PNKT and National Disability Insurance Agency

PNKT and National Disability Insurance Agency [2019] AATA 5551 (20 December 2019)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number: 2018/0552
Re:PNKT
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Dr L Bygrave, Member
Date:20 December 2019
Place:Sydney

The decision under review is affirmed.
...............................[SGD].........................................
Dr L Bygrave, Member
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – access request – whether applicant meets disability requirements – whether applicant meets early intervention requirements – where applicant has multiple disabilities – where only osteoarthritis in both knees permanent – where applicant’s impairments do not result in substantially reduced functional capacity – where applicant’s impairments affect his capacity for social and economic participation – where no medical evidence that provision of early intervention support would benefit the applicant – decision affirmed
LEGISLATION
National Disability Insurance Scheme Act 2013 (Cth) ss 3, 4, 21, 22, 23, 24, 25, 209
CASES
Mulligan v National Disability Insurance Agency [2015] FCA 544
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634
SECONDARY MATERIALS
Convention on the Rights of Persons with Disabilities completed at New York on 12 December 2006 [2008] ATS 12
National Disability Insurance Agency: Operational Guideline – Access to the NDIS
National Disability Insurance Scheme (Becoming a Participant) Rules 2016(Cth)
REASONS FOR DECISION
Dr L Bygrave, Member
20 December 2019

The applicant, PNKT, is aged 61 years. He has applied to become a participant in the National Disability Insurance Scheme (the NDIS).
On 27 June 2017, a delegate of the Chief Executive Officer (CEO) of the National Disability Insurance Agency (the NDIA) determined that the applicant does not meet the access criteria specified in section 21 of the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act). In particular, the delegate decided the applicant does not meet section 24 (disability requirements) of the NDIS Act.
The applicant requested an internal review and, on 12 January 2018, the NDIA affirmed the decision made on 27 June 2017 and decided that the applicant does not meet section 24 (disability requirements) or section 25 (early intervention requirements) of the NDIS Act (the internal review decision).
On 7 February 2018, the applicant made an application for review of the internal review decision to the NDIS Division of the Administrative Appeals Tribunal (the Tribunal).
The application was heard by the Tribunal in Sydney on 7 May 2019, 8 May 2019, 30 July 2019, 15 October 2019 and 22 October 2019. Due to the applicant’s ill-health that affected his capacity to give evidence, the Tribunal was required to either adjourn or vacate the hearing on 8 May 2019, 30 July 2019, 31 July 2019 and 11 September 2019. For this reason, the applicant also attended the hearing by telephone on 15 October 2019 and 22 October 2019. The applicant had legal representation throughout the hearing process.
RELEVANT LEGISLATION
The Parliament of Australia expressly provided objects and principles in the NDIS Act to give guidance on the interpretation of the statute.
The objects of the NDIS Act are set out in section 3 and include giving effect to Australia’s obligations under the Convention on the Rights of Persons with Disabilities completed at New York on 13 December 2006;[1] and facilitating the development of a nationally consistent approach to the access to, and the planning and funding of, supports for people with disability. Paragraph 3(3)(b) of the NDIS Act also provides that, in giving effect to the objects of the Act, regard is to be had to the need to ensure the financial sustainability of the NDIS.
[1] [2008] ATS 12.
The general principles guiding actions under the NDIS Act are contained in section 4 and include affirming that people with disability should be supported to participate in and contribute to social and economic life to the extent of their ability, and promoting positive personal and social development of people with disability.
Under subsection 209(1) of the NDIS Act, the Minister may make rules prescribing matters under the Act. Relevant to this matter, the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (the Participant Rules) also form part of the legislation.
Operational Guidelines written by the CEO of the NDIA also assist staff to make decisions in accordance with the NDIS Act. Operational Guidelines represent government policy and should be applied by the Tribunal unless there is good reason not to do so.[2]
[2] Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[1979] AATA 179; (1979) 2 ALD 634.
The access criteria
To become a participant in the NDIS, the applicant must satisfy the access criteria, which are summarised in subsection 21(1) of the NDIS Act:
21 When a person meets the access criteria
(1)       A person meets the access criteria if:
(a)The CEO is satisfied that the person meets the age requirements (see section 22); and
(b)The CEO is satisfied that, at the time of considering the request, the person meets the residence requirements (see section 23); and
(c)The CEO is satisfied that, at the time of considering the request:
(i)     the person meets the disability requirements (see section 24); or
(ii)    the person meets the early intervention requirements (see section 25).
There is no dispute that the applicant meets the age requirements in section 22 and the residence requirements in section 23 of the NDIS Act. The issue in dispute, and therefore the issue for determination by the Tribunal, is whether the applicant meets the access criteria as set out in section 24 of the NDIS Act (disability requirements) or in section 25 of the NDIS Act (early intervention requirements). For completeness, I note the alternative access criteria, which are set out in subsection 21(2) of the NDIS Act, are not relevant to this matter.
Sections 24 and 25 of the NDIS Act state:
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 to one or more impairments attributable to a psychiatric condition; and
(b)The impairment or impairments are, or are likely to be, permanent; and
(c)The impairment or impairments result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the following activities:
(i)     communication;
(ii)    social interaction;
(iii)   learning;
(iv)   mobility;
(v)    self‑care;
(vi)   self‑management; and
(d)The impairment or impairments affect the person’s capacity for social or economic participation; and
(e)The person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime.
(2)       For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the variation.
25 Early intervention requirements
(1)       A person meets the early intervention requirements if:
(a)The person:
(i)     has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent; or
(ii)    has one or more identified impairments that are attributable to a psychiatric condition and are, or are likely to be, permanent; or
(iii)   is a child who has developmental delay; and
(b)The CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person’s future needs for supports in relation to disability; and
(c)The CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by:
(i)     mitigating or alleviating the impact of the person’s impairment upon the functional capacity of the person to undertake communication, social interaction, learning, mobility, self‑care or self‑management; or
(ii)    preventing the deterioration of such functional capacity; or
(iii)   improving such functional capacity; or
(iv)   strengthening the sustainability of informal supports available to the person, including through building the capacity of the person’s carer.
Note:    In certain circumstances, a person with a degenerative condition could meet the early intervention requirements and therefore become a participant.
(2)       The CEO is taken to be satisfied as mentioned in paragraphs (1)(b) and (c) if one or more of the person’s impairments are prescribed by the National Disability Insurance Scheme rules for the purposes of this subsection.
(3)       Despite subsections (1) and (2), the person does not meet the early intervention requirements if the CEO is satisfied that early intervention support for the person is not most appropriately funded or provided through the National Disability Insurance Scheme, and is more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or through systems of service delivery or support services offered:
(a)As part of a universal service obligation; or
(b)In accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
The relevant Operational Guideline is the Operational Guideline – Access to the NDIS (the Access Operational Guideline); chapter 8 of the Access Operational Guideline is titled The Disability Requirements and chapter 9 is titled The Early Intervention Requirements.
EVIDENCE
The evidence before the Tribunal comprises:
·a written statement by the applicant dated 18 July 2018, and the applicant’s oral evidence to the Tribunal on 7 May 2019, 8 May 2019, 30 July 2019 and 15 October 2019;
·evidence from medical practitioners who have examined and/or treated the applicant; and
·evidence from occupational therapists who have assessed the applicant.
The applicant’s evidence
The applicant resides in north-west Sydney, New South Wales (NSW). He described his personal circumstances as living with, but separated from, his ex-wife. He does not have children and has very limited contact with members of his extended family.
In his written statement, the applicant set out that he has been diagnosed with ‘severe permanent conditions, including anxiety, depression, as well as osteoarthritis and spinal disk injury’ that prevents him from ‘undertaking the activities of daily life’.[3] He described feelings of constant and consistent low mood, worthlessness, guilt, failure, irritability and anger, and explained that these feelings consume him to the extent that he is left tired, without energy and frequently crying. The applicant wrote that he has difficulty in concentrating and communicating, has withdrawn from friends and has thoughts of death.
[3] Exhibit A1, paragraph 4.
The applicant wrote the following descriptions regarding his physical health:
I am unable to clean the house, cook for myself, lift things from the floor or from a height, I am unable to stand for too long or travel further than short distances.
I am also unable to shower or dress myself and go to the toilet without the assistance of someone else. Currently my ex-wife is assisting me with these daily activities…
I suffer from physical and severe pain, that leaves me unable to walk, even short distances without aids, tiredness, loss of strength, headaches, cramps, bladder and digestive problems also occur…
I have undertaken numerous medical and pain management procedures over the last 10 years.
I have accepted that the pain I experience is permanent given I have been undergoing pain management injections on almost a weekly basis. Since, 4 May 2017 until 12 June 2018, I have had approximately 50 attendances at MD Imaging, where pain management injections were performed on me…
Despite pain management injections the pain returns after a short period of minor relief…
I have had multiple surgeries including, six surgeries on my left knee, four of these were related to cartilage and two to knee replacement and still the surgeries have not resolved the significant problems, including severe pain and function.
I have had three surgeries on my right knee, two related to cartilage and one related to a replacement, and although the pain has been alleviated from this knee, other problems are not resolved, including unable to bend the knee or use it without pain…
My specialist has suggested that I could have spinal surgery in my neck. He has warned me of the risks and that there is no guarantee that the surgery will be successful and in fact it could exasperate [sic] the problems.
Due to the advice from my specialist and my experience with previous surgeries I am too scared to undergo surgery to my spine in my neck.[4]
[4] Exhibit A1, paragraphs 18-19, 22-25, 28-29, 31-32.
The applicant provided oral evidence to the Tribunal over four days in May, July and October 2019. This evidence related to his personal circumstances, his capacity to move around his home and undertake activities of self-care, his ability to travel outside his home and attend medical appointments, and his medical treatment to date.
The applicant described living in a two storey, four-bedroom townhouse that he has shared and rented with his ex-wife since April 2014. He explained that he and his ex-wife have lived separate lives since their marriage ended in May-June 2013 due to his (then) alcohol use and angry behaviour. He said that neither his family, his ex-wife’s family nor their friends know they have separated.
The applicant said that his ex-wife is employed full-time and consequently he is home on his own during the week. He said that he usually drives his ex-wife to and from the train station so he can use her car during the day. The applicant said that his ex-wife undertakes heavier cleaning tasks in the home such as vacuuming upstairs and washing his bedsheets, occasionally shares meals she has cooked, and stands nearby for safety while he walks down/up 15 internal stairs every morning and evening. The applicant said his ex-wife travelled overseas for four weeks around Christmas 2018 and he stayed in the townhouse on his own. The applicant and his ex-wife employ a gardener to maintain the garden and mow the grass area.
The applicant told the Tribunal that he is able to clean the downstairs floors using a steam mop, clean kitchen and bathroom areas that are at and above his waist height, use the washing machine to wash his clothes and hang his clothes on an internal air-dryer. He said that he is able to make a sandwich and prepare coffee; however, he is unable to cook mainly because he has never learnt how to cook.
The applicant said he showers every two to three days because it is ‘very hard’.[5] He explained that he uses the shower screen door for balance as he steps into the shower and he stands under the shower to wash himself by putting his weight on his right leg and leaning on the shower wall. He does not use a shower chair. He said he is able to sit on and get up from the toilet in the downstairs bathroom by using his arms to push off the vanity. He said there are no handrails anywhere in the house because it is a rental property. The applicant said he is able to dress himself while sitting down including putting on his shoes and tying laces. He said he sees a podiatrist and requires assistance to cut his toenails.
[5] Oral evidence, transcript 7 May 2019, page 24.
The applicant is able to drive a car to attend medical appointments and do his grocery shopping. He said that he parks close to shops or the medical centre, uses a walking stick or trolley to balance while walking, and regularly rests on seats or steps. He is able to transfer his shopping bags from the trolley to the car. The applicant said that he last worked in 2016 for approximately six months: this work involved him driving an automatic 14-seater bus for approximately three hours a day, five days a week.
The applicant is able to use public transport. He described his travel to the Tribunal hearing as him driving a car for approximately five kilometres from his home to the train station, walking 20 metres to the lift at the train station, walking three metres onto a train, traveling for one hour by train, and walking from the Wynyard train station to the Tribunal office across the road from the station. The applicant repeatedly told the Tribunal that he could only walk for 20 metres. However, when the applicant was later provided with a travel schedule that showed the travel he described from his home to a medical centre by public transport, which included a requirement to walk a distance of 130 metres and 140 metres, he accepted that he was able to walk a longer distance.[6]
[6] See Exhibit R2.
At the Tribunal hearing, the applicant said he has suffered from depression and anxiety for nearly 20 years. He has been prescribed antidepressant medication in the past but has not taken any medication for his depression or anxiety for about six years. He has seen Mr Peter Cox (psychologist) regularly since 2013. He acknowledged that he has had a past ‘drinking problem’ but said he has not consumed alcohol since 2013.[7]
[7] Oral evidence, transcript 7 May 2019, page 18-19.
The applicant described a solitary life mostly spending his days watching TV or videos, on his phone or attending his regular medical appointments. He said he speaks to members of his family ‘once in a blue moon’ and occasionally attends functions with the extended family of his ex-wife.[8] He attends church on Sundays. The applicant is able to organise his medications on his own and showed an extensive understanding of his medical conditions and treatments.
[8] Oral evidence, transcript 15 October 2019, page 188.
The applicant is in receipt of disability support pension. He is seeking access to the NDIS for supports to improve his ability to communicate and interact in the community, and assistance with cleaning his home, cooking meals, self-care and travelling to doctor’s appointments.
Medical evidence
The parties filed extensive medical records about the applicant’s impairments and his history of medical treatment. Relevant medical reports in relation to each of the applicant’s impairments are set out below. I note that there are some inconsistencies between the parties in the description of the applicant’s impairments, which I address in my consideration of the applicant’s impairments below.
Osteoarthritis in both knees
Dr Prabha Chandra (general practitioner) completed an ‘Access Request – Supporting Evidence Form’ for the NDIS on 30 March 2017, in which he diagnosed the applicant with ‘osteoarthritis of both knees’ that has gradually worsened over ten years.[9]
[9] Exhibit T-T23, page 53.
A further NDIS ‘Access Request – Supporting Evidence Form’ completed by Dr R Soliman (general practitioner) on 13 August 2017 stated the applicant has had ‘osteoarthritis knees and ankle’ for more than ten years.[10] Dr Soliman stated that he considered the applicant’s impairment to be lifelong and he had undertaken treatment including painkillers, surgeries, physiotherapy / chiropractor and injections.
[10] Exhibit T-T28, page 70.
A whole body bone scan of the applicant on 13 June 2017 showed his right knee joint is ‘suggestive of osteoarthritis also with an inflammatory component’.[11] Dr Shane Connolly (radiologist) further reported on 2 August 2017 that the applicant ‘has severe degenerative changes in relation to his right knee. He has had two left knee replacements with limited positive results.’[12]
[11] Exhibit T-T25, page 61.
[12] Exhibit T-T29U, page 121.

A report by Dr Sanjeev Gupta (orthopaedic surgeon) on 22 November 2017 stated that the applicant had (right) total knee replacement surgery in October 2017. Dr Gupta reported that six weeks post-operation, the applicant is ‘doing extremely well’, the wound is ‘well healed’ and the ‘knee is stable to examination’.[13]
[13] Exhibit TB-TB3, page 353.
Reports by Dr Nathan Taylor (pain medicine specialist) dated 23 March 2017 and 13 July 2017 confirmed the applicant suffers from and manages chronic pain associated with widespread osteoarthritis including in both his knees. On 23 March 2017, Dr Taylor recommended the applicant focus on ‘active, self-management strategies’, which included reading a booking on pain management, continuing to see ‘his pain psychologist’ and following up with a physiotherapist who specialise in complex chronic pain.[14] Dr Taylor reported on 21 December 2017 that the applicant had recovered well from his (right) total knee replacement and was ‘gradually upgrading his walking tolerance but still uses a stick and is currently in a CAM boot’.[15]
[14] Exhibit T-T29Q, page 115.
[15] Exhibit T-TB3, page 313.
Conditions in the lumbar, thoracic and cervical spine
Dr Raymond Wallace (orthopaedic surgeon) provided a medico-legal report on 11 March 2012, which stated that the applicant had a ‘lumbar spinal condition’ following an incident at work in September 2008.[16]
[16] Exhibit T-T15, page 31.
In the NDIS ‘Access Request – Supporting Evidence Form’ completed by Dr Chandra on 30 March 2017, he reported that the applicant had ‘nerve pain due to impingement in cervical & lumbar spine’ that had been treated with ‘multiple spinal injections of steroids’.[17]
[17] Exhibit T-T23, page 53.
Dr Soliman stated in a further NDIS ‘Access Request – Supporting Evidence Form’ dated 13 August 2017 that applicant has had ‘generalised osteoarthritis, cervical, thoracic lumbar region’ for more than ten years that has been treated with painkillers, injections, physiotherapy / chiropractor and nerve blockages.[18]
[18] Exhibit T-T28, page 70.
A whole body bone scan of the applicant on 13 June 2017 showed ‘evidence of degenerative arthritis in the mid thoracic spine and throughout the lumbar spine’.[19] Dr Connolly further reported on 2 August 2017 that ‘radiologically, [the applicant] has severe degenerative changes in his cervical and lumbar spine in particular, with less marked changes in his thoracic spine’.[20]
[19] Exhibit T-T25, page 61.
[20] Exhibit T-T29U, page 121.
Dr Randolph Gray (orthopaedic spine surgeon) has treated the applicant since April 2012; he provided written reports and oral evidence in relation to potential surgical options to treat the applicant’s spinal conditions.
In a report dated 8 June 2012, Dr Gray noted that the applicant had ‘no response’ to a ‘left L3/4 transforaminal injection on 16 May 2012’ and he considered the applicant was not a ‘good surgical candidate’.[21] Dr Gray advised the applicant to continue with a ‘conservative approach’ to treatment ‘in the form of physiotherapy, hydrotherapy and core strengthening exercises’.[22] In an undated medical letter, Dr Gray summarised the applicant’s presentation as ‘quite complex’.[23]
[21] Exhibit T-T29F, page 99.
[22] Exhibit T-T29F, page 99.
[23] Exhibit T-T29X, page 125.
On 11 August 2017, Dr Gray reported that he had been seeing the applicant ‘for some time’ for right cervical spondylosis causing right upper limb radiculopathy symptoms.[24] Dr Gray noted the applicant had ‘exhausted his conservative options’ and set out the following treatment options:
(a)continue with current conservative measures of activity modification and optimising analgesic medication;
(b)have a C5/C6 and C6/C7 anterior cervical discectomy and fusion (ACDF) to relieve his neural impingement.[25]
[24] Exhibit TB-TB3, page 348.
[25] Exhibit TB-TB3, pages 348-349.
In a report dated 19 October 2018, Dr Gray opined the following about proposed ACDF surgery on the applicant’s C5/6 and C6/7:
The proposed surgery is intended to achieve improvement of his axial neck pain and upper limb radiculopathy symptoms which he has been experiencing in the C6 and C7 distribution due to neural impingement at these two levels.
I would expect that the surgery would improve [the applicant’s] day-to-day functional capacity as a result of improvement of his radicular symptoms.
The potential outcomes would be overall improvement of his functional status and improvement of his neck and upper limb radicular symptoms.
There is a possibility that in spite of a successful operation his axial neck pain and radicular symptoms may not resolve to his liking and expectation.
The likelihood of his surgery being successful is in the range of 70-80%.
[The applicant] will have some degree of restriction of range of motion as a result of his cervical fusion and I would estimate this to be around 10-15%.
I would expect the surgery to partially improve and alleviate [the applicant’s] pain emanating from his cervical spondylosis.
The reduced range of motion should not affect his day-to-day functional capacity.
The likelihood of impairment of his preoperative functional capacity as a result of fusion would be very low.
The anticipated percentage motion reduction is about 10-15%.
The alternative to surgery has been exhausted which included pain management, physiotherapy and isometric core exercises.
The alternative is to improve [the applicant’s] day-to-day functional capacity has also been exhausted and was similar to the above.[26]
[26] Exhibit A3.
Dr Gray set out the goals of the surgery, which are:
…to relieve the neural compression of the neural elements via a discectomy and decompression cord and exiting nerve roots. A spinal fusion will then be performed to stabilise the decompressed levels. The combined procedure should translate to improvement of the mechanical neck pain and neurogenic radicular symptoms.[27]
[27] Exhibit A3.
Dr Gray outlined the following potential risks of surgery as:
…post-operative wound infection, iatrogenic nerve root injury, CSF leaks, non-surgical events such as cardiovascular events, cerebrovascular events, deep vein thrombosis and pulmonary embolisms.[28]
[28] Exhibit A3.
On 7 May 2019, Dr Gray provided detailed oral evidence to the Tribunal regarding the applicant’s spinal conditions and potential treatment to improve his functional capacity. This evidence included the following pertinent points by Dr Gray:
·spondylosis means ‘arthritis of the spine’ that can be referred to as osteoarthritis;[29]
·the degenerative condition the applicant has in his thoracic and lumbar spine regions is a consequence of ‘wear and tear…with age’;[30]
·there is no operation to treat osteoarthritis;
·the ACDF surgery is to ‘treat the nerve impingement at the two levels that are affected by osteoarthritis but the whole spine is affected by osteoarthritis’ so the surgery treats ‘the nerve impingement’;[31]
·surgery would be expected to improve the applicant’s capacity to undertake activities of daily living through a reduction in pain;
·further surgery may be necessary after performing the spinal fusion because it is possible the applicant may have more symptoms in the future;
·the applicant completed the requisite forms to have Dr Gray perform ACDF surgery in Westmead Public Hospital with his expenses paid by Medicare sometime after 11 August 2017; and
·at an appointment with Dr Gray on 24 October 2018, the applicant reported that physiotherapy had helped him with ‘his back, range of motion and symptoms’ and so he wanted to put off scheduled surgery for his neck.[32]
[29] Oral evidence, transcript 7 May 2019, page 40.
[30] Oral evidence, transcript 7 May 2019, page 40.
[31] Oral evidence, transcript 7 May 2019, page 41.
[32] Oral evidence, transcript 7 May 2019, page 60.
Mr Gavin Fernandes (physiotherapist) provided written reports and diagrams of the applicant in relation to physiotherapy treatment during October 2018 to December 2018.
On 5 October 2018, Mr Fernandes reported the applicant’s:
…main concern is his neck pain, which he describes as swelling around the base of the skull and intense pain on turning his neck. His main aim is to reduce this neck pain sufficiently so that he will not need a neck operation that he is due to have in December 2018…
[My] main aim for these four sessions is for him to make a comfortable and informed decision with regard to either having or not having his neck operation in December 2018.[33]
[33] Exhibit STB-TB1, page 10.
On 22 December 2018, Mr Fernandes reported that the applicant had made sufficient improvements from four physiotherapy sessions to allow him to decide not to have the ‘neck operation this year’.[34] He further observed that he had taught the applicant that:
…stiffness of the thoracic spine and lumbar spine contribute to stiffness of the cervical spine and we have treated the neck through improving the mobility of the thoracic and lumbar spine. This has made some difference, but contributing factors to his thoracic and lumbar spine stiffness are certainly due to his stiff and immobile ribs. This limits his breathing, his energy and abdominal control.
For this problem I have given [the applicant] some very gentle home exercises which we monitor each session…
I would say that overall progress has been slow but steady from each treatment…[35]
[34] Exhibit STB-TB1, page 11.
[35] Exhibit STB-TB1, page 11.
Conditions in left ankle/foot
A whole body bone scan of the applicant on 13 June 2017 opined that his left ankle joint is ‘consistent with inflammatory arthritis’.[36] Dr Connolly also reported on 2 August 2017 that the applicant has ‘moderately marked degenerative changes in his left ankle, exacerbated, following his knee replacement’.[37]
[36] Exhibit T-T25, page 61.
[37] Exhibit T-T29U, page 121.
The applicant’s medical record from Dr Soliman provided under summons noted the applicant had a condition of ankle pain (left) in 2018 and set out in a consultation that the applicant is in ‘pain with his left heel and needs another cortisone inj [injection] for plantar fasciitis’.[38]
[38] Exhibit TB-TB4, pages 359-360.
Medical imaging reports from Dr Connolly show the applicant underwent seven ultrasound guided steroid injections into his left ankle for pain relief in the period from 9 May 2017 to 4 April 2018, and an ultrasound guided injection left plantar fascia on 15 May 2018.[39]
[39] Exhibit ATB1.
Conditions in both shoulders, elbows and hands
A whole body bone scan of the applicant on 13 June 2017 opined that the applicant has ‘degenerative arthritis in both acromioclavicular joints, the carpometacarpal joint of the right thumb and in multiple metacarpophalangeal and interphalangeal joints of both hands’.[40]
[40] Exhibit T-T25, page 61.
Dr Connolly reported on 2 August 2017 that the applicant:
…suffers with severe right sided subacromial bursitis with a partial tear of his right supraspinatus tendon and…has significant degenerative changes in his right hand, particularly in relation to the right first carpometacarpal joint.[41]
[41] Exhibit T-T29U, page 121.
Medical imaging reports from Dr Connolly show the applicant underwent three ultrasound guided injections into his right subacromial bursa from 15 May 2017 to 2 August 2017, and an ultrasound guided steroid injection in his right thumb on 6 April 2018.[42]
[42] Exhibit ATB1.
In the NDIS ‘Access Request – Supporting Evidence Form’ completed on 13 August 2017, Dr Soliman noted the applicant had other impairments of ‘osteoarthritis both hands, elbows and shoulder’.[43]
[43] Exhibit T-T28, page 70.
Anxiety, depression and borderline personality disorder
Documents produced under summons from Dr Chandra show the applicant was referred to Dr Padmini Howpage (consultant psychiatrist) in 2012. Dr Howpage opined in a medical letter on 19 April 2012 that the applicant’s ‘clinical presentation is compatible with alcohol abuse and Adjustment issues.’[44]
[44] Exhibit TB-TB1, page 4.
Summons documents listing the applicant’s history of prescriptions show he was prescribed cymbalta in the period from 3 February 2012 to 28 April 2014 and prescribed avanza on 1 October 2013.[45] There is no anti-depressant medication prescribed for the applicant after 28 April 2014.
[45] Exhibit TB-TB1, pages 76-77.
Since June 2013, the applicant has attended regular psychotherapy sessions with Mr Cox. In a report dated 15 August 2017, Mr Cox stated the applicant initially presented with ‘chronic pain coping difficulties…anxiety symptoms, volatile anger, depression and reported problems with insomnia’ and treatment focussed on ‘improving his functioning with activity goals, anxiety reduction and supporting his recovery from his [alcohol] addiction’.[46] He noted the applicant continues to ‘experience difficulty with most areas of his daily living’ and has ‘witnessed a progressive loss in his mobility and capacity to undertake his normal activities’.[47] Mr Cox observed the applicant’s ‘distress around his pain has remained high’ and he has ‘relied overly on medication and passive pain relief to manage his pain’.[48] He opined that the applicant’s ‘personality characteristics, particularly borderline personality traits entrench his coping difficulties and have led to his progressive disability occasioned by loss of physical and psychosocial functioning over time’.[49]
[46] Exhibit T-T29W, page 123.
[47] Exhibit T-T29W, page 123.
[48] Exhibit T-T29W, page 124.
[49] Exhibit T-T29W, page 124.
Mr Cox provided a further report on 13 March 2018, which noted the applicant’s continued attendance at counselling sessions approximately every three weeks for ‘maintenance strategies to assist with his coping with chronic pain, anxiety and depression’.[50]
[50] Exhibit TB-TB2, page 91.
Other medical conditions
Dr Chandra wrote in the NDIS ‘Access Request – Supporting Evidence Form’ dated 30 March 2017 that the applicant had other impairments of hypertension, insomnia and GORD (gastro-oesophageal reflux disease).[51] There is no detail about the diagnosis and treatment of these conditions, or the extent to which these conditions affect the applicant’s functional capacity.
[51] Exhibit T-T23, page 53.
Evidence – occupational therapists
Ms Chung Man (Rigan) Wong (occupational therapist) undertook an assessment of the applicant at his townhouse on 30 July 2018. She provided a written report dated 8 August 2018 and gave oral evidence to the Tribunal on 8 May 2019.
Ms Wong stated that her assessment of the applicant was based on a review of medical reports, information the applicant provided during an interview and when she administered an assessment tool (WHODAS), and her observation of the applicant in his home. Based on this assessment, Ms Wong set out the following views about the applicant’s functional capacities:
·Communication – the applicant had ‘mild difficulties’ in his assessed abilities to communicate due to ‘impaired concentration’ from pain.
·Social interaction – the applicant had ‘moderate difficulties’ in his assessed abilities to socially interact due to ‘ongoing psychological symptoms’ and ‘restricted mobility’.
·Learning – the applicant had ‘no difficulties’ in his assessed abilities to learn.
·Mobility – the applicant had ‘severe difficulties’ in his assessed abilities to mobilise due to the following physical limitations that were observed at the assessment: he could stand up to three minutes with a walking stick, was unable to kneel or squat, had poor balance, and had limited capacity in climbing stairs.
·Self-care / household tasks – the applicant had ‘moderate difficulties’ in his assessed abilities to self-care and undertake household tasks due to the following physical limitations observed at the assessment: he had restricted neck rotation particularly to the left side, restricted range of motion in the left shoulder, restricted grip strength in his right (dominant) hand, and had capacity to carry up to two kilograms.
·Self-management – the applicant had ‘no difficulties’ in his assessed abilities to self-manage.[52]
[52] Exhibit A2, pages 4-7.
At the Tribunal hearing, Ms Wong expressed her concern about the applicant’s capacity to undertake household activities safely. This included the applicant’s capacity to balance while pouring hot water from a kettle or bending down to the vacuum cleaner and leaning on his walking stick. In her evidence, Ms Wong acknowledged that the only tasks she asked the applicant to undertake during her assessment was to vacuum and make a cup of coffee. She proposed equipment to assist the applicant undertake activities of daily living that included a trolley in the kitchen to carry items, a shower chair and a long handled sponge for washing. She noted that she did not ask him to walk outside as she was unfamiliar with the footpath and environment, and she had concerns about his ability to safely walk up/down the stairs.
Ms Fiona Curdie-Evans (occupational therapist) assessed the applicant at his townhouse on 1 March 2019. She subsequently provided a written report dated 28 March 2019 and gave oral evidence at the Tribunal hearing on 22 October 2019.
Ms Curdie-Evans’ assessment of the applicant’s activities of daily living was conducted by her observation of the applicant and his self-reporting. She categorised the applicant’s daily living activities into self-care/personal care activities and domestic activities, and provided comments against a list of detailed tasks.
In terms of activities in self-care/personal care, Ms Curdie-Evans stated the applicant was ‘independent in all self-care tasks with aids and equipment and the use of adaptive techniques and modifications.’[53] In relation to his current ability to undertake domestic tasks, Ms Curdie-Evans concluded that he is:
…able to complete most domestic activities with the assistance of aids and modifications between knee and shoulder height. He is unable to complete heavier tasks such as mowing. Further modifications for vacuuming, laundry and bed making would facilitate independence.[54]
[53] Exhibit R1, page 9.
[54] Exhibit R1, page 11.
Ms Curdie-Evans reported the applicant is able to:
·mobilise with a slow gait with walking stick in the house for 30 minutes and outside for five minutes;
·climb 15 steps in 45 seconds;
·undertake dynamic stand for 30 minutes with the support of walking stick / furniture;
·sit for 60 minutes without difficulty or discomfort;
·get to the ground level to move a wooden rod;
·reach to knee height and above head height easily while standing;
·undertake restricted reach to his front and side; and
·move approximately two to three kilograms in domestic tasks between knee and shoulder height, and carry one to two kilograms in a bag upstairs.[55]
[55] Exhibit R1, page 12.
Ms Curdie-Evans provided detailed evidence to the Tribunal in relation to the applicant’s demonstrated range of movement and function during her assessment. She described the applicant’s capacity to mobilise inside his home with a walking stick, mobilise outside his home using a walking stick and CAM boot, ascend and descend the internal stairs, and step into the garden. Ms Curdie-Evans said the applicant was able to stand and perform activities in the kitchen without the use of his walking stick, reach to cupboards at knee height and above his shoulder height, reach to ground level to move a wooden rod and pick up his CAM boot, and simulate activities in the bathroom including showering, toileting and cleaning. She noted the applicant had a ‘strong focus’ on his pain and limitations.[56]
CONSIDERATION
[56] Oral evidence, transcript 22 October 2019, page 262.
The disability requirements
Subsection 24(1) of the NDIS Act is satisfied if the applicant meets all five requirements specified in paragraphs 24(1)(a) to (e). I now consider each of these requirements.
Does the applicant have a disability within the meaning of paragraph 24(1)(a)?

Consistent with Mortimer J’s decision in Mulligan v National Disability Insurance Agency [2015] FCA 544 at [15] to [16], Chapter 8.1 of the Access Operational Guideline includes the following paragraphs:
For the purposes of becoming a participant in the NDIS the focus of ‘disability’ is on the reduction or loss of an ability to perform an activity which results from an impairment.
The term ‘impairment’ commonly refers to a loss of, or damage to, a physical, sensory or mental function.
The narrower definition of ‘disability’ employed by the NDIS seeks to target those people with disability who have a significant impairment to their functional capacity. This functional definition of disability focuses on outcomes for people with disability that are in the most need (Explanatory Statement to the Becoming a Participant Rules).
As noted above, the Tribunal observes there are inconsistencies between the parties in their description of the applicant’s impairments. Notably, the applicant described his disabilities as:
a.    Spinal Osteoarthritis (“Spondylosis”) in the cervical, thoracic, and lumbar region for more than 10 years.
b.    Osteoarthritis in knees and left ankle for more than 10 years.
c.     Osteoarthritis in both hands and elbows and shoulders.
d.    Borderline Personality Disorder.[57]
[57] Applicant’s Statement of Issues, Facts and Contention in Reply, 16 April 2019, paragraph 2.
In contrast, the NDIA accepted the applicant’s impairments to be:
a.    Osteoarthritis in knees and degenerative arthritis in other joints;
b.    Spinal injury at thoracic and lumbar [spine] resulting in disc degeneration and chronic pain extended to neck;
c.     Anxiety/depression.[58]
[58] Respondent’s Outline of Final Submissions, 22 October 2019, paragraph 2.
I accept that there are various descriptions of the applicant’s impairments as set out in the medical evidence at paragraphs 29 to 60 above. I also accept that the medical evidence is disjointed (for example, there are no specialist letters regarding the applicant’s left knee surgeries) and uses inconsistent language to describe and diagnose some of the applicant’s medical conditions (for example, Drs Chanda and Soliman describe the applicant’s spinal conditions differently).
Having regard to the most recent medical evidence, I am satisfied the following diagnoses most accurately describe the applicant’s impairments:
·Osteoarthritis – both knees (see reports of Dr Chandra, Dr Soliman and Dr Taylor).
·Osteoarthritis/degenerative arthritis – lumbar, thoracic and cervical spine, and neural impingement at C5/C6 and C6/C7 (see reports of Dr Connolly and evidence of Dr Gray).
·Inflammatory arthritis – left ankle (see reports of Dr Connolly and Dr Soliman).
·Osteoarthritis/degenerative arthritis – both shoulders, the right thumb and both hands (see whole body scan dated 13 June 2017, and reports of Dr Connolly and Dr Soliman).
·Anxiety and depression (see reports of Mr Cox).
I find that the medical evidence, when considered holistically, explains that each of these conditions are impairments because there is a loss of, or damage to, a physical, sensory or mental function. I also find each of these impairments causes a reduction in the applicant’s ability to perform physical and/or mental activities.
I am therefore satisfied that the applicant’s conditions of osteoarthritis in both knees; osteoarthritis/degenerative arthritis in lumbar, thoracic and cervical spine, and neural impingement at C5/C6 and C6/C7; inflammatory arthritis in left ankle; osteoarthritis/degenerative arthritis in both shoulders, both hands and right thumb; and anxiety and depression are disabilities within the meaning of this provision.
For completeness, I am satisfied that the medical evidence does not show the applicant has the following impairments:
·Osteoarthritis – elbows: while Dr Soliman stated the applicant has ‘osteoarthritis both hands, elbows and shoulder’, neither the whole body scan dated 13 June 2017 nor the reports of Dr Connolly identified that the applicant has osteoarthritis in his elbows.
·Borderline personality disorder: Mr Cox referred to the applicant as having ‘borderline personality traits’ in his report dated 15 August 2017. However, there is no evidence that there has been any assessment or clear diagnosis of this condition in relation to the applicant.
I also note that, while there are references in the medical evidence to the applicant being diagnosed with plantar fasciitis in his left heel, hypertension, insomnia and GORD, there is no evidence these conditions are current impairments. I therefore cannot be satisfied that these conditions are disabilities within the meaning of paragraph 24(1)(a) of the NDIS Act.
Are the applicant’s impairments permanent within the meaning of paragraph 24(1)(b)?
The Participant Rules provide the following guidance in considering when an impairment is permanent or likely to be permanent:
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. [emphasis added]
I now consider whether the applicant’s impairments are permanent and, as set out in the Participant Rules, whether there are any treatments that would be likely to remedy his impairments.
Osteoarthritis – both knees
The medical evidence before the Tribunal shows the applicant has had surgeries on his left and right knees, and currently relies on analgesics to manage his knee pain.
Based on the medical evidence, I am satisfied there is no operation to treat osteoarthritis and there is no further treatment available to the applicant that would be likely to remedy his impairment of osteoarthritis in both knees. I therefore find the applicant’s impairment of osteoarthritis in both knees is permanent within the meaning of paragraph 24(1)(b) of the NDIS Act.
Osteoarthritis/degenerative arthritis – lumbar, thoracic and cervical spine, and neural impingement at C5/C6 and C6/C7
Relying on the extensive and detailed evidence of Dr Gray, I am satisfied the applicant has osteoarthritis/degenerative arthritis in his lumbar, thoracic and cervical spine, which cannot be treated by surgery.
However, Dr Gray explained that the applicant also has nerve impingement at the C5/6 and C6/7 levels. He opined that ACDF surgery would reduce the applicant’s pain in this area and improve his capacity to undertake activities of daily living.
I also have regard to the reports of Mr Fernandes on 5 October 2018 and 22 December 2018, which provided credible evidence that the applicant’s participation in physiotherapy treatment from October 2018 to December 2018 improved his mobility in his lumbar, thoracic and cervical spine to the extent that he postponed planned ACDF surgery.
I am satisfied, based on the evidence of Dr Gray and Mr Fernandes, that there are treatments available to the applicant – both in terms of physiotherapy and ACDF surgery – that will reduce the pain in his spine and improve his mobility. I therefore find that even though the applicant’s impairments in his spine are degenerative, there are treatments available that are expected to improve his spinal conditions.
For these reasons, I am not satisfied the applicant’s spinal impairments are permanent within the meaning of paragraph 24(1)(b) of the NDIS Act.
Inflammatory arthritis – left ankle
The applicant has had ultrasound guided steroid injections into his right ankle in 2017 and 2018. However, there is minimal medical evidence before the Tribunal about other treatments that may be available to the applicant in relation to the inflammatory arthritis in his left ankle. In particular, I note there are no reports setting out specialist review of this condition or whether there are any likely treatment options apart from steroid injections that may improve this condition.
This means I cannot be satisfied the applicant’s impairment of inflammatory arthritis in his left ankle is permanent within the meaning of paragraph 24(1)(b) of the NDIS Act.
Osteoarthritis/degenerative arthritis – both shoulders, both hands and right thumb
The applicant has had ultrasound guided injections into his right subacromial bursa (shoulder) and right thumb. While I accept there is no operation to treat osteoarthritis, I find there is a paucity of medical evidence before the Tribunal in relation to these impairments. In particular, there is no information about whether the applicant has had specialist review or whether there may be any other treatments available to the applicant that could improve this condition.
Therefore, I cannot be satisfied that the applicant’s impairment of osteoarthritis/ degenerative arthritis in both shoulders, both hands and right thumb is permanent within the meaning of paragraph 24(1)(b) of the NDIS Act.
Anxiety and depression
The applicant has attended regular psychotherapy sessions since June 2013; he was also been prescribed anti-depressant medication from February 2012 to April 2014. The report of Mr Cox date 13 March 2018 sets out that the applicant has attended counselling sessions every three weeks for ‘maintenance strategies’ to cope with his pain, anxiety and depression. Mr Cox did not provide oral evidence to the Tribunal so I am limited to the evidence provided in his written reports.
While I accept the applicant has continued to engage with regular counselling, I note the applicant has not been assessed by a psychiatrist since 2012. This suggests that further treatment may be available that would improve the applicant’s condition.
For this reason, I am not satisfied the applicant’s impairment of anxiety and depression is permanent within the meaning of paragraph 24(1)(b) of the NDIS Act.
Based on my findings above, I am satisfied that only the applicant’s impairment of osteoarthritis in both his knees is permanent within the meaning of paragraph 24(1)(b) of the NDIS Act.
Do the applicant’s impairments result in substantially reduced functional capacity to undertake one or more of the following activities: communication, social interaction, learning, mobility, self-care and self-management within the meaning of paragraph 24(1)(c)?
To comply with paragraph 24(1)(c) of the NDIS Act, the applicant must demonstrate that his impairments result in substantially reduced functional capacity to undertake any one of the activities specified in subparagraphs (i) to (vi).
Paragraph 5.8 of the Participant Rules provides:
5.8 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.
Further guidance is set out in chapter 8.3.1 of the Access Operational Guideline:
The following information provides further guidance in relation to determining when an impairment results in substantially reduced functional capacity:
By itself, reliance on commonly used items will not result in a substantially reduced functional capacity to participate effectively or completely in an activity. Commonly used items include glasses, walking sticks, non-slip bath mats, bathroom grab rails, stair rails, age appropriate child safety locks, simple adapted kitchen utensils and dressing aids.
In considering the role played by assistive technology, home modifications and equipment, the NDIA will consider specific needs arising from the prospective participant’s impairment, and whether those needs are met (or need to be met) through the use of specialist disability aids and/or equipment.
Such items would generally be specifically designed to assist in increasing the functional capacity and participation of people with disability and be formally prescribed by a medical practitioner, specialist clinician or allied health professional such as an occupational therapist, physiotherapist or speech therapist.
When considering whether a person requires assistance from others to participate or perform tasks associated with an activity, the NDIA will have regard to whether a person’s need for assistance is consistent with normal expectations of a person of a similar age.
…
A person will be considered to be unable to participate effectively or completely in an activity if they cannot safely complete one or more of the tasks required to participate in an acceptable period of time. Undertaking a task more slowly or differently to others will not necessarily mean a person cannot participate effectively or completely in an activity.
When considering whether a fluctuating or episodic impairment results in substantially reduced functional capacity to undertake relevant activities, the NDIA will consider the impact on the person's ability to function in the periods between acute episodes. [emphasis in original]
In considering whether the applicant’s impairments result in substantially reduced functional capacity, I rely on the evidence of the applicant and the occupational therapists.
I make the following observations about the applicant’s evidence. In the course of the applicant providing oral evidence to the Tribunal, it became apparent that there were significant inconsistencies between the evidence the applicant provided in his written statement dated 18 July 2018 and his oral evidence. This was particularly clear in relation to the applicant’s perception of his functional capacity to undertake physical activities. For example, the applicant stated in writing his inability to undertake any tasks of self-care and extremely limited capacity to mobilise. However, in his oral evidence, the applicant said he is able to shower and dress himself independently (although with difficulty), wash his clothes using a washing machine and hang his clothes on an internal clothesline, prepare basic food/meals, make coffee, and undertake some household cleaning. The applicant said he is able to travel alone by public transport for a period of one hour and walk more than 100 metres using a walking stick and taking rests. He accepted that he continues to live in a two-storey townhouse that he rents with his ex-wife, despite his difficulties mobilising up and down the stairs.
Turning to the evidence of the occupational therapists, I note that there are differences of opinion in relation to the functional capacity of the applicant.
Ms Wong opined the applicant has ‘severe difficulties’ with mobility as she observed he could stand for three minutes with a walking stick, had poor balance, was unable to kneel or squat and had limited capacity to climb stairs. She noted the applicant has ‘moderate difficulties’ in self-care and household tasks due to his physical limitations and restricted range of movement, and ‘moderate difficulties’ in social interaction due to ‘psychosocial issues’ and ‘restricted mobility’.[59] At the hearing, Ms Wong accepted that she was not a psychologist and therefore was not in a position to opine about whether, or the extent to which, the applicant has ‘psychosocial issues’.
[59] Exhibit A2, pages 4-7.
In contrast to Ms Wong, Ms Curdie-Evans opined that the applicant could mobilise inside his home for 30 minutes and outside his home for five minutes using his walking stick, climb 15 stairs, sit for 60 minutes, reach to knee height and above head height while standing, move two to three kilograms between knee and shoulder height, and carry one to two kilograms. Ms Curdie-Evans further observed the applicant was independent in self-care tasks with the use of aids, adaptive techniques and modifications.
Considering all the evidence before the Tribunal, I make the following findings of fact:
·The oral evidence of the applicant was most consistent with the evidence of Ms Curdie-Evans. The evidence of Ms Curdie-Evans relied more heavily on her own observations and assessment of the applicant, while Ms Wong relied more heavily on the applicant’s self-reporting of his functional capacity and limitations.
·On balance, the evidence showed the applicant is independent in areas of self-care including showering, dressing, washing clothes, preparing basic meals and coffee, and undertaking light household cleaning. While the applicant experiences difficulties in relation to some self-care activities, such as showering, he does not use an aid such as a shower chair. This evidence is not sufficient to show the applicant has substantially reduced functional capacity to undertake self-care.
·The applicant has difficulties with mobility. However, using his walking stick, he is able to mobilise inside his home for 30 minutes, travel by public transport for one hour, walk for about 100 metres and climb stairs. A walking stick is described as a ‘commonly used item’ in chapter 8.3.1 of the Access Operational Guideline. This evidence is not sufficient to show the applicant has substantially reduced functional capacity to mobilise.
·There is no evidence before the Tribunal that the applicant has substantially reduced functional capacity in relation to the activities of communication, social interaction, learning and self-management.
I finally note that it became apparent over the period of hearing dates from 7 May 2019 to 22 October 2019 that the applicant has many medical conditions that make him unwell. This was clearly evidenced by his inability to participate in his Tribunal hearing on four separate dates between May 2019 and October 2019. However, the applicant’s general health issues are separate to the consideration I must have in relation to whether he meets the disability requirements in section 24 of the NDIS Act.
In relation to the activities set out in paragraph 24(1)(c) of the NDIS Act, I do not find that the evidence shows the applicant’s impairments result in substantially reduced functional capacity to undertake activities of communication, social interaction, learning, mobility, self-care or self-management.
Do the applicant’s impairments affect his capacity for social or economic participation within the meaning of paragraph 24(1)(d)?
The evidence before the Tribunal shows the applicant has not participated in employment since August 2016 due to his impairments and currently relies on the disability support pension. The applicant’s evidence was that he has limited contact with family or friends and his social participation is limited to occasionally attending church.

I am satisfied the applicant’s impairments affect his capacity for social and economic participation. I find the applicant meets the requirement in paragraph 24(1)(d) of the NDIS Act.
Is the applicant likely to require support under the NDIS for his lifetime within the meaning of paragraph 24(1)(e)?
Chapter 8.5 of the Access Operational Guideline states the following:
8.5 When is a person likely to require support under the NDIS for their lifetime?
The NDIA must also be satisfied that the prospective participant is likely to require support under the NDIS for the rest of their lifetime (section 24(1)(e)).
If an impairment varies in intensity (for example, because the impairment is of a chronic episodic nature) the person may still be assessed as likely to require support under the NDIS for the person's lifetime, despite the variation (section 24(2)).
The NDIA is required to consider a prospective participant’s overall circumstances and conclude that the person will require support under the NDIS for their lifetime. The purpose of this requirement seems to be to distinguish that subset of people with serious and permanent disabilities who are intended to be the beneficiaries of funded supports (Mulligan and NDIA [2015] AATA 974 at [153]).
For example, if a person's support needs arise from a health condition and are most appropriately provided through another service system (i.e. the health system) then the person will not require support under the NDIS for their lifetime. Rather, the person will require support under the health system.
When considering this criterion, the NDIA does not need to be satisfied that the support/s required for the person's lifetime meet the reasonable and necessary criteria. The reasonable and necessary criteria are relevant to whether funding is provided, not whether a person meets the disability requirements (see Mulligan and NDIA [2014] AATA 374 at [53] and Mulligan and NDIA [2015] AATA 974 at [146]–[150]).
As set out in paragraph 82, I am satisfied that the applicant’s impairment of osteoarthritis in both knees is his only permanent impairment in accordance with paragraph 24(1)(b) of the NDIS Act. I am also satisfied, as noted at paragraph 106, that the applicant’s impairments when considered holistically do not result in him having substantially reduced functional capacity to undertake activities of communication, social interaction, learning, mobility, self-care or self-management.
Reading the policy guidance set out in chapter 8.5 of the Access Operational Guidelines, it would be inconsistent for the Tribunal to make a finding that a prospective participant is likely to require support under the NDIS for their lifetime in circumstances where the evidence shows the person does not have substantially reduced functional capacity to undertake activities of communication, social interaction, learning, mobility, self-care or self-management.
As I find the applicant’s impairments do not result in substantially reduced functional capacity to undertake activities, I am satisfied the applicant will not require assistance under the NDIS for his lifetime. Therefore, the applicant does not meet the requirement of paragraph 24(1)(e) of the NDIS Act.
The early intervention requirements
The early intervention requirements are set out in section 25 of the NDIS Act. Chapter 9 of the Access Operational Guideline explains the purposes of the early intervention requirements as follows:
Early intervention support is available to both children and adults who meet the early intervention requirements. The intention of early intervention is to alleviate the impact of a person’s impairment upon their functional capacity by providing support at the earliest possible stage. Early intervention support is also intended to benefit a person by reducing their future needs for supports.
I now consider whether the applicant meets the early intervention requirements.
Does the applicant have a permanent impairment as set out in paragraph 25(1)(a)?
As set out in paragraph 82 of my reasons, I am satisfied that the applicant’s impairment of osteoarthritis in both knees is permanent. For the reasons I outline in paragraphs 83 to 94 above, I am satisfied the applicant’s impairments in his spine, left ankle, both shoulders and hands, right thumb, and his impairments of anxiety and depression are not permanent.
It follows that I find the requirement in paragraph 25(1)(a) of the NDIS Act is met.
Will the provision of early intervention support benefit the applicant as provided in paragraphs 25(1)(b) and (c)?
Paragraphs (b) and (c) require the CEO of the NDIA to be ‘satisfied that provision of early intervention supports for the person is likely to benefit the person’ in various ways. Paragraph (b) requires a state of satisfaction that the provision of early intervention supports is likely to benefit the person by reducing the person’s future needs for supports in relation to disability. Paragraph (c) requires a state of satisfaction that the provision of early intervention supports is likely to benefit the person by mitigating or alleviating the impact of the person’s impairment, preventing the deterioration of functional capacity, improving functional capacity, or strengthening the sustainability of informal supports available to the person.
Paragraph 6.9 of the Participant Rules sets out the issues the CEO of the NDIA would consider in relation to whether the provision of early intervention supports is likely to benefit a person under paragraphs 25(1)(b) and (c) of the NDIS Act:
6.9 In deciding whether provision of early intervention supports is likely to benefit the person in the ways mentioned in paragraphs 6.2(b) and (c) above, it is expected that the CEO would consider:
(a)the likely trajectory and impact of the person’s impairment over time; and
(b)the potential benefits of early intervention on the impact of the impairment on the person's functional capacity and in reducing their future needs for supports; and
(c)evidence from a range of sources, such as information provided by the person with disability or their family members or carers. The CEO may also in some cases seek expert opinion.
The Access Operational Guideline at paragraph 9.3 states:
9.3 Determining whether early intervention supports are likely to benefit the person
The NDIA must be satisfied that the provision of early intervention supports (except for children with developmental delay) is likely to benefit the prospective participant by:
·     reducing the person's future needs for supports in relation to disability (section 25(1)(b)); and
·     achieving one or more of the following four outcomes:
(i)     mitigating or alleviating the impact of the person's impairment upon the functional capacity of the person to undertake one or more activities (section 25(1)(c)(i)); or
(ii)    preventing the deterioration of such functional capacity (section 25(1)(c)(ii));
(iii)   improving such functional capacity (section 25(1)(c)(iii)); or
(iv)   strengthening the sustainability of informal supports available to the person, including through building the capacity of the person's carer (section 25(1)(c)(iv)).
When considering whether the provision of early intervention supports is likely to benefit the person, the NDIA should consider:
·     the likely trajectory and impact of the person's impairment over time (rule 6.9(a) of the Becoming a Participant Rules); and
·     the potential benefits of early intervention on the impact of the impairment on the person's functional capacity and in reducing their future needs for supports (rule 6.9(b) of the Becoming a Participant Rules); and
·     evidence from a range of sources, such as information provided by the prospective participant or their family members or carers. The NDIA may also in some cases seek expert opinion (rule 6.9(c)) of the Becoming a Participant Rules).
When considering if a person is likely to benefit from early intervention supports, the NDIA may consider factors such as the time elapsed since the onset or diagnosis of the disability and whether there has been a recent, or impending, significant change in the person's impairment or disability.
The applicant’s impairment of osteoarthritis in both knees is long-standing. Drs Chandra and Soliman stated that the applicant has had osteoarthritis in his knees for more than 10 years, which has been treated with surgery, injections and analgesics.
There is no medical evidence before the Tribunal that shows the provision of early intervention supports would benefit the applicant and reduce his future needs for supports in relation to his disability. I find that there is insufficient evidence for me to be satisfied that early intervention supports will be likely to benefit the applicant in the ways specified in paragraphs 25(1)(b) and (c) of the NDIS Act.
Is early intervention support most appropriately funded or provided through the NDIS in accordance with subsection 25(3)?
Subsection 25(3) operates in circumstances where, even if the applicant meets subsections 25(1) and (2) of the NDIS Act, he may not meet the requirements of early intervention support because the support is not most appropriately funded or provided through the NDIS. Instead, the support may be more appropriately funded or provided through other general systems of service delivery or support services, such as through the health system.
As set out in paragraph 121, I am not satisfied that early intervention supports will likely benefit the applicant in the manner required by paragraphs 25(1)(b) and (c) of the NDIS Act. I therefore cannot find that the applicant’s supports are most appropriately funded by the NDIS.
Accordingly, I find that the applicant does not fulfil the early intervention requirements to enable him to become a participant in the NDIS.
CONCLUSION
As I am satisfied that the applicant does not meet access criteria in either section 24 or section 25 of the NDIS Act, I find the internal review decision made on 12 January 2018 is correct.
DECISION
The decision under review is affirmed.

I certify that the preceding 126 (one hundred and twenty -six) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

.............................[SGD]...........................................
Associate
Dated: 20 December 2019

Date(s) of hearing: 7-8 May 2019, 30 July 2019, 15 and 22 October 2019

Solicitors for the Applicant: M Zraika, Cogent Lawyers

Counsel for the Respondent: M Fisher

Solicitors for the Respondent: M Donald, Sparke Helmore

[2019] AATA 5551

20 December 2019

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Standing

Jurisdiction

Remedies

Date(s) of hearing:	7-8 May 2019, 30 July 2019, 15 and 22 October 2019
Solicitors for the Applicant:	M Zraika, Cogent Lawyers
Counsel for the Respondent:	M Fisher
Solicitors for the Respondent:	M Donald, Sparke Helmore