Paulic and National Disability Insurance Agency (NDIS) - [2024] ARTA 944

Paulic and National Disability Insurance Agency (NDIS) [2024] ARTA 944 (4 November 2024)
Applicant/s:  Zlatko Paulic
Respondent:  National Disability Insurance Agency
Tribunal Number:                2022/4047

Tribunal:Member L Proske
Place:Adelaide
Date:4 November 2024

Decision:The Tribunal affirms the decision under review.

.............[SGND]..........................................................
Member L Proske
Catchwords
NATIONAL DISABLITY INSURANCE SCHEME – access to the scheme – disability requirements – whether impairments result in substantially reduced functional capacity to undertake one or more of the six prescribed activities – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) Act 2024 (Cth)
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)
Cases
National Disability Insurance Agency v Davis [2022] FCA 1002
National Disability Insurance Agency v Foster [2023] FCAFC 11
Mulligan v National Disability Insurance Agency [2015] FCA 544
Re Drake and Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Beaumont and National Disability Insurance Agency [2024] AATA 891
Rooney and National Disability Insurance Agency [2021] AATA 3523
Statement of Reasons

The Applicant (Mr Paulic) has applied to the Tribunal for review of a decision made by the National Disability Insurance Agency (Respondent) that he does not meet the access criteria for the National Disability Insurance Scheme (NDIS).
Mr Paulic is 55 years old. He was involved in a motor bike accident in 2008. He suffered a compound fracture in his right ankle (tibia and fibula) and a spiral fracture of his left femur, which required 15 operations and lengthy rehabilitation.[1] Mr Paulic is seeking access to the NDIS based on impairments arising from chronic pain, major depression, generalised anxiety and post-traumatic stress disorder (PTSD).[2]
[1] Applicant’s Statement of Facts, Issues and Contentions (ASFIC), [3]-[4]; Respondent’s Statement of Facts, Issues and Contentions (RSFIC), [4].
[2] ASFIC, [5]; RSFIC, [5].
BACKGROUND AND JURISDICTION
On 3 February 2022, a delegate of the Chief Executive Officer (CEO) of the Respondent determined that Mr Paulic did not meet the access criteria for the NDIS (original decision).[3] On 1 April 2022, Mr Paulic requested that the original decision be reviewed by a reviewer.[4] On 19 April 2022, a reviewer confirmed the original decision (internal review decision).[5]
[3] Exhibit 1 (E1), 120.
[4] E1, 187. This request was made under s 100(2).
[5] E1, 125. This request was made under s 100(6).
On 19 May 2022, Mr Paulic made an application to the Tribunal for review of the internal review decision.[6] Upon written application by Mr Paulic, the Tribunal extended the time for making that application until 19 May 2022. The Tribunal has jurisdiction to review the internal review decision under s 103(1) of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act), in combination with s 12 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act).[7]
[6] E1, 90.
[7] All sections referred to in this Statement of Reasons, including in footnotes, are sections within the National Disability Insurance Scheme Act 2013 (Cth), unless otherwise stated.
LEGISLATION AND POLICY
Mr Paulic must meet the access criteria in s 21(1) to become a participant of the NDIS. In summary, s 21(1) provides that a person meets the access criteria if they meet the age requirements in s 22; the residence requirements in s 23; and either the disability requirements in s 24 or the early intervention requirements in s 25.
There is no dispute between the parties, and the Tribunal is similarly satisfied on the evidence before it, that Mr Paulic meets the age and residence requirements in ss 22 and 23. Mr Paulic does not seek to rely upon the early intervention requirements in s 25.[8] The issue for determination by the Tribunal is therefore whether Mr Paulic meets the disability requirement in s 24.
[8] This was expressly confirmed by the Applicant’s counsel in their opening statement at the hearing.
Section 24 provides:
24  Disability requirements
(1)      A person meets the disability requirements if:
(a)   the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable; and
(b)   the impairment or impairments are, or are likely to be, permanent; and
(c)   the impairment or impairments result in substantially reduced functional capacity to undertake one or more of the following activities:
(i)communication;
(ii)social interaction;
(iii)learning;
(iv)mobility;
(v)self‑care;
(vi)self‑management; and
(d)   the impairment or impairments affect the person’s capacity for social or economic participation; and
(e)   the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime.
(2) For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the variation.
(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).
Under s 209(1) the Minister may make rules prescribing certain matters. Relevant to this application, the Minister has issued the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (Access Rules), which forms part of the legislation.
Operational Guidelines published on the NDIS website contain information about what the Respondent considers when making decisions under the legislative framework. These are essentially policy documents. The Operational Guidelines ‘Applying to the NDIS – Pre-legislation changes’ (Access Guideline), most recently updated on 14 October 2024, is relevant to this application.[9] The Tribunal will take this into account unless there are cogent reasons not to.[10]
[9] At the time of the hearing, the Access Guideline had most recently been updated on 1 February 2024. There is no difference between the 1 February 2024 and 14 October 2024 versions of the Access Guideline as they relate to the determinative issues within this review: see the Access Guideline updated 1 February 2024, 8-9 and the Access Guideline updated 14 October 2024, 8-9.
[10] Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 420.
EVIDENCE AND SUBMISSIONS
The parties filed with the Tribunal an agreed joint tender bundle on 1 August 2024. That included the T-Documents filed by the Respondent on 30 May 2022 under s 37 of the Administrative Appeals Tribunal Act 1975 (Cth), and evidence filed by both Mr Paulic and the Respondent during the review. The Respondent filed a supplementary joint tender bundle on 2 September 2024, which included 366 pages of documents produced under summons.
A hearing was conducted on 3 and 4 September 2024 by MS Teams. The agreed joint tender bundle and supplementary agreed joint tender bundle were received into evidence at the commencement of the hearing, marked Exhibit 1 and Exhibit 2 respectively. A further email from Mr Paulic to the Respondent dated 23 November 2022 was received into evidence at the hearing, marked Exhibit 3. Mr Paulic, Ms Samantha Weybury (Ms Weybury) and Mr Elliott Mate (Mr Mate) gave oral evidence at the hearing.
Both parties filed a Statement of Facts, Issues and Contentions prior to the hearing, made oral closing submissions on 4 September 2024, and subsequently filed written closing submission. Following the commencement of legislative amendments to the NDIS Act made by the National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) Act 2024 (Cth), the parties were directed to provide submissions regarding the effect, if any, of that enactment, and any Rules or Guidelines made thereunder, on this application for review. Such submissions were filed on behalf of each of the parties.
The Tribunal has considered the abovementioned evidence and submissions in making this decision.
CONSIDERATION
It is not in contest between the parties that Mr Paulic has a disability attributable to one or more physical impairments and has one or more impairments to which a psychosocial disability is attributable.[11] Nor is it in contest between the parties that Mr Paulic’s physical and psychosocial impairments are, or are likely to be, permanent.[12] The Tribunal is similarly satisfied on the evidence before it that Mr Paulic meets the requirements in ss 24(1)(a) and 24(1)(b).
[11] RSFIC, [13]; s 24(1)(a).
[12] RSFIC, [13]; s 24(1)(b).
The first issue in contention between the parties is whether Mr Paulic’s physical and psychosocial impairments (impairments) result in substantially reduced functional capacity to undertake one or more of the activities prescribed in s 24(1)(c), which include communication, social interaction, learning, mobility, self-care and self-management.
Rule 5.8 of the Access Rules provides:
An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities—communication, social interaction, learning, mobility, self-care, self-management (see paragraph 5.1(c))—if its result is that:
(a)the person is unable to participate effectively or completely in the activity, or to perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications; or
(b)the person usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in the activity or to perform tasks or actions required to undertake or participate in the activity; or
(c)the person is unable to participate in the activity or to perform tasks or actions required to undertake or participate in the activity, even with assistive technology, equipment, home modifications or assistance from another person.
If the criteria in paragraph 5.8(a), (b) or (c) of the Access Rules is met, then a person is mandatorily included within the cohort of people with substantially reduced functional capacity for the purposes of s 24(1)(c).[13] However, as was noted by Mortimer J in Mulligan v National Disability Insurance Agency [2015] FCA 544 (Mulligan), the statutory task remains to consider whether a person’s functional capacity is substantially reduced in any of the six specified areas.[14] In this sense, the concept of ‘substantially reduced functional capacity’ is not exhaustively defined by paragraph 5.8 of the Access Rules.[15]
[13] Mulligan v National Disability Insurance Agency [2015] FCA 544 (Mulligan), [76].
[14] Mulligan, [76].
[15] Mulligan, [76].
Neither the NDIS Act, nor the Access Rules, define what comprises each of the activities referred to in s 24(1)(c). The Access Guideline however provides non-exclusive content to the range of tasks and actions that comprise each of the prescribed activities.[16]
[16] National Disability Insurance Agency v Foster [2023] FCAFC 11 (Foster), [63].
The Access Guideline states:
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.[17]
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.
[17] Access Guideline, 9.
When considering whether it is satisfied the Applicant meets the requirement in s 24(1)(c), the Tribunal must make a functional, practical assessment of what the Applicant can and cannot do.[18] That assessment involves consideration of the full range of tasks or actions that comprise each of the prescribed activities.[19] The Applicant need only have substantially reduced functional capacity in relation to one of the prescribed activities.[20]
[18] Mulligan, [56].
[19] National Disability Insurance Agency v Foster [2023] FCAFC 11 (Foster), [64].
[20] Mulligan, [56].
Mr Paulic contends his impairments result in substantially reduced functional capacity to undertake the activities of mobility and self-care.[21] Whilst the Respondent accepts there is some reduction in Mr Paulic’s functional capacity with respect to the activities of mobility and self-care, the Respondent contends Mr Paulic does not meet the requirement in s 24(1)(c) by operation of the deeming provisions in Rule 5.8 of the Access Rules, and his impairments do not otherwise result in substantially reduced functional capacity to undertake those activities.[22]
[21] ASFIC, [24], [31].
[22] RSFIC, [26], [28]-[29], [36]; Respondent’s opening statement.
Before proceeding to consider the evidence as it relates to the range of tasks or actions that fall within the activities of mobility and self-care, the Tribunal notes that there are 3 functional capacity assessment reports prepared by occupational therapists in evidence that will be frequently referred to hereafter, those being a report dated 16 April 2021 prepared by Denise Snyder (Ms Snyder), a report dated 5 October 2023 prepared by Elliott Mate (Mr Mate), and a report dated 11 April 2024 prepared by Samantha Weybury (Ms Weybury).
Ms Snyder assessed Mr Paulic in his home over 1.5 hours on 12 April 2021.[23] At that time, Mr Paulic lived in a house on his own in Cohuna.[24] Ms Snyder had been practising as an occupational therapist for 4 years at the time of her report.[25] Her assessment was based on information provided by Mr Paulic and his social worker, observation, and document review.[26]
[23] E1, 105, 107.
[24] E1, 106.
[25] E1, 107.
[26] E1, 107.
Mr Mate assessed Mr Paulic over approximately 2 hours on 5 September 2023 in his current home which is owned and concurrently occupied by Mr Paulic’s sister.[27] Mr Mate’s assessment and recommendations were based on Mr Paulic’s demonstrated functional capacity during the assessment, analysis of the medical evidence made available to him, and consideration of the home environment and available supports.[28] Mr Mate has been working as an occupational therapist since 2018.[29] At the hearing, Mr Mate gave evidence he tends to put more of an emphasis on his own reports rather than what is in the medical evidence and what is reported, because these are the things he has seen on the day of the assessment. He does not typically use standardised assessment reports in the context of medico-legal assessments because they are generally based on self-reports which can be subjective or influenced by someone’s perception of their own abilities; and he finds his own observations give him a clearer picture than what someone may be reporting because what they are reporting may be inaccurate.[30] He found Mr Paulic to be focused and able to engage in the assessment.[31] Mr Paulic did say he was nervous and had some symptoms of anxiety, however he was able to respond to questions appropriately and asked questions of his own.[32] Mr Paulic did not object to Mr Mate taking photographs.[33] Mr Mate gave his oral evidence in a professional and measured way. At the hearing, Mr Mate made appropriate concessions with respect to his report during cross-examination and provided considered and well-reasoned explanations for his findings and recommendations.
[27] E1, 310; oral evidence.
[28] E1, 306.
[29] E1, 340.
[30] Oral evidence.
[31] Oral evidence.
[32] Oral evidence.
[33] Oral evidence.
Ms Weybury has been working as an occupational therapist since 2017.[34] She assessed Mr Paulic over 2 sessions: a home environment assessment occurred on 3 April 2024 which was estimated to have taken a little over an hour, and a follow-up telehealth session occurred on 10 April 2024 which was estimated to have taken 30 to 40 minutes.[35] Ms Weybury also used 5 standardised assessment tools, which included the World Health Organisation Disability Assessment Schedule 2.0 (WHODAS 2.0), the Community Integration Questionnaire-Revised (CIQ-R), the Depression Anxiety and Stress Scale 21 (DASS-21), the Lower Extremity Functional Scale (LEFS), and the Upper Extremity Functional Index (UEFI).[36] In oral evidence, Ms Weybury explained that those assessment tools are self-report assessments that provide additional or targeted information and can help inform recommendations on how to support someone. Ms Weybury agreed that the LEFS and UEFI can give an indication of what Mr Paulic could reasonably be expected to find difficult.[37] Ms Weybury’s oral evidence demonstrated a wholistic assessment of Mr Paulic’s impairments on his functional capacity. Her oral evidence was professional and objective, and she provided thorough explanations for her findings and recommendations.
[34] E1, 13.
[35] E1, 9; oral evidence.
[36] E1, 14-15.
[37] Oral evidence.
During cross-examination, Mr Paulic gave evidence that what he reported to Ms Snyder and Ms Weybury was truthful, but that some of what he reported to Mr Mate was incorrect. He clarified ‘I wasn’t being 100 percent truthful, I might have been 50 percent truthful to him’. He claimed to have overstated to Mr Mate what he could in fact do, because he was intimidated by Mr Mate and embarrassed by his disability. Mr Paulic gave oral evidence that he disclosed to Ms Weybury that he had not been completely truthful with Mr Mate because he was intimidated. Ms Weybury gave evidence she did not recall Mr Paulic having raised with her any concerns or complained about Mr Mate’s assessment. In circumstances where Mr Paulic has applied multiple times over many years to access the NDIS and understood Mr Mate’s functional capacity assessment was being completed within the context of this review application, the Tribunal does not accept Mr Paulic would have in fact overstated his capacity to Mr Mate irrespective of whether he was feeling anxious, intimidated or embarrassed during the assessment.
Mobility
The Access Guideline suggests that the activity of mobility is comprised of the following, non-exclusive content:
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 and legs.[38]
[38] Access Guideline, 8.
Mr Paulic reported to Ms Snyder he was independent with bed, car and chair transfers, and Ms Snyder observed him independently transfer in and out of a shower over a bath using grab rails.[39] Mr Paulic also reported to Ms Snyder he did not want to use an over toilet frame.[40] Mr Mate observed Mr Paulic complete chair, toilet and shower transfers safely without the assistance of another person.[41] He reported that Mr Paulic experiences difficulty with transfers from low heights, particularly when a stable surface is not available to provide support; and recommended the provision of equipment to support transfers, such as an over-toilet frame, a shower chair and a kitchen perching chair.[42] Ms Weybury also observed chair and bathroom transfers, and reported Mr Paulic can transfer on and off chairs independently, but with slowed movements and difficulty, needing a strong base to push up from.[43] She reported Mr Paulic has some difficulties with toilet transfers.[44] Ms Weybury opined Mr Weybury would likely benefit from a shower stool and an over-toilet frame to reduce pain related symptoms.[45] Ms Weybury suggested an electric lift recliner chair would increase comfort and Mr Paulic’s ability to transfer, however she does not suggest it is necessary for Mr Paulic to be able to transfer.[46] In oral evidence, Mr Mate stated he would not recommend an electric chair as they are expensive, and they essentially reduce the need to use leg muscles which can impact independence over time. At the hearing, Mr Paulic confirmed he is now using a shower stool, and prior to having that shower stool he relied on a handrail. The Tribunal finds Mr Paulic can complete chair, toilet and shower transfers, although he requires a handrail or a shower stool to safely complete shower transfers. Whilst Mr Mate and Ms Weybury recommended that Mr Paulic would benefit from an over toilet frame, they both opined he can complete toilet transfers albeit with difficulty and the Tribunal finds accordingly.
[39] E1, 109.
[40] E1, 112.
[41] E1, 315.
[42] E1, 315; oral evidence.
[43] E1, 24.
[44] E1, 27.
[45] E1, 35.
[46] E1, 32.

Mr Paulic’s evidence is that getting out of bed is difficult, can take a long time, and he will sometimes crawl out of bed and then use his walking stick or walls to stand.[47] Mr Paulic gave oral evidence he had a bed on a standard frame at the time of Ms Snyder’s assessment. It is unclear from Ms Snyder’s report whether she observed Mr Paulic complete a bed transfer, or how difficult she assessed this task was for him.[48] Mr Mate and Ms Weybury both reported Mr Paulic’s reluctance to demonstrate a bed transfer was the extreme difficulty of that task.[49] The Tribunal accepts that whilst Mr Paulic can transfer out of bed, it is with significant difficulty, and this task triggers pain. However, the Tribunal is not persuaded that it is Mr Paulic’s impairments that result in the degree of difficulty he experiences when completing bed transfers. Whilst Ms Weybury suggested a profiling height adjustable bed with therapeutic mattress would be more appropriate to assist Mr Paulic to manage his mobility and transfer difficulties, her evidence does not address whether, and if so the extent to which, a standard bed would improve his capacity to complete bed transfers.[50] Mr Mate opined that a standard bed would make bed transfers much easier for Mr Paulic.[51] The Tribunal accepts that evidence and finds that it is the fact that Mr Paulic’s bed is currently a mattress on the floor, that bed transfers are especially difficult for him; and he can complete bed transfers, albeit with some difficulty.
[47] E1, 51; oral evidence.
[48] E1, 111.
[49] E1, 24, 315.
[50] E1, 32.
[51] Oral evidence.
Mr Paulic’s evidence is that he finds it difficult to move between the different parts of his home, and the walls in his home have marks all over them as he is constantly placing his hands on them for support.[52] He limits his movement inside and tends to stay in the loungeroom.[53] He had a bad fall from a ladder in 2019 when he was up a ladder cleaning gutters, however he has no other fall history.[54] In September 2020, Mr Paulic’s General Practitioner Dr Leonid Gankin (Dr Gankin) reported that there are times when Mr Paulic relies on furniture and the walls in his home to help maintain his balance and move around.[55] Mr Mate reported that Mr Paulic can independently access all areas of his home, was observed to mobilise inside the home and appeared to have reduced balance and an unsteady gate.[56] Mr Mate was not concerned about Mr Paulic falling.[57] Ms Weybury reported that Mr Paulic walks independently with a walking stick or nil aid inside the house.[58] He was observed to use a walking stick to mobilise inside the home during the assessment as he reported being in extreme pain.[59] The Tribunal finds Mr Paulic can move around his home, although will sometimes require a walking stick to do that.
[52] E1, 52
[53] E1, 54.
[54] Oral evidence.
[55] E1, 149.
[56] E1, 315.
[57] Oral evidence.
[58] E1, 24.
[59] E1, 24.
Dr Gankin reported on 9 September 2020 that Mr Paulic sometimes uses a walking stick and can walk 500 to 600 metres before he needs to rest, and that it takes him around 30 minutes of rest before he has regained enough energy to be able to continue.[60] Sabah Fry (Ms Fry), a physiotherapist, reported that Mr Paulic can walk a maximum of 500 metres and requires a gait aid at times.[61] In the Access Request form, Karin Gillman (Ms Gillman) recorded that Mr Paulic has difficulty walking further than 500 metres and opined he would benefit from a 4-wheel walker.[62] As a complex care coordinator (social worker), the Tribunal does not consider Ms Gillman is qualified to recommend equipment to support Mr Paulic’s ability to mobilise. Ms Snyder reported that Mr Paulic could walk to his local appointments or supermarket, but that walking long distances was very tiring for him, and he cannot carry groceries home.[63] She further reported that if able, Mr Paulic walks down the street with his dog.[64] In oral evidence, Mr Paulic clarified that at the time of his assessment with Ms Snyder, if he did walk his dog down the street, he walked slowly and had to take a break half way, and that now he is not walking far at all.
[60] E1, 149.
[61] E1, 116, 117; E2, 356.
[62] E1, 174.
[63] E1, 111.
[64] E1, 109.
Mr Paulic reported to Mr Mate that he has a walking tolerance of approximately 5 to 10 minutes and can walk up to 300 metres before needing to rest.[65] Mr Paulic reported to Mr Mate that he needs to rest for approximately 40 minutes after 5 to 10 minutes of walking, however during the assessment, after approximately 5 to 10 minutes of walking/standing, he was observed to rest for approximately 5 to 10 minutes before resuming the assessment.[66] With respect to being able to walk 300 metres, Mr Mate gave oral evidence that during the assessment Mr Paulic pointed to a spot in the distance he walks to, and Mr Mate estimated the walk to that spot and back would be approximately 300 metres. Mr Mate gave oral evidence that Mr Paulic’s walking tolerance would probably be reduced if he needed to walk on really uneven or steep surfaces; and he would walk at a slower pace and with increased pain without a single point stick.[67] Mr Mate also confirmed at the hearing he would not recommend a mobility scooter for Mr Paulic, because he can access the community, walk short distances and use subsidised taxies.
[65] E1, 316; oral evidence.
[66] E1, 329.
[67] E1, 328-239.
Ms Weybury reported that Mr Paulic is only able to walk for approximately 5 minutes before needing to rest, and opined that it would be very difficult for him to walk for 10 or 15 minutes in one period.[68] Mr Paulic’s evidence is that he struggles to walk for 4 or 5 minutes; will walk up to 60 metres into the park behind his house before sitting down to watch his dog run around; has been using a single point stick almost every day for the past 6 months; and if he had a mobility scooter he could probably take his dog for a run.[69] Ms Weybury gave oral evidence that the benefit of Mr Paulic having a walker would be that he could use that to sit down and have rest breaks, and a scooter or powered device would be beneficial for longer distances, help to reserve his energy for other tasks he needs to complete and increase engagement in daily life. With respect to his walking tolerance, what Mr Paulic reported to Mr Mate was consistent with what he reported to Ms Snyder, and Mr Paulic’s own evidence is that what he reported to Ms Snyder was truthful. The Tribunal finds that Mr Paulic has a walking tolerance of 5 minutes or up to 300 metres with a single point walking stick but would thereafter need to take a rest. Based on Mr Mate’s observation of Mr Paulic during his assessment, the Tribunal finds Mr Paulic would likely need to rest for approximately 10 minutes after reaching his walking tolerance, before he could resume walking. The Tribunal accepts that Mr Paulic becomes fatigued with activity, and that there is a direct correlation between Mr Paulic’s level of activity and level of fatigue.
[68] E1, 24; oral evidence.
[69] Oral evidence.
In September 2020, Dr Gankin reported that Mr Paulic could not stand for more than 30 minutes.[70] Ms Fry reported in July 2021 that Mr Paulic could stand and sit for a maximum of 30 minutes.[71] Mr Paulic reported to Ms Snyder that he has a 15-to-20-minute standing tolerance, and reported to Mr Mate he has a limited standing tolerance.[72] Mr Mate gave oral evidence he observed Mr Paulic sit at the table for approximately 30 to 40 minutes without needing support, and opined he has a sitting tolerance of 30 minutes. He recommended Mr Paulic take breaks every 30 minutes, when travelling as a passenger in a car because of his reduced sitting tolerance. Ms Weybury reported Mr Paulic is not able to stand for long periods such as 30 minutes.[73] It appears that was based on Mr Paulic having reported he had ‘extreme difficulty or cannot do’ the task of standing for long periods such as 30 minutes, when he completed the WHODAS 2.0 assessment.[74] Mr Paulic gave oral evidence he told Mr Mate he can sit and stand for up to 30 minutes, and that this is correct. When Ms Weybury was told that Mr Paulic’s oral evidence was that he could stand for 30 minutes, she gave oral evidence that just because someone can stand for 30 minutes does not mean it is not without extreme difficulty. In circumstances where Mr Paulic reported to Mr Mate that he can sit and stand for 30 minutes, and gave evidence under affirmation that this is correct, the Tribunal finds that Mr Paulic’s sitting and standing tolerance is 30 minutes.
[70] E1, 149.
[71] E1, 116, 117.
[72] E1, 112, 317.
[73] E1, 24.
[74] E1, 34.
Mr Paulic’s evidence is that he relies on his sister to transport him to appointments.[75] She will drop him in front of where he needs to go, so he may only need to walk 10 or 15 metres upon arrival.[76] Sometimes, his sister will drop him to his local train station and he will then catch a train to an appointment.[77] When he does this, he will catch a taxi to and from the train station nearest his appointment.[78] He sometimes catches taxis between home and appointments.[79] Mr Paulic gave oral evidence that on the Sunday before the hearing, he travelled by train to and from Ballarat, to visit his daughter and grandchildren. That train ride was approximately 2 hours each way.[80] He was extremely fatigued when he arrived home from Ballarat, had had to take pain medication and lay down.[81] The hearing was on the Tuesday immediately after that trip, and Mr Paulic gave evidence he ‘was only just starting to come good’. Mr Paulic’s evidence is that he does not like being in vehicles, and as a passenger in a car he is always on edge and paranoid that something is going to hit him.[82] He sweats during car trips because of his nerves; and finds car transfers difficult.[83]
[75] E1, 49; oral evidence.
[76] Oral evidence.
[77] Oral evidence.
[78] Oral evidence.
[79] Oral evidence.
[80] Oral evidence.
[81] Oral evidence.
[82] E1, 54.
[83] E1, 54.
In December 2019, Dr Gankin reported that Mr Paulic is unable to drive safely because of his medical conditions and the medication he is on.[84] Dr Andrew Wilson (Dr Wilson), a consultant psychiatrist, reported in October 2021 that Mr Paulic’s anxiety is triggered by car sounds, and he is highly anxious driving as a passenger in a car.[85] Mr Paulic reported to Ms Snyder that he can transfer in and out of a car independently.[86] Mr Mate reported that Ms Paulic can experience difficulty accessing the community, may occasionally receive a lift from his sister, and will often use subsidised taxi vouchers.[87] Mr Mate also reported Mr Paulic can have difficulty using public transport due to his physical difficulties in mobilising between bus, train or tram stops; and that he reported he does not use public transport because of this.[88] Mr Mate opined that Mr Paulic would have the capacity to use public transport if required, though he would be required to rest between stops after mobilising for approximately 300 metres or every 5 to 10 minutes.[89] The only difficulty Ms Weybury reported Mr Paulic has when taking a taxi is the financial strain associated with that.[90] Ms Weybury recorded that Mr Paulic reported to her that his sister may occasionally drop him off at the train station to access an appointment that is a 5 minute maximum walk, and Mr Paulic needs to sit down immediately after walking to the required location from the train station.[91]
[84] Exhibit 2 (E2), 265.
[85] E2, 117.
[86] E1, 109.
[87] E1, 314, 315.
[88] E1, 315.
[89] E1, 315.
[90] E1, 29.
[91] E1, 29.
The Tribunal finds Mr Paulic can independently complete car transfers. Given Mr Paulic’s walking and standing tolerance, the resultant pain and fatigue he experiences with increased activity, and the distance between his home and local train station, the Tribunal accepts it would be extremely difficult and take a long time for Mr Paulic to walk to his local train station. Nevertheless, Mr Paulic has the functional capacity to catch a taxi to his local train station, should he need to catch a train. The Tribunal finds Mr Paulic can use trains and taxis to access and move around in the community. The Tribunal accepts travelling in a taxi may heighten Mr Paulic’s anxiety but not to the extent that he cannot do that, and that travelling by car and train causes Mr Paulic to feel fatigued.
Mr Paulic’s evidence is that it is hard to get his arm in the right position to wash his hair, it is a struggle to reach below his knees to scrub, and he cannot reach his back to wash it.[92] He cannot reach certain parts of his body to dry it properly after showering.[93] It is extremely difficult to shave, that task can take close to an hour, he has to break often, and he sometimes has to shave over 2 days.[94] Getting dressed is difficult.[95] He cannot reach above his head with his arms.[96] To put socks on, he lifts his leg up and then bends, it feels like he is pulling a muscle in his chest when he bends, and sometimes he can barely breath because it is so sore.[97]
[92] E1, 52.
[93] E1, 52.
[94] E1, 52.
[95] E1, 52; oral evidence.
[96] E1, 52.
[97] E1, 52.
Ms Fry reported in July 2021 that Mr Mate has significantly reduced right shoulder movement and strength and is unable to use his dominant hand above his head.[98] Mr Mate reported that Mr Paulic avoids overhead reaching and bending to pick things up from a low height as this flares his symptoms of pain; and he compensates for this by storing things between waist and shoulder height.[99] When Mr Paulic demonstrated his overhead reaching capacity, Mr Mate observed a reduction in his range of motion in his right shoulder and symptoms of pain.[100] Mr Mate reported that Mr Paulic has difficulty reaching his lower limbs and washing the top of his head due to his reduced range of motion and the pain he experiences when performing overhead tasks and washing his lower limbs.[101] Ms Weybury reported that Mr Paulic’s LEF score indicated extremely limited lower limb function, and that he indicated extreme difficulty or being unable to perform a range of activities.[102] Mr Weybury reported that Mr Paulic’s UEF score indicated a very limited level of upper extremity function, and that Mr Paulic indicated extreme difficulty or being unable to perform a range of tasks.[103] Ms Weybury recommended Mr Paulic use long handled aids, such as a sponge and pickup reacher.[104] The Tribunal notes that the LEF and UEF are self-report assessment tools. Nevertheless, Ms Paulic’s significant difficulty and resultant pain when he reaches above his head is consistent across the evidence and was observed by Mr Mate. So too is it consistent across the evidence that Mr Paulic cannot reach his lower limbs. The Tribunal accepts Mr Paulic’s impairments result in significant difficulty reaching above his head and an inability to reach below his knees. The Tribunal finds this impacts Mr Paulic’s capacity to complete components of daily activities that comprise the activity of mobility. The Tribunal accepts Ms Weybury’s evidence that Mr Paulic is likely to benefit from a long-handed sponge or reacher.
[98] E1, 116.
[99] E1, 315.
[100] E1, 315.
[101] E1, 316.
[102] E1, 24-25.
[103] E1, 25-26.
[104] E1, 28.
The Tribunal must consider whether Mr Paulic is taken to satisfy the requirement in s 24(1)(c) in relation to the activity of mobility by operation of the deeming provisions in r 5.8. Rule 5.8(a) provides that an impairment results in substantially reduced functional capacity of a person to undertake the activity of mobility if its result is that the person is unable to participate effectively and 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.
The construction of the phrase ‘effectively and completely’ was considered by the Full Court of the Federal Court in National Disability Insurance Agency v Foster [2023] FCAFC 11 (Foster). In Foster, their Honours noted:
‘The Macquarie Dictionary …. defines “effectively” to mean “serving to effect the purpose; producing the intended or expected result”. “Completely” is defined in the Macquarie Dictionary … to mean “wholly, entirely, fully” or “perfectly”. On a proper grammatical construction of r 5.8(a), the adverbial phrase qualifies the verb “to participate”. The use of the disjunctive “or” means that only one standard need be reached, not both.
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 task for almost everyone. That would be an absurd construction.”[105]
[105] Foster, [82]-[83].
Their Honours concluded:
‘The proper construction of the phrase “effectively and completely” in r 5.8 is informed by the NDIS Act, pursuant to which it was made …
…. 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’.[106]
[106] Foster, [85]-[88].
Mr Paulic did not press, nor did the evidence suggest, a need for home modifications. The Tribunal has found that Mr Paulic relies on a grab rail or shower stool to complete shower transfers, and a single pointed walking stick to mobilise in the community and on occasion within his home. Whilst Mr Paulic is not currently using a long-handled sponge or reacher, the Tribunal has accepted he is likely to benefit from these with respect to his significant difficulty reaching above his head and inability to reach below his knees. Before the Tribunal can consider whether Mr Paulic’s circumstances are captured by r 5.8(a), it must determine whether these things are ‘commonly used items’.
Neither the NDIS Act nor the NDIS Rules define the term ‘commonly used items’. In Rooney and National Disability Insurance Agency [2021] AATA 3523, the Tribunal identified that indicia of commonly used items include whether an item is generally accessible; can be used without the need for complex or specialised customisation or installation, is relatively simple to use; and is relatively inexpensive.[107] Whilst consideration of whether an item is a ‘commonly used item’ will always turn on the facts and circumstances of a particular matter, the Tribunal finds the reasoning in Rooney persuasive. In the circumstance of this matter, the Tribunal considers that a single pointed walking stick, a shower stool, grab rails and a long-handled sponge or reacher are all readily available items that are simple to use and relatively inexpensive.[108] They need not be customised in any way for Mr Paulic. On this basis, the Tribunal finds that each of those items are commonly used items for the purposes of r 5.8(a).
[107] Rooney and National Disability Insurance Agency [2021] AATA 3523 (1 October 2021), [27].
[108] Rooney, [27].
Given the Tribunal’s findings as outlined above, the Tribunal is not satisfied that Mr Paulic is unable to participate effectively and completely in the activity of mobility, or to perform tasks or actions required to undertake or participate effectively or completely in the activity of mobility, without assistive technology, equipment or home modifications.[109] Whilst Mr Paulic is sometimes transported to his appointments by his sister, the Tribunal has found that he can in fact independently mobilise within the community, albeit it with some difficulty. The Tribunal has not found that Mr Paulic requires assistance for another person to perform any task or action required to participate in the activity of mobility. It follows that the Tribunal is not satisfied Mr Paulic usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in the activity of mobility or to perform tasks or actions required to undertake or participate in the activity of mobility.[110] Mr Paulic does not claim, nor is the Tribunal satisfied on the evidence before it, that Mr Paulic is unable to participate in the activity of mobility 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.[111] The Tribunal finds Mr Paulic’s impairments are not deemed to result in substantially reduced functional capacity to undertake the activity of mobility by operation of the deeming provisions r 5.8.
[109] r 5.8(a).
[110] r 5.8(b).
[111] r 5.8(c).

The Tribunal has found that Mr Paulic can complete chair, toilet and shower transfers, but requires a handrail or a shower stool to safely complete shower transfers; he can complete bed transfers, albeit it with some difficulty; he can move around his home, although will sometimes require a walking stick to do that; he has a walking tolerance of 5 minutes or up to 300 metres with a single point walking stick but would thereafter need to rest, he would likely need to rest for approximately 15 minutes after reaching his walking tolerance before he could resume walking, and there is a direct correlation between Mr Paulic’s level of activity and level of fatigue; he has a standing and sitting tolerance of 30 minutes; he can use taxis and trains to move around in the community, however travelling by car and train does cause him to become fatigued; he has significant difficulty reaching above his head and an inability to reach below his knees which impacts his capacity to complete components of daily activities that comprise the activity of mobility.
Having considered the full range of tasks or actions that comprise the activity of mobility, whilst it is clear Mr Paulic’s impairments result in reduced functional capacity to undertake the activity of mobility, the Tribunal finds that reduction is not substantial. Accordingly, the Tribunal is not satisfied that the requirement in s 24(1)(c) is met in relation to the activity of mobility.
Self-care
The Access Guideline suggests that the activity of self-care is comprised of the following, non-exclusive content:
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.[112]
[112] Access Guideline, 8.
Mr Paulic reported to Ms Snyder that he showered every second day, was independent with showering, used rails for stability when showering, showers for a maximum of 10-15 minutes, and had nil concern with drying himself.[113] In May 2024 Mr Paulic’s evidence was that he showered once a fortnight because he finds it difficult, painful and mentally challenging.[114] At that time, he did not have a shower stool, and he would place one hand on the railing and then lean on that railing and try to reach the different parts of his body.[115] He struggled to wash below his knees and he could not reach his feet to wash them.[116] Washing his hair was difficult, he had not scrubbed the back of his body in ages, and washing the front of his body was very painful.[117] Drying himself was painful and he could not reach different parts of his body.[118] Mr Paulic’s oral evidence was that he was showering ‘maybe twice a week’ for approximately 5 to 10 minutes as at the time of the hearing, it takes 4 or 5 minutes to dry himself and there are some parts of his body he cannot reach to dry. He now has a shower stool, and he also has a rubber mat to reduce the risk of slipping.[119]
[113] E1, 112.
[114] E1, 52.
[115] E1, 52.
[116] E1, 52.
[117] E1, 52.
[118] E1, 52.
[119] E1. 27.
With respect to showering, Mr Mate reported that Mr Paulic has difficulty reaching his lower limbs and washing the top of his head due to his reduced range of motion and pain.[120] There was a grab rail installed in the shower recess, and Mr Mate suggested Mr Paulic may benefit from the provision of a shower chair and a long-handled sponge to promote safety and independence with showering.[121] Mr Mate’s oral evidence was that the recommended shower stool and long handled sponge would enable Mr Paulic to wash more of his body and to do it in a safer way. Ms Weybury reported that Mr Paulic needs to sit on a shower stool for safety and function, and showers twice a week due to pain and reduced physical tolerance, reduced purpose in daily life to need to shower more frequently.[122] She opined that Mr Paulic was at risk of self-neglect due to difficulty with engaging in the task of showering and reduced mental health.[123] She suggested a long-handled sponge may be of benefit to him. In oral evidence, Ms Weybury opined that physical limitations are the bigger barrier to Mr Paulic not showering every single day or as needed, but given that he does have psychosocial diagnoses and the DASS-21 showed quite high scores, it was safe to draw an inference that those symptoms would also be playing on reduced participation in self-care tasks.
[120] E1, 316.
[121] E1, 316.
[122] E1, 27.
[123] E1, 27.
The Tribunal finds that Mr Paulic showers twice a week for 5 to 10 minutes, and despite now using a shower stool, this task continues to be very difficult for him. The Tribunal accepts Mr Paulic cannot wash all parts of his body properly, although considers he can generally clean himself. Based on Mr Mate’s and Ms Weybury’s recommendation, the Tribunal considers a long-handled sponge may enable Mr Paulic to wash some parts of his body he cannot currently reach. The Tribunal further finds Mr Paulic can generally dry himself in 4 to 5 minutes, however there are parts of his body that he cannot reach.
Mr Paulic’s evidence is that dressing takes a long time and is physically and mentally challenging.[124] If he leaves the house he wears loose clothing, otherwise he will stay in pyjamas, dressing gown and slippers.[125] He has developed techniques to put his t-shirt and pants on.[126] The hardest part of getting dressed is putting socks on as he feels like he is pulling a muscle in his chest when he bends down, and sometimes he can barely breath because it is so sore.[127] He has orthopaedic runners he can slip on when he leaves home.[128] Mr Paulic’s oral evidence was that it takes him 10 to 15 minutes to get dressed, he rarely wears socks as he cannot really put them on, and his sister never provides him with assistance to get dressed. Mr Paulic reported to Ms Snyder that dressing can sometimes be an issue.[129] He reported to Mr Mate that he is able to dress independently, however it takes increased time.[130] Mr Mate reported that Mr Paulic sits on his bed when getting dressed and donning and doffing shoes, and uses a shoehorn for donning and doffing shoes.[131] Ms Weybury reported that Mr Paulic is able to dress independently, however takes extra time and may stay in his pyjamas all day if not leaving the home.[132] The Tribunal finds Mr Paulic can dress himself, although he will sometimes require a shoehorn.
[124] E1, 52.
[125] E1, 52.
[126] E1, 52; oral evidence.
[127] E1, 52.
[128] E1, 52.
[129] E1, 112.
[130] E1, 316.
[131] E1, 316.
[132] E1, 27.
With respect to toileting, the Tribunal has already found Mr Paulic can complete toilet transfers and can move around inside the house although sometimes uses a single pointed stick. It follows that Mr Paulic can get himself to and from the toilet. Mr Paulic did not report any concerns in relation to toileting to Ms Snyder.[133] Mr Mate reported Mr Paulic is independent with wiping, hygiene and washing his hands.[134] Ms Weybury reported that Mr Paulic is completely independent with toileting.[135] The Tribunal accepts this evidence and finds Mr Paulic can complete toileting independently.
[133] E1, 112.
[134] E1, 316.
[135] E1, 27.
Mr Paulic’s evidence is that personal hygiene and grooming are a real struggle for him.[136] He can only shave once a fortnight, he struggles to complete this task, the process can take close to an hour as he needs to pause and take breaks often.[137] He usually completes a shave over 2 days.[138] Mr Mate reported that Mr Paulic is independent with cleaning his teeth, washing his face, and shaving; however he finds these tasks difficult.[139] Mr Paulic reported to Mr Mate that sometimes shaving is completed over a couple of days as he can experience pain in his shoulder whilst shaving, which impairs his ability to finish shaving in one attempt.[140] Both Mr Mate and Ms Weybury reported that Mr Paulic cannot cut his toenails himself, and recommended a podiatrist to assist Mr Paulic with footcare.[141] The Tribunal finds Mr Paulic can brush his teeth and wash his face, however he cannot cut his toenails and requires the assistance of another person to complete that aspect of grooming. With respect to shaving, Mr Paulic can shave however it is with extreme difficulty and will sometimes have to be completed over 2 days.
[136] E1, 54.
[137] E1, 52; oral evidence.
[138] E1, 52.
[139] E1, 316.
[140] E1, 316.
[141] E1, 27, 316.
Mr Paulic’s evidence in relation to meal preparation is that he does not eat 3 meals a day, he makes a coffee in the morning which is an exhausting and painful exercise, and as he does not have much of an appetite he prefers light snacks for lunch and dinner.[142] He prefers easy meals which require less standing and preparation.[143] His sister cooks at times, and they also order takeaway.[144] He tries to cook so that he can contribute to the house, but he cannot jump up and down frequently, or stand for a long time.[145] He only makes things that can sit in a pot for a long time, like a soup or a stew.[146] Mr Paulic’s oral evidence was that he will sometimes heat frozen meals in the microwave, whilst other times his sister cooks; and when cutting vegetables or leaning over into he bin he will have to stop. He must go and sit down if he cuts a couple of carrots.[147] He has used, and continues to use, a kitchen stool to sit down for short breaks in the kitchen.[148]
[142] E1, 54.
[143] E1, 54.
[144] E1, 54.
[145] E1, 54.
[146] E1, 54.
[147] Oral evidence.
[148] Oral evidence.
Mr Paulic reported to Ms Snyder that he can cook chicken soup but only has a 15-to-20-minute standing tolerance; and has a frozen meal most nights due to his limited standing tolerance to cook meals.[149] She recommended he sit down to prepare food and take regular breaks.[150] She also recommended assistance with meal preparation.[151] Mr Mate opined that Mr Paulic is able to complete meal preparation with difficulty.[152] Mr Paulic reported to Mr Mate that reduced standing tolerance and pain impact his independence with meal preparation, and Mr Mate recommended trialling a kettle tipper, an electric jar opener and a kitchen perching stool to increase his independence with this task.[153] In oral evidence Mr Mate explained that the recommended perching stool predominantly relates to meal preparation and its purpose is to allow Mr Paulic to sit, whilst preparing meals, to reduce the need for prolonged standing. Mr Mate opined that if Mr Paulic was going to be preparing complex or heavier meals, his limitations would not be the lifting or carrying of the pans, it would be because of his limb strength opening jars and chopping heavy vegetables.[154] Mr Paulic reported to Ms Weybury he can make himself a sandwich for lunch and typically puts items in the oven for dinner.[155] Ms Weybury reported that Mr Paulic’s ability to engage in meal preparation is severely impaired contributing to poor nutrition.[156] Ms Weybury suggested Mr Paulic would likely benefit from an automatic jar/can/bottle opener and a kettle tipper, and recommended support worker assistance with meal preparation.[157]
[149] E1, 109.
[150] E1, 109.
[151] E1, 112.
[152] E1, 317.
[153] E1, 317.
[154] Oral evidence.
[155] E1 28.
[156] E1, 28.
[157] E1, 32.
The Tribunal accepts that Mr Paulic’s standing tolerance, reduced limb strength and pain impact his ability to prepare meals. The Tribunal similarly accepts that Mr Paulic’s sister may do much of the cooking in their home, however that does not mean Mr Paulic cannot cook. The Tribunal notes that Ms Weybury’s assessment of Mr Paulic’s capacity to prepare meals differs from Mr Mate’s. Ms Weybury concluded Mr Paulic requires maximal assistance with meal preparation, however in recommending a support worker for this task Ms Weybury stated Mr Paulic has not been able to cook and depends on making sandwiches and putting processed foods in the oven.[158] The Tribunal finds Mr Paulic was not as forthcoming with Mr Weybury as he was with Mr Mate in disclosing the extent of his capacity to prepare meals. However, even if Mr Paulic had not been preparing more complex food, that does not mean he cannot do so. Indeed, Mr Paulic’s own evidence is that he can make soups and stews. The Tribunal finds Mr Paulic can prepare meals independently, although he may require a perching stool, a kettle tipper and an electric jar opener. He may also need to take breaks whilst preparing meals.
[158] E1, 32.
Mr Paulic reported to Ms Snyder that when he lived in Cohuna he had a friend who collected his groceries from the local IGA, and he would sometimes walk to IGA to purchase groceries and then have his groceries delivered.[159] Mr Paulic reported that when he did that, he was exhausted upon returning home and tended to have a nap, by which time the groceries would be at his door.[160] Mr Paulic’s evidence is his sister completes shopping for the household, and when he lived on his own in Cohuna, he would usually take a taxi to do the food shop, because it was too difficult to walk the 300 metres to the shops and he had his groceries then delivered for free; and he used deliveries wherever possible.[161] In 2020 Dr Gankin reported that shopping is a slow and time consuming task for Mr Paulic that requires extra planning, he gets exhausted when walking to the supermarket, has to rest before completing his shopping, then gets his groceries delivered so he doesn’t have to lift and carry them, and once he gets home he needs to rest again before slowly putting his groceries away.[162] Mr Paulic reported to Mr Mate that when he had previously lived in Cohuna he was able to complete online grocery shopping independently, and his sister currently completes his shopping tasks.[163] Mr Mate reported that it is anticipated that if he were required to complete grocery shopping independently, he would be able to use grocery shopping delivery services.[164]
[159] E1, 108.
[160] E1, 108.
[161] E1, 50, 54.
[162] E1, 149.
[163] E1, 317.
[164] E1, 317.
In oral evidence, Mr Mate stated Mr Paulic had a modified technique in relation to shopping. Mr Mate’s opinion that Mr Paulic has the capacity to do shopping was based on his observations during the assessment, his lifting capacity of up to 5 kilos, and his demonstrated capacity to previously use online shopping.[165] Mr Mate opined Mr Paulic does have the capacity to do in-person shopping, with certain limitations within his functional demands. Whilst Mr Paulic’s sister is currently doing his shopping for him, Mr Mate opined he does not need that physical assistance, that is just the arrangement they have come to, he has previously demonstrated functional capacity to do that, and he has that capacity now.[166] Mr Mate opined that if Mr Paulic were to have groceries delivered to his door, he would be able to unpack within his weight capacity of up to 5 kilograms and bring those groceries inside, although he may consider breaking that task up a bit.[167] In contrast to Mr Mate’s evidence, Ms Weybury reported that Mr Paulic is dependent on his sister to complete shopping and recommended support worker assistance for shopping.[168]
[165] Oral evidence.
[166] Oral evidence.
[167] Oral evidence.
[168] Oral evidence.
It is unclear from Mr Weybury’s report whether she considered the range of ways in which shopping can be completed, before concluding Mr Paulic requires total assistance with this task. The Tribunal finds that Mr Paulic was more forthcoming with Mr Mate than Ms Weybury with respect to his reporting in relation to how he completed this task before living with his sister. The Tribunal found Mr Mate’s assessment with respect to this task more comprehensive, considered and persuasive. The Tribunal finds that whilst Mr Paulic currently relies on his sister to shop, that does not mean he cannot shop himself. The Tribunal finds he has the ability to utilise online shopping and home delivery to complete shopping, and to pick those up from his front door, take them inside and put them away. The Tribunal accepts Mr Paulic may need to pace himself in relation to that latter component and may be fatigued depending on the amount of shopping needing to be carried inside and unpacked.
With respect to Mr Paulic’s health, the Tribunal has already found he can mobilise in the community using taxis and trains. His own evidence is that he can and does utilise those modes of transport to attend appointments when his sister is unable to transport him. It follows that Mr Paulic can get himself to and from medical or other health related appointments. Mr Paulic’s evidence is that his sister collects his medications which come in a Webster-pak from the pharmacist. Whilst the Tribunal accepts that this is the arrangement he and his sister have, on the basis that the Tribunal has found Mr Paulic can mobilise in the community and shop independently, the Tribunal finds he can do this task even if he does not do it at this time.
Mr Paulic’s evidence is that when he lived in Cohuna, his daughter would visit him every few weeks to help clean the property, and he also received support from the council with cleaning the house and doing the mowing.[169] He would like to live on his own, however he is very reliant on his sister to look after the house.[170] Mr Paulic’s oral evidence was that he finds it difficult it to wash up, does not contribute to house cleaning, and if he were to try to clean the house ‘it’ll only last 2 minutes’.[171] In July 2020, Dr Ali Sheaar (Dr Sheaar) opined that Mr Paulc needs help and support for home chores and maintenance.[172] In August and September 2020, Dr Gankin reported that Ms Paulic cannot maintain his home environment and urgently needs home help with tasks that require him to stand such as vacuuming and doing dishes.[173] Mr Paulic reported to Dr Gankin that hanging out his washing is a mission as he has to carry the washing down some steps before attempting to hang the clothes on the line.[174] In October and November 2021, Dr Andrew Wilson (Mr Wilson), consultant psychiatrist, reported that Mr Paulic has trouble managing household responsibilities and other activities of daily living such as cleaning the house and gardening.[175] Other than Dr Gankin’s suggestion that Mr Paulic needs help with household tasks involving standing, these reports from Dr Sheaar, Dr Gankin and Dr Wilson do not particularise exactly what household and gardening tasks Mr Paulic can and cannot do, and to that extent do not assist the Tribunal to make a practical functional assessment of what Mr Paulic’s functional capacity is. Nor does the Tribunal consider that gardening comes within the domain of self-care in Mr Paulic’s circumstances.[176]
[169] E1, 50.
[170] E1, 49.
[171] Oral evidence.
[172] E1, 145.
[173] E1, 147, 149.
[174] E1, 149.
[175] E1, 153; E2, 117
[176] Beaumont and National Disability Insurance Agency [2024] AATA 891 (30 April 2024), [133]-[134].
Ms Snyder reported that Mr Paulic’s home in Cohuna was cluttered, he had difficulty maintaining it, and he had been referred to the Shire for house cleaning.[177] Mr Snyder recommended support worker assistance for home maintenance.[178] Mr Mate reported that Mr Paulic’s sister completes vacuuming and mopping as well as heavier household things.[179] He opined that Mr Paulic has the capacity to complete light cleaning such as wiping down benches and tidying items away, but it is highly unlikely Mr Paulic could complete heavier household cleaning such as scrubbing and mopping.[180] Mr Mate considered Mr Paulic is able to independently pack away and tidy things with modified independence, taking breaks every few minutes and storing items in places below head height so they can be easily accessed.[181] Mr Paulic reported to Mr Mate he can do the washing up and clean the kitchen, however it takes him extra time.[182] Mr Mate opined Mr Paulic is expected to be able to use the washing machine and hang clothes on an airer, taking extra time; however he relies on his sister to complete bed changes and this is outside his capacity.[183] Mr Mate recommended assistance for heavy house cleaning.[184] Ms Weybury reported that Mr Paulic can engage in basic cleaning such as wiping down the kitchen bench but is unable to engage in heavier jobs such as vacuuming, mopping and cleaning the bathroom.[185] She reported that Mr Paulic puts his clothes in the washing machine and his sister completes all other steps required for laundry.[186] Ms Weybury recommended support worker assistance to support Mr Paulic with heavier cleaning and changing bed sheets.[187] Consistent across the evidence is that Mr Paulic cannot complete heavy cleaning such as vacuuming, mopping or scrubbing, or changing bed linen, and the Tribunal finds accordingly. The Tribunal finds that Mr Paulic can however washup, wipe down kitchen benches and other light household cleaning, pack away and tidy things, use a washing machine and hang his clothes on an air dryer, albeit that he may need to take rests along the way.
[177] E1, 108; E2, 358.
[178] E1, 110.
[179] E1, 317.
[180] E1, 317.
[181] E1, 317.
[182] E1, 317.
[183] E1, 317
[184] E1, 317.
[185] E1, 28.
[186] E1, 28.
[187] E1, 32.

The Tribunal must consider whether Mr Paulic’s is taken to satisfy the requirement in s 24(1)(c) in relation to the activity of self-care by operation of the deeming provisions in r 5.8. The Tribunal has already determined that a grab rail, shower stool and long-handled sponge or reacher are common household items for the purposes of r 5.8(a). Relevant to self-care, the Tribunal has also found Mr Paulic uses a non-slip mat in the shower and a shoehorn when dressing and may require a perching stool, kettle tipper and electric jar opening. In the circumstances of this matter, the Tribunal considers that a non-slip mat, shoehorn, perching stool, kettle tipper and electric jar opening are all readily available items that are simple to use and relatively inexpensive.[188] They need not be customised in any way for Mr Paulic.[189] On this basis, the Tribunal finds that each of those items are commonly used items for the purposes of r 5.8(a). It follows that the Tribunal is not satisfied that Mr Paulic is unable to participate effectively and completely in the activity of self-care, or to perform task or actions required to undertake or participate effectively or completely in the activity of self-care, without assistive technology, equipment or home modification.[190]
[188] Rooney, [27].
[189] Rooney, [27].
[190] s 5.8(a).
Rule 5.8(b) provides that an impairment results in substantially reduced functional capacity of a person to undertake the activity of self-care if its result is that 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 Tribunal has found Mr Paulic cannot cut his toenails himself, complete heavy household cleaning or change bedding. The question arising is whether, in those circumstances, Mr Paulic is taken to satisfy s 24(1)(c) by operation of the deeming provision in r 5.8(b).
The Tribunal has found that Mr Paulic can independently shower, dry, dress, toilet, groom (other than cutting his toenails), prepare meals, shop, access medical appointments and medication, wash dishes, wipe kitchen benches and complete other light household cleaning, pack away and tidy things, use a washing machine and hang his clothes on a clothes airer. Given those findings, the Tribunal does not consider that Mr Paulic’s need for physical assistance with heavy household cleaning, cutting toenails and changing bedding means he usually requires assistance from other people to participate in the activity of self-care. Nor does the Tribunal consider that Mr Paulic’s inability to complete heavy cleaning, cut his toenails or change bedding means he usually requires assistance to perform tasks or actions required to undertake or participate in the activity of self-care. It follows Mr Paulic is not deemed to satisfy s 24(1)(c) by operation of r 5.8(b). Mr Paulic does not claim, nor is the Tribunal satisfied on the evidence before it, that Mr Paulic is unable to participate in the activity of self-care, even with assistive technology, equipment, home modifications or assistance from another person.[191] The Tribunal finds Mr Paulic’s impairments are not deemed to result in substantially reduced functional capacity to undertake the activity of self-care by operation of the deeming provisions in r 5.8.
[191] r 5.8(b).
The Tribunal has found that Mr Paulic can shower, dry, dress, toilet, groom (other than cutting his toenails), prepare meals, shop, access medical appointments and medication, wash dishes, wipe kitchen benches and complete other light household cleaning, pack away and tidy things, use a washing machine and hang his clothes on a clothes airer. He cannot complete heavy cleaning tasks, cut his toenails or change his bedding. Having considered the full range of tasks and actions that comprise the activity of self-care, whilst it is clear Mr Paulic’s impairments result in reduced functional capacity to undertake the activity of self-care, the Tribunal finds that reduction is not substantial. Accordingly, the Tribunal is not satisfied that the requirement in s 24(1)(c) is met in relation to the activity of self-care.
Mr Paulic did not claim, nor is the Tribunal satisfied on the evidence before it, that his impairments result in substantially reduced functional capacity to undertake the activities of communication, social interaction, learning or self-management. It follows that Mr Paulic does not satisfy the requirement in s 24(1)(c).
The Tribunal finds Mr Paulic does not meet the access criteria in s 21(1) to become a participant of the NDIS.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding seventy (70)
paragraphs are a true copy of the reasons
for the decision herein of General Member L Proske
……[SGND]………………………..
Associate
Dated: 4 November 2024
Date of hearing:  3, 4 September 2024
Counsel for the Applicant:   James Dalrymple
Counsel for the Respondent:  Adam Hay