Powell and National Disability Insurance Agency
[2023] AATA 3677
•10 November 2023
Powell and National Disability Insurance Agency [2023] AATA 3677 (10 November 2023)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s):2022/7430
Re:Patrick Powell
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
Tribunal:Member P Smith
Date:10 November 2023
Place:Sydney
DECISION
The Tribunal affirms the decision under review pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).
.............................[SGD]...........................................
Member P Smith
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – Application to review a decision made by a reviewer of the National Disability Insurance Agency under subsection 100(6)(a) of the National Disability Insurance Scheme Act 2013 (Cth) to confirm a decision made by a delegate of the Chief Executive Officer of the NDIA under subsection 20(1)(a) of the NDIS Act that a person does not meet the access criteria as set out in section 21 of the NDIS Act to become a participant in the National Disability Insurance Scheme (NDIS) – whether the Applicant is a person who meets the access criteria as set out in section 21 of the NDIS Act to become a participant in the NDIS - where the Applicant seeks to become a participant in the NDIS on the basis of physical impairments arising from his post-poliomyelitis syndrome diagnosis – whether the Applicant is a person who meets the disability requirements as set out in section 24 of the NDIS Act or whether the Applicant is a person who meets the early intervention requirements as set out in section 25 of the NDIS Act – whether the Applicant’s physical impairments result in substantially reduced functional capacity to undertake one or more activities that involve communication, social interaction, learning, mobility, self-care, and self-management as required by subsection 24(1)(c) of the NDIS Act – whether the Applicant’s impairments affect his capacity for social or economic participation as required by subsection 24(1)(d) of the NDIS Act – whether the Applicant is likely to require the support under the NDIS for his lifetime as required by subsection 24(1)(e) of the NDIS Act – whether the provision of early intervention supports for the Applicant is likely to benefit him by reducing his future needs for supports in relation to his disability as required by subsections 25(1)(b) and (c) of the NDIS Act – whether early intervention supports for the Applicant is not most appropriately funded or provided through the NDIS as required by subsection 25(3) of the NDIS Act - decision under review affirmed
LEGISLATION
National Disability Insurance Scheme Act 2013 (Cth), ss.9, 18, 19, 20, 21, 22, 23, 24, 25, 26, 100(6)(a), 209(1).
Administrative Appeals Tribunal Act 1975 (Cth), ss. 37, 43(1)(a).
CASES
Mulligan v National Disability Insurance Agency [2015] FCA 544.
Williams and National Disability Insurance Agency [2021] AATA 3383.
National Disability Insurance Agency v Foster [2023] FCAFC 11.
Madelaine & National Disability Insurance Agency [2020] AATA 4025.SECONDARY MATERIALS
National Disability Insurance Scheme (Becoming a Participant) Rules 2016
National Disability Insurance Scheme – Operational Guidelines – Access
REASONS FOR DECISION
Member P Smith
10 November 2023
INTRODUCTION
This is an application to review[1] a decision made by a reviewer of the National Disability Insurance Agency (the Respondent) dated 28 July 2022[2] to confirm a decision made by a delegate of the Chief Executive Officer (CEO) of the Respondent on 1 June 2022[3] under subsection 20(1)(a) of the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act) that a person does not meet the access criteria as set out in section 21 of the NDIS Act to become a participant in the National Disability Insurance Scheme (the NDIS).
[1] See T1 of the Tribunal documents (T-documents) the Respondent lodged with the Tribunal via email on 20 September 2022 in accordance with the requirements of section 37 of the Administrative Appeals Tribunal Act 1975 (Cth).
[2] See T1B and T2 of the T-documents.
[3] See T10 of the T-documents.
On 18 May 2022,[4] pursuant to section 18 of the NDIS Act,[5] the Applicant, Patrick Alexander Powell, made an access request[6] to the Agency, in the form approved by the CEO,[7] to become a participant in the NDIS. On the access request form, the Applicant stated that he sought to become a participant in the NDIS on the basis of physical impairments arising from his post-poliomyelitis syndrome (PPS) diagnosis.[8] PPS is a disorder of the nerves and muscles that can happen many years after an individual’s diagnosis of poliomyelitis (aka polio).[9]
[4] See T1A of the T-documents.
[5] Section 18 of the National Disability Insurance Scheme Act 2013 (Cth) states that a person may make an access request to the National Disability Insurance Agency to become a participant in the National Disability Insurance Scheme.
[6] Section 9 of the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act) states that an access request has the meaning given by section 18 of the NDIS Act.
[7] See subsection 19(1)(a) of the National Disability Insurance Scheme Act 2013 (Cth).
[8] See the access request form at page 19 of T1A of the T-documents that the Applicant made to the National Disability Insurance Agency on 18 May 2022 pursuant to section 18 of the National Disability Insurance Scheme Act 2013 (Cth). The Applicant’s PPS diagnosis is confirmed and recorded by Associate Professor James Burrell, a Clinical Associate Professor, and a Behavioural Neurologist in a letter he prepared on 27 July 2022 for consideration by a reviewer of the National Disability Insurance Agency. A copy of this is at T12 of the T-documents. The Applicant’s PPS diagnosis is also confirmed and recorded by Dr Kandasamay Rajendran, a General Practitioner in his letter of 24 January 2022. A copy of this letter is at T6 of the T-documents.
[9] See the letter of Melanie de Silva, a physiotherapist, that she prepared on 18 May 2022 in support of the access request the Applicant made to the National Disability Insurance Agency on even date to become a participant in the National Disability Insurance Scheme. A copy of this letter is at T8 of the T-documents.
The Applicant’s access request was considered and decided by a delegate of the CEO of the Respondent on 1 June 2022 under subsection 20(1)(a) of the NDIS Act. The delegate considered the Applicant’s access request and the information that accompanied the request, against the access criteria as set out in section 21 of the NDIS Act.
For the purpose of subsection 21(1)(a) of the NDIS Act, a delegate of the CEO was satisfied on the evidence that the Applicant is a person who meets the age requirements in section 22 of the NDIS Act.[10] For the purpose of subsection 21(1)(b) of the NDIS Act, a delegate of the CEO was satisfied on the evidence that at the time of considering the request, the Applicant is a person who meets the residence requirements in section 23 of the NDIS Act.
[10] See subsection 21(1)(a) of the National Disability Insurance Scheme Act 2013 (Cth).
For the purpose of subsection 21(1)(c)(i) of the NDIS Act, a delegate of the CEO was not satisfied on the evidence that at the time of considering the request, the Applicant is a person who meets the disability requirements in section 24 of the NDIS Act.[11] For the purpose of subsection 21(1)(c)(ii) of the NDIS Act, a delegate of the CEO was not satisfied on the evidence that at the time of considering the request, the Applicant is a person who meets the early intervention requirements in section 25 of the NDIS Act.[12] Accordingly, on 1 June 2022, a delegate of the CEO decided under subsection 20(1)(a) of the NDIS Act that the Applicant is not a person who meets the access criteria as set out in section 21 of the NDIS Act to become a participant in the NDIS.
[11] See subsection 21(1)(c)(i) of the National Disability Insurance Scheme Act 2013 (Cth).
[12] See subsection 21(1)(c)(ii) of the National Disability Insurance Scheme Act 2013 (Cth).
The Applicant’s access request was reconsidered and redecided by a reviewer[13] of the Respondent on internal review on 28 July 2022.[14] Following the completion of the internal review, the reviewer, under subsection 100(6)(a) of the NDIS Act, confirmed the decision that a delegate of the CEO made on 1 June 2022.
[13][14] See T1B and the copy at T2 of the T-documents for a copy of the reviewer’s decision dated 28 July 2022.
On 13 September 2022,[15] the Applicant made an application to the Tribunal seeking a review of the decision that a reviewer of the Respondent made on 28 July 2022 under subsection 100(6)(a) of the NDIS Act. The Applicant stated on his application to the Tribunal that he had decided to seek a review of the Respondent’s decision with the Tribunal because the reviewer did not give regard to the expert opinion given by Associate Professor Burrell (A/P Burrell), a Clinical Associate Professor and Behavioural Neurologist in his letter of 27 July 2022.[16]
[15] See T1 of the T-documents.
[16] See T12 of the T-documents.
THE ISSUE FOR DETERMINATION
The issue for determination in this proceeding is whether the Applicant is a person who meets the access criteria as set out in section 21 of the NDIS Act to become a participant in the NDIS. A video hearing was held by the Tribunal on 3 October 2023 in order for the Tribunal to determine this issue. The Applicant appeared at the hearing self-represented. He gave oral evidence to the Tribunal which included responses to the questions asked by Sylvia Quang (Ms Quang). Ms Quang appeared at the hearing, for the Respondent, as their legal representative. She was instructed at the hearing by Aneeta Singh.
Neither party called any expert witnesses to give evidence to the Tribunal at the hearing on 3 October 2023. The parties identified for the Tribunal the evidence upon which they sought to rely on at the hearing. The evidence relied on by the parties is identified and referred to further below.
LEGISLATION
As the Applicant is seeking to become a participant in the NDIS, he must meet the access criteria as set out in section 21 of the NDIS Act. Section 21 of the NDIS Act provides as follows:
(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).
The Respondent accepts that the Applicant is a person who meets the age requirements in section 22 of the NDIS Act and the residence requirements in section 23 of the NDIS Act. However, the Respondent does not accept that the evidence that is before the Tribunal demonstrates that the Applicant is a person who meets either the disability requirements in section 24 of the NDIS Act or the early intervention requirements in section 25 of the NDIS Act to become a participant in the NDIS.
The first task for this Tribunal is to consider whether the Applicant is a person who meets the disability requirements as set out in section 24 of the NDIS Act to become a participant in the NDIS. Section 24 of the NDIS Act provides as follows:
(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.
In the event that the Tribunal finds that the Applicant is not a person who meets the disability requirements as set out in section 24 of the NDIS Act, the second task for the Tribunal is to consider whether the Applicant is a person who meets the early intervention requirements as set out in section 25 of the NDIS Act to become a participant in the NDIS. Section 25 of the NDIS Act provides as follows:
(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.
The NDIS Act is supplemented by legislative instruments called the National Disability Insurance Scheme Rules (the NDIS Rules). The Minister may, by legislative instrument, make NDIS Rules[17] prescribing matters required or permitted by the NDIS Act to be prescribed by the NDIS Rules[18] or necessary or convenient to be prescribed in order to carry out or give effect to the NDIS Act.[19]
[17] See subsection 209(1) of the National Disability Insurance Scheme Act 2013 (Cth).
[18] See subsection 209(1)(a) of the National Disability Insurance Scheme Act 2013 (Cth).
[19] See subsection 209(1)(b) of the National Disability Insurance Scheme Act 2013 (Cth).
Relevantly, the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (the Becoming a Participant Rules) were made under subsection 209(1) of the NDIS Act to assist the CEO to determine who becomes a participant in the NDIS.[20] The Becoming a Participant Rules contain a number of key provisions including when a person meets the access criteria as set out in section 21 of the NDIS Act to become a participant in the NDIS[21] and when a person meets either the disability requirements as set out in section 24 of the NDIS Act[22] or the early intervention requirements as set out in section 25 of the NDIS Act.[23]
[20] See Part 2.2 of the National Disability Insurance Scheme (Becoming a Participant) Rules 2016.
[21] See Part 2.4 of the National Disability Insurance Scheme (Becoming a Participant) Rules 2016.
[22] See Part 5 of the National Disability Insurance Scheme (Becoming a Participant) Rules 2016.
[23] See Part 6 of the National Disability Insurance Scheme (Becoming a Participant) Rules 2016.
The NDIS Act is also supplemented by National Disability Insurance Scheme Operational Guidelines (the Operational Guidelines). The Operational Guidelines have been established by the Agency to provide guidance to the CEO when making decisions under the NDIS Act. Relevantly, the Agency has established the National Disability Insurance Scheme Operational Guidelines – Access (the Access Guidelines).[24] The Access Guidelines provide guidance to the CEO when deciding and considering whether or not a person who makes an access request to the Agency to become a participant in the NDIS meets the access criteria as set out in section 21 of the NDIS Act.
[24] See T15 of the T-documents.
THE EVIDENCE
The Applicant (aged 66) lives with his partner of 17 years and their three adult daughters in a privately rented four-bedroom single storey home[25] The Applicant’s daughters work and study full-time. His partner is in full-time employment working as an Accountant in a carpentry company.[26] The Applicant’s partner and their daughters provide informal support to the Applicant.
[25] See page 208 of R2 of the Tender Bundle for the Occupational Therapy Functional Capacity Assessment Report of Melissa Sale, Occupational Therapist, dated 8 February 2023.
[26] See page 209 of R2 of the Tender Bundle for the Occupational Therapy Functional Capacity Assessment Report of Melissa Sale, Occupational Therapist, dated 8 February 2023.
The Applicant was diagnosed with polio when he was two years old.[27] Since this time, the Applicant has developed PPS primarily affecting his right upper limb[28]. The Applicant’s PPS was diagnosed in the last five years[29]. PPS is a progressive neuromuscular disorder characterised by worsening disability over time[30]. More specific to the Applicant, he has developed degenerative changes to his hip and spine. These changes, according to A/P Burrell are caused by the long-standing biomechanical effects of PPS[31].
[27] See page 204 of R2 of the Tender Bundle for the Occupational Therapy Functional Capacity Assessment Report of Melissa Sale, Occupational Therapist, dated 8 February 2023 and page 56 of T3 of the T-documents.
[28] See the additional notes made on the access request form at page 29 of T1A of the T-documents by Associate Professor James Burrell, a Clinical Associate Professor and Behavioural Neurologist.
[29] See the Statement of Lived Experience made by the Applicant on 28 October 2022 at A1 of the Tender Bundle.
[30] See the letter prepared by Associate Professor James Burrell, a Clinical Associate Professor, and a Behavioural Neurologist, dated 27 July 2022 at T12 of the T-documents.
[31] See T12 of the T-documents.
The Applicant reiterated in his evidence that he is seeking to become a participant in the NDIS on the basis of physical impairments arising from his PPS. This is so given that the Applicant can be funded under the NDIS for weekly recurring physiotherapy treatment and possibly other allied health therapies, including exercise physiology. The Applicant said that physiotherapy treatment would enable him to maintain his current level of mobility and slow down the substantial reduction in his functional capacity to undertake daily activities.
The Applicant was asked to give evidence about any paid employment that he was currently undertaking. The Applicant said in his evidence that he is mostly a professional vocalist, however he also said that for the last few years he had been working as a disability support worker. The Applicant said that he usually performs as a professional singer three to four times a week as opposed to a full-time work schedule. His schedule as a professional singer includes travelling to and from the venue and then also the performance. The Applicant said his work schedule can sometimes include the occasional vocal workshop or him teaching students for up to an hour. The Applicant’s singing can require extensive travels locally, nationally, and internationally.
The Applicant was asked to give evidence about how he travels to and from destinations to perform as a singer. The Applicant said in his evidence that it depends on the location of the venue. He said that he sometimes drives or sometimes he carpools with someone else undertaking the driving. The Applicant said when he travels interstate or internationally, he takes a plane. He said that he has not been able to travel long distances via car for an extended period of time. The Applicant said that when he performed as a musician recently at Wagga Wagga, he travelled by train. He said that when he performed at another recent show in Laurieton, he shared the driving with a colleague he travelled with.
The Applicant was asked to give evidence about whether he needs to bring any equipment with him or load anything into his car when travelling to localities to perform as a singer. The Applicant said in his evidence that with larger tours all of the equipment is usually supplied. He said that when he does travel to perform, he takes bags of luggage with him. The Applicant said sometimes he may carry light speakers when travelling to regional shows.
The Applicant was asked to elaborate further in his evidence about his other paid employment, namely that of working as a disability support worker. The Applicant said in his evidence that in this occupation he was a driver who would assist people with mental health disorders to access the community and other support services. The Applicant said that his other duties included CPR. He said that he used to work approximately 12 – 16 hours per week. The Applicant said that he ceased this work in early February 2023 because he had a second knee replacement procedure, and he could thus no longer undertake this work. He indicated that had he not had this surgery he would have possibly continued working as a disability support worker.
The Applicant was asked to give evidence about the recovery that followed from the second knee replacement surgery performed on his right knee.[32] Following this procedure, the Applicant also had a hip replacement surgical procedure.[33] The Applicant said that he was in hospital for seven weeks following his second knee replacement surgery. He said that this consisted of three days in the hospital, and following this, seven weeks of daily intensive physiotherapy and hydrotherapy treatments. The Applicant said that he still engages in physiotherapy treatment twice weekly with a specialist gym. This form of therapy is related to the Applicant’s knee recovery. The Applicant said that he stopped engaging with hydrotherapy as a form of therapy around two months before the date of the Tribunal hearing.
[32] The Applicant said in his evidence that he had his first knee replacement surgery approximately 11 years ago.
[33] The Applicant also said in his evidence that he had a hip replacement surgery in approximately either August or September of 2022.
With reference to his Statement of Lived Experience dated 28 October 2022 (Statement), the Applicant was asked to give evidence on whether or not his disability had worsened over time or indeed whether it was fluctuating. In his evidence, the Applicant said that since 28 October 2022 his disability had worsened and was also fluctuating insofar as he has both good and bad days. He noted that the progression of his disability had been slow, however, he told the Tribunal that there are still inevitable, substantial deteriorations that will worsen over time given the degenerative nature of the Applicant’s disability.
The Applicant was asked to explain in his evidence the nature of the impairments that arise from his PPS. The Applicant told the Tribunal that his deltoid muscles have wasted. He said that he does not have the functional capacity to raise his right arm up, nor is he is able to lift heavy objects. In order for the Applicant to maintain his current level of functionality, he uses his body in ways that enable him to cope independently, however this is not without difficulty and has resulted in reduced functionality and pain to other parts of his body.[34]
[34] See the Applicant’s Statement of Lived Experience dated 28 October 2022 at A1 of the Tender Bundle.
The Applicant was asked to give evidence regarding his functional capacity to undertake activities that involve communication, social interaction, learning, mobility, self-care, and self-management. The oral evidence given by the Applicant at the hearing and the evidence given by the Applicant in his Statement regarding his functional capacity to undertake each of the six activities that are specified in subsection 24(1)(c)(i)-(iv) of the NDIS Act are summarised below.
The Applicant was asked to give evidence of any reduced functionality in relation to his capacity to undertake activities that involve communication as a result of his impairments. He responded in his evidence that he has no issues regarding his capacity to communicate, which is consistent with what the Applicant says in his Statement.[35]
[35] See A1 of the Tender Bundle.
The Applicant was asked to give evidence of any reduced functionality in relation to his capacity to undertake activities that involve social interaction as a result of his impairments. He was also asked to clarify the reference he made in his Statement, namely that he has an active social life when he is feeling well enough.[36] The Applicant said in his evidence that if he is having a bad day he will not engage in social interactions. It was noted by the Applicant that this is seldom the case but does occur. In relation to his work as a musician, the Applicant engages as often as possible in order to make the best of his situation which the Applicant acknowledged, can at times, cause difficulties for him.
[36] See A1 of the Tender Bundle.
The Applicant was referred to the Occupational Therapy Functional Capacity Assessment Report of Melissa Sale (Ms Sale), Occupational Therapist dated 8 February 2023,[37] where she records that the Applicant had reported to her during her assessment of the Applicant on 24 January 2023 that he estimates having a bad day approximately every fortnight to three weeks. The Applicant confirmed in his evidence that this estimate is consistent with what he reported to Ms Sale during her functional capacity assessment on 24 January 2023.[38]
[37] Melissa Sale (Ms Sale), Occupational Therapist was retained in the course of this proceeding by the Respondent to conduct a functional capacity assessment of the Applicant in his home on 24 January 2023. Ms Sale prepared a report in which she provided the results of her functional capacity assessment of the Applicant.
[38] Melissa Sale records details of the Applicant’s good and bad days in her Occupational Therapy Functional Capacity Assessment Report dated 8 February 2023 at page 206 of R2 of the Tender Bundle.
The Applicant said in his evidence that even during periods of exacerbation he still has the capacity to contact and communicate with his friends by way of text message, however, this contact may be more limited then when he is well.
The Applicant said in his evidence that he engages in social interactions at his home and also at the homes of friends and acquaintances.
The Applicant said in his evidence that on occasion he engages in social interactions with others on social media platforms, but this is usually limited to promoting music shows.
The Applicant was asked to give evidence of any reduced functionality in relation to his capacity to undertake activities that involve learning as a result of his impairments. The Applicant said in his evidence that he regards himself to be a little slow. He said this was not as a result of his PPS. As it was not apparent to me what the Applicant meant when he said he was a little slow, I asked the Applicant to clarify what he meant by this statement. The Applicant, by way of clarification, explained to the Tribunal that what he meant when he said he was a little slow was that he was not a fast reader. However, despite this, the Applicant said that he had the capacity to retain information that he has read. The Applicant said that he also has the capacity to quote passages from books that he has read and the capacity to tell others the story details of a movie even years later after having watched the movie. The Applicant also said that he has a reasonably sound memory.
The Applicant was asked to give evidence of any reduced functionality in relation to his capacity to undertake activities that involve mobility as a result of his impairments. In particular, the Applicant was asked if he uses any walking aides to assist him to mobilise in and around his home. He said in his evidence that he does not currently use any walking aids to assist him to mobilise in and around his home. He said that he still uses a walking stick when he needs to traverse hills and when walking up and down stairs. This, the Applicant said, is because he is not yet strong enough to traverse hills and go up and down stairs independently without the use of a walking stick. He said that him using a walking stick for the reasons given is not related to his PPS. Rather, the Applicant told the Tribunal that reasons are as a result of the second knee replacement surgery that was performed on his right knee earlier in 2023.
The Applicant was referred to the expert opinion of A/P Burrell given on the Applicant’s access request form that the Applicant made to the Agency on 18 May 2022.[39] This opinion is in regard to the impact that the Applicant’s impairments have on his functional capacity to undertake activities involving mobility. On the access request form, A/P Burrell stated that the Applicant’s impairments have impacted the Applicant’s functional capacity to undertake activities involving mobility in the following way:
Marked impairment of right upper limb function due to weakness. Cannot stand for more than a few minutes (chronic back pain). Can walk no more than about 20m before having to stop due to pain. Has difficulty getting in and out the bed and cars[40].
[39] See page 23 of the access request form at T1A of the T-documents.
[40] Ibid.
With reference to the opinion of A/P Burrell as summarised above in paragraph [36], Ms Quang asked the Applicant if this was an accurate reflection of the Applicant’s present mobility capacity. In his evidence, the Applicant stated that the opinion given by A/P Burrell regarding the Applicant’s mobility capacity (as of 18 May 2022) no longer reflected his present mobility capacity. According to the Applicant this is due to the recent surgeries that he underwent to both his hip and knee.
In addition to the opinion given by A/P Burrell on the access request form, as summarised above in paragraph [36], the Tribunal notes that A/P Burrell also gave an opinion on the access request form that the Applicant’s impairments have also impacted the Applicant’s functional capacity to undertake other daily activities, namely activities involving self-care. In particular, A/P Burrell opined on the access request form that the Applicant’s impairments have also impacted the Applicant’s functional capacity to undertake activities of self-care in the following way:
Reduced right upper limb function impact’s ability to complete activities of daily living independently.[41]
[41] See page 24 of the access request form at T1A of the T-documents.
Furthermore, the Tribunal notes that A/P Burrell gives a revised opinion regarding the Applicant’s functional capacity to undertake activities that involve mobility and self-care. A/P Burrell’s revised opinion is set out in his letter of 27 July 2022. In his letter, A/P Burrell stated that as a result of the physical impairments arising from the Applicant’s PPS, the Applicant’s functional capacity has diminished, which A/P Burrell opines is related to the impairment in the Applicant’s mobility. He stated that the Applicant’s mobility is compromised by his PPS. For example, A/P stated that the Applicant has difficulties with walking long distances and difficulties negotiating getting in and out of a chair and also his car. A/P Burrell noted that as of 27 July 2022, the Applicant did not require any assistance with a walking aide. However, he noted that in the future this may be required because the Applicant’s disability is a progressive one. Furthermore, A/P Burrell noted that recurring physiotherapy treatment will be necessary for the Applicant in order for him to be able to maintain his current level of mobility. He stated that due to his disability, the Applicant is at increased risk of falls and thus may require seeing an Occupational Therapist in order for him to ameliorate such risks. A/P Burrell further stated that due to the Applicant’s upper limb weakness, he has reduced functional capacity for self-care and thus may need further supports in this regard.
The Applicant confirmed in his evidence that he has the capacity to walk in and around his home to a distance of approximately 100 metres. Following this the Applicant claims he needs to stop for a break in order for him to take a breath for approximately one minute. The Applicant also said that he then resumes his walking again for a further 100 metres after stopping for a break.
The Applicant was again referred to the report of Ms Sale[42] where she reported that during her assessment of the Applicant on 24 January 2023 that she noticed some limitations, including fatigue,[43] which the Applicant said was attributable to a weight increase that resulted from the surgeries and thus a reduction in his capacity to exercise. Ms Sale also recorded in her report that she noticed instances of shortness of breath when the Applicant was undertaking mobility activities during her assessment.[44] The Applicant said in his evidence that since 24 January 2023 he had improved capacity to exercise more frequently.
[42] See R2 of the Tender Bundle.
[43] See page 219 of R1 of the Tender Bundle.
[44] Ibid.
The Applicant was asked when giving evidence if he accepted the proposition that Ms Quang put to him at the hearing, namely that at present he is in a better position in relation to his fatigue when he is walking. The Applicant accepted this proposition and added to his evidence that this is because he had lost weight as a result of increasing his exercise regime which was provided by a physiotherapist.
The Applicant was asked to give evidence about his capacity to drive a car to access the community. The Applicant said in his evidence that he drives a car everyday to access the community. He said that he has no reduction in his functionality in this regard. This is because the Applicant’s car is high. This makes it easy for the Applicant when getting in and out of his car. However, the Applicant said that if he drives his partner’s car or their daughter’s car, he finds it very difficult to be able to get in and of them. This is because the Applicant’s partner and daughter have low cars.
The Applicant was asked to give evidence about his capacity to get onto and up and/or out of a chair and his capacity to get in and out of his bed. The Applicant said in his evidence that he has no reduction in his functional capacity when transferring onto a chair. However, the Applicant said that he does have a reduction in his functional capacity when negotiating transfers of getting up from and/or out of a chair. The Applicant said that he has no reduction in his functional capacity when getting in and out of his bed. This is because the Applicant’s bed has two mattresses. This structure raises the height of the bed thus making it easier for the Applicant to be able to negotiate transfers when getting in and out of his bed. Similarly, the Applicant said that he does not have too much difficulty when transferring in and out of hotel and motel beds. This, the Applicant said, is because beds in hotels and motels are mostly high beds.
The Applicant was asked to give evidence of any reduced functionality in relation to his capacity to undertake activities that involve self-care as a result of his impairments. The self-care activities that the Applicant was asked about included dressing, grooming, brushing his teeth and eating and drinking. Although the Applicant undertook these activities differently by changing movement to his body, the Applicant said that he was able to undertake each of these activities independently.
The Applicant was asked to give evidence about his capacity to cook and prepare meals. The Applicant said in his evidence that he is able to cook and prepare meals independently, however due to chronic pain to his back, the Applicant said that he undertakes cooking and meal preparation activities sitting on a stool at the kitchen bench or counter.
The Applicant was asked to give evidence about his capacity to undertake grocery shopping. The Applicant said in his evidence that he has the capacity to undertake grocery shopping on his own for lighter and smaller items only. He said that his partner does the grocery shopping for larger and heavier items.
The Applicant was asked to give evidence about his capacity to undertake laundry tasks. The Applicant said in his evidence that he does his own laundry. He said that when it came to hanging heavier items out to dry, he had to undertake the task differently as a result of reduced functionality in his right arm. The Applicant said that he undertook the task differently by throwing one end of the towel or sheet first and then moving it down the clothesline so that he was able to use his left arm to peg the item.
The Applicant was asked to give evidence about his capacity to undertake domestic duties. This included the Applicant’s capacity to use the dishwasher, clean the bathroom and vacuum the floors. The Applicant said in his evidence that he has the capacity to use the dishwasher and to clean the bathroom and vacuum floors but as a result of reduced functionality in his right arm, he has to undertake each task differently. The Applicant also gave evidence that when cleaning the top of cupboards he needed to get on top of a stepladder in order for him to be able to undertake the task.
The Applicant was asked to give evidence about his functional capacity to use his arms to access cupboards and shelves. The Applicant said in his evidence that he can use his right arm when accessing cupboards and shelves that are low, however he does not have the capacity to use his right arm to access cupboards and shelves that are high standing. The Applicant said as a result of reduced functionality in his right arm, he has to use his left arm to access high standing cupboards and shelves.
The Tribunal notes that the Applicant received physiotherapy treatment from Melanie de Silva (Ms de Silva) between 5 April 2022 and 30 May 2022 as an outpatient at the Concord Repatriation General Hospital.[45] Ms de Silva prepared a report regarding the Applicant’s functional capacity to undertake daily activities to support the access request the Applicant made to the Agency on 18 May 2022 to become a participant in the NDIS. In her report, Ms de Silva recommended that the Applicant use assistive technology for self-care activities when taking a shower and toileting on the basis of deficits she observed to exist in the Applicant’s functional capacity. Furthermore, Ms de Silva recommended that the Applicant receive physical assistance from another person to shower and toilet, also on the basis of deficits she observed to exist in the Applicant’s functional capacity.
[45] See page 67 of T8 of the T-documents.
With particular reference to the report of Ms de Silva, the Applicant was asked to give evidence regarding his capacity to shower and toilet himself independently. The Applicant responded in his evidence that he has a shower chair that he has used in the past, however, he confirmed that he currently does not use this aide and that at present he has the functional capacity to stand and shower himself independently. Moreover, the Applicant said that on 24 January 2023 during her assessment, he reported to Ms Sale that he was then using a raised toilet seat in his home. This aide was then being used by the Applicant in his home because of the difficulties he has experienced when negotiating transfers on and off low toilets. He told the Tribunal that he no longer used this aide in his home. The Applicant said however that he still experiences difficulty negotiating transfers on and off low toilets, in particular when using public and disabled toilets. He is able to (with some difficulties) manage these tasks by changing his body movements.
The Applicant was referred to the letter of Dr Ross Hawthorne (Dr Hawthorne), a Consultant Physician in Rehabilitation Medicine at the Concord Repatriation General Hospital, dated 24 February 2023.[46] Dr Hawthorne provided a letter to the parties on 24 February 2023 in response to a request from the Respondent to Ms de Silva for further information by reference to her report of 18 May 2022 regarding the Applicant’s functional capacity.[47]
[46] See A2 of the Tender Bundle.
[47] See the document attached to the email the Applicant and the Tribunal received from Sylvia Quang, Partner, HWL Ebsworth Lawyers on 15 November 2022. The document contains five questions to Melanie de Silva, a physiotherapist. These questions were formulated by the Respondent and provided to the Applicant and to the Tribunal in accordance with direction 2 of the Directions given by Conference Registrar Cabarrus on 25 October 2022.
With particular reference to the letter of Dr Hawthorne, the Applicant was asked whether or not he accepted the expert opinion of Dr Hawthorne he gave in response to the Respondent’s request to Ms de Silva for further information, namely that the Applicant was not using the two aides that were recommended by Ms de Silva and, moreover, that the Applicant does not require the physical assistance from another person to shower and use the toilet,[48] The Applicant accepted this expert opinion of Dr Hawthorne in his evidence.
[48] See item 3, page 193 of the Tender Bundle.
Furthermore, in response to the Respondent’s request to Ms de Silva for further information, Dr Hawthorne provided his expert opinion on the requisite supports as recommended by Ms de Silva in her report of 18 May 2022. Dr Hawthorne stated that the Applicant would need these recommended supports for the duration of his life as his prognosis will not improve. Dr Hawthorne stated that the weakness caused by the Applicant’s polio will also not improve and may indeed worsen. Dr Hawthorne also noted in his recommendation that there is a chance of further degeneration caused by the Applicant having polio.
The Applicant was asked to give evidence of any reduced functionality in relation to his capacity to undertake activities that involve self-management as a result of his impairments. The Applicant said in his evidence that he does not have any deficits regarding his capacity to self-manage. The Tribunal notes that in his Statement, the Applicant says that he has the capacity to manage his money and bills and to take his medication.[49]
[49] See A1 of the Tender Bundle.
The Tribunal notes that the results as recorded by Ms Sale in her report regarding the Applicant’s functional capacity is that the Applicant is able to undertake the following daily activities, i.e. communication, social interaction, learning, mobility, self-care, and self-management. The results of the assessment conducted by Ms Sale are summarised below.
Ms Sale observed the Applicant to have the functional capacity to be able to communicate his needs clearly and efficiently.
Ms Sale concluded that the Applicant has the functional capacity to undertake activities of social interaction independently.
Ms Sale also concluded that the Applicant has the functional capacity to undertake activities of learning independently.
Ms Sale observed the Applicant to independently mobilise inside and outside his home (within his property). This was without the use if any walking aides.[50] As stated earlier above, Ms Sale observed the Applicant to experience some shortness of breath and fatigue when walking, but Ms Sale noted that the Applicant reported to her during the assessment that his fatigue was attributable to recent weight gain and exercise reduction following his hip replacement surgery.[51]
[50] See page 213 of R2 of the Tender Bundle for the Occupational Therapy Functional Capacity Assessment Report of Melissa Sale dated 8 February 2023.
[51] Ibid.
Ms Sale observed the Applicant to transfer independently, including on and off his dining room chair, bed and toilet.[52] Ms Sale also observed the Applicant to transfer independently in and out of the shower cubicle, though Ms Sale noted that the Applicant reported to her during the assessment that he experienced some back, right hip and knee pain when negotiating these transfers.[53]
[52] Ibid at page 215.
[53] Ibid.
Ms Sale reported that the Applicant is largely independent in the domain of self-care but noted that he has restrictions from his right upper limbs. Ms Sale reported that the Applicant has the functional capacity to perform personal care, hygiene, and grooming tasks by using his left hand.
Ms Sale reported that the Applicant had limited capacity for heavy cleaning (e.g. floor cleaning). Ms Sale reported tasks that would require the Applicant to work on all fours and to work in positions where his right arm is outstretched would be impossible for him to undertake. Ms Sale reported that the Applicant is currently supported with heavier cleaning duties by his family. Ms Sale opined in this regard that 'the provision of these heavier cleaning (by his family) serves to benefit the whole family, rather than the specific needs of [the Applicant].[54] Emphasis added.
[54] Ibid at page 220.
Finally, Ms Sale also concluded that the Applicant has the functional capacity to undertake activities of self-management independently.
CONSIDERATION OF THE DISABILITY REQUIREMENTS
Whether the Applicant has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory, or physical impairments
The Tribunal must be satisfied under subsection 24(1)(a) of the NDIS Act that the Applicant has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory, or physical impairments.
The Respondent accepts that the expert evidence before the Tribunal demonstrates that the Applicant’s PPS is a disability that is attributable to physical impairments for the purpose of subsection 24(1)(a) of the NDIS Act.
The Tribunal therefore finds that the Applicant meets the requirements of subsection 24(1)(a) of the NDIS Act.
Whether the Applicant’s impairments are, or are likely to be, permanent
The Tribunal must be satisfied under subsection 24(1)(b) of the NDIS Act that the physical impairments that arise from the Applicant’s PPS are, or are likely to be, permanent.
The Respondent accepts that the expert evidence before the Tribunal demonstrates that the physical impairments that arise from the Applicant’s PPS are, for the purpose of subsection 24(1)(b) of the NDIS Act, permanent.
The Tribunal therefore finds that the Applicant meets the requirements of subsection 24(1)(b) of the NDIS Act.
Whether the Applicant’s impairments result in substantially reduced functional capacity to undertake one or more of the activities that involve communication, social interaction, learning, mobility, self-care, and self-management
72.The Tribunal must be satisfied under subsection 24(1)(c) of the NDIS Act that the Applicant’s physical impairments result in substantially reduced functional capacity to undertake one or more of the activities that involve communication, social interaction, learning, mobility, self-care, and self-management.
73.In addition to the statutory task that the Tribunal must engage in under subsection 24(1)(c) of the NDIS Act, the Tribunal must also consider the application of rule 5.8 of the Becoming a Participant Rules in determining whether or not the Applicant’s impairments result in substantially reduced functional capacity to undertake one or more of the activities that involve communication, social interaction, learning, mobility, self-care, and self-management.
74.Importantly, the purpose of rule 5.8 of the Becoming a Participant Rules is to provide guidance to decision-makers on when a person’s impairment results in substantially reduced functional capacity to undertake one or more of the activities that involve communication, social interaction, learning, mobility, self-care, and self-management.
75.Rule 5.8 of the Becoming a Participant Rules states as follows:
An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities—communication, social interaction, learning, mobility, self-care, self-management (see paragraph 5.1(c))—if its result is that:
(a)the person is unable to participate effectively or completely in the activity, or to perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications; or
(b)the person usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in the activity or to perform tasks or actions required to undertake or participate in the activity; or
(c)the person is unable to participate in the activity or to perform tasks or actions required to undertake or participate in the activity, even with assistive technology, equipment, home modifications or assistance from another person.
The rule in 5.8 of the Becoming a Participant Rules does not, however, negate the statutory task that the Tribunal must engage with under subsection 24(1)(c) of the NDIS Act when determining whether or not a person’s impairment(s) result in substantially reduced functional capacity to undertake one or more of the activities that involve communication, social interaction, learning, mobility, self-care, and self-management. This is the position Mortimer CJ took in the case of Mulligan v National Disability Insurance Agency[55] (Mulligan). At [77] of her judgment, her Honour observed as follows:
[55] [2015] FCA 544 at [77].
I note that the Tribunal appears to have approached the concept of “substantially reduced functional capacity” in s 24(1)(c) as if it is exhaustively defined by r 5.8. That is not necessarily the case. As a deeming provision, r 5.8 has the effect of mandatorily including some people in the category of persons with substantially reduced functional capacity if the criteria in r 5.8(a), (b) or (c) are met. In that sense, a decision-maker must turn his or her mind to whether an applicant falls within the deeming effect of r 5.8. That is not necessarily the end of the exercise in terms of s 24(1)(c). The statutory task remains to consider whether a person’s functional capacity is substantially reduced in any of the six specified areas. Whether or not this constitutes a separate error by the Tribunal need not be determined, for it is clear that even within the terms of r 5.8, the Tribunal only examined para (a) and not para (b), although they were both relevant and relied upon by Mr Mulligan.
Furthermore, in the case of Mulligan, Mortimer CJ took the view that the fundamental role for decision-makers on determining whether or not a person’s impairments result in substantially reduced functional capacity to undertake one or more of the activities that involve communication, social interaction, learning, mobility, self-care, and self-management is to make an assessment about the level of impairment rather than in regard to the feasibility of improvement, when and if, assistance is given.[56]
[56] Ibid, at [55] to [56].
The Tribunal in the present case takes the view that the measurement of the Applicant’s functional capacity to undertake one or more of the activities that involve communication, social interaction, learning, mobility, self-care, and self-management should not be limited to the Applicant’s more difficult days. This is because there is a need for the Tribunal to take a balanced approach which includes having regard to periods of more positive health. This is the position taken by Deputy President Humphries (DP Humphries) in the case of Madelaine & National Disability Insurance Agency[57] (Madelaine).
[57] [2020] AATA 4025 at [76].
Reference to the Access Guidelines[58] is consistent with what the Tribunal must consider, i.e., whether any permanent impairment, or permanent impairments, when considered together, result in substantially reduced functional capacity to undertake one or more of the activities as outlined in subsection 24(1)(c) of the NDIS Act.
[58] See page 93 of the Access Guidelines at T10.
The Tribunal only needs to be satisfied that one of the activities specified in subsection 24(1)(c) of the NDIS Act has been satisfied. It is not cumulative, thus the Tribunal’s task is to assess whether the Applicant has substantially reduced functional capacity by undertaking an assessment of what the Applicant is able to do.
I now propose to consider whether the Applicant’s impairments arising from his PPS result in substantially reduced functional capacity to undertake one or more of the six activities that are specified in subsection 24(1)(c)(i)-(vi) of the NDIS Act.
Communication
In the Access Guidelines, it is stated that communication includes being understood in spoken, written or sign language, understanding others and expressing needs and wants by gesture, speech, or context appropriate to age. In the case of Madelaine, DP Humphries observed[59] that the activity of an individual’s communication functional capacity referred to in the Access Guideline is not considered to be exceptional or high level.
[59] [2020] AATA 4025 at [79].
83.The Tribunal has taken note of the expert evidence and the evidence of the Applicant regarding the Applicant’s capacity to undertake activities involving communication. This evidence demonstrates to the Tribunal that the Applicant has the functional capacity to communicate.
84.Thus, the Tribunal finds on the evidence that the Applicant’s physical impairments do not result in a substantially reduced functional capacity to undertake activities that involve communication for the purpose of subsection 24(1)(c)(i) of the NDIS Act.
Social interaction
In the Access Guidelines, it is stated that social interaction includes making and keeping friends (or playing with children), interacting with the community, behaving within limits accepted by others, coping with feelings and emotions in a social context.
86.The Tribunal has taken note of the evidence of Ms Sale, namely that the Applicant reported to her during her functional capacity assessment that the Applicant had the functional capacity to undertake activities involving social interaction independently and that he had regular contact with his friends.
87.The Tribunal has taken note of the evidence given by the Applicant that on exacerbated days of pain he does not leave his home for social interactions. The Tribunal has also taken note of the clarification given by the Applicant in his oral evidence that despite experiencing pain on bad days, he has the functional capacity to undertake activities involving social interaction by interacting with his friends via text messaging and by calling them as well as engaging with social media.
88.Thus, the Tribunal finds on the evidence the Applicant’s physical impairments do not result in a substantially reduced functional capacity to undertake activities that involve social interaction for the purpose of subsection 24(1)(c)(ii) of the NDIS Act.
Learning
In the Access Guidelines, it is stated that learning includes understanding and remembering information, learning new things, practicing, and using new skills. In the context of learning, the Access Guidelines foreshadow the cognitive capacity to absorb and apply new skills.[60]
[60] [2020] AATA 4025 at [93].
90.With respect to learning, the Tribunal has taken note that Ms Sale concluded that the applicant did not demonstrate any deficits regarding the Applicant’s functional capacity to undertake activities of learning.
91.The Tribunal has taken note of the Applicant’s oral evidence where he agreed that he experienced no difficulties undertaking learning. For example, the Tribunal has taken note of the Applicant’s initial comment that he could be a bit slow. However, this remark was clarified in his evidence insofar as this meant that he was not a fast reader but nevertheless indicated that he had the capacity to retain, recall and repeat information.
92.Thus, the Tribunal finds on the evidence the Applicant’s physical impairments do not result in a substantially reduced functional capacity to undertake activities that involve learning for the purpose of subsection 24(1)(c)(iii) of the NDIS Act.
Mobility
93.In the Access Guidelines, it is stated that mobility means the ability of a person to move around the home (crawling/walking) to undertake ordinary activities of daily living, getting in and out of bed or a chair, leaving the home, moving about in the community, and performing other tasks requiring the use of limbs. As was observed in the case of Madelaine, the threshold requirement regarding mobility includes that a person has functional capacity where they are able to move around their home, get in and out of bed or a chair and mobilise around the community.[61]
[61] ibid at [104] to [106].
94.The Tribunal has taken note of the expert evidence and the evidence given by the Applicant at the hearing regarding the Applicant’s capacity to undertake activities of mobility. In her report, Ms Sale observed the Applicant to have the functional capacity to self-mobilise both inside and outside of his home. Furthermore, the Applicant was able to complete the mobility exercises that were set by Ms Sale for the purpose of her assessment without any restraint and, furthermore, was able to walk up to 100 metres before stopping for a minute to catch his breath and following this he was able to resume walking.
95.The Tribunal notes however that Ms Sale had seen that the fatigue the Applicant experienced whilst walking related to the back, hip and knee pain at the time of Ms Sale’s assessment and that this has since resolved. The Tribunal has taken note of the evidence given by the Applicant at the hearing that since losing weight and multiple surgeries he had an improved capacity to walk.
96.The Tribunal has taken note of the evidence given by the Applicant at the hearing that the opinion given by A/P Burrell in May 2022 where he opined that the Applicant could not walk for more than 20 metres before stopping was no longer applicable due to changed circumstances arising from his surgeries.
97.The Tribunal has taken note of the evidence given by the Applicant at the hearing that he can drive a car and that he drives everyday to access the community. The Tribunal has taken note of the evidence given by the Applicant at the hearing that he can travel extensively and long distances to perform as a musician where he travels by car and shares the driving.
98.The Tribunal has taken note of the evidence given by the Applicant at the hearing that he reported no access problems in regard to using buses, however, this requires the bus to be lowered to enable the Applicant to alight and exit the bus independently with minimal difficulties.
99.The Tribunal has taken note of the observations of Ms Sale, namely that the Applicant can successfully use comfortably his dining room chair, bed and he can also get in and out of the shower independently. The Tribunal notes that these observations are consistent with the oral evidence given by the Applicant at the he.
100.In relation to public toilets and cars which were lower than his own, the Tribunal has taken note that the Applicant described having to use the modification by way by of holding onto something for support and and/or going more slowly. The Applicant, however, accepted that he could manage these tasks with some difficulty.
101.For transfers out of his own car and his toilet at home or a disabled toilet, the Tribunal has taken note that the evidence given by the Applicant at the hearing that he had no recurring functional capacity with these transfers.
102.The Tribunal has taken note of the evidence given by the Applicant in his Statement and at the hearing that over a period of time he had noticed that he could no longer lift his right arm above the height of his shoulder, however despite these limitations he is able to use his left arm because of how he manages his body movements.
103.The Tribunal has taken note of the observations made by DP Humphries in the case of Madeleine where he found that the special requirements to achieve functional capacity in relation to mobility are relatively modest. In that case, DP Humphries found that a person has functional capacity if they can, for example, move about their home, get in and out of bed or a chair and mobilise. Having regard to the evidence and applying the principles espoused by DP Humphries in Madeleine, the Tribunal is satisfied that the Applicant can undertake activities of mobility.
104.Thus, the Tribunal finds on the evidence the Applicant’s physical impairments do not result in a substantially reduced functional capacity to undertake activities that involve mobility for the purpose of subsection 24(1)(c)(iv) of the NDIS Act.
Self-care
105.In the Access Guidelines, it is stated that self-care means activities related to personal care, hygiene, grooming, and feeding oneself, including showering, bathing, dressing, eating, toileting, grooming, caring for own health care needs.
106.Undertaking self-care tasks slowly, or in stages, or using pacing techniques, or doing a task differently to others does not necessarily mean that a person cannot participate effectively or completely in self-care tasks.[62]
[62] See Williams and National Disability Insurance Agency [2021] AATA 3383 at [88].
107.The finding that one ‘task’ within self-care is affected by the Applicant’s impairment does not mean the person has a substantial reduction in functional capacity.[63]
[63] See National Disability Insurance Agency v Foster [2023] FCAFC 11.
108.With respect to self-care, the Tribunal accepts that the evidence demonstrates that the Applicant has reductions to undertake certain tasks within this domain. However, the overarching evidence demonstrates that the reductions are not substantial as required by subsection 24(1)(c)(v) of the NDIS Act. This conclusion is supported by the following evidence, which the Tribunal summarises below.
109.The Tribunal has taken note that in her report, Ms Sale records that in her opinion the Applicant has a modest reduction in the activity of self-care and that the Applicant nevertheless has the capacity for independent self-care.
110.The Tribunal has taken note of the evidence given by the Applicant at the hearing that he was able to undertake personal care and hygiene tasks such as dressing, grooming, brushing his teeth, eating and drinking and that he managed to undertake each of these independently by changing his body movements.
111.The Tribunal has taken note of the evidence given by the Applicant at the hearing that he can independently undertake cooking and also prepare meals via sitting on a stool over the kitchen bench or counter in order to reduce his pain levels associated with his back.
112.The Tribunal has taken note of the evidence given by the Applicant at the hearing that he is able to complete the grocery shopping and goes alone, although he noted that he minimises his groceries and has his partner shop for heavier grocery items.
113.The Tribunal has taken note of the evidence given by the Applicant at the hearing that he has the capacity to do his own laundry. The Tribunal has taken note that the Applicant also has the capacity to hang heavier items such as towels and sheets, by undertaking the task differently by throwing one end of the towel or sheet first and then moving it down line so that he can use his left arm to peg it.
114.The Tribunal has taken note of the evidence given by the Applicant at the hearing regarding his capacity to undertake other domestic duties such as using the dishwasher, cleaning the bathroom, and vacuuming floors. The Applicant gave evidence that he is able to complete these tasks however he has to undertake them differently.
115.Again, referring to the case in Madeleine, which DP Humphries also found that having a substantially reduced functional capacity to care for oneself imports the idea that there are significant gaps in one’s capacity to maintain their personal health and safety and wellbeing. The Tribunal finds that on the evidence there is no significant gap in the Applicant’s capacity to undertake the activity of self-care and overall the Tribunal should find that the Applicant is able to independently and effectively undertake the various tasks which make up self-care.
116.Returning to rule 5.8 of the Becoming a Participant Rules, the Tribunal finds that the evidence does not demonstrate that as a result of his impairments, the Applicant is unable to participate effectively or completely in the activities of mobility and all self-care without assisted technology equipment or home modifications, or that he is unable to participate in these activities even with assisted technology equipment or home modifications or assistance from another person. This is supported by the expert opinion of Dr Hawthorne and the oral evidence given by the Applicant at the hearing where he stated that he is independent in regard to these activities.
117.Thus, the Tribunal finds on the evidence the Applicant’s physical impairments do not result in a substantially reduced functional capacity to undertake activities that involve self-care for the purpose of subsection 24(1)(c)(v) of the NDIS Act.
Self-management
118.In the Access Guidelines, it is stated that self-management means the cognitive capacity to organise one’s life, to plan and make decisions, and to take responsibility for oneself, including completing daily tasks, making decisions, problem solving and managing finances.
119.The Tribunal has taken note of the evidence that the Applicant gave at the hearing and the evidence contained in his Statement. This included that he has the functional capacity to self-manage by managing his bills and also by taking his medication.
120.Thus, the Tribunal finds on the evidence the Applicant’s physical impairments do not result in a substantially reduced functional capacity to undertake activities that involve self-management for the purpose of subsection 24(1)(c)(vi) of the NDIS Act.
Whether the impairments affect the Applicant’s capacity for social or economic participation
121.The Tribunal must be satisfied under subsection 24(1)(d) of the NDIS Act that the Applicant’s impairments affect his capacity for social or economic participation.
122.The Tribunal has taken note of the evidence given by the Applicant at the hearing that he continues to engage in paid employment as a professional musician and that his decision to cease working as a disability support worker in February 2023 was as a result of his knee replacement surgery and not as a result of his other impairments arising from his PPS.
123.The Tribunal has taken note of the evidence given by the Applicant at the hearing that his impairments arising from his PPS have not affected his capacity for social interaction.
124.Thus, the Tribunal is satisfied on the evidence that the Applicant’s impairments do not affect his capacity for social or economic participation for the purpose of subsection 24(1)(d) of the NDIS Act.
Whether the Applicant is likely to require the support under the National Disability Insurance Scheme for his lifetime
125.As the Tribunal has found that the Applicant’s impairments do not result in a substantially reduced functional capacity to undertake one or more of the activities specified in subsection 24(1)(c) of the NDIS Act, the Tribunal finds that the Applicant is not likely to require support under the NDIS for his lifetime for the purpose of subsection 24(1)(e) of the NDIS Act. This is because the requirements of section 24 of the NDIS Act are cumulative.
126.Furthermore, the Tribunal has taken note that in the present case, the Applicant has submitted that no other system provides the supports he is seeking. This, the Applicant submitted, includes the Aged Care System for which he is eligible to access because he meets the age requirements to access that system.
The Tribunal has taken note of the Full Federal Court decision in the case of National Disability Insurance Agency v Foster[64] (Foster). In the case of Foster, the Full Federal Court observed that when considering subsection 24(1)(e) of the NDIS Act, the task for the Tribunal is to consider whether or not a person is likely to require support under the NDIS for their lifetime or whether their needs could be more appropriately met by other systems. The task for the Tribunal under subsection 24(1)(c) of the NDIS Act is not to engage in a process of comparing the levels of supports for the different systems and whether there are gaps in those systems.
[64] [2023] FCAFC 11.
127.Thus, the Tribunal is not satisfied that the Applicant meets the requirements of subsection 24(1)(e) of the NDIS Act.
128.As I have found that the Applicant is not a person who meets the disability requirements as set out in section 24 of the NDIS Act to become a participant in the NDIS, I must now consider whether the Applicant can become a participant in the NDIS on the basis that he is a person who meets the early intervention requirements as set out in section 25 of the NDIS Act.
CONSIDERATION OF THE EARLY INTERVENTION REQUIREMENTS
Whether the Applicant’s impairments are permanent or are likely to be permanent
129.The Tribunal must be satisfied that the Applicant has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent as set out in subsection 25(1)(a) of the NDIS Act.
130.For the reasons given above in paragraphs [70]-[71], the Tribunal is satisfied that the Applicant meets the requirements of subsection 25(1)(a) of the NDIS Act.
Whether the provision of early intervention supports for the Applicant is likely to benefit the Applicant by reducing his future needs for supports in relation to disability
131.The Tribunal must be satisfied that the provision of early intervention supports for the Applicant is likely to benefit him by reducing the Applicant’s future needs for supports in relation to disability as set out in subsections 25(1)(b) and (c) of the NDIS Act.
132.Whilst the Tribunal accepts that the evidence before the Tribunal demonstrates that the Applicant’s impairments arising from his PPS are permanent and that the requirements of subsection 25(1)(a) of the NDIS Act are met, it does not accept that the evidence demonstrates that the Applicant meets the requirements of subsections 25(1)(b) or (c) of the NDIS Act. The Tribunal comes to this view for the following reasons.
133.For the purpose of the requirements of subsection 25(1)(b) of the NDIS Act, the Tribunal has taken note of the expert opinion given by Dr Hawthorne in his letter of 24 February 2023, namely that the Applicant’s weakness to his right upper limbs would most definitely not improve and may indeed increase. The Tribunal notes that Dr Hawthorne further opined that some patients who experience poliomyelitis may develop further weakness some decades after the acute illness and that it was not possible to predict whether or not the Applicant would suffer from this in the future.
134.The Tribunal has taken note of the evidence given by the Applicant at the hearing that his condition had now progressed or that it was deteriorating. This evidence demonstrates to the Tribunal that the provision of the early intervention supports is not appropriate to the Applicant and, furthermore, that there is no evidence to demonstrate that he would be likely to use these supports.
135.The provision of early intervention supports should be provided to a person at the earliest possible stage of the disease and whilst the Tribunal acknowledges that it is not necessarily a requirement for there to be a close proximity between someone’s diagnosis of their condition and the provision of the support, the evidence in the present matter demonstrates that the Applicant has had his impairments arising from his PPS for over five years but that his diagnosis of polio was made when he was two years of age. It follows that the provision of early intervention supports at this advanced stage would be inconsistent with the purpose for which the early intervention provisions were designed.
136.For the purpose of subsection section 25(1)(c) of the NDIS Act, the Tribunal has taken note of the expert opinion given by Ms de Silva in her report of 18 May 2022, namely that exercise and physiotherapy sessions would assist the Applicant in maintaining his independence. The Tribunal has taken note that in her report Ms de Silva does not with any specificity identify how the impact on the Applicant’s functional capacity is mitigated, mediated, or improved, or how deterioration could be prevented.
137.Furthermore, the Tribunal has taken note of the evidence given by the Applicant at the hearing that when he was receiving physiotherapy treatment from Ms de Silva in early 2022, his support needs and his presentation at that time was affected by his hip and knee pain which the Tribunal notes has since resolved.
138.Thus, the Tribunal is not satisfied that the requirements of subsections 25(1)(b) and (c) of the NDIS Act are met.
Whether the early intervention support for the Applicant is not appropriately funded or provided through the National Disability Insurance Scheme
139.The Tribunal must be satisfied that early intervention support for the Applicant is not most appropriately funded or provided through the NDIS as set out in subsection 25(3) of the NDIS Act.
140.Finally, for the purpose of subsection 25(3) of the NDIS Act, the Tribunal has taken note that the evidence does not demonstrate that the supports sought by the Applicant to become a participant in the NDIS could not be accessed through other systems such as the general health system. The Tribunal has taken note of the evidence given by the Applicant at the hearing that he can access the supports he is seeking through Medicare.
141.Thus, the Tribunal is satisfied on the evidence that early intervention supports for the Applicant is not most appropriately funded or provided through the NDIS for the purpose of subsection 25(3) of the NDIS Act.
CONCLUSION
142.As the Tribunal has concluded that the Applicant is not a person who meets the access criteria as set out in section 21 of the NDIS Act to become a participant in the NDIS, the Tribunal must affirm the decision under review pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).
DECISION
The Tribunal affirms the decision under review pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).
I certify that the preceding 142 (one hundred and forty -two) paragraphs are a true copy of the reasons for the decision herein of Member P Smith
............................ [SGD]............................................
Associate
Dated: 10 November 2023
Date(s) of hearing: 03 October 2023 Applicant: In person Solicitors for the Respondent: Sylvia Quang, HWL Ebsworth Lawyers
The Applicant made an oral request to the Respondent on 6 June 2022 for an internal review of the decision made by a delegate of the Chief Executive Officer of the National Disability Insurance Agency on 1 June 2022 that the Applicant is not a person who meets the access criteria as set out in section 21 of the National Disability Insurance Scheme Act 2013 (Cth) to become a participant in the National Disability Insurance Scheme.
See the interaction record made by the National Disability Insurance Agency at T11 of the T-documents.
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