged periods; reduced capacity to mobilise for extended periods and an inability to grip and hold objects; a higher risk of falls for the remainder of her life; and some cognitive impact, particularly on clarity of thought and concentration.[133] They detail a variety of medical problems and conditions, on occasion requiring her to take extended leave to recover, and the limited treatment that can be afforded to assist her.
[133] Inter alia, Exhibits A3, A5.
Occupational Therapist Yanyan Li assessed the Applicant at the latter’s home on 13 October 2022 and prepared a Functional Capacity Assessment report dated 3 November 2022.[134] It records that the Applicant attends the Pain Clinic at Sir Charles Gairdner Hospital for pain management and Ketamine infusion every three months and receives medical cannabis for pain management. The Applicant visits the infectious diseases outpatient clinic every two months for treatment of recurrent infection related to the abdominal mesh.[135]
[134] Exhibit R2 Document 13, report of Occupational Therapist Yanyan Li dated 3 November 2022 42-52.
[135] Ibid 42.
Ms Li summarised the Applicant’s impairments and their impact on function as:
Mobility decline including unbalanced gait and sudden losing of balance caused by pain and reduced sensation in lower limbs and feet. This has caused high falls risk to Sandra and caused reduced functional capacity in completing daily activities including self-care, domestic duties such as cleaning and gardening and social and community participation.
Reduced upper limb function including reduced range of movement and reduced fine motor skills caused by pain and reduced sensation. This has caused reduced functional capacity for Sandra in completing self-care activities including grooming, dressing, and self-management activities including cooking, laundry, working, looking after her pet and stopped her from pursuing her hobby in doing dog shows.
Cognitive decline. This has mainly affected Sandra’s capacity in doing her work.[136]
Ms Li administered the Montreal Cognitive Assessment. It revealed to her that the Applicant has mild cognitive impairment:
…with specific challenges with attention, visuospatial/executive functioning, memory and abstraction thought. This may impact on her ability to work and organising her daily life as she may not be able to identify all important information to complete her tasks at work.[137]
[136] Ibid 43.
[137] Ibid 44-45.

Ms Li also notes that the Applicant uses a walking stick and has an unbalanced gait; must rely on leaning on walls and pushing on furniture to stand, sit down, get into and out of bed, or for support; loses balance suddenly when walking; can easily trip on uneven surfaces by not lifting her feet high enough; must rest if walking more than 10 metres on an even surface due to pain in her legs and feet as well as pain in her hands from gripping a walking stick; has difficulty getting in and out of her car, and is considering getting a ‘car transfer handle’ to help herself; has reduced range of movement in her upper limbs and is not able to reach above her shoulder due to pain, and is not able to lift or carry heavy items; has numbness and reduced sensation in hands and fingers which has affected her fine motor skills; has difficulty bending down or twisting and can easily lose her balance when bending down; has increased pain from sitting for prolonged periods, and has to stand up every half hour to move her legs; does not take public transport due to the risk of falling when walking outdoors.[138] The Applicant is at high risk of falls due to losing balance suddenly, and a walking stick or frame will not provide necessary support when she loses her balance while walking.[139]
[138] Ibid 47-48.
[139] Ibid 48.
Ms Li confirms that the Applicant is not able to cook fresh meals; has difficulty using cooking ‘tools’ such as a ‘chopper for chopping’, opening jars, and cutting; is not able to properly feel heat due to reduced sensation in her hands, risking being burnt if she cooked a hot meal; is able to do ‘a bit’ tidying up around the house, but not mopping or vacuuming; that her friends ‘help’ with changing her bed sheets when they visit; is not able to garden ‘at all’, leaving her garden unattended; has difficulty shopping; cannot use the clothesline but has to use a hanging rack; and reported ‘difficulty’ hanging bed sheets and using pegs, the latter resulting in clothes being blown onto the ground.[140]
[140] Ibid 50-51.
Ms Li notes in respect of self-care that the Applicant is able to shower independently but has a ‘falls risk’ accessing the shower; ‘is not wearing make-up anymore as she cannot do it now’; has reduced her frequency of washing her hair as she ‘is not able to hold a blow dryer and use it to dry her hair’; and leans on the wall to support herself in the toilet and ‘would require use of handrails to reduce falls risk in toilet’ [sic].[141]
[141] Ibid 49.
Ms Li recommends that the Applicant’s reduced functional capacity:
‘…in completing self-care skills and self-management tasks including cooking and doing laundry can be potentially improved with support from Occupational therapist to get suitable assistive technology help her with completing those tasks’ [sic];[142]
[142] Ibid 51.
Ms Li goes on to say that the Applicant’s falls risk ‘can be reduced at home with home modification’ and her lower limb strength ‘can potentially be improved’ with physiotherapy support, which could ‘potentially improve her balance to reduce falls risk as well.’ However, her ‘reduced functional capacity in completing self-management tasks such as cleaning, and gardening is not expected to be able to improve with rehabilitation and she will require ongoing assistance with completing those tasks.’[143]
[143] Ibid 51.
Ms Li identifies ‘self-care’ tasks for which the Applicant requires ‘Moderate assistance’ – namely, where the participant ‘requires another person to provide a moderate amount of hands-on assistance to complete the task (support for 25-75% of the task)’ – to be grooming such as drying her hair after washing it. She identifies ‘self-management’ tasks for which the Applicant requires Moderate assistance to be those of cooking, shopping, hanging out laundry, looking after her pet, and working. Ms Li identifies ‘self-management’ tasks for which the Applicant requires ‘Maximal assistance’ – namely, where the participant ‘requires another person to provide hands on assistance the whole task as they are unable to perform the task (support for 75-100% of the task)’ – as those involved in house cleaning and gardening.[144]
[144] Exhibit R2 Document 13, report of Occupational Therapist Yanyan Li dated 3 November 2022 50-51.
Ms Li, while referring to the potential benefits of ‘suitable assistive technology’ and ‘home modification’, only notes that the Applicant utilises a variety of aids such as pen grips, a roller computer mouse, a modified computer keyboard and arm support and special chair, a modified knife for cutting fruit, and would require walking aids and toilet handrails. She does not expand upon what other such assistance might improve the Applicant’s ability to perform necessary tasks.
The Tribunal also had before it the Occupational Therapy NDIS Eligibility Report by Occupational Therapist Peta Flynn under the letterhead of MSWA and dated 26 April 2022.[145]
[145] Exhibit R2 Document 1, report of Occupational Therapist Peta Flynn dated 26 April 2022 1-8.
This report reinforces Ms Li’s observations and more fully details the impact of the Applicant’s condition upon her and her functioning. Ms Flynn recommends that the Applicant could receive benefit from the following:
(a)In respect of Mobility, ‘minor home modifications to install ramps and rails, a falls pendant/watch, physiotherapy to assist with maintaining her balance and strength and mobility and falls education to reduce her risk of serious harm from a fall due to her falls history’;[146]
(b)In respect of Personal Activities of Daily Living (PADL), ‘low-cost assistive technology and education to support her completion of personal care tasks’, ‘a review of her bed mobility equipment and sleep positioning to reduce her fatigue symptoms’, and ‘a speech pathology review due to her reports of swallowing difficulties’;[147]
(c)In respect of Domestic Activities of Daily Living (DADL), ‘assistance to manage her home with meal preparation support, cleaning and laundry assistance and gardening to maintain her home to an acceptable condition, so that she does not exacerbate her pain symptomology and her mental well-being’ [sic], ‘low-cost aids such as dressing aids for her lower limbs, buttons aids, a trolley to carry items around her home, laundry handyline/trolley for small items of washing’, and a ‘review of her kitchen to seek alternatives to her under bench oven so she can re-engage in activities to improve her mental health like cooking’;[148]
(d)In respect of Transport, ‘a suitably qualified Driving Assessment Occupational Therapist to assess her driving capacity and provide recommendations for any car adaption necessary to support [her to] continue with this activity’;[149]
(e)In respect of Social Interaction, ‘support to engage in valued and meaningful roles and appropriate psychosocial activities in her community’;[150]
(f)In respect of Self-management and Learning, ‘assistance in her workplace to meet the cognitive demands as per recommendations from her medical specialists’, and ‘Occupational Therapy or Psychological support for additional strategies such as environment considerations, mindfulness and pain management to support her condition and daily adaptions she is required to make’.[151]
[146] Ibid 3.
[147] Ibid 4; the Applicant ‘reported difficulty with swallowing, and she will often cough after drinking due to a feeling of things being “stuck”, as a result she uses a straw when drinking’. This was not the subject of further evidence at the hearing and not raised as a reduction of her capacity to drink or eat.
[148] Ibid 5.
[149] Ibid 6.
[150] Ibid 6.
[151] Ibid 7.
Specific items of equipment recommended in the report were:[152]
(a)‘Electric lift & recline chair’;
(b)‘Electric bed, mattress and accessories’;
(c)‘Minor home modifications for rails at garage, bathroom, and patio access’; and
(d)‘Low cost assistive technology … to improve independence and safety with PADL and DADL tasks including falls pendant alarm, trolleys, laundry handy line, dressing aids and adaptive kitchen aids and eating utensils’.
[152] Ibid 7.
CONSIDERATION
The Applicant was confronted with some difficulties presenting her case. As noted, on the morning of the hearing the Applicant received advice that a representative from MSWA who had previously assisted her would not be able to help her further or attend, something which appears to have taken the Applicant by surprise. The evidence of the Applicant’s impaired cognitive skills – for example, her reliance on memory prompts such as questions – is consistent with her not drawing to the Tribunal’s attention aspects of the medical and other documentary evidence before the Tribunal that could have promoted her case.
My impression of the Applicant is that she was an honest and forthright witness who explained her difficulties and limitations without exaggeration or embellishment; indeed, if anything, she tended to be modest about her limitations, which are expanded upon in other evidence before the Tribunal. She impressed me as someone who has endured the challenges to her health and life with stoicism, and has endeavoured to lead an independent and productive life and remain financially independent.
At one point when asked if she experienced pain or difficulties with certain activities, the Applicant testified:[153]
Sometimes. But you get – you have to learn to deal with it. You know you’ve got it for life. So you just get through it like I get through every day at work now. It gets harder but you’ve got to keep going, one foot in front of the other for as long as you can. So I just deal with it. I live with it every day.
When asked under cross-examination about whether she can refuel her car, she testified:[154]
Yes, I do. There’s no one else to do it, so I have to. Mum doesn’t drive anymore, and I wouldn’t get her to do it anyway. But because I’m by myself, I just have to. You’ve got to do some things. You’ve got to try and keep going, don’t you.
…
I mean, I’m not as disabled as other people. I’m not, you know, I’m not in a – I’m not – I see some people at the hospital and you’ve got to feel yourself blessed, really.
[153] Transcript 38.
[154] Ibid 60.
The Applicant’s testimony revealed that she has a strong work-ethic, and a desire not to be a draw on the community, to remain occupied, and to be a productive member of society. She displayed a commitment to remaining positive and doing the best she can despite the circumstances in which she finds herself. She does what she can but is being worn down. The Applicant has limited means but, conscious of her limitations, the risks posed by her condition, and the inevitable deterioration of her condition, she has drawn on her superannuation to modify her home to enable her to live there more safely and to facilitate her living alone with autonomy. The level of informal support she has received from her mother, family members and friends to undertake certain tasks reflects her level of reduced capacity to perform those tasks herself. The informal support upon which she relies cannot be guaranteed to continue.
Should the Applicant be given access to the Scheme, the question of reasonable and necessary supports is one for the NDIA in due course. From the Applicant’s perspective, having made home modifications and purchased aids to assist herself, she only mentioned a hope to obtain from the Scheme some home assistance, and transport to get to hospital on Mondays.[155]
[155] Ibid 42-43.
On the evidence available to the Tribunal, the Respondent’s concession that the Applicant meets the Scheme entry criteria in section 24(1)(a), (b) and (d) was reasonable and proper.
It remains for the Tribunal to consider whether the Applicant meets the Scheme entry criterion prescribed by section 24(1)(c).
FUNCTIONAL CAPACITY CRITERIA
I accept that the question of whether an impairment or impairments result in a ‘substantially reduced’ functional capacity in one of the six specified activities is a high one, and that an inability to undertake one or more without assistance is not necessarily sufficient.
The Respondent seems to accept that the Applicant has a number of restrictions resulting from her impairments, particularly in tasks related to mobility and self-care, but contends that they do not amount to a substantially reduced functional capacity for the purposes of section 24(1)(c). The Respondent contends that there are no ‘significant gaps’ in the Applicant’s capacity to maintain her general health, safety and well-being, her ability to move about her home, get in and out of bed and chairs, leave her home, and mobilise in the community.[156]
[156] Respondent’s Statement of Facts, Issues and Contentions dated 28 March 2023 at [29]; Transcript 79; Madelaine (n 3) at [121]; FBJV and National Disability Insurance Agency [2021] AATA 913 at [159].
In substance, the Respondent submits that although from time-to-time she may require extra time, pacing strategies, or the use of ‘commonly used’ items, the Applicant is able to participate in all six activities specified by section 24(1)(c).[157]
[157] Transcript 74.
The Respondent has provided me with a variety of examples where the Tribunal has considered similar issues and circumstances to those before me. While not binding on me, it is important that there be consistency in the way the Tribunal deals with matters coming before it for review, and some of the matters referred to me have features in common with the present case. I must, however, come to my own assessment of the facts and the degree to which the functional capacity of the Applicant is affected by her impairments in the six activities specified by section 24(1)(c).
The Rules provide as follows regarding substantially reduced functional capacity:
5.8An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities — communication, social interaction, learning, mobility, self-care, self-management … — 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.
Rule 5.8 is a deeming provision. If a person’s circumstances are caught by its terms, the person must be taken to have a substantially reduced functional capacity for the purposes of section 24(1)(c).[158]
[158] Mulligan v National Disability Insurance Agency [2015] FCA 544 at [66]-[67] per Mortimer J.
Rule 5.8(a) deems that an impairment results in a substantially reduced functional capacity if the person is unable to participate ‘effectively or completely’ in the activity, or perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, non-commonly used equipment, or home modifications.[159] ‘Completely’, however, does not import ‘wholly’ or ‘perfectly’.[160] A person will not necessarily be deemed to have substantially reduced functional capacity simply because one task is unable to be completed without assistive technology. Further, ‘[u]ndertaking a task … differently to others will not necessarily mean a person cannot participate effectively or completely in an activity.’[161]
[159] National Disability Insurance Agency v Foster [2023] FCAFC 11 (‘Foster’) at [66].
[160] Ibid at [86].
[161] Ibid at [66], [67].
It remains for the decision-maker to assess the degree to which the person can participate in the activity.[162]
[162] Ibid at [83], [88].
The Applying Guideline contains the following guidance for assessing functional capacity:[163]
[163] Applying Guideline 8-9.
Your permanent impairment needs to substantially reduce your functional capacity or ability to undertake activities in one of the following areas:
·Communicating – how you speak, write, or use sign language and gestures, to express yourself compared to other people your age. We also look at how well you understand people, and how others understand you.
·Socialising – how you make and keep friends, or interact with the community, or how a young child plays with other children. We also look at your behaviour, and how you cope with feelings and emotions in social situations.
·Learning – how you learn, understand and remember new things, and practise and use new skills.
·Mobility, or moving around – how easily you move around your home and community, and how you get in and out of bed or a chair. We consider how you get out and about and use your arms or legs.
·Self-care – personal care, hygiene, grooming, eating and drinking, and health. We consider how you get dressed, shower or bathe, eat or go to the toilet.
·Self-management (if older than 6) – how you organise your life. We consider how you plan, make decisions, and look after yourself. This might include day-to-day tasks at home, how you solve problems, or manage your money. We consider your mental or cognitive ability to manage your life, not your physical ability to do these tasks.
Your impairment substantially reduces your functional capacity if you usually need disability-specific supports to participate in or complete the above tasks.
These disability-specific supports include:
·a high level of support from other people, such as physical assistance, guidance, supervision or prompting.
·assistive technology, equipment or home modifications that are prescribed by your doctor, allied health professional or other medical professional.
To help us decide if you’re eligible, we need to know your capacity and where you need more help. We get this information from your NDIS application.
If you have more than one permanent impairment we will consider them together, to see if they substantially reduce your functional capacity.
We consider how you’re involved in different areas of life like home, school, work and the community, and how you carry out tasks and actions. We also consider any other factors that may impact your day-to-day life.
Your needs might go up and down each day or each month. Progressive Multiple Sclerosis (MS) can be a good example of this. We consider your ability over time, taking into account your ups and downs.
However, the Guidelines
…are merely administrative “tools”. They do not provide a legislative definition of the relevant activities. They do not control the meaning of the phrase “substantially reduced functional capacity”. Nor do they alter the threshold criteria for when a person meets the disability requirements as specified in s 24(1) of the NDIS Act. They are not the equivalent of a statutory provision and are not to be construed in like manner … Rather, they provide non-exclusive content to the range of “tasks and activities” (as referred to in r 5.8) that comprise the “activities” the NDIA is required to consider, consistent with the legislative history, context, and purpose.[164]
[164] Foster (n 159) at [62].
Accordingly, the Guidelines cannot define or limit what may constitute the activities specified by section 24(1)(c) or prescribe what amounts to a substantially reduced functional capacity in those activities. By operation of rule 5.8 if an impairment results in an inability to participate effectively in the activity without assistive technology, the person is deemed to have substantially reduced functional capacity to undertake that activity.[165]
[165] Ibid at [54].

This raises the question of what constitutes ‘assistive technology’. Assistive technology is not defined in the NDIS Act or Rules or the Applying Guideline. However, the AT Guideline refers to a World Health Organisation universal definition of assistive technology, and then goes on to advise that:[166]
[166] AT Guideline 2.
Assistive technology is equipment or devices that help you do things you can’t do because of your disability. Assistive technology may also help you do something more easily or safely. Assistive technology will reduce your need for other supports over time.
This could be small things like non-slip mats, or special knives and forks. It could be big things like wheelchairs and powered adjustable beds. It also could be technology like an app to help you speak to other people if you have a speech impairment.
Not all equipment or technology you use is assistive technology. Many people use some equipment as part of their lives, for example, a radio to listen to music, or a standard microwave oven to cook food.
Assistive technology is only the equipment you need because it helps you do things that you normally can’t do because of your disability. It includes items that:
·mean you need less help from others
§help you do things more safely or easily
§help you to keep doing the things you need to do
§allow you to do tasks independently
§are personalised for you.
Examples of assistive technology referred to in the AT Guideline include continence products,[167] non-slip bathmats[168] and other non-slip mats;[169] walking sticks;[170] a shower stool or chair;[171] knives, forks or other eating utensils;[172] handrails;[173] mainstream computer technology;[174] and beds adjustable while occupied.[175]
[167] Ibid 6.
[168] Ibid 6, 22.
[169] Ibid 2.
[170] Ibid 6.
[171] Ibid 6, 22.
[172] Ibid 2, 22.
[173] Ibid 22.
[174] Ibid 22: presumably not only equipment, but software.
[175] Ibid 2, 22.
The evidence is that the Applicant, at her own expense, has acquired a variety of items to help her to do things she otherwise couldn’t do, help her do things more safely and easily, help her keep doing things she needs to do, and allow her to do things independently. These include:[176]
(a)Several strategically located walking sticks to give her support and enable her to walk any worthwhile distance without stumbling or falling;
(b)A Zimmer frame which she uses when she is too incapacitated by pain and unsteadiness to rely on a walking stick;
(c)Pen-holders, to assist her being able to write;
(d)A dressing stick, to enable her to dress;
(e)Knives and other kitchen utensils to enable her to cut and eat food and to do so safely;
(f)A specially mounted tilting kettle to enable her to heat and use hot water;
(g)Non-slip mats in her home, to reduce the risk of falling; and
(h)A shower chair and long-handled showering device, to enable her to wash her body and hair.[177]
[176] Exhibit A2b; Transcript 17.
[177] Exhibit R2 Document 1, report of Occupational Therapist Peta Flynn dated 26 April 2022 4; ‘she has to sit to wash her lower limbs and uses a long-handled shower hose to wash her feet … she needs to sit to dry herself following her shower’.
Furthermore, having regard to her physical limitations, the Applicant’s employer has provided specialised, albeit mainstream, office equipment to enable her to perform office work including dictation software, hands-free means to use a telephone, an armrest, a chair, and a roller-mouse and keyboard.
The Applying Guideline purports to qualify rule 5.8 by referring to assistive technology, equipment or home modifications ‘that are prescribed by your doctor, allied health professional or other medical professional’.[178]
[178] Applying Guidelines 8-9.
Neither party submitted that the Guideline was inconsistent with the NDIS Act or the Rules. That is unsurprising in the circumstances, given that it is the Respondent’s Guideline and operates in the Respondent’s favour, and the unrepresented Applicant was not learned in the law (and may not even know of its existence).
However, as noted, the Agency’s operational guidelines cannot be inconsistent with the Scheme’s legislation, and rule 5.8 provides no such qualification.
In any event, while perhaps not formally prescribed, the Applicant has employed aids that have been recommended by her medical practitioners and occupational therapists.
By way of example, Dr Bronwen Wilson advises in her letter of 21 April 2021 regarding the Applicant’s planned return to work that the Applicant ‘would benefit from keyboard and mouse to be ergonomically assessed. She also needs an appropriate chair and a stool for her feet.’[179] In her letter of 4 October 2021, Dr Wilson advises that the Applicant’s bathroom ‘requires modification to place a shower chair and the work was commenced and not finished so [she] needs the work completed to be able to use the bathroom.’[180]
[179] Exhibit R1 T6, letter from Dr Bronwen Wilson dated 21 April 2021 27.
[180] Exhibit R2 Document 7, letter from Dr Bronwen Wilson dated 4 October 2021 22.
Ms Li refers to the Applicant’s reduced functional capacity in completing self-care and other tasks, and mentions the installation of handrails and bathroom modifications, and otherwise recommends the employment of assistive technology to complete the tasks of cooking and laundry. She notes the Applicant’s reliance on a walking stick to walk about, although it would not protect her from loss of balance occasioned by her condition.[181]
[181] Paragraphs 67-71 supra.
In addition to her specific recommendations,[182] the report from Ms Flynn assumes the importance of the Applicant having resort to a walking stick to walk, stand and balance, and refers to Occupational Physician Dr Sandra Gongora having recommended:
(a)to the Applicant’s employer, that for the Applicant to ‘complete her work tasks she be provided with Dragon software to dictate and manage her computer, to reduce exacerbation of her symptoms and allow her to complete repetitive fine motor tasks’;[183] and
(b)‘the permanent sue [sic: ‘use’] of a walking stick or walker to prevent falls’,[184] and that she ‘ambulate with a mobility device such as a walking stick or walker’.[185]
[182] Paragraphs 75-76 supra.
[183] Exhibit R2 Document 1, report of Occupational Therapist Peta Flynn dated 26 April 2022 2; unfortunately, Dr Gongora’s report was not produced in evidence.
[184] Ibid 2.
[185] Ibid 3.
In my assessment, notwithstanding any lack of a ‘formal’ prescription, there is sufficient evidence from her doctors and allied health professionals to substantiate the importance of the Applicant’s assistive technology and home modifications to her being able to perform key tasks comprising the activities of mobility and self-care. I think it reasonable to infer that had the Applicant not already availed herself of them, her doctors and other health professionals would prescribe, or at least strongly recommend, that she acquire and use them.
I am satisfied that were it not for her walking aids, the Applicant would be able to walk for no more than short distances – and frequently not even short distances – without unreasonable risk, due to her unsteadiness from peripheral neuropathy and the possibility of sudden acute pain immobilising and unbalancing her. (I also observe that walking from time-to-time unaided and unaccompanied from inside her home to a letterbox and back, or inside an office workplace, is a different proposition to walking unaided and unaccompanied in public and around shopping centres on potentially unfamiliar and uneven ground.)
I am also satisfied that without the several other items of assistive technology she has acquired or with which she has been provided the Applicant would not be able to effectively perform the tasks of feeding herself, dressing herself, washing herself, or using a computer or telephone, by reason of her inability to grasp objects or to grip them for any worthwhile period of time without the pain and fatigue consequent upon doing so incapacitating her or putting her at risk of harm.
I am also satisfied that the lack of a suitable adjustable bed, forcing the Applicant to resort to sleeping in a recliner chair, contributes to her inability to have a refreshing night’s sleep, and to the limitations she experiences because of her impairment on her ability to effectively and safely perform tasks that form part of some specified activities. This is particularly so with respect to her mobility and self-care when in pain and fatigued.
Furthermore, it follows by operation of rule 5.8 that if an impairment results in an inability to participate effectively in one of the specified activities without home modifications, the person is deemed to have substantially reduced functional capacity to undertake that activity.[186]
[186] Foster (n 159) at [54].
The NDIA’s Home Modification Guideline dated 11 October 2022 gives as examples of relevant home modifications a ramp for wheelchair access,[187] wider doorways,[188] and structural and non-structural changes to bathrooms.[189]
[187] Home Modification Guideline 17.
[188] Ibid 17.
[189] Ibid 10, 17.
The Applicant has at her own expense modified her home by installing:
(a)A ‘disabled’ bathroom to allow for access with a walking frame or wheelchair;
(b)Easy access taps and, in the bathroom, a handheld shower device;
(c)A ramp to her front door in place of steps;
(d)An electric driveway gate;
(e)A remote-controlled garage door; and
(f)Doorway access directly from her home into the garage.
The fact of these home modifications does not settle the question of whether the Applicant’s functional capacity is substantially reduced. However, her having spent limited funds she has at her disposal on such modifications is consistent with her facilitating her ability to overcome or minimise her functional limitations and to do what she can as best she can.
I am satisfied on the evidence available to me that the installation of ‘easy access taps’ enables the Applicant perform self-care tasks to some degree of effectiveness, such as obtain water generally and to be able to wash herself. The electric driveway gate, remote controlled garage door, and direct access to her house from her garage, enable her to limit the strain and risk of getting out of and back into her car more than necessary, and walking more than she may be able to cope with.
Lastly, rule 5.8(b) deems that an impairment results in a substantially reduced functional capacity if 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’.
The Applicant’s limited mobility and inability to grasp objects without the pain and fatigue consequent upon doing so incapacitating or putting her at risk of harm, makes her dependent upon assistance for home care activities directly related to her ability to self-care: such as vacuuming her home, washing the floors, ironing her clothes, changing the sheets on her bed, and cleaning her bathroom. The Applicant regularly relies upon and receives assistance from her mother and friends, and without that assistance the job is either left undone or requires substantially greater time and effort on her part. Significantly, her inability to cook meals means that she relies on others to prepare and deliver them to her.
I am satisfied that the Applicant, without the assistive technology, home modifications, and assistance from others described above would not be able to perform the tasks I have identified. It remains to consider these against the activities specified by section 24(1)(c).
Section 24(1)(c)(i) – Communication
The Applying Guideline describes ‘Communicating’ as:
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.
The Respondent submits that the Applicant can communicate verbally and in writing, comprehend written and verbal content, and communicates with people socially, in the course of her work and otherwise.[190]
[190] Transcript 75.
The Applicant presented as intelligent, educated, and articulate. Notwithstanding her cognitive impairment, she was able to participate well in the Tribunal hearing and capable of exchanging and receiving information. There is no evidence that her ability to hear or speak is impaired.
I could not discern a substantially reduced functional capacity in this respect.
Section 24(1)(c)(ii) – Social interaction
The Applying Guideline describes ‘Socialising’ as:
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.
The Respondent accepts that the Applicant socialises less and no longer participates in her hobby of dog shows. However, the Respondent contends that she is sociable in the workplace, engages with her family, attends events, and has friends whom she speaks to and visits. The Respondent submits that there is no evidence that the Applicant cannot make new friends or behave within the social limits accepted by others.[191]
[191] Ibid 76.
I agree that there is no evidence that the Applicant is unable to properly interact or engage with family, friends, work colleagues, or people in the community. The Applicant appears to have supportive family and friends with whom she speaks and visits and who visit her. Albeit with difficulty, the Applicant attends her workplace by choice, where she appears to enjoy good relations with colleagues.
However, the evidence is also that the Applicant feels, and is, socially isolated. Her impairments make it difficult for her to maintain as active a social life as she enjoyed in the past and limit her social scope. Her peripheral neuropathy, chronic pain, vulnerability to acute and immobilising pain, and resultant immobility and fatigue, limit her ability to undertake activities in the community and socialise outside her home. Her going on social outings – such as a concert – puts her at a significant risk of falling and injury. Her social activities outside her home appear largely limited to serving specific functions: going to work, shopping at her local shopping centre, visiting her mother, and attending medical appointments.
A further facet of social interaction, to my mind, is employment and the capacity for employment.
The Applicant currently enjoys employment. Her employer has been accommodating. However, she has trouble learning new tasks and retaining learned skills and information. She needs to be reminded of even low-level and routine information that has been conveyed to her, to the extent of having to be retrained by colleagues. She experiences sudden and debilitating levels of pain that can render her incapable of functioning for significant periods of time. She has had to take, and continues to take, considerable time off work, to the extent that she has exhausted her personal leave and now takes leave without pay. Her neuropathy has resulted in physical weakness that limits her ability to ambulate, puts her at constant risk of falling, and limits her use of even general-issue office equipment and household appliances. Special equipment has had to be made available to her at work, and at home replicating that at her workplace. Her cognitive limitations render her prone to making mistakes, such as errors in emails she is required to write as a routine part of her duties.[192]
[192] Exhibit R2 Document 1, report of Occupational Therapist Peta Flynn dated 26 April 2022 2.
That her employer has attempted to accommodate her physical and cognitive impairments is commendable, and it appears that she is a loyal and committed employee. She presently may not be at a known risk of losing her employment with the government agency with which she has served with dedication for almost half of her working life.[193] However, it is reasonable to infer that were she to lose her current job her combination of physical and cognitive impairments would be a significant impediment to her being able to find other remunerative employment.
[193] Exhibit R2 Document 5, Statement of Lived Experience – Sandra Pallier dated 22 July 2022 14.
The question is whether the reduction in her functional capacity to have social interaction, including in having remunerative employment, is ‘substantial’.
I am satisfied that without the accommodations that have been and continue to be made by her employer, she would not be able to effectively engage in the tasks which are necessary as part of her employment, a significant component of her remaining social interaction. Nevertheless, on balance and if one focuses on her ability to interact socially and notwithstanding her inability to pursue a favoured hobby, I am not satisfied that her functional capacity for social interaction has been substantially reduced.
Section 24(1)(c)(iii) – Learning
The Applying Guideline describes ‘Learning’ as:
how you learn, understand and remember new things, and practise and use new skills.
The Respondent contends that the Applicant has only a mild cognitive impairment, predominantly due to discomfort and pain. Notwithstanding the Applicant’s evidence of a decline since March 2023 following her small stroke, the evidence of struggling with retaining information and learning new skills and memory did not rise to the threshold of a substantial reduction of functional capacity in learning. The Scheme was concerned with basic functionality, not higher order thinking.[194] She was in full-time employment and at no known risk of losing employment.[195] She has changed roles at work and learned new skills to perform different duties, although it took her longer to do so than others.[196]
[194] Madelaine (n 3) at [93]-[95].
[195] Transcript 74.
[196] Ibid 75.
I have already traversed the issue of the Applicant’s current employment. So far as the Applicant’s capacity to learn is concerned, I am satisfied that having regard to the limitations evidenced by her and in the reports of occupational therapists Flynn and Li, that her ability to process information with speed, her attention span, her concentration, and her memory, ability to absorb new information, and learn new skills have all been reduced.
I am satisfied that her reduced capacity is marked and would affect, if not be such as to prejudice, her obtaining alternative or future employment. But on balance I am not satisfied that her capacity to learn, understand, assimilate, and apply new knowledge and skills is presently reduced to a degree that can be considered ‘substantial’.
Section 24(1)(c)(iv) – Mobility
The Applying Guideline describes ‘Mobility’ as:
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 accepts that the Applicant experiences a reduced capacity by reason of her physical impairments and may take some additional time to ‘mobilise’, which I take to mean walk from place to place and otherwise get about her home, workplace and in public. The Respondent accepts that the Applicant requires resort to a walking stick or aid such as a Zimmer frame or other support. However, it contends that she can mobilise effectively and adequately without assistance for the purpose of general day-to-day activities in the home, at work, and in the community.[197]
[197] Ibid 77.
The Respondent asserts that any aids that the Applicant relies upon – including the walking stick – are ‘commonly used’ items, that are generally accessible and can be used without complex or specialised customisation or installation, are relatively simple to use, and are inexpensive, and not such as to fall within the scope of rule 5.8(a) of the Rules.[198]
[198] Ibid 74; Rooney and National Disability Insurance Agency [2021] AATA 3523 at [18]-[27].

I have already addressed the subject of what constitutes assistive technology and the Applicant’s reliance upon it. I do not accept that the Applicant’s walking sticks and Zimmer frame are not assistive technology, notwithstanding that they may be ready availability, relatively simple to use, and inexpensive – the NDIA’s operational guideline considers them to be examples of assistive technology. The qualification ‘other than commonly used items such as glasses’ in rule 5.8(a) applies to ‘equipment’, not to ‘assistive technology’, a construction consistent with the examples of assistive technology in the AT Guideline.
This is not to say that a person’s reliance on an item of assistive technology means that they have a substantially reduced functional capacity to perform an activity specified by section 24(1)(c). Each case must be considered having regard to its circumstances and the extent that the person relies upon the item to enable them to effectively undertake a specified activity, or perform tasks or actions required to undertake or participate effectively in the activity.
Having considered the evidence of her peripheral neuropathy and associated vulnerability to pain and instability, and the extent to which her stability and mobility rely upon her use of walking sticks and a Zimmer frame (and other ad hoc physical supports such as furniture and walls), I am satisfied that the Applicant has a substantially reduced functional capacity to be mobile.
Section 24(1)(c)(v) – Self-care
The Applying Guideline describes ‘Self-care’ as:
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 submits that:
(a)the evidence demonstrates that the Applicant is generally independent with all self-care tasks, including showering, dressing, grooming, toileting, eating, drinking, and domestic tasks around the house;[199]
(b)there is no evidence that the Applicant requires assistive technology;[200]
(c)the Applicant can groom herself adequately, albeit with difficulty;[201]
(d)the Applicant lives alone and completes all her activities of daily living independently, albeit with some informal supports; and[202]
(e)the Applicant can perform ‘most’ tasks with additional time, pacing and modified strategies.[203]
[199] Transcript 78.
[200] Ibid 79.
[201] Ibid 78.
[202] Ibid 74.
[203] Ibid 78-79.
The Respondent submits that the only two tasks for which the Applicant is currently receiving support are ironing and vacuuming, for which she receives informal support from her mother. However, when her mother is unable to do them, the Applicant does what she can by pacing herself, or the task does not get done.[204] To undertake the task of laundry, the Applicant has implemented strategies, such as not using a laundry basket or clothesline, but takes trips to hang up washed items individually on an airer, demonstrating an independent ability to perform the task.[205]
[204] Ibid 79.
[205] Ibid 79.
I have already discussed the Applicant’s reliance upon items like special-grip kitchen utensils, non-slip mats, a shower chair, a dressing stick, a tilting kettle, and other devices. In my view they are assistive technology within the scope of rule 5.8(a), which the Applicant relies upon to enable her to prepare and eat food, maintain stability, shower and wash her hair, dress herself, and obtain hot water. The Agency’s AT Guideline considers at least the first three items to be examples of assistive technology.[206] In my assessment, the Applicant requires this assistive technology to undertake or participate effectively or completely in the activity of self-care.
[206] Paragraphs 94-95, 135-137 supra.
I also note the evidence of the Applicant’s reliance on the delivery of externally prepared meals in the light of her inability to prepare and cook meals for herself.
The evidence is also that although the Applicant does what she can herself, her limitations are such that she has relied upon her elderly mother to perform many domestic chores such as ironing and vacuuming, and her friends to change her bed linen. Although the fact of someone relying on informal support of this character may not be conclusive of a substantially reduced functional capacity to perform these tasks oneself, in this case it is consistent with the Applicant’s endeavours to be self-reliant and only resorting to assistance when it is essential. Even the Respondent seems to concede that without assistance certain self-care domestic tasks are left undone.
In my assessment, were it not for the several physical aids, the delivery of externally prepared meals, and the informal support she has relied upon from her mother and others, the Applicant would not be able to adequately care for herself: there would be ‘gaps’ in the Applicant’s capacity to care for herself through being able to properly and safely feed and wash and groom herself, and keep her home clean.[207]
[207] Madelaine (n 3) at [121].
Along with her reduced capacity with respect to mobility, I am satisfied that the Applicant has a substantially reduced functional capacity for self-care, ameliorated to some degree by her use of assistive technology and other aids and the support of others.
Section 24(1)(c)(vi) – Self-management
The Applying Guideline describes ‘Self-management’ as
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.
The Respondent submits that the Applicant can organise and is in control of her life, being able to arrange her own medical appointments, pay bills, and that she has a system for reminding herself of matters which she must recall.[208]
[208] Transcript 76.
As already mentioned, the evidence supports the Applicant having a cognitive impairment, but I am not satisfied that her mental or cognitive functioning is so impaired as to substantially reduce her ability to organise or manage her life.
Section 24(1)(e) – likely to require support under the National Disability Insurance Scheme for the person’s lifetime
In the light of the Applicant’s permanent impairments the Respondent, at the conclusion of the hearing, quite properly conceded that if the Tribunal was satisfied that the requirements of section 24(1)(c) were met, it would be likely that section 24(1)(e) would be satisfied.[209]
[209] Ibid 80-81.
There is no evidence before the Tribunal that any supports the Applicant may require would be better or more appropriately provided by some means other than the Scheme. From the inquiries she had made, the Applicant was not eligible for such limited services as were available due to her currently working and having no dependants.[210]
[210] Ibid 62, 68.
The assistive technology the Applicant has used, the home modifications she has had carried out, and the other – albeit informal – supports that the Applicant has received, are of a character that would generally come within the Scheme.
I am satisfied that the Applicant is likely to require support under the Scheme for her lifetime.
EARLY INTERVENTION REQUIREMENTS
As to early intervention requirements, the Rules provide as follows in deciding whether early intervention supports are likely to benefit the person:
6.9In deciding whether provision of early intervention supports is likely to benefit the person in the ways mentioned in [section 25(1)(b) and (c)], it is expected that the CEO would consider:
(a)the likely trajectory and impact of the person's impairment over time; and
(b)the potential benefits of early intervention on the impact of the impairment on the person's functional capacity and in reducing their future needs for supports; and
(c)evidence from a range of sources, such as information provided by the person with disability or their family members or carers. The CEO may also in some cases seek expert opinion.
The Respondent accepts that the Applicant satisfies section 25(1)(a) of the NDIS Act, having permanent physical and cognitive impairments, but submits that there is no evidence before the Tribunal from treating medical practitioners that identify any specific early intervention supports that would result in the benefits specified by sections 25(1)(b) and (c).
The Respondent contends that the Applicant’s condition and impairments are long-standing and relatively stable. However, a comparison of reports of her functional capacity in 2022 against, for example, those from 2021, demonstrates a decline in some abilities,[211] as does her needing to abandon her hobby of conformation dog-showing. The evidence, including that of the mini-stroke, supports an inference that the Applicant’s condition will not remain static, let alone improve, over time. In my view, her limitations will increase to the point where she will require greater assistance. However, I accept that the Tribunal has insufficient evidence before it to be satisfied that the provision of any early intervention supports would have significant impact on the course of her impairments or reduce her future need for supports in relation to her disability, as required by section 25(1)(b).
[211] Exhibit R2 Document 1, report of Occupational Therapist Peta Flynn dated 26 April 2022; Document 14, report of Neuropsychologist Dr Judy Tang dated 5 December 2021 135-153; Document 14, report of Occupational Therapists Ariell Evans and Vibha Balram dated 8 June 2021 127-130.
In the circumstances and having regard to my views of her functional capacity, I need not consider section 25 further.
CONCLUSION
Overall, I am satisfied that the Applicant meets the access criteria in section 24 of the NDIS Act. Her physical and cognitive impairments, arising from peripheral neuropathy and cancer-related surgery, and associated chronic and acute pain, have substantially reduced her functional capacity in the activities of mobility and self-care.
Accordingly, I set aside the decision under review and remit the matter to the Respondent to be reconsidered in accordance with a direction that the Applicant meets the disability requirements in section 24, and hence the access criteria in section 21(1), of the NDIS Act.

I certify that the preceding 160 (one hundred and sixty) paragraphs are a true copy of the reasons for the decision herein of Administrative Appeals Tribunal

........................... [Sgd].............................................
Associate
Dated: 7 February 2024

Date(s) of hearing: 21 July 2023

Applicant: In person

Counsel for the Respondent: Ms Emma Carnell

Solicitors for the Respondent: HWL Ebsworth

[2024] AATA 157

7 February 2024

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Appeal

Date(s) of hearing:	21 July 2023
Applicant:	In person
Counsel for the Respondent:	Ms Emma Carnell
Solicitors for the Respondent:	HWL Ebsworth