Paul and National Disability Insurance Agency (NDIS)
[2025] ARTA 312
•2 April 2025
Paul and National Disability Insurance Agency (NDIS) [2025] ARTA 312 (2 April 2025)
Applicant:Gordon Paul
Respondent: National Disability Insurance Agency
Tribunal Number: 2022/9078
Tribunal: General Member Williams
Place: Hobart
Date: 2 April 2025
Decision:The Tribunal sets aside the decision under review pursuant to section 105 of the Administrative Review Tribunal Act 2024 (Cth) and decides in substitution that Mr Paul meets the disability requirements for access to the National Disability Insurance Scheme as set out in section 21 of the National Disability Insurance Scheme Act 2013 (Cth).
[SGD]
……………………………..
General Member A. Williams
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – access request – whether access criteria under s 21 of the National Disability Insurance Scheme Act 2013 (Cth) are met – “disability requirements” under s 24 – Applicant has disability arising from various physical and psychosocial impairments – issues – whether impairments have resulted in substantially reduced functional capacity in the area of social interaction – whether applicant requires lifetime NDIS support – decision under review set aside and substituted
Legislation
Administrative Review Tribunal Act 2024(Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)Cases
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] 24 ALR 577
G v Minister for Immigration and Border Protection [2018] FCA 1229Mulligan v National Disability Insurance Agency [2015] FCA 544
National Disability Insurance Agency v Davis [2022] FCA 1002
National Disability Insurance Agency v Foster [2023] FCAFC 11Secondary Materials
Becoming a Participant - Applying to the NDIS Guidelines (‘the Access Guidelines’).
Statement of Reasons
INTRODUCTION
This application regards whether Mr Gordon Paul henceforward called ‘Mr. Paul’ or ‘the Applicant’ should be granted access as a participant in the National Disability Insurance Scheme (‘NDIS’). Mr Paul seeks review of a decision made on 7 October 2022 by a reviewer under ss 100(6) of the National Disability Insurance Scheme Act 2013 (Cth) (‘NDIS Act’) (‘Decision under Review’).[1] This decision confirmed an earlier decision by the Respondent, the National Disability Insurance Agency, dated 19 August 2023 not to grant access to Mr Paul as a participant in the NDIS. I will refer to the Respondent in this decision as either ‘the Respondent’ or ‘the Agency’.
2.
The Administrative Review Tribunal’s (‘the Tribunal’) jurisdiction arises under s 12 of the Administrative Review Tribunal Act 2004 (Cth) (‘ART Act’), operating in conjunction with
s 103 of the NDIS Act.
3.For the reasons set out below, the Decision under Review is set aside as it is satisfied that Mr Paul meets the access requirements under s 21 of the NDIS Act.
BACKGROUND
[1] Documents lodged under s 23(b) of the Administrative Review Tribunal Act 2024 (Cth) (‘TD’).
Mr Gordon Paul is a 64-year-old man who lives in northern Tasmania. He lives alone in his own home. His wife and adult daughter reside in the United Kingdom. Mr Paul has the following diagnosed medical conditions:
Physical Conditions
·Neuropathic pain
oDifficulty breathing
oDisturbed sleep
oSevere pain in a range of locations
·Phantom limb pain
oPhantom limb pain with pain radiating
oIncreased sensitivity to heat and cold
oReduced manual dexterity
oHand spasms
·Amputation of left fingertip
·Chronic Fatigue Syndrome (CFS)
oBrain fog
oMental confusion and decreased cognitive capacity
oFatigue
oSleeplessness
oPost exertional malaise
·Migraines/tension headaches
Psychosocial conditions
·Post Traumatic Stress Disorder (PTDS)
oNightmares and flashbacks
oAnxiety
oPoor sleep
oPoor appetite
oLack of motivation
oPanic attacks
·Anxiety and Depression
oReduced capacity to engage in social activities.
oDisturbed sleep.
oPoor appetite
oLow energy
oLow motivation
oAbility to work and exercise.
5.Neuropathic pain is defined as pain occurring following a primary lesion or disease of the somatosensory nervous system.[2] I also note that very recently he has been diagnosed with an unspecified neurological disorder.[3]
[2] Jensen TS, Baron R. Haanpaa M et al 2011 ‘A new definition of pain’ in Pain 152: 2204-2205 cited in Ms Ira Gauvin’s report JTB
[3] Launceston General Hospital Discharge Summary dated 18 February 2025.
6.Arising out of these various medical conditions, Mr Paul reported that he experiences a range of symptoms. Mr Paul notes in his description of symptoms and their effect that the phantom limb pain and neuropathic pain are linked and interdependent, as one will affect the other. He also notes that his chronic fatigue worsens as his neuropathic and phantom limb pain increases.[4]
[4] Description of symptoms 4 April 2022 JTB
7.It is noted that Mr Paul has subsequently advised that he has been diagnosed with a particular form of migraine, identified as Hemiplegic Migraines. The Agency has acknowledged that the following conditions are permanent conditions in accordance with s 24(1)(b) of the NDIS Act:[5]
·Neuropathic pain.
·Phantom limb pain.
·Left fingertip amputation.
·Psychosocial impairments associated with his PTSD.
[5] Respondent’s SFIC 19 August 2024 JTB
8.Prior to the commencement of the hearing, the Agency submitted that it did not accept that the following conditions are permanent:
·Migraines and Tension headaches.
·Chronic fatigue syndrome
·Depression and Anxiety
9.After the commencement of the hearing, Mr Paul through his representative, Ms Ogunkoya, advised that he was no longer asserting that the impairments listed in paragraph 8 are permanent.
DECISION UNDER REVIEW AND APPLICATION FOR REVIEW TO THIS TRIBUNAL
10.In early 2022, Mr Paul applied to the Agency seeking to be granted access to the NDIS.
11.The Agency provided its decision on 19 August 2022. It advised that he had not met the eligibility criteria to be granted access to the scheme (‘the Initial Decision’).
12.On 13 September 2022, Mr Paul requested the Agency conduct an internal review of the initial decision.
13.The Agency conducted its internal review, and on 7 October 2022 advised that it had confirmed the initial decision to find Mr Paul was not eligible to gain access to the scheme. (‘the Reviewable Decision’).
14.The Agency advised that the basis for its decision was the following:
·That he had not established that he has an impairment arising out of his phantom limb pain or migraines/tension headaches;
·That he had not established that his various impairments are permanent;
·That he had not established that he has a substantially reduce functional capacity in the domains of communication, social interaction, learning, mobility and self-care or self-management.
15.The Reviewable Decision is the decision by the Agency that Mr Paul had not established that he met the eligibility criteria to be granted access to the scheme.
16.On 31 October 2022, Mr Paul applied to the then Administrative Appeals Tribunal (AAT), for the AAT to conduct an independent review of the reviewable decision.
17.In his application for review, Mr Paul noted the following as reasons why he considered the reviewable decision was wrong:
I believe the decision is wrong because my specialists’ reports stated that I met the criteria for access into the NDIS.
EVIDENCE AND SUBMISSIONS
18.As part of the review process, the Tribunal was provided by the Respondent with those documents previously submitted as part of the original application process (‘the T Documents’).
19.During the conduct of the Tribunal’s pre-hearing procedure, both parties filed with the Tribunal, Statements of Facts, Issues and Contentions (SFICS).
20.The most recent of these will be referred to throughout this decision.
Mr Paul’s position
21.Mr Paul’s most recent statement of position is outlined in his SFICs dated 19 September 2024.
22.In that summary, Mr Paul contended that:
•His conditions of chronic fatigue syndrome, migraines/tension headaches and anxiety and depression are permanent and all reasonable treatment options have been trialled.
•His impairments cause him to have substantially reduced functional capacity in all six areas, and particularly in the areas of mobility, communication, and social interactions.
•His impairments affect his capacity for social and economic participation.
•He is likely to require support under the NDIS for his lifetime.
•Additionally, there is no alternative service system that could best meet his needs.
23.However, after the commencement of the hearing, Mr Paul advised via email that he was no longer asserting that his chronic fatigue syndrome, migraines/tension headaches, anxiety, or depression were permanent.
24.In that email Mr Paul also advised that he would only be relying upon the domain of social interaction (s24(1)(c)(ii) of the NDIS Act) as the area where he has a substantially reduced functional capacity.
25.On 24 April 2024, the Agency submitted to Mr Paul a series of questions relating to both his physical and psychosocial impairments. These questions were asked to be responded to by Mr Paul’s treating practitioners.
26.The requested information related to Mr Paul’s diagnoses and prognosis, their level of resulting impairment, their treatment, other possible treatment options, and Mr Paul’s functional capacity in the domains of communication, mobility, self-care, self-management, and social interaction.
27.Dr Kathryn A. Roberts provided the responses to both with a summary of her observations recorded in the following paragraphs.
Physical Impairments
28.Dr Roberts advised in her response to the Agency’s letter of 24 April 2023 that Mr Paul has diagnoses of chronic fatigue syndrome (CFS), neuropathic pain, PTSD, hemiplegic migraines, and phantom limb pain.
29.She noted the following observations on each of these conditions:
·CFS: A diagnosis of CFS is based upon a sufferer exhibiting symptomatology for more than 6 months and ongoing. Mr Paul has demonstrated all these symptoms since 2015. The diagnosis requires the exclusion of other possible diagnoses by blood and other testing. In Mr Paul’s case these tests have been conducted since 2015 until 2022 when he was given a formal diagnosis of this condition. [6]
·Neuropathic pain: This condition covers a variety of typical symptoms, all of which Mr Paul demonstrates. He has experienced these symptoms since the amputation of his left fourth finger after a workplace accident. He experienced phantom pain, worsening into neuropathic pain, which in turn was worsened by the growth of two neuromas on the finger stump after healing. A neuroma is a disorganised nerve tissue growth in already damaged tissue. Mr Paul was officially diagnosed with this condition in 2018.[7]
·PTSD: This diagnosis is given after a patient experiences a constellation of typical symptoms continuing for six months or more following a perceived traumatic event. Mr Paul was diagnosed with this in February 2018.[8]
·Hemiplegic migraine: This diagnosis is also made on the basis of a patient experiencing a cluster of symptoms, with alternative diagnoses being excluded by CT and MRI scans. Mr Paul has had these scans which has allowed this diagnosis to be made.[9]
·Phantom limb pain: Mr Paul was diagnosed with this condition in 2015 at the James Cook University Hospital.[10]
[6] JTB 723
[7] Ibid
[8] Ibid
[9] Ibid
[10] Ibid
30.Responding to the Agency’s questions concerning other appropriate treatment options available to Mr Paul, Dr Roberts made the following observations:
·He has undertaken and trialled all conceivable treatments for his CFS, neuropathic pain and phantom limb pain including mainstream, alternative and complementary therapies. There is no cure for these conditions only the management of symptoms and lifestyle strategies such as pacing and rest.
·There is no further appropriate evidence-based treatment options available that have not already been trialled or considered. There is no option of a cure for these conditions as these are incurable long-term conditions.
·The current maintenance of his treatment options will be required for the duration of his life.
31.Responding to the Agency’s question on the prognosis of Mr Paul’s level of impairment and functional capacity and which of his conditions could be identified as the cause, Dr Roberts noted the following:
·Arising out of his CFS, Mr Paul is subject to a worsening of symptoms or ‘flares’ usually caused by overexertion and therefore he needs to pace his level of activity.
·He also experiences such flares arising out of his neuropathic pain/phantom limb pain. Minor flares can be addressed by minimising activity and rest while severe flares can require admission to hospital.
32.Responding to the Agency’s questions concerning Mr Paul’s level of functional capacity Dr Roberts referred to the 2022 Emerge Australia telehealth appointment on 1 August 2022 factsheet summary.
33.Dr Roberts noted that his symptoms are daily and permanent and is currently at his baseline with no improvement expected.
34.Dr Roberts outlined a range of functional impairments in the domain of social interaction:
·His poor mobility and pain levels restrict his access to the community.
·He is unable to be in groups larger than a couple of people as he can experience post exertional malaise (PEM).
·Having visitors in his home can also trigger PEM, so this can only be at certain times.
·He is unable to keep in touch with family and friends due his inability to use a computer for long periods.
·Similarly, keeping in touch via social media is impossible.
·He can become unwell and needs to have someone with him for his safety.
35.Dr Roberts’ second letter addressing Mr Paul’s psychosocial conditions covered similar ground to her responses on his physical conditions so I will not repeat them here.
36.In terms of the impact of his psychosocial impairments on his capacity for social interaction, Dr Roberts noted the following:
·PTSD is a condition which is known to be isolating due to the need to avoid triggers, which typically occur in settings outside of the home. It is also associated with a high risk of associated anxiety and depression. Thus, Mr Paul has a trio of mental health conditions which exacerbate each other and cause significant impairment in everyday functioning. Due to the ongoing and exacerbating nature of these conditions, decline in function over time is inevitable.
·His PTSD and anxiety affect communication more severely in a noisy situation such as outside of his home or group conversations.
·He struggles with communication outside the home, with more than one person at a time or via the phone.
·Because he finds social outings challenging and distressing, he will often avoid them.
·Being in crowds can flare his PTSD and anxiety.
·He can better manage having a single visitor at home, however due to his physical disability and the risk of PEM, he must put time limits on his visits.
·He is limited as to the amount of time he can spend in front of a computer screen, mainly due to his neuropathic pain, headaches/migraines and chronic fatigue, affecting his ability to stay in touch with friends and family.
The Agency’s position
37.The Respondent’s position was set out in its most recent SFIC, dated 19 August 2024.
38.The Respondent conceded that Mr Paul’s following conditions constitute a disability under s 24(1)(a) of the NDIS Act:
·Physical impairments attributable to Neuropathic Pain, Phantom Limb Pain, Left Limb Amputation, CFS, and Migraines/Tension Headaches; and
·Psychosocial impairments attributable to PTSD, Anxiety and Depression.
39.The Respondent acknowledged that the available evidence established that Mr Paul’s conditions of Neuropathic Pain, Phantom Limb Pain, Left Limb Amputation, and PTSD are permanent under s 24(1)(b) of the NDIS Act.
40.They also acknowledged that Mr Paul’s Neuropathic Pain, Phantom Limb Pain, Left Limb Amputation, and PTSD affect his capacity for social and economic participation under s 24(1)(d) of the NDIS Act.
41.However, the Respondent submitted that the current evidence did not establish the following:
·That Mr Paul’s conditions of CFS, Migraines/Tension Headaches, Depression and Anxiety are permanent or likely to be permanent (s 24(1)(b));[11] and
·That while Mr Paul’s Neuropathic Pain, Phantom Limb Pain and Left Fingertip Amputation has resulted in a somewhat reduced functional capacity, which did not result in him having substantially reduced functional capacity in any of the six domains contained in s 24(1)(c);[12] and
·That he required NDIS support for his lifetime (s 24(1)(e). In this regard, the Agency submitted firstly that as it had not been established that Mr Paul had a substantially reduced functional capacity, he would not therefore require lifetime support. Alternatively, the Agency outlined several alternative support services available to Mr Paul and therefore his disability support needs were most appropriately met through those other support services.[13]
[11] JTB 009
[12] JTB 012
[13] JTB 017-018
42.The Respondent also provided submissions addressing Mr Paul’s eligibility for early intervention under s 25 of the NDIS Act. However, it is not necessary to record these here, Mr Paul confirmed that he is not seeking such supports.
Mr Paul’s Documentary Evidence
43.The documents Mr Paul provided to the Agency when applying for access to the scheme, are included in the ‘T Documents’ provided by the Agency to the Tribunal and may be referred to in this decision where relevant.
44.Mr Paul also provided the following documents after lodging his application to the Tribunal:
·NICE guidelines on chronic fatigue syndrome.[14]
·CFS Information sheet (Better Health Channel)[15]
·Launceston General Hospital (LGH) discharge summary dated 13 April 2023[16]
·List of medications and treatments dated 5 May 2023[17]
·Letter from Dr Sarah Hargrave (Osteopath) dated 26 May 2023[18]
·Letter Sarah McCarthy (psychologist) dated 29 May 2023[19]
·LGH Consultation Summary dated 26 June 2024[20]
·Report of Dr Carlin White dated 15 July 2024[21]
·Undated report of Dr Kathryn Roberts (GP)[22]
·Additional undated report of Dr Roberts[23]
[14] JTB 572
[15] JTB667
[16] JTB 678
[17] JTB 684
[18] JTB 691
[19] JTB 692
[20] JTB 697
[21] JTB 701
[22] JTB 723
[23] JTB 728
45.Material in the form of medical records was provided in response to summons issued by the Agency from:
·Bodyfocus Osteopath and Pilates[24]
·West Tamar Medical Service[25]
·Launceston General Hospital[26]
[24] JTB 321
[25] JTB 380
[26] Provided as a separate bundle
46.The day before the hearing Mr Paul Mr Paul provided the Tribunal with the following additional documents:
·Medical Certificate from Hospital
·LGH Adult Comprehensive Care Plan dated 11 February 2025
·LGH Outpatient Appointment Notification dated 8 January 2025
47.These documents were submitted as in the days prior to the hearing, Mr Paul was admitted to Launceston General Hospital. He was discharged on 10 February 2025.
48.After reading this material, I was concerned as to Mr Paul’s capacity to provide evidence. However, Mr Paul’s representative advised that Mr Paul felt physically able to give evidence and that he wished for the hearing to proceed.
The Respondent’s documentary evidence
49.The Agency engaged Ms Ira Gauvin an Occupational Therapist as an Independent Medical Expert (IME) to conduct an independent functional assessment of Mr Paul. Ms Gauvin’s report is dated 12 September 2023; Ms Gauvin also provided a supplementary report dated 24 November 2023.
50.The Agency also requested that Dr Carlin White (Registrar of Occupational and Environmental Medicine) provided a response to a series of targeted questions. Those responses are dated 15 July 2024.
51.I will provide a summary of both Ms Gauvin’s and Dr White’s reports as they relate to the disputed issues in the following paragraphs.
52.Ms Gauvin provided a detailed and thorough overall assessment of Mr Paul’s functional capacities across most of the functional domains including mobility, cognition, communication and learning, self-care, and self-management. I note that Ms Gauvin did not provide a detailed assessment of Mr Paul’s capacities for social interaction. However, she does provide a greater analysis of this domain in her responses in her supplementary report.
53.Ms Gauvin at page 19 of her report does recommend certain steps Mr Paul could take to maintain his level of independence, endurance, and tolerance.[27] In particular, Ms Gauvin made this observation:
Mr Paul will benefit from returning to volunteer work as much confidence can be gained from work and an activity conditioning approach to recovery. In this regard I recommend Mr Paul participate in some sort of volunteer program that does not involve tools and perhaps in the Art space. By making volunteering a priority, Mr Paul can use regular and purposeful activity as a pathway to maintain and improve his tolerances. It is my firm view, based upon many years of occupational therapy experience, that suitable work including volunteering, is a therapeutic intervention and should form part of a treatment program, subsequently leading to improved functional tolerances and self-efficacy. Mr Paul will benefit from assistance in sourcing an appropriate volunteering option.[28]
[27] JTB 749
[28] ibid
54.In her supplementary report dated 24 November 2023, Ms Gauvin responding to a question directly addressing his capacity to socially interact, Ms Gauvin observed as follows, referencing Dr Roberts’ report:
According to Dr Roberts, PTSD, depression, and anxiety all reduce communication skills by affecting cognitive processes such as memory and concentration, particularly word finding and the ability to express himself (ciiD). These deficits therefore impact social outings and interaction. In my clinical experience, people with PTSD may have a difficult time trusting new people or feeling safe in the world. They may feel exposed while out in social situations and can experience anxiety that they do not experience while alone or in a smaller group setting. It is also important to consider Mr Paul’s triggers, which include loud noises, unfamiliar places, machinery and interacting with certain people or situations, which will further have an impact upon his ability to socially interact.[29]
[29] JTB 762
55.Referencing Ms McCarthy (Psychologist) report Ms Gauvin stated:
According to Ms McCarthy (Psychologist), Mr Paul has significant difficulty in following more than one conversation in a noisy environment. This leads to a reduction in his ability to concentrate and process information and to find the words he wants to say which further impacts his ability to interact. Ms McCarthy suggested that in these environments he needs support and assistance.
Specifically, according to Ms McCarthy, Psychologist (b), Mr Paul has difficulty maintaining social contact and withdraws socially. At times these interactions trigger PTSD symptoms where there is conflict / domineering character involved causing him to become socially withdrawn. Mr Paul has difficulty in expressing himself or his needs to others, reporting that this occurs due to self-doubt and withdrawal, as well as direct cognitive deficits linked with his PTSD. Communication difficulties also are further exacerbated by pain and fatigue. It was noted that Mr Paul requires support and assistance when talking to government agencies as he experiences high levels of stress due to PTSD and fatigue which leads to poorer memory retention, confusion, and the ability to concentrate on what is being stated, which can lead to possible misunderstandings. As noted in my original report, Mr Paul attempted to volunteer at Riverside Men’s Shed, however gave up due to PTSD symptoms when attempting to complete activities within the workshop. Mr Paul also reported that he finds simple activities such as going out for coffee very difficult. Mr Paul reported to attend the library, however, becomes exhausted when around people. He reports supermarkets are exhausting, noting he previously had groceries delivered however, stopped due to the cost as he noticed specials were not included online. Mr Paul confirmed he is able to complete shopping once per week in non-peak periods at around 9.30am to10:00am once Panadol starts to work.[30]
[30] JTB 761
56.Ms Gauvin in this report then addresses what supports Mr Paul may require, to assist him to interact with others in social situations.[31]
In my opinion, Mr Paul will benefit from finding the right volunteering or activities which do not involve machinery and noise thus less likely to trigger his PTSD. Along with volunteering, specific groups can be considered within the music and art space. These activities can be sourced through a local community centre, social worker or with the assistance of an Occupational Therapist. Local Area Coordinators are available to assist people link with mainstream services. As noted in my original report, Mr Paul is already accessing the HACC program for younger people. This service can also be used for planned activity groups, along with providing transport. In my view, once the appropriate groups are found, setup, and following a conditioning program whereby someone attends on the first few occasions, Mr Paul should aim to attend independently. Mr Paul should be encouraged to use his mindfulness strategies within these environments when needed. Mr Paul is able to drive and should continue to complete this activity within the periods he is comfortable driving. Every effort should be made to find activities within the community which are available during the periods he is able to drive. Mr Paul should continue to utilise the HACC transport service when needed.
[31] JTB 762
57.Dr White provided a very detailed report dated 15 July 2024 in response to a request issued by the Respondent’s former solicitors. Dr White’s report covered Mr Paul’s diagnosed conditions, and their symptoms, treatment, and prognosis.
58.I will limit my observations of the contents of that report to those that addressed the central issue before me, namely Mr Paul’s capacity for social interaction.
59.Dr White notes that Mr Paul reported that the current triggers for his PTSD are attending crowded and noisy spaces, driving, attending machinery sheds or similar workshops, hearing machinery and similar noises around his home, and engaging in woodworking activities.[32]
[32] JTB 705
60.His anxiety is a major issue as it limits him from activities in which he needs to navigate crowds. He also avoids confrontational arguments and finds aggressive behaviour difficult to manage.[33]
[33] ibid
61.He is unable to attend volunteering activities due to the complexity of organising transport and the risk of suddenly developing disabling migraines when out of the house.[34]
[34] JTB 711
62.Dr White made several recommendations of NDIS assistance to assist with Mr Paul’s quality of life including:
·Noting that Mr Paul’s mobility assistance needs should be better researched, he suggested a gutter frame to mobilise for short distances, and a wheelchair (ideally electronic) for greater engagement in medium to longer travel, such as the supermarket and attending local appointments.[35]
·Travel assistance could facilitate recreational activities outside his home.[36]
·In addition to travel assistance, Mr Paul would benefit from someone providing observation, care, and assistance when he attends activities. Having a carer would potentially alleviate his significant anxieties while away from his home.[37]
[35] JTB 712
[36] Ibid
[37] Ibid
DECISION BEFORE THE TRIBUNAL
63.Taking account of those eligibility criteria that the Respondent has accepted that Mr Paul meets, and those upon which Mr Paul no longer relies, the matters to be determined by the Tribunal are the following:
·Does Mr Paul have substantially reduced functional capacity in the domain of social interaction as per s 24(1)(c)(ii) of the NDIS Act?
·Is Mr Paul likely to require support under the NDIS for his lifetime?
Legislative Framework
64.Subsection 21(1) of the NDIS Act provides that a person satisfies the access criteria if they meet:
·The “age requirements” under s 22; and
·The residence requirements” under s 23; and
·The “disability requirements” under s 24 (as set out below) or the “early intervention requirements” under s 25 (as set out below).
65.The disability requirements are contained in s 24 of the NDIS Act and provide as follows:
(5)A person meets the disability requirements if:
(a) the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable; and
(b) the impairment or impairments are, or are likely to be, permanent; and
(c) the impairment or impairments result in substantially reduced functional capacity to undertake one or more of the following activities:
(i) communication;
(ii) social interaction;
(iii) learning;
(iv) mobility;
(v) self-care;
(vi) self-management; and
(d) the impairment or impairments affect the person’s capacity for social or economic participation; and
(e) the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime.
(2) For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the variation.
(3) For the purposes of subsection (1), an impairment or impairments that are episodic or fluctuating may be taken to be permanent, and the person may be taken to be likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the episodic or fluctuating nature of the impairments.
(4) Subsection (3) does not limit subsection (2).
66.The requirements of s 24 of the NDIS Act are cumulative and all criteria must be met for access to be granted to the scheme.
67.The early intervention requirements are contained in s 25 of the NDIS Act and provide as follows:
(5)A person meets the early intervention requirementsif:
(a)the person:
(i)has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent; or
(ii)has one or more identified impairments to which a psychosocial disability is attributable and that are, or are likely to be, permanent; or
(iii)is a child who has developmentaldelay; and
(b)the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person’s future needs for supports in relation to disability; and
(c)the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by:
(i)mitigating or alleviating the impact of the person’s impairment upon the functional capacity of the person to undertake communication, social interaction, learning, mobility, self-care or self-management; or;
(ii)preventing the deterioration of such functional capacity; or
(iii)improving such functional capacity; or
(iv)strengthening the sustainability of informal supports available to the person, including through building the capacity of the person’s carer…
68.Likewise, the requirements of s 25 of the NDIS Act are cumulative and all criteria must be met.
69.Section 27 of the NDIS Act provides for the making of rules in relation to the disability requirements and the early intervention requirements. The relevant rules in respect of this review are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (‘the Access Rules’).
Access Rules
70.With respect to ss 24(1)(b) of the NDIS Act, concerning the permanency of an impairment, the Access Rules provide:
5.4 An impairment is, or is likely to be, permanent (see paragraph 5.1(b)) only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.
5.5 An impairment may be permanent notwithstanding that the severity of its impact on the functional capacity of the person may fluctuate or there are prospects that the severity of the impact of the impairment on the person’s functional capacity, including their psychosocial functioning, may improve.
5.6 An impairment may require medical treatment and review before a determination can be made about whether the impairment is permanent or likely to be permanent. The impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated (even though the impairment may continue to be treated and reviewed after this has been demonstrated).
5.7 If an impairment is of a degenerative nature, the impairment is, or is likely to be, permanent if medical or other treatment would not, or would be unlikely to, improve the condition.
71.The Agency also issues Operational Guidelines in relation to the assessment of whether a person meets the disability requirements. The relevant guidelines in this review are the Becoming a Participant – Applying to the NDIS guidelines (‘the Access Guidelines’).
72.There is no power conferred by the NDIS Act to make Operational Guidelines, and they are issued in an exercise of executive power.[38] The Tribunal is therefore not bound by any policy set out in the Agency’s Operational Guidelines; however, in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) ,[39] the Federal Court held that a Tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation, however they should not be bound by it. Further guidance for the proposition that the Tribunal is not bound by policy is found in G v Minister for Immigration and Border Protection,[40] where Mortimer J (as her Honour then was) held:
Justice or injustice is not found within a policy: It is found by looking at the overall circumstances of an individual’s case, with the principal focus being on the purpose and context of the statutory power, not the executive policy framed to guide it…[41]
[38] Minister for Home Affairs v G [2019] FCAFC 79 [18].
[39] [1979] 24 ALR 577 ,590.
[40] [2018] FCA 1229.
[41] Ibid [171].
73.Therefore, unless the Access Guidelines are inconsistent with the provisions or objects of the legislation, they should be considered in any determination of whether Mr Paul meets the disability requirements or the early intervention requirements.
74.Whether Mr Paul meets the disability requirements or the early intervention requirements is a question of fact to be determined on the balance of the available evidence. The Tribunal is therefore required to undertake a ‘fact-finding task.’[42]
[42] National Disability Insurance Agency v Davis [2022] FCA 1002 [42].
75.The Tribunal notes that in Mulligan v National Disability Insurance Agency,[43] Mortimer J held that the legislation, as it relates to the access criteria, requires “a relatively high degree of precision by decision-makers... in assessing what a person can or cannot do. The assessment to be undertaken is avowedly functional and multi-faceted.”[44] The Full Court of the Federal Court of Australia in National Disability Insurance Agency v Foster,[45]also outlined that the legislation requires a functional, practical assessment of what a person can and cannot do.[46]
[43] Mulligan v National Disability Insurance Agency [2015] FCA 544 (‘Mulligan’) [55].
[44] Ibid.
[45] National Disability Insurance Agency v Foster [2023] FCAFC 11 (‘Foster’).
[46] Ibid [44].
76.In this case, a functional assessment of Mr Paul’s level of function was conducted by an Independent Medical Expert (IME), being Ms Ira Gauvin, who is an Occupational Therapist who subsequently completed a report on Mr Paul’s functional capacities across the six domains outlined in s 34(1)(c).
MATTER AT HEARING
77.The hearing of the application took place via video link over two days on 12 and 14 February 2025.
78.Mr Paul was represented by Ms Jane Ogunkoya from Advocacy Tasmania. The Agency was represented by Mr Nic Edmonson of Counsel, instructed by Ms Taylor Hawcridge from Maddocks Lawyers.
79.Mr Paul provided answers to questions put to him by his Advocate, Ms Ogunkoya and Mr Edmonson for the Agency.
80.Mr Paul stated that he had experienced symptoms of chronic fatigue syndrome and phantom limb pain since 2015. He had been diagnosed with neuropathic pain in 2017.
81.When asked by Ms Ogunkoya how these conditions affect him, he stated that his CFS severely affects his daily life, what he can do, and reduces his energy levels and stamina. His neuropathic pain means his nervous system is always elevated and in turn impacts his CFS. His CFS, neuropathic pain and phantom limb pain interact with each other.
82.He experiences symptoms daily. They can occur at any time of the day but generally get worse over the course of the day.
83.PTSD is triggered by outside influences such as noise.
84.He said that while he generally was able to deal with his depressive and anxious symptoms, these too could be affected by his PTSD and his pain levels. When he experiences symptoms from his conditions at the same time, he needs to rest and allow them to settle.
85.Ms Ogunkoya questioned Mr Paul about his mobility. Mr Paul stated that previously he was receiving assistance with grocery shopping. Since his recent hospitalisation, his doctor informed him that he was no longer able to do his shipping. He is exploring what options may be available to assist him. He has had a support worked through Anglicare, who can shop on his behalf.
86.At home, Mr Paul uses walking sticks. He stated that OT has recommended he move around as often as he can. He told the Tribunal that after his recent admission to hospital, his level of mobility and standing capacity had reduced substantially and the distance he can walk has greatly reduced. While in hospital, Mr Paul recalled conversations with his neurosurgeon, a physiotherapist, and an OT specialist. He stated that his doctors were hoping to reduce the pain in his legs, and trialled lignocaine infusions, but this did not really work.
87.Mr Paul reported that Dr White has recommended that he get an electric wheelchair as a manual wheelchair may prove too taxing for him to use consistently. He stated the hospital was unable to provide him with a wheelchair however provided him with a list of suppliers where he could potentially hire one.
88.When asked how far he could walk inside his home, he responded 20 metres at most. He stated that he experiences pain in his calves and feet, and the pain worsens if he walks more than that distance.
89.He was asked about several falls he has had at home. He responded that these were caused by the nerves in his feet being unable to ascertain what surface he is standing on. Mr Paul reported that he is better able to move and maintain his balance on even surfaces, but he needs to concentrate on what surface his is walking on. Most of his falls have happened when he was hanging clothes to dry on the outside clothesline.
90.He stated that when he has a fall he will remain lying until he can get up himself, or his neighbour has assisted him when that happens.
91.Asked about what happens when his conditions flare, he stated that if he were at home he would lie down and rest. Depending on the severity, he could be affected for between 1 to 3 hours and up to 3 days.
92.In terms of his self-care, Mr Paul stated that he could toilet independently and while he can shower himself, he needs to have someone in the house when he is having a shower in case he has a fall.
93.He stated that he can cook when he is feeling up to it and will cook a batch of meals that he can reheat when he is unwell.
94.He has someone come for one hour each week to assist with his house cleaning.
95.When asked about having time in the community, he stated that he now only goes with his support worker to attend to shopping, going to the chemist, and the library. He needs the support worker as he can no longer drive.
96.He stated that if he experienced a flare up of his neuropathic pain while out in the community, he would be unable to get home independently. This condition and his chronic fatigue syndrome affect his capacity to make decisions and at times he may not properly appreciate how bad his condition is.
He was also asked about what other factors affect his capacity to be in the community, to which he responded that his PTSD and anxiety limit him. His PTSD can be triggered by a range of environmental factors such as noise and smells. When this happens, he will become hyper-anxious, shut down, and will withdraw and become isolated within himself.
97.He stated that his PTSD was one of the reasons why he could no longer go the men’s shed, as the noises from the tools in the workshop trigger him.
98.Asked about his ability to socially interact prior to his accident in 2015, Mr Paul stated that he was quite active engaged in employment and social activities including volunteering and helping others.
99.He stated that he has periods where he unknowingly over-extending himself and does not recognise that he needs to go home. Following this, he experiences ‘brain fog’ and needs up to 3 days to recover.
100.He stated that the lack of interaction makes him feel isolated, which he likened to cabin fever.
101.He stated that while he can communicate via the phone and computer it is not a substitute for face-to-face contact, and that he hates social media.
102.He reported that it would make a huge difference in his life if he could get back to being in the community, playing music, seeing concerts, and volunteering. If he had a support worker to assist him to access the community, it would make a huge difference.
103.Mr Paul responded to questions put to him by Counsel for the Respondent. Many of these questions related to diagnoses of conditions disputed by the Respondent, and their treatment and impact on functional domains other than social interaction. I will not record these interactions as Mr Paul, as discussed, later advised that he would no longer be seeking to establish the permanency of his chronic fatigue syndrome, migraines depression and anxiety.
104.I have therefore limited my recording of his evidence to those matters still in dispute.
105.I note that upon returning from a brief adjournment on the second day of the hearing and while still being cross examined by Counsel from the Agency, Mr Paul appeared to be experiencing tremors. I therefore excused him from answering any further questions while he indicated he may be able to continue provided he was able to rest.
106.I was later advised by Ms Ogunkoya some 20 minutes later that Mr Paul had just been again taken to hospital by ambulance. Because of Mr Paul’s sudden medical emergency, both Ms Ogunkoya and Mr Edmondson confirmed they would not recall Mr Paul to give any further evidence.
107.Dr White also provided evidence at hearing.
108.In addressing Mr Paul’s impairments and how they affect his capacity for social interaction, Dr White stated that his various conditions impact his capacity to access the community.
109.When asked to identify those conditions, Dr White stated that both his physical and psychosocial conditions limit his capacity. In particular, his fatigue affects his capacity to be out of home for extended periods.
110.Dr White stated that while Mr Paul could have some degree of social interaction at home using the phone and computer, he still requires social interaction in the community as this will have a positive effect particularly on his anxiety and depression.
111.Dr White responded to a series of questions from Counsel for the Agency concerning the diagnosis and treatment of his psychosocial conditions.
112.Dr White stated that PTSD is notoriously difficult to treat, and medications are generally not effective in addressing its symptoms. The generally accepted principal treatment is working with a psychologist.
113.He stated that in his observation Mr Paul found it increasingly difficult to continue going to the men’s shed due to his reaction to the machinery used there, reactions which may have its origins in his workplace accident.
114.It was put to Dr White that as Mr Paul has previously had the capacity to use his phone and computer and had seen friends in the past, that it could not be stated that he has a significantly reduced capacity for social interaction. Dr White stated he was unable to respond to that suggestion and stated any assessment of someone’s capacity would need to consider how he reacted later that day and the days following.
115.Counsel asked Dr White which of Mr Paul’s conditions affected his capacity for social interaction the most. Dr White referred to page 3 of his report, which stated that this would be a combination of his neuropathic pain, chronic fatigue syndrome and PTSD. He indicated that these conditions had a high degree of interactivity.
116.Dr White considers that Mr Paul requires support to access the community, which would have the potential over time to reduce the severity of his symptoms. However, it would not in his view enable him to return to his pre-2015 level of function. If Mr Paul does not receive such supports, Dr White believes that his function will either remain the same or potentially worsen.
117.Asked about the prognosis of Mr Paul’s conditions, Dr White considered that the best that could be hoped for was some stability in the medium term.
118.Ms Gauvin also provided evidence at hearing.
119.In terms of Mr Paul’s cooperation with her assessment, she stated that she was quickly able to develop rapport with him, and that he was cooperative and answered her questions freely.
120.Responding to questions concerning Mr Paul’s capacity for social engagement, Ms Gauvin stated that Mr Paul felt he was able to maintain existing relationships.
121.Outside of his home, Ms Gauvin stated that Mr Paul experienced difficulties with noisy environments or those where those with many people or engaging with complex situations, such as interacting with government agencies.
122.Ms Gauvin stated that Mr Paul could do shopping with support in non-peak periods.
123.Ms Gauvin stated that Mr Paul was able to communicate with family and friends by phone and computer. He has some other family living in the area but does not have much contact with them.
124.Concerning his computer use, Mr Paul did tell Ms Gauvin that he had difficulty using a computer with a pixelated screen as this exacerbated his migraines.
125.Ms Gauvin was asked if Mr Paul had provided her with the difficulties he faced with social interaction. She stated that he not provided specifics of this, but from her what information he had given her, she considered he would experience difficulties with complex situations, and new or noisy environments.
126.When asked about potential triggers for someone with post-traumatic stress disorder, Ms Gauvin indicated that this was quite individual, and a lot depended on their personal history.
127.At the conclusion evidence both Ms Ogunkoya and Mr Edmondson indicated that they wished to provide written final submissions. They also submitted that the hearing should not conclude until such time as Mr Paul was again discharged from hospital and the relevant discharge summary and any related documents from the hospital were provided to the Tribunal. I permitted each party to make post-hearing submissions.
Parties’ post-hearing submissions
128.The Respondent’s final submissions were received by the Tribunal on 14 March 2025.
129.In essence, the Respondent’s submission was that Mr Paul’s evidence should not be afforded significant weight as his account of his conditions and their symptoms was inherently unreliable; they state that his evidence was inconsistent with that previously given or with documents that had been tendered in evidence.
130.The Agency outlined the following pieces of Mr Paul’s evidence that were either inconsistent or should not be relied upon:
Chronic Fatigue Syndrome
·While Mr Paul stated in his evidence that CFS phantom limb pain, anxiety and depression all started in 2025 and his neuropathic pain in 2017, he did not report these conditions to his treating general practitioner, Dr Roberts, when he arrived there in 2017.
·Medical records disclose that at his first appointment in September 2017, he made no mention of CFS or neuropathic pain.
·When being cross examined, Mr Paul stated that Dr Roberts had conducted thorough testing to diagnose his CFS. When asked if he had been referred to a neurologist to confirm that diagnosis, he stated that a neurologist would be able to do so without conducting the tests that Dr Roberts had performed.
·When referred to other summonsed material that appeared to show that the first reference to CFS was in 2022, he resiled from his previous evidence and stated he could not be sure when the diagnosis had been made.
·Mr Paul then went on to agree that he had had a conversation with his GP about a referral to a neurologist but could not recall if he had attended an appointment with a neurologist. This was despite his earlier evidence that a neurologist would not be able to diagnose that condition.
·He later agreed with the Respondent’s counsel that based upon his evidence, it was not clear how his GP had made that diagnosis.
·He was also vague as to whether he had been referred to a neurologist to diagnose his hemiplegic migraines.
Medications
·Mr Paul was also inconsistent with his answers concerning being allergic to opiate medications and resiled from a previous answer on this.
Evidence as to why he ceased attending the Men’s Shed
·In this regard, the Respondent submitted that Mr Paul in his oral evidence and in some of the medical evidence had given inconsistent dates (between 2017 and 2020) when he ceased attending the Men’s Shed and further gave inconsistent reasons as to why he was required to cease attending. In some cases, he stated that it was due to his PTSD and in others due to his neuropathic pain or phantom limb pain.
131.The Respondent further outlined those parts of Mr Paul’s evidence relating to his lack of capacity for social interaction that reflected upon his credibility:
Ability to use his computer
·The Respondent submitted that Mr Paul provided evasive answers when cross-examined about how long he could use a computer before he developed pain in his left eye. He also gave inconsistent answers about when he took medications - either before the onset of a migraine or afterwards - and as to how long he could remain focused on a computer screen.
Inability to socially interact due to his inability to sit for extended periods
·Once again, the Respondent asserted that Mr Paul gave inconsistent answers as to the length of time, he could sit unsupported thereby reducing his capacity to access the community and then later conceding that he could do so for up to an hour.
Capacity to endure large crowds
·The Respondent asserted that while Mr Paul had reported that he was unable to be in groups of more than two or three people, he also acknowledged that when he did his supermarket shopping there would be more than this number of people in the supermarket. Because of this asserted inconsistency, the Respondent submitted I should entirely reject his contention as to his capacity to manage crowds.
Inability to communicate with family and friends
·Mr Paul had previously self-reported that he was unable to keep in touch with family and friends due to his inability to use the computer except for short periods. The Respondent pointed me to some of Mr Paul’s responses to questions concerning his use of a computer or phone to speak with his wife and the duration he was able to sustain such conversations.
·Mr Paul expressed his preference to have face-to-face communication as opposed to using a computer or phone.
·The Respondent submitted that the NDIS Act was not designed to accommodate a person’s preferences as to how they wish to communicate. Rather, it is designed to compensate those who have a substantially reduced capacity for social interaction. The Respondent asserted that Mr Paul’s motivation in bringing this application relates to his to his preference for a mode of social communication, and not any inability to do so.
Inability to leave the house and interact with friends.
·The Respondent asserted that Mr Paul gave inconsistent answers as to his ability to leave his house and have social interactions in the community. He stated he has friends who he speaks to and the phone and another who visits him in his home and that he had previously supported a friend who had dementia.
·The Respondent further asserted that Mr Paul was at time evasive in his answers.
132.In conclusion, the Respondent submitted that Mr Paul’s evidence under cross-examination was inherently unreliable. They submitted that Mr Paul has not established that his ability to socially interact is substantially reduced, and therefore his case must fail.
133.Additionally, the Respondent submitted that Dr White’s evidence did little to assist the Tribunal and stated that it was disappointing that Mr Paul did not call his general practitioner or psychologist. The Respondent submitted that the Tribunal could infer that neither of those witnesses would have assisted Mr Paul’s case if they were called.
134.The Respondent submitted that Ms Gauvin’s evidence was not shaken during cross-examination and that her report demonstrates that Mr Paul does not have a substantially reduced capacity for social interaction and should be accepted in full.
135.In accordance with my directions made on 19 February 2025 (and subsequently amended on 3 March 2025) Mr Paul’s final submissions were due to be received by the Tribunal on 21 March 2025.
136.However, on 21 March, Ms Ogunkoya (on Mr Paul’s behalf) sent an email stating that Mr Paul wished to withdraw as he did not have the capacity to write closing submissions. It also stated that he was truthful to the best of his ability, and any inconsistencies were due to the brain fog and fatigue which affects his cognitive ability. Finally, Mr Paul has newly been diagnosed with Functional Neurological Disorder.
137.In response, I waived my direction requiring Mr Paul provide final submissions and proceed to finalise my decision based on the existing evidence.
138.Later the same day, Mr Paul through his advocate advised that that he agreed to my suggestion and asked that I proceed to finalise my decision.
CONSIDERATION
139.Taking account of those eligibility criteria that the Respondent has previously acknowledged Mr Paul meets, and those that Mr Paul has now withdrawn, the matters to be determined by the Tribunal are the following:
·Does Mr Paul have substantially reduced functional capacity in the domain of social interaction? (s 24(1)(c)(ii))
- Is Mr Paul likely to require support under the National Disability Insurance Scheme for his lifetime? (s 24(1) (f)).
140.I shall now consider these two questions before me.
Do Mr Paul’s impairments result in him having substantially reduced functional capacity in the domain of social interaction?
Before considering this, I consider it useful to again refer to the relevant legislation, rules, guidelines and any applicable case law.
Rule 5.8 provides that:
An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities—communication, social interaction, learning, mobility, self-care, self-management (see paragraph 5.1(c))—if its result is that:
(a) the person is unable to participate effectively or completely in the activity, or to perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications; or
(b) the person usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in the activity or to perform tasks or actions required to undertake or participate in the activity; or
(c) the person is unable to participate in the activity or to perform tasks or actions required to undertake or participate in the activity, even with assistive technology, equipment, home modifications or assistance from another person.
The Access Guidelines provide the following guidance in relation to the question of whether the criterion under s 24(1)(c) of the NDIS Act has been met by an applicant:
Does your impairment substantially reduce your functional capacity?
Your permanent impairment needs to substantially reduce your functional capacity or ability to undertake activities in one of the following areas:oCommunicating – 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.
oSocialising – 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.
oLearning – how you learn, understand and remember new things, and practise and use new skills.
oMobility, 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.
oSelf-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.
oSelf-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:oa high level of support from other people, such as physical assistance, guidance, supervision or prompting.
oassistive 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.
144.The Tribunal is not bound by those descriptions provided in the guidance as to the six Prescribed Activities in ss 24(1)(c) of the NDIS Act when assessing the criteria relating to “substantially reduced functional capacity”. However, in general terms, the Tribunal considers that those definitions in the Access Guidelines operate as a good starting point in making that assessment.
145.As observed by her Honour Justice Mortimer (now Chief Justice) in Mulligan,[47] this assessment calls for an examination of evidence given by the person seeking access to the NDIS, as well as medical and clinical evidence. The focus is a practical examination of what the person can and cannot do. Her Honour in Mulligan described the assessment as “avowedly functional, and multi-faceted” and that:
[47] Mulligan (n 12) [55]–[56]. Her Honour Justice Mortimer is now the Honourable Chief Justice of the Federal Court of Australia.
…No decision-maker need be satisfied a person’s impairment is “serious”, or more serious than another person. No qualitative judgments in that sense are called for.[48]
[48] Mulligan (n 12) [70
146.The judicial authority as outlined in Foster, calls for the Tribunal to make an assessment of the person’s capacity to undertake the various tasks and actions comprising each of the Prescribed Activities, taken as a whole.[49] This interpretation in Foster by the Full Court of the Federal Court of Australia stands for the proposition that a person does not necessarily have a substantially reduced functional capacity in relation to an activity merely because they have difficulty with one task related to that activity:
[49] Ibid.
147.The Full Court of the Federal Court of Australia in Foster addressed the question of what is meant by “effectively and completely” as appearing in r 5.8(a) of the Access Rules. Of note, Justice Derrington observed as follows:
[83] In the overall legislative scheme, the adverb “completely” appears to be redundant, and in any event, unachievable. If “completely” is to be given its ordinary meaning, what is being asked of the rule is an assessment of whether a person’s impairment results in substantially reduced functional capacity to participate “wholly” or “perfectly” in the activities of communication, social interaction, learning, mobility, self-care and self-management – an impossible bar for almost everyone.
…
[88] Within this statutory context and having regard to the purpose of s 24 as described in the revised Explanatory Memorandum, 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. The task remains to assess the degree to which the person can participate in the activity. [50][50] Foster (n 14) [64]–[65].
148.As cautioned by the judicial observations in Mulligan, the Tribunal should not confine its consideration of whether a person has met the disability requirement under ss 24(1)(c) of the NDIS Act, by considering their circumstances only through the prism of r 5.8 of the Access Rules.[51] Instead, her Honour, Justice Mortimer, made clear that the statutory task before a decision-maker was to consider whether a person’s functional capacity is substantially reduced in any of the six Prescribed Activities.
[51] Mulligan (n 12) [70].
149.Mr Edmonson in his final submissions on behalf of the Agency made particular reference to the responses Mr Paul. Mr Paul gave to series of questions relating to his medical conditions, his symptoms and the dates he may have reported them to his treating doctors, his medications, the date he ceased attending the Men’s Shed and the reasons why he stopped attending and his ability for social interaction.
150.I do not agree with those assertions. In my view, Mr Paul attempted to answer the questions put to him by both Counsel to the best of his ability. He not infrequently had to ask for questions to be restated or rephrased.
151.Mr Paul himself responded to the Respondent’s Counsel’s assertions in his email of 21 March where he stated that he been truthful to the best of his ability at the hearing and any inconsistencies in the dates or statements he made were caused by his brain fog and fatigue which affects his memory and cognitive ability.
152.My observations of Mr Paul as he gave evidence was that he was struggling throughout the hearing. In this regard, I note that he had only been discharged from hospital some three days before the hearing after a 12-day admission and was again readmitted for a further 4 days after experiencing the seizure while giving evidence. The discharge summary noted the following:
Mr Paul presented to ED with upper limb jerks predominately affecting the right. These began round 11:00 am when he was at his NDIS trial and persisted on and off for 2 days.
He was reviewed by neurology who felt that these were likely due to a functional neurological disorder as the pattern did not fit with a structural cause. This episode and previous episodes appear to be around times of stress.
153.These are to me the relevant factors I should consider in assessing the credibility and veracity of his evidence.
154.I also make the point here of observing that nowhere in the Respondent’s final submissions is any reference made to the circumstances as to why Mr Paul abruptly ceased giving his oral evidence. They also did not refer to his subsequent admission to hospital. I consider these to be serious omissions given the serious assertions in the closing submissions as to Mr Paul’s lack of credibility and evasiveness when giving his evidence.
155.The Respondent also submitted that Dr White’s evidence was of little value and stated that it was disappointing that Mr Paul did not call his general practitioner or psychologist. The Respondent submitted that the Tribunal could infer that neither of those witnesses would have assisted Mr Paul’s case if they were called.
156.Again, I do not agree with those assertions. Dr White has been providing care for Mr Paul for nearly a decade and I found his evidence to be relevant and persuasive. Mr Paul provided the Tribunal with the reasons why he did not call his GP, which I accept entirely. The assertion that I should conclude that their evidence would be of little value is not in accordance with the totality of the evidence.
157.Finally, the Agency submitted that Ms Gauvin’s evidence was not undermined by her cross-examination and that her report demonstrates that Mr Paul does not have a substantially reduced capacity for social interaction and should be accepted in full.
158.I again disagree that Ms Gauvin’s report demonstrates that Mr Paul does not have a substantial reduction in functional capacity for social interaction. In my view, Ms Gauvin has not reached such a conclusion. She has clearly indicated the barriers Mr Paul faces in accessing social interaction and the reasons why and proceeds to make a number of recommendations and suggestions that could facilitate this in the future.
Does Mr Paul’s impairments result in a substantially reduced functional capacity in the domain of social interaction?
159.In my view there is a substantial body of evidence, including Ms Gauvin’s reports, which indicate this is the case.
160.Ms Gauvin, in her report, advised that Mr Paul’s levels of dysfunction (utilising the WHODAS assessment) was in the extreme range - his score for participation was 7/40.
161.It is clear to me that Mr Paul’s various conditions combine and interact in complex ways. They cannot be simply defined as a set of discrete symptoms.
162.The onset of his symptoms can be sudden and often without warning. This potentially place him at grave risk, depending on the circumstances of where he is and what he may be doing at the time; for example, if he is driving his car.
163.The Respondent, in my view, appears to be indicating that Mr Paul’s ability to communicate by phone or on his computer is sufficient evidence that he does not have a substantial reduction in functional capacity in the domain of social interaction.
164.This approach appears to me to fail to take proper account of the strong need in all humans for face-to-face interpersonal communication. Mr Paul himself made it clear that while he could use the phone or computer to communicate, he was yearning to have personal interactions within his limitations.
165.This is even more the case with someone such as Mr Paul who suffers significant barriers to accessing the community due to his PTSD.
166.Dr White, in his evidence, also acknowledged Mr Paul needs to have interpersonal connection in the community given its potential benefits for his depression and anxiety.
167.I also note that until the onset of his impairments, Mr Paul appears to have been an outgoing and sociable man with a wide range of interests that are now largely closed off to him.
168.In her oral evidence, in line with the observations in her report, Ms Gauvin gave a clear indication of the types of environments which could trigger a physical or psychological reaction from Mr Paul and those that would better suit his needs.
169.The conclusion I have reached is that Mr Paul does have a substantial reduction in functional capacity to access interpersonal social interaction and will require a significant level of support to address this need in the future.
Is Mr Paul likely to require NDIS support for his lifetime?
170.It is already conceded by the Respondent that Mr Paul’s impairments arising out of his neuropathic pain, phantom limb pain, left fingertip amputation, and psychosocial impairments attributable to PTSD are permanent.
171.On the face of it, it should follow that as Mr Paul’s conditions are permanent, he will have these conditions for the remainder of his life. On this basis, it is open for me to find that he will require lifetime NDIS support, subject to determining whether his support needs are most appropriately met by other systems of support.
172.The Respondent addressed this issue in its SFIC, where it noted that the Access Rules do not expressly address the question of lifetime support.[52]
[52] JTB017
173.The Respondent cited Foster, where ss 24(1)(e) was considered:
The focus of s 24(1)(e) is whether a prospective applicant is likely to require support under the NDIS or whether those support needs are most appropriately met by other systems…
…The answer to that question depends on whether the support is required in respect of substantially reduced functional capacity to participate in an activity, as assessed in accordance with s 24(1)(c).[53]
[53] JTB 017
174.In this regard, two other support systems have been identified as potential candidates. These are Home and Community Care (Tasmania) (HACC) and Tas Equip.
175.I note that Mr Paul currently receives some assistance with Anglicare, who assists Mr Paul with his grocery shopping and some transport assistance.
176.Having reviewed the services available through the Tas Equip, I do not consider it meets Mr Paul’s needs.
177.Tas Equip is a Department of Health Service that provides a range of equipment to eligible Tasmanians to help them with everyday tasks at home. The equipment must be prescribed by the authorised therapist/prescriber. Some of the common equipment available for eligible clients includes, but it not limited to, shower chairs, walking aids, adjustable height seats, hoists, wheelchairs, and electric wheelchairs.
178.While it is possible Tas Equip could potentially assist Mr Paul in the future, his primary support needs are related to accessing activities in the community.
179.I note that HACC can provide eligible participants with services for visiting, using the telephone, and helping with shopping and other activities including volunteering.
180.Ms Gauvin, in her supplementary report, recommends that Mr Paul engage in a range of social activities including e volunteering in appropriate settings. She specifically refers to Mr Paul accessing volunteering in art related activities given his history and his interests.
181.Mr Paul indicated in his SOFIC that the assistance with transport and having support worker assistance in the community was not available outside of daylight hours and some of his preferred social activities could take place at night. I am not in a position to verify the accuracy of that statement; however, I accept based upon my knowledge of such service providers that may well be the case.
182.I also take account of Mr Paul’s longer term support needs, which the evidence before me is likely to increase over time and most likely address other domains such as self-care, self-management and mobility.
183.Because of these factors I do not consider that HACC is the most appropriate service delivery system to meet either his current or future complex support needs.
184.I find therefore that Mr Paul is likely to require NDIS support for his lifetime.
CONCLUSION
185.It is not disputed that Mr Paul meets the requirements of sections 22 and 23 of the NDIS Act.
186.For the reasons given above, the Tribunal is satisfied that Mr Paul meets the disability requirements set out in section 24 of the NDIS Act.
187.Accordingly, the Tribunal finds that Mr Paul meets the access criteria set out in section 21 of the NDIS Act.
Decision
The decision under review is set aside and, in substitution, the Tribunal decides that Mr Paul meets the access criteria under section 21 of the National Disability Insurance Scheme Act 2013 (Cth).
I certify that the preceding 209
(two hundred and nine)
paragraphs are a true copy of the
reasons for the decision herein
of General Member A. Williams….....................................................................
Dated: 2 April 2025
Dates of hearing:
12 and 14 February 2025
Advocate for Mr Paul:
Ms Jane Ogunkoya
Counsel for the Respondent:
Solicitor for the Respondent:
Mr Nic Edmondson
Ms Taylor Hawcridge of Maddocks Lawyers
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